J. A01010/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
JAMES MILLER,                           :         No. 2017 WDA 2013
                                        :
                        Appellant       :


           Appeal from the Judgment of Sentence, July 1, 2013,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0006742-2012


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 11, 2015

      James Miller appeals from the judgment of sentence of July 1, 2013,

following his conviction of two counts of robbery. We affirm.

      The facts of this case have been aptly summarized by the trial court as

follows:

           It was mid-afternoon on May 2, 2012 at the First
           Niagara Bank branch on Murray Avenue in the
           Squirrel Hill section of the City of Pittsburgh. A man
           suddenly appears at the teller window. It was a bit
           startling.    He is wearing a black jacket and is
           carrying a black satchel. His overall appearance is
           “very intimidating” to the teller. This person is 3 feet
           away. A note is placed on the counter in front of the
           teller. “Robbery. Calm,” is what the teller sees.
           While the teller could not see this person’s hands or
           any weapon, his impression was there may be
           “a gun.” The teller unlocked his money drawer and
           began to take money out. He placed it on the
           counter. The person took this collection of money
           and placed it in his satchel. He did so with only one
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            hand, leaving the other out of sight. It was not
            enough money. “More, More” is the command. The
            teller unlocked his 2nd drawer, removed the money
            inside it and placed this stack on the counter. The
            person grabbed this collection of bills, put it inside
            his satchel and left the bank. All total, [appellant]
            walked out with $2,461.

Trial court opinion, 3/27/14 at 3 (citations to the transcript omitted).

      Following a jury trial held June 25-27, 2013, appellant was found

guilty of two counts of robbery in violation of 18 Pa.C.S.A. § 3701(a)(1)(ii)

and (vi).   On July 1, 2013, appellant was sentenced to a mandatory

minimum sentence of 10 to 20 years’ incarceration on Count 1, robbery

under Subsection (a)(1)(ii). Appellant was also ordered to make restitution

of $2,461. There was no further penalty imposed at Count 2, robbery under

Subsection (a)(1)(vi).     Timely post-sentence motions were denied by

operation of law on November 25, 2013. A timely notice of appeal was filed

on December 20, 2013. On January 6, 2014, appellant was ordered to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.,

Rule 1925(b), 42 Pa.C.S.A., by January 30, 2014.              Appellant timely

complied, and the trial court filed a Rule 1925(a) opinion.

      Appellant has raised the following issues for this court’s review:

            1.    WHETHER THE TRIAL COURT ERRED IN
                  HOLDING THAT THE EVIDENCE PRESENTED AT
                  TRIAL WAS SUFFICIENT TO SUPPORT THE
                  GUILTY VERDICT AS TO ROBBERY UNDER
                  18 Pa.C.S. § 3701(a)(1)(ii)?

            2.    WHETHER THE TRIAL COURT ERRED IN
                  HOLDING THAT THE GUILTY VERDICT AS TO


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                   ROBBERY UNDER 18 Pa.C.S. § 3701(a)(1)(ii)
                   WAS NOT AGAINST THE WEIGHT OF THE
                   EVIDENCE?

            3.     WHETHER THE TRIAL COURT ERRED IN
                   HOLDING    THAT  THE    FACT    OF  THE
                   DEFENDANT’S PRIOR CONVICTION, WHICH
                   RESULTED IN A MANDATORY SENTENCE
                   PURSUANT TO 42 Pa.C.S. § 9714, NEED NOT
                   HAVE BEEN PRESENTED TO THE JURY?

Appellant’s brief at 5.

            When reviewing a claim challenging the sufficiency of
            the evidence, we apply the following standard:

                   [W]hether 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 the credibility of witnesses
                   and the weight of the evidence produced,


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                is free to believe all, part or none of the
                evidence.

          Commonwealth v. Bullick, 830 A.2d 998, 1000
          (Pa.Super.2003)  (quoting   Commonwealth       v.
          Gooding, 818 A.2d 546, 549 (Pa.Super.2003),
          appeal denied, 575 Pa. 691, 835 A.2d 709 (2003)).

Commonwealth v. Jannett, 58 A.3d 818, 819-820 (Pa.Super. 2012).

          Robbery is defined, in relevant part, as follows:

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

                                      ***

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

                                      ***

                (vi)   takes or removes the money of
                       a financial institution without
                       the permission of the financial
                       institution[Footnote 2] by making
                       a demand of an employee of the
                       financial instruction orally or in
                       writing with the intent to
                       deprive the financial institution
                       thereof.

                                  “Financial institution”
                       [Footnote 2]
                       is defined as “a bank, trust
                       company, savings trust, credit
                       union or similar institution.”
                       18 Pa.C.S.A. § 3701(a)(3).

          18 Pa.C.S.A. § 3701(a)(1)(ii), (vi). Robbery under
          subsection (ii) is a felony of the first degree; robbery
          under subsection (vi) is a felony of the second
          degree. Id. at § 3701(b). Further, “[s]erious bodily
          injury” is defined as “[b]odily injury which creates a


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              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.

Id. at 820.

              The evidence is sufficient to convict a defendant of
              robbery under this section “if the evidence
              demonstrates aggressive actions that threatened the
              victim’s safety.” Commonwealth v. Hansley, 24
              A.3d 410, 416 (Pa.Super.2011), appeal denied,
              613 Pa. 642, 32 A.3d 1275 (2011). The court must
              focus “on the nature of the threat posed by an
              assailant and whether he reasonably placed a victim
              in fear of immediate serious bodily injury.” Id.
              (citations omitted). Additionally, this Court has held
              that the threat need not be verbal. Id.

Id. at 821-822.

      Appellant    argues   that   the    testimony   proved   the   bank   teller,

Earl Matthews (“Matthews”), was, in his words, “frightened”; however, the

Commonwealth failed to prove that appellant threatened him with or

intentionally placed him in fear of “immediate serious bodily injury,” as

required to sustain a conviction under 18 Pa.C.S.A. § 3701(a)(1)(ii).

According to appellant, the only evidence adduced by the Commonwealth

was that Matthews, who was physically separated from appellant by a

barrier, subjectively felt threatened by appellant’s actions. (Appellant’s brief

at 12.) Appellant did not brandish a weapon or verbally threaten Matthews

with physical injury. The note said only that Matthews should remain calm.

While Matthews testified that he thought appellant might have a gun

because he could not see his hands, there was no evidence that appellant


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was intentionally trying to give that impression, e.g., by concealing his hand

in a paper bag or making a gun-like gesture inside his coat pocket.

Appellant gave no verbal indication he had a weapon of any kind.

      Although this is a close case, we find Commonwealth v. Swartz, 484

A.2d 793 (Pa.Super. 1984), to be on point.         The facts of Swartz are

remarkably similar to the instant case:

           The    uncontested    and    unimpeached evidence
           established the following facts. Appellant walked
           into a branch office of York Bank and Trust. He was
           wearing reflective sun glasses. Appellant went up to
           a teller, handed her a paper bag, and said “Fill the
           bag.” He further said “Quick” and when the teller did
           so slowly, he told her “Faster.” After an amount of
           money had been placed in the bag, appellant
           grabbed the bag and then departed.        The teller
           stated she was “very scared” and frightened.
           Appellant never claimed to be armed, never
           expressly threatened the teller, and was not
           observed with a weapon or even his hand in his
           pocket.

Id. at 794 (emphasis in original).    This court in Swartz found that the

above evidence was sufficient to convict the appellant of robbery under

Subsection (a)(1)(iv), inflicting bodily injury upon another or threatening

another with or intentionally putting him in fear of immediate bodily injury.

In so holding, we relied on case law interpreting Subsection (a)(1)(ii),

including Commonwealth v. Davis, 459 A.2d 1267 (Pa.Super. 1983):

           The defendant in Davis was convicted under
           § 3701(a)(1)(ii) of robbing a pipe store which was
           open all night. He was observed entering the shop
           through a small window through which business was
           transacted. The defendant told an employee of the


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            shop to: “Get back, Get back.” This court held that
            Davis’ “mode of entry and his warnings . . . certainly
            were aggressive actions which implicitly carried with
            them a threat of imminent bodily harm . . . .” When
            applied to the facts at hand, Davis requires that we
            find that the current evidence showed beyond a
            reasonable doubt that appellant, contrary to his
            claim, intended to put the teller in fear.           A
            sun-glassed individual, who approaches a bank teller
            with a paper bag and commands that the bag be
            filled with currency and exhibits extreme impatience
            with a teller creating an atmosphere of extreme
            tension, can be reasonably presumed to intend to
            inflict fear into the mind of the teller within the
            meaning of § 3701(a)(1)(iv).

Swartz, 484 A.2d at 794-795 (footnote omitted).

     Matthews testified that appellant was “very intimidating in terms of his

personal appearance.” (Notes of testimony, 6/25-27/13 at 192.) Matthews

explained why he was fearful of appellant: “Because of the intimidation, the

look, the stare. I never had anyone that close up on me that quickly. It’s

kind of like you -- You’re looking away, and then all of a sudden someone

appears there.” (Id. at 197.) “It was a definite scowl and mean look as if,

We need to get this done and do it right now.”      (Id. at 206.)     Matthews

testified that he felt threatened by appellant’s facial expression.    (Id. at

210-211.)   Matthews also testified that he thought appellant could have

been armed.    (Id. at 193.)    Matthews explained that he could not see

appellant’s hands until he removed the money from the counter, and then

appellant used only one hand. (Id. at 196.)




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      We determine this evidence was sufficient for the jury to find appellant

guilty of robbery as a first-degree felony under Subsection (a)(1)(ii). While

there was no actual threat or display of force, appellant’s aggressive

mannerisms, including quickly moving towards the bank counter, scowling at

Matthews, and demanding “More, More,” put Matthews in reasonable fear of

immediate serious bodily injury. As in Davis, supra, appellant intentionally

created “an atmosphere of extreme tension.”

      Appellant   also    argues   that   the    facts   of   this   case   implicate

Subsection (a)(1)(vi), robbery of a financial institution, not (a)(1)(ii).

(Appellant’s brief at 17.) According to appellant, allowing the jury verdict to

stand would make Subsection (a)(1)(vi) superfluous because in virtually

every situation where (a)(1)(vi) would apply, the defendant could be

convicted under (a)(1)(ii) also.     (Id.)      Appellant argues that a victim’s

subjective reaction to a robbery should not be the sole distinguishing factor

between a first-degree felony under (a)(1)(ii) and a second-degree felony

under (a)(1)(vi). (Id.)

      We addressed the identical argument in Jannett, supra, where the

unarmed defendant handed a note to the bank teller, indicating that he had

a gun and not to activate any alarms or give him any marked bills. Jannett,

58 A.3d at 819. The appellant argued that the facts of his case, where he

was unarmed and merely passed a note to the bank teller, more closely

corresponded to Subsection (a)(1)(vi). We rejected this argument, stating,



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              While Appellant is correct that his crimes may also
              satisfy the elements of Section 3701(a)(1)(vi), he
              offers no support for his assertion that if a defendant
              could be prosecuted under multiple subsections, that
              the defendant is entitled to proceed under a lesser
              charge or the subsection that “most closely aligns”
              with his crime.

Id. at 820-821.      We noted that Subsection (a)(1)(vi) was added to the

robbery statute in May 2010; however, the Legislature did not amend or

delete the previous forms of robbery, including Subsection (a)(1)(ii): “There

was no indication that the Legislature intended for subsection (vi) to displace

subsection (ii) in cases in which facts proving a first-degree felony had been

clearly established but had taken place in a financial institution.” Id. at 821

(quoting the trial court opinion, 7/18/12 at 5). Therefore, appellant could be

convicted of both (a)(1)(ii) and (a)(1)(vi).

      Next, appellant challenges the weight of the evidence to support his

conviction.    Again, appellant argues that there was no evidence that he

displayed a weapon, was in possession of a weapon, made a physical or

verbal threat, raised his voice, or intended to harm the bank teller.

(Appellant’s brief at 18.) Appellant states that he simply passed the teller a

demand note instructing him to remain calm, took the money, and left the

bank. (Id.)

      Appellant’s argument is really more in the nature of a sufficiency

claim. Appellant basically rehashes his argument that Matthews’ testimony

was insufficient to make out all the elements of Section 3701(a)(1)(ii). As



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discussed above, we determine that examining all the evidence, it was

sufficient as a matter of law to sustain appellant’s conviction of first-degree

robbery. The jury obviously found Matthews’ testimony to be credible. The

trial court did not abuse its discretion in denying appellant’s weight of the

evidence claim.

      Finally, appellant claims his sentence is illegal.       Appellant was

sentenced to a mandatory minimum sentence of 10-20 years pursuant to

42 Pa.C.S.A. § 9714(a)(1), Pennsylvania’s “three strikes” law. Appellant had

a prior conviction in Ohio for a “crime of violence” as that term is defined in

Section 9714(g).    According to appellant, Alleyne v. United States, 133

S.Ct. 2151 (U.S. 2013), demands that the alleged fact of appellant’s prior

conviction for a crime of violence be submitted to the jury and found beyond

a reasonable doubt.    (Appellant’s brief at 21-22.)   Alleyne held that the

defendant’s jury trial rights were infringed where the federal court applied a

federal mandatory minimum statute for brandishing a firearm where the fact

of brandishing was not presented to the jury or established beyond a

reasonable doubt.

      This court stated in Commonwealth v. Watley, 81 A.3d 108, 117

(Pa.Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014)

(emphasis added):

            The Alleyne decision, therefore, renders those
            Pennsylvania   mandatory  minimum    sentencing
            statutes  that   do   not  pertain   to   prior
            convictions[Footnote 3] constitutionally infirm


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          insofar as they permit a judge to automatically
          increase a defendant’s sentence based on a
          preponderance of the evidence standard.[Footnote 4]

                [Footnote 3] The constitutionality of
                statutes permitting prior convictions to
                automatically increase a defendant’s
                sentence beyond the statutory maximum
                absent a jury finding has been called in
                question based on a similar rationale
                discussed in Alleyne v. United States,
                      U.S.     , 133 S.Ct. 2151, 186
                L.Ed.2d 314 (2013). See Apprendi v.
                New Jersey, 530 U.S. 466, 120 S.Ct.
                2348, 147 L.Ed.2d 435 (2000) (Thomas,
                J. concurring); Harris v. United States,
                536 U.S. 545, 122 S.Ct. 2406, 153
                L.Ed.2d    524   (2002)     (Thomas,   J.
                dissenting); Almendarez–Torres v.
                United States, 523 U.S. 224, 118 S.Ct.
                1219, 140 L.Ed.2d 350 (1998) (Scalia, J.
                dissenting) (opining that where prior
                convictions result in a sentence that
                otherwise     exceeds     the   statutory
                maximum a jury determination of the
                prior convictions is required); but see
                Commonwealth v. Aponte, 579 Pa.
                246, 855 A.2d 800 (2004). The precise
                issue has yet to be reconsidered by the
                United States Supreme Court following
                Apprendi.     See    Alleyne, supra at
                2160 n. 1.

                [Footnote 4] See e.g., 42 Pa.C.S.
                § 9712(c); 42 Pa.C.S. § 9712.1(c);
                42 Pa.C.S.  § 9713(c); 42  Pa.C.S.
                § 9718(c);  42 Pa.C.S. §  9719(b);
                18 Pa.C.S.  § 7508(b); 18  Pa.C.S.
                § 6317(b).

     Here, appellant was convicted of a first-degree felony with a statutory

maximum of 10 to 20 years’ imprisonment.         18 Pa.C.S.A. § 1103(1).



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Therefore, even with application of the three strikes statute, appellant’s

sentence did not exceed the otherwise available maximum penalty permitted

by law. Furthermore, even if it did, Almendarez-Torres remains good law.

There, the United States Supreme Court held that the fact of a prior

conviction may be found by a judge at the time of sentencing, rather than

the jury, even if the prior conviction results in an enhancement that

increases the statutory maximum sentence. Therefore, we remain bound by

existing   case   law,    including   this     court’s   en   banc   decision   in

Commonwealth v. Lane, 941 A.2d 34 (Pa.Super. 2008) (en banc),

appeal denied, 960 A.2d 837 (Pa. 2008), rejecting an Apprendi-based

challenge to Section 9714.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2015




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