J-S34012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RANDY JOSEPH PFAB

                            Appellant               No. 1290 WDA 2013


              Appeal from the Judgment of Sentence July 9, 2013
               In the Court of Common Pleas of Clearfield County
              Criminal Division at No(s): CP-17-CR-0000757-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 21, 2014

       Randy Joseph Pfab appeals from the judgment of sentence imposed

July 9, 2013, in the Clearfield County Court of Common Pleas.         The trial

court imposed an aggregate sentence of 12 months, less one day to two

years, less one day of imprisonment, and a consecutive three years’

probation, following Pfab’s jury conviction of robbery of a motor vehicle,

unauthorized use of a motor vehicle, simple assault (two counts) and DUI.1

On appeal, he challenges both the sufficiency and weight of the evidence

supporting his convictions, as well as the trial court’s refusal to provide the

jury with a “defense of property” instruction. For the reasons that follow, we

affirm.
____________________________________________


1
  18 Pa.C.S. §§ 3702(a), 3928(a), and 2701(a), and 75 Pa.C.S. §
3802(a)(1).
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      The facts underlying Pfab’s arrest and conviction are aptly summarized

in the trial court’s opinion as follows:

            On September 9, 2012, Katy Bailley and Stephani
      Quairiere were working at the Treasure Lake Ski Lodge, a bar
      and restaurant, located in Treasure Lake, Sandy Township,
      Pennsylvania. At the conclusion of their shift, at approximately
      2:00 a.m., they were asked by the bar’s owner/manager to take
      [Pfab] to [his] guest residence, as it appeared that [Pfab] was
      intoxicated and bleeding. [Pfab] told Bailley and Quairiere that
      he had been involved in an altercation in the bar’s parking lot
      and had been injured. Before that evening the two had never
      met [Pfab]. Bailley and Quairiere complied with the owner’s
      request to transport [Pfab] home.

             The two put [Pfab] into Quairiere’s blue Jeep Liberty and
      began to drive to [Pfab’s] guest residence, which is located in
      the same general area as the bar. There was nothing proffered
      at trial to contest the fact that Quairiere was the owner of the
      vehicle. While the three were driving to [Pfab’s] residence,
      [Pfab] began to act in an odd manner. However, [Pfab’s]
      peculiar actions soon turned violent. [Pfab], while sitting in the
      back seat of the automobile, began to punch Quairiere in the
      back of the head and grab her. [Pfab] testified that he believed
      that Quairiere and Bailley were stealing his automobile. In the
      midst of the vicious blows, Quairiere managed to stop her
      vehicle and Bailley pulled her from the driver’s seat in order for
      her to exit the car from the passenger’s side. [Pfab] continued
      to wallop Quairiere as she was attempting to exit the
      automobile.

            When Bailley and Quairiere exited the Jeep, [Pfab] jumped
      into the driver’s seat and attempted to start the car. With the
      keys still in the ignition, Quairiere tried to get the keys from
      [Pfab]. Quairiere was successful in doing so, even in [] light of
      the fact that [Pfab] continued to punch her. Bailley also tried to
      attain her cell phone from the car to call for aid. When Bailley
      did this, she too was punched in the face and head. Once
      Quairiere apprehended her keys, she began to run. [Pfab]
      chased her in an effort to recover the keys. [Pfab] tackled
      Quairiere and started hitting her in the back of the head. [Pfab]
      kept attacking Quairiere until she relinquished the keys. With


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       keys in hand, [Pfab] ran to the vehicle and drove away from the
       area, leaving Bailley and Quairiere on the roadside.

              Bailley called 911 for emergency assistance. A responding
       officer arrived at the scene and began to transport the victims to
       a nearby E.M.S. However, while in route the officer received an
       alert that a blue Jeep Liberty, matching the description of
       Quairiere’s car, was in the area of the incident. Bailley and
       Quairiere traveled with the officer to identify the vehicle. At that
       point, they observed the Jeep and the officer drove behind the
       vehicle and flashed his signals, in an attempt to halt [Pfab].
       [Pfab] subsequently stopped the Jeep and the officers on the
       scene placed him under arrest.

             After [Pfab] was apprehended, Bailley and Quairiere were
       taken to the hospital for treatment of their ailments that resulted
       from [Pfab’s] conduct. … [Pfab] was also transported to the
       hospital for a blood alcohol test, because it was believed by the
       arresting officer that alcohol was involved in the incident. While
       at the hospital the officer, as part of investigating [Pfab] for
       Driving Under the Influence, read [Pfab] a form explaining the
       implied consent law.        [Pfab] was read his chemical test
       warnings, which he refused to sign. The test was then marked
       as a refusal by the arresting officer.

Trial Court Opinion, 12/11/2013, at 1-3.

       As noted above, Pfab was subsequently charged with robbery of motor

vehicle, unauthorized use of a vehicle, simple assault (two counts), and

DUI.2 On April 11, 2013, a jury found him guilty of all charges. Pfab was

sentenced, on July 9, 2013, to a term of 12 months less one day to two

years less one day of imprisonment, followed by three years’ probation for

the charge of robbery of a motor vehicle. The trial court imposed concurrent

____________________________________________


2
  He was also charged with two counts of harassment, for which the trial
court returned no verdict. See 18 Pa.C.S. § 2709(a)(1).




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terms of 30 days to one year for one count of simple assault and 72 hours to

six months for DUI.3 This timely appeal followed.4

       In his first issue, Pfab challenges the sufficiency of the evidence

supporting his conviction of robbery of a motor vehicle.        Specifically, he

argues that the conviction “must be vacated” because he mistakenly

believed the vehicle in question was his own. Pfab’s Brief at 15.

       A person is guilty of robbery of a motor vehicle “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).     This Court has held that because the crime is included in the

section of the Crimes Code pertaining to robbery, the Commonwealth must

also prove that the taking of the vehicle was “accomplished by the use of

force, intimidation or the inducement of fear in the victim.” Commonwealth

v. George, 705 A.2d 916, 919-920 (Pa. Super. 1998), appeal denied, 725

A.2d 1218 (Pa. 1998).

       Here, the facts clearly established that Pfab forcibly stole Quairiere’s

vehicle from her, by punching her in the face and head and wrestling the
____________________________________________


3
 The sentences for the remaining count of simple assault and unauthorized
use of a vehicle merged with the sentence for robbery of a motor vehicle.
See N.T., 7/9/2013, at 17-18.
4
  On August 8, 2013, the trial court ordered Pfab to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Pfab
complied with the court’s directive and filed a concise statement on August
28, 2013.



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keys from her.        However, Pfab argues that he mistakenly believed the

vehicle was his own, and that Quairiere and Bailley were attempting to steal

the vehicle from him.5

       “It is well established that a bona fide, reasonable mistake of fact may,

under certain circumstances, negate the element of criminal intent.”

Commonwealth v. Namack, 663 A.2d 191, 194 (Pa. Super. 1995), citing

18 Pa.C.S. § 304. However, it is also well-settled that voluntary intoxication

is not a defense to a criminal charge, and evidence of a defendant’s

voluntary intoxication may not be introduced to negate the element of

intent.   18 Pa.C.S. § 308.        See Commonwealth v. Ellis, 581 A.2d 595,

604-605 (Pa. Super. 1990) (“Clearly, voluntary intoxication is statutorily

precluded as a defense to robbery.”), aff'd, 626 A.2d 1137 (Pa. 1993).

       Here, Pfab admitted that he had been drinking all day with friends, and

that he was “drunk” while at the restaurant.       N.T., 4/11/2013, 218, 229-

230. Therefore, there was sufficient evidence for the jury to conclude that

Pfab’s “mistake” as to the ownership of the Jeep was not reasonable, but




____________________________________________


5
  We note that Pfab failed to cite any statutory or case law with respect to
his defense of “mistake of fact.” On this basis, we could conclude that the
issue is waived. See Commonwealth v. Chine, 40 A.3d 1239, 1244 (Pa.
Super. 2012) (holding challenge to jury instruction waived when defendant
“cited no legal authorities nor developed any meaningful analysis”), appeal
denied, 63 A.3d 773 (Pa. 2013)



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rather, a result of his voluntary intoxication.6       Accordingly, no relief is

warranted on this claim.

       Next, Pfab challenges the weight of the evidence supporting his

convictions.    He argues, once again, that “his conviction for robbery of a

motor vehicle [was] built upon his undeniable mistake of fact that the car

was not his[.]” Pfab’s Brief at 15.

       It is axiomatic that:

       [A] weight of the evidence claim must be preserved either in a
       post-sentence motion, by a written motion before sentencing, or
       orally prior to sentencing. Failure to properly preserve the claim
       will result in waiver, even if the trial court addresses the issue in
       its opinion.

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal

denied, 69 A.3d 601 (Pa. 2013) (citations omitted). See Pa.R.Crim.P. 607.

       Here, Pfab neglected to file post-sentence motions. Nor did he raise a

challenge to the weight of the evidence either prior to or during the

sentencing hearing. See generally N.T., 7/9/2013. Therefore, regardless

of the fact that the trial court addressed the weight claim in its opinion, this

issue is waived for our review.          See Commonwealth v. Thompson, 93

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6
   Moreover, the testimony established that the vehicle Pfab believed was
being stolen was his brother’s Dodge Dakota truck, which he had driven to a
friend’s house earlier that day. N.T., 4/11/2013, p. 226. Pfab admitted that
the truck had only two doors and two seats in the front, while Quairiere’s
Jeep had four doors, and four seats. Id. at 227. Indeed, Pfab was sitting in
the back seat of the Jeep. Id. Therefore, there was ample evidence for the
jury to conclude that Pfab’s mistake was not reasonable.



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A.3d 478, 490-491 (Pa. Super. 2014) (explaining that a trial court is

divested of jurisidiction when appeal is filed; therefore, court “could not

grant nor deny the claim at the time it was first raised by Appellant in his

concise statement.”).

        In his last issue, Pfab contends the trial court erred in failing to provide

the jury with a charge regarding the justifiable use of force to defend one’s

property. See 18 Pa.C.S. § 507.7 He argues “[t]he testimony throughout

the trial was consistent in that [Pfab] believed that the vehicle he was taking

was his own[,]” and “[t]he jury could have made a decision that the force

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7
    The statute provides, in relevant part:

        (a) Use of force justifiable for protection of property.--The use of
        force upon or toward the person of another is justifiable when
        the actor believes that such force is immediately necessary:

           (2) … to retake tangible movable property, if:


               (i) the actor believes that he or the person by
               whose authority he acts … was unlawfully
               dispossessed of such land or movable property
               and is entitled to possession; and

               (ii) (A) the force is used immediately or on fresh
               pursuit after such dispossession; or

               (B) the actor believes that the person against
               whom he uses force has no claim of right to the
               possession of the property ….

18 Pa.C.S. § 507.




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used in taking the vehicle was justified” so as to negate the charge of simple

assault. Pfab’s Brief at 20.

      We find this issue, too, is wavied for our review. First, Pfab framed

this claim in his concise statement as follows:      “The Court erred in not

properly charging the jury.” Concise Statement of Matters Complained of on

Appeal, 8/28/2013, at ¶ 4. As stated, the claim was too vague to allow the

trial court to identify the specific error raised on appeal.    This Court has

explained:

      An appellant’s concise statement must properly specify the error
      to be addressed on appeal. Commonwealth v. Dowling, 778
      A.2d 683 (Pa.Super.2001). In other words, the Rule 1925(b)
      statement must be “specific enough for the trial court to identify
      and address the issue [an appellant] wishe[s] to raise on
      appeal.”     Commonwealth v. Reeves, 907 A.2d 1, 2
      (Pa.Super.2006), appeal denied, 591 Pa. 712, 919 A.2d 956
      (2007). “[A] [c]oncise [s]tatement which is too vague to allow
      the court to identify the issues raised on appeal is the functional
      equivalent of no [c]oncise [s]tatement at all.” Id. The court's
      review and legal analysis can be fatally impaired when the court
      has to guess at the issues raised. Id. Thus, if a concise
      statement is too vague, the court may find waiver. Id.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011), appeal

denied, 32 A.3d 1275 (Pa. 2011).

      Indeed, in its opinion, the trial court noted that “[w]ithout any specific

error eluded to by [Pfab] the [c]ourt has examined the trial transcript in its

entirety and can find no inaccuracies.” Trial Court Opinion, 12/11/2013, at

10.   Accordingly, we find that the issue, as framed by Pfab in his concise




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statement, was too vague to alert the trial court to the specific error Pfab

intended to challenge on appeal.8

       Second, even if we were to conclude the issue was not waived for

vagueness, we would find that Pfab failed to preserve his challenge at trial.

At the close of Pfab’s defense, the prosecutor asked the trial court to clarify

its points for charge. N.T., 4/11/2013, at 238. The court indicated that it

intended    to   instruct   the    jury   on    “mistake   of   fact”    and   “voluntary

intoxication,” but that it would “reference the mistake of fact to the robbery

of a motor vehicle and the unauthorized use.” Id. Pfab’s defense counsel

replied, “That’s fine, that’s fine.”      Id.    Thereafter, the following exchange

took place:

       THE COURT: I don’t think it’s applicable – it’s certainly not
       applicable to the DUI, and I do not believe it was applicable to
       either count of simple assault.

       [DEFENSE COUNSEL:] Well, it might be with the simple assault,
       because if you think about it, if he thinks that they are actually
       stealing his car and taking him away in it, if that had been true,
       him assaulting them would be – you have a defense-of-property
       defense itself. You’d at least have defense of property, someone
       taking his car.

            I’m not really arguing that point to you.                   I’m mostly
       concerned –

            THE COURT: I’ve been sitting up here thinking about it, to
       be honest; and I think the better way to go is to not give it in

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8
  We note that although, on September 3, 2013, the trial court granted
Pfab’s request to file a supplemental concise statement pending his receipt
of the trial transcripts, no supplemental statement was ever filed.



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      that regard, because if I’m going to give that, then what do I
      have to do…

      [DEFENSE COUNSEL:] My bigger concern is the robbery charge.

Id. at 238-239.

      In order to preserve a challenge to a particular jury instruction, a

defendant   must    make       “[a]   specific    and   timely   objection”   at   trial.

Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010).                        Trial

counsel’s half-hearted explanation of why a defense of property charge

might be applicable does not equate to a specific request that the court

provide such a charge, or an objection when the court refused to give the

charge.   Accordingly, for all the foregoing reasons, Pfab’s challenge to the

jury instructions is waived.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2014




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