J-S49028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    DECEE KARNGBAYE

                             Appellant                No. 1872 MDA 2017


        Appeal from the Judgment of Sentence imposed October 4, 2016
               In the Court of Common Pleas of Lancaster County
                Criminal Division at No: CP-36-CR-0004753-2015


BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                       FILED NOVEMBER 15, 2018

        Appellant, Decee Karngbaye, appeals from the judgment of sentence

imposed on October 4, 2016 in the Court of Common Pleas of Lancaster

County following his convictions of robbery, criminal conspiracy to commit

robbery, and theft by extortion.1 Appellant argues insufficiency of evidence

and sentencing errors.         We find the evidence was sufficient to support

Appellant’s convictions but agree the trial court erred in its imposition of

certain aspects of Appellant’s sentence, although the errors did not affect the

overall sentence.




____________________________________________


* Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(c) and 3923(a)(1), respectively.
J-S49028-18


      The trial court aptly summarized the unusual facts underlying this case

in the “Background” portion of its Rule 1925(a) opinion, complete with

citations to the notes of testimony.    Briefly, Appellant played the role of

bodyguard to his co-conspirator, Cole Williams (Williams), in a scam that

resulted in payment of more than $16,000 to Appellant and Williams by their

victim, Addisu Eggu (Eggu). Appellant and Williams first visited Eggu on April

30, 2015, in the restaurant Eggu established and operated in Lancaster after

emigrating to the United States from Ethiopia. In that initial visit, Williams

claimed he was the Abdullah, the son of the President of Liberia, and had five

million dollars he wanted to invest in Eggu’s restaurant. Because Eggu was

busy with other customers, he gave Appellant and Williams his business card.

      On the following Monday, May 4, 2015, Williams called Eggu to say he

and his bodyguard (Appellant) would be visiting Eggu to discuss investing.

The two men arrived at the restaurant the following day, with Williams

carrying a black backpack he claimed contained $50,000 in cash, illustrating

how serious he was about investing. Williams ordered Eggu to lock the door

to the restaurant causing Eggu to protest about the loss of customers. At that

point, Appellant’s shirt moved or was lifted up revealing what Eggu described

as the handle of a black gun in Appellant’s waistband.

      Eggu told the men he did not need any money. Appellant then asked if

there were video cameras on site.      When Eggu acknowledged there were

cameras, Appellant directed Eggu to go to a back room (his office) to talk with


                                     -2-
J-S49028-18


Williams.   According to Eggu, Williams then showed him photographs of

beheaded Ethiopians and told Eggu that would happen to him and to his family

if he did not give Williams $20,000. Eggu and Williams then returned to the

dining room of the restaurant.

      Before Appellant and Williams left the restaurant that day, Eggu gave

them the $200 he had on his person. He then pulled together $1,000 and

called the men at the number they had given him. They set up a meeting at

local hotel where Eggu gave them $1,000. Angered it was not the $20,000

demanded, Appellant threw the money in Eggu’s face, took Eggu into the

bathroom where he placed his hand over Eggu’s nose and mouth, and

commented to the effect that Eggu “not do nothing.” When Eggu claimed he

could get more money, they let him go, but kept the $1,000.

      Eggu borrowed $3,000 from a friend, took out an $8,000 line of credit

from his bank, and withdrew $4,000 from his checking account.             After

reporting to Appellant that he was able to come up with only $15,000,

Appellant assured Eggu that they would be able to multiply that amount many

times over. Although Eggu did not believe Appellant about the money, he was

terrified of the men and acted out of fear.

      Appellant and Williams returned to the restaurant on May 8 and

instructed Eggu to turn off the video cameras and the lights. They brought

with them a black bag filled with white paper cut to the size of U.S. currency.

Essentially, they put a brown chemical in the bag and instructed Eggu to put


                                     -3-
J-S49028-18


the bag in the refrigerator and not touch it. They left with Eggu’s $15,000

and said they would be back to collect the black bag.

        Later that night, Eggu began receiving calls from people claiming to be

from Syria who threatened Eggu and told him not to touch the black bag.

Frightened for his safety and the safety of his family, Eggu drove back and

forth multiple times between his home and the restaurant, to check on his

family and to see if the men had returned to the restaurant. He eventually

woke his wife and told her what happened. She convinced him to contact the

police. A friend escorted him to the police station the next day where he spoke

with an intake officer to whom he gave the black trash bag. Police testing of

the bag confirmed Appellant’s fingerprint. Cell phone forensics revealed that

the cell phone Eggu called pinged at towers aligning with Eggu’s version of

events and primarily pinged at an address close to Appellant’s New Jersey

residence. Police determined Appellant’s identity and took him into custody

on September 18, 2015.

        The case proceeded to trial on August 3, 2016. At the conclusion of the

three-day trial, a jury convicted Appellant of three counts of robbery,

conspiracy to commit robbery, and two counts of theft by extortion. He was

sentenced on October 4, 2016 to an aggregate sentence of seven and a half

to fifteen years in a state correctional facility.2 Post-sentence motions were

____________________________________________


2   The court announced the sentence as follows:



                                           -4-
J-S49028-18


denied and this appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Appellant presents four issues for our consideration:

       I.     Did the trial court err in finding that the sentencing guideline
              enhancement for deadly weapon used applied to Counts 1
              and 5, where the Commonwealth did not prove by a
              preponderance of the evidence that [Appellant] possessed
              or used a deadly weapon during the commission of the
              alleged robbery on May 5, 2015?

       II.    Was the evidence presented by the Commonwealth
              insufficient to sustain [Appellant’s] conviction for robbery,
              as set forth in Counts 2 and 3 of the Information, where the
              actions of [Appellant] and the codefendant did not
              constitute a threat to place Mr. Eggu, or intentionally place

____________________________________________




             Count 1, robbery, three-and-a-half-to-seven years SCI, plus
       costs. Please note that the minimum sentence is within the
       guidelines regardless of whether I deem it a weapon possessed or
       a weapon used.
             Count 2, robbery, two to four years SCI, consecutive to
       Count 1.
             Count 3, robbery, two to four years SCI, consecutive to
       Count 1 and 2, costs on both.
             Counts 4 and 6, one to two years SCI, concurrent with each
       other, and concurrent with Count 1.
             Count 5 is costs only.
             The aggregate sentence is seven-and-a-half to 15 years
       SCI. Restitution in the amount of $16,000. No contact with the
       victim.

N.T., Sentencing, 10/4/16, at 14-15. By way of explanation, we note that
Counts 1, 2 and 3 stemmed from the robberies on May 5, 6 and 8, 2015,
respectively. Count 4 involved criminal conspiracy. Counts 5 and 6 related
to theft by extortion on May 5 and 8, 2015, respectively.




                                           -5-
J-S49028-18


              Mr. Eggu, in fear of immediate serious bodily injury, in the
              course of committing a theft?

       III.   Was the imposition of sentences for theft by extortion,
              Counts 5 and 6, illegal, as these convictions should have
              merged with robbery convictions at Counts 1 and 3?

       IV.    Was Count 6, theft by extortion, allegedly occurring on
              [May] 8, 2015, illegally graded as a second-degree felony,
              when it could only be graded as a first-degree misdemeanor,
              because the jury was not instructed to determine the
              element of value which would have increased the grading of
              the offense?

Appellant’s Brief at 6-7.3

       In his first issue, Appellant asserts trial court error for applying a “deadly

weapon used” sentencing enhancement for Counts 1 and 5.4                  Appellant

contends the Commonwealth did not prove by a preponderance of evidence

that Appellant possessed or used a deadly weapon on May 5, 2015.

____________________________________________


3 In the Statement of Questions Presented, Appellant’s counsel explained, with
respect to Issue IV, that the issue was incorrectly asserted in the Rule 1925(b)
statement as improper grading of extortion (Count 6) as a second-degree
felony when it should have been graded as a third-degree felony based on the
amount allegedly stolen. Appellant’s Brief at 7. Counsel subsequently
recognized that the grading of Count 6 was illegal because there was no jury
finding of the amount at issue, making it a first-degree misdemeanor.
Because the issue involves a claim of illegal sentence, there is no issue of
waiver for failing to raise the issue properly in the Rule 1925(b) statement.
See, e.g., Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super.
2003) (en banc) (claim of illegal sentence cannot be waived and may be
considered sua sponte by this Court; further, an illegal sentence must be
vacated).

4 Again, Counts 1 and 5 relate to the robbery and theft by extortion charges,
respectively, from May 5, 2015.


                                           -6-
J-S49028-18


     As Appellant recognizes, a challenge to imposition of a deadly weapon

enhancement constitutes a challenge to the discretionary aspects of

sentencing.    In    keeping   with   the   requirements   for   challenging   the

discretionary aspects of sentencing, Appellant has included a Rule 2119(f)

statement and has raised a substantial question. Therefore, we shall consider

it. See Commonwealth v. Raybuck, 915 A.2d 125, 127 (Pa. Super. 2006)

(application of the deadly weapons enhancement presents a substantial

question); Commonwealth v. Pennington, 751 A.2d 212, 215-16 (Pa.

Super. 2000) (same).

     Here, the trial court recognized that it has “no discretion to refuse to

apply the deadly weapons enhancement when it is appropriate.” Trial Court

Opinion, 1/25/18, at 10 (quoting Raybuck, 915 A.2d at 129). By definition,

a firearm, whether loaded or unloaded, is a deadly weapon under the deadly

weapons enhancement provision of the sentencing guidelines. 204 Pa. Code

§ 303.10(a)(2)(i).

     Appellant does not challenge the trial court’s authority to apply the

enhancement. Rather, Appellant contends the evidence does not support the

trial court’s finding, by a preponderance of the evidence, that Appellant

possessed or used a deadly weapon during the encounter with Eggu on May

5, 2015. The trial court rejected that assertion, noting “the Commonwealth

presented unrebutted testimony that [Appellant] brandished a handgun when

he commanded the victim to lock the door of the restaurant” such that the


                                      -7-
J-S49028-18


trial court “found the victim’s testimony to be credible and consistent on this

interaction and more than sufficient to find that [Appellant] used a deadly

weapon to intimidate the victim by a preponderance of the evidence.” Trial

Court Opinion, 1/25/18, at 10. We agree. As the Commonwealth recognizes,

“[a]lthough there is no clear part of the video that shows [Appellant] exposing

a firearm, there are at least two parts of the video where [Appellant] is not

fully visible.” Commonwealth Brief at 11. The timing of those parts of the

video coincides with the time just prior to Eggu locking the door, supporting

Eggu’s testimony that Appellant showed the firearm when he instructed Eggu

to lock the door. Id. Therefore, we find no abuse of discretion on the part of

the trial court for applying the deadly weapon enhancement for Counts 1 and

5.5 Appellant’s first issue fails.

       In his second issue, Appellant argues the evidence was insufficient to

sustain his convictions on Counts 2 and 3, relating to the robbery charges

from May 6 and May 8, 2015, respectively. He contends his actions and those

of Williams in the course of committing a theft did not threaten Eggu or

intentionally put Eggu in fear of immediate bodily injury.

       Our Supreme Court has explained:

       A claim challenging the sufficiency of the evidence is a question of
       law. Evidence will be deemed sufficient to support the verdict
____________________________________________


5 The trial court noted that “the minimum sentence is within the guidelines
regardless of whether I deem it a weapon possessed or a weapon used.” N.T.,
Sentencing, 10/4/16, at 15.


                                           -8-
J-S49028-18


      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a reasonable
      doubt. Where the evidence offered to support the verdict is in
      contradiction to the physical facts, in contravention to human
      experience and the laws of nature, then the evidence is insufficient
      as a matter of law. When reviewing a sufficiency claim the court
      is required to view the evidence in the light most favorable to the
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations

omitted). Further:

      The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute our
      judgment for that of the fact-finder. The Commonwealth’s burden
      may be met by wholly circumstantial evidence and any doubt
      about the defendant’s guilt is to be resolved by the fact finder
      unless the evidence is so weak and inconclusive that, as a matter
      of law, no probability of fact can be drawn from the combined
      circumstances. Additionally, in applying the above test, the entire
      record must be evaluated and all evidence actually received must
      be considered.
Commonwealth v. Feliciano, 67 A.3d 19, 23-24 (Pa. Super. 2013) (en

banc) (quoting Commonwealth v. Stokes, 38 A.3d 846, 853–854 (Pa.

Super. 2011) (internal citations and quotations omitted)).

      Appellant contends that the thefts committed on May 6 and May 8, 2015

constituted thefts by extortion, not robberies.       Appellant’s Brief at 23.

Pursuant to 18 Pa.C.S.A. § 3923(a)(1), relating to theft by extortion, “[a]

person is guilty of theft if he intentionally obtains or withholds property of

another by threatening to: (1) commit another criminal offense[.]”           By

contrast, under 18 Pa.C.S.A. § 3701(a)(1)(ii), “[a] person is guilty of robbery

                                     -9-
J-S49028-18


if, in the course of committing a theft, he: . . . (ii) threatens another with or

intentionally puts him in fear of immediate serious bodily injury[.]” Appellant

asserts:

      The key distinction between theft by extortion and robbery is that
      robbery involves threatening a person with “immediate serious
      bodily injury” in the course of committing a theft, whereas theft
      by extortion is accomplished by threatening to commit a criminal
      offense if the person does not comply with the demand for money,
      without the immediate threat of serious bodily injury required for
      a robbery.

Appellant’s Brief at 23 (emphasis in original).

      Appellant offers a summary of facts relating to the May 6 and May

8, 2015 events and concludes:

      The threat which was driving Mr. Eggu’s behavior on May 6 th was
      a threat to harm Mr. Eggu and his family if he did not bring them
      more money, not a threat to commit immediate serious injury to
      Mr. Eggu in the course of the theft of the $1000. Mr. Eggu was in
      fear of future injury to himself and his family; he was not in fear
      of immediate serious bodily injury in the course of the commission
      of the theft.

      Similarly, Mr. Eggu gave $15,000 to the men on May 8, 2015, not
      to avoid immediate serious bodily injury, but to prevent injury to
      himself and his family at some unknown future time. It does not
      make sense to suggest that Mr. Eggu called the men to his
      restaurant so that they could put him in fear of serious bodily
      injury; rather, he called them to the restaurant in hopes that
      giving them another $15,000 would prevent future injury to
      himself and his family.     Again, this was textbook theft by
      extortion, and not robbery.

Id. at 26-27 (emphasis added).

      Appellant ignores the principles that the evidence is to be viewed in the

light most favorable to the Commonwealth as verdict winner and that


                                     - 10 -
J-S49028-18


Commonwealth’s burden may be satisfied by wholly circumstantial evidence

with the fact finder resolving any doubt as the defendant’s guilt. See Widmer

and Feliciano, supra. Further, as the Commonwealth recognizes, the use of

threatening words, gestures or aggressive actions threatening a victim’s

safety can support a felony robbery conviction. Commonwealth Brief at 13-

14 (citing, inter alia, Commonwealth v. Bragg, 133 A.3d 328, 332 (Pa.

Super. 2016) and Commonwealth v. Davis, 459 A.2d 1267, 1272 (Pa.

Super. 1983)).

     As the trial court explained, on May 6, Eggu went to the hotel to meet

Appellant and Williams. When he presented his $1,000 to the men, Appellant

threw it back in Eggu’s face, made comments about Eggu doing nothing, and

put his hand over Eggu’s mouth and nose.      Those actions, the trial court

determined, “would put a reasonable person in fear that [Appellant] intended

to asphyxiate him. That threat of immediate serious bodily injury coupled

with the theft of the $1,000 is textbook robbery and the evidence was more

than sufficient for the jury to find [Appellant] guilty on Count Two of the

Information.” Trial Court Opinion, 1/25/18, at 8-9. We agree.

     With regard to the May 8 events, the trial court concluded that Eggu

was still under a continued threat that noncompliance with the demands of

Appellant and Williams could lead to immediate and deadly consequences for

Eggu and his family. Having previously seen the handle of Appellant’s gun,

Eggu continued to fear he could be shot if he did not comply with the men’s


                                   - 11 -
J-S49028-18


demands.    “The threat of force made to Mr. Eggu and his knowledge that

[Appellant] possessed a gun were sufficient to find that Mr. Eggu was under

the threat of immediate serious bodily injury when the two men took the

$15,000 from his restaurant on that day.” Id. at 9-10. Again, we agree with

the trial court’s conclusion that “the evidence presented at trial was more than

sufficient for the jury to find [Appellant] guilty on Count Three of the

Information.” Id. at 10.

      Viewing the evidence and reasonable inferences therefrom in the light

most favorable to the Commonwealth as verdict winner, we agree the

evidence was sufficient to support Appellant's robbery convictions under

Section 3701(a)(1)(ii) for both Counts 2 and 3. Therefore, he is not entitled

to relief on his second issue.

      In his third issue, Appellant contends that his sentences for Counts 5

and 6, relating to theft by extortion, should have merged with his robbery

convictions at Counts 1 and 3.        The trial court agreed and noted the

Commonwealth also conceded the offenses should have merged. Trial Court

Opinion, 1/25/18, at 10.         See also Commonwealth Brief at 18 (“the

Commonwealth agrees that the sentences on these counts should be vacated

while the sentences on the remaining counts should remain.           Since the

sentences on the theft charges were concurrent to the sentences on the

robbery charges, the [s]entencing [c]ourt’s ultimate sentence need not be




                                     - 12 -
J-S49028-18


disturbed.”).   Therefore, the sentences imposed for Counts 5 and 6 are

vacated.

      In his fourth and final issue, Appellant challenges the legality of the

sentence imposed for Count 6. We have already vacated that sentence but

note the extortion charge for Count 6 should have been graded as a

misdemeanor of the first degree because the jury did not assign a value to

the theft at issue.

      While we agree that Appellant’s judgments of sentence on Counts 5 and

6 must be vacated, we recognize the sentence imposed for Count 5 was costs

only, while the sentence imposed for Count 6 was one to two years in prison

concurrent with the sentence for Count 4 and concurrent with the sentence

for Count 1. Therefore, vacating the sentences for Counts 5 and 6 does not

upset the overall sentencing scheme and a remand for resentencing is not

necessary. Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006).

      Judgments of sentence on Counts 5 and 6 vacated. In all other respects,

Appellant’s judgment of sentence is affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2018


                                    - 13 -
