Com. v. Walters, L.

J-S43042-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LUKE WALTERS, JR. :
:
Appellant : No. 234 WDA 2020
Appeal from the Judgment of Sentence Entered January 7, 2020
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004882-2018
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JANUARY 29, 2021
Appellant, Luke Walters, Jr., appeals nunc pro tunc from the judgment
of sentence entered in the Westmoreland County Court of Common Pleas,
following his jury trial conviction for robbery.1 We affirm.
In its opinion, the trial court sets forth the relevant facts of this case as
follows:
The charge in this case arose from an investigation of a
robbery at the Lower Burrell Giant Eagle in Westmoreland
County on October 20, 2018. During trial, nineteen-year–
old [Victim] testified that, on the date of the incident, he
and [his] girlfriend went to Giant Eagle. [Victim] indicated
that, after leaving the store, he and [his girlfriend] stopped
at the Redbox machine, which was located outside of the
store, and as he was paying for the movie, a [“man”] came
from behind him, “stuck something” in his back, and told
him not to move or he would be shot. [Victim] confirmed
that, after the interaction with the man, whom he later
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1 18 Pa.C.S.A. § 3701(a)(1)(ii).
J-S43042-20
identified as [Appellant], [Victim’s girlfriend] ran into the
Giant Eagle to get help. At this time, [Victim] was scared
so he followed every move that [Appellant] told him to do.
Specifically, [Appellant] directed [Victim] into the parking
lot and asked [Victim] how much money he had. [Victim]
gave [Appellant] the forty dollars that was inside his wallet
and [Appellant] told him that was not enough money so they
went back inside Giant Eagle to retrieve more money from
an ATM. [Appellant] told [Victim] that, if he acted out in
any way, [Appellant] would kill him. Prior to withdrawing
any money, the police arrived. On cross-examination,
[Victim] confirmed that he never actually saw [Appellant]
with a gun.
[Victim’s girlfriend] testified that, on October 20, 2018, she
and [Victim] went to Giant Eagle and stopped to get a
Redbox movie. While at the Redbox machine, [Appellant]
approached them and threatened [Victim]. Based on what
she heard the man say, she thought [Appellant] was going
to shoot [Victim] and that made her very fearful for
[Victim’s] and her own life. [Victim’s girlfriend] immediately
ran into the Giant Eagle to seek help from the employees.
Office Jose Pantoja testified that, in October of 2018, he was
employed part time as a patrol officer with the Allegheny
Township Police Department. On October 20, 2018, while
at the station, he received a call regarding an incident
involving a holdup outside of the Giant Eagle in Lower
Burrell, and he responded to the scene approximately five
minutes later. Once inside the store, Officer Pantoja spoke
to a couple of customers and was directed to a male in a red
hooded sweatshirt, matching the earlier description
provided, and a male in a blue leather jacket. Officer
Pantoja then ordered the men to put their hands up and get
on the floor. [Victim] was interviewed and indicated that
[Appellant] took a twenty-dollar bill and four five-dollar bills
from him. A search revealed money on [Appellant’s]
person; however, [Appellant] allegedly denied committing a
robbery. [Appellant] was subsequently placed in custody.
On cross-examination, Officer Pantoja testified that neither
[Victim] nor [Victim’s girlfriend] told him that they observed
a gun on [Appellant’s] person, and no gun was ever
retrieved.
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Officer Dan Myers, of the Allegheny Township Police
Department, testified that, on October 20, 2018, he was
dispatched through Westmoreland County 911 for an
individual with a gun in the parking lot of Giant Eagle. Upon
arrival, Officer Myers entered the Giant Eagle, observed
Officer Pantoja with his gun out facing an individual, and
proceeded to directly engage the individual. Officer Myers
then placed the individual, who was later identified as
[Appellant], into custody and searched him revealing a
twenty-dollar bill, four five-dollar bills, and a police business
card. Officer Myers confirmed that [Victim] indicated that
the money taken from him was indeed a twenty-dollar bill
and four five-dollar bills. On cross-examination, Officer
Myers confirmed that no weapon was located on
[Appellant’s] person.
MaryAnne Hrivnak and Miranda Rimmel were customers at
the Lower Burrell Giant Eagle on the date of the incident. At
trial, Ms. Hrivnak testified that, while she was waiting at the
checkout line, a girl frantically ran into the store screaming
that her boyfriend was being held at gunpoint at the Redbox
outside the store by a man in a red hoodie. Ms. Hrivnak
indicated that a man with a hoodie and another man with a
Leechburg varsity jacket entered the store with their hands
in their pockets and walked towards the ATM machine. Ms.
Hrivnak testified that a police officer entered the store
shortly thereafter.
Ms. Rimmel testified that prior to entering the store, she
observed a Harrison Township police officer and a man in a
red sweatshirt speaking. Ms. Rimmel stated that, as she
was walking into the store, the man was walking in front of
her straight to a Redbox where a young boy and girl were
standing. Ms. Rimmel indicated that the man in the
sweatshirt had his hood up and he was talking to the two
younger kids who appeared “a little nervous.” Ms. Rimmel
stated that she was familiar with the boy, and she identified
him as “Brandyn.” Ms. Rimmel corroborated the testimony
of Ms. Hrivnak regarding the remaining events. [Appellant]
elected not to testify at trial. Commonwealth’s Exhibit One
contains clips of video surveillance from the Giant Eagle
store on the date of the incident. During trial, the
Commonwealth requested the witnesses to identify
themselves and the relevant parties depicted in the video.
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(Trial Court Opinion, filed April 6, 2020, at 2-4) (internal citations omitted).
Following trial, a jury found Appellant guilty of robbery. On January 7,
2020, the court sentenced Appellant to five (5) to ten (10) years’
imprisonment. Appellant did not file post-sentence motions or a timely notice
of appeal. Appellant subsequently sought reinstatement of his direct appeal
rights nunc pro tunc. By order dated February 14, 2020, the court reinstated
Appellant’s direct appeal rights nunc pro tunc with the Commonwealth’s
consent. That same day, Appellant filed a notice of appeal nunc pro tunc. On
February 21, 2020, the court ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, and Appellant timely
complied.
Appellant raises the following issue for our review:
Whether the jury’s verdict for Robbery by Threat of
Immediate Serious Bodily Injury was based on sufficient
evidence?
(Appellant’s Brief at 2).
Appellant argues that he did not place Victim in fear of immediate
serious bodily injury because no firearm was ever seen or recovered. In
addition, Appellant contends he did not take any aggressive action to threaten
Victim. Appellant concludes the evidence was insufficient to sustain the
verdict, and this Court must vacate his conviction and judgment of sentence.
We disagree.
When examining a challenge to the sufficiency of evidence, our standard
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of review is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether 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
[trier] 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. Jackson, 215 A.3d 972, 980 (Pa.Super. 2019) (quoting
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011)).
The Crimes Code defines the offense of robbery 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
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intentionally puts him in fear of immediate
serious bodily injury[.]
18 Pa.C.S.A. § 3701(a)(1)(ii).
A conviction under Section 3701(a)(1)(ii) is contingent upon the type of
bodily harm threatened. Commonwealth v. Ross, 570 A.2d 86, 87
(Pa.Super. 1990), appeal denied, 527 Pa. 644, 593 A.2d 417 (1990). The
Commonwealth produces evidence sufficient to sustain the conviction if the
evidence shows aggressive actions by the defendant that threatened the
victim’s safety. Commonwealth v. Scott, 369 A.2d 809, 813 (Pa.Super.
1976). For purposes of Section 3701(a)(1)(ii), the proper focus is on the
nature of the threat posed by an assailant and whether he reasonably placed
a victim in fear of immediate serious bodily injury. Ross, supra. See also
Commonwealth v. Taylor, 831 A.2d 661, 664 (Pa.Super. 2003) (holding
Commonwealth provided sufficient evidence to convict appellant under
Section 3701(a)(1)(ii), where appellant put hard object to store clerk’s side,
and victim testified that she was scared appellant would kill her);
Commonwealth v. Hurd, 407 A.2d 418, 419-21 (Pa.Super. 1979) (holding
Commonwealth presented sufficient evidence to convict appellant under
Section 3701(a)(1)(ii), where appellant threatened store clerk with something
in his pocket that he intended for her to believe was gun).
Further, brandishing or pointing a gun at a victim is not a prerequisite
for establishing guilt under Section 3701(a)(1)(ii). Commonwealth v. Ouch,
199 A.3d 918, 924 (Pa.Super. 2018). See also Commonwealth v. Bragg,
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133 A.3d 328, 332 (Pa.Super. 2016) (holding sufficient evidence supported
defendant’s robbery conviction under Section 3701(a)(1)(ii), where defendant
entered bank, disguised himself, and said to teller, “What are you looking at?”;
rejecting defendant’s argument that he could not be guilty of first-degree
robbery because he did not brandish weapon or make specific verbal threat).
Instantly, Appellant appeared behind Victim, “stuck something” in
Victim’s back, and ordered Victim not to move or he would be shot. (See N.T.
Trial, 10/9/19, at 27-28). Appellant’s conduct scared Victim, and prompted
Victim to give Appellant forty dollars. (Id. at 30). When Appellant told Victim
that was not enough money, Appellant instructed Victim to retrieve more
money from a nearby ATM. (Id. at 30-32). Appellant threatened to kill Victim
if he failed to comply in any manner. (Id. at 32).
Although Victim sustained no physical injuries, the circumstances under
which he was accosted were sufficient to permit an inference that Appellant
intended by his conduct to put Victim in fear of imminent serious bodily injury.
See Ross, supra. The fact that no witness saw Appellant possess a firearm,
or that the police did not recover one from Appellant, is not dispositive. See
Ouch, supra; Bragg, supra. Rather, Appellant demonstrated aggressive
actions that threatened Victim’s safety. See Scott, supra. Thus, the
evidence was sufficient to sustain Appellant’s conviction. See Jackson,
supra; 18 Pa.C.S.A. § 3701(a)(1)(ii).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/2021
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