Com. v. Howard, E.

J. S31033/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
EMMANUEL HOWARD, : No. 1549 WDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, September 14, 2016,
in the Court of Common Pleas of Fayette County
Criminal Division at No. CP-26-CR-0001069-2016
BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 21, 2017
Emmanuel Howard appeals from the September 14, 2016 judgment of
sentence entered in the Court of Common Pleas of Fayette County after a
jury convicted him of two counts of robbery and one count each of theft by
unlawful taking, receiving stolen property, and simple assault.1 The trial
court imposed a sentence of 7 to 20 years of imprisonment on one of the
robbery convictions and imposed no further sentence on the remaining
convictions. We affirm.
The trial court set forth the following factual history:
On December 29, 2015, Christine Arthur
(hereinafter “Victim”) was employed as a waitress at
the Canton Restaurant on Fayette Street in
Uniontown, Fayette County, Pennsylvania.
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3701(a)(1)(v), 3921(a), 3925(a), and
2701(a)(3), respectively.
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Approximately thirty minutes into her shift, a man
described by Victim as a young black male, with
facial hair, distinguished eyes and wearing a dark
hooded sweatshirt came into the restaurant and
placed an order. The man grabbed a can of pop out
of the refrigerator cooler and set it down on the
counter where Victim was working. After Victim
requested payment for the order, the man went
around the counter, pointed an object that was
covered up with a handkerchief into her side and
demanded money from the cash register. The
assailant then ran off after taken [sic] approximately
sixty dollars. Victim testified she complied with the
demand because she “was afraid for my life.”
About five minutes after the assailant fled the
restaurant, Lieutenant Tom Kolencik with the
Uniontown Police Department arrived on scene and
spoke with Victim. Lieutenant Kolencik also took into
evidence the pop can that was handled by the
assailant during the commission of the crime. The
conclusion of the lab results was that a set of
fingerprints on the pop can belonged to [a]ppellant.
Appellant briefly testified at trial. He testified
that since he resided across the street from the
restaurant, he frequented it numerous times.
Finally, [a]ppellant testified that he did not rob the
Canton on December 29, 2015.
Trial court opinion, 12/5/16 at 2-3 (citations to notes of testimony and
footnote omitted).
The record reflects that appellant filed a timely post-sentence motion
for modification of sentence, which the trial court denied. Appellant then
filed a timely notice of appeal to this court. The trial court ordered appellant
to file a concise statement of errors complained of on appeal pursuant to
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Pa.R.A.P. 1925(b). Appellant complied. Thereafter, the trial court filed its
Rule 1925(a) opinion.
Appellant raises the following issues for our review:
[1.] Whether the evidence presented at trial
sufficiently established that during the course
of a theft at the Canton Restaurant on Fayette
Street in Uniontown, Fayette County,
Pennsylvania, [appellant] threatened the victim
with serious bodily injury or that he used
physical force when removing the money from
the register, as required under both
18 Pa.C.S.A. § 3701(a)(1)(ii) and (v)?
[2.] Whether the evidence at trial sufficiently
established that [appellant’s] conduct placed
the victim in fear of imminent serious bodily
injury, as required under 18 Pa.C.S.A.
§ 2701(a)(3)[?]
[3.] Whether the evidence presented at trial
demonstrated that the individual who robbed
the Canton Restaurant on December 29, 2015
was in fact [appellant?]
[4.] Whether [appellant’s] sentence of no less than
seven (7) years to twenty (20) years was
harsh, severe and excessive in light of the
surrounding circumstances[?]
Appellant’s brief at 7 (capitalization omitted).
Appellant’s first three issues challenge the sufficiency of the evidence.
In reviewing a challenge to the sufficiency of the
evidence, we must determine whether, viewing the
evidence in the light most favorable to the
Commonwealth as verdict winner, together with all
reasonable inferences therefrom, the trier of fact
could have found that each and every element of the
crimes charged was established beyond a reasonable
doubt.
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Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa.Super. 2015).
The statutory definition of robbery reads, in pertinent part, as follows:
§ 3701. Robbery.
(a) Offense defined.
(1) A person is guilty of robbery if, in the
course of committing a theft, he:
....
(ii) threatens another with or
intentionally puts him in fear
of immediate serious bodily
injury; [or]
....
(v) physically takes or removes
property from the person of
another by force however
slight[.]
18 Pa.C.S.A. § 3701(a)(1)(ii), (v).
Appellant complains that the evidence was insufficient to convict him
of robbery under Section 3701(a)(1)(ii) because appellant “made no verbal
threats to the [victim]”; appellant “never brandished a weapon”; the victim
“did not observe any firearm throughout the entire incident”; and the victim
followed appellant’s orders. (Appellant’s brief at 12.) As such, appellant
contends that the evidence failed to demonstrate that appellant threatened
the victim or intended to put her in fear of immediate serious bodily injury
and that it failed to demonstrate that the victim was threatened or feared
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immediate serious bodily injury. Appellant further complains that the
evidence was insufficient to convict him under Section 3701(a)(1)(v)
because appellant “removed the cash from the cash register, not from the
[victim’s] person.” (Id.) Appellant is mistaken.
In a case starkly similar to this, this court found that where the
Commonwealth presented evidence that the defendant pressed a hard object
into the victim’s side and told the victim to give him all the money from the
cash register and the safe, and the victim complied, the evidence was
sufficient for the jury, sitting as fact-finder and examining the evidence in its
totality, to convict under Sections 3701(a)(1)(ii) and (v). Commonwealth
v. Taylor, 831 A.2d 661, 664 (Pa.Super. 2003).
Here, at trial, the victim testified that appellant “came along next to
[her,]” “pointed something in her side[,]” and told her to “open the
register.” (Notes of testimony 9/7/16 at 20.) The victim further testified
that the object that appellant put into her side was covered with a
handkerchief or a bandana. (Id.) She stated that she did what appellant
told her to do and “feared for [her] life.” (Id. at 21.)
Therefore, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, we find that the Commonwealth presented sufficient evidence for
the jury, sitting as fact-finder, to find every element of the robbery counts
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under Section 3702(a)(1)(ii) and (v) was established beyond a reasonable
doubt.
Appellant next complains that the evidence was insufficient to sustain
his conviction for simple assault under Section 2701(a)(3) because the
victim “testified that no verbal threats were made to her and she never
observed any firearm during the brief incident.” (Appellant’s brief at 13.)
Appellant cites no authority -- and we are aware of none -- for his
contention that to be convicted of simple assault, the Commonwealth was
required to prove that he verbally threatened the victim and that the victim
observed a firearm during the assault.
A person is guilty of simple assault if he “attempts by physical menace
to put another in fear of imminent serious bodily injury.” 18 Pa.C.S.A.
§ 2701(a)(3). Again, at trial, the victim testified that appellant pressed a
hard object into her side, instructed her to open the cash register, and that
she “feared for [her] life.” (Id.) Viewing this evidence in the light most
favorable to the Commonwealth, together with all reasonable inferences
therefrom, we find that the Commonwealth presented sufficient evidence for
the jury, sitting as fact-finder, to find every element of Section 2701(a)(3)
was established beyond a reasonable doubt.
Appellant next complains that the Commonwealth failed to present
sufficient evidence that appellant was the person who robbed the restaurant.
The record belies appellant’s claim. During trial, the victim identified
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appellant as the person who robbed the restaurant. (Notes of testimony,
9/7/16 at 18.) The victim further testified that immediately prior to the
robbery, appellant took a can of soda from the cooler and placed it on the
counter. (Id. at 19-20.) The record reflects that law enforcement secured
the soda can and subsequently sent it to the Pennsylvania State Police Crime
Lab for analyzation of latent fingerprints. (Id. at 43-47, 55-56, 68.) At
trial, the Commonwealth presented forensic evidence that the fingerprints
lifted from the soda can were appellant’s fingerprints. (Id. at 89.)
Therefore, this claim fails.
Appellant finally challenges the discretionary aspects of his sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
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Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted; brackets in original).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at
sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial
question that the sentence appealed
from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Moury, 992 A.2d at 170 (citation omitted; brackets in original).
Here, appellant filed a timely notice of appeal and properly preserved
his sentencing challenge in his post-trial motion for modification of sentence.
As the Commonwealth observes, however, appellant has failed to include in
his brief the requisite Rule 2119(f) statement. (Commonwealth’s brief at 12
n.3.) Because the Commonwealth merely observes its exclusion and does
not object to its omission, the defect is not necessarily fatal. See
Commonwealth v. Maneval, 688 A.2d 1198, 1199 (Pa.Super. 1997)
(“When the Commonwealth does not object to the omission of a
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Rule 2119(f) statement, this Court can overlook the omission if the presence
or absence of a substantial question can be easily determined from the
appellant’s brief.”), citing Commonwealth v. Saranchak, 675 A.2d 268,
277 n.18 (1996).
That said, it is fairly obvious that appellant fails to raise a substantial
question concerning the appropriateness of his sentence. Appellant claims
that his sentence is “harsh, severe and excessive in light of the
circumstances,” despite it falling within the standard range of the sentencing
guidelines, because “the evidence was highly circumstantial,” the “alleged
victim was not injured,” “[e]ven though appellant is a repeat felon, his
record does [not] reflect any violent history, nor a propensity for violence,”
and his “rehabilitative needs will not be adequately addressed.” (Appellant’s
brief at 17.) Appellant has entirely failed to demonstrate how the sentence
is inconsistent with a specific provision of the sentencing code or in what
way it is contrary to the fundamental norms that underlie appellant’s
sentencing process. In fashioning appellant’s sentence, the trial court
reviewed the presentence investigation report, considered the nature and
seriousness of the offense, considered appellant’s status as a repeat felon
under his prior record score, considered the need to protect the community,
and considered appellant’s rehabilitative needs. (Trial court opinion,
12/5/16 at 9-10.) Therefore, appellant fails to present a substantial
question for our review.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2017
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