Com. v. Jackson, H.

J-S03006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

HORACE L. JACKSON,

Appellant No. 811 EDA 2017

Appeal from the Judgment of Sentence Entered February 2, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0011377-2015

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 01, 2018

Appellant, Horace L. Jackson, appeals from the judgment of sentence

entered after a jury convicted him of robbery and related crimes. We affirm

in part and reverse in part.

The trial court aptly summarized the procedural history and factual

background of this case as follows:

Procedural History

On August 15, 2016, a hearing was held on Appellant[’s]

motions to suppress identification and statements. Those motions

were denied following that hearing.

Appellant then proceeded to trial before this [c]ourt, sitting

with a jury. Testimony commenced on August 16, 2016. On

August 22, 2016, the jury returned a verdict of guilty on the

charges of robbery as a felony of the first degree (18 Pa.C.S. §

3701([a]), possession of an instrument of crime [(PIC)] (18

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-S03006-18

Pa.C.S. § 907), attempted theft (18 Pa.C.S. § 901) and attempted

receipt of stolen property (18 Pa.C.S. § 901).

On February 2, 2017, Appellant was sentenced to 10-20

years[’] incarceration on the [r]obbery conviction and a

consecutive 5 years[’] probation on the conviction for [PIC]. No

further penalty was imposed on the charges of attempted theft

and attempted receipt of stolen property.

A timely Notice of Appeal was filed by Appellant, pro se, on

February 6, 2017.1 Counsel filed a Notice of Appeal on March 6,

201[7].

1On that same date[,] Appellant also filed a pro se petition

under the Post[]Conviction Relief Act[, 42 Pa.C.S. §§ 9541-

9546]. That petition was dismissed as premature on March

15, 2017.

Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the [c]ourt entered

an order on March 16, 2017, directing the filing of a Statement of

Errors Complained of on Appeal, not later than twenty-one (21)

days after entry of the order.

A timely Rule 1925(b) Statement of Errors was filed by

appointed appellate counsel on April 1, 2017.

Factual History

Motion to Suppress

Appellant moved to suppress his out-of-court and in-court

identification based upon lack of reasonable suspicion to detain

him for the on-the-street confrontation, suggestivity of the out-

of-court identification and attendant unreliability of the in-court

identification. Appellant also sought suppression of his statement

to detectives, arguing that his waiver of rights under Miranda2

was not knowing and voluntary because he was visibly under the

influence of a controlled substance -- PCP. [Testimony was taken]

from Jesse Weller, one of the complainants, and Officer Anthony

Woltman, the officer who responded to the scene and

broadcast[ed] the descriptive (“flash”) information, who later

responded to the location where Appellant had been stopped, who

was present for the identification and who identified a photo taken

of Appellant at the time of the identification. Officer Woltman also

prepared a 75-48 (Incident Report). Detective Kevin Sloan then

-2-

J-S03006-18

testified to the circumstances of the taking of Appellant’s

statement.

2 Miranda v. Arizona, 384 U.S. 436 (1966).

Appellant then testified as to the circumstances of the stop, the

identification on the street and his statement to detectives. There

was also a stipulation that Officers Covello and Carroll prepared

an arrest memo, that they stopped Appellant based on flash

information, at the time he was stopped he had a black hat

hanging from his pocket, and he was identified by the

complainant. Appellant also introduced the Computer Assisted

Dispatch (CAD) and his color arrest photo.

***[1]

Trial

On October 27, 2015, Paul Ravenscraft and Jesse Weller were

making a truck delivery of goods to the Family Dollar Store at

5200 Germantown Avenue. The[y] arrived at about 4:30 AM,

before the store employees. Ravenscraft took off his glasses and

napped in the cab of the truck, while Weller remained in the rear

of the semi-truck scanning items and preparing the delivery.

At approximately 5:30 AM, Appellant approached the rear of

the truck and spoke briefly with Weller, who was inside, before

leaving. Appellant was wearing a distinctive green, white and

black jacket, also described as a jump suit. A short time later,

Appellant returned, demanding that Weller hand over money and

threatened to shoot Weller. During this exchange[,] Appellant

kept his hand down at his side, as though he had a gun. Weller

was unable to make out what Appellant was holding. Appellant

repeatedly threatened to shoot Weller. Eventually, Appellant tried

to climb into the truck. Weller concluded that the object was not

in fact a gun, so he grabbed a bar used for securing products for

delivery and threat[en]ed Appellant with it. Appellant withdrew,

____________________________________________

1 As mentioned supra, the trial court denied Appellant’s motions to suppress

identification and statements following the suppression hearing. See Trial

Court Opinion (TCO), 6/27/2017, at 1, 3-6. The trial court thoroughly outlined

its findings of fact and conclusions of law with respect to Appellant’s

suppression issues in its opinion, which we have omitted from the summary

above in the interest of brevity. See id. at 3-6.

-3-

J-S03006-18

then went to the front of the truck, as Weller proceeded to call 9-

1-1.

Appellant approached the cab of the truck where Ravenscraft

was sleeping. Appellant opened the door and demanded money.

As Appellant started to enter the cab, Ravenscraft fled out the

other door and ran past the rear of the truck. He also called 9-1-

1.

Police responded to the scene, took information from the

complainants, and put out flash information describing Appellant.

Appellant was stopped over a mile away. Weller was brought to

that location, where he identified Appellant as the person who had

attempted to rob him and Ravenscraft. Appellant was wearing the

distinctive jacket, which was secured by detectives, placed into

evidence at trial and identified by Weller.

Appellant was transported to the detective division where he

gave a statement admitting to being on the scene at the Family

Dollar Store and interacting with Weller and Ravenscraft. A photo

was taken of Appellant wearing the jacket in question. Appellant

also had a black hat and a bag with a black strap.

TCO at 1-3, 6-7 (internal citations omitted).

Appellant presently raises the following issues for our review, which we

have reordered for ease of disposition:

A. Did the trial court err in denying [A]ppellant’s pretrial

motion to suppress his statement as it was not given

knowingly, voluntarily, or intelligently, as [A]ppellant was

under the influence of [Phencyclidine (PCP)] at the time and

the Miranda Warnings were not properly given and

seemingly given after the statement was given?

B. Was the evidence … insufficient to sustain guilty verdicts for

robbery and [attempted] theft as there was no serious

attempt to commit any theft and nothing was taken?

C. Was the evidence insufficient to sustain the guilty verdict for

[PIC] as no item whatsoever was used to commit a crime?

Appellant’s Brief at 7 (unnecessary emphasis omitted).

-4-

J-S03006-18

First, Appellant argues that “[t]he trial court erred in denying

[A]ppellant’s pretrial motion to suppress his statement as it was not given

knowingly, voluntarily, or intelligently, as [A]ppellant was under the influence

of [PCP] at the time and the Miranda Warnings were not properly given and

seemingly given after the statement was given.” Id. at 17 (unnecessary

emphasis omitted). Without any citation to the record, he asserts that “the

detective either purposely or in error failed to Mirandize [A]ppellant before

interrogating him[,]” and he claims this failure “was compounded by

[A]ppellant’s being under the influence of PCP and marijuana.” Id. at 18, 19.

Consequently, he avers that “there was no waiver of any Miranda rights, and

even if there [was], it was not knowingly and intelligently done.” Id. at 19.

Initially, we set forth our standard of review for suppression rulings:

[W]e determine whether the court’s factual findings are supported

by the record and whether the legal conclusions drawn from them

are correct. Where, as here, it is the defendant who is appealing

the ruling of the suppression court, we consider only the evidence

of the prosecution and so much of the evidence for the defense

which remains uncontradicted when fairly read in the context of

the whole record. If, upon our review, we conclude that the record

supports the factual findings of the suppression court, we are

bound by those facts, and may reverse only if the legal conclusions

drawn therefrom are in error.

Commonwealth v. Mitchell, 902 A.2d 430, 450-51 (Pa. 2006) (citation and

original brackets omitted).

We acknowledge that, “[a]s a general rule, the prosecution may not use

statements, whether inculpatory or exculpatory, stemming from a custodial

interrogation of a defendant unless it demonstrates that he was apprised of

-5-

J-S03006-18

his right against self-incrimination and his right to counsel.” Commonwealth

v. Venture, 975 A.2d 1128, 1136 (Pa. Super. 2009) (citations omitted).

Further, “[w]hen evidence of impairment is present, it is for the suppression

court to decide whether the Commonwealth has established by a

preponderance of the evidence that the suspect nonetheless had sufficient

cognitive awareness to understand the Miranda warnings and to choose to

waive his rights.” Id. at 1138 (original brackets, citation, and footnote

omitted).

In the case sub judice, the trial court ascertained that “when [Appellant]

gave a statement, he made a knowing and voluntary waiver of his right to

remain silent and his right to an attorney and … he gave a knowing and

voluntary waiver up until the point that he decided that he wanted counsel.”

See TCO at 6 (citation to record omitted). Thus, it concluded that “the

statement was not the product of any coercion or the product of [Appellant’s]

intoxication as he contends.” Id.

Our review of the record shows that Detective Sloan testified to the

following:

[The Commonwealth]: And before taking the statement from

[Appellant], did you read him his Miranda warnings?

[Detective Sloan]: I did.

[The Commonwealth]: And did he agree to speak with you?

[Detective Sloan]: He did.

***

-6-

J-S03006-18

[The Commonwealth]: Do you remember what the -- [Appellant’s]

appearance at the time that you took the statement?

[Detective Sloan]: I do not recall.

[The Commonwealth]: Do you remember if the -- did [Appellant]

-- could you describe his condition in terms of how he was

answering questions?

[Detective Sloan]: There was no problem. It was just -- I asked

him a question, he would answer it. And then at the end[,] he

said he would rather have a lawyer and he did not want to sign

the statement.

[The Commonwealth]: Did he appear alert at the time that you

took the statement?

[Detective Sloan]: Yes.

[The Commonwealth]: Did he have any difficulty giving you his

full name, date of birth and address to one of the questions in the

statement?

[Detective Sloan]: No, he didn’t have a problem answering any of

my questions.

[The Commonwealth]: And by any of the questions -- any of those

preliminary questions, he did not have a problem answering other

basic biographical information?

[Detective Sloan]: That’s correct.

***

[The Court]: Did he seem intoxicated to you in any way?

[Detective Sloan]: He did not.

[The Court]: Did he seem mentally deficient to you in any way?

[Detective Sloan]: No.

***

[Appellant’s attorney]: You didn’t notice that when he was sitting

there, his eyes were red and he was [as] high as a kite?

[Detective Sloan]: He did not appear intoxicated to me.

-7-

J-S03006-18

[Appellant’s attorney]: You didn’t see his eyes were red? I didn’t

say intoxicated.

[Detective Sloan]: I don’t remember if his eyes were red but he

did not appear under the influence.

[Appellant’s attorney]: How long [have] you been on the job?

[Detective Sloan]: Sixteen years.

[Appellant’s attorney]: And you can tell when somebody is high

on something other than alcohol. Can we agree?

[Detective Sloan]: Yes.

[Appellant’s attorney]: And [Appellant] didn’t appear to be high,

as you say?

[Detective Sloan]: He did not.

[Appellant’s attorney]: Didn’t he tell you that he smoked PCP and

weed when you started asking him those questions?

[Detective Sloan]: No, he did not.

[Appellant’s attorney]: Isn’t that why he said, “I want to talk to

an attorney now because I’m high and I was smoking weed[]?[”]

[Detective Sloan]: I said, “Are you” -- one of the first questions I

asked him was: “Are you now under the influence of drugs or

alcohol,” and his answer was, “No.”

N.T. Suppression, 8/15/2016, at 66, 68-69, 70, 74-75.

With respect to this testimony, the trial court found Detective Sloan

credible, and found that “Appellant did not testify credibly regarding the

circumstances of the Miranda warnings and waiver.” See TCO at 14 (citation

to record omitted). Detective Sloan’s testimony establishes that Appellant

had sufficient cognitive awareness to understand the Miranda warnings, and

waived his rights before questioning. Accordingly, we deem the trial court’s

factual findings to be supported by the record, and its legal conclusions drawn

-8-

J-S03006-18

therefrom to be correct. See Mitchell, supra. As such, the trial court did

not err in denying Appellant’s pretrial motion to suppress his statement.

Second, Appellant asserts that “[t]he evidence was insufficient to

sustain guilty verdicts for robbery and [attempted] theft as there was no

serious attempt to commit any theft and nothing was taken.” Appellant’s Brief

at 13 (unnecessary emphasis omitted). We apply the following standard of

review to claims challenging the sufficiency of the evidence:

The standard we apply in reviewing the sufficiency of the evidence

is whether viewing all the evidence admitted at trial in the light

most favorable to the verdict winner, there is sufficient evidence

to enable the fact-finder to find every element of the crime beyond

a reasonable doubt. In applying the above test, we may not weigh

the evidence and substitute our judgment for the fact-finder. In

addition, we note that the facts and circumstances established by

the Commonwealth need not preclude every possibility of

innocence. Any doubts regarding a defendant’s guilt may be

resolved by the fact-finder unless the evidence is so weak and

inconclusive that as a matter of law no probability of fact may be

drawn from the combined circumstances. The Commonwealth

may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial

evidence. Moreover, in applying the above test, the entire record

must be evaluated and all evidence actually received must be

considered. Finally, the trier of fact while passing upon the

credibility of witnesses and the weight of the evidence produced,

is free to believe all, part or none of the evidence.

Commonwealth v. Scott, 146 A.3d 775, 777 (Pa. Super. 2016) (citation

omitted).

We recognize 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). “An

act shall be deemed ‘in the course of committing a theft’ if it occurs in an

-9-

J-S03006-18

attempt to commit theft or in flight after the attempt or commission.” 18

Pa.C.S. § 3701(a)(2). Moreover, a person commits attempted theft by

unlawful taking when he attempts to “unlawfully take[], or exercise[] unlawful

control over, movable property of another with intent to deprive him thereof.”

See 18 Pa.C.S. § 3921(a); 18 Pa.C.S. § 901.

Here, Appellant advances that the evidence was insufficient to sustain

his convictions for those offenses because his “threats could not reasonably

have been taken seriously” under the circumstances. Appellant’s Brief at 16.

Although he seems to concede that the evidence presented shows that he had

demanded money from Mr. Weller and Mr. Ravenscraft, and had threatened

to shoot Mr. Weller, he maintains that “[n]either [man] seemed truly troubled

or truly threatened by the actions of [A]ppellant, and at most were bothered,

perplexed, and confused by their exchange with the high [A]ppellant.” Id. at

10; see also id. at 15.

This Court has previously explained that “[w]hen determining whether

a victim has been placed in fear of serious bodily injury, this Court uses an

objective standard; therefore, [the victim’s] subjective state of mind during

the robbery is not dispositive.” Commonwealth v. Kubis, 978 A.2d 391,

398 (Pa. Super. 2009) (citation omitted). In other words, “this Court will look

to the nature of the defendant’s threats, and not the subjective state of mind

of the victim.” Id. (citation omitted).

Here, Mr. Weller gave the following testimony at trial regarding his

interaction with Appellant:

- 10 -

J-S03006-18

[The Commonwealth:] When you say “attempted robbery,” start

where you think is appropriate and just tell the jury what

happened.

[Mr. Weller]: I was scanning the product in the back of the truck

when a guy walked up to the back and stuck his head in the back

of the trailer, which is normal. It happens every now and then. I

asked him how it’s going and he just said, “Good,” and walked

away.

A couple minutes later, he came back and said “Give me all the

money,” and I repeated, “I don’t have any money; we don’t have

any money, just get out of here.” And then it escalated to, “Give

me all the money or I’m going to shoot you,” and exchanging back

and forth, “I don’t have any money; we don’t have any money,

just get out of here, just get of here.” And it escalated to, “Give

me your wallet.” I said, “I’m not giving you my wallet.”

“Give me your cell phone.”

“I’m not giving you my cell phone.”

“Give me all the money or I’m going to shoot you.” Over and over

again. Back and forth.

And then he attempted to crawl into the back of the trailer, and I

had this big, metal load bar on my left-hand side next to me and

I grabbed it and just shook it. And he said, “What are you going

to do, hit me with it?” I said, “No, just get out of here. Go. Go

away.” And I said, “My partner is up front, go bother him.” So

eventually he left. He said he was going to go up front and [was]

trying to get something from him and immediately, I called the

police.

***

[The Commonwealth:] Okay. And when he first told you that he

was going to shoot you, what did you think at that time?

[Mr. Weller]: It’s nothing you expect to hear, and it’s nerve-

racking. I don’t want to go anywhere near him. That’s why I

stayed where I was in the back of the trailer.

[The Commonwealth:] Did you, in fact, see a gun?

[Mr. Weller]: I [saw] something that could have been a weapon

but I wasn’t sure at the moment of what it was.

- 11 -

J-S03006-18

[The Commonwealth:] And that’s something that you think could

have been a weapon. Could you describe where it was on

[Appellant] and how [he] was holding that item?

[Mr. Weller]: Being that I was in the trailer, I was higher than him

and he was standing on the ground because the ramp under the

back of the truck was not out so he was about chest-level, maybe

a little bit higher to the back of the trailer. He kept his right arm

down at his side the whole time. He was holding something black

in his hand, so I assumed it was -- that’s what he was threatening

with.

N.T. Trial, 8/17/2016, at 42-43, 44-45.

Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, we deem the evidence sufficient to sustain Appellant’s

convictions for robbery and attempted theft. With respect to robbery,

Appellant demanded Mr. Weller’s money, wallet, and cell phone, while

threatening to shoot him. Even if Mr. Weller eventually realized that Appellant

did not have a gun and did not take his threats seriously, as Appellant

contends,2 Appellant’s threat to shoot him constituted a threat of immediate

serious bodily injury, and intentionally put Mr. Weller in fear of such. See 18

Pa.C.S. § 3701(a)(1)(ii); see also Kubis, supra. Further, regarding his

attempted theft conviction, Appellant’s demand for money and other items

clearly establishes an attempt to unlawfully take the property of another with

intent to deprive him thereof. See 18 Pa.C.S. § 3921(a); 18 Pa.C.S. § 901.

____________________________________________

2 We note our disagreement, though, with Appellant’s contention that Mr.

Weller did not take his threats seriously. Mr. Weller testified that the

encounter was “nerve-racking[,]” that he didn’t “want to go anywhere near

[Appellant,]” and that Appellant’s threats “raised the adrenaline.” N.T. Trial

at 44, 49.

- 12 -

J-S03006-18

Accordingly, the evidence was sufficient to sustain Appellant’s robbery and

attempted theft convictions.

Finally, Appellant advances that “[t]he evidence was insufficient to

sustain the guilty verdict for [PIC] as no item whatsoever was used to commit

a crime.” Appellant’s Brief at 16 (unnecessary emphasis omitted). He claims

he “was not in possession of any gun; was not in possession of any simulated

firearm or toy gun; was not in possession of any knife; was not in possession

of any weapon; was not in possession of any object that even looked like a

weapon.” Id. at 17. Instead, he says “[t]he only evidence was that

[A]ppellant had a black object in his hand that really did not look like a gun.”

Id. at 11.

A person commits the offense of PIC where “he possesses any

instrument of crime with intent to employ it criminally.” 18 Pa.C.S. § 907(a).

Instruments of crime include “[a]nything specially made or specially adapted

for criminal use[,]” or “[a]nything used for criminal purposes and possessed

by the actor under circumstances not manifestly appropriate for lawful uses it

may have.” 18 Pa.C.S. § 907(d).

The trial court explained why it believed the evidence was sufficient to

support Appellant’s conviction for PIC, as follows:

Here, the instrument was [A]ppellant’s hat, which he rolled up and

held at his side in an attempt to have it appear to Jesse Weller

that it was a gun. Thus, while a hat certainly has lawful purposes,

where, as here, it is used to simulate a gun in furtherance of a

robbery, the hat constitutes an instrument of a crime. In this

respect, it is no different from a toy gun. See Commonwealth

v. Brown, 23 A.3d 544, 561 (Pa. Super. 2011) (“The lawful uses

- 13 -

J-S03006-18

of a toy gun do not include utilizing it in a robbery, particularly

where it is obviously used to convey the impression that it is a

real gun[.]”). See also Commonwealth v. Brunson, 938 A.2d

1057, 1062[] (Pa. Super. 2007) (a plastic soda bottle can

constitute an instrument of a crime).

TCO at 12.

Although the Commonwealth points out that it did not assert during

closing argument or at sentencing that it was specifically a hat that Appellant

rolled up and passed off as a firearm, it similarly claims that the evidence was

sufficient to sustain Appellant’s PIC conviction because Appellant “was in

possession of a black object that he attempted to pass off as a gun in order

to threaten Mr. Weller….” Commonwealth’s Brief at 13 (citations to record

omitted). In particular, while making threats to Mr. Weller, the

Commonwealth says Appellant “held a black object down by his side, in a

manner that made Mr. Weller initially believe that [Appellant] was holding a

gun.” Id. at 12. To support its argument, the Commonwealth likewise cites

to Brown and Brunson. See id. at 13.

We deem Brown and Brunson distinguishable. In Brown, the

appellant “pulled a gun out of a brown plastic bag and pointed it at [a gas

station cashier’s] face. Throwing her a white plastic bag, [the appellant]

demanded that [the cashier] give him money and threatened to kill her if she

did not.” Brown, 23 A.3d at 547. After the cashier yelled for her manager

and the manager appeared, the appellant ran out of the store. Id. Police

later discovered that the gun that the appellant used in the robbery “was

actually a toy gun colored in with a black magic marker, with its barrel taped.”

- 14 -

J-S03006-18

Id. at 548. A jury subsequently convicted the appellant of, inter alia, robbery

and PIC. Id. at 547, 548. On appeal, the appellant argued, among other

things, that the evidence was insufficient to convict him of PIC. Id. at 559.

This Court rejected that argument, reasoning, “The lawful uses of a toy gun

do not include utilizing it in a robbery, particularly where it is obviously

used to convey the impression that it is a real gun.” Id. at 561

(emphasis added). We further noted that the cashier’s “testimony that [the

appellant] pointed the gun at her face and demanded money is sufficient to

establish that [the appellant] possessed the instrument of crime for the

purpose of employing it criminally.” Id.

Additionally, in Brunson, the following facts were adduced at trial:

On July 22, 2004, at around midnight, the [victim] was standing

near his vehicle waiting for his daughter when [the a]ppellant

approached him and asked whether the [victim] was “hacking.”2

The [victim] indicated “no,” that he was just waiting for his

daughter. [The a]ppellant indicated he wanted to be driven to a

nearby location, and the [victim] agreed to drive him to the

desired location in exchange for $5.00. While they were driving,

[the a]ppellant indicated he only had a twenty dollar bill and would

need change. The [victim], who had only a single five dollar bill,

said he would need to stop for change. In response, [the

a]ppellant suggested the [victim] give [the a]ppellant the five

dollar bill, and [the a]ppellant would then give the [victim] the

twenty dollar bill. Upon arriving at [the a]ppellant’s destination,

the [victim] told [the a]ppellant that he didn’t have to pay for the

ride and the [victim] had to get going in order to meet his

daughter. [The a]ppellant suddenly grabbed the [victim’s] neck

with one hand and demanded the [victim] give him the five dollar

bill. The [victim] noticed that [the a]ppellant was holding

something white in his left hand, and he began struggling with

[the a]ppellant. The white item, which [the a]ppellant was

holding, fell to the vehicle’s floor. [The a]ppellant began punching

the [victim] in the head, and the [victim] raised his arm to defend

- 15 -

J-S03006-18

himself. [The a]ppellant repeatedly threatened to kill the [victim]

if he did not give him the five dollar bill and threw the vehicle’s

keys out of the window. At this point, the [victim’s] “heart started

pounding like he might have a heart attack and [the appellant]

might have killed me.” The [victim] then opened the vehicle’s

door, and while he was exiting, [the a]ppellant attempted to take

the [victim’s] wallet out of his pocket. The [victim] ran across the

street, and [the a]ppellant began searching the vehicle, including

an area between the seats and the glove box. [The a]ppellant

tore off the vehicle’s rearview mirror, exited the vehicle, and threw

a plastic Pepsi Cola bottle at the [victim]. The bottle missed its

intended target, and the [victim] ran, with [the a]ppellant right

behind him. The [victim] dialed 911 on his cell phone, and the

police arrived within a minute and a half. The [victim] informed

the police that [the a]ppellant had run into a nearby building. As

a result of the attack, the [victim] suffered torn ligaments in his

right shoulder, for which surgery has been recommended.

2 “Hacking,” which is illegal, is used to describe people who

drive others in exchange for money. As the trial court noted

in its opinion, [the victim] admitted at trial that he

sometimes “hacks” to help elderly people.

Brunson, 938 A.2d at 1058-59 (internal citations and original brackets

omitted).

The appellant in Brunson was convicted of robbery, attempted theft,

PIC, making terroristic threats, simple assault, and recklessly endangering

another person. Id. at 1058. On appeal, he contested, inter alia, the

sufficiency of the evidence underlying his PIC conviction. Id. This Court

concluded that the evidence was sufficient, explaining:

[The a]ppellant contends that the soda bottle, which he threw at

[the victim], cannot be an “instrument of crime” since it was made

of harmless plastic.6 Essentially, [the a]ppellant argues that,

before an item can qualify as an “instrument of crime” under

Section 907, the Commonwealth must demonstrate that the item

could cause harm.7 Our plain reading of the statute reveals no

such requirement and, since [the a]ppellant has cited no case law

- 16 -

J-S03006-18

supporting his interpretation of the statute, we find no relief is

due.

6There was no evidence presented as to whether the bottle

contained any liquid or was empty.

7 We find it unnecessary to address [the a]ppellant’s

contention the plastic soda bottle was incapable of causing

harm.

Id. at 1062.

In the case at bar, Mr. Weller gave the following testimony:

[The Commonwealth:] And during that time, [Appellant] said --

you stated that [Appellant] threatened to shoot you. Did

[Appellant] make that threat additional times or did he just

threaten to shoot you one time?

[Mr. Weller]: Multiple times. I’d say, maybe a dozen times.

[The Commonwealth:] During those times that he said it multiple

times, did he continue to hold his right hand with the object down

by his side?

[Mr. Weller]: Yes.

[The Commonwealth:] What made you think -- based on what you

described you observed, what made you think that that was the

weapon or that [it] could be the weapon?

[Mr. Weller]: Being that it was black and he wasn’t showing it.

[The Commonwealth:] Now, did there ever come a time during

this entire interaction with [Appellant] that you get closer to

[Appellant]?

[Mr. Weller]: Yes. I was curious to see what actually was in his

hand. I kept edging closer, little by little.

[The Commonwealth:] And what did you learn, as far as your

observations of that particular object in his hand?

[Mr. Weller]: I’m familiar with guns and from what I [saw], it

didn’t look to be a gun but I still was not sure.

***

- 17 -

J-S03006-18

[Appellant’s attorney]: You said -- and correct me also if I got it

wrong, during your exchange with [the Commonwealth] on direct

[examination], you said you were slowly moving towards the front

of the truck because you were curious to see what was in

[Appellant’s] hand. Did I get that right? Just a summary,

paraphrasing … what you said.

[Mr. Weller]: Correct.

[Appellant’s attorney]: And even though when you got close, you

still couldn’t, as you said now, tell what it was. You knew it wasn’t

a gun, can we agree, because you know guns? You said that,

right?

[Mr. Weller]: Yes, I do know guns. I still wasn’t sure but I was

more comfortable with seeing what was in his hands. Guns come

in all shapes and sizes. I still wasn’t okay with walking up to him

and getting any closer to him.

[Appellant’s attorney]: Fair enough. That’s fair. But you knew it

wasn’t a gun or a weapon, you knew that at that point?

[Mr. Weller]: No, I did not. I did not know it was not a weapon.

[Appellant’s attorney]: It didn’t look like a gun, did it?

[Mr. Weller]: No.

[Appellant’s attorney]: And you knew that, right?

[Mr. Weller]: There’s always that chance.

[Appellant’s attorney]: That’s not my question, sir. Please answer

my question. You knew it didn’t look like a gun, right? That’s all

I’m asking you.

[Mr. Weller]: Yes.

[Appellant’s attorney]: Why did you tell 9-1-1 he had a gun

then?

[Mr. Weller]: Because he was telling me he was going to

shoot me.

***

[Appellant’s attorney]: When you told 9-1-1 he had a gun, it

was based on what he said to you but not what you saw, is

that what you’re telling us?

- 18 -

J-S03006-18

[Mr. Weller]: Yes.

N.T. Trial at 45-46, 94-95, 95 (emphasis added).

Unlike the appellant pointing the toy gun at the cashier in Brown, Mr.

Weller’s testimony at trial did not establish that Appellant did anything to

actively simulate or give the impression that he had gun. Instead, Mr. Weller

supposed that the object in Appellant’s hand was a weapon because of his

threats to shoot. Mr. Weller explained that Appellant “kept his right arm down

at his side the whole time. He was holding something black in his hand, so I

assumed it was -- that’s what he was threatening with.” Id. at 45 (emphasis

added). Moreover, in contrast to the appellant’s throwing the bottle at the

victim in Brunson, Appellant did not take any action with the object — he

merely held it in his hand by his side. Furthermore, the record does not

establish that Appellant was purposely hiding or obscuring the object from Mr.

Weller’s view. Instead, it appears that Mr. Weller had trouble seeing the object

in Appellant’s hand because Appellant’s position happened to be “chest-level,

maybe a little bit higher to the back of the trailer[,]” and Mr. Weller was at

least 10 feet back in the truck’s trailer when he initially spotted an item in

Appellant’s hand. Id. Consequently, Mr. Weller “was curious to see what

actually was in his hand” so he “kept edging closer, little by little.” Id. at 46.

In addition, unlike the issue in Brunson, Appellant’s argument is not limited

to whether the Commonwealth demonstrated that the object — whether a hat

or something else — could cause harm. Rather, the crux of Appellant’s

argument is that “no item whatsoever was used to commit a crime.”

- 19 -

J-S03006-18

Appellant’s Brief at 11 (unnecessary emphasis omitted). Based on Mr. Weller’s

testimony, we agree that Appellant did not use any object for a criminal

purpose and, therefore, we reverse Appellant’s conviction of PIC.

Judgment of sentence for PIC reversed. Judgment of sentence affirmed

in all other respects. Jurisdiction relinquished.

Judge Panella joins this memorandum.

President Judge Emeritus Stevens files a concurring and dissenting

memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/1/18

- 20 -