J-A15007-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

TANISHA HINES,

                          Appellant                    No. 3257 EDA 2013


          Appeal from the Judgment of Sentence November 6, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0003083-2013


BEFORE: BOWES, MUNDY, AND FITZGERALD* JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 14, 2015

       Tanisha Hines appeals from the judgment of sentence of three years

probation.    We reverse Appellant’s convictions of robbery and theft and

remand for resentencing.

       On December 12, 2012, Appellant was charged in connection with

events that occurred the previous day on Price Street, Philadelphia.

Appellant and her co-defendant, her cousin Tericka Hines, proceeded to a

nonjury trial on May 23, 2013, when the Commonwealth adduced the

following proof by its sole witness, Margaret Akano.

       At approximately 7:40 p.m. on December 11, 2012, Ms. Akano went to

visit the co-defendants, whom she considered friends, at 5838 Wakefield

Street, Philadelphia, so that Tericka could style Ms. Akano’s hair. When she
*
    Former Justice specially assigned to the Superior Court.
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arrived, Ms. Akano was told by Cashmere, the co-defendants’ cousin, that

Tericka was upstairs.       Ms. Akano and Cashmere attended school together.

Before Ms. Akano arrived at the co-defendants’ residence, Appellant had

warned her, in a text message, that Cashmere was there and not to come.

Ms. Akano thought that the message was a joke.

       Ms. Akano went upstairs and sat on the bed with Tericka. Cashmere,1

a female, entered the bedroom about two minutes later, asked what had

happened, and, before Ms. Akano could respond, punched Ms. Akano in the

mouth with a closed fist.        Ms. Akano and Cashmere went downstairs and

began to argue. Appellant and Tericka were also present, and Appellant told

Cashmere to “let [Ms. Akano] leave” and tried to break up the fight. N.T.

Waiver Trial, 5/23/13, at 17, 26. Cashmere responded that Ms. Akano could

leave but said to the victim, “[W]hen you leave out the door I’m going to hit

you again.” Id. As Ms. Akano left the house, Cashmere struck her again,

but Ms. Akano walked away.

       Cashmere, Appellant, and Tericka began to follow Ms. Akano down the

street. Once Ms. Akano reached Price Street, Appellant told Ms. Akano to

fight Cashmere, but Ms. Akano responded that she did not want to.

Appellant then said, “[P]ass me your bag, you all can have a one-on-one

____________________________________________


1
  Cashmere was a juvenile at the time of the incident, and was charged in
the juvenile system. N.T. Waiver Trial, 5/23/13, at 18.



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fight[.] Id. at 19. When Ms. Akano again refused, Appellant “snatched the

bag” and “threw it down” on Price Street.      Id. at 19, 21.    The bag was

thrown across the street, to the other side of Price Street. Id. at 20. Ms.

Akano was asked specifically why Appellant removed the purse from Ms.

Akano’s arm. The cross-examination by Appellant’s attorney was as follows:

             Q. And the whole time you were out on the street my
      client [Appellant], you testified, did you not, my client said to
      you, ‘just fight her, just fight Cashmere.’

             A. Yes.

           Q. And at that time my client took your bag and put it
      down on the street so you could have your hands free to fight
      Cashmere; right?

             A. She snatched my bag out of my hand.

             Q.  Right. And she did that at the time she was
      encouraging you to put your dukes up and fight Cashmere;
      right?

             A. Right.
Id. at 31.

      Ms. Akano testified on direct examination that, after Appellant

removed her purse from her arm and threw it across the street, Appellant,

Cashmere, and Tericka began to assault Ms. Akano. Ms. Akano blocked their

blows and ten to fifteen minutes later, “[s]ome guy from the neighborhood

came over and said ‘all right, all right, you got her’ and then they

[Cashmere, Appellant, and Tericka] just walked off.” Id. at 20. Ms. Akano

retrieved her purse, which was still located on Price Street. Id. at 21.



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      The only item missing from the bag was Ms. Akano’s cell phone.

Although Ms. Akano did not want to call police, she started to search for the

phone.   Police arrived on the scene due to a call from an anonymous

woman. Ms. Akano saw a young boy hand police her cell phone, which had

a cracked face.   The Commonwealth agreed that an unknown person had

returned the cracked cell phone to police at the scene of the assault. The

record fails to indicate where the cell phone was located when it was

discovered by the boy. Ms. Akano admitted that she did not see who took

the phone from her purse. Id. at 28-29.

      Appellant   was   charged   with    robbery   (purse   and    cell   phone),

conspiracy, theft by unlawful taking (purse and cell phone), receiving stolen

property (purse and cell phone), simple assault, and reckless endangerment.

The trial court found her guilty of felony robbery by physically removing

property by force, however slight.       Appellant was also adjudged guilty of

theft by unlawful taking, receiving stolen property, conspiracy to commit

simple assault, and simple assault.      On November 3, 2013, after denying

Appellant’s motion for judgment of acquittal as to the robbery and theft

counts, the court sentenced her to three years probation.          In this appeal,

Appellant raises one contention: “Was the evidence insufficient to support

Appellant’s robbery and theft conviction because the Commonwealth failed

to prove beyond a reasonable doubt that Appellant acted with the intent to

deprive the complaint of her [property].” Appellant’s brief at 3.

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     Initially, we observe: “In reviewing a challenge to the sufficiency of the

evidence, we must determine whether, viewing the evidence in the light

most favorable to the Commonwealth as verdict winner, together with all

reasonable inferences therefrom, the trier of fact could have found that each

and every element of the crimes charged was established beyond a

reasonable doubt.”    Commonwealth v. Leatherby, 116 A.3d 73, 79

(Pa.Super. 2015).

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

which provides that a person is “guilty of robbery if, in the course of

committing a theft, he . . . . physically takes or removes property from the

person of another by force however slight[.]” Appellant likewise challenges

her theft conviction. The crime of theft by unlawful taking occurs when, in

pertinent part, a person “unlawfully takes, or exercises unlawful control

over, movable property of another with intent to deprive him thereof.” The

Crimes Code defines deprive, as:

          (1) To withhold property of another permanently or for
     so extended a period as to appropriate a major portion of
     its economic value, or with intent to restore only upon
     payment of reward or other compensation, or

           (2) to dispose of the property so as to make it unlikely that
     the owner will recover it.

18 Pa.C.S. § 3901 (emphasis added).

     For a person to be guilty of theft, “the actor's intention or conscious

object must be to take unlawfully the property of another for the purpose of

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depriving   the   other    of   his   or   her    property.”   Commonwealth v.

Dombrauskas, 418 A.2d 493, 496-97 (Pa.Super. 1980).                      Theft is a

predicate   offense       for   robbery     and     an   element   of   the   crime.

Commonwealth v. Robinson, 936 A.2d 107 (Pa.Super. 2007). Thus, the

specific intent to deprive another of his or her property is likewise needed to

support a robbery conviction. Commonwealth v. Stewart, 547 A.2d 1189,

1191 (Pa.Super. 1988) (“The specific intent to deprive is required for a

robbery conviction.”).

      Appellant’s position is straightforward.           The Commonwealth’s proof

failed to establish that she intended to deprive Ms. Akano of either her purse

or the cell phone permanently or for an extended period.            She points out

that Ms. Akano admitted that her purse was removed from her arm solely

for the purpose of freeing that arm to fight Cashmere. The purse was then

thrown across the street. There was no proof at all that Appellant looked

into the purse or removed any of its contents. To the contrary, Ms. Akano

plainly stated that, immediately after throwing the purse across the street,

Appellant began to participate in the assault. Ms. Akano admitted that she

did not know who removed her cell phone from her purse.                 The assault

lasted ten to fifteen minutes before a man verbally stopped the altercation.

Thereafter, Appellant, who could have taken the purse with her, simply

walked away with her two cohorts.




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     The victim then picked up her purse, which had been left behind on

Price Street. She could not immediately find the phone, but saw a boy hand

it to police when they arrived on the scene.     The Commonwealth never

established that there was any connection between Appellant and the boy

who returned the damaged cell phone to the police.       They also failed to

provide any indication of where the phone was located when it was

discovered.

     We agree with Appellant’s position. Theft of the purse did not occur

when the purse was flung out of the way and promptly ignored by Appellant.

The victim recovered her purse within fifteen minutes of that activity. Thus,

the victim was not deprived, as the term is defined in the Crimes Code, of

her purse. The trial court premised its theft and robbery convictions on the

cell phone. It leapt to an unsupported conclusion that Appellant “broke the

cell phone and disposed of [it] in a direction that Ms. Akano was unable to

observe.   The damage to the cell phone demonstrates Defendant did not

intend to return the phone to Ms. Akano after they finished fighting.” Trial

Court Opinion, 1/22/15, at 4. Simply put, there was not a scintilla of proof,

circumstantial or otherwise, to support a finding that Appellant touched,

much less threw away, the cell phone.

     The victim plainly stated that Appellant removed her purse and threw

it across the street and then started to fight her.    She never said that

Appellant either looked or reached into the purse. She never testified that

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Appellant reached into the purse and threw an object from it. Instead, Ms.

Akano admitted that Appellant demanded to take the purse solely for the

purpose of freeing Ms. Akano’s arm so that she could fight Cashmere. Ms.

Akano   reported   that   Appellant     began   to   participate   in   the   assault

immediately after throwing the bag across Price Street.            When the man

stopped the fight, Appellant walked away.        Ms. Akano did not report that

Appellant touched her purse after the assault and instead admitted that she

was unaware of who might have removed the cell phone from the purse.

The Commonwealth provided no evidence as to where the cell phone was

found or who recovered it or whether that stranger was connected to

Appellant.

      While we are aware that the Commonwealth may prove its case based

upon circumstantial evidence, in this case, there was none to support a

finding that Appellant touched the cell phone.        Indeed, the only inference

from the evidence presented is that the cell phone fell from the purse when

Appellant threw it across the street.

      It is established that a conviction cannot be based upon speculation

and conjecture and that the Commonwealth’s evidence must establish the

elements of the offense.     Thus, while all reasonable inferences from the

evidence must be made in favor of the Commonwealth, those “inferences

must flow from facts and circumstances proven in the record, and must be

of such volume and quality as to overcome the presumption of innocence.”

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Commonwealth v. Robinson, 817 A.2d 1153, 1158 (Pa.Super. 2003) (it

was pure speculation that assailant intended to cause victim serious bodily

injury by striking her once on the back with a gun, rendering aggravated

assault conviction infirm); Commonwealth v. Scott, 597 A.2d 1220, 1221

(Pa.Super. 1991) (overturning arson and risking catastrophe convictions

where there was no proof that defendant wanted to cause a fire when the

evidence was that she squirted lighter fluid at her boyfriend during a fight

and left the room); see also Commonwealth v. Swerdlow, 636 A.2d

1173 (Pa.Super. 1994) (defendant’s conviction of conspiracy could not be

upheld where only evidence presented against him was that actual

perpetrator of burglary used a crawlspace in defendant’s residence to access

victim’s home).

      Given the lack of proof that Appellant touched any content of

Appellant’s purse and the victim’s admission that Appellant threw it across

the street solely to allow the victim to fight, and since purse and cell phone

were left at the scene and quickly recovered by Ms. Akano, we cannot permit

Appellant’s robbery and theft convictions to stand.

      Convictions for robbery and theft reversed.     Judgment of sentence

vacated. Case remanded for resentencing. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2015




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