J-A30022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARVIN HENSON

                            Appellant                 No. 1967 EDA 2014


            Appeal from the Judgment of Sentence January 27, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013941-2012


BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY JENKINS, J.:                        FILED DECEMBER 14, 2015

        Appellant Marvin Henson appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

bench trial convictions for robbery, burglary, criminal mischief, criminal

trespass, theft by unlawful taking, receiving stolen property, and simple

assault.1, 2 We affirm.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. §§ 3701(a)(1)(iv), 3502(c)(1), 3304(a)(2), 3503 (a)(1)(ii),
3921(a),    3925(a),    and    2701(a),   respectively.      In  Leach    v.
Commonwealth, 118 A.3d 1271 (Pa.Cmwlth.2015), the Commonwealth
Court held 18 Pa.C.S. § 3503 unconstitutional after the trial court imposed
Appellant’s judgment of sentence.        Appellant’s conviction for criminal
trespass did not affect his judgment of sentence.
2
 The trial court also convicted Appellant of summary criminal contempt, 42
Pa.C.S. § 4132(3), which Appellant appeals at Docket Number 2013 EDA
2014.
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     The trial court set forth the relevant facts of this appeal as follows:

        On October 20, 2012, Makial D. Pryor-Hand [(“Victim”)]
        was inside his home located at 7310 Elmwood Avenue, in
        Philadelphia, Pennsylvania. N.T.[,] 10/25/2013[,] at 11.
        Sometime between 10:45 and 11:30 p.m., while [Victim]
        was in the basement of his home, he heard the front door
        to the home open, and then heard footsteps on the floor
        above him. Id. at 11-12. He proceeded up the basement
        steps to investigate. Id. at 13.     There, he witnessed
        [Appellant] standing in his living room. Id at 13-14.
        [Victim] did not know [Appellant]; nor did he give him
        permission to enter his home. Id. at 32.

        [Appellant] then pushed and punched [Victim] and a
        physical altercation ensued, breaking both a dining room
        table and a mirror hanging on the wall. Id. at 15.
        [Appellant] then grabbed [Victim’s] head and pressed his
        thumbs into his eyes. Id. [Victim] fought off [Appellant]
        and escaped, first to the basement of the home, then to a
        nearby convenience store in search of help. Id. at 16.
        After returning to the home while the police were present,
        [Victim] discovered that a 32-inch Vizio television set, a
        tan and blue workbag, a cell phone, and his mother’s
        pocketbook were all missing from the home. Id. at 31.
        Also, a brown bag with liquor and a 7-11 slurpee cup were
        found in the home, neither of which belonged to [Victim].
        Id. at 20.

        On the same night as the incident, [Victim’s] neighbor,
        Martha White ([]“Ms. White”) heard “scuffing” on the wall
        that separates the two homes and her dogs began to bark.
        Id. at 48-49. Ms. White went outside to investigate,
        walked to [Victim’s] home and looked into his home
        through the open front door. Id. at 50. There, she
        witnessed a person “throwing stuff like a madman, tossing
        stuff from side to side all over the place” inside [Victim’s]
        home. Id. at 50. Shortly thereafter, Ms. White then saw a
        male exiting [Victim’s] home carrying a flat screen
        television and a tan bag. Id. at 51. Later that same night,
        [Appellant] was observed by police walking on the street
        carrying a 32-inch Vizio television set with blood on his
        wrist and forehead. Id. at 59.


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           [Appellant] testified at trial that he did, in fact, take the
           television set and the tan bag from [Victim’s] home
           without permission. Id. at 87. Swabs taken by police from
           the second floor hallway, first floor living room, the 32-
           inch television, and from the 7-11 cup found in the home
           matched [Appellant’s] DNA profile with a reasonable
           degree of scientific certainty. Id. at 66. [Victim] later
           identified [Appellant] in photographs and in a video shown
           to him by police as the man who attacked him inside his
           home. Id. at 28.

Trial Court Opinion, filed November 3, 2014, at 1-2.

        On October 25, 2013, after Appellant waived his right to a jury trial,

the trial court conducted a bench trial and convicted Appellant of the

aforementioned       crimes.      On    January   27,   2014,   the   court   imposed

consecutive sentences of one to two years’ incarceration for robbery, and

four to eight years’ incarceration for burglary.3

        On February 5, 2014, Appellant filed a post-sentence motion to modify

sentence, which was denied by operation of law on June 20, 2014.                 That

same day, Appellant filed a notice of appeal.           On July 8, 2014, the court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on July 29,

2014.

        Appellant raises the following issue for our review:

____________________________________________


3
  The court imposed no further sentence for Appellant’s simple assault or
criminal mischief convictions. His other convictions merged with his robbery
conviction for sentencing purposes.



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          WAS NOT THE EVIDENCE INSUFFICIENT TO CONVICT
          APPELLANT OF ROBBERY AS A FELONY OF THE FIRST
          DEGREE WHERE THE COMMONWEALTH FAILED TO PROVE
          BEYOND A REASONABLE DOUBT THAT APPELLANT, IN THE
          COURSE OF COMMITTING A THEFT, INFLICTED SERIOUS
          BODILY INJURY UPON THE COMPLAINANT, THREATENED,
          OR PUT THE COMPLAINANT IN FEAR OF IMMEDIATE
          BODILY INJURY?

Appellant’s Brief at 3.

       Appellant challenges the sufficiency of the evidence for his robbery

conviction.4     He argues that the Commonwealth failed to produce any

evidence that Appellant had the requisite intent to commit the theft when he

assaulted Victim, and that his conviction for robbery should be vacated. We

disagree.

       When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

          The standard we apply in reviewing the sufficiency of the
          evidence is whether 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
____________________________________________


4
 Appellant claims in his question presented that the trial court convicted him
of robbery, inflicts serious bodily injury, pursuant to 18 Pa.C.S. §
3701(a)(1)(i). He was actually convicted of robbery, inflicts bodily injury,
pursuant to 18 Pa.C.S. § 3701(a)(1)(iv).



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

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

     Appellant was convicted under the following statute:

        § 3701. Robbery

        (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;

                                 *    *    *

           (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

18 Pa.C.S. § 3701.

     Here, Appellant admits that there is sufficient evidence to support the

court’s finding that Appellant took many items from Victim’s home that did



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J-A30022-15


not belong to him after he assaulted Victim. He argues, however, that he

did not have the intent to steal the items while he was assaulting Victim.

Victim also testified that after Appellant attacked him, Appellant stole items

from his home.   The court, as fact-finder, was free to believe all, part, or

none of the evidence presented, to weigh the credibility of the witnesses,

and to determine, based on the fact that Appellant stole from Victim

immediately after he assaulted him, that Appellant had the intent to steal

from Victim while he was assaulting him. Viewing the evidence presented in

the light most favorable to the Commonwealth as verdict winner, we find

there was sufficient evidence to enable the trial court to find every element

of robbery beyond a reasonable doubt.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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