J-S01033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MELVIN STILLS

                            Appellant                   No. 2539 EDA 2014


            Appeal from the Judgment of Sentence August 7, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004532-2013


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED JANUARY 06, 2016

        Appellant, Melvin Stills, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial convictions for three counts each of robbery, terroristic threats,

and theft by unlawful taking or disposition, and one count each of criminal

conspiracy, firearms not to be carried without a license, carrying firearms on

public streets or public property in Philadelphia, and persons not to possess

firearms.1 We affirm.

        In its opinion, the trial court fully sets forth the relevant facts and

procedural history of this case.         Therefore, we have no reason to restate

them. We clarify only that on August 7, 2014, the court sentenced Appellant
____________________________________________


1
    18 Pa.C.S.A. §§ 3701; 2706; 3921; 903; 6106; 6108; 6105, respectively.
J-S01033-16


to an aggregate term of fifteen (15) to thirty (30) years’ imprisonment, plus

twelve (12) years’ probation.2

       Appellant raises two issues for our review:

          WHETHER THE EVIDENCE WAS SUFFICIENT TO CONVICT
          APPELLANT OF THREE COUNTS OF ROBBERY (F1),
          CONSPIRACY AND RELATED CHARGES WHEN THE
          COMMONWEALTH      FAILED TO  PROVE   BEYOND   A
          REASONABLE DOUBT THAT THERE WAS A THREAT OF
          SERIOUS BODILY INJURY AND/OR ANY SERIOUS INJURY
          TO ANY OF THE VICTIMS?

          WHETHER THE EVIDENCE WAS SUFFICIENT TO CONVICT
          APPELLANT OF THREE COUNTS OF ROBBERY, CONSPIRACY
          AND RELATED CHARGES SINCE THE COMMONWEALTH
          FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT
          APPELLANT WAS THE ONE WHO COMMITTED THE
          ROBBERIES?

(Appellant’s Brief at 4).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Diana L.

Anhalt, we conclude Appellant’s issues merit no relief.         The trial court’s

opinion comprehensively discusses and properly disposes of the questions

presented.      (See Trial Court Opinion, filed May 1, 2015, at 4-9 (un-

paginated)) (finding: (1) Victims Mr. Jackson and Ms. Sowell testified that

Appellant pointed gun at third victim, Mr. Hargrove, and took Mr. Hargrove’s

____________________________________________


2
  In addition to the crimes listed on the first page of the trial court’s opinion,
the court also convicted Appellant of three counts each of terroristic threats
and theft by unlawful taking or disposition. Further, the events which gave
rise to Appellant’s convictions took place on January 29, 2013.



                                           -2-
J-S01033-16


cell phone; then, Appellant pointed gun at Mr. Jackson and Ms. Sowell and

threatened to shoot them; evidence was sufficient to sustain Appellant’s

robbery convictions related to all three Victims,3 where Appellant threatened

Mr. Jackson and Ms. Sowell during course of theft and intentionally put all

Victims in fear of serious bodily injury;4 (2)5 five minutes after robbery, Ms.

Sowell and Mr. Jackson positively identified Appellant as man who robbed

them; Ms. Sowell and Mr. Jackson testified at trial they were certain

Appellant was perpetrator; Mr. Jackson testified that Appellant was very

close to him during encounter and wore nothing to cover his face; Victims

also testified Appellant was riding distinct bike; police spotted Appellant

riding bike matching unique description moments after receiving call that

robbery was in progress; police also recovered gun Appellant had discarded

that matched Ms. Sowell’s description of gun used; Commonwealth


____________________________________________


3
  Appellant’s cohort searched Mr. Jackson and Ms. Sowell but took no
property from those victims.
4
  We decline Appellant’s invitation to “reconsider the robbery statute” to hold
that certain gunpoint robberies can constitute second-degree felonies
instead of first-degree felonies. Appellant concedes he lacks any legal
authority to support his position.
5
   Notwithstanding his statement of questions presented, Appellant
challenges only the sufficiency of the evidence to sustain his robbery
convictions. Appellant makes no argument whatsoever in support of his
second issue on appeal.        Thus, Appellant has abandoned issue two.
Moreover, even if Appellant had properly preserved his second issue, we
would affirm on the basis of the trial court’s opinion.



                                           -3-
J-S01033-16


presented     sufficient   evidence     to     prove   Appellant   was   perpetrator).6

Accordingly, we affirm on the basis of the trial court’s opinion.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2016




____________________________________________


6
  On page three of the court’s opinion, the court states: “Officer Rosenbaum
noticed a bulge on Appellant’s ride hip area.” No doubt the court meant
right hip area.



                                             -4-
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                                                                                               FILED'
                           IN THE COURT OF COMMON PLEAS                                        MAY O 1 2015
                          FOR THE COUNTY OF PHILADELPHIA
                               CRIMINAL DIVISION TRIAL                                Criminal Appeals Unit
                                                                                   First Judicial District of PA
COMMONWEALTH                                           NO.: CJ!-51-CR-ffft64~36-!6t,
OF PENNSYLVANIA                                           : CP-51-CR-0004532-2013

       v.                                             Superior Court No.:
                                                      2539 EDA 2014
MELVIN STILLS
                                                                  CP-51-CR-0004532-2013_ comm. v. Stills, Melvin -
                                                                                     Opinion



                                             OPINION
                                                                       111111111111 I
                                                                                7288973461
                                                                                          II II Ill II Ill
ANHALT, J.

       Appellant in the above-captioned matter appeals the trial court's judgment regarding

Appellant's convictions for Robbery, a felony in the first degree (Fl). The trial court submits the

following Opinion in accordance with the requirements of Pa.R.A.P. 1925(a). For the reasons

set forth herein, the trial court holds that the judgment should be affirmed.



PROCEDURAL HISTORY

       On January 29, 2013, police arrested and charged Appellant, Melvin Stills, with three

counts of Robbery, (Fl), Conspiracy (Fl), and several Violations of the Uniform Firearms Act

(VUFA). On May 30, 2014, Appellant waived his right to a jury and proceeded to a bench trial

before the trial court. On that date, the trial court found Appellant guilty of three counts of

Robbery, (Fl), Conspiracy (Fl), and VUFA §6105 (F2), §6106 (F3) and §6108 (Ml).

       On August 7, 2014, the trial court sentenced Appellant to ten to twenty years of state

custody on each charge of Robbery and Conspiracy, five to ten years state consecutive for VUFA

§6105, seven years consecutive state probation for VUFA §6106, and five years consecutive

state probation for VUFA §6108.
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        Appellant filed this timely appeal of the trial court decision on August 29, 2014.

Appellant filed a 1925(b) statement on September 23, 2014. Appellant argues that the evidence

was insufficient to sustain his conviction for Robbery because the Commonwealth failed to

prove there was a threat of serious bodily injury to any of the victims.   Appellant also argues

that the evidence was insufficient to sustain his convictions for three counts of Robbery (Fl)

because the Commonwealth failed to meet its burden and prove that Appellant was the one who

committed the Robberies.

FACTUAL HISTORY

       On January 29, 2013 Appellant robbed Tahir Jackson, Dereka Sowell, and James

Hargrove at gun point at the intersection of Fairhill St. and W. Fisher Ave. in Philadelphia,

Pennsylvania. (N.T., 5/30/14, pp. 11-12, 45). While walking to the Rite Aid, Mr. Jackson

observed two men on bikes coming towards him. (N.T., 5/30/14, p. 13). Mr. Jackson testified

that one man was tall, wearing a black jacket and a red hoodie riding a black and silver

Mongoose bike. (N.T., 5/30/14, p. 32). The other man was shorter, wearing a black hoodie with a

black jacket and riding a pink and purple little girl's bike. (N.T., 5/30/14, pp. 32, 34). Mr.

Jackson identified the shorter male on the pink and purple bike as Appellant. (N.T., 5/30/14, p.

34). As the two men approached, Appellant jumped off the bike, pulled out a gun, and pointed it

at Mr. Hargrove while the other man choked Mr. Jackson from behind. (N.T., 5/30/14, p. 13-14).

Ms. Sowell also testified that Appellant was the one with the gun and the other man choked Mr.

Jackson from behind. (N.T., 5/30/14, p. 45). Mr. Jackson was six to eight feet away from Mr.

Hargrove as the Appellant held a gun on him. (N.T., 5/30/14, p. 15).

       Mr. Jackson testified that Appellant told Mr. Hargrove "whatever you got in your pocket,

give it up." (N.T., 5/30/14, p. 19). Appellant then took Mr. Hargrove's cell phone. (N.T.,
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5/30/14, p. 20). Ms. Sowell testified that Appellant pulled a gun on her. (N.T., 5/30/14, p. 46).

Appellant threatened Ms. Sowell and said "you need to back up before you get shot." Id. The

other male then checked Mr. Jackson's pockets and after finding nothing, pushed Mr. Jackson to

the ground and grabbed Ms. Sowell. (N.T., 5/30/14, pp. 20-21). When Mr. Jackson tried to get

up and defend Ms. Sowell, Appellant pointed the gun at him and said "you don't want to get

shot." (N.T., 5/30/14, p. 22). Appellant was standing over Mr. Jackson a few feet away as he

held the gun on him. Id. Both Mr. Jackson and Ms. Sowell testified that Appellant did not have

anything covering his face. (N.T., 5/30/14, pp. 24, 50). After finding no items on Ms. Sowell,

Appellant and the other man got back on their bikes and rode off. (N.T., 5/30/14, p. 24).

       Mr. Jackson ran to Ms. Sowell's mothers house to call the police who arrived minutes

later. (N.T., 5/30/14, p. 25-26). Police Officer Rosenbaum testified that while surveying the

area for a Robbery in progress, he observed Appellant riding a pink and purple child's bike along

with another male. (N.T., 5/30/14, p. 58, 61). Officer Rosenbaum noticed a bulge on Appellant's

ride hip area. Id. When the officer attempted to stop them, they both fled. (N.T., 5/30/14, p. 58).

During the chase, Officer Rosenbaum observed Appellant discard a firearm from his right hip

area, the same area he saw the bulge. (N.T., 5/30/14, pp. 59-60).

       Mr. Jackson and Ms. Sowell both testified that Appellant robbed them at gun point.

(N.T., 5/30/14, pp. 29, 55-56). Ms. Sowell testified that the gun used by Appellant was all black

and resembled a gun that police carry. (N.T., 5/30/14, pp. 45-46). Officer Rosenbaum testified

that Appellant discarded a firearm that he later recovered. (N.T., 5/30/14, pp. 58-59). The gun

was a black Beretta handgun. Id
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DISCUSSION

       Appellant argues that the evidence was insufficient to sustain his conviction for Robbery

because the Commonwealth failed to prove there was a threat of serious bodily injury to any of

the victims. Appellant also argues that the evidence was insufficient to sustain his conviction for

Robbery because the Commonwealth failed to prove that Appellant was the one who committed

the Robberies.

       In evaluating a challenge to the sufficiency of the evidence, the reviewing court must

determine, whether viewing all the evidence in a light most favorable to the Commonwealth,the

trier of fact could have found that each element of the offense charges was proved beyond a

reasonable doubt. Commw. v. Lee, 956 A.2d 1024, 1027 (Pa. Super Ct. 2008). This standard

applies whether the evidence presented is circumstantial or direct, provided the evidence links

the accused to the crime beyond a reasonable doubt. Commw. v. Morales, 669 A.2d 1003, 1005

(Pa. Super. Ct. 1996). "Unless the evidence presented at trial is 'so weak and inconclusive that

as a matter of law, no probability of fact can be drawn from the combined circumstances,' the

verdict should not be disturbed on appeal." Lee, at 1027-28 (quoting Commw v. Davis, 799 A.2d

860, 866 (Pa. Super. Ct. 2002)).

       A person is guilty of Robbery, a felony in the first degree, 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)(l)(ii).   The evidence is sufficient to convict a defendant of

Robbery under this section if the evidence demonstrates aggressive actions that threatened the

victim's safety. Commw v. Hansley, 24 A.3d 410, 416 (Pa. Super. Ct. 2011); Commw. v. Jannett,

58 A.3d 818, 821-22 (Pa. Super. Ct. 2012); Commw. v. Valentine, 101 A.3d 801, 807 (Pa. Super.

Ct. 2014). For the purposes of §3701(a)(l)(ii), the court must focus on the nature of the threat
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posed by the assailant and whether he reasonably placed a victim in fear of immediate serious

bodily injury. Hansley, 24 A.3d at 416; Jannett, 58 A.3d at 821-22.

       Appellant's actions in pointing a gun and threatening a victim were sufficient evidence to

convict appellant of Robbery. Commw. v. Valentine, 101 A.3d 801 (Pa. Super. Ct. 2014). In

Valentine, Ms. Gibbs was waiting for a bus when appellant approached her from behind with a

gun. Id at 804. Appellant point a handgun at Ms. Gibbs; threatened to shoot her, demanded

money, and took her purse and phone. Id. Appellant was arrested and charged with Robbery. Id.

At trial, a jury found appellant guilty of Robbery and appellant appealed. Id.. The court upheld

the conviction finding the evidence was sufficient to convict appellant of Robbery. Id. at 807.

The court determined that appellant's actions in pointing a gun at Ms. Gibbs and threatening to

shoot her would have placed a reasonable person in fear of serious bodily. Id.

       In the present case, the evidence presented at trial was sufficient to establish that

Appellant placed Mr. Jackson and Ms. Sowell in fear of serious bodily injury.              Appellant

pointed a gun at Ms. Sowell and said, "You need to back up before you get shot." (N.T.,

5/30/14, p. 46). Appellant also pointed a gun at Mr. Jackson and said, "You don't want to get

shot." (N.T., 5/30/14, p. 22). Appellant's actions of pointing a gun and threatening Mr. Jackson

and Ms. Sowell reasonably put them in fear of serious bodily injury. Valentine, 101 A.3d at 804.

       Terrorizing multiple people during the course of committing one theft is sufficient to

support Robbery convictions for each of those persons. Commw. v. Gilliard, 850 A.2d 1273,

1275 (Pa. Super. Ct. 2004). In Gilliard, a defendant appealed a conviction of five counts of

robbery alleging the evidence was insufficient because he only committed one theft. Id at 1275.

The Pennsylvania Superior Court held that the defendant threatened to inflict serious bodily

injury on all four patrons when he pointed a gun at them and forced them to the back room. Id.
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at 1276-1277. The evidence was sufficient to support defendant's          convictions because the

defendants' actions were sufficiently threatening to all of the patrons at the bar and placed them

in fear of serious bodily injury. Id.

       Appellant's single theft is sufficient to support three convictions for Robbery. Like in

Gilliard, the Appellant here threatened multiple people although he committed only a single

theft. 850 A.2d at 1276. Both Mr. Jackson and Ms. Sowell testified that Appellant pointed a gun

at Mr. Hargrove and took his cell phone. (N.T., 5/30/14, pp. 13, 46). Afterwards, Appellant

pointed the gun at Mr. Jackson and Ms. Sowell and threatened them. Id. The evidence is

sufficient to convict Appellant of three counts of Robbery because Appellant intentionally put

Mr. Jackson, Ms. Sowell, and Mr. Hargrove in fear of serious bodily injury when he pointed a

gun at them and threatened them.

       Appellant also contends that the evidence was insufficient to sustain his conviction for

Robbery because the Commonwealth failed to prove that Appellant was the one who committed

the robberies. Evidence of identification need not be positive and certain to sustain a conviction.

Commw. v. Orr, 38 A.3d 868, 874 (Pa. Super. Ct. 2011). Identification evidence, which is solely

based on similar height, coloration, and clothing, is not enough to convict a defendant as the

perpetrator of a crime. Commw. v. Crews, 436 Pa. 346 (1970). Although common items of

clothing and general physical characteristics are usually insufficient to support a conviction, such

evidence can be used as other circumstances to establish the identity of a perpetrator. Orr, 38

A.3d at 874. Any indefiniteness and uncertainty in identification testimony goes to weight. Id

Circumstantial evidence alone is sufficient to convict a person; direct evidence is not absolutely

needed. Commw. v. Smith, 283 Pa. Super 360, 423 A.2d 1296 (1981).
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        Appellant's contention that the Commonwealth failed to prove that Appellant committed

the robberies is without merit. In assessing whether the totality of the circumstances supports an

independent basis for identification of a defendant as perpetrator, the following factors are to be

considered:

               ... the opportunity of the witness to view the criminal at the time
               of the crime, the witness' degree of attention, the accuracy of his
               prior description of the criminal, the level of certainty
               demonstrated at the confrontation, and the time between the
               crime and the confrontation.

Commw. v. Edwards, 762 A.2d 382, 391 (Pa. Super. Ct. 2000). The most important factor is the

opportunity of the witness to view the suspect at the time of the crime. Id. Five minutes after the

Robbery occurred, both Ms. Sowell and Mr. Jackson positively identified Appellant as the guy

who robbed them. (N.T., 5/30/14, pp. 28-29, 39, 49). At trial, both victims testified that they

were certain that Appellant was the guy who robbed them. (N.T., 5/30/14, pp. 13-14, 46-47). Mr.

Jackson testified that he was about six to eight feet away from Appellant during the initial

encounter. (N.T., 5/30/14, p. 15). Mr. Jackson also testified that when Appellant approached him

with the gun, he was standing right over him. (N.T., 5/30/14, p. 24) Mr. Jackson could see

Appellant entire face because Appellant did not have anything covering his face. (N.T., 5/30/14,

pp. 24, 33, 35).

       The Commonwealth also presented evidence of a distinct bike that Appellant was

identified as riding. Testimony by Mr. Jackson and Ms. Sowell indicates that Appellant was

riding a purple and pink child's bike. (N.T., 5/30/14, pp. 32, 34, 53). Additionally, Officer

Rosenbaum spotted the Appellant riding a pink and purple child's bike moments after receiving a

call for Robbery in progress. (N.T., 5/30/14, pp. 58, 61). Lastly, the Commonwealth presented

evidence of a gun that was used during the Robbery. Ms. Sowell testified that the gun used by

Appellant was all black and resembled a gun that police carry. (N.T., 5/30/14, pp. 45-46).
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Officer Rosenbaum testified that he observed Appellant discard a firearm in the alley during his

chase. (N.T., 5/30/14, pp. 58-59).    That gun was recovered and identified as a black Beretta

handgun. Id.

         Mr. Jackson's testimony that Appellant had on a black hoodie when Appellant was

arrested wearing a white hoodie is not dispositive but simply goes to weight. Orr, 38 A.3d at

874. The Robbery took place at night when it was dark outside. (N.T., 5/30/14, p. 31).

        The Commonwealth has presented enough evidence to prove beyond a reasonable doubt

that Appellant committed these crimes. Crews, 436 Pa. at 349; Edwards, 762 A.2d at 391; Orr,

38 A.3d at 874. The Commonwealth presented evidence in the form of testimony of two victims

of the Robbery who gave identical accounts about what happened on January 14, 2013. (N.T.,

5/30/14, pp. 13, 20, 45, 48). Both victims testified that Appellant took Mr. Hargrove's cell phone

and held them at gun point. (N.T., 5/30/14, pp. 37, 52). Additionally, both victims and Police

Officer Rosenbaum testified that Appellant was riding a pink and purple child's bike. (N.T.,

5/30/14, pp. 32, 34, 53, 58, 61). The combination of the evidence presented by the

Commonwealth is sufficiently reliable to convict Appellant.

        Therefore, there is sufficient evidence to convict Appellant of Robbery, a felony in the

first degree (F 1 ).
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 CONCLUSION

        For the foregoing reasons, Appellant's three convictions for Robbery (Fl) should be

 affirmed.


 BY THE COURT:

J~tt:a~
 DIANA ANHALT, J.


 April 29, 2015
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                                     PROOF OF SERVICE

       I hereby certify that on the date set forth below, I caused an original copy

of the Judicial Opinion to be served upon the persons at the following locations, which

service satisfies the requirements of Pa. R.A.P. 122:


       Douglas N. Stem, Esquire
       1420 Walnut Street, Suite 1201
       Philadelphia, PA 19102

       Hugh Bums, Esquire
       Philadelphia District Attorney's Office
       Three South Penn Square
       Philadelphia, PA 19107




                                                        By~~t/.7fh/.A.
                                                             Diana Anhalt, Judge
