J-S77024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUAN SILVA,                                :
                                               :
                       Appellant               :   No. 1695 EDA 2017

             Appeal from the Judgment of Sentence March 20, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0010759-2015,
                           CP-51-CR-0010769-2015


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                                 FILED APRIL 02, 2019

        Appellant, Juan Silva, appeals from the March 20, 2017 Judgment of

Sentence entered in the Philadelphia Court of Common Pleas following his

conviction after a non-jury trial for, inter alia, Attempted Robbery of a Motor

Vehicle.1 Appellant challenges the sufficiency of the evidence. After careful

review, we affirm.

        The relevant factual and procedural history is as follows. On September

7, 2015, Mark Stephenson entered a restaurant to pick up food while his

girlfriend, N.R., stayed outside to smoke a cigarette. Appellant approached

N.R. and sexually assaulted her. Mr. Stephenson came out of the restaurant,

witnessed the assault, and punched Appellant several times. Appellant fled

the scene while Mr. Stephenson and bystanders chased him.
____________________________________________


1   18 Pa.C.S. § 3702; 18 Pa.C.S. § 901.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       During this time, Judy Thorpe-Diallo (“Victim”) was sitting in the driver’s

seat of a parked car waiting for her granddaughter to get her hair styled at a

nearby braid shop. Appellant approached the car and instructed Victim to get

out. While Appellant briefly turned his head away, Victim grabbed her keys

and wallet and jumped out of the car. Victim ran to the braid shop, banged

on the door, and entered the shop.             Once inside, Victim saw Appellant sit

inside of her car for ten to fifteen seconds until Mr. Stephenson and the

bystanders approached; Appellant then fled on foot with the men in pursuit.

They eventually caught Appellant and held him until police arrived at the scene

and placed him under arrest.

       On November 29, 2016, after a non-jury trial, the trial court convicted

Appellant of Attempted Rape, Attempted Robbery of a Motor Vehicle, and

related offenses.2 On March 20, 2017, the court sentenced Appellant to an

aggregate term of 8½ to 25 years’ incarceration followed by 5 years of

probation. Appellant filed a Post-Sentence Motion, which the trial court denied

on April 27, 2017.

       Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.


____________________________________________


2 The trial court convicted Appellant of Aggravated Assault, Attempted Rape
by Forcible Compulsion, Unlawful Restraint, Attempted Sexual Assault, False
Imprisonment, Indecent Exposure, Indecent Assault by Forcible Compulsion,
Simple Assault, Recklessly Endangering Another Person, Attempted Robbery,
Attempted Robbery of Motor Vehicle, Attempted Theft by Unlawful Taking, and
Attempted Receiving Stolen Property.

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      Appellant raises the following issue on appeal: “Was not the evidence

insufficient for conviction of [A]ttempted [R]obbery of a [M]otor [V]ehicle

insofar as there was no force used or threatened in the encounter?”

Appellant’s Brief at 3.

      “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review

claims regarding the sufficiency of the evidence by considering 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.” Commonwealth v.

Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and

citation omitted), appeal denied, 183 A.3d 970 (Pa. 2018).           “Further, a

conviction may be sustained wholly on circumstantial evidence, and the trier

of fact—while passing on the credibility of the witnesses and the weight of the

evidence—is free to believe all, part, or none of the evidence.” Id. (citation

omitted). “In conducting this review, the appellate court may not weigh the

evidence and substitute its judgment for the fact-finder.”         Id. (citation

omitted).

      Appellant challenges his conviction for Attempted Robbery of a Motor

Vehicle, which the Pennsylvania Crimes Code defines as follows: “A person

commits a felony of the first degree if he steals or takes a motor vehicle from

another person in the presence of that person or any other person in lawful

possession of the motor vehicle.”     18 Pa.C.S. § 3702(a).      Moreover, “[a]

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person commits an attempt when, with intent to commit a specific crime, he

does any act which constitutes a substantial step toward the commission of

that crime.” 18 Pa.C.S. § 901. This Court has held that to prove the offense

of Robbery of a Motor Vehicle, the Commonwealth must prove the following

elements: “(1) the stealing, taking[,] or exercise of unlawful control over a

motor vehicle; (2) from another person in the presence of that person or any

other person in lawful possession of the vehicle; and (3) the taking must be

accomplished by the use of force, intimidation[,] or the inducement of fear in

the victim.”   Commonwealth v. George, 705 A.2d 916, 920 (Pa. Super.

1998). Moreover, “[f]orce is that of which the victim is aware and by reason

of that force, is compelled to part with his property.” Commonwealth v.

Jones, 771 A.2d 796, 799 (Pa. Super. 2001) (citation omitted).

      Here, Appellant concedes that the Commonwealth proved the first two

elements of the offense. He only challenges the establishment of the third

element, averring that the Commonwealth’s evidence did not prove that

Appellant used force, intimidation, or the inducement of fear to accomplish

taking the car.     Appellant’s Brief at 10.      Appellant argues that the

Commonwealth failed to prove that he used or possessed a weapon, made

any overt or implied threats, or raised a hand to Victim. Id. at 11. Therefore,

Appellant contends, the Commonwealth did not prove that he used force or

coercion and the evidence was insufficient to convict him of Attempted

Robbery of a Motor Vehicle. Id. This argument lacks merit.




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      Victim stated that she was waiting for her granddaughter to come out

of the braid shop and “then this guy came up to my car and told me to get

out of it.” N.T. Trial, 11/29/16, at 65. Victim testified:

      I’m thinking when the guy comes up to my car that my daughter
      was having problems in the braid shop about her daughter’s hair
      getting done. Then I realized, you know, the man told me to get
      out the car. So before I got out the car, I looked up at him. His
      head was turned. So then I managed to take my keys and my
      wallet and I got out the car. As I proceeded to get out the car to
      go to the braid [shop], he got in.

Id. When counsel asked Victim how she felt, she replied, “Scared, because I

didn’t know what was going on.” Id. at 66. Victim testified, “I jump out the

car and I bang on the door to go in the braid shop.” Id. Finally, Victim stated

that she did not give permission or consent for Appellant to get in or take the

car. Id. at 66-67.

      Victim’s testimony that she felt scared during the confrontation with

Appellant, jumped out of the car, and banged on the shop door while Appellant

got inside the car is sufficient to prove that Appellant took control over the car

by using force, intimidation, or the inducement of fear. See George, supra

at 920. Moreover, it is reasonable for the fact-finder to conclude that Victim

was aware of Appellant’s demand that she exit the car and it was this demand

that compelled her to exit the car. See Jones, supra at 799. Accordingly,

Appellant’s argument that the Commonwealth did not prove the third element

of Attempted Robbery of a Motor Vehicle is devoid of merit.




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      We are unpersuaded by Appellant’s attempts to distinguish this case

from George, supra, and Jones, supra, both cases where this Court found

that there was sufficient evidence to convict a defendant of Robbery of a Motor

Vehicle.   Appellant argues that the defendant in George entered a car at

gunpoint and stated “it’s a jack,” but Appellant never used a weapon or made

overt or implied threats. Appellant’s Brief at 10-11 (citing George, supra at

920). Appellant also argues that the defendant in Jones drove away with the

victim in the truck but Appellant asked Victim to get out of the car and never

actually drove the car. Appellant’s Brief at 13 (citing Jones, supra at 797).

      It is of no moment that the defendant in George used a weapon or that

the defendant in Jones drove the car with the victim inside. As stated above,

Victim testified that she was scared and got out of the car at Appellant’s

demand, which is sufficient evidence to prove that Appellant used force,

intimidation, or the inducement of fear to take the car from Victim.      It is

improper for this Court to reweigh the evidence and give “more weight to

‘absent’ factors than to those found and relied upon by the trial court[.]”

Commonwealth v. Meals, 912 A.2d 213, 222–23 (Pa. 2006).

      In sum, the Commonwealth presented sufficient evidence to prove the

force element of Attempted Robbery of a Motor Vehicle and Appellant is not

entitled to relief.

      Judgment of Sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/19




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