Appeal from the Judgment of Sentence January 13, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002901-2010
BEFORE: BOWES, LAZARUS, and COLVILLE, [*] JJ.
Kenneth Crawford Adams appeals from the judgment of sentence of seven to fourteen years incarceration imposed by the trial court after a jury found him guilty of two counts each of robbery, receiving stolen property, and recklessly endangering another person (REAP), and one count each of persons not to possess a firearm, firearm not to be carried without a license, and simple assault. After careful review, we affirm Appellant's convictions, but vacate his judgment of sentence and direct the trial court to correct a clerical error in its written judgment of sentence order.
The trial court set forth the pertinent facts as follows.
Shortly after noon on February 10, 2010, Appellant and a female companion approached the meat counter in the Giant Eagle store, located in Crafton, Allegheny County where they ordered two special cuts of meat (filet mignon and lamb chops). After leaving the meat counter[, ] Appellant concealed the items in his clothing and was en route to leave the store with his companion.
Store security officer Guy Morsillo witnessed the concealment and approached Appellant, identified himself and confronted Appellant who denied having the meat. Morsillo requested that Appellant accompany him to the manager's office to discuss the meat concealed within his clothing. Appellant removed the items from under his sweatshirt and coat and placed them into a shopping cart. Nonetheless[, ] Morsillo told Appellant that he would have to go back to the manger's [sic] office.
Appellant refused, punched Morsillo and attempted to flee. Morsillo was able to grab Appellant and the two began to struggle. Appellant pulled out of his coat and escaped Morsillo's grasp. Morsillo fell to the ground injuring his ankle, however[, ] he called for assistance from nearby employees. During this time Appellant's female companion fled the store. When Morsillo fell to the ground[, ] Appellant began to run toward the store's exit but he was pursued by employees John Steele and Ron Schmidt who had responded to Morsillo's request for assistance. During his flight[, ] Appellant reached for a .25 caliber handgun that he had concealed in his clothing, however[, ] the gun fell to the ground. Appellant stopped and picked up the gun[, ] which allowed Steele and Schmidt to move within five feet of Appellant.
Appellant confronted Steele and Schmidt with the handgun. Appellant pointed the gun at both men, stated that he wasn't afraid to use it, and attempted to fire the gun at Steele but it did not fire. Both Steele and Schmidt heard the gun click twice. In the face of the weapon[, ] Steele stepped aside and Appellant continued his flight but was closely pursued by Schmidt. When Appellant reached the store entrance his exit was impeded by a store employee who was returning shopping carts to the entrance. Schmidt was able again to close the distance between himself and Appellant who again pointed the gun and attempted to fire it at Schmidt. However[, ] Schmidt was able to grab Appellant and take him to the ground, and along with Steele they were able to disarm Appellant. The weapon proved to be a .25 caliber [semi-]automatic handgun with 6 live rounds in the magazine but none in the chamber.
Trial Court Opinion, 7/9/12, at 5-7 (internal citations and footnote omitted).
Thereafter, the Commonwealth charged Appellant with two counts each of attempted homicide, aggravated assault, and receiving stolen property, three counts of robbery, and one count each of persons not to possess a firearm, firearm not to be carried without a license and simple assault. The jury acquitted Appellant of the attempted homicide charges and one count of robbery, but convicted him at the remaining counts. The court sentenced Appellant to two concurrent five-to-ten-year terms of imprisonment for the robbery convictions and a consecutive two to four years incarceration for the persons not to possess a firearm charge. Additionally, Appellant received a concurrent six to twelve months of incarceration for his simple assault conviction. The court imposed no further penalty on the remaining convictions.
Appellant filed a post-sentence motion, which the court denied. This appeal ensued. The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the trial court authored its Pa.R.A.P. 1925(a) opinion. The matter is now ready for our review. Appellant raises four issues for our consideration.
I. Whether Mr. Adams' conviction on Count 6—Robbery (Schmidt) must be reversed, and the Judgment of Sentence in this regard must be vacated, when the Commonwealth failed to prove, beyond a reasonable doubt, that he threatened Schmidt with "serious bodily injury", or intentionally put Schmidt in fear of "serious bodily injury"?
II. Whether the verdicts of guilty on Count 5—Robbery (Steele) and Count 6—Robbery (Schmidt) were against the weight of the evidence when Mr. Adams credibly testified that he did not threaten Steele or Schmidt with the gun, he did not pull the trigger, and his only objective was to get out of the store, not hurt anyone, there was other evidence showing that Mr. Adams did not pull out and brandish the gun, but it simply fell out of his pants as he was running out of the store, and after Mr. Adams picked up the gun, he simply ran out of the store as Steele and Schmidt gave pursuit, nothing less and nothing more?
III. Whether Judge Borkowski abused his sentencing discretion by imposing the 2-4 year sentence on Count 8—Person Not to Possess Firearm consecutively to the concurrent 5-10 year mandatory sentences on Count 5—Robbery (Steele) and Count 6—Robbery (Schmidt), thereby imposing an aggregate sentence of 7-14 years incarceration, when Mr. Adams presented multiple, substantial mitigating factors involving his character.
IV. Whether Mr. Adams' sentences on Count 5—Robbery (Steele) and Count 6—Robbery (Schmidt) are illegal because, at both Counts, Mr. Adams was convicted under § 3701(a)(1)(ii), but the Judgment of ...