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COMMONWEALTH PENNSYLVANIA v. ANTON SMITH (03/19/84)

submitted: March 19, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTON SMITH, APPELLANT



NO. 3104 PHILA. 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal No. 81-10-3112

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Rowley and Beck, JJ.

Author: Spaeth

[ 333 Pa. Super. Page 157]

This is an appeal from judgment of sentence for robbery. Appellant was tried by a judge sitting without a jury on charges of robbery,*fn1 theft,*fn2 and receiving stolen property,*fn3 and was found guilty of having violated Section 3701(a)(1)(v) of the Crimes Code, 18 Pa.C.S. ยง 3701(a)(1)(v), which provides that ". . . a person is guilty of robbery if, in the course of committing a theft, he . . . (v) physically takes or removes property from the person of another by force however slight." Appellant concedes that the evidence was sufficient to prove theft but argues that it was insufficient to prove robbery because it did not prove "force however slight." We agree and therefore reverse the judgment of sentence and remand for imposition of sentence for theft.

In determining the sufficiency of evidence, we must view the evidence, including all reasonable inferences from it, in the light most favorable to the Commonwealth. Commonwealth v. Madison, 263 Pa. Super. 206, 397 A.2d 818 (1979). So viewed, the evidence established the following.

On the evening of August 26, 1981, appellant approached Joseph Walker, a blind man, and asked him for a cigarette. Mr. Walker, who had known appellant for two years and recognized his voice, answered that he did not have a cigarette, and continued on his walk to a store. On Mr. Walker's return from the store, appellant reached into Mr. Walker's pants pocket, removed a partially protruding pack of cigarettes, and ran away. There was no threat by appellant or struggle or physical resistance by Mr. Walker.

In holding this evidence sufficient to sustain appellant's conviction of robbery, the trial judge stated:

[ 333 Pa. Super. Page 158]

The cigarettes, although not completely in the pocket, were sufficiently in the pocket for [appellant] to have to pull them out. In fact, there was no way [appellant] could have gotten the cigarettes out of the Complainant's pocket without using some force. There was not a lot of force used, but there was force. The statute specifically provides: "force however slight." (emphasis added).

Slip op. at 3.

[ 333 Pa. Super. Page ...


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