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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOSEPHINE K. KIGER
Appellant : No. 1374 MDA 2018
Appeal from the Judgment of Sentence Entered April 18, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005626-2016
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 16, 2019
Appellant, Josephine K. Kiger, appeals from the April 18, 2018 Judgment
of Sentence entered in the Dauphin County Court of Common Pleas following
her conviction of Robbery and Conspiracy to Commit Robbery.' She
challenges the sufficiency of evidence in support of her convictions. After
careful review, we affirm.
We glean the following factual and procedural history from the certified
record. Appellant and Jon Paul Young ("the Victim") had a romantic
relationship from July to early -September 2016, during which the Victim
moved in with Appellant. After the relationship ended and the Victim moved
out of Appellant's house, Appellant and the Victim agreed that he owed her
' 18 Pa.C.S. § 3701(a)(1)(ii) and 18 Pa.C.S. § 903, respectively.
Retired Senior Judge assigned to the Superior Court.
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approximately $400 for expenses. Because Appellant did not receive the
money the Victim owed her, Appellant texted the Victim, threatening to take
him to small claims court.
On September 9, 2016, Appellant invited the Victim to her house. Once
he arrived, Appellant invited the Victim to her kitchen for coffee. While in the
kitchen, Appellant told the Victim that she was going to do something to him
so that he never messes with another woman again. Appellant then yelled
"Now," and two of Appellant's friends emerged from Appellant's basement;
one friend was holding a wooden baseball bat.
Appellant then directed the Victim to place his arms in the air and one
friend stood directly in front of the Victim with the bat, while the other friend
removed a cellphone, wallet, approximately $184 in cash, car keys, and a
vape box from the Victim's pockets.
A trial commenced on February 14, 2018, after which the jury found
Appellant guilty of Robbery and Conspiracy to Commit a Robbery. On April
18, 2018, the court sentenced Appellant to one and one-half to three years of
imprisonment, followed by five years of probation.
After the dismissal of her Post -Sentence Motion, Appellant timely
appealed. Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following question for our review: "Did the
Commonwealth fail to present evidence sufficient to sustain a verdict of guilty
with respect to [Robbery] and [Conspiracy to Commit Robbery]." Appellant's
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Br. at 6. In her brief, Appellant narrows the issue by arguing only that the
Commonwealth presented insufficient evidence to support her conviction as
an accomplice to the robbery and as a co-conspirator.
"A claim challenging the sufficiency of the evidence is a question of law."
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). "Our standard
of review is de novo and our scope of review is plenary." Commonwealth v.
Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017). In reviewing a sufficiency
challenge, we determine "whether the evidence at trial, and all reasonable
inferences derived therefrom, when viewed in the light most favorable to the
Commonwealth as verdict winner, are sufficient to establish all elements of
the offense beyond a reasonable doubt." Commonwealth v. May, 887 A.2d
750, 753 (Pa. 2005) (citation omitted).
"Further, a conviction may be sustained wholly on circumstantial
evidence, and the trier of fact-while passing on the credibility of the witnesses
and the weight of the evidence-is free to believe all, part, or none of the
evidence." Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017).
"In conducting this review, the appellate court may not weigh the evidence
and substitute its judgment for the fact -finder." Id.
Robbery
Appellant argues that the Commonwealth failed to prove that she was
an accomplice to the robbery because she was not an active participant. She
asserts that the Commonwealth presented no evidence "to suggest Appellant
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in any way had knowledge of what might occur at her house on September 9,
2016." Appellant's Br. at 12. She contends that the evidence simply
demonstrated that she was "merely present at the scene and associated with
the perpetrators[,]" and therefore sufficient evidence does not support her
Robbery conviction. Id. We disagree.
A person is guilty of Robbery if "in the course of committing a theft,
[s]he . . . threatens another with or intentionally puts him in fear of immediate
serious bodily injury[.]" 18 Pa.C.S. § 3701(a)(1)(ii).
A defendant may be guilty of a crime even if she does not directly
commit the crime. Under the theory of accomplice liability, an accomplice is
legally accountable for the conduct of another person involved in committing
a crime. 18 Pa.C.S. § 306(b)(3). In particular, a defendant is an accomplice
to another person if the defendant "aids . . . such other person in planning or
committing [the crime.]" 18 Pa.C.S. § 306(c).
Turning to the facts of this case, as an initial matter, there is no dispute
that Appellant's friends committed a robbery because one friend of Appellant
held a baseball bat while standing in front of the Victim and the other friend
emptied the Victim's pockets, stealing a cellphone, wallet, approximately $184
in cash, car keys, and a vape box. The issue is whether Appellant aided her
friends and thus, was an accomplice to the robbery.
The evidence demonstrated that Appellant invited the Victim to her
house. While Appellant and the Victim stood in the kitchen, Appellant
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threatened the Victim by telling him that Appellant "is going to do something
to him so that he never messes with another woman again." Appellant then
called her friends to the kitchen, shouting "Now." When her friends came into
the kitchen, Appellant told the Victim to place his arms in the air. One friend
then stood in front of the Victim with a bat while the other friend stole the
Victim's personal items from his pockets. In light of Appellant's threat, her
calling in her friends, and her command that the Victim place his arms in the
air, the jury had sufficient evidence to infer that Appellant aided her friends
and thus, was an accomplice to the robbery. Accordingly, Appellant is not
entitled to relief on this claim.
Conspiracy to Commit Robbery
Appellant argues that sufficient evidence does not support her
Conspiracy to Commit Robbery conviction. She again contends that the
evidence simply demonstrated that she was "merely present at the scene and
associated with the perpetrators." Appellant's Br. at 12. We disagree.
A defendant is guilty of conspiracy with other persons to commit a crime
if with the intent of promoting or facilitating its commission, the defendant
"(1) agrees with such other . . . persons that they or one or more of them will
engage in conduct which constitutes such crime . . . ." 18 Pa.C.S. § 903(a).
As discussed above, Appellant invited the Victim to her house,
threatened him and then called her friends to rob the Victim. Appellant also
told the Victim to place his hands in the air while one friend stood in front of
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the Victim with a baseball bat and her other friend robbed the Victim. It is
from these facts that the jury could reasonably infer that Appellant entered
into an agreement with her friends to commit a robbery. Accordingly,
Appellant is not entitled to relief on this claim.
Judgment of Sentence affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 07/16/2019
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