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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                       :
                                           :
SHAMIR SIMPKINS,                           :           No. 742 EDA 2016
                                           :
                       Appellant           :


         Appeal from the Judgment of Sentence, February 5, 2016,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0013143-2014


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED MAY 26, 2017

     Shamir    Simpkins   appeals   from       the   judgment   of   sentence   of

February 5, 2016, following his conviction of robbery and related charges.

Appellant challenges the sufficiency of the evidence to support the robbery

charge. After careful review, we affirm.

     The trial court has summarized the facts of this case as follows:

                 Omar Robbins-Morris testified that he was in
           the vicinity of North 16th and York Streets in
           Philadelphia, at about 9:50 AM on November 3,
           2014, on his way to work.        As Robbins-Morris
           attempted to pass [appellant], who was standing on
           the sidewalk, [appellant] cut him off and would not
           let him by. [Appellant] then swung at Robbins-
           Morris, striking him in the left rear of his head.
           Robbins-Morris put down his bag, and the
           confrontation escalated into an altercation, during
           which, [appellant] threw a trash can at Robbins-
           Morris, breaking his glasses.
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                     As Robbins-Morris attempted to retrieve his
              bag, [appellant] grabbed the bag and threw it across
              the street. Robbins-Morris retrieved his bag and
              started walking down the street, as [appellant]
              followed him. Robbins-Morris went into a corner
              store, but [appellant] waited for him. At some point,
              [appellant] entered the store and told Robbins-Morris
              that if he just gave him the bag, [appellant] would
              leave him alone.

                    At some point [appellant] went into Robbins-
              Morris[’] bag and took a calculator and headphones.

                    When police arrived on the scene, [appellant]
              was walking extremely close to an unidentified third
              person. When the officer stopped [appellant], he
              had to ask that person to step away.

Trial court opinion, 5/26/16 at 1-2 (citations to the transcript omitted).

        Following a bench trial held on December 4, 2015, appellant was found

guilty of robbery as a felony of the second degree, simple assault, and

criminal mischief.1 Appellant was found not guilty of terroristic threats and

recklessly endangering another person.       (Notes of testimony, 12/4/15 at

41.) On February 5, 2016, the trial court imposed a sentence of 3 years’

probation for robbery, with no further penalty on the remaining counts. No

post-sentence motions were filed; however, on March 4, 2016, appellant

filed a timely notice of appeal. On April 4, 2016, appellant was ordered to

file a concise statement of errors complained of on appeal within 21 days

pursuant to Pa.R.A.P. 1925(b), and appellant timely complied on April 25,

2016. The trial court filed a Rule 1925(a) opinion on May 26, 2016.


1
    18 Pa.C.S.A. §§ 3701(a)(1)(iv), 2701(a), & 3304(a)(2), respectively.


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      Appellant has raised the following issue for this court’s review: “Was

not the evidence insufficient as a matter of law to sustain appellant’s

conviction for robbery where there was insufficient evidence that appellant’s

actions were taken in the course of committing a theft?” (Appellant’s brief

at 3.)2

           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

2
   An additional issue raised in appellant’s Rule 1925(b) statement and
addressed by the trial court in its Rule 1925(a) opinion, whether the trial
court abused its discretion in overruling defense counsel’s objections to
allegedly leading questions, has been abandoned on appeal.


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                  passing upon the credibility of witnesses
                  and the weight of the evidence produced,
                  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:

            (a)   Offense defined.--

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

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

18 Pa.C.S.A. § 3701(a)(1)(iv).     “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.” 18 Pa.C.S.A. § 3701(a)(2).

            To    sustain    a   conviction   of  robbery,    the
            Commonwealth must establish beyond a reasonable
            doubt that appellant, in the course of committing a
            theft, inflicted [] bodily injury upon Mr. [Robbins-
            Morris], or threatened him with or intentionally put
            him in fear of immediate [] bodily injury.
            18 Pa.C.S.A. § 3701(a). The element “in the course
            of committing a theft” is proven              if the
            Commonwealth proves that the offense occurred
            during an attempt to commit theft or in flight after
            the attempt or commission.             18 Pa.C.S.A.
            § 3701(a)(2). An attempted theft is committed when
            a person, with intent to commit a theft, does any act


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            which constitutes a substantial step toward
            commission of the theft. 18 Pa.C.S.A. § 9[01](a). A
            person commits a theft if he or she “unlawfully takes
            . . . movable property of another with intent to
            deprive him thereof.” 18 Pa.C.S.A. § 3921(a). In
            light    of   these    statutory    definitions,   the
            Commonwealth must prove beyond a reasonable
            doubt that appellant, with the intent to take property
            from [Robbins-Morris] and deprive [Robbins-Morris]
            of the property, took a substantial step toward those
            ends, and during the course of the act, inflicted []
            bodily injury upon [Robbins-Morris].

Commonwealth v. Ennis, 574 A.2d 1116, 1119 (Pa.Super. 1990).

            “Often, intent cannot be proven directly but must be
            inferred from examination of the facts and
            circumstances of the case.”       Commonwealth v.
            Pond, 846 A.2d 699, 707 (Pa.Super. 2004) (citation
            omitted).    Therefore, the Commonwealth is not
            required to provide direct proof of [the defendant]’s
            frame of mind. Commonwealth v. Matthews, 870
            A.2d 924, 928-29 (Pa.Super. 2005) (en banc),
            affirmed, 589 Pa. 487, 909 A.2d 1254 (2006).
            Instead, the Commonwealth can demonstrate its
            case through circumstantial evidence. Id. We can
            look at the totality of the circumstances to determine
            if [the defendant]'s actions gave rise to a reasonable
            inference of the requisite mens rea. Pond, supra.

Commonwealth v. Winger, 957 A.2d 325, 329 (Pa.Super. 2008).

      Appellant argues that the Commonwealth failed to prove he had the

requisite intent to deprive Robbins-Morris of his belongings.        Appellant

concedes that the evidence was sufficient to prove simple assault and

criminal mischief, but argues that he never attempted to take anything from

Robbins-Morris.   Rather, appellant suggests that the testimony indicated

that he simply wanted to fight with Robbins-Morris. (Appellant’s brief at 13.)



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      Robbins-Morris testified that he was walking down the street when

appellant jumped him and struck him in the side of the head.      (Notes of

testimony, 12/4/15 at 9-10.)      Robbins-Morris had never met appellant

before that day.    (Id. at 9.)   Robbins-Morris testified that he “thought

[appellant] was crazy or something.” (Id. at 10.) After Robbins-Morris set

his book bag down on the ground, appellant threw a trash can at him,

breaking his glasses. (Id. at 10-11.)

      During the altercation, Robbins-Morris went to retrieve his bag, at

which point appellant grabbed it and threw it across the street.       (Id.)

Robbins-Morris testified that, “I’m just wondering why he attacked me. In

the middle of the fight, I tried to grab my bag and go on my way to work.

When I went to grab my bag, we started fighting again.” (Id.) Eventually

Robbins-Morris was able to break free from appellant and go get his bag,

using passing vehicles as a buffer. (Id. at 11, 20.)

      Appellant followed Robbins-Morris to a corner store. (Id. at 11-12.)

Robbins-Morris went inside, but appellant was waiting outside for him. (Id.

at 12.) Robbins-Morris testified that he “couldn’t go anywhere.” (Id.) His

nose was bleeding and his glasses were broken.         (Id. at 12-13, 24.)

Robbins-Morris told people inside the store what happened and they called

the police. (Id.) Appellant came into the store and told Robbins-Morris that

if he gave him the book bag, appellant would leave him alone. (Id. at 12,




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23-24, 27.)         Robbins-Morris testified that, “I wasn’t giving him my bag.”

(Id. at 12.)

      Robbins-Morris testified that later, he discovered that his headphones

and a scientific calculator were missing. (Id. at 15-16.) These items were

never recovered.        (Id.)   Officer Roger McFadden, who arrested appellant,

testified that appellant did not have anything on his person that belonged to

Robbins-Morris. (Id. at 31.) The unidentified male walking with appellant

was excluded as a suspect. (Id. at 31-32.)

      The trial court found, sitting as fact-finder in this non-jury case, that

appellant removed the headphones and calculator from Robbins-Morris’ book

bag. (Trial court opinion, 5/26/16 at 4.) However, Robbins-Morris conceded

that the bag was already open when appellant threw it across the street and

that the items could have flown out at that time:

               Q.      But when he grabbed the bag, he threw it in
                       the middle of the street?

               A.      Yes.

               Q.      As far as you know, that’s how your items got
                       broken?

               A.      He did pull some stuff out [sic] the bag too.

               Q.      He pulled it out when he was throwing it across
                       the street?

               A.      When he picked up the bag it was kind of open
                       so, yes, he did throw my stuff.

               Q.      When he picked up your bag, it was already a
                       little bit – he didn’t open it, right?


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            A.    Right.

            Q.    So anything that came out of that happened
                  while he was throwing the bag in the street?

            A.    It could possibly be.

            Q.    And after he threw the bag in the street, he
                  started fighting you again?

            A.    Yes.

            Q.    He didn’t go to the bag again, correct?

            A.    No.

Notes of testimony, 12/4/15 at 19.

      While the trial court’s conclusion that appellant purposefully removed

the headphones and calculator from Robbins-Morris’ book bag does not

appear to be supported by the evidence, appellant clearly deprived Robbins-

Morris of his property. Appellant threw the book bag into the street out of

Robbins-Morris’ reach.

      Robbins-Morris retrieved his bag from the street and walked down to

the corner store, where he solicited help. (Id. at 11-12, 20-21.) Appellant

followed Robbins-Morris to the corner store.        (Id. at 11-12.)      While

Robbins-Morris waited inside the store for police to arrive, appellant lingered

around outside, waiting for Robbins-Morris to come out.          (Id. at 23.)

Occasionally, appellant would enter the store and make comments such as,

“[T]his is my corner store, you going to stay in there all day[?]”       (Id.)

According to Robbins-Morris’ statement to police, “[Appellant] kept walking


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by the door, looking inside, and waiting for me to come out.” (Id.; Defense

Exhibit D-1.)

      Robbins-Morris testified that, “He told me if I just gave him my bag,

he would leave me alone. I wasn’t giving him my bag.”          (Id. at 12; see

also trial court opinion, 5/26/16 at 4 (“As Robbins-Morris attempted to get

to safety, he recovered his bag and fled, pursued by [appellant] who

barricaded him inside a corner store, demanding his bag as a condition to

leave. These were not isolated events, but part of a continuum of force by

[appellant], designed to separate the complainant from his belongings.”).)

In his statement to police, in response to the detective’s question, “Did the

male verbally threaten you?”; Robbins-Morris answered, “Yeah.         When he

said if I put my bookbag down and came out [of] the store, we could finish

this.” (Notes of testimony, 12/4/15 at 27; defense Exhibit D-1.)

      We determine that the evidence adduced by the Commonwealth at

trial was sufficient, as a matter of law, to prove that appellant had the intent

to deprive Robbins-Morris of his property, whether or not he took the

headphones and calculator. Issues of credibility are left to the trier of fact,

and it is not this court’s function to re-weigh the evidence on appeal.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/26/2017




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