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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA WILLIAMS
Appellant No. 530 MDA 2015
Appeal from the Judgment of Sentence January 14, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002720-2012
BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 06, 2016
In this direct appeal, Joshua Williams challenges the sufficiency of the
evidence underlying his conviction for robbery1. For the reasons that follow,
we affirm Williams’ conviction, but we vacate the judgment of sentence and
remand for resentencing.
A jury found Williams guilty of robbing Michael Barna on the evening of
March 3, 2012. On January 14, 2015, the trial court sentenced Williams to
7-14 years’ imprisonment. Williams filed timely post-sentence motions to
modify his sentence on the ground that the court used the wrong sentencing
guideline in its sentencing calculations2. In an order docketed on February
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1
18 Pa.C.S. § 3701(a)(1)(i).
2
Williams asserted: “The guideline form the Commonwealth submitted for
the charge of robbery included a deadly weapon enhancement, which
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23, 2015, the court granted Williams’ motion. The order stated: “This Court
never made a determination as to whether the offender possessed a deadly
weapon[,] therefore we cannot apply the Deadly Weapon Enhancement …
The sentence is modified as follow[s]: 54-72 months’ imprisonment.” The
order did not specify whether Williams’ minimum term of imprisonment was
54 months, 72 months, or somewhere in between. Nor did the order specify
Williams’ maximum term of imprisonment.
Williams filed a timely notice of appeal. The sole issue raised in
Williams’ Pa.R.A.P. 1925(b) statement and appellate brief is: “Whether the
evidence presented at trial was insufficient to convict [Williams] of the crime
of robbery?”
The trial court’s Pa.R.A.P. 1925(a) opinion accurately summarized the
relevant evidence as follows:
The victim, Michael Barna, testified at trial. In March 2012, he
was living at Riverfront Apartments and had been there for
about three weeks. [Barna] and a friend who lived nearby made
plans for March 3, 2012, to have a drink at the friend's house
and then go to a couple of bars downtown. [Barna], his friend
and another man had some drinks and then went downtown [in
his friend’s car] to the bars. [Barna] recalls drinking two glasses
of wine, a larger mixed drink and maybe something else while at
his friend's house. He was intoxicated at this point, but not
incapacitated. One of the friends drove to the bars downtown.
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(Footnote Continued)
resulted in the guideline form reflecting the standard range of 72-90
months. Because [] Williams was never found guilty of using or even
possessing a deadly weapon, this enhancement does not apply to the
calculation of his guidelines.” Williams’ Post-Sentence Motion To Modify
Sentence, at 2.
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While at the bar, [Barna] consumed another three beers and
then, following a slight argument with his friend, he left the bar.
He went to another bar, had another drink and then left that bar.
At that point, [Barna] decided he needed to go home[,] so he
began walking up Second Street and looking for a cab. He had
walked some distance when he stopped at a gas station to
purchase cigarettes. He may have noticed [Williams] in the
store, but he definitely recalls seeing him outside the store while
he was smoking. [When Williams] asked for a cigarette, [Barna]
gave him one, and they began to chat. After discussing where
they were going, and discovering that [Williams] lived near
[Barna], they began to walk together towards their apartments.
As they neared [Barna]'s home, [Williams] asked if [Barna]
could give him a ride to a birthday party. Recognizing that he
was too drunk to drive, [Barna] said no but ultimately allowed
[Williams] to drive his car. [Barna] was ‘kinda going with the
flow at the moment’ and had no real plans other than hanging
out at the birthday party. The two of them talked about some
people they knew in common from Steelton while they drove and
[Barna] even put [Williams'] number into his phone because
they planned to play basketball at some point.
[Williams] stopped not far from the apartment and spoke to a
man on the street who then asked for a ride to the gas station.
They gave him a ride[.] [H]e ran in and made a purchase, and
then they drove him back to the street where they had picked
him up. Then they started heading towards Steelton, eventually
crossing from Front Street to Cameron Street and up an alley,
[where Williams] got out [of the car] and made a phone call.
When he got back into the car, they headed north on Cameron,
the opposite direction of Steelton.
As they drove through the city, [Barna] [began] to wonder
where they were going[.] [W]hen they approached [Maclay], he
told [Williams] to turn on to [Maclay]. [Barna] thought that
[route] would be the quickest way back home. [Williams] did
not do as [Barna] suggested, though [Barna] admits that
[because] there was music on, he [was] not sure [whether
Williams] heard him. [Williams] then turned right onto Elmerton
… After [Williams] made a right onto a dead end, [Barna] began
to ask him where they were going. [Williams] got out of the car
again and made another call.
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At this point, [Barna] began to worry so he got out of the car
[and] got water out of his trunk. [Williams] told him he had
dropped his keys. [Barna] had a flashlight[,] so he got the
[flash]light and started looking for the keys under the car. He
could not find them[,] so he handed the flashlight to [Williams]
and got back into the car. [Williams] got in shortly after with a
white cloth on his lap. [Barna] saw a gun and clip underneath
the cloth. He questioned [Williams] about it at which point
[Williams] pulled out of the dead end turning left onto Elmerton
towards Cameron. As they drove down the street, the trunk flew
open. [Williams] stopped the car, [and] [Barna] got out to close
the trunk. [As] soon as [[Barna] shut the trunk, Williams] sped
off in the car. [As Barna] saw [Williams] turn right onto
Cameron Street, [he] realized [that] his phone was in the car
and decided he was going to have to find someone to tell them
that his car had been stolen and have them call the police. As
he [was] making this decision, [Williams] made a U -turn on
Cameron and [drove] back up Elmerton with the window down
and the gun sticking out of the window. [Williams] shot at
[Barna] at least three times. He then pulled over, got out and
ran towards [Barna], and shot at him several more times[,]
hitting [Barna] in the arm and leg and causing him to fall down.
He stood over [Barna] with the gun and said ‘give me your
fuckin' wallet or I'm gonna shoot you.’ [Barna] pled with him
while [Williams] kept demanding the wallet[,] at which point
[Barna] reached into his pocket[,] took out the wallet and threw
it behind [Williams]. [Williams] picked up the wallet, shot about
three more times at [Barna], hitting him in the back, and then
ran back to the car, got into it and drove off. [Barna] eventually
got up, and managed to get a cab to take him to the Harrisburg
Hospital Emergency Room where he received treatment for his
gunshot wounds.
Pa.R.A.P. 1925(a) Opinion, at 2-5 (citations omitted).
The Commonwealth contends that Williams waived his challenge to the
sufficiency of the evidence, because his Rule 1925(b) statement did not
sufficiently identify the error that he intended to challenge on appeal. We
agree.
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In Commonwealth v. Tyack, 128 A.3d 254 (Pa.Super.2015), the
appellant stated in his Rule 1925(b) statement that “the [trial] court erred in
finding [there] was sufficient evidence to sustain the verdict” of guilt for
possession of an electric or electronic incapacitation device by a prohibited
person3. The Commonwealth did not object to the Rule 1925(b) statement.
Nevertheless, this Court held that the appellant waived his sufficiency claim
due to the inadequacy of his Rule 1925(b) statement. We reasoned:
As this Court has consistently held:
If Appellant wants to preserve a claim that the evidence
was insufficient, then the 1925(b) statement needs to
specify the element or elements upon which the evidence
was insufficient. This Court can then analyze the element
or elements on appeal. [Where a] 1925(b) statement [ ]
does not specify the allegedly unproven elements[,] ... the
sufficiency issue is waived [on appeal].
Commonwealth v. Williams, 959 A.2d 1252, 1257
(Pa.Super.2008), quoting Commonwealth v. Flores, 921 A.2d
517, 522–523 (Pa.Super.2007).
In this case, Appellant’s Rule 1925(b) statement simply
declared, in boilerplate fashion, that the evidence was
insufficient to support his conviction … The statement thus failed
to ‘specify the element or elements upon which the evidence was
insufficient’ to support Appellant’s conviction—and we must
conclude that Appellant’s sufficiency of the evidence claim is
waived on appeal. Williams, 959 A.2d at 1257.
Further, it is of no moment that the Commonwealth failed to
object to the defect in Appellant’s Rule 1925(b) statement. As
we have held:
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18 Pa.C.S. § 908.1(c).
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The Commonwealth’s failure [to object to the defect in the
Rule 1925(b) statement] and the presence of a trial court
opinion are of no moment to our analysis because we
apply Pa.R.A.P.1925(b) in a predictable, uniform fashion,
not in a selective manner dependent on an appellee’s
argument or a trial court’s choice to address an
unpreserved claim. [Commonwealth v. Castillo, 585 Pa.
395, 888 A.2d 775 (2005) ], Commonwealth v. Butler,
571 Pa. 441, 812 A.2d 631, 634 (2002). Thus, we find
1925(b) waiver where appropriate despite the lack of
objection by an appellee and despite the presence of a trial
court opinion. Castillo, 888 A.2d at 779, 780; Butler, 812
A.2d at 634.
Williams, 959 A.2d at 1257.
Id., 128 A.3d at 260-61; see also Commonwealth v. Gibbs, 981 A.2d
274, 281 (Pa.Super.2009) (appellant waived challenge to sufficiency of
evidence underlying his convictions for drug-related offenses due to
inadequacy of his Rule 1925(b) statement, even though trial court addressed
merits of this claim in its opinion).
Here, as in Tyack, Gibbs, and the authorities cited therein, Williams’
Rule 1925(b) statement failed to specify the element(s) for which the
evidence was insufficient to sustain his robbery conviction4. Therefore,
Williams has waived this issue.
Even if Williams had preserved this issue for appeal, the evidence was
sufficient to sustain his conviction. A person is guilty of robbery “if, in the
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We note that the Commonwealth was more diligent in this case than it was
in Tyack, because in this case, it took the extra step of objecting to the
insufficiency of Williams’ Rule 1925(b) statement.
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course of committing a theft, he … inflicts serious bodily injury upon
another.” 18 Pa.C.S. § 3701(a)(1)(i). Construed in the light most favorable
to the Commonwealth, the evidence demonstrates that Williams shot at
Barna several times after stealing Barna’s car. Williams then exited the car,
shot Barna in the arm and leg, and forced Barna to turn over his wallet at
gunpoint. Barna required treatment at the hospital for his injuries. This
evidence satisfies all elements of the crime of robbery.
Although we affirm Williams’ conviction, we remand for resentencing
due to defects in the February 23, 2015 order granting Williams’ post-
sentence motions. This order merely states that Williams’ minimum
sentence is “54-72 months” without specifying the precise number of
months in his new minimum or maximum sentence. The Sentencing Code
plainly directs the trial court to specify minimum and maximum periods of
imprisonment. See 42 Pa.C.S. § 9756(b)(1) (“[the] minimum sentence of
confinement … shall not exceed one-half of the maximum sentence
imposed”). We direct the trial court to resentence Williams in a manner that
complies with section 97565.
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Although Williams has not claimed that his sentence is illegal, “challenges
to an illegal sentence can never be waived and may be reviewed sua sponte
by this Court.” Commonwealth v. Tanner, 61 A.3d 1043, 1046
(Pa.Super.2013).
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Conviction affirmed. Judgment of sentence vacated. Remanded for
resentencing consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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