J-S34012-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RANDY JOSEPH PFAB
Appellant No. 1290 WDA 2013
Appeal from the Judgment of Sentence July 9, 2013
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000757-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 21, 2014
Randy Joseph Pfab appeals from the judgment of sentence imposed
July 9, 2013, in the Clearfield County Court of Common Pleas. The trial
court imposed an aggregate sentence of 12 months, less one day to two
years, less one day of imprisonment, and a consecutive three years’
probation, following Pfab’s jury conviction of robbery of a motor vehicle,
unauthorized use of a motor vehicle, simple assault (two counts) and DUI.1
On appeal, he challenges both the sufficiency and weight of the evidence
supporting his convictions, as well as the trial court’s refusal to provide the
jury with a “defense of property” instruction. For the reasons that follow, we
affirm.
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1
18 Pa.C.S. §§ 3702(a), 3928(a), and 2701(a), and 75 Pa.C.S. §
3802(a)(1).
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The facts underlying Pfab’s arrest and conviction are aptly summarized
in the trial court’s opinion as follows:
On September 9, 2012, Katy Bailley and Stephani
Quairiere were working at the Treasure Lake Ski Lodge, a bar
and restaurant, located in Treasure Lake, Sandy Township,
Pennsylvania. At the conclusion of their shift, at approximately
2:00 a.m., they were asked by the bar’s owner/manager to take
[Pfab] to [his] guest residence, as it appeared that [Pfab] was
intoxicated and bleeding. [Pfab] told Bailley and Quairiere that
he had been involved in an altercation in the bar’s parking lot
and had been injured. Before that evening the two had never
met [Pfab]. Bailley and Quairiere complied with the owner’s
request to transport [Pfab] home.
The two put [Pfab] into Quairiere’s blue Jeep Liberty and
began to drive to [Pfab’s] guest residence, which is located in
the same general area as the bar. There was nothing proffered
at trial to contest the fact that Quairiere was the owner of the
vehicle. While the three were driving to [Pfab’s] residence,
[Pfab] began to act in an odd manner. However, [Pfab’s]
peculiar actions soon turned violent. [Pfab], while sitting in the
back seat of the automobile, began to punch Quairiere in the
back of the head and grab her. [Pfab] testified that he believed
that Quairiere and Bailley were stealing his automobile. In the
midst of the vicious blows, Quairiere managed to stop her
vehicle and Bailley pulled her from the driver’s seat in order for
her to exit the car from the passenger’s side. [Pfab] continued
to wallop Quairiere as she was attempting to exit the
automobile.
When Bailley and Quairiere exited the Jeep, [Pfab] jumped
into the driver’s seat and attempted to start the car. With the
keys still in the ignition, Quairiere tried to get the keys from
[Pfab]. Quairiere was successful in doing so, even in [] light of
the fact that [Pfab] continued to punch her. Bailley also tried to
attain her cell phone from the car to call for aid. When Bailley
did this, she too was punched in the face and head. Once
Quairiere apprehended her keys, she began to run. [Pfab]
chased her in an effort to recover the keys. [Pfab] tackled
Quairiere and started hitting her in the back of the head. [Pfab]
kept attacking Quairiere until she relinquished the keys. With
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keys in hand, [Pfab] ran to the vehicle and drove away from the
area, leaving Bailley and Quairiere on the roadside.
Bailley called 911 for emergency assistance. A responding
officer arrived at the scene and began to transport the victims to
a nearby E.M.S. However, while in route the officer received an
alert that a blue Jeep Liberty, matching the description of
Quairiere’s car, was in the area of the incident. Bailley and
Quairiere traveled with the officer to identify the vehicle. At that
point, they observed the Jeep and the officer drove behind the
vehicle and flashed his signals, in an attempt to halt [Pfab].
[Pfab] subsequently stopped the Jeep and the officers on the
scene placed him under arrest.
After [Pfab] was apprehended, Bailley and Quairiere were
taken to the hospital for treatment of their ailments that resulted
from [Pfab’s] conduct. … [Pfab] was also transported to the
hospital for a blood alcohol test, because it was believed by the
arresting officer that alcohol was involved in the incident. While
at the hospital the officer, as part of investigating [Pfab] for
Driving Under the Influence, read [Pfab] a form explaining the
implied consent law. [Pfab] was read his chemical test
warnings, which he refused to sign. The test was then marked
as a refusal by the arresting officer.
Trial Court Opinion, 12/11/2013, at 1-3.
As noted above, Pfab was subsequently charged with robbery of motor
vehicle, unauthorized use of a vehicle, simple assault (two counts), and
DUI.2 On April 11, 2013, a jury found him guilty of all charges. Pfab was
sentenced, on July 9, 2013, to a term of 12 months less one day to two
years less one day of imprisonment, followed by three years’ probation for
the charge of robbery of a motor vehicle. The trial court imposed concurrent
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2
He was also charged with two counts of harassment, for which the trial
court returned no verdict. See 18 Pa.C.S. § 2709(a)(1).
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terms of 30 days to one year for one count of simple assault and 72 hours to
six months for DUI.3 This timely appeal followed.4
In his first issue, Pfab challenges the sufficiency of the evidence
supporting his conviction of robbery of a motor vehicle. Specifically, he
argues that the conviction “must be vacated” because he mistakenly
believed the vehicle in question was his own. Pfab’s Brief at 15.
A person is guilty of robbery of a motor vehicle “if he steals or takes a
motor vehicle from another person in the presence of that person or any
other person in lawful possession of the motor vehicle.” 18 Pa.C.S. §
3702(a). This Court has held that because the crime is included in the
section of the Crimes Code pertaining to robbery, the Commonwealth must
also prove that the taking of the vehicle was “accomplished by the use of
force, intimidation or the inducement of fear in the victim.” Commonwealth
v. George, 705 A.2d 916, 919-920 (Pa. Super. 1998), appeal denied, 725
A.2d 1218 (Pa. 1998).
Here, the facts clearly established that Pfab forcibly stole Quairiere’s
vehicle from her, by punching her in the face and head and wrestling the
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3
The sentences for the remaining count of simple assault and unauthorized
use of a vehicle merged with the sentence for robbery of a motor vehicle.
See N.T., 7/9/2013, at 17-18.
4
On August 8, 2013, the trial court ordered Pfab to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Pfab
complied with the court’s directive and filed a concise statement on August
28, 2013.
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keys from her. However, Pfab argues that he mistakenly believed the
vehicle was his own, and that Quairiere and Bailley were attempting to steal
the vehicle from him.5
“It is well established that a bona fide, reasonable mistake of fact may,
under certain circumstances, negate the element of criminal intent.”
Commonwealth v. Namack, 663 A.2d 191, 194 (Pa. Super. 1995), citing
18 Pa.C.S. § 304. However, it is also well-settled that voluntary intoxication
is not a defense to a criminal charge, and evidence of a defendant’s
voluntary intoxication may not be introduced to negate the element of
intent. 18 Pa.C.S. § 308. See Commonwealth v. Ellis, 581 A.2d 595,
604-605 (Pa. Super. 1990) (“Clearly, voluntary intoxication is statutorily
precluded as a defense to robbery.”), aff'd, 626 A.2d 1137 (Pa. 1993).
Here, Pfab admitted that he had been drinking all day with friends, and
that he was “drunk” while at the restaurant. N.T., 4/11/2013, 218, 229-
230. Therefore, there was sufficient evidence for the jury to conclude that
Pfab’s “mistake” as to the ownership of the Jeep was not reasonable, but
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5
We note that Pfab failed to cite any statutory or case law with respect to
his defense of “mistake of fact.” On this basis, we could conclude that the
issue is waived. See Commonwealth v. Chine, 40 A.3d 1239, 1244 (Pa.
Super. 2012) (holding challenge to jury instruction waived when defendant
“cited no legal authorities nor developed any meaningful analysis”), appeal
denied, 63 A.3d 773 (Pa. 2013)
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rather, a result of his voluntary intoxication.6 Accordingly, no relief is
warranted on this claim.
Next, Pfab challenges the weight of the evidence supporting his
convictions. He argues, once again, that “his conviction for robbery of a
motor vehicle [was] built upon his undeniable mistake of fact that the car
was not his[.]” Pfab’s Brief at 15.
It is axiomatic that:
[A] weight of the evidence claim must be preserved either in a
post-sentence motion, by a written motion before sentencing, or
orally prior to sentencing. Failure to properly preserve the claim
will result in waiver, even if the trial court addresses the issue in
its opinion.
Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal
denied, 69 A.3d 601 (Pa. 2013) (citations omitted). See Pa.R.Crim.P. 607.
Here, Pfab neglected to file post-sentence motions. Nor did he raise a
challenge to the weight of the evidence either prior to or during the
sentencing hearing. See generally N.T., 7/9/2013. Therefore, regardless
of the fact that the trial court addressed the weight claim in its opinion, this
issue is waived for our review. See Commonwealth v. Thompson, 93
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6
Moreover, the testimony established that the vehicle Pfab believed was
being stolen was his brother’s Dodge Dakota truck, which he had driven to a
friend’s house earlier that day. N.T., 4/11/2013, p. 226. Pfab admitted that
the truck had only two doors and two seats in the front, while Quairiere’s
Jeep had four doors, and four seats. Id. at 227. Indeed, Pfab was sitting in
the back seat of the Jeep. Id. Therefore, there was ample evidence for the
jury to conclude that Pfab’s mistake was not reasonable.
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A.3d 478, 490-491 (Pa. Super. 2014) (explaining that a trial court is
divested of jurisidiction when appeal is filed; therefore, court “could not
grant nor deny the claim at the time it was first raised by Appellant in his
concise statement.”).
In his last issue, Pfab contends the trial court erred in failing to provide
the jury with a charge regarding the justifiable use of force to defend one’s
property. See 18 Pa.C.S. § 507.7 He argues “[t]he testimony throughout
the trial was consistent in that [Pfab] believed that the vehicle he was taking
was his own[,]” and “[t]he jury could have made a decision that the force
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7
The statute provides, in relevant part:
(a) Use of force justifiable for protection of property.--The use of
force upon or toward the person of another is justifiable when
the actor believes that such force is immediately necessary:
(2) … to retake tangible movable property, if:
(i) the actor believes that he or the person by
whose authority he acts … was unlawfully
dispossessed of such land or movable property
and is entitled to possession; and
(ii) (A) the force is used immediately or on fresh
pursuit after such dispossession; or
(B) the actor believes that the person against
whom he uses force has no claim of right to the
possession of the property ….
18 Pa.C.S. § 507.
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used in taking the vehicle was justified” so as to negate the charge of simple
assault. Pfab’s Brief at 20.
We find this issue, too, is wavied for our review. First, Pfab framed
this claim in his concise statement as follows: “The Court erred in not
properly charging the jury.” Concise Statement of Matters Complained of on
Appeal, 8/28/2013, at ¶ 4. As stated, the claim was too vague to allow the
trial court to identify the specific error raised on appeal. This Court has
explained:
An appellant’s concise statement must properly specify the error
to be addressed on appeal. Commonwealth v. Dowling, 778
A.2d 683 (Pa.Super.2001). In other words, the Rule 1925(b)
statement must be “specific enough for the trial court to identify
and address the issue [an appellant] wishe[s] to raise on
appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2
(Pa.Super.2006), appeal denied, 591 Pa. 712, 919 A.2d 956
(2007). “[A] [c]oncise [s]tatement which is too vague to allow
the court to identify the issues raised on appeal is the functional
equivalent of no [c]oncise [s]tatement at all.” Id. The court's
review and legal analysis can be fatally impaired when the court
has to guess at the issues raised. Id. Thus, if a concise
statement is too vague, the court may find waiver. Id.
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011), appeal
denied, 32 A.3d 1275 (Pa. 2011).
Indeed, in its opinion, the trial court noted that “[w]ithout any specific
error eluded to by [Pfab] the [c]ourt has examined the trial transcript in its
entirety and can find no inaccuracies.” Trial Court Opinion, 12/11/2013, at
10. Accordingly, we find that the issue, as framed by Pfab in his concise
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statement, was too vague to alert the trial court to the specific error Pfab
intended to challenge on appeal.8
Second, even if we were to conclude the issue was not waived for
vagueness, we would find that Pfab failed to preserve his challenge at trial.
At the close of Pfab’s defense, the prosecutor asked the trial court to clarify
its points for charge. N.T., 4/11/2013, at 238. The court indicated that it
intended to instruct the jury on “mistake of fact” and “voluntary
intoxication,” but that it would “reference the mistake of fact to the robbery
of a motor vehicle and the unauthorized use.” Id. Pfab’s defense counsel
replied, “That’s fine, that’s fine.” Id. Thereafter, the following exchange
took place:
THE COURT: I don’t think it’s applicable – it’s certainly not
applicable to the DUI, and I do not believe it was applicable to
either count of simple assault.
[DEFENSE COUNSEL:] Well, it might be with the simple assault,
because if you think about it, if he thinks that they are actually
stealing his car and taking him away in it, if that had been true,
him assaulting them would be – you have a defense-of-property
defense itself. You’d at least have defense of property, someone
taking his car.
I’m not really arguing that point to you. I’m mostly
concerned –
THE COURT: I’ve been sitting up here thinking about it, to
be honest; and I think the better way to go is to not give it in
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8
We note that although, on September 3, 2013, the trial court granted
Pfab’s request to file a supplemental concise statement pending his receipt
of the trial transcripts, no supplemental statement was ever filed.
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that regard, because if I’m going to give that, then what do I
have to do…
[DEFENSE COUNSEL:] My bigger concern is the robbery charge.
Id. at 238-239.
In order to preserve a challenge to a particular jury instruction, a
defendant must make “[a] specific and timely objection” at trial.
Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010). Trial
counsel’s half-hearted explanation of why a defense of property charge
might be applicable does not equate to a specific request that the court
provide such a charge, or an objection when the court refused to give the
charge. Accordingly, for all the foregoing reasons, Pfab’s challenge to the
jury instructions is waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2014
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