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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

HOWARD SMITH,

                            Appellant                No. 2980 EDA 2013


            Appeal from the Judgment of Sentence August 23, 2013
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0003148-2013


BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 05, 2015

        Appellant, Howard Smith, appeals from the judgment of sentence

imposed following his bench conviction of robbery and attempted theft.1

Specifically, Appellant challenges the sufficiency and weight of the evidence.

We affirm.

        We take the following facts and procedural history from the trial

court’s March 27, 2014 opinion and the trial transcript.       On February 13,

2013, at approximately 2:30 P.M., Appellant, with the intent of committing a

robbery, entered the PNC Bank at 1511 Walnut Street, Philadelphia, where

Tara T. Collins-Wiggins was working as a teller.      Unarmed and without a
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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3701(a)(1)(vi) and 901(a), respectively.
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mask, Appellant approached Ms. Collins-Wiggins, telling her, and also

handing her a note that read, “This is a robbery.” (N.T. Trial, 8/23/13, at

13; see id. at 12). Ms. Collins-Wiggins’ first reaction was shock. Then, in

response, Ms. Collins-Wiggins testified that she started “giggling, like, are

you serious[.]” (Id. at 12). Appellant repeated, “This is a robbery.” (Id.).

Ms. Collins-Wiggins asked him, “Okay, what would you like?”              (Id.).

Appellant turned and exited the bank without taking any money.

       The incident was captured on surveillance video.         Police arrested

Appellant five days later.       He admitted to the officers that he handed Ms.

Collins-Wiggins the note and he testified at trial that he intended to rob the

bank, but changed his mind after seeing Ms. Collins-Wiggins’ reaction.

       The Commonwealth filed an information against Appellant on March

18, 2013, and the one-day waiver trial occurred on August 23, 2013.2 The

trial court convicted Appellant of the foregoing charges and, the same day, it



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2
   The Commonwealth originally charged Appellant with attempted first
degree robbery, but immediately before the bench trial, orally withdrew the
charge of “attempted robbery,” and amended this to robbery of the second
degree pursuant to 18 Pa.C.S.A. § 3701(a)(1)(vi). (See N.T. Trial, 8/23/13,
at 7-8). Defense counsel had no objection to either amendment. (See id.
at 8). The trial court docket incorrectly identifies Appellant as having been
convicted of 18 Pa.C.S.A. § 3701(a)(1)(iv). (See Trial Court Docket, at 3).
However, the trial court and the parties agree that the Commonwealth
“proceed[ed] under Section [(a)](vi)[] of the robbery statute.” (N.T. Trial,
8/23/13, at 8); (see also Trial Court Opinion, 3/27/14, at 5; Appellant’s
Brief, at 8).



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sentenced him to an aggregate term of not less than two nor more than four

years’ incarceration. Appellant timely appealed on September 4, 2013.3

       Appellant raises two issues for this Court’s review:

       I.     Is [Appellant] entitled to an arrest of judgment on the
              charges of [r]obbery and [a]ttempted [t]heft where there
              is insufficient evidence to sustain the verdict and where
              [Appellant] clearly renunciated his intention of committing
              a crime at the scene of a purported bank robbery?

       II.    Is [Appellant] entitled to a new trial where the greater
              weight of the evidence demonstrated that [Appellant]
              renunciated whatever intent he may have had in robbing a
              bank in Center City Philadelphia?

(Appellant’s Brief, at 3).4

       In his first issue, Appellant challenges the sufficiency of the evidence

supporting his robbery and attempted theft convictions.         (See id. at 3, 7-

11).

       Our standard of review of this matter is well-settled:

              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
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3
  Appellant filed a timely statement of errors complained of on appeal
pursuant to the court’s order, on February 19, 2014.       See Pa.R.A.P.
1925(b). The trial court filed a Rule 1925(a) opinion on March 27, 2014.
See Pa.R.A.P. 1925(a).
4
  The Commonwealth failed to file a brief although it requested, and this
Court granted, an extension until December 16, 2014 within which to do so.
(See Per Curiam Order, 10/16/14).



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     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
     [finder] 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. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citation

omitted).

     Here, Appellant argues first that, because “[he] did not take any

money[,] nor did he remove any money[,] . . . the Commonwealth’s

evidence fell woefully short of establishing the elements of the crime[]” of

robbery pursuant to 18 Pa.C.S.A. § 3701(a)(1)(vi). (Appellant’s Brief, at 9).

Conversely, at trial, the Commonwealth asserted, and the court agreed, that

Appellant committed a robbery pursuant to section 3701(a)(1)(vi) because

he attempted to commit a theft of a financial institution, even though no

property was taken. (See N.T. Trial, 8/23/13, at 36, 42; see also Trial Ct.

Op., at 6). Appellant’s argument lacks merit.

     As already noted, in this case, the Commonwealth elected to proceed

under subsection Section 3701(a)(1)(vi). (See N.T. Trial, 8/23/13, at 7-8).

Section 3701 of the Crimes Code provides, in pertinent part:




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

                                   *       *    *

            (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.

      (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.

      (3) For purposes of this subsection, a “financial institution”
      means a bank, trust company, savings trust, credit union or
      similar institution.

18 Pa.C.S.A. § 3701(a)(1)(vi), (2), (3).

      An attempted theft is committed when a person, with intent to
      commit a theft, does any act which constitutes a substantial step
      toward commission of the theft. 18 Pa.C.S.A. § [901(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).

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

      Further, it is well-settled that:

      the offense of robbery is broadly worded and[] . . . contains a
      predicate offense, that offense being theft[.] . . . [R]obbery
      does not require the completion of the predicate offense,
      theft, but it does require that force be utilized or threatened
      while in the course of committing a theft . . . Indeed, the broad
      wording of the offense of robbery negates, for the most part, the
      crime of attempted robbery, as any overt attempt to commit
      theft will constitute robbery if the requisite force is
      employed.




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Commonwealth v. Robinson, 936 A.2d 107, 109-10 (Pa. Super. 2007),

appeal denied, 948 A.2d 804 (Pa. 2008) (citation and some emphasis

omitted).     “This force, of course, may be either actual or constructive.

Actual force is applied to the body; constructive force is the use of

threatening     words   or    gestures,    and    operates    on    the    mind.”

Commonwealth v. Brown, 484 A.2d 738, 741 (Pa. 1984) (case citation

omitted).

      Here, Appellant admitted that he entered PNC Bank with the intent to

commit a robbery.       (See N.T. Trial, 8/23/13, at 25-26).          Also, it is

undisputed that he told the teller that “This is a robbery[,]” and handed her

a note that stated the same thing. (Id. at 12-13; see id. at 26).

      Accordingly, we conclude that the trial court properly found that the

evidence was sufficient where the Commonwealth established that Appellant

was attempting a theft, see 18 Pa.C.S.A. § 3701(a)(1), and that he took a

substantial step in the commission of a robbery when he demanded money

from the bank teller “with the intent to deprive the financial institution

thereof.”   18 Pa.C.S.A. § 3701(a)(1)(vi); see also Robinson, supra at

109-10; Commonwealth v. Gibson, 688 A.2d 1152, 1169 (Pa. 1997)

(finding defendants perpetrated felony robbery where they took substantial

step in fulfilling plan to steal). Appellant’s challenge of the sufficiency of the

evidence to support his conviction lacks merit. See Harden, supra at 11.




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       Next, Appellant alleges that the evidence was insufficient to support

his conviction where he “renounced” the crime.      (Appellant’s Brief, at 10).

We disagree.

       Pursuant to section 901(c) of the Crimes Code:

       (c) Renunciation.—

              (1) In any prosecution for an attempt to commit a crime, it
       is a defense that, under circumstances manifesting a voluntary
       and complete renunciation of his criminal intent, the defendant
       avoided the commission of the crime attempted by abandoning
       his criminal effort and, if the mere abandonment was insufficient
       to accomplish such avoidance, by taking further and affirmative
       steps which prevented the commission thereof.

            (2) A renunciation is not “voluntary and complete” within
       the meaning of this subsection if it is motivated in whole or part
       by:

             (i) a belief that circumstances exist which increase
             the probability of detection or apprehension of the
             defendant or another participant in the criminal
             enterprise, or which render more difficult the
             accomplishment of the criminal purpose[.]

18 Pa.C.S.A. § 901(c)(1), (2)(i).

       Here, it is undisputed that, after attempting to rob PNC Bank,

Appellant left without any money. (See N.T. Trial, 8/23/14, at 12-13, 25-

27).   Although Appellant testified that he left “[b]ecause he came to his

senses [and] realized that stealing was wrong[,]” (Id. at 28), the trial court

as factfinder was “free to believe all, part or none of the evidence” and to

determine the credibility of the witnesses. Harden, supra at 111.




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      Therefore, it could have reasonably believed that the unmasked

Appellant abandoned the attempted theft and bank robbery due, in whole or

in part, to fear of detection.   See 18 Pa.C.S.A. § 901(c); see also, e.g.,

Commonwealth v. Alexander, 722 A.2d 698, 701-02 (Pa. Super. 1998),

appeal denied, 794 A.2d 359 (Pa. 1999) (finding defense of renunciation

inapplicable where appellant took substantial step in committing attempted

forgery, and only abandoned criminal act due to increased fear of detection);

Commonwealth v. Martin, 452 A.2d 1066, 1070-71 (Pa. Super. 1982)

(finding defense of renunciation did not apply where appellant took

substantial step in committing attempted rape, and only abandoned criminal

act after victim faked asthma attack).     Accordingly, we conclude that the

trial court properly found that the evidence was insufficient to establish the

defense of renunciation. See Harden, supra at 111. Appellant’s first issue

does not merit relief.

      In his second issue, Appellant challenges the weight of the evidence.

(See Appellant’s Brief, at 3, 12). This issue is waived.

      Pursuant to Pennsylvania Rule of Criminal Procedure 607:

      (A) A claim that the verdict was against the weight of the
      evidence shall be raised with the trial judge in a motion for a
      new trial:

            (1) orally, on the record, at any time before sentencing;

            (2) by written motion at any time before sentencing; or

            (3) in a post-sentence motion.


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Pa.R.Crim.P. 607(A)(1)-(3).

       Presently, our review of the record reveals that Appellant failed to

raise his weight of the evidence claim with the trial court.   Therefore, we

deem his second issue waived for our review.      See Commonwealth v.

Washington, 825 A.2d 1264, 1266 (Pa. Super. 2003) (finding weight of the

evidence issue waived where appellant failed to comply with Pa.R.Crim.P.

607).5

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/2015




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5
  Even if we did not find this issue waived, it would lack merit. “The trial
court, in the exercise of its discretion, may award a new trial on the basis
that the verdict is against the weight of the evidence if the verdict is so
contrary to the evidence as to shock one’s sense of justice.” Washington,
supra at 1266 n.2 (citation omitted). Our review of the record does not
reveal a verdict that is shocking to “one’s sense of justice.” Id.



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