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COMMONWEALTH PENNSYLVANIA v. ROBERT WINDELL (04/27/87)

submitted: April 27, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT WINDELL, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 85-03-2575, 2576, 2577.

COUNSEL

Augustine J. Rieffel, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Wieand, Olszewski and Hoffman, JJ.

Author: Wieand

[ 365 Pa. Super. Page 394]

The issue in this appeal is whether a thief, who surreptitiously and without the knowledge of the owner removes a coin purse and wallet from a pocketbook being carried by a passenger on a bus, is guilty of robbery. We conclude that because the element of force is missing, the pickpocket is guilty of theft and not robbery.

On February 21, 1985, at or about 9:45 a.m., Kenny Welsh, a Sears security guard, received information from a customer that two males, whom the customer pointed out, had been picking pockets on a Route K SEPTA bus. Welsh and Thomas Strobeck, another guard, approached the men and asked them if they had been on the Route K bus. When one of them, Herbert Edmunds, responded in the affirmative, Welsh asked the men if they knew anything about pickpocketting a passenger on the bus. Edmunds answered, "no," but immediately walked to a clothing rack, where he dropped a red wallet. Welsh and Strobeck thereupon apprehended Edmunds and Robert Windell and took them to the store's security office. En route, Strobeck observed Windell drop to the floor a small, brown, coin purse. When Strobeck retrieved the purse, he found a beige wallet lying next to the purse. The purse contained a cross, a key, and coins in the total amount of $1.11. The beige wallet divulged a prescription containing the name of the prescribing physician, his telephone number, and the name "C. Taylor." A call to the physician led to Frances Taylor, a seventy-nine year old woman. Although she was able to identify the coin purse and wallet, she had not been aware previously that they had been stolen.

Frances Taylor testified at trial that she had been a passenger on the Route K bus between 9:25 and 9:50 a.m. on the morning of February 21, 1985. The bus had been crowded, she said, and she had found it necessary to stand in the aisle. Although there had been a fair amount of jostling, she remembered being shoved forcefully just before

[ 365 Pa. Super. Page 395]

    the bus arrived at the Sears store. When she turned around to see who had pushed her, she observed a tall man standing beside her, but she did not know who he was and could not identify him as either Edmunds or Windell. She did not become aware that her purse and wallet were missing until after she arrived home and learned that they were in the possession of the police.

The trial court, which heard the evidence without a jury, found Robert Windell guilty of robbery,*fn1 theft by unlawful taking,*fn2 theft by receiving stolen property,*fn3 and criminal conspiracy.*fn4 Post-verdict motions were denied, and Windell was sentenced on the robbery conviction to serve a term of imprisonment for not less than 11 1/2 months nor more than 2 years minus one day, to be followed by probation for a consecutive period of five years. He was sentenced to an additional term of probation for criminal conspiracy. Windell appealed. He contends, inter alia, that the evidence was insufficient to sustain a conviction for robbery.

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. 18 Pa.C.S. § 3701(a)(1)(v). The issue in this case is whether the removal of property from a person, without any force other than that needed to take the property and carry it away, constitutes robbery. If so, all unlawful taking of property from the person of another will constitute robbery and not merely theft.

In Commonwealth v. Brown, 506 Pa. 169, 484 A.2d 738 (1984), the Supreme Court held that the element of "force however slight," required by 18 Pa.C.S. § 3701(a)(1)(v), can be satisfied by evidence of any amount of force ...


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