J-S12022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MARTELL TODREK BYRD,

                            Appellant                   No. 1566 MDA 2017


      Appeal from the Judgment of Sentence entered September 8, 2017,
              in the Court of Common Pleas of Lancaster County,
            Criminal Division, at No(s): CP-36-CR-0004383-2016.


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                             FILED APRIL 11, 2018

        Martell Todrek Byrd appeals from the judgment of sentence entered

against him, after a jury convicted him of robbery and terroristic threats.1

Bryd challenges his conviction for robbery. After review, we affirm.

        The trial court set forth the relevant facts as follows:

              On August 16, 2016, at approximately 11:30 a.m., [Byrd],
        wearing a baseball cap and mirrored sunglasses, entered the
        branch of Infinity Bank located at 2055 Fruitville Pike, Manheim
        Township, Lancaster, Pennsylvania.      He went to the teller’s
        station of head teller Alyssa Caputo and handed her an envelope
        on which was written a note, (Commonwealth’s Ex. 1), which
        said “This is a robbery. I am armed. Make it fast and easy and
        put 5K in this envelope. No GPS. No dye pack. I need 100s
        and 50s. Act normal. Try me. I will shoot.”


____________________________________________


1   18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 2706(a)(1), respectively.
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            Ms. Caputo testified that, at the time, she read only the
     first two sentences of the note and, taking [Byrd] seriously, went
     into the locked cash drawer to her left to collect money for him.
     [Byrd] watched her as she collected the money; he did not
     speak and he did not display a weapon. As Ms. Caputo was
     gathering the money, she pushed the panic button located under
     the counter to the right at the teller’s station. When pushed, the
     button made a noise that she described as a click, but she
     testified on cross examination that it was designed so the person
     on the other side of the counter would not be aware that the
     teller was pushing the button. While it would be possible for an
     individual tall enough to see movement, the button could not be
     seen. Within seconds of her pushing the button, [Byrd] turned
     and left the bank at a fast walk without any money.

            After [Byrd] left the bank, Ms. Caputo observed the
     direction he had gone. She ran to the lobby and locked the door.
     Then she told the others in the bank what had happened and
     someone called the police.

           Detective Nicholas Fritz of the Manheim Township Police
     Department testified that he responded along with other officers
     to the Infinity Bank and served as lead investigator of the
     offense. He testified that, as part of the investigation, Ms.
     Caputo and other witnesses were interviewed, that the police
     secured the note [Byrd] had left at the bank and that
     surveillance video of the robbery, (Commonwealth’s Ex.2), was
     obtained from bank personnel. Detective Fritz also testified that
     a crime scene processor recovered a latent partial lower right
     palm print from the area of the counter where [Byrd] had stood
     and a partial latent finger print from the exterior glass on the left
     inside door used by [Byrd] when he entered and exited the
     bank.

           Subsequently, [Byrd] was identified as a person of interest
     in the robbery and was interviewed by police on August 18,
     2016.    Prior to conducting that interview, Detective Fritz
     reviewed [Byrd’s] Miranda rights with him and [Byrd] signed
     the form, (Commonwealth’s Ex. 3), indicating that he
     understood his rights and was willing to make a statement and
     answer questions.    This waiver of rights was witnessed by
     Detective Fritz and another detective, Steven Newman. With
     [Byrd’s] permission, a video recording of his interview with
     police was made, (Commonwealth’s Ex. 4), in which [Byrd]

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      admitted committing the robbery at the Infinity Bank branch.
      Additionally, [Byrd’s] finger prints and palm prints were
      compared to the prints recovered at the crime scene.
      Investigators determined to a reasonable degree of scientific
      certainty that the palm print recovered from the bank counter
      matched [Byrd’s] right palm and the finger print recovered from
      the bank door matched his right ring finger.

Trial Court Opinion, 11/28/17, at 2-4 (citations to transcript omitted).

      Byrd was convicted as charged following a two-day jury trial on July

12-13, 2017. On September 8, 2017, Byrd was sentenced to a term of 4-8

years of imprisonment, and a consecutive two-year probationary term. He

timely filed a notice of appeal, and both he and the trial court complied with

Pa.R.A.P. 1925. Byrd raises one issue on appeal:

      Was the evidence presented by the Commonwealth insufficient
      to prove beyond a reasonable doubt that [Byrd] was guilty of
      robbery where he did not act in a manner which would be
      deemed “in the course of committing a theft” as he left the bank
      after handing the teller a note, which constitutes a threat, but
      does not constitute an attempt at theft or flight after an attempt
      or commission?

Byrd’s Brief at 6.

      Essentially, Byrd argues that because he gave up on the theft after

presenting the note to the teller, there was insufficient evidence to convict

him of robbery beyond a reasonable doubt. We disagree.

       A challenge to the sufficiency of evidence is a question of law.

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

reviewing a sufficiency claim, the court is required to view the evidence in

the   light   most   favorable   to   the   verdict   winner,   in   this   case,   the


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Commonwealth, and to give that party the benefit of all reasonable

inferences to be drawn from the evidence.      Commonwealth v. Rahman,

75 A.3d 497, 500 (Pa. Super. 2013) (citation omitted). “Evidence will be

deemed sufficient to support the verdict when it establishes each material

element of the crime charged and the defendant’s commission thereof

beyond a reasonable doubt.” Id.

         Here, we must determine whether a sufficient basis exists for Byrd’s

conviction of robbery. The relevant statute provides: “Robbery: -- A person

is guilty of robbery, if, in the course of committing a theft, he: threatens

another with or intentionally puts him in fear of immediate serious bodily

injury.” 18 Pa.C.S.A. § 3701 (a)(1)(ii).

         Under this statute, the Commonwealth must prove two elements

beyond a reasonable doubt to sustain a conviction of robbery:         1) the

defendant must act “in the course of committing a theft” and 2) the

defendant must threaten another with or intentionally put him in fear of

immediate serious bodily injury. Id.

         To satisfy the first element, we have held that no actual theft must

occur for a conviction. It is not an essential element of robbery that there

be a completed theft; it is enough that force was used during an attempted

theft.    Commonwealth v. Lloyd, 545 A.2d 890, 892 (Pa. Super. 1988);

see also Commonwealth v. Robinson, 936 A.2d 107, 110 (Pa. Super.

2007) (finding a conviction for robbery does not require proof of an actual


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theft, only that the requisite force was used “in the course of committing a

theft”). The Supreme Court of Pennsylvania has also held that the crime of

robbery is complete upon commission or threat of violence, and does not

depend   upon   occurrence   of   a   completed    theft.    Commonwealth v.

Thompson, 648 A.2d 315, 319 (Pa. 1994).

      Byrd argues that because he left the bank without incident, the

evidence does not support a conviction for robbery.            He argues “[Byrd]

appears to have simply given up after presenting a note to the teller.”

Byrd’s Brief at 11.   “[Byrd] turned and left the bank without taking any

money.” Id. at 12. “There is no apparent reason as to why [Byrd] left the

bank….he simply left without a word.” Id.        He believes this act of leaving

negates the theft, and therefore the robbery.       Notably, he cites no legal

authority for this position. We reject this argument.

      Byrd arrived at the bank wearing mirrored sunglasses and a baseball

cap, obviously intending to hide his identity.    He handed the teller a note

indicating that this was a robbery, and he was armed.            The teller began

gathering the money Byrd demanded, while he watched her. The fact that

Byrd decided to abort his mission does not change the course of events he

already put into motion. By his own note, Byrd claimed it was a robbery,

and now, on appeal, he argues that it was not.              We find his argument

disingenuous; clearly, the evidence supported the jury’s conclusion that Byrd




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was in the course of committing a theft, which satisfies the first element of

the crime.

      With respect to the second element, whether the defendant threatened

another with or intentionally puts him in fear of immediate serious bodily

injury, the teller testified that after receiving the note, she was “very upset”

and “fearful for [her] life.” N.T., 7/12/17, at 108 and 112. The trial court

noted, “Further, the jury could reasonably have found that, in the course of

attempting that theft, [Byrd] threatened Ms. Caputo or put her in fear of

immediate serious bodily injury through the note that he presented to her.”

Trial Court Opinion, 11/28/17 at 5. We agree.

      Viewing all evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the Commonwealth produced

sufficient evidence to establish beyond a reasonable doubt that Byrd was

guilty of the crime of robbery.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2018




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