No. 611 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at No. 779-783 January 1981.
Stanley P. Stern, Philadelphia, for appellant.
Thomas R. Quinn, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cavanaugh, Wieand and Hoffman, JJ. Wieand, J., files dissenting opinion.
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Appellant contends that the evidence was insufficient to support his conviction for robbery and criminal conspiracy.
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We agree and, accordingly, reverse the judgment of sentence and order appellant discharged.
In reviewing challenges to the sufficiency of the evidence, the test is whether, "viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt." Commonwealth v. Keblitis, 500 Pa. 321, 323, 456 A.2d 149, 150 (1983). So viewed, the facts are as follows:
At approximately 8 a.m. on December 15, 1980, the victim was kicked in the rear by appellant as he exited the center door of a trolley at 20th Street and Girard Avenue in Philadelphia. Appellant acknowledged the calcitration, followed the victim off the trolley and punched him in the eye, knocking his glasses to the ground. Appellant was joined by several trolley-riding colleagues who punched and kicked the victim for a few seconds and attempted to snatch a chain from his neck. One member of the group picked up the victim's glasses and the entire group returned to the trolley. The victim summoned a police officer who stopped the trolley three blocks from the incident and the victim identified appellant and two other group members. Appellant was found guilty in a non-jury trial of robbery and criminal conspiracy arising out of the theft of the victim's glasses. The lower court denied post-trial motions and sentenced appellant to consecutive one-to-two year terms of imprisonment. This appeal followed.
Appellant contends that the evidence was insufficient to support the lower court's verdict that he feloniously inflicted bodily injury upon the victim in the course of committing a theft.*fn1 Specifically, he argues that the Commonwealth has not established that he intended to commit a theft. "A person is guilty of robbery if, in the course of committing a theft, he: . . . (iv) inflicts bodily injury upon another or
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threatens another with or intentionally puts him in fear of immediate bodily injury . . . ." 18 Pa.C.S.A. § 3701(a)(1)(iv). "An act shall be deemed 'in the course of committing a theft' if it occurs in an attempt to commit theft or in flight after the attempt or commission." Id. at § 3701(a)(2). "One of the elements of robbery is that it be in the course of committing a theft or an attempt to commit a theft, and of course, the burden is upon the Commonwealth to prove theft or an attempt to commit a theft." Commonwealth v. Thompson, 274 Pa. Superior Ct. 44, 53, 417 A.2d 1243, 1248 (1979). To meet that burden, the Commonwealth must show that the defendant intended to commit or attempt to commit theft. Id. See generally 18 Pa.C.S.A. §§ 901 (attempt), 3901-3931 (theft).
Here, the Commonwealth offered no evidence of appellant's intent to either commit or attempt to commit a theft. Although appellant assaulted the victim and knocked his glasses to the ground, there is no evidence that appellant picked up the glasses and carried them back to the trolley. Nor do we find it likely that appellant exited the bus and assaulted the victim intending to steal a pair of prescription eyeglasses. Similarly, there is no evidence that appellant tried to grab the victim's chain despite having ample opportunity to do so while the victim was exiting the trolley ahead of him. Rather, the evidence proves that appellant left the trolley to fight the victim and several friends joined in the ensuing melee. Although this evidence may well be enough to sustain a conviction for simple assault,*fn2 it is not sufficient to prove robbery. Accordingly, we must reverse the conviction.
Appellant contends that his conviction for criminal conspiracy was also unsupported by the evidence. "[F]or a defendant to be convicted of conspiracy, the Commonwealth must prove his involvement in an agreement to accomplish a criminal objective and the commission of an overt act in pursuance of the conspiracy." Commonwealth v. Lewis,
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Pa. Superior Ct. 451, 457, 419 A.2d 544, 547 (1980). See 18 Pa.C.S.A. § 903. The information charged appellant with conspiring to accomplish robbery or theft. As we have already determined, the evidence was insufficient to establish appellant's intent to commit or attempt to commit theft and thus, insufficient to establish robbery. There being no evidence that appellant intended to commit a theft or robbery, we find no evidence that appellant conspired to commit a theft or robbery and, accordingly, reverse the judgment of sentence.
Judgment of sentence reversed and appellant ordered discharged.
WIEAND, Judge, dissenting:
Craig Jackson was tried non-jury and was found guilty of robbery*fn1 and criminal conspiracy.*fn2 Post trial motions containing general averments of insufficiency of the evidence were denied, and consecutive sentences of imprisonment for not less than one nor more than two years were imposed. This appeal followed. The majority holds that the Commonwealth's evidence was insufficient to prove that an admitted assault committed upon Thomas Mingo by appellant and his cohorts was ...