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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMAL WILLIAMS
Appellant No. 1708 EDA 2016
Appeal from the Judgment of Sentence May 18, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0011845-2015
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 10, 2017
Appellant, Jamal Williams, appeals from the judgment of sentence
imposed after the trial court found him guilty of robbery, a felony of the
third degree,1 and attempted theft by unlawful taking.2 Appellant claims the
evidence was insufficient to sustain his robbery conviction because he did
not take or remove property from the victim. We reverse the robbery
conviction, vacate the judgment of sentence, and remand this case for
resentencing.
The trial court summarized the evidence presented at trial as follows.
On October 19, 2015, Arneatha Branch-Chenery, a 77-
year old woman, was at Beneficial Bank at 6401 Woodland
Avenue in Philadelphia withdrawing money from her
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3701(a)(1)(v).
2
18 Pa.C.S. § 901(a).
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account. She observed [Appellant] standing at the exit
door. Upon completing her transaction and putting her
cash away, Ms. Branch exited the bank through that door
and headed in the direction of her parked car. [Appellant]
then approached Ms. Branch from behind, with his hands
in his pockets, and demanded money from her. Ms.
Branch was fearful that [Appellant] was concealing a
weapon in his pocket. [However, Ms. Branch testified she
never saw a weapon. Appellant never put his hands on
Ms. Branch, nor did Appellant lunge at her. There was
about two to three feet between Appellant and Ms.
Branch.] Ms. Branch told [Appellant] to get away from her
and she went back into the bank. [Appellant] turned
around and followed her back into the bank.
Once inside the bank, Ms. Branch told a teller about the
incident. [Appellant] had returned to his position at the
door. The teller told her supervisor, who then called the
police. Officer Mosel[e]y[3] #2500 testified that he
responded to the radio call for assistance at Beneficial
Bank. Upon arriving at the scene, Officer Mosel[e]y spoke
with Ms. Branch, who was visibly shaken up. Ms. Branch
reported to Officer Mosel[e]y that she completed her
transaction at the bank and while on her way out, a
gentleman inside the bank approached her and demanded
money. Ms. Branch then gave a statement to Detective
[Matthew] Carey and identified [Appellant] in a photo
array.
Trial Ct. Op., 10/20/16, at 1-2 (record citations and footnotes omitted).
Following a nonjury trial, the trial court found Appellant guilty of
robbery and attempted theft. On May 18, 2016, the trial court sentenced
Appellant on the robbery charge to one-and-one-half to three years’
imprisonment followed by three years’ probation, with no further penalty for
attempted theft.
3
Officer Moseley’s first name is not apparent in the record.
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Appellant timely appealed from the judgment of sentence, and both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following question for review:
Was not the evidence insufficient to support a conviction
for robbery as a felony of the third degree (18 Pa.C.S. §
3701(a)(1)(v)), where there was no evidence that
anything was taken from the person of the complainant?
Appellant’s Brief at 3.
Appellant argues there is insufficient evidence to sustain his conviction
for robbery under section 3701(a)(1)(v) because the Commonwealth failed
to prove a taking or removal of property from the victim’s person. We
agree.
When reviewing a challenge to the sufficiency of the evidence,
[t]he standard we apply . . . 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 credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
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Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015),
appeal denied, 138 A.3d 4 (Pa. 2016) (citation omitted).
The Crimes Code provides: “[a] person is guilty of robbery if, in the
course of committing a theft, he . . . (v) physically takes or removes
property from the person of another by force however slight . . . .” 18
Pa.C.S. § 3701(a)(1)(v). “Force however slight” occurs when the victim is
actually compelled to part with the conscious control of her property. See
Commonwealth v. Brown, 484 A.2d 738, 741-42 (Pa. 1984) (grabbing
purse from victim’s shoulder constitutes force).
Two decisions illustrate the element of “physically tak[ing] or
remov[ing] property from the person of another[.]” See Commonwealth
v. Moore, 494 A.2d 447, 449 (Pa. Super. 1985); Commonwealth v.
Lloyd, 151 A.3d 662, 664 (Pa. Super. 2016); 18 Pa.C.S. § 3701(a)(1)(v).
In Moore, a grocery store security officer witnessed the defendant take a
steak from the meat counter. Moore, 494 A.2d at 448. The defendant
argued that, because robbery requires a theft of property from the person of
another, there was insufficient evidence to sustain his conviction. Id. at
449. This Court agreed and reversed the robbery conviction, reasoning that:
“[I]n interpreting the phrase ‘taking from the person of another’ under
section 3701(a)(1)(v), we are aware that we are bound to accept the plain
meaning of a statute and are not free to discard that plain meaning to
achieve some desired result.” Id. (citation omitted).
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In Lloyd, the defendant was convicted under section 3701(a)(1)(v) for
pushing past a parking attendant and taking car keys from the wall of a
parking garage valet-booth. Lloyd, 151 A.3d at 664-65. Citing Moore, the
defendant argued that the evidence was insufficient because he did not take
the keys from the parking attendant’s person but rather the wall of the
valet-booth. Id. at 664-65. This Court held that, unlike the security officer
in Moore, the parking attendant was not a mere observer of the crime, but
instead had exercised dominion and control over the keys when the
defendant used force to take them away. Id. at 665. Therefore, we
affirmed the defendant’s conviction under section 3701(a)(1)(v). Id. at
666.
In this case, the Commonwealth failed to prove the elements of force
or “tak[ing] or remov[ing].” See 18 Pa.C.S. § 3701(a)(1)(v). Appellant
never touched the victim, let alone removed the victim’s money from her
person or control. See Lloyd, 151 A.3d at 665. The victim refused to
succumb to Appellant’s demands and told Appellant to get away from her.
The fact that Appellant put his hands in his pockets did not establish “force
however slight,” as it did not compel the victim to hand over her money.
See Brown, 484 A.2d at 741-42. Thus, finding the evidence sufficient
would be wholly inconsistent with the language and purpose of section
3701(a)(1)(v). See Moore, 494 A.2d at 449-50.
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Because we reverse the conviction for robbery, we have upset the trial
court’s sentencing scheme and the case must be remanded for resentencing
on attempted theft. See Commonwealth v. Wilson, 67 A.3d 736, 745
n.11 (Pa. 2013).
Conviction for robbery reversed. Judgment of sentence vacated. Case
remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2017
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