J-S38033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JAMAL WILLIAMS

                             Appellant                No. 1708 EDA 2016


              Appeal from the Judgment of Sentence May 18, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0011845-2015

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 10, 2017

        Appellant, Jamal Williams, appeals from the judgment of sentence

imposed after the trial court found him guilty of robbery, a felony of the

third degree,1 and attempted theft by unlawful taking.2 Appellant claims the

evidence was insufficient to sustain his robbery conviction because he did

not take or remove property from the victim.          We reverse the robbery

conviction, vacate the judgment of sentence, and remand this case for

resentencing.

        The trial court summarized the evidence presented at trial as follows.

              On October 19, 2015, Arneatha Branch-Chenery, a 77-
           year old woman, was at Beneficial Bank at 6401 Woodland
           Avenue in Philadelphia withdrawing money from her

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(v).
2
    18 Pa.C.S. § 901(a).
J-S38033-17


           account. She observed [Appellant] standing at the exit
           door. Upon completing her transaction and putting her
           cash away, Ms. Branch exited the bank through that door
           and headed in the direction of her parked car. [Appellant]
           then approached Ms. Branch from behind, with his hands
           in his pockets, and demanded money from her.           Ms.
           Branch was fearful that [Appellant] was concealing a
           weapon in his pocket. [However, Ms. Branch testified she
           never saw a weapon. Appellant never put his hands on
           Ms. Branch, nor did Appellant lunge at her. There was
           about two to three feet between Appellant and Ms.
           Branch.] Ms. Branch told [Appellant] to get away from her
           and she went back into the bank. [Appellant] turned
           around and followed her back into the bank.

              Once inside the bank, Ms. Branch told a teller about the
           incident. [Appellant] had returned to his position at the
           door. The teller told her supervisor, who then called the
           police.   Officer Mosel[e]y[3] #2500 testified that he
           responded to the radio call for assistance at Beneficial
           Bank. Upon arriving at the scene, Officer Mosel[e]y spoke
           with Ms. Branch, who was visibly shaken up. Ms. Branch
           reported to Officer Mosel[e]y that she completed her
           transaction at the bank and while on her way out, a
           gentleman inside the bank approached her and demanded
           money. Ms. Branch then gave a statement to Detective
           [Matthew] Carey and identified [Appellant] in a photo
           array.

Trial Ct. Op., 10/20/16, at 1-2 (record citations and footnotes omitted).

        Following a nonjury trial, the trial court found Appellant guilty of

robbery and attempted theft.       On May 18, 2016, the trial court sentenced

Appellant on the robbery charge to one-and-one-half to three years’

imprisonment followed by three years’ probation, with no further penalty for

attempted theft.


3
    Officer Moseley’s first name is not apparent in the record.



                                       -2-
J-S38033-17


      Appellant timely appealed from the judgment of sentence, and both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following question for review:

          Was not the evidence insufficient to support a conviction
          for robbery as a felony of the third degree (18 Pa.C.S. §
          3701(a)(1)(v)), where there was no evidence that
          anything was taken from the person of the complainant?

Appellant’s Brief at 3.

      Appellant argues there is insufficient evidence to sustain his conviction

for robbery under section 3701(a)(1)(v) because the Commonwealth failed

to prove a taking or removal of property from the victim’s person.         We

agree.

         When reviewing a challenge to the sufficiency of the evidence,

          [t]he standard we apply . . . 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 [trier] of
          fact[,] while passing upon credibility of witnesses and the
          weight of the evidence produced, is free to believe all, part
          or none of the evidence.


                                      -3-
J-S38033-17



Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015),

appeal denied, 138 A.3d 4 (Pa. 2016) (citation omitted).

      The Crimes Code provides: “[a] person is guilty of robbery if, in the

course of committing a theft, he . . . (v) physically takes or removes

property from the person of another by force however slight . . . .”     18

Pa.C.S. § 3701(a)(1)(v). “Force however slight” occurs when the victim is

actually compelled to part with the conscious control of her property. See

Commonwealth v. Brown, 484 A.2d 738, 741-42 (Pa. 1984) (grabbing

purse from victim’s shoulder constitutes force).

      Two decisions illustrate the element of “physically tak[ing] or

remov[ing] property from the person of another[.]” See Commonwealth

v. Moore, 494 A.2d 447, 449 (Pa. Super. 1985); Commonwealth v.

Lloyd, 151 A.3d 662, 664 (Pa. Super. 2016); 18 Pa.C.S. § 3701(a)(1)(v).

In Moore, a grocery store security officer witnessed the defendant take a

steak from the meat counter.     Moore, 494 A.2d at 448.     The defendant

argued that, because robbery requires a theft of property from the person of

another, there was insufficient evidence to sustain his conviction.   Id. at

449. This Court agreed and reversed the robbery conviction, reasoning that:

“[I]n interpreting the phrase ‘taking from the person of another’ under

section 3701(a)(1)(v), we are aware that we are bound to accept the plain

meaning of a statute and are not free to discard that plain meaning to

achieve some desired result.” Id. (citation omitted).


                                     -4-
J-S38033-17


       In Lloyd, the defendant was convicted under section 3701(a)(1)(v) for

pushing past a parking attendant and taking car keys from the wall of a

parking garage valet-booth. Lloyd, 151 A.3d at 664-65. Citing Moore, the

defendant argued that the evidence was insufficient because he did not take

the keys from the parking attendant’s person but rather the wall of the

valet-booth. Id. at 664-65. This Court held that, unlike the security officer

in Moore, the parking attendant was not a mere observer of the crime, but

instead had exercised dominion and control over the keys when the

defendant used force to take them away.        Id. at 665.    Therefore, we

affirmed the defendant’s conviction under section 3701(a)(1)(v).      Id. at

666.

       In this case, the Commonwealth failed to prove the elements of force

or “tak[ing] or remov[ing].”   See 18 Pa.C.S. § 3701(a)(1)(v).     Appellant

never touched the victim, let alone removed the victim’s money from her

person or control.   See Lloyd, 151 A.3d at 665.      The victim refused to

succumb to Appellant’s demands and told Appellant to get away from her.

The fact that Appellant put his hands in his pockets did not establish “force

however slight,” as it did not compel the victim to hand over her money.

See Brown, 484 A.2d at 741-42.        Thus, finding the evidence sufficient

would be wholly inconsistent with the language and purpose of section

3701(a)(1)(v). See Moore, 494 A.2d at 449-50.




                                    -5-
J-S38033-17


     Because we reverse the conviction for robbery, we have upset the trial

court’s sentencing scheme and the case must be remanded for resentencing

on attempted theft.   See Commonwealth v. Wilson, 67 A.3d 736, 745

n.11 (Pa. 2013).

     Conviction for robbery reversed. Judgment of sentence vacated. Case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2017




                                   -6-
