J-S36010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTIAN BAER

                            Appellant                No. 1206 WDA 2014


             Appeal from the Judgment of Sentence June 25, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016213-2013


BEFORE: PANELLA, J., JENKINS J., and STRASSBURGER, J.∗

MEMORANDUM BY PANELLA, J.                       FILED SEPTEMBER 14, 2015

        Appellant, Christian Baer, appeals from the judgment of sentence

entered by the Allegheny Country Court of Common Pleas, challenging the

sufficiency of the evidence and the denial of his petition to file a motion for

post-sentence relief nunc pro tunc. We reverse the judgment of sentence.

        On November 5, 2013, Shawn Daniel Lynn biked over to Charlene

Marish’s apartment after she sent him a text message saying that she and

Baer, her live-in boyfriend, had had a bad argument. Lynn had been talking

with Marish in her living room for approximately 15 minutes when Baer and

two or three other people walked through the front door.         Baer became

aggressive and accused Lynn of being there only to have sex with Marish.
____________________________________________


∗
    Retired Senior Judge assigned to the Superior Court.
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Baer then took a sword off the wall and, pointing it at Lynn from

approximately six to eight feet away, told Lynn that he would have to leave

the apartment naked or Baer would beat him up.

       As Lynn stripped off his clothing, Baer took Lynn’s cellphone from his

hooded sweatshirt and broke it in half. Lynn then left the apartment naked,

leaving behind his bicycle and his backpack containing clothing and a

scrapbook. Over the next several days, Baer sent threatening text and voice

mail messages to both Lynn and Lynn’s girlfriend, Alexandra Leezajac.

       Lynn reported the incident to police on November 10, 2013.         The

police filed an affidavit of probable cause, an arrest warrant, and a criminal

complaint, each accusing Baer of committing Robbery, 18 Pa.C.S.A. §

3701(a)(1)(v), taking property by “force, however slight,” a third-degree

felony, and criminal mischief, a summary offense.1      After his arrest, the

notice of the preliminary hearing, the form waiving the preliminary hearing,

the commitment form, the bail bond form, and the pre-trial “release of

prisoner” form each cited only Section 3701(a)(1)(v) as the robbery offense




____________________________________________


1
   Many documents contained in the certified record notate the robbery
offense using only upper case letters and upper case roman numerals, e.g.,
“I” for “i” or “V” for “v”, i.e., “18 §3701§§A1I.” Throughout this
memorandum, except where indicated, we use the accepted legal citation of
the statute as it was written by the legislature, i.e., “18 Pa.C.S.A. §
3702(a)(1)(i).”




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at issue.   The Magisterial District Court’s docket also lists the robbery

offense as falling under subsection (v).

      Formal arraignment was scheduled by the Court of Common Pleas for

January 15, 2014.     The certified record contains a multi-page document

that, in total, is purportedly the Information filed by the Allegheny County

District Attorney. See Certified Record (“CR”), Document #2.       The first

page, which is unnumbered, is titled only “Commonwealth of Pennsylvania

vs. Christian Julian Baer,” and is date-stamped as having been filed on

January 14, 2014. That page states that Count 1 is “1837011A1I: Robbery -

Serious Bodily Injury.” Annexed to that first page is a two-page document,

numbered at the bottom with “1” and “2,” stamped with the signature of the

Allegheny County District Attorney stating, in relevant part, that “by this

information,” the offense charged was:

 Count 1      ROBBERY – SERIOUS BODILY INJURY               Felony 1

      The actor in the course of committing a theft, either
      inflicted serious bodily injury upon Sean Lynn,
      threatened that person or persons with, or put that
      person or persons in fear of immediate serious bodily
      injury, in violation of Section 3701(a)(1)(i) or (ii) of
      the Pennsylvania Crimes Code, Act of December 6,
      1972, 18 Pa.C.S. § 3701(a)(1)(ii) or (ii).

Information (undated) from District Attorney of Allegheny County at 1, CR,

document #2, at page numbered 1.

      A bench trial occurred on April 14, 2014. After hearing testimony from

Lynn and Lynn’s girlfriend, the court announced its verdict, as follows:



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“Okay.     I’ve listened to the testimony.   At Count One, Robbery, serious

bodily injury, I find you guilty. At criminal mischief, summary offense, I find

you not guilty.” Notes of Testimony – Trial, 4/14/14, at 34.

      On the lower right-hand corner of the first unnumbered page of the

information, the page indicating that Count 1 is for Robbery under Section

3701(a)(1)(i), is a handwritten note, dated 4/14/14, stating: “After trial in

open court, defendant is hereby found guilty on Count 1 and not guilty on

Count 2.     By the Commonwealth.”     That notation is followed by another

purportedly handwritten notation (which actually appears to be a stamp):

“By the court, Machen, J.” On the back of that same page is another stamp,

with 4/14/14 handwritten therein, that states: “Sentence deferred pending

pre-sentence report” followed by the handwritten notation: “and BC.

Sentencing Set on 6/25/14. Defendant in Ag.” That entry is followed by the

stamp which states: “By the court Machen, J.”          CR, document #2, at

unnumbered page.

      Sentencing occurred on June 25, 2014. The sentencing transcript that

is part of the certified record contains absolutely no reference by either the

court or counsel to the crime for which Baer was being sentenced.           In

announcing the sentence, the court stated:

      For the record, I have reviewed the Behavior Clinic evaluation
      and the pre-sentence investigation report. I would agree with
      the Commonwealth that a standard range sentence is in order.
      I’m going to sentence you --- the standard range on the low end
      is 36 to 48 months. I’m going to sentence you to [3] to [10]


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      years in the State Penitentiary to be followed by a period of ten
      years consecutive probation[.]

Notes of Testimony – Sentencing, 6/25/14, at 5-6.

      The written sentencing order signed by the trial court states that Baer

was found guilty of Robbery-Inflict Serious Bodily Injury, 18 Pa.C.S.A. §

3701(a)(1)(i), and sentenced to three to ten years’ incarceration on that

conviction.   See   CR,    document     #4.    The     document       entitled   “Court

Commitment     State      or   County   Correctional   Institution”     matches    the

sentencing order and indicates that Baer was sentenced to confinement for

the offense of “Robbery-Inflict Serious Bodily Injury,” 18 Pa.C.S.A. §

3701(A)(1)(i). CR, document #5.

      Baer did not file a post-sentence motion within 10 days of the

judgment of sentence. On July 17, 2014, he filed a “post-sentence motion

nunc pro tunc,” which the trial court denied.          He timely appealed to this

Court.

      Baer raises the following issues:

      a. Whether the evidence was insufficient as a matter of law to
         convict Mr. Baer of Count 1 – Robbery (inflict Serious Bodily
         Injury) when the Commonwealth failed to prove, beyond od a
         reasonable doubt, that Mr. Baer, in the course of committing
         a theft, inflicted serious bodily injury upon Lynn, as required
         by 18 Pa.C.S. § 3701(a)(1)(i)?

      b. Whether the trial court abused its discretion in not granting
         Mr. Baer’s Petition to Accept Post-Sentence Motion Nunc Pro
         Tunc, thereby preventing him from being able to raise on
         direct appeal challenges to the weight of the evidence and the
         discretionary aspects of his sentence?


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Appellant’s Brief at 6.

      Appellate review of a challenge to the sufficiency of the evidence 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 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. Valentine, 101 A.3d 801, 806 (Pa.Super. 2014)

(citation omitted).

      The offense of Robbery is defined, in relevant part, as:

      (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;

      [or]

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


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18 Pa.C.S.A. § 3701(a)(1)(i) and (ii).

       Baer avers that his conviction under Section 3701(a)(1)(i) is not

supported by sufficient evidence. He observes that there was no evidence

presented that he inflicted any bodily injury upon Lynn so as to satisfy the

element of “inflicts serious bodily injury” set forth in Section 3701(a)(1)(i).

The Commonwealth responds that Baer was “not convicted of inflicting

serious bodily injury on the victim during the course of committing a theft.

Rather,      he    was   convicted   of   violating   18   Pa.C.S.   §   3701(a)(1)(ii),

threatening the victim with or putting the victim in fear of serious bodily

injury[.]”        Appellee’s Brief at 2.2      The Commonwealth relies on the

“Sentencing Guideline Form” annexed to the actual Order of Sentence, a

portion of the information, and the opinion of the trial court but without

citation or quotation.3,4


____________________________________________


2
  Without citation to case law, the Commonwealth argues that the conviction
under subsection (i) was due to a “scrivener’s error” in the use of a capital
“I” instead of lower case Roman numeral (ii) in the sentencing order.
Appellee’s Brief at 2.        This argument is specious at best.        The
Commonwealth is well aware that offenses are frequently notated by the
police, the prothonotary’s office, and sometimes Chambers’ secretaries with
upper case letters instead of lower case letters, and with Arabic numbers
instead of Roman numerals. Contrary to the Commonwealth’s implication, it
would be unusual for anyone to interpret the use of “I” to actually mean “ii”
and not “i.”
3
  Annexed to the Order is a sentencing guideline form indicating that the
offense was “Robbery-threatens SBI 18 3701 A1II.” CR, document # 4 at
(unnumbered) 3.      Contrary to the Commonwealth’s assertion, the
(Footnote Continued Next Page)


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      Because the Commonwealth has asserted that Baer was convicted

under subsection (ii), not subsection (i), we must first clarify what exactly

was the offense with which Baer was charged, tried, and sentenced. This is

a rather startling proposition given the procedural posture of this case.

      As noted, the Commonwealth’s documents purportedly comprising the

criminal information are inconsistent with respect to the charged offense.

One page indicates that Baer was charged only under 18 Pa.C.S. §

3701(a)(1)(i); another page states that he was charged under either

subsection (i) (inflicts serious bodily injury) or (ii) (threatens serious bodily

injury), but not both.        Following trial, the court hand-wrote its verdict as

“guilty on count 1” on the same document where Count 1 is defined as

“183701A1I Robbery-Serious Bodily Injury.”

      During the sentencing hearing, neither the trial court nor the

prosecution indicated exactly upon what crime Baer’s sentence was based.

In addition, at no time during the sentencing hearing did either party seek

any sort of clarification from the trial court with respect to the crime for

which the court was imposing sentence.            Most significantly, the Order of

Sentence and the Commitment documents each clearly indicate that Baer

                       _______________________
(Footnote Continued)

sentencing guideline form is not an order of the court and carries no
dispositive authority.
4
  The Commonwealth does not argue that subsection (ii) is a lesser included
offense of (i).



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was convicted of “Count 1 – 18 §3701 §§A1I - Robbery -- Inflicts Serious

Bodily Injury.”   CR, Documents #4 and #5 (emphasis added).           Thus, we

conclude that Baer was convicted of Robbery – inflicts serious bodily injury,

18 Pa.C.S.A. § 3701(a)(1)(i). See generally Commonwealth v. Brooker,

103 A.3d 325, 329 n.4 (Pa. Super. 2014) (observing sentencing issues are

to be resolved in accordance with the written sentencing order).

      We now address whether the evidence presented was sufficient to

prove that Baer inflicted serious bodily injury during the course of a theft. It

was not.

      “Serious bodily injury” is defined by our legislature as “[b]odily injury

which creates a substantial risk of death or which causes serious, permanent

disfigurement or protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa.C.S.A. § 2602.

      At trial, Lynn testified as follows:

      LYNN: [Baer] walked through the door with a couple of friends;
      and he proceeded to threaten me, saying that I was there simply
      to have sex with his girlfriend.

                                  ***
      COMMONWEALTH:             How did you respond to [ ] Baer’s
      accusations?

      LYNN: I mean, I told him I wasn’t there for that, which I wasn’t;
      and he still proceeded to take it further.

      COMMONWEALTH: Take it further, meaning what?

      LYNN: He grabbed a sword off of the wall and proceeded to
      point it at me and threaten me.



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                                 ***

      COMMONWEALTH: And what did he do after he grabbed the
      sword off the wall?

      LYNN: He proceeded to point it at me and tell me I’m either
      leaving basically beat up or I’m leaving with nothing.

      COMMONWEALTH: And what was he doing with the sword
      while he was telling you this?

      LYNN: He was pointing it right at me.

      COMMONWEALTH: And how close was he?

      LYNN: Maybe about six, eight feet away.

                                 ***
      COMMONWEALTH: After [ ] Baer made the statement to you,
      either you were going to leave beat up or with nothing, what did
      you do?

      LYNN: I proceeded to strip down to nothing.

      COMMONWEALTH: Then what did you do?

      LYNN: I left.

Notes of Testimony-Trial 4/14/14, at 10–12.

      There was absolutely no testimony or any other evidence, direct or

circumstantial, showing that Baer inflicted serious bodily injury or that Lynn

suffered any bodily injury. Thus, “viewing all the evidence admitted at trial

in the light most favorable to the verdict winner,” we cannot conclude that

there was sufficient evidence to enable the fact-finder to find every element




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of 18 Pa.C.S. § 3701(a)(1)(i) beyond a reasonable doubt. Accordingly, we

reverse the judgment of sentence.5

        Judgment of sentence reversed.             Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.

        Judge Strassburger concurs in the result.

        Judge Jenkins files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/2015




____________________________________________


5
    Due to our disposition, we need not review Baer’s second issue.



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