holding that robbery and retail theft are “not of the same class or category of offenses to be considered cognate” because, while the proof of theft was common to both crimes, “[r]obbery bears only a secondary relationship to theft but is principally directed at protection of the person”
How later courts described this case
- holding that robbery and retail theft are “not of the same class or category of offenses to be considered cognate” because, while the proof of theft was common to both crimes, “[r]obbery bears only a secondary relationship to theft but is principally directed at protection of the person”
- acknowledging that while REAP and robbery are intended to protect part of the same harm, “i.e., protection against infliction of bodily injury or fear thereof[,] the robbery statute contains the additional goal of protection of property which REAP does not
- holding REAP is not a cognate offense to robbery because it “could be accomplished without committing a robbery, and a robbery could be accomplished without committing [an offense] involving danger to the person.”
- stating that “the thrust of the REAP statute is to provide criminal sanctions for the reckless creation of a risk of death or serious bodily injury.”
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Commonwealth v. Dantzler, 2016 Pa. Super. 59 (2016)
949 A.2d 899, 905 (Pa. Super. 2008), abrogated on other grounds, Commonwealth v. Dantzler, 135 A.3d 1109
The opinion
DISSENTING OPINION BY
STEVENS, J.;
¶ 1 After a careful review, I conclude that robbery is not a separate non-cognate offense in the case sub judice, and therefore, I conclude the Commonwealth properly added the charge of robbery to the criminal information. Therefore, I would reverse the order granting Appellee’s motion to quash, and as such, I respectfully dissent.
¶ 2 As this Court stated in Commonwealth v. Jacobs, 433 Pa.Super. 411 , 640 A.2d 1326, 1327-28 (1994):
There is no constitutional right, federal or state, to a preliminary hearing. Rather, a defendant’s right to a preliminary hearing is conferred by the Rules of Criminal Procedure. The purpose of a preliminary hearing has been described by the Supreme Court in the following manner:
The preliminary hearing is not a trial. The principal function of a preliminary hearing is to protect an individual’s right against an unlawful arrest and detention. At this hearing, the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. It is not necessary for the Commonwealth to establish at this stage the accused’s guilt beyond a reasonable doubt. In order *909 to meet its burden at the preliminary hearing, the Commonwealth is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense.
A finding by a committing magistrate that the Commonwealth has failed to establish a prima facie case is not a final determination, such as an acquittal, and only entitles the accused to his liberty, for the present, leaving him subject to rearrest. In this regard, the Supreme Court has acknowledged that re-arrest is the appropriate procedure and the Commonwealth’s only recourse where charges are dismissed and the defendant discharged upon a finding of a lack of a prima facie case since such a determination is interlocutory in nature and, therefore, not appealable. Pursuant thereto, [t]he prosecution may bring the matter again before any other officer empowered to hold a preliminary hearing.
(citations, quotations, and quotation marks omitted).
¶ 3 However, as acknowledged by the Majority:
[Re-arrest] is necessary only when all charges have been dismissed and no pri-ma facie case established. It does not encompass situations ... in which a pri-ma facie case has been established and a cognate crime is substituted in the indictment.
Similarly, if a prima facie case has been found on one offense, an indictment may not be had for a separate, non-cognate offense.
Commonwealth v. Epps, 260 Pa.Super. 57 , 393 A.2d 1010, 1012 (1978) (citation omitted).
¶ 4 In the case sub judice, as explained by the Majority, while Judge Brown, acting in the capacity as the issuing authority, dismissed the robbery charge, he concluded the Commonwealth had established a prima facie case for the offenses of aggravated assault, retail theft, PIC, REAP, and simple assault. Subsequently, the Commonwealth did not seek to re-arrest Appellee and take him before the issuing authority for a determination of a prima facie case; but rather, the Commonwealth sought to proceed pursuant to Pa.R.Crim.P. 560 by adding the robbery charge to the criminal information on the ground that it was a cognate offense to the other offenses, which were held over for trial. Contrary to the Majority, I conclude this was proper.
¶ 5 In determining whether offenses are cognate, there is “no requirement that the greater offense encompass all of the elements of the lesser offense. Rather, it is sufficient that the two offenses have certain elements in common.” Commonwealth v. Sims, 591 Pa. 506, 518 , 919 A.2d 931, 938 (2007). “It is established law that, when a prosecuting officer is satisfied from his investigations that a higher grade of offense, cognate to the one returned by the committing magistrate, is properly chargeable against a defendant, he may draw the bill accordingly.” Commonwealth v. Ashe, 365 Pa. 419, 421 , 76 A.2d 210, 211 (1950) (quotation, quotation marks, and emphasis omitted). As this Court has stated, the reason we require the added offense to be cognate is because “[a] defendant cannot be required to answer a charge different from or unrelated to the one for which he was arrested and held to bail.” Commonwealth v. Jacobs, 433 Pa.Super. 411 , 640 A.2d 1326, 1329 (1994) (quotation and citations omitted).
¶ 6 Here, I conclude that the offense of robbery is cognate to the offense of retail *910 theft. By its very definition, the crime of robbery provides that “[a] person is guilty of robbery if, in the course of committing a theft, he: ... (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury_”18 Pa.C.S.A. § 3701(a)(1). The phrase “course of committing a theft” is deemed to have occurred where the act “occurs in an attempt to commit theft or in flight after the attempt or commission.” 18 Pa.C.S.A. § 3701(a)(2). 5 Here, the acts supporting a charge of robbery occurred during Appel-lee’s flight after the commission of the retail theft. That is, after Appellee committed the acts which prompted the Commonwealth to charge him with retail theft, and Appellee was leaving the store with the merchandise, Appellee elbowed a loss prevention agent and pointed a gun at the assistant store manager’s face. On this basis, I would find retail theft and robbery are cognate offenses.
¶ 7 I specifically disagree with the Majority’s analysis, which concludes retail theft and robbery are separate non-cognate offenses since robbery includes the additional element of seeking to protect the victim from an assault. As indicated supra, there is no requirement that one offense encompass all of the elements of the other offense in order to be cognate. Sims, supra. Therefore, I respectfully dissent. 6
. I agree with the Majority’s conclusion that robbery requires proof of a theft and it appears that proof of any theft offense defined in Chapter 39 of the Crimes Code will suffice.
. In light of the aforementioned, I find it unnecessary to determine whether robbery is cognate to aggravated assault, REAP, PIC, or simple assault.