Opinion
J-S18019-17 No. 598 EDA 2016
06-27-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. ERIC SHELLEY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Former Justice specially assigned to the Superior Court.
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. We affirm.
18 Pa.C.S. §§ 3701, 903, 6106, 6108, and 6105, respectively.
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 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. 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. 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?" Appellant again had his gun drawn.
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.
They were 25 feet apart at this time. See N.T., 12/8/15, at 54.
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.
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. 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:
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.
I. Whether the evidence was sufficient to sustain the verdict on the robbery charge?Appellant's Brief at 3.
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]?
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 arguments raised on appeal were fully amenable to review by the reviewing court). --------
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.
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 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?").
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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/27/2017
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