J-S03006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
HORACE L. JACKSON,
Appellant No. 811 EDA 2017
Appeal from the Judgment of Sentence Entered February 2, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011377-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 01, 2018
Appellant, Horace L. Jackson, appeals from the judgment of sentence
entered after a jury convicted him of robbery and related crimes. We affirm
in part and reverse in part.
The trial court aptly summarized the procedural history and factual
background of this case as follows:
Procedural History
On August 15, 2016, a hearing was held on Appellant[’s]
motions to suppress identification and statements. Those motions
were denied following that hearing.
Appellant then proceeded to trial before this [c]ourt, sitting
with a jury. Testimony commenced on August 16, 2016. On
August 22, 2016, the jury returned a verdict of guilty on the
charges of robbery as a felony of the first degree (18 Pa.C.S. §
3701([a]), possession of an instrument of crime [(PIC)] (18
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* Former Justice specially assigned to the Superior Court.
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Pa.C.S. § 907), attempted theft (18 Pa.C.S. § 901) and attempted
receipt of stolen property (18 Pa.C.S. § 901).
On February 2, 2017, Appellant was sentenced to 10-20
years[’] incarceration on the [r]obbery conviction and a
consecutive 5 years[’] probation on the conviction for [PIC]. No
further penalty was imposed on the charges of attempted theft
and attempted receipt of stolen property.
A timely Notice of Appeal was filed by Appellant, pro se, on
February 6, 2017.1 Counsel filed a Notice of Appeal on March 6,
201[7].
1On that same date[,] Appellant also filed a pro se petition
under the Post[]Conviction Relief Act[, 42 Pa.C.S. §§ 9541-
9546]. That petition was dismissed as premature on March
15, 2017.
Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the [c]ourt entered
an order on March 16, 2017, directing the filing of a Statement of
Errors Complained of on Appeal, not later than twenty-one (21)
days after entry of the order.
A timely Rule 1925(b) Statement of Errors was filed by
appointed appellate counsel on April 1, 2017.
Factual History
Motion to Suppress
Appellant moved to suppress his out-of-court and in-court
identification based upon lack of reasonable suspicion to detain
him for the on-the-street confrontation, suggestivity of the out-
of-court identification and attendant unreliability of the in-court
identification. Appellant also sought suppression of his statement
to detectives, arguing that his waiver of rights under Miranda2
was not knowing and voluntary because he was visibly under the
influence of a controlled substance -- PCP. [Testimony was taken]
from Jesse Weller, one of the complainants, and Officer Anthony
Woltman, the officer who responded to the scene and
broadcast[ed] the descriptive (“flash”) information, who later
responded to the location where Appellant had been stopped, who
was present for the identification and who identified a photo taken
of Appellant at the time of the identification. Officer Woltman also
prepared a 75-48 (Incident Report). Detective Kevin Sloan then
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testified to the circumstances of the taking of Appellant’s
statement.
2 Miranda v. Arizona, 384 U.S. 436 (1966).
Appellant then testified as to the circumstances of the stop, the
identification on the street and his statement to detectives. There
was also a stipulation that Officers Covello and Carroll prepared
an arrest memo, that they stopped Appellant based on flash
information, at the time he was stopped he had a black hat
hanging from his pocket, and he was identified by the
complainant. Appellant also introduced the Computer Assisted
Dispatch (CAD) and his color arrest photo.
***[1]
Trial
On October 27, 2015, Paul Ravenscraft and Jesse Weller were
making a truck delivery of goods to the Family Dollar Store at
5200 Germantown Avenue. The[y] arrived at about 4:30 AM,
before the store employees. Ravenscraft took off his glasses and
napped in the cab of the truck, while Weller remained in the rear
of the semi-truck scanning items and preparing the delivery.
At approximately 5:30 AM, Appellant approached the rear of
the truck and spoke briefly with Weller, who was inside, before
leaving. Appellant was wearing a distinctive green, white and
black jacket, also described as a jump suit. A short time later,
Appellant returned, demanding that Weller hand over money and
threatened to shoot Weller. During this exchange[,] Appellant
kept his hand down at his side, as though he had a gun. Weller
was unable to make out what Appellant was holding. Appellant
repeatedly threatened to shoot Weller. Eventually, Appellant tried
to climb into the truck. Weller concluded that the object was not
in fact a gun, so he grabbed a bar used for securing products for
delivery and threat[en]ed Appellant with it. Appellant withdrew,
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1 As mentioned supra, the trial court denied Appellant’s motions to suppress
identification and statements following the suppression hearing. See Trial
Court Opinion (TCO), 6/27/2017, at 1, 3-6. The trial court thoroughly outlined
its findings of fact and conclusions of law with respect to Appellant’s
suppression issues in its opinion, which we have omitted from the summary
above in the interest of brevity. See id. at 3-6.
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then went to the front of the truck, as Weller proceeded to call 9-
1-1.
Appellant approached the cab of the truck where Ravenscraft
was sleeping. Appellant opened the door and demanded money.
As Appellant started to enter the cab, Ravenscraft fled out the
other door and ran past the rear of the truck. He also called 9-1-
1.
Police responded to the scene, took information from the
complainants, and put out flash information describing Appellant.
Appellant was stopped over a mile away. Weller was brought to
that location, where he identified Appellant as the person who had
attempted to rob him and Ravenscraft. Appellant was wearing the
distinctive jacket, which was secured by detectives, placed into
evidence at trial and identified by Weller.
Appellant was transported to the detective division where he
gave a statement admitting to being on the scene at the Family
Dollar Store and interacting with Weller and Ravenscraft. A photo
was taken of Appellant wearing the jacket in question. Appellant
also had a black hat and a bag with a black strap.
TCO at 1-3, 6-7 (internal citations omitted).
Appellant presently raises the following issues for our review, which we
have reordered for ease of disposition:
A. Did the trial court err in denying [A]ppellant’s pretrial
motion to suppress his statement as it was not given
knowingly, voluntarily, or intelligently, as [A]ppellant was
under the influence of [Phencyclidine (PCP)] at the time and
the Miranda Warnings were not properly given and
seemingly given after the statement was given?
B. Was the evidence … insufficient to sustain guilty verdicts for
robbery and [attempted] theft as there was no serious
attempt to commit any theft and nothing was taken?
C. Was the evidence insufficient to sustain the guilty verdict for
[PIC] as no item whatsoever was used to commit a crime?
Appellant’s Brief at 7 (unnecessary emphasis omitted).
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First, Appellant argues that “[t]he trial court erred in denying
[A]ppellant’s pretrial motion to suppress his statement as it was not given
knowingly, voluntarily, or intelligently, as [A]ppellant was under the influence
of [PCP] at the time and the Miranda Warnings were not properly given and
seemingly given after the statement was given.” Id. at 17 (unnecessary
emphasis omitted). Without any citation to the record, he asserts that “the
detective either purposely or in error failed to Mirandize [A]ppellant before
interrogating him[,]” and he claims this failure “was compounded by
[A]ppellant’s being under the influence of PCP and marijuana.” Id. at 18, 19.
Consequently, he avers that “there was no waiver of any Miranda rights, and
even if there [was], it was not knowingly and intelligently done.” Id. at 19.
Initially, we set forth our standard of review for suppression rulings:
[W]e determine whether the court’s factual findings are supported
by the record and whether the legal conclusions drawn from them
are correct. Where, as here, it is the defendant who is appealing
the ruling of the suppression court, we consider only the evidence
of the prosecution and so much of the evidence for the defense
which remains uncontradicted when fairly read in the context of
the whole record. If, upon our review, we conclude that the record
supports the factual findings of the suppression court, we are
bound by those facts, and may reverse only if the legal conclusions
drawn therefrom are in error.
Commonwealth v. Mitchell, 902 A.2d 430, 450-51 (Pa. 2006) (citation and
original brackets omitted).
We acknowledge that, “[a]s a general rule, the prosecution may not use
statements, whether inculpatory or exculpatory, stemming from a custodial
interrogation of a defendant unless it demonstrates that he was apprised of
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his right against self-incrimination and his right to counsel.” Commonwealth
v. Venture, 975 A.2d 1128, 1136 (Pa. Super. 2009) (citations omitted).
Further, “[w]hen evidence of impairment is present, it is for the suppression
court to decide whether the Commonwealth has established by a
preponderance of the evidence that the suspect nonetheless had sufficient
cognitive awareness to understand the Miranda warnings and to choose to
waive his rights.” Id. at 1138 (original brackets, citation, and footnote
omitted).
In the case sub judice, the trial court ascertained that “when [Appellant]
gave a statement, he made a knowing and voluntary waiver of his right to
remain silent and his right to an attorney and … he gave a knowing and
voluntary waiver up until the point that he decided that he wanted counsel.”
See TCO at 6 (citation to record omitted). Thus, it concluded that “the
statement was not the product of any coercion or the product of [Appellant’s]
intoxication as he contends.” Id.
Our review of the record shows that Detective Sloan testified to the
following:
[The Commonwealth]: And before taking the statement from
[Appellant], did you read him his Miranda warnings?
[Detective Sloan]: I did.
[The Commonwealth]: And did he agree to speak with you?
[Detective Sloan]: He did.
***
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[The Commonwealth]: Do you remember what the -- [Appellant’s]
appearance at the time that you took the statement?
[Detective Sloan]: I do not recall.
[The Commonwealth]: Do you remember if the -- did [Appellant]
-- could you describe his condition in terms of how he was
answering questions?
[Detective Sloan]: There was no problem. It was just -- I asked
him a question, he would answer it. And then at the end[,] he
said he would rather have a lawyer and he did not want to sign
the statement.
[The Commonwealth]: Did he appear alert at the time that you
took the statement?
[Detective Sloan]: Yes.
[The Commonwealth]: Did he have any difficulty giving you his
full name, date of birth and address to one of the questions in the
statement?
[Detective Sloan]: No, he didn’t have a problem answering any of
my questions.
[The Commonwealth]: And by any of the questions -- any of those
preliminary questions, he did not have a problem answering other
basic biographical information?
[Detective Sloan]: That’s correct.
***
[The Court]: Did he seem intoxicated to you in any way?
[Detective Sloan]: He did not.
[The Court]: Did he seem mentally deficient to you in any way?
[Detective Sloan]: No.
***
[Appellant’s attorney]: You didn’t notice that when he was sitting
there, his eyes were red and he was [as] high as a kite?
[Detective Sloan]: He did not appear intoxicated to me.
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[Appellant’s attorney]: You didn’t see his eyes were red? I didn’t
say intoxicated.
[Detective Sloan]: I don’t remember if his eyes were red but he
did not appear under the influence.
[Appellant’s attorney]: How long [have] you been on the job?
[Detective Sloan]: Sixteen years.
[Appellant’s attorney]: And you can tell when somebody is high
on something other than alcohol. Can we agree?
[Detective Sloan]: Yes.
[Appellant’s attorney]: And [Appellant] didn’t appear to be high,
as you say?
[Detective Sloan]: He did not.
[Appellant’s attorney]: Didn’t he tell you that he smoked PCP and
weed when you started asking him those questions?
[Detective Sloan]: No, he did not.
[Appellant’s attorney]: Isn’t that why he said, “I want to talk to
an attorney now because I’m high and I was smoking weed[]?[”]
[Detective Sloan]: I said, “Are you” -- one of the first questions I
asked him was: “Are you now under the influence of drugs or
alcohol,” and his answer was, “No.”
N.T. Suppression, 8/15/2016, at 66, 68-69, 70, 74-75.
With respect to this testimony, the trial court found Detective Sloan
credible, and found that “Appellant did not testify credibly regarding the
circumstances of the Miranda warnings and waiver.” See TCO at 14 (citation
to record omitted). Detective Sloan’s testimony establishes that Appellant
had sufficient cognitive awareness to understand the Miranda warnings, and
waived his rights before questioning. Accordingly, we deem the trial court’s
factual findings to be supported by the record, and its legal conclusions drawn
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therefrom to be correct. See Mitchell, supra. As such, the trial court did
not err in denying Appellant’s pretrial motion to suppress his statement.
Second, Appellant asserts that “[t]he evidence was insufficient to
sustain guilty verdicts for robbery and [attempted] theft as there was no
serious attempt to commit any theft and nothing was taken.” Appellant’s Brief
at 13 (unnecessary emphasis omitted). We apply the following standard of
review to claims challenging the sufficiency of the evidence:
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. Scott, 146 A.3d 775, 777 (Pa. Super. 2016) (citation
omitted).
We recognize that “[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). “An
act shall be deemed ‘in the course of committing a theft’ if it occurs in an
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attempt to commit theft or in flight after the attempt or commission.” 18
Pa.C.S. § 3701(a)(2). Moreover, a person commits attempted theft by
unlawful taking when he attempts to “unlawfully take[], or exercise[] unlawful
control over, movable property of another with intent to deprive him thereof.”
See 18 Pa.C.S. § 3921(a); 18 Pa.C.S. § 901.
Here, Appellant advances that the evidence was insufficient to sustain
his convictions for those offenses because his “threats could not reasonably
have been taken seriously” under the circumstances. Appellant’s Brief at 16.
Although he seems to concede that the evidence presented shows that he had
demanded money from Mr. Weller and Mr. Ravenscraft, and had threatened
to shoot Mr. Weller, he maintains that “[n]either [man] seemed truly troubled
or truly threatened by the actions of [A]ppellant, and at most were bothered,
perplexed, and confused by their exchange with the high [A]ppellant.” Id. at
10; see also id. at 15.
This Court has previously explained that “[w]hen determining whether
a victim has been placed in fear of serious bodily injury, this Court uses an
objective standard; therefore, [the victim’s] subjective state of mind during
the robbery is not dispositive.” Commonwealth v. Kubis, 978 A.2d 391,
398 (Pa. Super. 2009) (citation omitted). In other words, “this Court will look
to the nature of the defendant’s threats, and not the subjective state of mind
of the victim.” Id. (citation omitted).
Here, Mr. Weller gave the following testimony at trial regarding his
interaction with Appellant:
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[The Commonwealth:] When you say “attempted robbery,” start
where you think is appropriate and just tell the jury what
happened.
[Mr. Weller]: I was scanning the product in the back of the truck
when a guy walked up to the back and stuck his head in the back
of the trailer, which is normal. It happens every now and then. I
asked him how it’s going and he just said, “Good,” and walked
away.
A couple minutes later, he came back and said “Give me all the
money,” and I repeated, “I don’t have any money; we don’t have
any money, just get out of here.” And then it escalated to, “Give
me all the money or I’m going to shoot you,” and exchanging back
and forth, “I don’t have any money; we don’t have any money,
just get out of here, just get of here.” And it escalated to, “Give
me your wallet.” I said, “I’m not giving you my wallet.”
“Give me your cell phone.”
“I’m not giving you my cell phone.”
“Give me all the money or I’m going to shoot you.” Over and over
again. Back and forth.
And then he attempted to crawl into the back of the trailer, and I
had this big, metal load bar on my left-hand side next to me and
I grabbed it and just shook it. And he said, “What are you going
to do, hit me with it?” I said, “No, just get out of here. Go. Go
away.” And I said, “My partner is up front, go bother him.” So
eventually he left. He said he was going to go up front and [was]
trying to get something from him and immediately, I called the
police.
***
[The Commonwealth:] Okay. And when he first told you that he
was going to shoot you, what did you think at that time?
[Mr. Weller]: It’s nothing you expect to hear, and it’s nerve-
racking. I don’t want to go anywhere near him. That’s why I
stayed where I was in the back of the trailer.
[The Commonwealth:] Did you, in fact, see a gun?
[Mr. Weller]: I [saw] something that could have been a weapon
but I wasn’t sure at the moment of what it was.
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[The Commonwealth:] And that’s something that you think could
have been a weapon. Could you describe where it was on
[Appellant] and how [he] was holding that item?
[Mr. Weller]: Being that I was in the trailer, I was higher than him
and he was standing on the ground because the ramp under the
back of the truck was not out so he was about chest-level, maybe
a little bit higher to the back of the trailer. He kept his right arm
down at his side the whole time. He was holding something black
in his hand, so I assumed it was -- that’s what he was threatening
with.
N.T. Trial, 8/17/2016, at 42-43, 44-45.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, we deem the evidence sufficient to sustain Appellant’s
convictions for robbery and attempted theft. With respect to robbery,
Appellant demanded Mr. Weller’s money, wallet, and cell phone, while
threatening to shoot him. Even if Mr. Weller eventually realized that Appellant
did not have a gun and did not take his threats seriously, as Appellant
contends,2 Appellant’s threat to shoot him constituted a threat of immediate
serious bodily injury, and intentionally put Mr. Weller in fear of such. See 18
Pa.C.S. § 3701(a)(1)(ii); see also Kubis, supra. Further, regarding his
attempted theft conviction, Appellant’s demand for money and other items
clearly establishes an attempt to unlawfully take the property of another with
intent to deprive him thereof. See 18 Pa.C.S. § 3921(a); 18 Pa.C.S. § 901.
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2 We note our disagreement, though, with Appellant’s contention that Mr.
Weller did not take his threats seriously. Mr. Weller testified that the
encounter was “nerve-racking[,]” that he didn’t “want to go anywhere near
[Appellant,]” and that Appellant’s threats “raised the adrenaline.” N.T. Trial
at 44, 49.
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Accordingly, the evidence was sufficient to sustain Appellant’s robbery and
attempted theft convictions.
Finally, Appellant advances that “[t]he evidence was insufficient to
sustain the guilty verdict for [PIC] as no item whatsoever was used to commit
a crime.” Appellant’s Brief at 16 (unnecessary emphasis omitted). He claims
he “was not in possession of any gun; was not in possession of any simulated
firearm or toy gun; was not in possession of any knife; was not in possession
of any weapon; was not in possession of any object that even looked like a
weapon.” Id. at 17. Instead, he says “[t]he only evidence was that
[A]ppellant had a black object in his hand that really did not look like a gun.”
Id. at 11.
A person commits the offense of PIC where “he possesses any
instrument of crime with intent to employ it criminally.” 18 Pa.C.S. § 907(a).
Instruments of crime include “[a]nything specially made or specially adapted
for criminal use[,]” or “[a]nything used for criminal purposes and possessed
by the actor under circumstances not manifestly appropriate for lawful uses it
may have.” 18 Pa.C.S. § 907(d).
The trial court explained why it believed the evidence was sufficient to
support Appellant’s conviction for PIC, as follows:
Here, the instrument was [A]ppellant’s hat, which he rolled up and
held at his side in an attempt to have it appear to Jesse Weller
that it was a gun. Thus, while a hat certainly has lawful purposes,
where, as here, it is used to simulate a gun in furtherance of a
robbery, the hat constitutes an instrument of a crime. In this
respect, it is no different from a toy gun. See Commonwealth
v. Brown, 23 A.3d 544, 561 (Pa. Super. 2011) (“The lawful uses
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of a toy gun do not include utilizing it in a robbery, particularly
where it is obviously used to convey the impression that it is a
real gun[.]”). See also Commonwealth v. Brunson, 938 A.2d
1057, 1062[] (Pa. Super. 2007) (a plastic soda bottle can
constitute an instrument of a crime).
TCO at 12.
Although the Commonwealth points out that it did not assert during
closing argument or at sentencing that it was specifically a hat that Appellant
rolled up and passed off as a firearm, it similarly claims that the evidence was
sufficient to sustain Appellant’s PIC conviction because Appellant “was in
possession of a black object that he attempted to pass off as a gun in order
to threaten Mr. Weller….” Commonwealth’s Brief at 13 (citations to record
omitted). In particular, while making threats to Mr. Weller, the
Commonwealth says Appellant “held a black object down by his side, in a
manner that made Mr. Weller initially believe that [Appellant] was holding a
gun.” Id. at 12. To support its argument, the Commonwealth likewise cites
to Brown and Brunson. See id. at 13.
We deem Brown and Brunson distinguishable. In Brown, the
appellant “pulled a gun out of a brown plastic bag and pointed it at [a gas
station cashier’s] face. Throwing her a white plastic bag, [the appellant]
demanded that [the cashier] give him money and threatened to kill her if she
did not.” Brown, 23 A.3d at 547. After the cashier yelled for her manager
and the manager appeared, the appellant ran out of the store. Id. Police
later discovered that the gun that the appellant used in the robbery “was
actually a toy gun colored in with a black magic marker, with its barrel taped.”
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Id. at 548. A jury subsequently convicted the appellant of, inter alia, robbery
and PIC. Id. at 547, 548. On appeal, the appellant argued, among other
things, that the evidence was insufficient to convict him of PIC. Id. at 559.
This Court rejected that argument, reasoning, “The lawful uses of a toy gun
do not include utilizing it in a robbery, particularly where it is obviously
used to convey the impression that it is a real gun.” Id. at 561
(emphasis added). We further noted that the cashier’s “testimony that [the
appellant] pointed the gun at her face and demanded money is sufficient to
establish that [the appellant] possessed the instrument of crime for the
purpose of employing it criminally.” Id.
Additionally, in Brunson, the following facts were adduced at trial:
On July 22, 2004, at around midnight, the [victim] was standing
near his vehicle waiting for his daughter when [the a]ppellant
approached him and asked whether the [victim] was “hacking.”2
The [victim] indicated “no,” that he was just waiting for his
daughter. [The a]ppellant indicated he wanted to be driven to a
nearby location, and the [victim] agreed to drive him to the
desired location in exchange for $5.00. While they were driving,
[the a]ppellant indicated he only had a twenty dollar bill and would
need change. The [victim], who had only a single five dollar bill,
said he would need to stop for change. In response, [the
a]ppellant suggested the [victim] give [the a]ppellant the five
dollar bill, and [the a]ppellant would then give the [victim] the
twenty dollar bill. Upon arriving at [the a]ppellant’s destination,
the [victim] told [the a]ppellant that he didn’t have to pay for the
ride and the [victim] had to get going in order to meet his
daughter. [The a]ppellant suddenly grabbed the [victim’s] neck
with one hand and demanded the [victim] give him the five dollar
bill. The [victim] noticed that [the a]ppellant was holding
something white in his left hand, and he began struggling with
[the a]ppellant. The white item, which [the a]ppellant was
holding, fell to the vehicle’s floor. [The a]ppellant began punching
the [victim] in the head, and the [victim] raised his arm to defend
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himself. [The a]ppellant repeatedly threatened to kill the [victim]
if he did not give him the five dollar bill and threw the vehicle’s
keys out of the window. At this point, the [victim’s] “heart started
pounding like he might have a heart attack and [the appellant]
might have killed me.” The [victim] then opened the vehicle’s
door, and while he was exiting, [the a]ppellant attempted to take
the [victim’s] wallet out of his pocket. The [victim] ran across the
street, and [the a]ppellant began searching the vehicle, including
an area between the seats and the glove box. [The a]ppellant
tore off the vehicle’s rearview mirror, exited the vehicle, and threw
a plastic Pepsi Cola bottle at the [victim]. The bottle missed its
intended target, and the [victim] ran, with [the a]ppellant right
behind him. The [victim] dialed 911 on his cell phone, and the
police arrived within a minute and a half. The [victim] informed
the police that [the a]ppellant had run into a nearby building. As
a result of the attack, the [victim] suffered torn ligaments in his
right shoulder, for which surgery has been recommended.
2 “Hacking,” which is illegal, is used to describe people who
drive others in exchange for money. As the trial court noted
in its opinion, [the victim] admitted at trial that he
sometimes “hacks” to help elderly people.
Brunson, 938 A.2d at 1058-59 (internal citations and original brackets
omitted).
The appellant in Brunson was convicted of robbery, attempted theft,
PIC, making terroristic threats, simple assault, and recklessly endangering
another person. Id. at 1058. On appeal, he contested, inter alia, the
sufficiency of the evidence underlying his PIC conviction. Id. This Court
concluded that the evidence was sufficient, explaining:
[The a]ppellant contends that the soda bottle, which he threw at
[the victim], cannot be an “instrument of crime” since it was made
of harmless plastic.6 Essentially, [the a]ppellant argues that,
before an item can qualify as an “instrument of crime” under
Section 907, the Commonwealth must demonstrate that the item
could cause harm.7 Our plain reading of the statute reveals no
such requirement and, since [the a]ppellant has cited no case law
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supporting his interpretation of the statute, we find no relief is
due.
6There was no evidence presented as to whether the bottle
contained any liquid or was empty.
7 We find it unnecessary to address [the a]ppellant’s
contention the plastic soda bottle was incapable of causing
harm.
Id. at 1062.
In the case at bar, Mr. Weller gave the following testimony:
[The Commonwealth:] And during that time, [Appellant] said --
you stated that [Appellant] threatened to shoot you. Did
[Appellant] make that threat additional times or did he just
threaten to shoot you one time?
[Mr. Weller]: Multiple times. I’d say, maybe a dozen times.
[The Commonwealth:] During those times that he said it multiple
times, did he continue to hold his right hand with the object down
by his side?
[Mr. Weller]: Yes.
[The Commonwealth:] What made you think -- based on what you
described you observed, what made you think that that was the
weapon or that [it] could be the weapon?
[Mr. Weller]: Being that it was black and he wasn’t showing it.
[The Commonwealth:] Now, did there ever come a time during
this entire interaction with [Appellant] that you get closer to
[Appellant]?
[Mr. Weller]: Yes. I was curious to see what actually was in his
hand. I kept edging closer, little by little.
[The Commonwealth:] And what did you learn, as far as your
observations of that particular object in his hand?
[Mr. Weller]: I’m familiar with guns and from what I [saw], it
didn’t look to be a gun but I still was not sure.
***
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[Appellant’s attorney]: You said -- and correct me also if I got it
wrong, during your exchange with [the Commonwealth] on direct
[examination], you said you were slowly moving towards the front
of the truck because you were curious to see what was in
[Appellant’s] hand. Did I get that right? Just a summary,
paraphrasing … what you said.
[Mr. Weller]: Correct.
[Appellant’s attorney]: And even though when you got close, you
still couldn’t, as you said now, tell what it was. You knew it wasn’t
a gun, can we agree, because you know guns? You said that,
right?
[Mr. Weller]: Yes, I do know guns. I still wasn’t sure but I was
more comfortable with seeing what was in his hands. Guns come
in all shapes and sizes. I still wasn’t okay with walking up to him
and getting any closer to him.
[Appellant’s attorney]: Fair enough. That’s fair. But you knew it
wasn’t a gun or a weapon, you knew that at that point?
[Mr. Weller]: No, I did not. I did not know it was not a weapon.
[Appellant’s attorney]: It didn’t look like a gun, did it?
[Mr. Weller]: No.
[Appellant’s attorney]: And you knew that, right?
[Mr. Weller]: There’s always that chance.
[Appellant’s attorney]: That’s not my question, sir. Please answer
my question. You knew it didn’t look like a gun, right? That’s all
I’m asking you.
[Mr. Weller]: Yes.
[Appellant’s attorney]: Why did you tell 9-1-1 he had a gun
then?
[Mr. Weller]: Because he was telling me he was going to
shoot me.
***
[Appellant’s attorney]: When you told 9-1-1 he had a gun, it
was based on what he said to you but not what you saw, is
that what you’re telling us?
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[Mr. Weller]: Yes.
N.T. Trial at 45-46, 94-95, 95 (emphasis added).
Unlike the appellant pointing the toy gun at the cashier in Brown, Mr.
Weller’s testimony at trial did not establish that Appellant did anything to
actively simulate or give the impression that he had gun. Instead, Mr. Weller
supposed that the object in Appellant’s hand was a weapon because of his
threats to shoot. Mr. Weller explained that Appellant “kept his right arm down
at his side the whole time. He was holding something black in his hand, so I
assumed it was -- that’s what he was threatening with.” Id. at 45 (emphasis
added). Moreover, in contrast to the appellant’s throwing the bottle at the
victim in Brunson, Appellant did not take any action with the object — he
merely held it in his hand by his side. Furthermore, the record does not
establish that Appellant was purposely hiding or obscuring the object from Mr.
Weller’s view. Instead, it appears that Mr. Weller had trouble seeing the object
in Appellant’s hand because Appellant’s position happened to be “chest-level,
maybe a little bit higher to the back of the trailer[,]” and Mr. Weller was at
least 10 feet back in the truck’s trailer when he initially spotted an item in
Appellant’s hand. Id. Consequently, Mr. Weller “was curious to see what
actually was in his hand” so he “kept edging closer, little by little.” Id. at 46.
In addition, unlike the issue in Brunson, Appellant’s argument is not limited
to whether the Commonwealth demonstrated that the object — whether a hat
or something else — could cause harm. Rather, the crux of Appellant’s
argument is that “no item whatsoever was used to commit a crime.”
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Appellant’s Brief at 11 (unnecessary emphasis omitted). Based on Mr. Weller’s
testimony, we agree that Appellant did not use any object for a criminal
purpose and, therefore, we reverse Appellant’s conviction of PIC.
Judgment of sentence for PIC reversed. Judgment of sentence affirmed
in all other respects. Jurisdiction relinquished.
Judge Panella joins this memorandum.
President Judge Emeritus Stevens files a concurring and dissenting
memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/18
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