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COMMONWEALTH PENNSYLVANIA v. SIMON F. OSTOLAZA (06/29/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 29, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
SIMON F. OSTOLAZA, APPELLANT

No. 1072 October Term 1978, Appeal from Judgment of Sentence of Court of Common Pleas of Lancaster Co., Pa., No. 1381 of 1977.

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

Ronald L. Buckwalter, District Attorney, Lancaster, for Commonwealth, appellee.

Cercone, Spaeth and Lipez, JJ.

Author: Spaeth

[ 267 Pa. Super. Page 453]

Appellant was tried by a judge sitting without a jury and was convicted of robbery. Post-verdict motions were denied and appellant was sentenced to two to four years in prison. On this appeal appellant contends that the evidence was insufficient to sustain the conviction.

On July 16, 1977, at approximately 12:00 noon, the victim was standing at a counter in the Southern Market in Lancaster. She had taken out her wallet to pay the store clerk

[ 267 Pa. Super. Page 454]

    and was holding it open in her hand when appellant grabbed it. The victim refused to let go of the wallet and held onto it, screaming. Appellant finally wrenched it from her hands and ran out into the street with it.

In Commonwealth v. Steward, 263 Pa. Super. 191, 397 A.2d 812 (1979), this court stated: "In testing a sufficiency of evidence claim we first accept as true all the evidence upon which the finder of fact could properly have reached its verdict, and then, after giving the Commonwealth the benefit of all reasonable inferences arising from that evidence, we ask whether the evidence and the inferences arising from it are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crimes of which he has been convicted." Id., 263 Pa. Super. at 199, 397 A.2d at 815-16.

The information filed against appellant charged him with robbery as defined under subsection (ii) of section 3701 of the Crimes Code, which provides that "[a] person is guilty of robbery 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. § 3701(a)(1)(ii). When past purse-snatching robbery cases are considered, it is clear that here the evidence, considered in accordance with the principles stated in Commonwealth v. Steward, supra, was insufficient to sustain the conviction.

In Commonwealth v. Farmer, 241 Pa. Super. 373, 361 A.2d 701 (1976), this court held the evidence sufficient to convict the defendant of robbery under subsection (ii) of section 3701 of the Crimes Code where the defendant and his co-defendant grabbed the victim's purse, punched her in the face, and ran away with the purse.*fn1 In Commonwealth v. Scott, 246 Pa. Super. 58, 369 A.2d 809 (1976), however, this court held a conviction under subsection (ii) improper, where

[ 267 Pa. Super. Page 455]

    the evidence was merely that the defendant had grabbed the victim's purse and had run away with it.

The facts here are closer to the facts in Scott than in Farmer, for here the victim was not punched. While it appears that appellant had to use some force to wrench the wallet away from the victim, the force was directed against the wallet; he never touched the victim's body. The facts that the victim resisted, that there was a brief tug of war over the wallet, and that the victim testified that she was afraid,*fn2 were not sufficient to prove that appellant intended that the victim be, or indeed that she was, placed in fear of serious bodily injury, as required under the Crimes Code.*fn3

The conclusion that the evidence was insufficient to convict appellant under subsection (ii) is buttressed by a consideration of the 1976 amendments to section 3701 of the Code. By these amendments, subsection (v) was added to section 3701, setting forth a different type of robbery. Under subsection (v) a robbery occurs where in the course of committing a theft the defendant "physically takes or removes property from the person of another by force, however slight." 18 Pa.C.S. § 3701(a)(1)(v).*fn4 This subsection

[ 267 Pa. Super. Page 456]

    represents a codification of earlier law in this Commonwealth,*fn5 and was obviously intended to cover the type of purse-snatching robbery that occurred in Scott and in this case.*fn6 Based upon the evidence presented here, appellant clearly could have been convicted of robbery under subsection (v).*fn7 The mere fact that he grabbed the wallet with more than slight force and that a brief tug of war ensued was not sufficient to escalate a subsection (v) robbery into a subsection (ii) robbery.*fn8

Instead of seeking, and obtaining, a conviction under subsection (v), the Commonwealth filed an information alleging robbery under subsection (ii). By only citing subsection (ii), and by neither referring to robbery generally under section 3701 nor citing subsection (v), the Commonwealth limited itself to proving that appellant committed robbery under subsection (ii). See Commonwealth v. Madison, 263 Pa. Super. 206, 397 A.2d 818 (1979).

It is well settled, however, "that upon an indictment for a particular crime, the defendant may be convicted of a lesser offense included within it." Commonwealth v. Farmer, 244 Pa. Super. 334, 337, 368 A.2d 748, 749 (1976). Thus if subsection (v) robbery constitutes a lesser included offense of subsection (ii) robbery, appellant could be convicted of subsection (v) robbery in this case.

The test for determining whether an offense is a lesser included offense is whether all the essential elements

[ 267 Pa. Super. Page 457]

    of the lesser offense are included in the greater offense. Commonwealth v. Farmer, 244 Pa. Super. at 338, 368 A.2d at 750; Commonwealth v. Wilds, 240 Pa. Super. 278, 362 A.2d 273 (1976). Here the greater offense is subsection (ii) robbery, which occurs when the defendant, in the course of committing a theft, threatens the victim or puts him in fear of serious bodily injury. Subsection (v) robbery occurs when the defendant, in the course of committing a theft, takes or removes property from the person of the victim by force. Thus, an essential element of subsection (v) robbery is a taking from the person of the victim. Since subsection (ii) robbery does not contain this element, a conviction under subsection (ii) would not necessarily include proof of this element. To be sure, there may be a case where both types of robbery would be proved, as where the defendant snatches the victim's purse, and at the same time threatens her with a revolver. But there also may be a case where a subsection (ii) robbery is proved on evidence that would not prove a subsection (v) robbery. Suppose, for example, that the victim is standing across the room from her purse and the defendant takes it, telling the victim to stay back or he will shoot her. There would be no subsection (v) robbery, for there was no taking "from the person of another by force," but there would be a subsection (ii) robbery, for there was a threat of serious bodily injury to the victim during the theft. Since a subsection (ii) robbery may be proved without necessarily proving a subsection (v) robbery, we cannot hold that subsection (v) robbery is a lesser offense included in the greater offense of subsection (ii) robbery.

This conclusion does not mean that appellant must be discharged, however, for the Commonwealth's evidence did prove that appellant committed theft, which is a lesser offense included in the greater offense of subsection (ii) robbery.*fn9 See Commonwealth v. Stevens, 237 Pa. Super. 457, 352 A.2d 509 (1975).

[ 267 Pa. Super. Page 458]

Appellant's conviction of robbery is reversed and the case is remanded to the lower court to impose sentence for the crime of theft.


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