J-S21002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                          Appellee

                     v.

JOEL T. GROCE,

                          Appellant                      No. 1812 EDA 2013


             Appeal from the Judgment of Sentence June 7, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005801-2012


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                                   FILED MAY 01, 2015

       Joel T. Groce appeals from the judgment of sentence of one and one-

half to three years imprisonment to be followed by three years of probation

after the court found him guilty of robbery, theft, receiving stolen property,

recklessly endangering another person (“REAP”), simple assault, and

harassment. After careful review, we affirm.

       The trial court related the following facts.

             On January 11, 2012, at approximately 8:50 a.m., Crystal
       Corbin, the complaining witness, dropped her son off at his
       elementary school located at the intersection of Sharpnack
       Street and Chew Avenue. As Ms. Corbin exited her vehicle, she
       observed an SUV driving towards her, driving the wrong way
       down a one-way street. As the SUV approached, Ms. Corbin
       heard a male voice yelling something that she could not
       understand. The driver of the SUV, identified as the defendant,
       stopped and exited the vehicle and punched Ms. Corbin in the
       face twice, striking her right eye with a closed fist. After the
       defendant punched Ms. Corbin, the two continued “scuffling for


*
    Retired Senior Judge assigned to the Superior Court.
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      maybe 2 or 3 minutes.” Ms. Corbin sustained a black eye and
      her shirt was torn. During the assault, Ms. Corbin screamed for
      help and nearby crossing guards “tried to intervene by talking to
      the defendant” and calling the police. At some point during the
      assault, Ms. Corbin lost track of her car keys. After a few
      minutes, the defendant stopped attacking Ms. Corbin and left the
      scene in his vehicle. The defendant circled the block twice
      before police responded.

            Police Officer Toya Lee, responded to the call. After Officer
      Lee arrived, the defendant returned to the location of the
      assault. Officer Lee recovered Ms. Corbin’s keys from inside the
      defendant’s vehicle. The defendant told Officer Lee that Ms.
      Corbin had struck his vehicle earlier and fled the scene. The
      defendant explained that he took Ms. Corbin’s keys to prevent
      her from leaving the area again. However, Officer Lee testified
      [that] she observed no damage to either Ms. Corbin’s or the
      defendant’s vehicles.

Trial Court Opinion, 9/19/14, at 1-2.

      The court found Appellant guilty of the aforementioned crimes on April

24, 2013. On June 7, 2013, the court sentenced Appellant on the robbery

charge only and did not impose any further sentence as to the remaining

charges. Appellant timely appealed. The trial court directed Appellant to file

and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.   Appellant complied, and the court authored its Rule 1925(a)

opinion. The matter is now ready for this Court’s review. Appellant presents

two issues for this Court’s consideration.

      1. Was not the evidence insufficient to convict appellant of
         robbery as a felony of the second degree, theft [by] unlawful
         taking   and    receiving   stolen  property     where    the
         Commonwealth failed to prove beyond a reasonable doubt
         that appellant committed any theft because appellant did not

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             take the complainant’s car keys with the intent to
             permanently deprive the complainant of them, inasmuch as
             he waited for the police to arrive, approached the police, told
             police he had the keys and that he had taken possession of
             the keys so that the complainant would not leave the scene
             as she had done earlier, indicating an intent to restore the
             keys to the complainant?

       2. Was not the evidence insufficient to convict appellant of
          recklessly endangering another person, where appellant’s
          conduct of punching the complainant twice in the face did not
          actually place the complainant in danger of death or serious
          bodily injury?

Appellant’s brief at 3.

       Each of Appellant’s issues implicates the sufficiency of the evidence. In

performing such a review, we consider all of the evidence admitted, even

improperly admitted evidence.        Commonwealth v. Watley, 81 A.3d 108,

113 (Pa.Super. 2013) (en banc).          We view the evidence in a light most

favorable to the Commonwealth as the verdict winner, drawing all

reasonable inferences from the evidence in favor of the Commonwealth. Id.

       The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   When evidence exists to allow the fact-finder to determine beyond a

reasonable doubt each element of the crimes charged, the sufficiency claim

will fail.     Id.   In addition, the Commonwealth can prove its case by

circumstantial evidence. Where “the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the


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combined circumstances[,]” a defendant is entitled to relief. Id. This Court

does not “re-weigh the evidence and substitute our judgment for that of the

fact-finder.” Id.

      Appellant’s initial argument is that the Commonwealth failed to prove

that he committed a theft of the victim’s car keys. He submits that because

he circled the block until police arrived and approached police after the

incident, the Commonwealth cannot establish a “thieving state of mind.”

Appellant’s brief at 10.   According to Appellant, the facts of this matter

demonstrate that he did not intend to permanently deprive the victim of her

car keys or withhold them for an extended period.     In Appellant’s view, his

actions are consistent with two different intentions and therefore his

conviction is based on mere suspicion and conjecture.

      The Commonwealth counters that Appellant is viewing the evidence in

a light most favorable to him. It notes that the trial court, who was the fact-

finder, expressly deemed his version of events “incredible” in its Rule

1925(a) opinion. The Commonwealth adds that Appellant did not turn over

the victim’s car keys when police arrived. Rather, the officer questioned him

about the keys before he admitted to possessing them.               Thus, the

Commonwealth maintains that Appellant did not voluntarily hand over the

keys. Since Appellant took the victim’s keys after repeatedly punching her




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in the face, the Commonwealth argues that it introduced sufficient evidence

to establish robbery, theft, and receiving stolen property.

         An individual is guilty of the robbery count alleged herein if, in the

course of committing a theft, he inflicts bodily injury upon the victim.    18

Pa.C.S. § 3701(a)(v). A theft is committed when a person “unlawfully takes,

or exercises unlawful control over movable property of another with intent to

deprive him thereof.”      18 Pa.C.S. § 3921(a).     To “deprive” a person of

property is defined in 18 Pa.C.S. § 3901 as follows:

         (1) To withhold property of another permanently or for so
         extended a period as to appropriate a major portion of its
         economic value, or with intent to restore only upon payment of
         reward or other compensation; or

         (2) to dispose of the property so as to make it unlikely that
         the owner will recover it.

Lastly, the elements of receiving stolen property are that a person

intentionally receives or retains movable property of another knowing that it

has been stolen. 18 Pa.C.S. § 3925(a).

         Instantly, viewing the facts in a light most favorable to the

Commonwealth, Appellant did not call police, nor did he turn over the keys

to police voluntarily. Rather, Appellant entered his own car and circled the

block.     When confronted by police regarding his actions, he admitted to

having the keys.      Police recovered the keys from his vehicle.     His self-

serving hearsay statement to the officer that he only intended to prevent the


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victim from leaving was not believed by the trial court. Indeed, one could

infer from the evidence that Appellant was simply waiting for the crossing-

guard and other bystanders to leave before he again confronted the victim

only to have police arrive. The court was free to conclude that Appellant’s

driving around the block was intended to menace the victim rather than wait

for police.    Accordingly, Appellant’s sufficiency argument as to robbery,

theft, and receiving stolen property fails.

         Appellant’s second claim is that the Commonwealth introduced

insufficient evidence to prove that he recklessly placed the victim in danger

of serious bodily injury. He contends that his striking of the victim in the

face twice does not rise to creating “a known and foreseeable risk that the

complainant would die or suffer permanent disfigurement.” Appellant’s brief

at 14.

         The Commonwealth responds that Appellant’s actions of punching the

victim in the face with a closed fist “very hard[,]” N.T., 4/24/13, at 13, put

the victim at risk of serious bodily injury. In support, it points out that the

head is considered a vital part of the body and a single punch can result in

serious brain injury.    The Commonwealth posits that “[t]he fact that the

victim was fortunate enough to escape serious injury should not inure to

[Appellant’s] benefit.” Commonwealth’s brief at 10.




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      In the present case, Appellant twice violently struck the victim in the

right eye with a closed fist. In addition, he grabbed the victim by the inside

lapels of her jacket and ripped her shirt. A crossing guard was unable to pull

Appellant away from the victim.      The victim sustained a black eye and

testified that she still suffers from the effects of being hit.   Punching a

person very hard in the eye on multiple occasions could cause orbital

damage and a severe injury.      That the victim did not suffer permanent

disfigurement or serious bodily injury does not mean that Appellant’s actions

were not criminally reckless. The Crimes Code defines criminal recklessness

as follows.

      A person acts recklessly with respect to a material element of an
      offense when he consciously disregards a substantial and
      unjustifiable risk that the material element exists or will result
      from his conduct. The risk must be of such a nature and degree
      that, considering the nature and intent of the actor's conduct
      and the circumstances known to him, its disregard involves a
      gross deviation from the standard of conduct that a reasonable
      person would observe in the actor's situation.

18 Pa.C.S. § 302(b)(3).     The totality of Appellant’s actions demonstrate

conduct which may have placed the victim in danger of serious bodily injury.

See 18 Pa.C.S. § 2705 (person must recklessly engage “in conduct which

places or may place another person in danger of death or serious bodily

injury.”).

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




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