J-S65003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ERIC A. BAKER,

                        Appellant                   No. 291 EDA 2012


    Appeal from the Judgment of Sentence Entered November 19, 2010
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0006036-2009


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY BENDER, P.J.E.:                 FILED NOVEMBER 13, 2015

      Appellant, Eric A. Baker, appeals nunc pro tunc from the judgment of

sentence of an aggregate term of 18 to 36 months’ imprisonment, imposed

after he was convicted of one count each of robbery and attempted theft.

Appellant challenges the sufficiency of the evidence to sustain his robbery

conviction and alleges the verdict is against the weight of the evidence. We

affirm.

      The trial court summarized the procedural history of this case in its

Pa.R.A.P. 1925(a) opinion, as follows:

      On May 27, 2010, following a non-jury trial, [Appellant] was
      found guilty of Robbery-Inflict Threat of Immediate Bodily Injury
      (18 Pa.C.S. § 3701[(a)](1)(iv)) and Attempted Theft by Unlawful
      Taking (18 Pa.C.S. § 901[(a)]).        On November 19, 2010,
      following completion of a Presentence Investigation Report,
      [Appellant] was sentenced to eighteen (18) to thirty-six (36)
      months[’] incarceration.     On November 29, 2010, defense
      counsel filed a timely Motion for Post Sentence Relief.
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     [Appellant’s] motion was dismissed by operation of law on March
     30, 2011. [Appellant] filed a pro-se Petition under the Post-
     Conviction Relief Act (“PCRA”), on May 13, 2011. On May 31,
     2011, defense counsel filed an Amended PCRA Petition. Another
     Amended PCRA Petition was filed by newly appointed counsel for
     [Appellant] on November 10, 2011. On December 15, 2011, the
     [c]ourt reinstated [Appellant’s] appellate rights, pursuant to
     defense counsel’s second Amended PCRA Petition.

     On January 5, 2012, [Appellant] filed a Notice of Appeal to the
     Superior Court. On May 11, 2012, the [c]ourt filed a [Pa.R.A.P.]
     1925(b) order compelling the filing of a Concise Statement of
     Errors Complained of on appeal. On May 31, 2012, defense
     counsel requested more time for the completion of the notes of
     testimony for [Appellant’s] sentencing hearing.      After many
     attempts to obtain the transcript for the sentencing hearing, the
     [c]ourt was informed the notes were unavailable as the court
     reporter responsible had retired and the audio recording was
     inaudible. On January 30, 2015, defense counsel notified the
     [c]ourt she intended to proceed without the transcript for the
     sentencing hearing, as there would be no sentencing issues on
     appeal. On February 5, 2015, the [c]ourt issued another order
     compelling the filing of a Concise Statement of Errors
     Complained of on appeal.       On February 19, 2015, defense
     counsel filed a timely 1925(b) Statement of Errors Complained of
     on appeal.

Trial Court Opinion (TCO), 2/20/15, at 1-2.

     Herein, Appellant presents the following issues for our review:

     I.    Whether the evidence was sufficient to find [Appellant]
           guilty of Robbery (18 Pa.C.S. §3701(a)(1)(iv)) because the
           Commonwealth could not prove that [Appellant] inflicted
           bodily injury upon complainant Sally Ford, threatened
           her[,] or intentionally put her in fear of immediate bodily
           injury in the course of committing a theft.

     II.   Whether the verdict was against the weight of the
           evidence to find [Appellant] guilty of Robbery (18 Pa.C.S.
           § 3701(a)(1)(iv)) because the Commonwealth could not
           prove that [Appellant] inflicted bodily injury upon
           complainant Sally Ford, threatened her[,] or intentionally
           put her in fear of immediate bodily injury in the course of
           committing a theft.

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Appellant’s Brief at 3.

       To begin, we note our standard of review of a challenge to the

sufficiency of the evidence:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted).

      Appellant was convicted of robbery under 18 Pa.C.S. § 3701(a)(1)(iv),

which provides: “A person is guilty of robbery if, in the course of committing

a theft, he inflicts bodily injury upon another or threatens another with or

intentionally puts him in fear of immediate bodily injury.”                   Id.     In

determining whether all of the elements of the crime of robbery have been

met, “[a] reviewing court will consider the [appellant’s] intent and actions

and   not   necessarily    the   subjective   state   of   mind   of    the   victim.”

Commonwealth v. Rodriguez, 673 A.2d 962, 966 (Pa. Super. 1996).

      Instantly,   the    evidence   produced    at   Appellant’s      non-jury     trial

established the following facts:

            On April 27, 2009, Mr. Leon Harold was working as a
      manager at Eros Bar and Restaurant located at 2743 Poplar
      Street, Philadelphia. At around 1:14 a.m., Mr. Harold observed
      [Appellant] enter the bar, buy a beer, and ask if anyone had a
      match to light a cigarette. The bartender, Ms. Sally Ford, gave


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      [Appellant] a match and he exited the bar. [Appellant] moved a
      chair that was propping the front door open, and smoked a
      cigarette outside. After smoking, [Appellant] entered the bar
      again and gave Ms. Ford some money for the beer. Ms. Ford
      went to the cash register behind the bar, reached under the
      counter, grabbed the change box, and began to make change for
      [Appellant]. [Appellant] stood at the customer-side of the bar,
      across from Ms. Ford, and said, “everybody give it up.”
      [Appellant] then reached for something in his pocket, and
      stated, “I said everybody give it the fuck up.” [Appellant]
      pointed with the item from his pocket, at Ms. Ford, holding the
      item like a gun. Mr. Harold called 911 and slowly walked
      towards [Appellant] and the cash register. [Appellant] then
      jumped over the bar to the employee side and grabbed the
      change box from Ms. Ford. As [Appellant] jumped over the bar,
      Mr. Harold noticed the item in [Appellant’s] hand was a cell
      phone.     Mr. Harold then jumped over the bar, chased
      [Appellant], and wrestled him to the ground with the help of a
      customer. Mr. Harold held [Appellant] down until the police
      arrived seven minutes later.

             Mr. Akila Senbata owns Eros Bar and Restaurant. On April
      27, 2010, Mr. Senbata was inside the bar when [Appellant]
      entered the bar and observed [Appellant’s] actions. Mr. Senbata
      testified the change box had fifty dollars ($50). Mr. Senbata
      further testified he had video surveillance at the bar, that video
      was recorded the night of the incident, and that he turned the
      video over to the police. The surveillance video was played for
      the court and Mr. Senbata identified the individuals in the video.

TCO at 2-3 (citations to the record omitted).

      On appeal, Appellant contends that the Commonwealth failed to meet

its burden of proving all of the elements required to sustain a robbery

conviction. In support of his claim, Appellant argues that Sally Ford did not

testify at the trial and that her testimony was required in order to establish

that she was either injured, threatened with bodily injury or that Appellant

intentionally put her in fear of immediate bodily injury.        Additionally,




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Appellant asserts that he did not have a gun and that the video surveillance

presented at trial showed that he never came in contact with Ms. Ford.

      Appellant’s argument is without merit. Viewing the evidence in a light

most favorable to the Commonwealth, the evidence was sufficient to permit

the trial court to conclude that Appellant acted with the intent to put Ms.

Ford in fear of immediate bodily injury, while committing a theft. Appellant’s

assertion that Ms. Ford’s testimony was needed to establish this element of

the crime is false. As we noted in Rodriguez, the victim is not required to

testify as to her state of mind in order to prove that the appellant

intentionally put her in fear, because whether or not she was, in fact, put in

fear is not controlling. Rodriguez, 673 A.2d at 966. Instead, we look to

the appellant’s intent and actions. Id.

      In Commonwealth v. Swartz, 484 A.2d 793 (Pa. Super. 1984), the

appellant walked into a branch office of a bank wearing sunglasses,

approached the teller, handed her a paper bag, and said “Fill the bag.” Id.

at 794. He then added, “Quick,” and when the teller moved slowly, he told

her, “Faster.” Id. After money had been placed into the bag, the appellant

grabbed the bag and departed. The teller stated that she was “very scared

and frightened”.   Id.   The appellant “never claimed to be armed, never

expressly threatened the teller, and was not observed with a weapon or

even his hand in his pocket.” Id. At trial, the appellant testified that he had

not intended to frighten the teller. Id.




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      On appeal, the appellant in Swartz raised a sufficiency claim

regarding his conviction of robbery under 18 Pa.C.S.A. § 3701(a)(1)(iv),

which required this Court to determine “whether the appellant’s intent was

adequately demonstrated when there was no actual threat or display of force

but only a demand for money.” In making this determination, we conducted

the following case law analysis:

      In Commonwealth v. Hurd, 268 Pa. Superior Ct. 24, 407 A.2d
      418 (1979)[,] this court held that an actor’s request to open a
      drawer, which was repeated in the following manner: “Bitch,
      open the drawer,” while the actor appeared to have his hand on
      an object in his pocket was sufficient to show that the actor
      intended to place the victim in fear of “immediate serious bodily
      injury.” Hurd may appear to be a stronger case than the one
      currently before us, as there the defendant’s action suggested he
      had a gun. However, more similar to the current controversy is
      Commonwealth v. Davis, 313 Pa. Super. Ct. 355, 459 A.2d
      1267 (1983). The defendant in Davis was convicted under §
      3701(a)(1)(ii) of robbing a pipe store which was open all night.
      He was observed entering the shop through a small window
      through which business was transacted. The defendant told an
      employee of the shop to: “Get back, Get back.” This court held
      that Davis’ “mode of entry and his warnings … certainly were
      aggressive actions which implicitly carried with them a threat of
      imminent bodily harm ….” When applied to the facts at hand,
      Davis requires that we find that the current evidence showed
      beyond a reasonable doubt that appellant, contrary to his claim,
      intended to put the teller in fear. A sunglassed individual, who
      approaches a bank teller with a paper bag and commands that
      the bag be filled with currency and exhibits extreme impatience
      with a teller creating an atmosphere of extreme tension, can be
      reasonably presumed to intend to inflict fear into the mind of the
      teller within the meaning of § 3701(a)(1)(iv).

Swartz, 484 A.2d at 794-795.

      Similar to the facts in Swartz, Appellant approached Ms. Ford and

made several statements demanding money from her.             Like in Hurd,

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Appellant held out an object from his pocket in a manner which suggested

he was holding a gun. Appellant then jumped over the bar and grabbed the

change   box.     Appellant’s    statements,   combined    with   his   actions,

demonstrated impatience and created an atmosphere of extreme tension.

Based on Swartz and Hurd, the trial court was reasonable to conclude that

Appellant intended to put Ms. Ford in fear of immediate bodily injury as a

means of getting her to cooperate. Finally, Appellant’s emphasis on the fact

that he was not actually carrying a gun is of no moment.                    See

Commonwealth v. Thomas, 546 A.2d 116, 117-118 (Pa. Super. 1988)

(concluding that appellant intended to place victims in fear of immediate

serious bodily injury by “simulating the possession of a gun,” and that the

“crime is not made less serious by the fact that he did not possess a gun,

but was only simulating one”).

      Appellant next challenges the weight of the evidence to support his

conviction.

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court’s discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the jury is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the jury’s verdict is so contrary to the evidence that it shocks
      one’s sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion.


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Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      Appellant seemingly bases his weight of the evidence claim on his

assertion that the trial court improperly credited the testimony of two

eyewitnesses in determining that he intended to put Ms. Ford in fear of

immediate bodily injury.         “[O]n issues of credibility and weight of the

evidence, an appellate court defers to the findings of the trial judge, who has

had the opportunity to observe the proceedings and demeanor of the

witnesses.”   Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa.

Super. 2002).     As noted in its Rule 1925(a) opinion, the trial court had

ample time to review the testimony of the two eye witnesses and the

surveillance video tape, and concluded that the elements of robbery were

proven beyond a reasonable doubt.         TCO at 6.   We ascertain no abuse of

discretion by the trial court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2015




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