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                              2016 PA Super 267

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

ATO LLOYD,

                         Appellant                  No. 3500 EDA 2015


         Appeal from the Judgment of Sentence November 4, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0002915-2015
                         CP-51-CR-0002916-2015


BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

OPINION BY BOWES, J.:                          FILED NOVEMBER 29, 2016

     Ato Lloyd appeals from the judgment of sentence of eleven to twenty-

three months incarceration plus two years probation imposed following his

convictions for robbery and resisting arrest. We affirm.

     The Commonwealth adduced the following facts at trial. In the early

morning hours of December 2, 2014, Appellant approached a valet-parking

booth situated in front of a parking garage attended by Ahmed Indris.

Appellant feigned a need for aid from Mr. Indris and entreated him to unlock

the booth door. Mr. Indris directed Appellant to a nearby fire station, but

Appellant persisted.    Mr. Indris eventually succumbed to Appellant’s pleas

and opened the door to the booth. Appellant then forced his way inside the

booth, knocking Mr. Indris to the side with his body. While inside the booth,

* Former Justice specially assigned to the Superior Court.
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Appellant obtained a plastic garbage bag and filled it with keys from vehicles

parked in the garage. Mr. Indris, fearing for his safety, retreated to the fire

department where a fireman contacted police on his behalf.               Shortly

thereafter, police officers apprehended Appellant.       After a brief scuffle,

during which two officers were injured, police detained Appellant.

      Based on the foregoing, Appellant was charged with theft by unlawful

taking, receiving stolen property, and robbery at action number 2915-2015.

At action number 2916-2015, Appellant was charged with simple assault,

recklessly endangering another person, and resisting arrest.         Following a

bench trial, the court found Appellant guilty of robbery graded as a third-

degree felony and of resisting arrest. He was acquitted of all other charges.

The trial court imposed a sentence of eleven to twenty-three months

incarceration for robbery, followed by two years probation for resisting

arrest.   Appellant filed a timely appeal and complied with the trial court’s

directive to file a Rule 1925(b) statement of errors complained of on appeal.

The court then authored its Rule 1925(a) opinion. This matter is now ready

for our consideration.

      Appellant raises a single issue for our review: “Was not the evidence

insufficient to support a conviction for robbery as a felony of the third degree

where there was no evidence of a taking from the person of the complainant

or that the requisite force was employed?” Appellant’s brief at 3.




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      In reviewing claims challenging the sufficiency of the evidence, our

standard of review is well-settled:

      [W]e examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury’s finding of all the elements of the offense beyond a
      reasonable doubt. The Commonwealth may sustain its burden
      by means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).

      Appellant asserts there was insufficient evidence to convict him of

robbery as defined by 18 Pa.C.S. § 3701. In pertinent part, 18 Pa.C.S. §

3701 reads:

      (a)   Offense defined. –

            (1) A person is guilty of robbery if, in the course of
               committing a theft, he:

                 (i) inflicts serious bodily injury upon another;

                (ii) threatens another with or intentionally puts him in
                     fear of immediate serious bodily injury;

                (iii) commits or threatens immediately to commit any
                      felony of the first or second degree;

                (iv) inflicts bodily injury upon another or threatens
                     another with or intentionally puts him in fear of
                     immediate bodily injury;

                (v) physically takes or removes property from the
                    person of another by force however slight; or

                (vi) takes or removes the money            of a financial
                     institution without the permission    of the financial
                     institution by making a demand of     an employee of
                     the financial institution orally or   in writing with

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                     the intent to deprive the financial institution
                     thereof.

            (2) An act shall be deemed “in the course of committing
               a theft” if it occurs in an attempt to commit theft or in
               flight after the attempt or commission.

            ...

      (b)   Grading. –

            (1) Except as provided under paragraph (2), robbery
               under subsection (a)(1)(iv) and (vi) is a felony of the
               second degree; robbery under subsection (a)(1)(v) is a
               felony of the third degree; otherwise it is a felony of the
               first degree.

18 Pa.C.S. § 3701.

      Appellant contends that the Commonwealth failed to prove beyond a

reasonable doubt that he “removed property from the person of another by

force however slight.” Id. at (a)(1)(v). He notes that he did not take the

keys from Mr. Indris’s immediate person, but from the wall of the valet

booth. Appellant observes that no struggle between himself and Mr. Indris

occurred while he was removing the keys. Therefore, Appellant continues,

the Commonwealth did not prove that he utilized force in obtaining the keys.

      In support of his position, Appellant relies on Commonwealth v.

Moore, 494 A.2d 447 (Pa.Super. 1985). In Moore, the defendant entered a

supermarket, retrieved a steak from the meat counter, and placed it under

his jacket. As Moore attempted to leave, a plainclothes store security officer

who had witnessed Moore conceal the steak identified himself to the



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defendant.    Moore was apprehended while attempting to flee.            The

Commonwealth charged Moore with, inter alia, third-degree felony robbery,

and subsequently, he was found guilty of that crime.

      On appeal, Moore argued, in part, that the evidence was insufficient to

sustain his conviction for robbery graded as a third-degree felony since §

3701(a)(1)(iv) requires that the theft of property must be from the person

of another. This Court agreed with the defendant. We found that a contrary

perspective “would lead to the absurd result that a robbery would result

every time a retail theft is observed by a store security guard or employee.”

Id. at 450. We reasoned that such an occurrence was not in keeping with

robbery as contemplated under § 3701, stating “[r]etail theft cannot become

robbery merely because someone to whom property is entrusted observes a

theft of that property.” Id.

      Nevertheless, even in determining that a robbery pursuant to § 3701

had not occurred under the facts presented in Moore, supra, we found that

case law pertaining to common law robbery was, in fact, applicable to our

current statute. See Commonwealth v. Brown, 484 A.2d 738 (Pa. 1984)

(finding that § 3701 reinstated the two common law standards of robbery

under one crime).    We observed that a robbery may be committed by a

taking from the presence of another as well as from the person’s body,

declaring “common sense dictates that a person need not be in actual




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physical possession of property to have it taken from his person[.]” Moore,

supra, at 450.1

       When viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, we find it sufficient to sustain the trial

court’s finding that Appellant took the keys from Mr. Indris’s person.      Mr.

Indris was entrusted with protecting the keys at issue.       In order to gain

access to those keys, Appellant deceived Mr. Indris into unlocking and

opening the valet booth, and physically pushed past him. Despite fearing for

his safety, Mr. Indris initially remained in the booth and attempted to

dissuade Appellant from taking the keys.         Unlike the security guard in

Moore, Mr. Indris was not a mere observer of the crime in question.

Rather, Mr. Indris had exercised dominion, control, and possession over the

keys when Appellant took them in his presence.            Consistent with our

standard of the law in Moore, these facts were sufficient to establish that

Appellant took property from Mr. Indris’s person.

       Appellant’s argument that he did not rely on force in taking the keys

since he did not struggle with Mr. Indris, nor did Mr. Indris retaliate, is also

misguided. It is well-settled that “[a]ny amount of force applied to a person

____________________________________________


1
  Similarly, in Commonwealth v. Shamberger, 788 A.2d 408, 418
(Pa.Super. 2001), we found that property taken in a victim’s presence, and
under his immediate control, constituted theft from “the person” for
purposes of grading under the theft statute. See 18 Pa.C.S. § 3903.



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while committing a theft brings that act within the scope of the robbery

statute.”   Commonwealth v. Bedell, 954 A.2d 1209, 1213 (Pa.Super.

2008) (citation omitted). In addition, “the degree of force is immaterial, so

long as it is sufficient to separate the victim from his property in, on or

about his body.” Id. (citation omitted).

      When viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, we find it supports a finding that

Appellant took the keys with force.     Appellant gained entry to the valet-

booth by using his body to physically remove Mr. Indris from the entrance.

In so doing, Appellant forcefully separated Mr. Indris from the keys under his

protection. Bedell, supra. Thus, Appellant is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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