Commonwealth v. Jones

EAKIN, J.:

¶ 1 Larry Jones appeals from a judgment of sentence entered following his convictions for robbery of a motor vehicle, reckless endangerment, rape and involuntary deviate sexual intercourse. We affirm.

¶ 2 Police detectives Yuhouse and Bender were searching for a rapist using a sketch drawn with the victim’s assistance. The detectives saw appellant and noticed he closely resembled the sketch. When the detectives approached, appellant fled. Alfred Terry was standing up in the back of a nearby pickup truck when he saw appellant jump into the driver’s seat; he yelled at appellant, but appellant drove off with Terry still in the back of the truck. Terry was unable to escape because of the track’s speed, and was tossed around during appellant’s reckless flight, which finally ended when appellant rammed a police roadblock.

¶ 3 A jury found appellant guilty of the above crimes. In this timely appeal, appellant claims there was insufficient evidence to convict him of robbery of a motor vehicle because there was no proof he took the vehicle by use of force, intimidation or inducement of fear in the victim.

When we evaluate a challenge to the sufficiency of the evidence, we must de*798termine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Furthermore, a mere conflict in the testimony of the witness does not render the evidence insufficient, because “it is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence.”

Commonwealth v. Lytle, 444 Pa.Super. 126, 663 A.2d 707, 708 (1995) (citations omitted).

¶ 4 A person commits robbery of a motor vehicle when “he steals or takes a motor vehicle from another person in the presence of that person or any other person in lawful possession of the motor vehicle.” 18 Pa.C.S. § 3702(a). This definition has been restated by a panel of this Court:

[W]e believe that the legislature intended to define the crime of robbery of a motor vehicle, or carjacking, as the taking or exercise of unlawful control over a motor vehicle, from its lawful user, by force, intimidation or fear. The Commonwealth must therefore prove the following elements to establish the commission of this crime: (1) the stealing, taking or exercise of unlawful control over a motor vehicle; (2) from another person in the presence of that person or any other person in lawful possession of the vehicle; and (3) the taking must be accomplished by the use of force, intimidation or the inducement of fear in the victim.

Commonwealth v. George, 705 A.2d 916, 919-20 (Pa.Super.1998).

¶ 5 Clearly appellant took the truck in the presence of Terry, who was standing in the open bed of the truck, obvious to all. Appellant, in full flight, obviously did not care about the man in the back; given the testimony, the jury could find appellant saw and heard Terry, but stole the truck from him anyhow, forcing Terry to remain in the back. This establishes that the taking was knowing, and in the presence of the victim.

¶ 6 That Terry remained in the truck is not determinative, as the victim need not be separated from the vehicle for it to be taken “from” him. George, at 920. The victim’s physical distance from the stolen article is not the key to stealing, nor is there an element of permanent deprivation in this statute. Taking control of a car and driving it away is enough, whether the possessor is kidnapped or discarded; indeed, the circumstances here were more dangerous than if the victim had been left behind. He was not physically separated from the truck, but clearly possession and control of the truck was in the hands of the appellant, not Terry.

¶ 7 Appellant contends the Commonwealth did not establish the third element, added1 by George, supra. He claims there was no proof of force or intimidation, as he did nothing to or toward the victim. There is no claim the jury was *799not properly instructed on the point, and we find the circumstances allowed the jury to find Mr. Terry would not share appellant’s estimation of how his actions were perceived.

¶ 8 A pickpocket does not commit robbery, as the victim is unaware of the contact; the taking is thus not accomplished by force. Commonwealth v. Williams, 379 Pa.Super. 538, 550 A.2d 579, 582 (1988); Commonwealth v. Windell, 365 Pa.Super. 392, 529 A.2d 1115 (1987). A purse-snatcher, however, is guilty of robbery, as the victim is aware of the force. Commonwealth v. Brown, 506 Pa. 169, 484 A.2d 738 (1984); Commonwealth v. McNair, 376 Pa.Super. 604, 546 A.2d 688 (1988). There may be no force directed at the purse-snatch victim; indeed, the snatcher may not look at the victim any more than appellant looked at Terry, but the taking is still forcible.

¶ 9 Terry was aware of the taking, and it certainly was accomplished with as much force as accompanies a purse-snatching. That Terry didn’t carry the pickup on his arm does not make the taking any less forceful. Force is that of which the victim is aware and by reason of that force, is compelled to part with his property. Williams, supra. Such force is made out by these facts. We decline to minimize the seriousness of the offense because the victim sensibly did not manifest more than verbal resistance.

¶ 10 By any relevant definition, appellant had possession of the truck and the victim did not. Appellant took that possession forcibly, not by right or consent, not by stealth or trickery, not by discovering an abandoned truck. Finding the facts sufficient to meet the elements of the crime, we affirm the trial court’s decision.

¶ 11 Judgment of sentence affirmed.

¶ 12 BROSKY, J., files a dissenting opinion.

. The majority of the panel felt this third element was required because the title of the crime included the term "robbery.” As Judge Johnson notes in dissent, statutory headings are helpful, but the letter of a criminal statute should not be disregarded in pursuit of its spirit. Commonwealth v. Lopez, 444 Pa.Super. 206, 663 A.2d 746 (1995). The letter of this statute requires no force, only the presence of the possessor of the vehicle; as the present case makes clear, that in itself can be a significant danger which aggravates the crime. We will address the case, however, using the test set forth in George.