J-S23002-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
RONALD FLAMER,                            :
                                          :
                   Appellant              : No. 2044 EDA 2013

             Appeal from the Judgment of Sentence April 5, 2013,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0004863-2012

BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED MAY 05, 2015

       Ronald Flamer (“Flamer”) appeals from the judgment of sentence

entered following his convictions of robbery, conspiracy, and recklessly

endangering another person (“REAP”).1 Following our review, we affirm in

part and vacate in part.

       The trial court aptly summarized the facts underlying Flamer’s

convictions as follows:

             The incident giving rise to the charges in this case
             occurred on February 12, 2012, at a delicatessen
             located on 816 North 12th Street in the city of
             Philadelphia (“12th Street Deli”) around 8:45 P.M.
             The complainant … was walking down 12th Street
             toward Parrish Street when he noticed a gold Nissan
             Maxima that began to suspiciously slow down. There
             were three males in the vehicle whom were staring
             at him (Id. at 41:20-25). Upon sight of this behavior,
             White began to walk back home. However, the car


1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 2705.


*Retired Senior Judge assigned to the Superior Court.
J-S23002-15


            pulled up next to him. He then walked inside the
            12th Street Deli to try to avoid the situation.
            Nevertheless, [Flamer] and [his] co-Defendant,
            Lamar Person, got out of the car and immediately
            followed him into the deli. … They then both
            surrounded him, one on each side, and [Flamer] told
            the complainant to empty his pockets. [Flamer]
            proceeded to go through complainant’s pockets with
            both hands and ultimately took a five dollar bill, a
            pack of Newport 100 cigarettes, and a cell phone.
            [Flamer] angrily raised his voice and instructed
            Person to “pull out the ratchet” when he realized that
            the complainant had nothing more than those few
            items. The complainant testified that he understood
            that phrase to mean a “gun” in Philadelphia. When
            the complainant looked down, he saw Person holding
            what appeared to be the barrel of a black gun. The
            black object was pointed towards the complainant
            from Person’s waist. [Flamer] and co-Defendant left
            the 12th Street Deli when they finally realized that
            they took all the complainant had on him. The
            complainant went directly home, and his mother
            called the police.

            When the police arrived, the complainant spoke with
            Officer Joseph Gillespie about what had happened.
            Officer Gillespie put out a police flash with
            descriptions of the suspects. At or about the same
            time, [Flamer] and his co[-]conspirators [sic] were
            stopped for a traffic violation in a gold Nissan
            Maxima by Officer Robert Wuuller at Broad and
            Dauphin Street because there was no passenger side
            mirror on the vehicle. The description of the vehicle
            and the suspects matched [Flamer], his co[-
            ]conspirator, and the gold Nissan Maxima. The
            complainant then identified both [Flamer] and Person
            as the perpetrators of the robbery. Upon search of
            [the vehicle], pursuant to a search warrant for the
            vehicle, the police recovered a pack of Newport 100s
            and a black cell phone that was later identified as
            belonging to the complainant.

Trial Court Opinion, 8/13/14, at 2-3.



                                    -2-
J-S23002-15


      A jury found Flamer guilty of the offenses listed above. The trial court

denied Flamer’s post-sentence motion and subsequently sentenced him to

an aggregate term of fifteen to thirty years of incarceration. 2   This timely

appeal followed.

      Flamer presents three issues for our review, the first two of which

challenge the sufficiency of the evidence supporting his robbery and REAP

convictions.    When reviewing sufficiency of the evidence claims, “we must

determine whether the evidence admitted at trial, as well as all reasonable

inferences drawn therefrom, when viewed in the light most favorable to the

verdict winner, are sufficient to support all elements of the offense.”

Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (quoting

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011)).              When

performing this review, “we may not reweigh the evidence or substitute our

own judgment for that of the fact finder.” Id.

      Flamer first argues that the evidence was insufficient to support his

conviction of robbery as a first-degree felony.       Robbery is defined, in

relevant part, as follows:


               (a) Offense defined.--




2
  Specifically, the trial court sentenced Flamer to consecutive terms of ten to
twenty years on the robbery conviction and five to ten years on the
conspiracy conviction, and no further penalty on the REAP conviction. N.T.,
4/5/13, at 39-40.


                                        -3-
J-S23002-15


           (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 the intent to deprive the financial
              institution thereof.

                                    ***

           (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.A. § 3701(a)(1),(b).

     Flamer was convicted under subsection (a)(1)(ii), which requires that

in the course of committing the theft, the actor “threatens another with or



                                    -4-
J-S23002-15


intentionally puts him in fear of immediate serious bodily injury[.]”

18 Pa.C.S.A. § 3701(a)(1)(ii).3 Presently, Flamer argues that the evidence

was insufficient to support a finding that Flamer and/or his co-defendant

threatened, or intentionally placed the victim in fear of, immediate bodily

injury.     Flamer’s Brief at 16-20.    He argues essentially that because the

victim could not state unequivocally that what the co-defendant possessed

was a gun, “the proof offered is insufficient to establish beyond a reasonable

doubt the commission of § 3701(a)(1)(ii).” Id. at 18. We disagree.

      The     evidence,   viewed   in    the   light   most   favorable    to   the

Commonwealth, establishes that Flamer and his co-defendant surrounded

the victim while he was sitting down. N.T., 1/16/13, at 50. They stood so

close to the victim that he could not stand up or move.              Id.   Flamer

demanded that the victim empty his pockets.             Id. at 51.    The victim

responded that he did not have anything and held out the five dollars that

he had on his person. Id. at 52. Flamer then went through the pockets on

the victim’s coat and pants and discovered only a cellular phone and a

partial pack of Newport 100 cigarettes. Id.      In an aggravated tone of voice,

Flamer then told his co-defendant to “pull out the ratchet.” Id. at 53. The

victim understood “ratchet” to mean gun. Id. at 54. At that time, the co-



3
   “Serious bodily injury” is defined as “[b]odily injury which creates a
substantial risk of death or which causes serious, permanent disfigurement,
or protracted loss or impairment of the function of any bodily member or
organ.” 18 Pa.C.S.A. § 2301.


                                        -5-
J-S23002-15


defendant pulled out something that he had concealed on his hip, but kept it

close against his waist. Id. at 53, 55. The victim glanced at the object and

saw what looked like the barrel of a gun.4      Id. at 56.   With the object

exposed, Flamer asked the victim if he had anything else.         The victim

responded in the negative, and Flamer went through his pockets once more

before leaving the store with his co-defendant, as well as with the victim’s

phone, cigarettes and money. Id. at 57. The victim testified that he was

nervous during the encounter because “he wasn’t sure what was going to

happen.” Id. at 68.

      This evidence establishes that Flamer and his co-defendant physically

restricted the victim and brandished a gun while demanding that the victim

give them his possessions. We conclude that in this case, the displaying of a

gun while issuing demands is sufficient to establish that Flamer threatened

or intentionally placed the victim in fear of immediate serious bodily injury.

See 18 Pa.C.S.A. § 3701(a)(1)(ii). In arguing to the contrary, Flamer places

much emphasis on the fact that no gun was recovered during the search of

Flamer or the vehicle. Flamer’s Brief at 19-20. This does not negate the

evidence as set forth above, and therefore it is inconsequential to our

analysis.   The jury was free to give as much weight as it believed




4
  The victim testified that he did not keep looking at the object, opting
instead to “look in their eyes to kind of go with their body language to see
what was going to happen next.” N.T., 1/16/13, at 56.


                                    -6-
J-S23002-15


appropriate to the fact that no gun was recovered, and apparently, it found

it inconsequential, as well.

      Next, Flamer argues that the evidence was insufficient to support his

REAP conviction. To convict a defendant of REAP, the Commonwealth must

establish that the defendant “recklessly engage[d] in conduct which place[d]

or may place another person in danger of death or serious bodily injury.” 18

Pa.C.S.A. § 2705.     Flamer argues that “to sustain a conviction [for REAP],

the Commonwealth must prove that [Flamer] had an actual present ability to

inflict harm and not merely the apparent ability to do so.” Flamer’s Brief at

21. He contends that because the victim “never identified a gun definitively”

and “no weapon was ever recovered[,]” there was insufficient evidence of

“an actual, rather than theoretical condition of danger necessary to prove

[REAP].” Id. at 24. Flamer is correct, in that to support a REAP conviction,

conduct in question must create an actual, not merely theoretical or

perceived, danger. Commonwealth v. Cancilla, 649 A.2d 991, 994 (Pa.

Super. 1994) (“Danger, and not merely the apprehension of danger, must

be created. Therefore … (“[18 Pa.C.S.A.] § 2705 retains the common law

assault requirement of actual present ability to inflict harm.”) (quoting

Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa. Super. 1978)).

However, his argument ignores the fact that the jury was free to credit the

victim’s testimony and conclude that his co-conspirator possessed a gun and

threatened him with it; accordingly, it fails.



                                      -7-
J-S23002-15


     Flamer also contends that because of this requirement of “actual”

harm, “the pointing of an unloaded weapon, without more, does not

constitute [REAP].”   Id. at 22 (quoting Commonwealth v. Gouse, 429

A.2d 1129, 1131 (Pa. Super. 1981)).      The Commonwealth counters this

argument by pointing out that there was no evidence that the gun was

unloaded, and contends that “[Flamer’s] sufficiency challenge does not allow

him to draw a contrary conclusion.” Commonwealth’s Brief at 11. Although

the Commonwealth is correct that there is no evidence of record that the

gun was loaded or not loaded, under the facts of this case, to establish the

existence of an actual danger of death or serious bodily injury, the

Commonwealth had to establish that the gun was loaded to secure a

conviction of REAP.   See Commonwealth v. Smith, 437 A.2d 757, 759

(Pa. Super. 1981) (holding that REAP conviction based on threat of shooting

requires proof that the firearm was loaded).5    Because there is no such

evidence, the conviction cannot stand.

     Finally, Flamer argues that the trial court erred in denying his request

to charge the jury on robbery graded as a second-degree felony. Flamer’s


5
  As acknowledged by Flamer, it is possible to be convicted of REAP for
brandishing an unloaded weapon when other circumstances are present that
create a real possibility for danger. For example, this Court has held that
“such a danger could exist where the actor points an unloaded gun … at a
person driving a passenger-filled car at fifty miles per hour on a public
highway, since the requisite danger comes from the loss of vehicular control
in such a panic situation.” Commonwealth v. Trowbridge, 395 A.2d
1337, 1341 n.14 (Pa. Super. 1978). There is no evidence of any such
additional circumstances in this case.


                                   -8-
J-S23002-15


Brief at 24. The record reveals that Flamer did not object to the trial court’s

failure to include this point at the time it charged the jury. N.T., 1/17/13, at

184. Accordingly, it has been waived. See Commonwealth v. Sanchez,

82 A.3d 943, 978 (Pa. 2013) (holding that even where trial court denies

request for specific charge at charging conference, party must make a

specific objection to its omission when charge is given to preserve the issue

for appeal).

      Even if Flamer had not waived this issue, it would not prevail. 6 Flamer

argues that he was entitled to a charge on robbery as a second-degree

felony because it is a “lesser included offense [of first-degree felony robbery]

for which the record contained evidentiary support.” Flamer’s Brief at 28.7

This argument is premised on Flamer’s assertion that because the victim did

not positively identify the object in the co-defendant’s hand as a gun, the

jury could reasonably conclude that they did not possess a gun and

therefore did not threaten or intend to put the victim in fear of serious bodily

harm, as is required for a conviction of robbery as a first degree felony. Id.

We rejected precisely the same argument in Commonwealth v. Thomas,


6
   “In deciding whether a trial court erred in refusing to give a jury
instruction, we must determine whether the court abused its discretion or
committed an error of law.” Commonwealth v. Clouser, 998 A.2d 656,
658 (Pa. super. 2010).
7
  We note that the relevant distinction here is that first-degree felony
robbery requires a finding that the actor threaten or instill the fear of serious
bodily injury, while second-degree felony robbery requires only the intent to
cause or instill fear of bodily injury. See 18 Pa.C.S.A. § 3701(a)(1)(ii), (iv).


                                      -9-
J-S23002-15


546 A.2d 116 (Pa. Super. 1988). In that case, the defendant robbed a fast

food restaurant. In the course of doing so, he held a pointed object under

his shirt. As the defendant was collecting money from the registers, it was

revealed that the object under his shirt was a door lock. He was convicted

of robbery graded as a first-degree felony.         In a PCRA petition, the

defendant argued that his trial counsel was ineffective for failing to request a

charge to the jury on robbery as a second-degree felony because it is a

lesser-included offense. After considering the definitions of these crimes, we

agreed with the defendant that second-degree robbery is a lesser-included

offense of first-degree robbery, but we rejected his claim that this alone

entitled him to a charge on the offense:

            However, [the defendant] is not automatically
            entitled to have the jury instructed on second degree
            robbery simply because that charge constitutes a
            lesser included offense of the first degree robbery
            charge. A defendant is entitled to such an instruction
            only where the evidence in the record would permit
            the jury to find, rationally, the defendant guilty of
            the lesser included offense but not the greater
            offense. Commonwealth v. Wood, 475 A.2d 834
            ([Pa. Super.] 1984); Commonwealth v. Sirianni,
            428 A.2d [629,] 633 [Pa. Super. 1981].

            [The defendant] asserts that he was entitled to such
            an instruction because the evidence supported a
            finding that appellant threatened the McDonald’s
            employees with “immediate bodily injury” but not
            with “immediate serious bodily injury.” According to
            [the defendant], since [he] carried only a lock, which
            cannot cause serious bodily injury, the victims were
            never placed in fear of serious bodily injury. … .




                                     - 10 -
J-S23002-15


          [The defendant’s] focus on the true nature of the
          hidden object and on the state of mind of the victims
          is misplaced. Rather, the proper focus under the
          statute in determining the type of bodily harm
          threatened is on the defendant's intent and actions.
          Commonwealth v. Morton, 512 A.2d 1273 ([Pa.
          Super.] 1986); Commonwealth v. Mays, 375 A.2d
          116 ([Pa. Super.] 1977). In simulating the
          possession of a gun, [the defendant] was clearly
          aiming to instill in his victims the highest degree of
          fear. Faced with a deadly weapon, a victim fears,
          not just that he or she may be injured during the
          robbery, but that his or her very life is in danger.
          [The defendant] did not simply intend that the
          victims' fear of some bodily injury would prevent
          resistance; rather, he relied on the threat of a deadly
          weapon to insure compliance.

          [The defendant’s] crime is not made less serious by
          the fact that he did not possess a gun, but was only
          simulating one. Commonwealth v. Hurd, [] 407
          A.2d 418, 420 ([Pa. Super.] 1979) (defendant
          placing hand in pocket and pointing at victim shows
          that defendant intended to put victim in fear of
          serious bodily harm). Neither is the harm intended
          reduced to mere bodily harm simply because the
          victims realized before [the defendant] escaped (but
          after [he] began taking the money), that [he] did
          not possess a gun. The proper question is whether
          the threat intended or posed by [the defendant] was
          calculated to inflict fear of serious bodily injury.
          Commonwealth v. Mays, [] 375 A.2d at 118. The
          threat posed by the appearance of a gun is
          calculated to inflict fear of deadly, not just mere
          bodily, injury. This threat enabled [the defendant] to
          proceed with the theft. … Moreover, the statute
          instructs that in determining the grade of the felony
          we focus on the intent or act of the defendant and
          not the subjective state of mind of the victim. [The
          defendant] would not have been exonerated of the
          first degree felony even if his victims refused to take
          his threat seriously. Hurd, 407 A.2d at 420; Mays,
          375 A.2d at 118.



                                  - 11 -
J-S23002-15



            The statute itself, by dividing the degrees of robbery
            into gradations of possible violence, demands that
            the jury make a decision as to the degree of violence
            that the defendant intended or used in the
            commission of the crime. In distinguishing between
            bodily injury and serious bodily injury, the legislature
            recognized that the amount of force used or
            threatened on a person during a robbery deserved
            separate     treatment     and    penalty,   with    the
            punishment proportionate to the amount of violence
            threatened or used. Commonwealth v. Brown, []
            484 A.2d 738, 741 ([Pa.] 1984). It would be both
            irrational and contrary to the aims of the statute for
            the jury to be permitted to find [the defendant], who
            calculated that his victims would be in mortal fear of
            a deadly weapon, guilty only of the lesser offense of
            threatening mere bodily injury, but not guilty of
            threatening serious bodily injury. [The defendant]
            was therefore not entitled to have the jury instructed
            on the charge of second degree robbery. See []
            Sirianni, [] 428 A.2d at 633 (where firearm
            involved, it would not have been reasonable for the
            jury to infer the intent to cause mere bodily injury
            from the fact that no serious bodily injury was
            caused; defendant not entitled to jury instruction on
            lesser    included    offense    of   simple   assault).
            Instructions should invite the jury to arrive at a
            rational, not an irrational, conclusion.

Thomas, 546 A.2d at 118-19.

      Similarly to the situation in Thomas, Flamer’s argument for the

second-degree robbery instruction was premised on his assertion that the

evidence would allow a finding that he did not actually possess a gun.

However, as recounted above, whether he actually possessed a gun is not

the salient inquiry; we focus, instead, on whether the actor intended to instill

fear of serious bodily injury.   Even if Flamer and his co-defendant did not



                                     - 12 -
J-S23002-15


possess a gun, it is undisputed that they simulated possession of a gun.

Thus, as in Thomas, we conclude that the “threat intended or posed by

[Flamer] was calculated to inflict fear of serious bodily injury,” and the jury

could not have rationally concluded otherwise. Accordingly, we find no error

in the trial court’s refusal to give the requested charge.

      In sum, we found merit to only one of Flamer’s claims.                Having

concluded that the evidence was insufficient to support Flamer’s REAP

conviction, we vacate it.         Because no penalty was imposed on this

conviction, our action has not disturbed the trial court’s sentencing scheme

and there is no need to remand for resentencing. Cf. Commonwealth v.

Barton-Martin, 5 A.3d 363, 370 (Pa. Super. 2010) (providing that where

vacating a sentence disrupts a trial court’s overall sentencing scheme, this

Court will remand to the trial court for resentencing).

      Judgment    of   sentence    affirmed    in   part   and   vacated   in   part.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2015




                                      - 13 -
