Com. v. Shelley, E.

J-S18019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ERIC SHELLEY

Appellant No. 598 EDA 2016

Appeal from the Judgment of Sentence dated February 12, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010089-2014

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.: FILED JUNE 27, 2017

Appellant Eric Shelley appeals from the judgment of sentence entered

following his convictions for robbery, criminal conspiracy, carrying a firearm

without a license, carrying a firearm on public streets in Philadelphia, and

possession of a firearm by a person prohibited from doing so.1 We affirm.

The underlying facts which led to the criminal charges against

Appellant were stated in full by the trial court in its Pa.R.A.P. 1925(a)

opinion, and we need not restate them in full here. To summarize, Malik

Hassan, the complainant in this case, was walking to his home on 19th

Street around 1:00 a.m. on the morning of June 9, 2014. He encountered a

____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 3701, 903, 6106, 6108, and 6105, respectively.
J-S18019-17

group of approximately six men, including Appellant, near the corner of

Shirley and Olive Streets. One of them said, “[T]hat’s your check. Go get

that,” at which point Appellant began to approach Mr. Hassan. Mr. Hassan

ran to the corner of Shirley Street and 19th Street, and saw Appellant at the

corner of Olive Street and 19th Street.2 Mr. Hassan ran to the top of his

front steps and opened his vestibule door. Mr. Hassan waited for ten to

fifteen seconds, until he saw Appellant emerge from the corner, holding a

black and silver handgun.3 Appellant and Mr. Hassan looked at each other

for a second, and then Mr. Hassan ran inside and shut the door, but

continued to watch Appellant through the peephole. Appellant crossed 19th

Street, put the gun in his waistband, and passed by Mr. Hassan’s residence

on the other side of the street. Appellant then returned down Appellant’s

side of the street and passed Mr. Hassan’s home a second time, saying

“Where did he go? Did you see where the boul go?” 4 Appellant again had his

gun drawn.

____________________________________________
2
Olive Street, Shirley Street, and 19th Street form a triangle. Appellant’s
emergence at the corner of Olive and 19th Streets indicates that he
traversed the full block of Olive Street while Mr. Hassan ran down the block
of Shirley Street. See Trial Ct. Op. at 2.
3
They were 25 feet apart at this time. See N.T., 12/8/15, at 54.
4
We understand “the boul” to be a slang reference to Mr. Hassan. When
Appellant made his statement, he was just outside of Mr. Hassan’s home,
about five feet from where Mr. Hassan was standing. See N.T., 12/8/15, at
57. Mr. Hassan testified that there were no other pedestrians in the area.
Id.

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J-S18019-17

Mr. Hassan called the police, who apprehended Appellant. Mr. Hassan

then identified Appellant. Police also apprehended another man who had

been in the group seen by Mr. Hassan, and they ultimately retrieved a gun

from that man. Mr. Hassan then identified that gun as the one used by

Appellant. See Trial Ct. Op., 9/15/16, at 2-7; N.T. 12/8/15, at 38-57.

Appellant was convicted by a jury on December 10, 2015.5 On

February 12, 2016, Appellant was sentenced to an aggregate of four to ten

years’ incarceration followed by five years’ of probation. Appellant timely

appealed, presenting the following issues for our review:

I. Whether the evidence was sufficient to sustain the
verdict on the robbery charge?

II. Whether the evidence was sufficient to sustain the
verdict on the conspiracy charge?

III. Whether the court erred in not granting Appellant’s
motion for judgment of [acquittal]?

Appellant’s Brief at 3.6

____________________________________________
5
Appellant was convicted for the crime of unlawful possession of a firearm
following a bench trial on that same date. See Trial Ct. Op. at 1.
6
Although Appellant did not raise before the trial court his argument that
the evidence was insufficient to support his conviction for conspiracy, we will
address the issue, as the trial court, while noting waiver, thoroughly
addressed the issue in its opinion, the Commonwealth does not argue that
the issue is waived, and the record is sufficient for our review. See
generally Commonwealth v. Laboy, 936 A.2d 1058, 1058-60 (Pa. 2007)
(per curiam) (declining to find waiver of sufficiency argument that was only
generally stated in the 1925(b) statement, where trial court addressed the
sufficiency of the evidence in its 1925(a) opinion, and the specific sufficiency
(Footnote Continued Next Page)

-3-
J-S18019-17

We review a challenge to the sufficiency of the evidence in accordance

with the following:

A claim challenging the sufficiency of the evidence
presents a question of law. We must determine whether
the evidence is sufficient to prove every element of the
crime beyond a reasonable doubt. We must view evidence
in the light most favorable to the Commonwealth as the
verdict winner, and accept as true all evidence and all
reasonable inferences therefrom upon which, if believed,
the fact finder properly could have based its verdict.

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017).

Appellant argues that his convictions were based on mere conjecture.

See Appellant’s Brief at 10-11. According to Appellant, when he and Mr.

Hassan reached 19th Street, Appellant put his gun away and did not demand

property from or threaten Mr. Hassan. And, despite watching Mr. Hassan

enter his home, Appellant passed by his residence twice, asking aloud

“Where did he go?” Appellant argues that these actions do not make out the

elements of robbery, but rather indicate that “[A]ppellant wanted others to

believe he was looking for the complainant much more than he actually

wanted to engage the complainant in any way.” Id. at 11. Appellant also

claims that the evidence is not sufficient to prove conspiracy, because “there

was no evidence presented that [A]ppellant was acting with anyone else at

any time during the events at issue.” Id.

_______________________
(Footnote Continued)
arguments raised on appeal were fully amenable to review by the reviewing
court).

-4-
J-S18019-17

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). “A conviction for robbery

does not require proof of a completed theft.” Commonwealth v. Robinson,

936 A.2d 107, 110 (Pa. Super. 2007), appeal denied, 948 A.2d 804 (Pa.

2008). Rather, the statute defines “in the course of committing a theft” to

include an act occurring “in an attempt to commit theft or in flight after the

attempt or commission.” 18 Pa.C.S.A. § 3701(a)(2); see Robinson, 936

A.2d at 110. Nor does a conviction for robbery require explicit verbal threats

or actual serious bodily injury, particularly where the defendant brandished a

firearm:

The Commonwealth need not prove a verbal utterance or
threat to sustain a conviction under subsection
3701(a)(1)(ii). It is sufficient if the evidence demonstrates
aggressive actions that threatened the victim's safety. 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.” The threat posed by the
appearance of a firearm is calculated to inflict fear of
deadly injury, not merely fear of “serious bodily injury.” A
factfinder is entitled to infer that a victim was in mortal
fear when a defendant visibly brandished a firearm.

Commonwealth v. Alford, 880 A.2d 666, 676 (Pa. Super.) (quoting

Commonwealth v. Hopkins, 747 A.2d 910, 914-15 (Pa. Super. 2000)

(citations omitted)), appeal denied, 890 A.2d 1055 (Pa. 2005).

A person commits conspiracy when, with the intent of promoting or

facilitating the commission of a crime, he “agrees with such other person or

-5-
J-S18019-17

persons that they or one or more of them will engage in conduct which

constitutes such crime or an attempt or solicitation to commit such crime.”

18 Pa.C.S. § 903(a)(1). “Because it is difficult to prove an explicit or formal

agreement to commit an unlawful act, such an act may be proved

inferentially by circumstantial evidence, i.e., the relations, conduct or

circumstances of the parties or overt acts on the part of the co-

conspirators.” Commonwealth v. Poland, 26 A.3d 518, 521 (Pa. Super.

2011) (italicization added), appeal denied, 37 A.3d 1195 (Pa. 2012).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Susan I.

Schulman, we conclude that there was sufficient evidence presented to

establish beyond a reasonable doubt that Appellant committed robbery and

conspiracy to commit robbery. See Trial Ct. Op. at 11-12 (finding that

Appellant pursued Mr. Hassan in response to the cue of “There’s your check.

Go get that”; Appellant’s pursuit of Mr. Hassan took place at 1:00 a.m.;

Appellant pursued Mr. Hassan with a gun in his hand; Appellant pursued Mr.

Hassan upon their initial encounter, continued to pursue Mr. Hassan when

they had both emerged onto 19th street, and continued to pursue Mr.

Hassan even after Mr. Hassan had retreated inside, by pacing back and forth

in front of Mr. Hassan’s door, and calling “Where did he go?”).

-6-
J-S18019-17

Thus, we affirm on the basis of the trial court’s opinion, and the parties

are instructed to attach a copy of the trial court’s opinion of September 15,

2016, to any future filing that references this Court’s decision.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/27/2017

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FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0010089-2014

VS. CP-51-CR-0010009-2014Comm. Y. Shel!ey, Eric
Opinion

FILED
ERIC SHELLEY
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7499801801
598 EDA 2016
SEP 1.5 20t8
OPINION AppealaJPoat1Hal
Office of Judlclal RecoJds
SCHULMAN, S.I., J.

Eric Shelley ("Appellant") has appealed this Court's judgment of conviction and

sentence. This Court submits the following Opinion in accordance with the requirements of Pa.

R.A.P. 1925, and for the reasons set forth herein, recommends that its judgment be affirmed.

PROCEDURAL HISTORY

On December 10, 2015, following a jury trial before this Court, Appellant was convicted

of Robbery, Criminal Conspiracy, Firearms Not to Be Carried without a License and Carrying

Firearms on Public Streets in Philadelphia. On the same date, following a bifurcated trial before

this Court, Appellant was convicted of Persons Not to Possess Firearms,

On February 12, 2016, upon review of the pre-sentence investigation report and

consideration of all relevant facts and circumstances of this case, this Court sentenced Appellant

to an aggregate term of four (4) to ten (10) years' incarceration, followed by five (5) years of

probation. He subsequently appealed, and this Court ordered him to file a Concise Statement of

Matters Complained of on Appeal in accord with Pa.R.A.P. 1925(b). Counsel for Appellant

timely complied.
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FACTUAL HISTORY

At trial, the Commonwealth presented the testimony of the complainant, Malik Hassan.

Mr. Hassan testified that, on June 8, 2014, he completed his work at a center city restaurant at

approximately 11 :00 p.m., and went to his home located at 711 North 19th Street in Philadelphia

(between Fairmount Avenue and Brown Street). After dropping of some belongings, at

approximately 12:00 a.m., he walked to a nearby bar located at 17th Street and Fairmount

Avenue, where he had a shot of whiskey and a light beer. At approximately 12:50 a.m., he left

. the bar to return home. (See N.T. 12/08/15, pp. 35-38).

The map below will facilitate comprehension of the events that ensued:

Girard Atlto eody II

.
6.,
' fi5
. . -s••••••
1~---:...-••

Q. Let's talk about what happened when you made it to
the 800 block of Perkiomen Street? When you turned onto that
block, what, if anything, occurred?

A. When I turned onto the 800 block of Perkiomen
Street, there was a group of black males; some were on the left side
of the street and some o [ n] the right side of the street. ... So
instantly he sees the guy with the white shirt, which was Defendant
Eric Shelley [Appellant]. He sees him and he was like, "That's the
guy. That's the guy." I was like, "You sure?" He was like,
"That's the guy. That's the guy."

(See N.T. 12/09/15, pp. 4-11).

Officer Holden testified that he took Mr. Hassan a few blocks away for his safety and

called back-up officers to meet Mr. Hassan. Officer Holden returned to Perkiomen Street to stop

and investigate the males. Back-up officers transported Mr. Hassan to Perkiomen Street, where

he positively identified Appellant, as well as the male in the grey hoodie. He was unable to

. unequivocally identify the male in the dark tracksuit. After the identifications, one of the males -

- Co-Defendant Lawrence Jones -- stated that since he's been cleared of any warrants and was not

identified by Mr. Hassan, "Can I just get my gun and go?" Officer Holden asked Co-Defendant

Jones ifhe had a gun license, to which he responded in theaffirmative. Co-Defendant Jones

went into an adjacent Toyota Camry -- which was owned by the father of the male in the grey

hoodie -- and retrieved a silver and black handgun, which he showed to the officer. Officer

Holden made the gun safe and showed it to Mr. Hassan, who positively identified it as the gun

used by Appellant approximately 30 minutes earlier. The gun, which was loaded with 14 live

rounds, was secured under property receipt.

(See N.T. 12/09/15, pp. 11-18, 44).

The Commonwealth next presented the testimony of Philadelphia Police Detective Neil

Goldstein. Detective Goldstein testified that, following his· interview of Co-Defendant Jones, he

6
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elected to release him from police custody and returned his registered firearm. Detective

Goldstein explained that his decision simply was a "blunder" on his part. (See N.T. 12/09/15, pp.

46-50).

Next, the Commonwealth called Philadelphia Police Detective James Waring to the stand.

Detective Waring testified that, following the inadvertent release of Co-Defendant Jones, he and

his team executed a warrant to search Jones' residence on July 25, 2014, which yielded a "gun

box" for the gun at issue, to wit, a .40 caliber Smith and Wesson handgun, model SW40DE,

· serial number RCA1642. Detective Waring also had obtained an arrest warrant, but Co-

Defendant Jones was not present at the time. Two hours later, he made contact with Jones, who

turned in himself and the handgun to detectives. (See N.T. 12/09/15, pp. 58-64).

Finally, the Commonwealth introduced stipulated evidence establishing that: (a)

Appellant did not have a valid license to carry a firearm; (b) Co-Defendant Jones did have a valid

license to carry a firearm; and (c) the subject handgun was test fired by the Firearms

Identification Unit, and determined to be operable. (See N.T. 12/09/15, p. 74).

Following the conclusion of the Commonwealth's case-in-chief, Appellant moved for

judgment of acquittal on the basis that there was insufficient evidence of a robbery. This Court

denied relief and expressed its reasoning on the record:

THE COURT: In regard to the robbery charge [as] to both
defendants, the statement, "That's your check. Go get that,"
whereupon [Appellant] immediately starts following the
complaining witness and then rounds this corner and shows his
gun, that's enough for an attempted theft. And that's all you need
here is an attempt to commit a theft. That is enough to go to the
jury. I agree it is completely circumstantial, but it is enough. So
the judgment of acquittal [is] denied in regard to both defendants
on the chargeof robbery.

(N.T. 12/09/15, pp. 82-83).

7
 Based on the evidence adduced at trial, the jury found Appellant guilty of Robbery,

Criminal Conspiracy, Firearms Not to Be Carried without a License and Carrying Firearms on

Public Streets in Philadelphia; it acquitted Co-Defendant Jones of all charges. On the same date,

following a bifurcated trial before this Court, Appellant was convicted of Persons Not to Possess

Firearms. Following a comprehensive pre-sentence investigation, this Court imposed sentence as

previously set forth.

ISSUES ON APPEAL

Appellant raises the following issues on appeal:

1; The evidence presented at trial was insufficient, as a
matter oflaw, to support the verdict of guilty of Robbery.
There was insufficient evidence presented to make out
multiple elements of the Robbery charge. There was
insufficient evidence presented to prove that Appellant
committed either Theft or Attempted Theft. Further, while
theft, or attempted theft, is a necessary element of the
Robbery charge, regardless of the lack of evidence on this
point, there was insufficient evidence presented to prove
that Appellant used force or threatened to use force against
the complainant at any time. There was insufficient
evidence to prove that Appellant had any intent to commit a
Robbery.

2. The evidence presented at trial was insufficient, as a
matter of law, to support the verdict of guilty of Conspiracy
to Commit Robbery. In addition to the arguments
presented above, there was insufficient evidence to prove
that Appellant agreed to commit a Robbery with anyone.
There was insufficient evidence that there was any
"meeting of the minds" between Appellant and anyone else
to commit a Robbery.

3. The Trial Court erred in denying Appellant's
motion for [judgment] of acquittal on the charges of
Robbery and Conspiracy for the reasons stated- above.

(Appellant's Rule 1925(b) Statement, 111-3).

8
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This Court will address Appellant's claims together.

DISCUSSION

SUFFICIENCY OF THE EVIDENCE

Appellant claims that this Court erred by denying his Motion for Judgment of Acquittal, 1

and the jury's verdicts as to Robbery and Criminal Conspiracy were not supported by sufficient

evidence. These claims fail.

a. Judgment of Acquittal/ Sufficiency Standard

"A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain

a conviction on a particular charge, and is granted only in cases in which the Commonwealth has

failed to carry its burden regarding that charge." Commonwealth v. Hutchinson, 94 7 A.2d 800,

805 (Pa. Super. 2008). Therefore, the standard to be applied is the same as in reviewing the

sufficiency of the evidence. Id.

In evaluating a challenge to the sufficiency of the evidence, a reviewing court must view

the evidence in the light most favorable to the Commonwealth as verdict winner. It accepts as

· true' all the evidence, direct and circumstantial, and all reasonable inferences arising therefrom

upon which the finder of fact could properly have based its verdict, in determining whether the

evidence and inferences are sufficient to support the challenged conviction. Commonwealth v.

Carroll, 507 A.2d 819, 820 (Pa. 1986); Commonwealth v. Griscavage, 517 A.2d 1256, 1259 (Pa.

1986); Commonwealth v. Hopkins, 747 A.2d 910, 913 (Pa. Super. 2000).

1
In his Rule 1925(b) statement, Appellant claims that the Court erred by not granting his Motion
for Judgment of Acquittal on both the Robbery and Conspiracy charges. · At trial, however,
Appellant only presented argument as to Robbery, and this Court noted same on the record. (See
N.T. 12/09/15, p. 84). Putting aside the waiver of this issue, for the reasons discussed below;
there was no error in permitting the Conspiracy charge go to the jury.

9
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"[T]he facts and circumstances established by the Commonwealth need not preclude

every possibility of innocence." Commonwealth v. Jones, 874 A.2d 108, 120 (Pa. Super. 2005);

~ Commonwealth v. Rippy, 732 A.2d 1216; 1218-1219 (Pa. Super. 1999) (while conviction

must be based on more than mere speculation, "the Commonwealth need not establish guilt to a

mathematical certainty''). "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." Hutchinson, 947 A.2d

at 806 (emphasis in original); see also Commonwealth v. Sneddon, 738 A.2d 1026, 1027 (Pa.

Super. 1999).

"The Commonwealth may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial evidence." Jones, 874 A.2d at 120.

Thus, the decision of the trier of fact will not be disturbed where there is support for the verdict

in the record. Commonwealth v. Bachert, 453 A.2d 931, 935 (Pa. 1982). When assessing the

sufficiency of the evidence, this Court "may not weigh the evidence and substitute [its] judgment

for that of the fact-finder." Commonwealth v. Vetrini, 734 A.2d 404, 407 (Pa. Super. 1999).

"Moreover, in applying the above test, the entire record must be evaluated and all

evidence actually received must be considered." Hutchinson, 947 A2d at 806. "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." Id.

b. Specific Offenses

i. Robbery

A person commits the crime of robbery if, in the course of attempting a theft, he

'"threatens another with or intentionally puts him in fear of immediate serious bodily injury."'

10
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Commonwealth v. Gillard, 850 A.2d 1273, 1275 (Pa. Super. 2004) (quoting 18 Pa.C.S. §

3701(a)(l)(ii)). The robbery is complete upon commission or threat of violence, and thus

completion of the theft is not required. See Commonwealth v. Thompson, 648 A.2d 315, 319

(Pa. 1999), overruled.in part on other grounds by Commonwealth v. Widmer, 560 Pa. 308, 744

A.2d 745 (Pa. 2000); Conunonwealth v. Natividad, 773 A.2d 167, 176 (Pa. 2001) ("There is no

requirement that the robbery be successful.").

11. Criminal Conspiracy

"The essence of a criminal conspiracy is a common understanding, no matter how it came

into being, that a particular criminal objective be accomplished." Commonwealth v. Gibson, 668

A.2d 552, 555 (Pa. Super. 1995) (quoting Conunonwealth v. Volk, 444 A.2d 1182, 1185 (Pa.

Super. 1982)). "An explicit or formal agreement to commit crimes can seldom, if ever, be

proved and it need not be, for proof of a criminal partnership is almost-invariably extracted from

the circumstances that attend its activities." Commonwealth v. Swerdlow, 636 A.2d 1173, 1177

(Pa. Super. 1994) (quoting Commonwealth v. Kennedy, 453 A.2d 927, 929-930 (Pa. 1982)).

"An agreement sufficient to establish a conspiracy can be inferred from a variety of

circumstances including, but not limited to, the relation between the parties, knowledge of and

participation in the crime, and the circumstances and conduct of the parties surrounding the

criminal episode." Commonwealth v. Rivera, 637 A.2d 997, 998 (Pa. Super. 1994) (en bane).

Applying the foregoing principles, the evidence was sufficient to sustain the jury's

verdicts. Appellant manifested a common understanding to commit Robbery when he acted

immediately on cue of "There's your check. Go get that", walking directly toward Mr. Hassan at

1 :00 a.m., and then circling back -- with gun in hand -- in pursuit of his loot. Appellant then

11
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immediately pursued Mr. Hassan. Even after Mr. Hassan secreted himself behind his door,

Appellant paced back and forth, calling "Where did he go?".

A Motion for Judgment of Acquittal will be granted where the Commonwealth's

evidence fails to show that a reasonable factfinder could conclude that the elements of the crime

charged have been proven beyond a reasonable doubt. Here, the evidence of Appellant's attempt

to commit Robbery were made out by the Appellant's response to "There's your check. Go get

that." The obvious and reasonable inference is the common understanding to commit a Robbery.

That there was no express agreement is of no import, as their seldom is. See Commonwealth v.

Swerdlow, 636 A.2d at 1177. Appellant's subsequent pursuit of Mr. Hassan with gun in hand

certainly could be viewed by a reasonable factfinder as evidence of his intent to commit a

Robbery.

In regard to Appellant's argument that the evidence was insufficient to sustain a verdict

of guilt, the jury was free to accept or reject the direct, as well as the circumstantial evidence

based upon its evaluation of the totality of the circumstances. That Appellant was unsuccessful

in taking anything from Mr. Hassan is unavailing. See Commonwealth v. Thompson, 648 A.2d

at 319. The evidence established a clear intention by Appellant to commit a Robbery. Indeed,

he was not doggedly pursuing Mr. Hassan with gun in hand at 1 :00 a.m. in order to exchange

dinner recipes. Rather, the plain, common sense inference was an attempted theft with the threat

of force -- which inference, given all the facts and circumstances, the jury was entitled to make.

As such, the jury's verdict should not be disturbed.

CONCLUSION

Based on the reasons set forth in the foregoing Opinion, this Court's judgment of

sentence should be affirmed.

12
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BY THE COURT:

13