Com. v. Williams, R.

J-S69014-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAYMOND WILLIAMS
Appellant No. 2819 EDA 2013
Appeal from the Judgment of Sentence October 2, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010221-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 12, 2014
Appellant, Raymond Williams, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial convictions of aggravated assault, robbery, carrying firearms on
public streets, and possession of an instrument of crime.1 We affirm.
The trial court opinion sets forth the relevant facts and procedural
history of this case. Therefore, we have no need to restate them.
Appellant raises one issue for review:
WHETHER…THE TRIAL COURT ERRED WHEN IT FOUND
[APPELLANT] GUILTY OF ROBBERY 18 PA.C.S.A. §
3701(A)(1)(II) WHEN THE EVIDENCE WAS INSUFFICIENT
AS A MATTER OF LAW TO ESTABLISH APPELLANT’S GUILT
____________________________________________
1
18 Pa.C.S.A. §§ 2702(a), 3701(a)(1)(ii), 6108, 907(a).
J-S69014-14
BEYOND A REASONABLE DOUBT OF ROBBERY?
(Appellant’s Brief at 7).
Appellate review of a claim challenging the sufficiency of the evidence
is:
[W]hether viewing all the evidence admitted at trial in the
light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Charles J.
Cunningham, III, we conclude Appellant’s issue merits no relief. The trial
court opinion comprehensively discusses and properly disposes of the
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J-S69014-14
question presented. (See Trial Court Opinion, filed April 10, 2014, at 3-8)
(finding: sufficient evidence existed to support robbery conviction, where
Appellant approached Complainant, brandished gun, and demanded that
Complainant give his money to Appellant; although Complainant knew
Appellant and at first laughed at Appellant’s demand, Appellant then raised
gun to Complainant’s face; Complainant responded to threat by grabbing
Appellant’s neck to disarm Appellant; gun discharged during their fight;
Appellant bit Complainant three times on Complainant’s arm; Complainant’s
phone and money ended up on ground during fight; Appellant grabbed
Complainant’s money and phone from ground and fled; Complainant took
possession of gun; Appellant returned and re-engaged Complainant;
Complainant struck Appellant with gun handle; Appellant fled again;
Complainant went home and had his wife call police; when police arrived at
Complainant’s home, Complainant gave them Appellant’s gun and hat; later,
police obtained Appellant’s shirt; Appellant’s demand, with use of gun, for
Complainant’s money was attempt to take Complainant’s property by force
with gun, which gave rise to reasonable inference that Complainant was in
fear of immediate serious bodily injury, satisfying Section 3701(a)(1)(ii);
although Appellant was not charged with Section 3701(a)(1)(v), Appellant’s
removal of Complainant’s cash and phone from ground constituted
Appellant’s taking from Complainant’s person, which includes unlawful taking
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J-S69014-14
of Complainant’s property from his presence or control).2 The record
supports the court’s credibility determinations and decision. Accordingly, we
affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2014
____________________________________________
2
We note a correction to page 3 of the court’s opinion: counsel filed
Appellant’s untimely post-sentence motion on October 16, 2013. We further
reject Appellant’s hyper-technical application of grammar rules that led to
Appellant’s mischaracterization of the court’s opinion.
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FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COURT OF COMMON PLEAS, CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
1658 EDA 2013
v.
RAYMOND WILLIAMS
111/111111111111111111 III FILED
7138046441 APR 1 0 1014
OPINION Crlmin~1 Appeals unil
First Judicial District of PA
STATEMENT OF THE CASE
Defendant is appealing his conviction on the charge of Robbery pursuant to 18 Pa.C.S.A.
§ 370J(a)(J)(ii), and related charges. Defendant complains that the evidence presented at trial \"las
insufficient to prove his guilt beyond a reasonable doubt and that the verdict was against the
weight of the evidence. Defendant's complaints are without merit.
PROCEDURAL HISTORY
On August 10, 2012, Defendant was arrested and charged \"lith inter alia: Aggravated
Assault, Robbery, Firearms Not to be Carried Without a License, Theft by Unlawful Taking,
Receiving Stolen Property, Carrying Fireanns on Public Streets, Possession of an Instrument of
Crime, Terroristic Threats, Simple Assault, and ReCklessly Endangering another Person.! At the
conclusion of Defendant's bench trial on July 22, 2013, he was found guilty of Aggravated
Assault, Robbery, Carrying Fireanns on Public Streets and Possession of an Instrument of
Crime. He was fOlmd not guilty on the remaining charges. On October 2, 2013, he was
, 18 Pa.C.SA §§ 2702(a); 3701(a)(J)(ii); 6106(a)(1); 3921(a); 3925(a); 6108; 907(a); 2706(a)(1);
2701 (a) and 2705 respectively.
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sentenced to a period of confinement in a state correctional facility of 5 to 15 years on the charge
of Aggravated Assault. He was also sentenced to concurrent periods of probation of 10 years on
the charge of Robbery, 5 years on the charge of Carrying Firearms on Public Streets and 5 years
on the charge of Possession of an Instrument of Crime. These periods of probation are
consecutive to his incarceration for Aggravated Assault. In sum, Defendant was sentenced to 5-
15 years confinement followed by 10 years of probation.
On October 7, 2013, Defendant timely filed the instant pro se appeal to the Superior
Court of Pennsylvania. On October 10,2013, Walter C. Chisolm, Esq. was appointed counsel to
represent Defendant for the purposes of his appeal. On October 16, 2013, Defendant, through
his counsel, filed an untimely Post-Sentence Motion challenging the sufficiency and weight of
the evidence presented at Defendant's trial. On November 4,2013, the Court filed and served on
Defendant an Order pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure,
directing Defendant to file and serve a Statement of Errors Complained of on Appeal within 21
days of the Court's Order. On November 18,2013, Defendant filed a Motion for Extension of
Time to file a Statement of Errors because the notes of testimony had not yet been transcribed.
On November 22, 2013, Defendant filed a Statement of Errors and also refiled his previous
Motion for Extension of Time. On November 27, 2013, the Court granted Defendant's Motion
for Extension of Time and directed him to file a Statement of Errors within 21 days after the
notes of testimony became available. The notes of testimony became available on December 6,
2013. Defendant has not subsequently filed a supplemental Statement ofEITors. In his Statement
of Errors filed on November 22, 2013, Defendant complains:
"12. The evidence was insufficient as a matter of law to establish the defendant's guilt
beyond a reasonable doubt on the charge of robbery because there was no evidence that
defendant ever physically took or removed property from the person of another by force.
The evidence in this case appears to indicate that the alleged property of the complainant
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was not taken from the complainant's person, by force, but instead was allegedly taken
from the ground Or sidewalk - apart from the complainant's body or person. Therefore,
the strict element of 18 Pa.C.S. 3701 section (a)(1) have not been satisfied."
"13. A new trial should be awarded in the interest of justice because the verdict was
against the weight of the evidence. Again, the evidence in this case appears to indicate
that the alleged property of the complainant was not taken from the complainant's
person, but instead was allegedly taken from the ground or sidewalk. Therefore, the strict
elements of 18 Pa.C.S. 3701 section (a)(I) have not been satisfied."
WAIVER
The Pennsylvania Rules of Criminal Procedure (PaR.CLP.) at Rule 607(A) provides, in
pertinent part: "A claim that the verdict was against the weight of the evidence shall be raised
with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before
sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence
motion." A challenge to the weight of the evidence will be deemed waived if not properly raised
pursuant to Pa. R. Cr. P. Rule 607(A). Commonwealth v. Buller, 1999 PA Super 58, 729 A.2d
1134,1140 (1999)
Defendant did not first challenge the weight of the evidence until filing a "Post Sentence
Motion" on October 17, 2013. This motion was untimely, however, because: (a) Defendant had
already filed his Notice of Appeal to the Superior Court on October 7, 2013, and (b)
Pa.R.Crim.P. Rule 720(a)(I) requires Post-Sentence Motions to be filed within ten days of the
imposition of sentence, and 14 days had passed since Defendant was sentenced on October 2,
2013. Because Defendant did not raise this issue in accordance with Rule 607(A), it is waived
for the purposes of appeal. The Court would further add, however, that Defendant's challenge to
the weight of the evidence is duplicative of his challenge to the sufficiency of the evidence and,
for the reasons explained in the discussion below, is meritless.
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EVIDENCE AT TRIAL
The complainant, Terrance Montague, testified that in the early morning of August 6,
2012, he was buying food at a store in the 300 block of North 52" Street in the City of
Philadelphia. At approximately I: 15 am he left the store and was approached by Defendant, who
was holding a goo at his side and covering his face with a shirt. Complainant testified that
Derendant told him to "give me all your f-----g money", but that Complainant knew Defendant
and laughed at his demand. When Complainant asked Defendant ifhe was "serious" Defendant
pointed his gun at his face. In response to this threat Complainant grabbed Defendant by the
neck and attempted to take the gun from him. Although the exact chronology is unclear, during
the struggle the following events occurred: (1) Defendant bit Complainant three times on the
ann, (2) the gun the two were fighting over somehow discharged, although neither man was hit,
(3) a phone and cash belonging to Complainant ended up on the ground, and (4) Complainant
yelled at bystanders to call the police. (N.T. 7/22/13 pgs. 14-19, 27, 30)
Complainant was eventually able to take to take possession of Defendant's gun, hat, and
the shirt he had over his face, at which point Defendant grabbed his money and phone from the
ground and fled. Shortly thereafter Defendant returned and attempted to reengage Complainant,
who then hit Defendant with the handle of the gon. Defendant again fled. (N.T. 7122/13 pgs. 18-
20)
Complainant, taking Defendant's gun, shirt and hat with him, travelled approximately
two blocks to his home. Before entering he noticed that there were police officers in the area.
Once inside Complainant also told his wife to call the police. Officers arrived at his home and
collected Defendant's gun and hat, returning later to collect the shirt. (N.T. 7/22/13 pgs. 20-21,
33)
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111at evening Complainant received treatment, including a tetanus shot, for the three bites
he received from Defendant. He testified at trial that he still feels numbness in his ann as a result
ofthe bites. (N.T. 7122113 pgs. 22-25)
Philadelphia Police Officer Reinaldo Dejesus testified that on August 6,2012 he was on
duty m the City of Philadelphia when he received a report of an anned robbery. Officer Dejesus
met the complainant at his home, who told him that he had been robbed in the 300 Block of 52 nd
Street and identified his assailant as a man named Raymond. Mr. Montague provided Officer
Dejesus with the gun he had taken from Defendant. Officer Dejesus later returned to Mr.
Montague's home to retrieve Defendant's shirt as well. (N.T. 7/22113 pgs. 39 M
4S)
DISCUSSION OF THE ISSUE RAISED
I. THERE WAS SUFFICIENT EVIDENCE TO PROVE BEVOND A REASONABLE
DOUBT THAT DEFENDANT WAS GUILTY OF ROBBERY.
Defendant states that there was insufficient evidence to establish guilt beyond a
reasonable doubt on the charge of robbery. This complaint is without merit.
A challenge to the sufficiency of the evidence is a question of law. Commonwealth v.
Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000) The test is "whether the evidence, and all
reasonable inferences deducible therefrom, vlewed ill the light most favorable to the
Comll1onwealt11 as verdictMwinner, are sufficient to establish all the elements of the offense
beyond a reasonable doubt." Commonwealth v. Davalos, 779 A.2d 1 I 90, 1 I 93 (2001) (citing
Commonwealth v. Hughes, 536 Pa. 355, 361, 639 A.2d 763, 766 (1994)) If the finder of fact
could have reasonably determined from the evidence that all of the necessary elements of the
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crime were established, then the evidence is deemed sufficient to support the verdict. [d. (citing
Commonwealth v. Wood, 432 PaBuper. 183, 199,637 A.2d 1335, 1343 (1994))
Defendant vvas convicted of robbery pursuant to 18 Pa.e.S.A. § 3701 (a)(1 )(ii), graded as
2
a felony of the first degree , which provides in part that a person commits robbery when in the
"course of committing a theft" he "threatens another with or intentionally puts him in fear of
immediate serious bodily injury." A theft occurs when one "unlawfully takes, or exercises
unlawful control over, movable property of another with intent to deprive him thereof." 18
Pa.C.S.A. § 3921(a). Section 3701(a)(2) of the robbery statute states that an act is in the "course
of committing a theft" if it occurs "in an attempt to commit theft or in flight after the attempt or
commission." In other words, it is not necessary that a defendant have successfully completed a
theft in order to commit robbery. See Commonwealth v. Robinson, 936 A.2d 107, 110 (Pa.
Super. 2007)
The phrase "serious bodily injury" is defined as "bodily injury which creates a substantial
risk of death or which causes serious, permanent disfigurement or protracted loss or impairment
of the function of any bodily member or organ." Commonwealth v. Kubis, 978 A.2d 391, 398
(Pa. Super. 2009) (ciling Commonwealth v. Hopkins, 747 A.2d 910,915 (Pa.Super.2000)) The
"threat" of serious bodily injury need not be verbal, and it is sufficiellt if the evidence shows that
the defendant took "aggressive actions that threatened the victim's safety'" Commonwealth v.
Hopkins, 747 A.2d 910, 914 (Pa.Super.2000) (internal citations omitted) The Superior Court
has said that in making Olis detennination the "proper focus is on the nature of the threat posed
by an assailant and whether he reasonably placed a victim in fear of' serious bodily injury. ld.
Importantly, the finder of fact is "entitled to infer that a victim was in mortal fear when a
defendant visibly brandished a firearm." Id. at 914-915
2 18 Pa.C.SA § 3701(b)(l)
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In the instant matter, the Commonwealth presented evidence in the form of testimony
from the complainant Terrance Montague that Defendant appeared before Complainant holding a
firearm and demanded his money. When asked if he was serious about this demand Defendant
pointed the gun at Complainant's face. (N.T, 7122/13 pgs. 16-17) This demand for money was
clearly an attempt to unlawfully take the property of Complainant, i.e. a theft. See 18 Pa.C.S,A. §
3921 (a) An attempted theft constitutes an activity "in the course of committing a theft" under 18
Pa.C.S.A. §§ 3701(a)(1) and (a)(2). Complainant's testimony that Defendant backed up this
threat by brandishing a fireann provides sufficient evidence to show that Defendant put
Complainant in fear of immediate serious bodily injury because the finder of fact may "infer that
a victim was in mortal fear" in such a case. Hopkins, 747 A.2d at 914-915 Therefore, there was
sufficient evidence to find Defendant guilty of robbery beyond a reasonable doubt.
Defendant argues in his Statement of Errors, however, that the evidence was insufficient
to support his conviction for robbery because he did not forcibly take property from
Complainant's "person," But as the Superior Court recognized in Commonwealth v. Brandon,
79 A.3d 1192, ] 195 (Pa. 2013), taking property "from the person" is not an element of robbery
pursuant to 18 Pa.C.S.A. § 3701(a)(1)(ii). Defendant appears to be referring to a different
section of the robbery statute, § 3701(a)(1)(v), which provides in part that an individual commits
robbery when he "physically takes or removes property from the person of another by force
however slight" during a theft, This is a less serious form of robbery (a third degree rather than a
first degree felony3) that Defendant was not charged with, Nevertheless, even if Defendant had
been charged under § 3701(a)(1)(v) there still would have been sufficient evidence to find him
guilty of robbery. This is because taking "from the person" includes not only taking from the
victim's body but also taking from his or her "presence" or "control." See Comnwnwealth v.
J l8 Pa,C.SA § 3701(b)(1)
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Moore, 343 Pa.Super. 242, 248, 494 A2d 447, 450 (1985), Commonweulth v. Shamberger, 788
A2d 408, 418 (Pa. Super. 2001) The evidence, as outlined above, is sufficient to show that
Defendant took the complainant's property from his presence or control.
CONCLUSION
The Court finds that in the instant matter the verdict was sufficient as a matter of taw to
fmd Defendant guilty beyond a reasonable doubt of the crime of robbery.
BY THE COURT:
April 8, 2014
,Ill 1.
8