stating that “If the victim in this case had been aware of this force, a robbery conviction might have stood - 11 - J-S02002-16 based upon the possible distinction between the force used to roll the victim over, and the force used to remove the wallet.”
How later courts described this case
- stating that “If the victim in this case had been aware of this force, a robbery conviction might have stood - 11 - J-S02002-16 based upon the possible distinction between the force used to roll the victim over, and the force used to remove the wallet.”
- stating that “[i]f the victim in this case had been aware of this force, a robbery conviction might have stood based upon the possible distinction between the force used to roll the victim over, and the force used to remove the wallet.”
- defendant could not be convicted of robbery when victim was unconscious and unaware of use of force
- where the sentence vacated may affect the sentence imposed by the court, we must remand
Written by the judges who cited it.
The opinion
CAVANAUGH, Judge,
dissenting:
After reviewing the record and applicable authority in this case, it is my conclusion that the appellant was properly convicted of the crime of robbery. For this reason, I dissent from that portion of the majority opinion which vacates appellant’s robbery conviction and remands for resentencing.
My review of the legal authority in this case, particularly the elements of robbery set out in 18 Pa.C.S.A. § 3701(a)(l)(v), convinces me that the criminal act committed by this appellant was robbery. The act of rolling this unconscious victim onto his side and removing the victim’s wallet from his pants pocket constitutes a physical taking of property from the person of another by use of “force however slight,” and therefore this appellant was properly charged with robbery rather than theft. My reading of the cases is in accord with this interpretation, particularly the statements of the Supreme Court in Commonwealth v. Brown, “It is clear to us that any amount of force applied to a person while committing a theft brings that act within the scope of robbery under § 3701(l)(a)(v) [sic]---- The degree of actual force is immaterial, so long as it is sufficient to separate the victim from his property in, on or about his body.” 506 Pa. 169, 176 , 484 A.2d 738, 741 (1984).
The robbery statute does not require among its elements that the victim be aware of the taking or that he part with conscious control of his property. Since the majority opinion concludes otherwise, I dissent from that portion of the opinion.