J-S60025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

PAUL MATTHEWS

                            Appellant               No. 334 MDA 2014


       Appeal from the Judgment of Sentence entered January 8, 2014
                In the Court of Common Pleas of York County
              Criminal Division at No: CP-67-CR-0002452-2013


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                     FILED DECEMBER 04, 2014

       Appellant, Paul Matthews, appeals from the trial court’s January 8,

2014 judgment of sentence imposing ten to twenty years of incarceration for

robbery.1 We affirm.

       On March 4, 2013, Peter Fouad (“Fouad”), a loss prevention officer at

a Bon Ton department store, observed Appellant stealing three polo shirts.

Fouad watched via closed circuit security television as Appellant entered a

changing room with the shirts. Appellant left the changing room and did not

leave the shirts behind. He left the Bon Ton without paying. Fouad pursued

Appellant, apprehended him, and escorted him back to the Bon Ton’s loss

prevention office. Fouad recovered the shirts from inside Appellant’s jacket
____________________________________________


1
    18 Pa.C.S.A. § 3701(a)(1).
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pocket. Appellant remained in the loss prevention office for ten to twenty

minutes, during which Fouad obtained Appellant’s Pennsylvania identification

card. After the ten to twenty minute encounter, Appellant became agitated

and attempted to leave the office.        When Foaud told Appellant to stop,

Appellant brandished a large butcher knife, holding it above his head in

apparent preparation to stab Fouad, and demanded that Fouad let him go.

Appellant fled the Bon Ton but was subsequently apprehended by police.

      After a November 8, 2013 bench trial at which the parties stipulated to

the foregoing facts, including the ten to twenty minute duration of the

encounter between Appellant and Fouad, the trial court found Appellant

guilty of robbery (18 Pa.C.S.A. § 3701(a)(1)), simple assault (18 Pa.C.S.A.

§ 2701(a)(3)) and retail theft (18 Pa.C.S.A. § 3929(a)(1)). The trial court

imposed sentence as set forth above, and this timely appeal followed.

Appellant argues that the stipulated facts, as set forth above, do not support

his robbery conviction.    The Pennsylvania Crimes Code defines robbery as

follows:

      (a) Offense defined.

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

             (i) inflicts serious bodily injury upon another;

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

             (iii) commits or threatens immediately to commit any
             felony of the first or second degree;


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

              (v) physically takes or removes property from the person
              of another by force however slight; or

              (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.

18 Pa.C.S.A. § 3701(a)(1), (2).          Appellant argues that his brandishing the

butcher knife in Fouad’s presence did not occur in the course of the theft he

committed.2

____________________________________________


2
   Appellant purports to challenge both the weight and sufficiency of the
evidence in support of his robbery conviction. Appellant’s Brief at 5. The
governing standard of review for sufficiency of the evidence is as follows:

       The standard of review for a challenge to the sufficiency of the
       evidence is to determine whether, when viewed in a light most
       favorable to the verdict winner, the evidence at trial and all
       reasonable inferences therefrom is sufficient for the trier of fact
       to find that each element of the crimes charged is established
       beyond a reasonable doubt.

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014).

Likewise, our standard for reviewing a weight of the evidence challenge is
well-settled:

       A motion for a new trial based on a claim that the verdict is
       against the weight of the evidence is addressed to the discretion
       of the trial court. A new trial should not be granted because of a
(Footnote Continued Next Page)


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      This Court has addressed § 3701(a)(2) on several occasions.            In

Commonwealth v. Maldonado, 494 A.2d 402 (Pa. Super. 1985), the

defendant stole from the victim a box containing a small amount of cash and

other items. Id. at 404-06. When the victim and a friend confronted the

defendant, the defendant discarded the box and fled.          Id.   The victim

eventually caught up to the defendant and a scuffle ensued, during which

the defendant stabbed the victim to death. Id. The defendant argued he

did not commit a robbery because the stabbing did not occur in the course of

the theft in accordance with § 3701(a)(2).        In rejecting the defendant’s

argument, this Court noted that § 3701(a)(2) encompasses behavior,


                       _______________________
(Footnote Continued)

      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Rather, the
      role of the trial judge is to determine that notwithstanding all the
      facts, certain facts are so clearly of greater weight that to ignore
      them or to give them equal weight with all the facts is to deny
      justice. It has often been stated that a new trial should be
      awarded when the jury’s verdict is so contrary to the evidence as
      to shock one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail.

Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014) (internal
quotation marks omitted), appeal denied, ___ A.3d. ___ (Pa. Oct. 15,
2014). A verdict may be against the weight of the evidence where a trial
court ignores stipulated facts. Commonwealth v. Shapiro, 297 A.2d 161
(Pa. Super. 1971). We note that Appellant preserved his weight of the
evidence challenge in a timely post-sentence motion.

Based on our analysis in the main text, Appellant cannot obtain relief under
either standard.



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including flight, that takes place “after the theft might be said to be

accomplished.” Id. at 408.

             In elaborating upon this latter definition, [the] Comment to
      the Model Penal Code (upon which the Pennsylvania Crimes Code
      definition is based) offers no rule of thumb . . . to delimit the
      time and space of ‘flight,’ but does observe that [t]he concept of
      ‘fresh pursuit’ will be helpful in suggesting realistic boundaries
      between the occasion of the theft and a later distinct occasion
      when the thief is apprehended.

Id. at 408 (citations and quotation marks omitted). The Maldonado Court

held that the victim was plainly in fresh pursuit of the defendant and that

the facts evinced no break in the chain of events sufficient to separate the

defendant’s discarding of the stolen goods from the stabbing death of the

victim.   Id. at 408-09.   The Court noted the victim was killed “[w]ithin

seconds, or at most minutes[,]” of the completion of the theft. Id. at 409.

      In Commonwealth v. Steward, 762 A.2d 721 (Pa. Super. 2000),

appeal denied, 782 A.2d 545 (Pa. 2001), a loss prevention officer confronted

the defendant immediately after the defendant left a store with stolen

merchandise.    Id. at 722.      The defendant handed the bag of stolen

merchandise to the officer, admitting that he took it.    Id.   The defendant

then pushed the officer out of the way and fled. Id. The officer pursued the

defendant, caught him, and suffered a broken finger during the ensuing

scuffle. Id.

      In rejecting the defendant’s challenge to the weight and sufficiency of

the evidence in support of his robbery conviction, this Court wrote: “The law



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is clear that an injurious act satisfies the ‘in the course of’ requirement if it is

accomplished ‘in flight after the . . . commission’ of a theft.”        Id. at 724

(quoting § 3701(a)(2)).     This Court reasoned that the assault of the loss

prevention officer, which occurred only “moments” after the theft and during

the defendant’s flight, satisfied § 3701(a)(2). Id.

      Most recently, in Commonwealth v. Alford, 880 A.2d 666 (Pa.

Super. 2005), appeal denied, 890 A.2d 1055 (Pa. 2005), this Court held

sufficient evidence supported the defendant’s robbery conviction where the

defendant stole a constable’s gun and then pistol whipped him with it. Id.

at 675. The defendant argued the theft of the gun was complete before the

physical struggle commenced.       Relying on Maldonado and Steward, this

Court disagreed, reasoning that the defendant used the stolen gun “to

facilitate his escape and complete the crime.” Id. at 674-75.

      Appellant argues the instant case is distinguishable because ten or

twenty minutes passed in Fouad’s office before Appellant brandished the

butcher knife.      In Maldonado, Steward, and Alford, the physical

altercation transpired much nearer in time to the defendant’s completion of

the theft.   That is, the altercation occurred immediately after the theft in

Alford and during fresh pursuit in Maldonado and Steward.

      We acknowledge that none of our prior published law involved a ten to

twenty minute delay between the theft and the occurrence that elevated the

theft to a robbery. We do not believe that distinction is dispositive here. As


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we explained in Maldonado, “[t]he concept of ‘fresh pursuit’ will be helpful

in suggesting realistic boundaries between the occasion of the theft and a

later distinct occasion when the thief is apprehended.” Maldonado,

494 A.2d at 408 (emphasis added). Furthermore, “[t]he thief’s willingness

to use force against those who would restrain him strongly suggests that he

would have employed it to effect the theft had there been the need for it.”

Id.

      Here, Fouad pursued Appellant out of the Bon Ton and apprehended

him moments after he exited the store. Fouad then detained Appellant in

the Bon Ton’s loss prevention office. Thus, the record reveals that Appellant

threatened Fouad with a butcher knife in order to facilitate his escape from a

detention that immediately followed his completion of the theft. The threat

did not occur during a later, distinct occasion.

      Drawing inferences in favor of the Commonwealth, as we must in

evaluating the sufficiency of the evidence, the record indicates that Appellant

armed himself with the butcher knife prior to committing the theft, and that

he was willing to use it to escape from the resulting detention. On the facts

of this case, we do not believe the passage of ten or twenty minutes and the

absence of a foot chase preclude Appellant’s robbery conviction. Rather, the

record supports the trial court’s finding that Appellant threatened Fouad with

a butcher knife to facilitate his flight after the commission of a theft in




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accordance with § 3701(a)(2). Thus, the record contains sufficient evidence

in support of Appellant’s robbery conviction.

      Concerning Appellant’s weight of the evidence challenge, we observe

that the trial court did not disregard pertinent stipulated facts in reaching its

verdict, nor did the trial court fail to give proper weight to the ten to twenty

minutes that passed while Appellant was detained in the Bon Ton loss

prevention office.   The trial court did not abuse its discretion in denying

Appellant’s motion for a new trial.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




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