J-S34036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSHUA WILLIAMS

                            Appellant                   No. 530 MDA 2015


            Appeal from the Judgment of Sentence January 14, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002720-2012


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                FILED MAY 06, 2016

        In this direct appeal, Joshua Williams challenges the sufficiency of the

evidence underlying his conviction for robbery1. For the reasons that follow,

we affirm Williams’ conviction, but we vacate the judgment of sentence and

remand for resentencing.

        A jury found Williams guilty of robbing Michael Barna on the evening of

March 3, 2012. On January 14, 2015, the trial court sentenced Williams to

7-14 years’ imprisonment.         Williams filed timely post-sentence motions to

modify his sentence on the ground that the court used the wrong sentencing

guideline in its sentencing calculations2. In an order docketed on February
____________________________________________


1
    18 Pa.C.S. § 3701(a)(1)(i).
2
  Williams asserted: “The guideline form the Commonwealth submitted for
the charge of robbery included a deadly weapon enhancement, which
(Footnote Continued Next Page)
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23, 2015, the court granted Williams’ motion. The order stated: “This Court

never made a determination as to whether the offender possessed a deadly

weapon[,] therefore we cannot apply the Deadly Weapon Enhancement …

The sentence is modified as follow[s]: 54-72 months’ imprisonment.” The

order did not specify whether Williams’ minimum term of imprisonment was

54 months, 72 months, or somewhere in between. Nor did the order specify

Williams’ maximum term of imprisonment.

      Williams filed a timely notice of appeal.     The sole issue raised in

Williams’ Pa.R.A.P. 1925(b) statement and appellate brief is: “Whether the

evidence presented at trial was insufficient to convict [Williams] of the crime

of robbery?”

      The trial court’s Pa.R.A.P. 1925(a) opinion accurately summarized the

relevant evidence as follows:

      The victim, Michael Barna, testified at trial. In March 2012, he
      was living at Riverfront Apartments and had been there for
      about three weeks. [Barna] and a friend who lived nearby made
      plans for March 3, 2012, to have a drink at the friend's house
      and then go to a couple of bars downtown. [Barna], his friend
      and another man had some drinks and then went downtown [in
      his friend’s car] to the bars. [Barna] recalls drinking two glasses
      of wine, a larger mixed drink and maybe something else while at
      his friend's house. He was intoxicated at this point, but not
      incapacitated. One of the friends drove to the bars downtown.
                       _______________________
(Footnote Continued)

resulted in the guideline form reflecting the standard range of 72-90
months. Because [] Williams was never found guilty of using or even
possessing a deadly weapon, this enhancement does not apply to the
calculation of his guidelines.” Williams’ Post-Sentence Motion To Modify
Sentence, at 2.



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     While at the bar, [Barna] consumed another three beers and
     then, following a slight argument with his friend, he left the bar.
     He went to another bar, had another drink and then left that bar.

     At that point, [Barna] decided he needed to go home[,] so he
     began walking up Second Street and looking for a cab. He had
     walked some distance when he stopped at a gas station to
     purchase cigarettes.      He may have noticed [Williams] in the
     store, but he definitely recalls seeing him outside the store while
     he was smoking. [When Williams] asked for a cigarette, [Barna]
     gave him one, and they began to chat. After discussing where
     they were going, and discovering that [Williams] lived near
     [Barna], they began to walk together towards their apartments.

     As they neared [Barna]'s home, [Williams] asked if [Barna]
     could give him a ride to a birthday party. Recognizing that he
     was too drunk to drive, [Barna] said no but ultimately allowed
     [Williams] to drive his car. [Barna] was ‘kinda going with the
     flow at the moment’ and had no real plans other than hanging
     out at the birthday party. The two of them talked about some
     people they knew in common from Steelton while they drove and
     [Barna] even put [Williams'] number into his phone because
     they planned to play basketball at some point.

     [Williams] stopped not far from the apartment and spoke to a
     man on the street who then asked for a ride to the gas station.
     They gave him a ride[.] [H]e ran in and made a purchase, and
     then they drove him back to the street where they had picked
     him up. Then they started heading towards Steelton, eventually
     crossing from Front Street to Cameron Street and up an alley,
     [where Williams] got out [of the car] and made a phone call.
     When he got back into the car, they headed north on Cameron,
     the opposite direction of Steelton.

     As they drove through the city, [Barna] [began] to wonder
     where they were going[.] [W]hen they approached [Maclay], he
     told [Williams] to turn on to [Maclay]. [Barna] thought that
     [route] would be the quickest way back home. [Williams] did
     not do as [Barna] suggested, though [Barna] admits that
     [because] there was music on, he [was] not sure [whether
     Williams] heard him. [Williams] then turned right onto Elmerton
     … After [Williams] made a right onto a dead end, [Barna] began
     to ask him where they were going. [Williams] got out of the car
     again and made another call.

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     At this point, [Barna] began to worry so he got out of the car
     [and] got water out of his trunk. [Williams] told him he had
     dropped his keys. [Barna] had a flashlight[,] so he got the
     [flash]light and started looking for the keys under the car. He
     could not find them[,] so he handed the flashlight to [Williams]
     and got back into the car. [Williams] got in shortly after with a
     white cloth on his lap. [Barna] saw a gun and clip underneath
     the cloth. He questioned [Williams] about it at which point
     [Williams] pulled out of the dead end turning left onto Elmerton
     towards Cameron. As they drove down the street, the trunk flew
     open. [Williams] stopped the car, [and] [Barna] got out to close
     the trunk. [As] soon as [[Barna] shut the trunk, Williams] sped
     off in the car.     [As Barna] saw [Williams] turn right onto
     Cameron Street, [he] realized [that] his phone was in the car
     and decided he was going to have to find someone to tell them
     that his car had been stolen and have them call the police. As
     he [was] making this decision, [Williams] made a U -turn on
     Cameron and [drove] back up Elmerton with the window down
     and the gun sticking out of the window. [Williams] shot at
     [Barna] at least three times. He then pulled over, got out and
     ran towards [Barna], and shot at him several more times[,]
     hitting [Barna] in the arm and leg and causing him to fall down.
     He stood over [Barna] with the gun and said ‘give me your
     fuckin' wallet or I'm gonna shoot you.’ [Barna] pled with him
     while [Williams] kept demanding the wallet[,] at which point
     [Barna] reached into his pocket[,] took out the wallet and threw
     it behind [Williams]. [Williams] picked up the wallet, shot about
     three more times at [Barna], hitting him in the back, and then
     ran back to the car, got into it and drove off. [Barna] eventually
     got up, and managed to get a cab to take him to the Harrisburg
     Hospital Emergency Room where he received treatment for his
     gunshot wounds.

Pa.R.A.P. 1925(a) Opinion, at 2-5 (citations omitted).

     The Commonwealth contends that Williams waived his challenge to the

sufficiency of the evidence, because his Rule 1925(b) statement did not

sufficiently identify the error that he intended to challenge on appeal. We

agree.


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        In Commonwealth v. Tyack, 128 A.3d 254 (Pa.Super.2015), the

appellant stated in his Rule 1925(b) statement that “the [trial] court erred in

finding [there] was sufficient evidence to sustain the verdict” of guilt for

possession of an electric or electronic incapacitation device by a prohibited

person3. The Commonwealth did not object to the Rule 1925(b) statement.

Nevertheless, this Court held that the appellant waived his sufficiency claim

due to the inadequacy of his Rule 1925(b) statement. We reasoned:

        As this Court has consistently held:

              If Appellant wants to preserve a claim that the evidence
              was insufficient, then the 1925(b) statement needs to
              specify the element or elements upon which the evidence
              was insufficient. This Court can then analyze the element
              or elements on appeal. [Where a] 1925(b) statement [ ]
              does not specify the allegedly unproven elements[,] ... the
              sufficiency issue is waived [on appeal].

        Commonwealth v. Williams, 959 A.2d 1252, 1257
        (Pa.Super.2008), quoting Commonwealth v. Flores, 921 A.2d
        517, 522–523 (Pa.Super.2007).

        In this case, Appellant’s Rule 1925(b) statement simply
        declared, in boilerplate fashion, that the evidence was
        insufficient to support his conviction … The statement thus failed
        to ‘specify the element or elements upon which the evidence was
        insufficient’ to support Appellant’s conviction—and we must
        conclude that Appellant’s sufficiency of the evidence claim is
        waived on appeal. Williams, 959 A.2d at 1257.

        Further, it is of no moment that the Commonwealth failed to
        object to the defect in Appellant’s Rule 1925(b) statement. As
        we have held:
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3
    18 Pa.C.S. § 908.1(c).




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              The Commonwealth’s failure [to object to the defect in the
              Rule 1925(b) statement] and the presence of a trial court
              opinion are of no moment to our analysis because we
              apply Pa.R.A.P.1925(b) in a predictable, uniform fashion,
              not in a selective manner dependent on an appellee’s
              argument or a trial court’s choice to address an
              unpreserved claim. [Commonwealth v. Castillo, 585 Pa.
              395, 888 A.2d 775 (2005) ], Commonwealth v. Butler,
              571 Pa. 441, 812 A.2d 631, 634 (2002). Thus, we find
              1925(b) waiver where appropriate despite the lack of
              objection by an appellee and despite the presence of a trial
              court opinion. Castillo, 888 A.2d at 779, 780; Butler, 812
              A.2d at 634.

       Williams, 959 A.2d at 1257.

Id., 128 A.3d at 260-61; see also Commonwealth v. Gibbs, 981 A.2d

274, 281 (Pa.Super.2009) (appellant waived challenge to sufficiency of

evidence underlying his convictions for drug-related offenses due to

inadequacy of his Rule 1925(b) statement, even though trial court addressed

merits of this claim in its opinion).

       Here, as in Tyack, Gibbs, and the authorities cited therein, Williams’

Rule 1925(b) statement failed to specify the element(s) for which the

evidence was insufficient to sustain his robbery conviction4.        Therefore,

Williams has waived this issue.

       Even if Williams had preserved this issue for appeal, the evidence was

sufficient to sustain his conviction. A person is guilty of robbery “if, in the
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4
  We note that the Commonwealth was more diligent in this case than it was
in Tyack, because in this case, it took the extra step of objecting to the
insufficiency of Williams’ Rule 1925(b) statement.



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course of committing a theft, he … inflicts serious bodily injury upon

another.” 18 Pa.C.S. § 3701(a)(1)(i). Construed in the light most favorable

to the Commonwealth, the evidence demonstrates that Williams shot at

Barna several times after stealing Barna’s car. Williams then exited the car,

shot Barna in the arm and leg, and forced Barna to turn over his wallet at

gunpoint.    Barna required treatment at the hospital for his injuries.   This

evidence satisfies all elements of the crime of robbery.

       Although we affirm Williams’ conviction, we remand for resentencing

due to defects in the February 23, 2015 order granting Williams’ post-

sentence motions.         This order merely states that Williams’ minimum

sentence is “54-72 months” without specifying the precise number of

months in his new minimum or maximum sentence. The Sentencing Code

plainly directs the trial court to specify minimum and maximum periods of

imprisonment. See 42 Pa.C.S. § 9756(b)(1) (“[the] minimum sentence of

confinement … shall not exceed one-half of the maximum sentence

imposed”). We direct the trial court to resentence Williams in a manner that

complies with section 97565.




____________________________________________


5
  Although Williams has not claimed that his sentence is illegal, “challenges
to an illegal sentence can never be waived and may be reviewed sua sponte
by this Court.”      Commonwealth v. Tanner, 61 A.3d 1043, 1046
(Pa.Super.2013).



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     Conviction affirmed.   Judgment of sentence vacated.    Remanded for

resentencing consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




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