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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                         :
EMMANUEL HOWARD,                         :          No. 1549 WDA 2016
                                         :
                       Appellant         :


       Appeal from the Judgment of Sentence, September 14, 2016,
             in the Court of Common Pleas of Fayette County
            Criminal Division at No. CP-26-CR-0001069-2016


BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JUNE 21, 2017

     Emmanuel Howard appeals from the September 14, 2016 judgment of

sentence entered in the Court of Common Pleas of Fayette County after a

jury convicted him of two counts of robbery and one count each of theft by

unlawful taking, receiving stolen property, and simple assault.1   The trial

court imposed a sentence of 7 to 20 years of imprisonment on one of the

robbery convictions and imposed no further sentence on the remaining

convictions. We affirm.

     The trial court set forth the following factual history:

                 On December 29, 2015, Christine Arthur
           (hereinafter “Victim”) was employed as a waitress at
           the Canton Restaurant on Fayette Street in
           Uniontown,      Fayette    County,    Pennsylvania.

1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3701(a)(1)(v), 3921(a), 3925(a), and
2701(a)(3), respectively.
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            Approximately thirty minutes into her shift, a man
            described by Victim as a young black male, with
            facial hair, distinguished eyes and wearing a dark
            hooded sweatshirt came into the restaurant and
            placed an order. The man grabbed a can of pop out
            of the refrigerator cooler and set it down on the
            counter where Victim was working. After Victim
            requested payment for the order, the man went
            around the counter, pointed an object that was
            covered up with a handkerchief into her side and
            demanded money from the cash register.            The
            assailant then ran off after taken [sic] approximately
            sixty dollars. Victim testified she complied with the
            demand because she “was afraid for my life.”

                  About five minutes after the assailant fled the
            restaurant, Lieutenant Tom Kolencik with the
            Uniontown Police Department arrived on scene and
            spoke with Victim. Lieutenant Kolencik also took into
            evidence the pop can that was handled by the
            assailant during the commission of the crime. The
            conclusion of the lab results was that a set of
            fingerprints on the pop can belonged to [a]ppellant.

                   Appellant briefly testified at trial. He testified
            that since he resided across the street from the
            restaurant, he frequented it numerous times.
            Finally, [a]ppellant testified that he did not rob the
            Canton on December 29, 2015.

Trial court opinion, 12/5/16 at 2-3 (citations to notes of testimony and

footnote omitted).

      The record reflects that appellant filed a timely post-sentence motion

for modification of sentence, which the trial court denied.      Appellant then

filed a timely notice of appeal to this court. The trial court ordered appellant

to file a concise statement of errors complained of on appeal pursuant to




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Pa.R.A.P. 1925(b). Appellant complied. Thereafter, the trial court filed its

Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            [1.]   Whether the evidence presented at trial
                   sufficiently established that during the course
                   of a theft at the Canton Restaurant on Fayette
                   Street     in   Uniontown,    Fayette   County,
                   Pennsylvania, [appellant] threatened the victim
                   with serious bodily injury or that he used
                   physical force when removing the money from
                   the    register,   as   required   under   both
                   18 Pa.C.S.A. § 3701(a)(1)(ii) and (v)?

            [2.]   Whether the evidence at trial sufficiently
                   established that [appellant’s] conduct placed
                   the victim in fear of imminent serious bodily
                   injury, as required under 18 Pa.C.S.A.
                   § 2701(a)(3)[?]

            [3.]   Whether the evidence presented at trial
                   demonstrated that the individual who robbed
                   the Canton Restaurant on December 29, 2015
                   was in fact [appellant?]

            [4.]   Whether [appellant’s] sentence of no less than
                   seven (7) years to twenty (20) years was
                   harsh, severe and excessive in light of the
                   surrounding circumstances[?]

Appellant’s brief at 7 (capitalization omitted).

      Appellant’s first three issues challenge the sufficiency of the evidence.

            In reviewing a challenge to the sufficiency of the
            evidence, we must determine whether, viewing the
            evidence in the light most favorable to the
            Commonwealth as verdict winner, together with all
            reasonable inferences therefrom, the trier of fact
            could have found that each and every element of the
            crimes charged was established beyond a reasonable
            doubt.


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Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa.Super. 2015).

      The statutory definition of robbery reads, in pertinent part, as follows:

            § 3701. Robbery.

            (a)   Offense defined.

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

                  ....

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

                         ....

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

18 Pa.C.S.A. § 3701(a)(1)(ii), (v).

      Appellant complains that the evidence was insufficient to convict him

of robbery under Section 3701(a)(1)(ii) because appellant “made no verbal

threats to the [victim]”; appellant “never brandished a weapon”; the victim

“did not observe any firearm throughout the entire incident”; and the victim

followed appellant’s orders.    (Appellant’s brief at 12.)   As such, appellant

contends that the evidence failed to demonstrate that appellant threatened

the victim or intended to put her in fear of immediate serious bodily injury

and that it failed to demonstrate that the victim was threatened or feared



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immediate serious bodily injury.       Appellant further complains that the

evidence was insufficient to convict him under Section 3701(a)(1)(v)

because appellant “removed the cash from the cash register, not from the

[victim’s] person.” (Id.) Appellant is mistaken.

      In a case starkly similar to this, this court found that where the

Commonwealth presented evidence that the defendant pressed a hard object

into the victim’s side and told the victim to give him all the money from the

cash register and the safe, and the victim complied, the evidence was

sufficient for the jury, sitting as fact-finder and examining the evidence in its

totality, to convict under Sections 3701(a)(1)(ii) and (v). Commonwealth

v. Taylor, 831 A.2d 661, 664 (Pa.Super. 2003).

      Here, at trial, the victim testified that appellant “came along next to

[her,]” “pointed something in her side[,]” and told her to “open the

register.”   (Notes of testimony 9/7/16 at 20.)     The victim further testified

that the object that appellant put into her side was covered with a

handkerchief or a bandana. (Id.) She stated that she did what appellant

told her to do and “feared for [her] life.” (Id. at 21.)

      Therefore, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, we find that the Commonwealth presented sufficient evidence for

the jury, sitting as fact-finder, to find every element of the robbery counts




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under Section 3702(a)(1)(ii) and (v) was established beyond a reasonable

doubt.

      Appellant next complains that the evidence was insufficient to sustain

his conviction for simple assault under Section 2701(a)(3) because the

victim “testified that no verbal threats were made to her and she never

observed any firearm during the brief incident.”       (Appellant’s brief at 13.)

Appellant cites no authority -- and we are aware of none -- for his

contention that to be convicted of simple assault, the Commonwealth was

required to prove that he verbally threatened the victim and that the victim

observed a firearm during the assault.

      A person is guilty of simple assault if he “attempts by physical menace

to put another in fear of imminent serious bodily injury.”         18 Pa.C.S.A.

§ 2701(a)(3).   Again, at trial, the victim testified that appellant pressed a

hard object into her side, instructed her to open the cash register, and that

she “feared for [her] life.”   (Id.)   Viewing this evidence in the light most

favorable to the Commonwealth, together with all reasonable inferences

therefrom, we find that the Commonwealth presented sufficient evidence for

the jury, sitting as fact-finder, to find every element of Section 2701(a)(3)

was established beyond a reasonable doubt.

      Appellant next complains that the Commonwealth failed to present

sufficient evidence that appellant was the person who robbed the restaurant.

The record belies appellant’s claim.         During trial, the victim identified



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appellant as the person who robbed the restaurant.         (Notes of testimony,

9/7/16 at 18.)    The victim further testified that immediately prior to the

robbery, appellant took a can of soda from the cooler and placed it on the

counter. (Id. at 19-20.) The record reflects that law enforcement secured

the soda can and subsequently sent it to the Pennsylvania State Police Crime

Lab for analyzation of latent fingerprints.    (Id. at 43-47, 55-56, 68.)       At

trial, the Commonwealth presented forensic evidence that the fingerprints

lifted from the soda can were appellant’s fingerprints.             (Id. at 89.)

Therefore, this claim fails.

      Appellant finally challenges the discretionary aspects of his sentence.

            [T]he proper standard of review when considering
            whether      to    affirm    the    sentencing   court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment        exercised     was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.




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Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted; brackets in original).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (1) whether appellant has
                  filed a timely notice of appeal, see
                  Pa.R.A.P. 902 and 903; (2) whether the
                  issue   was   properly   preserved    at
                  sentencing or in a motion to reconsider
                  and modify sentence, see Pa.R.Crim.P.
                  [720]; (3) whether appellant’s brief has
                  a fatal defect, Pa.R.A.P. 2119(f); and
                  (4) whether there is a substantial
                  question that the sentence appealed
                  from is not appropriate under the
                  Sentencing     Code,    42     Pa.C.S.A.
                  § 9781(b).

Moury, 992 A.2d at 170 (citation omitted; brackets in original).

      Here, appellant filed a timely notice of appeal and properly preserved

his sentencing challenge in his post-trial motion for modification of sentence.

As the Commonwealth observes, however, appellant has failed to include in

his brief the requisite Rule 2119(f) statement. (Commonwealth’s brief at 12

n.3.) Because the Commonwealth merely observes its exclusion and does

not object to its omission, the defect is not necessarily fatal.                  See

Commonwealth v. Maneval, 688 A.2d 1198, 1199 (Pa.Super. 1997)

(“When    the   Commonwealth     does       not   object   to   the   omission   of   a



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Rule 2119(f) statement, this Court can overlook the omission if the presence

or absence of a substantial question can be easily determined from the

appellant’s brief.”), citing Commonwealth v. Saranchak, 675 A.2d 268,

277 n.18 (1996).

      That said, it is fairly obvious that appellant fails to raise a substantial

question concerning the appropriateness of his sentence. Appellant claims

that his sentence     is “harsh, severe     and excessive in light of the

circumstances,” despite it falling within the standard range of the sentencing

guidelines, because “the evidence was highly circumstantial,” the “alleged

victim was not injured,” “[e]ven though appellant is a repeat felon, his

record does [not] reflect any violent history, nor a propensity for violence,”

and his “rehabilitative needs will not be adequately addressed.” (Appellant’s

brief at 17.) Appellant has entirely failed to demonstrate how the sentence

is inconsistent with a specific provision of the sentencing code or in what

way it is contrary to the fundamental norms that underlie appellant’s

sentencing process.     In fashioning appellant’s sentence, the trial court

reviewed the presentence investigation report, considered the nature and

seriousness of the offense, considered appellant’s status as a repeat felon

under his prior record score, considered the need to protect the community,

and considered appellant’s rehabilitative needs.         (Trial court opinion,

12/5/16 at 9-10.)      Therefore, appellant fails to present a substantial

question for our review.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/21/2017




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