J-S18014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GABRIEL ALFONZA CARSON-RIVERA,
Appellant No. 971 MDA 2015
Appeal from the Judgment of Sentence January 9, 2013
In the Court of Common Pleas of Franklin County
Criminal Division at No(s):
CP-28-CR-0002084-2011
CP-28-CR-0002087-2011
BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 01, 2016
Gabriel Alfonza Carson-Rivera appeals nunc pro tunc from the
judgment of sentence of an aggregate term of ten to twenty years
imprisonment that was imposed after a jury convicted him at two related
criminal action numbers of two counts of conspiracy to commit robbery, and
one count each of robbery (serious bodily injury), attempted robbery, and
conspiracy to commit theft. We reject Appellant’s challenge to the
sufficiency of the evidence supporting his convictions, but remand for
resentencing.
Appellant was charged at two separate criminal action numbers in
connection with the October 30, 2011 robbery of the Super 8 Motel in
*
Retired Senior Judge assigned to the Superior Court.
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Chambersburg, Pennsylvania, and the October 31, 2011 attempted robbery
of the Kenmar Motel in Newburg, Pennsylvania. During the jury trial, the
Commonwealth presented several witnesses that described the two criminal
episodes, the vehicle used in the crimes, and Appellant’s and his co-
conspirator’s statements following their apprehension. As pertinent to the
claims asserted herein, the witnesses testified as follows.
Ankit Patel stated that he was working at the front desk of the Super 8
Motel in Chambersburg at approximately 7:00 p.m. on October 30, 2011.
An assailant, Appellant’s co-conspirator Colin Rea,1 ran into the motel lobby,
approached the desk, brandished a small firearm, tossed a plastic shopping
bag at Mr. Patel, and demanded, “give me the money.” N.T., 11/19/12, at
24-25. Rea, a white male who is approximately six feet tall, wore a
Halloween mask over his face. Id. at 24-25. With the handgun leveled at
his chest, Mr. Patel handed Rea approximately $280. Id at 26. Rea took the
money, and as he turned to leave the motel he revealed the firearm to be
fake. Id. The witness explained, that before Rea left, “he shot the gun and
at that time I feel it’s . . . [a] toy gun.” Id. After the robbery, Mr. Patel
locked the doors to the motel lobby and called the police. Id. at 27. He did
not see the direction of Rea’s flight. Id. at 28.
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1
The notes of testimony identify the co-conspirator as Colin Ray; however,
on April 24, 2013, the trial court entered an order confirming that the
correct spelling of the co-conspirator’s surname is Rea.
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Peggy Crouse, the victim in the attempted robbery of the Kenmar
Motel, presented the following testimony. On October 31, 2011, she was
working alone at the fifteen-room-motel, which she owns with her husband,
Roy. The motel’s office is connected to the Crouse’s residence. The office is
separated from the couple’s kitchen by a Dutch door, i.e., a door divided
horizontally so that the bottom half may remain shut while the top half
opens. An alarm system emits an audible tone in the home to alert her
when the front door to the motel office is opened.
At approximately 4:30 p.m., an individual, whom she identified at trial
as Appellant, entered the motel office, inquired about room rates, and then
left. During that exchange, Roy arrived home from work and walked passed
Appellant to enter the residence. Roy recognized Appellant as a former
athlete at Chambersburg High School. Since the motel’s room rates are
dependent upon the number of occupants, Roy informed his wife that there
was another male sitting in the car outside.
Approximately thirty to forty-five minutes later, Appellant returned and
inquired about the estimated cost for him and his girlfriend to stay at the
motel for one week. After getting that information, Appellant left and
indicated that he would return. Roughly ten minutes later, while Ms. Crouse
was in the residence, the alarm signaled that someone had opened the front
door. When Ms. Crouse entered the office, she was accosted by Rea who
was brandishing a gun. Although the assailant wore a ski mask, she could
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discern that he was white. Initially, Ms. Crouse assumed that the interaction
was a Halloween prank; however, when he demanded, “[G]ive me your
f**king money,” she began to fear for her safety. N.T., 11/19/12, at 57.
Alerted by the assailant’s menacing command, Roy appeared at the Dutch
door and scared the attacker away by making a shooting gesture and
shouting “get out of here.” Id.
Roy Crouse’s testimony was consistent with his wife’s. He added that,
when he arrived from work, he observed a dark green car near the road at
the end of the motel parking lot farthest away from the office. The vehicle,
which Mr. Crouse identified at trial in a photographic exhibit, was positioned
perpendicular to the designated parking spaces. It had substantial damage
to the rear and a trunk that would not close. He noted that a white male
was crouched in the front passenger seat. Simultaneous to these
observations, Mr. Crouse watched an individual, whom he subsequently
identified as Appellant, enter the motel office. Mr. Crouse also recounted his
brief interaction with Appellant in the motel office. He stated that he
immediately recognized Appellant “as someone [he] should know” but did
not place him as an area athlete until after Appellant left the office with the
information that he had requested. Id. at 68.
In relation to Rea’s subsequent robbery attempt, Mr. Crouse explained
that when he heard Rea angrily demand, “give me your f**cking money,
now,” he peered around the Dutch door to see Rea leveling his weapon at
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Ms. Crouse. Id. at 70, 71-72. A sportsman, Mr. Crouse realized that Mr.
Rea’s firearm was most likely a BB gun. Hence, he elected to forego his own
loaded shotgun that was sitting nearby and simply reached across the
threshold of the Dutch door, made a pointing motion with his hands, and
shouted, “You!” Id. at 71-72. Rea fled. Mr. Crouse grabbed the loaded
shotgun and initiated pursuit; however, he terminated the chase because his
neighbor’s children were playing nearby. Mr. Crouse did not observe the
direction of Rea’s flight, but he discerned that the dark vehicle that he had
noticed earlier was no longer parked outside the motel.
Chambersburg Borough Police Officer Matthew Lynch testified that,
while on patrol on October 31, 2011, he received a police flash alerting him
to “be on the lookout” for Colin Rea, described as a white male with blue
hair. Rea along with another man, who was later determined to be
Appellant, were suspected of robbing the Kenmar Motel and fleeing in a dark
green car with a heavily damaged rear end. Id. at 84-85. Following the
report, Officer Lynch observed the suspected vehicle traveling on Cedar
Street in Chambersburg.
Officer Lynch was familiar with Rea because he had stopped Rea in the
damaged vehicle on a prior occasion. Hence, he expected to see Rea
operating the vehicle on that date. However, when he initiated the traffic
stop, Appellant, whom he also recognized, was driving the car. Rea was
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apprehended at a nearby hotel, and State Police took the pair to the State
Police Barracks in Chambersburg and impounded Rea’s automobile.
State Police Troopers Franklin M. Hershey, Jr. and Jason Cachara
testified about the recorded post-Miranda2 statements Appellant and Rea
provided to them during the subsequent investigation. In relation to the
October 30, 2011 robbery of the Super 8 Hotel, the audio recordings, which
were admitted during trial, indicated that Appellant operated the getaway
vehicle while Rea committed the robbery.
Colin Rea’s recorded statement detailed Appellant’s participation in the
robbery of the Super 8 Motel. Rea indicated that the purpose of both
robberies was to obtain money for Appellant’s homeless girlfriend and
daughter. In contrast to Appellant, who indicated that he did not know of
Rea’s intent to rob the Super 8 Motel, Rea stated that Appellant knew that
the robbery would occur and understood his role as the getaway driver. Rea
further clarified that Appellant drove to the designated meeting area, waited
for Rea to return to the car following the robbery, and drove away.
As noted, supra, the jury convicted Appellant at the two related
criminal action numbers of two counts of conspiracy to commit robbery, and
one count each of robbery, attempted robbery, and conspiracy to commit
theft. At criminal action number 2084-2011 the trial court sentenced
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2
Miranda v. Arizona, 384 U.S. 436 (1966).
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Appellant to six to twelve years imprisonment.3 At criminal action number
2087-2011, the trial court imposed separate terms of two to four years
imprisonment on both attempted robbery and conspiracy to commit robbery.
Those sentences were imposed consecutive with each other and consecutive
to the sentences imposed at criminal action number 2084-2011, for a total
of ten to twenty years
Appellant failed to file a direct appeal; however, he filed a timely PCRA
petition and the trial court granted him leave to file a direct appeal nunc pro
tunc. This appeal followed. His timely Rule 1925(b) statement leveled three
issues, two of which he asserts on appeal as follows:
1. Did the trial court’s consecutive sentences at [criminal
action number] 2087-2011 on Count 1 (attempted robbery) and
Count 2 (conspiracy robbery) constitute an imposition of a
sentence greater than the lawful maximum in that “[a] person
may not be convicted of more than one inchoate crimes of
criminal attempt, criminal solicitation or criminal conspiracy for
conduct designed to commit or to culminate in the commission
of the same crime” pursuant to 18 Pa.C.S. [§] 906?
2. Was the evidence produced at trial sufficient to support the
guilty verdicts?
Appellant’s brief at 7.
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3
Concurrent sentences were fashioned as follows: (1) five to ten years
imprisonment for conspiracy to commit robbery; (2) six to twelve years
imprisonment for robbery; and (3) conspiracy to commit theft merged for
the purpose of sentencing.
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As Appellant’s second issue, concerning the sufficiency of the
evidence, would entitle him to discharge if it were established, we address
that argument at the outset. In conducting a sufficiency of the evidence
review, we examine all of the evidence admitted, even improperly admitted
evidence. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013)
(en banc). We consider the evidence in the light most favorable to the
verdict winner, herein the Commonwealth, drawing all possible inferences
from the evidence in favor of the Commonwealth. Id. When evidence
exists to allow the fact-finder to determine beyond a reasonable doubt each
element of the crimes charged, the sufficiency claim will fail. Id.
The evidence need not preclude the possibility of innocence entirely.
The fact finder is free to believe, in whole or in part, whatever evidence it
chooses. Id. Additionally, the Commonwealth may prove its case by
circumstantial evidence alone. It is only when “the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact can be drawn
from the combined circumstances,” that the defendant is entitled to relief.
Id. This Court is not permitted “to re-weigh the evidence and substitute our
judgment for that of the fact finder.” Id.
Appellant argues that the Commonwealth failed to adduce sufficient
evidence to support the convictions for robbery (serious bodily injury) and
conspiracy to commit robbery at criminal action number 2084-2011 in
relation to the events that occurred on October 30, 2011, at the Super 8
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Motel. The Crimes Code defines robbery, in pertinent, part as follows: “A
person is guilty of robbery if, in the course of committing a theft, he . . .
threatens another with or intentionally puts him in fear of immediate serious
bodily injury[.]” 18 Pa.C.S. § 3701(a)(1)(ii).
Stated plainly, Appellant contends that the Commonwealth failed to
establish beyond a reasonable doubt that the victim, Mr. Patel, was in fear of
immediate serious bodily injury, an element of § 3701(a)(1)(ii) and the
concomitant offense of conspiracy to commit robbery. He relies upon Mr.
Patel’s testimony that, when Rea fired the weapon immediately prior to
fleeing with the money, the noise it emitted sounded like a toy gun. From
this statement, Appellant extrapolates the conclusion that the
Commonwealth failed to establish beyond a reasonable doubt that Rea’s
actions placed Mr. Patel in fear of immediate serious bodily injury. While
Appellant does not expressly invoke this argument to challenge the
sufficiency of the evidence in relation to the attempted robbery of the
Kenmar Motel on the following evening, he refers to the facts of that case,
ostensibly to support his position that his brandishing of an identical replica
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during that ordeal did not place those victims in immediate fear of serious
bodily injury either. No relief is due.4
The evidence adduced during the trial sustains the jury verdict. First,
it is beyond peradventure that the Commonwealth was not required to
demonstrate that Mr. Patel was actually fearful of his life. See
Commonwealth v. Nelson, 582 A.2d 1115, (Pa.Super. 1990) (even where
threats did not produce intended fear, robbery conviction was supported by
evidence that defendant announced robbery and brandished weapon in order
to achieve goal). In fact, as we explained in Commonwealth v. Hopkins,
747 A.2d 910 914 (Pa.Super 2000), “For the purposes of subsection
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.’” We concluded, “The threat posed by the appearance
of a firearm is calculated to inflict fear of deadly injury, not merely fear of
‘serious bodily injury.’” Id. Indeed, as the ultimate arbiter of fact, it was up
to the jury to determine whether “[the] victim was in mortal fear when a[n]
[assailant] visibly brandished a firearm.” Id. at 915-915. Thus, the victims’
actual fear is not dispositive.
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4
As Appellant challenges only whether Rea placed the respective victims in
immediate fear of serious bodily injury, that is the only element of the
offenses that we address.
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As noted supra, Mr. Patel testified that, when Rea stormed into the
motel lobby, pointed what appeared to be a handgun at his chest, and
demanded money, he was “really scared.” N.T., 11/19/12, at 25-26. Mr.
Patel had never been robbed before and was not at all familiar with guns.
Id. at 25. In fact, notwithstanding Appellant’s intimation that Mr. Patel was
not affected by what he later discovered was a “toy gun,” the certified record
reveals that Mr. Patel was not aware that the apparent handgun that Rea
had leveled at his chest during the ordeal was anything less than authentic.
He only learned that the weapon was a “toy” after the robbery had been
completed. The fact that the handgun purportedly could not actually inflict
serious bodily injury is therefore irrelevant.
Furthermore, mindful that Appellant was charged with attempted
robbery for his role in the offenses committed at the Kenmar Motel,
Appellant’s assertion that the evidence was insufficient because Mr. and Mrs.
Crouse never feared immediate bodily injury is erroneous in fact and law.
First, it is obvious that by brandishing an apparent firearm at Ms. Crouse and
commanding, “give me your f**king money,” Rea attempted to place the
woman in fear of immediate serious bodily injury if she did not comply with
his demands. The fact that Rea’s attempt to scare Ms. Crouse into
compliance might have been ineffectual does not negate the fact that his
actions constituted a substantial step towards executing the robbery.
Hence, assuming, arguendo, that Ms. Crouse never actually feared
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immediate serious bodily injury, evidence of Rea’s menacing conduct was
sufficient to sustain the conviction for criminal attempt. Moreover, as noted
supra, the facts of this case established that Ms. Crouse’s belief that Rea
was participating in a Halloween hoax, ceased when he started uttering
obscenities. She explained, “I did start getting a little afraid when he
demanded money.” N.T., 11/19/12, at 58. Thus, both aspects of
Appellant’s claim fails.
Having found that the certified record supports the trial court’s
conclusion that the evidence adduced during the jury trial was sufficient to
sustain the guilty verdicts for: (1) robbery graded as a first-degree felony
and (2) criminal conspiracy to commit robbery at criminal action number
2084-2011; and (3) attempted robbery at 2087-2011, we next address
Appellant’s assertion that the consecutive sentences imposed at criminal
action number 2087-2011 for the inchoate crimes of criminal conspiracy and
attempted robbery were illegal.
The determination as to whether the trial court imposed an illegal
sentence is a question of law. Our standard of review in cases dealing with
questions of law is de novo, and our scope of review is plenary. See
Commonwelath v. Kimmel, 125 A.3d 1272, 1275 (Pa.Super 2015) (en
banc) (“A claim that convictions merge for sentencing is a question of law;
therefore, our standard of review is de novo and our scope of review is
plenary”).
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Pursuant to 18 Pa.C.S. § 906, regarding multiple convictions of
inchoate crimes, “A person may not be convicted of more than one of the
inchoate crimes of criminal attempt, criminal solicitation or criminal
conspiracy for conduct designed to commit or to culminate in the
commission of the same crime.” Herein, the trial court sentenced Appellant
at 2087-2011 to consecutive sentences for attempted robbery and criminal
conspiracy (robbery) for the crimes committed at the Kenmar Hotel on
October 31, 2011. As the facts supporting both offenses stem from identical
criminal acts, the offense merged for the purpose of sentencing.5
Commonwealth v. Cooke, 492 A.2d 63 (Pa.Super. 1985) (sentence
imposed on criminal conspiracy vacated under § 906 because conviction and
sentence for inchoate crimes of criminal attempt and criminal conspiracy
based on same action violated statute).
Judgment of sentence affirmed, in part, vacated, in part, and
remanded for resentencing consistent with this memorandum. Record
remanded. Jurisdiction relinquished.
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5
The trial court and Commonwealth concede that the convictions and
sentences on the two inchoate offenses violated 18 Pa.C.S. § 906, and both
agree that a remand is necessary.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2016
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