J-A20025-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANDY M. PERALTA-CRUZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1187 MDA 2022

Appeal from the Judgment of Sentence Entered September 21, 2020

In the Court of Common Pleas of Lancaster County

Criminal Division at CP-36-CR-0002116-2019

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

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 19, 2023

Andy M. Peralta-Cruz (Appellant) appeals nunc pro tunc from the 

judgment of sentence imposed after a jury convicted him of one count each 

of robbery, defiant trespass, and theft by unlawful taking; and two counts of 

simple assault.

1

 We affirm.

The trial court recited the underlying facts:

On December 12, 2018, [Appellant] and his friend, Starling 

Delacruz-Ramirez [Delacruz-Ramirez], entered the Friendly 

Greek, a restaurant and carry-out beer store, located in the City 

of Lancaster, Lancaster County, Pennsylvania. (Notes of Trial 

Testimony, December 11, 2019 at 68).... Joseph Armstrong 

[Armstrong] and James Toth [Toth] were working at the 

restaurant at that time. (Id.) Armstrong worked at the counter 

and Toth worked in the kitchen. (Id. at 85.) When [Appellant]

and Delacruz-Ramirez asked to purchase two frozen alcoholic 

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3701(a)(1)(iv), 3503(b)(1)(i), 3921(a), and 2701(a)(1).
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beverages, Armstrong questioned both their ages and asked for 

identification. (Id. at 66-67.) [Appellant] and Delacruz-Ramirez, 

being underage, declined to show their identification, opting 

instead to leave the restaurant. (Id.) They returned to 

[Appellant’s] vehicle parked just outside in view of the 

restaurant’s video monitoring system.[FN] (Id.)

[FN] Virtually the entire episode outlined herein was 

recorded on the restaurant’s video monitoring system 

and shown to the jury.

Shortly thereafter, [Appellant] and Delacruz-Ramirez 

encountered a woman making her way toward the entrance of the 

restaurant. (Id. at 73.) They stopped her, asked if she would 

purchase the drinks, and gave her the money for the purchase.

(Id.) The woman agreed and then went into the restaurant, made 

her own purchases, along with the two drinks, and exited the 

restaurant. (Id. at 70-71.) Armstrong watched the video 

monitoring system and saw the woman go outside and deliver the 

drinks to [Appellant] and Delacruz-Ramirez. (Id. at 72.)

At that point, Armstrong exited the restaurant, approached 

the vehicle, and confronted [Appellant] and Delacruz-Ramirez 

about the alcohol. (Id. at 76.) When [Appellant] refused to return 

the drinks, Armstrong reached into the car and grabbed the drink 

from [Appellant]. (Id. at 79-80.) When he did so, the cup broke, 

and the drink spilled over the lap of [Appellant] and the interior of 

his car. (Id.) Then [Appellant] threw the other drink at 

Armstrong who then returned to the restaurant. (Id.) Apparently 

angered by the encounter, [Appellant] chased Armstrong and 

punched him from behind. (Id. at 81.) Armstrong threatened to 

call the police, at which point [Appellant] punched Armstrong a 

second time. (Id. at 82.) Armstrong then pushed [Appellant] out 

the door and went to the counter of the restaurant to grab the 

phone. (Id. at 83.)

[Appellant] and Delacruz-Ramirez both followed Armstrong, 

and, flanking each side of the counter, demanding a refund for

their beverages. (Id.) Armstrong refused and told them again to 

leave. (Id.) Instead of leaving, [Appellant] grabbed [money]

from the tip jar sitting next to the register. (Id. at 84.) He also 

began throwing objects and attempted to punch Armstrong from 

across the counter. (Id.) At one point, [Appellant] reached for a 

stapler sitting near the register, but Toth came up from the 
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kitchen and grabbed it before [Appellant] could. (Id.) [Appellant] 

was the sole aggressor, although Delacruz-Ramirez was “egging 

him on.” (Id. 87, 95.)

After Toth came to the counter, [Appellant] and DelacruzRamirez left the store and returned to the parking lot. (Id. at 95-

96.) Armstrong and Toth followed them as far as the doorway of 

the restaurant. (Id.) After an exchange of words, [Appellant]

and Delacruz-Ramirez appeared to head toward their car, so 

Armstrong and Toth turned to go back inside the restaurant. (Id.) 

[Appellant] then, suddenly and without warning, ran up behind 

Toth and punched him on the side of the head. (Id. at 96-97). 

Toth was knocked unconscious and fell to the ground. (Id.) 

[Appellant] and Delacruz-Ramirez went back to [Appellant’s] car 

and immediately drove away. (Id.)

Trial Court Opinion, 7/21/20, at 1-3 (some citations and punctuation modified;

one footnote in original, one footnote omitted).

The Commonwealth charged Appellant with the aforementioned crimes

and he proceeded to a jury trial. On December 16, 2019, the jury returned 

guilty verdicts. On September 21, 2020, the trial court sentenced Appellant

to an aggregate 6 – 23 months of incarceration, followed by 3 years of 

probation. After several delays caused by the COVID-19 pandemic and 

breakdowns in the judicial process, Appellant appealed nunc pro tunc.

2

Appellant raises a single issue:

Was the evidence sufficient to sustain [Appellant’s] conviction for 

robbery where there was a break in the chain of events inasmuch 

as that the assault did not happen in the course of a theft or during 

flight therefrom?

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2 Appellant has complied with Pa.R.A.P. 1925. On October 19, 2022, the trial 

court issued a memorandum adopting its July 21, 2020 opinion.
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Appellant’s Brief at 2.

Appellant challenges the sufficiency of the evidence. Id. at 3-5. When 

reviewing a sufficiency challenge, we determine “whether the evidence at trial, 

and all reasonable inferences derived therefrom, when viewed in the light 

most favorable to the Commonwealth as verdict winner, are sufficient to 

establish all elements of the offense beyond a reasonable doubt.” 

Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005). A conviction “may 

be sustained wholly on circumstantial evidence, and the trier of fact—while 

passing on the credibility of the witnesses and the weight of the evidence—is 

free to believe all, part, or none of the evidence.” Commonwealth v. Miller, 

172 A.3d 632, 640 (Pa. Super. 2017). In conducting review, “the appellate 

court may not weigh the evidence and substitute its judgment for the factfinder.” Id.

A person commits robbery if, “in the course of committing a theft, he[] 

inflicts bodily injury upon another or threatens another with or intentionally 

puts him in fear of immediate bodily injury.” 18 Pa.C.S.A. § 3701(a)(1)(iv). 

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

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

Pa.C.S.A. § 3701(a)(2). This Court has observed that while there is 

no rule of thumb ... to delimit the time and space of flight, ... the 

concept of fresh pursuit [is] be helpful in suggesting realistic 

boundaries between the occasion of the theft and a later distinct 

occasion when the thief is apprehended.
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Commonwealth v. Maldonado, 494 A.2d 402, 408 (Pa. Super. 1985)

(citations, brackets and quotation marks omitted). For bodily harm or the 

threat of bodily harm to be deemed part of the theft, there must be no “break 

in the chain of events between the theft and bodily injury or threat thereof.” 

Id. (quotation marks omitted).

Appellant argues

the theft occurred well before [Appellant] inflicted bodily injury on 

the victim. Thus, the question for sufficiency purposes is whether 

[Appellant] inflicted bodily injury in flight from the theft. He did 

not because there was no flight from the theft.

There must have been some nexus between the assault 

[Appellant] perpetrated and his decision to leave as a result of the 

theft he committed. Here, there was no flight. To the contrary, 

in his belligerent state, [Appellant] was refusing to leave the 

property and was throwing things around the store and screaming 

and hollering at the employees. When he got outside, the 

employees were not in pursuit of him for the purpose of 

apprehending him, but rather were trying to get him to leave.

Appellant’s Brief at 4 (emphasis in original).

We cannot agree. Appellant views the evidence in his favor, rather than 

the favor of the Commonwealth as verdict winner. See May, 887 A.2d at 

753; Appellant’s Brief at 4-5. Appellant also disregards that his robbery 

charge was based on Appellant assaulting Armstrong and Toth, not just Toth. 

See id.; see also Information, 4/26/19, at 1. As the trial court explained:

The evidence presented showed [Appellant] committed theft by 

taking cash from the tip jar. Before and after taking the tip 

money, [Appellant] punched Armstrong several times, attempted 

to punch him several more times, and threw a bar code scanner 

across the counter at him. After the theft of the tip money 

occurred, [Appellant], while in the process of fleeing the scene, 
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ran back and punched Toth from behind, causing him to lose 

consciousness and suffer serious injuries. This was more than 

ample evidence to prove the elements of robbery, and the jury 

properly found that the Commonwealth carried their burden on 

this charge.

Trial Court Opinion, 7/21/20, at 5.

At trial, the parties stipulated that video evidence showed “a true and 

accurate representation of the incident that took place December 12, 2018, 

approximately between 5:46 p.m. and 5:55 p.m.” N.T., 12/11/19, at 68. 

Armstrong testified that as Appellant was “grabbing money” from the tip jar, 

Appellant threw a scanner and threw punches at Armstrong. Id. at 84, 94. 

When Armstrong indicated he was calling police, Appellant punched both 

Armstrong and Toth. Id. at 89. The assaults were documented as occurring 

between 5:51:59 and 5:52:52 p.m. Id. at 90-92. Armstrong testified that 

as Appellant was leaving the restaurant, he punched Toth again. Id. at 94. 

When Armstrong and Toth followed the men outside the restaurant, Appellant

turned around and punched Toth. Id. at 96. The punch caused Toth to lose 

consciousness, and was documented at 5:53:04 p.m. Id. at 98.

This case is comparable to Maldonado, where the defendant stole a 

box containing cash and other items from the victim. Maldonado, 494 A.2d 

at 404–06. When the victim and a friend confronted the defendant, the 

defendant discarded the box and fled. Id. The victim eventually caught up 

to the defendant, a scuffle ensued, and the defendant stabbed the victim to 

death. Id. The defendant argued he did not commit robbery because the 
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stabbing did not occur during the theft, as provided in Section 3701(a)(2). In 

rejecting the defendant’s argument, this Court stated that Section 3701(a)(2) 

includes behavior, including flight, which occurs “after the theft might be said 

to be accomplished.” Id. at 408. We held that the facts showed no break in 

the chain of events to separate the defendant discarding the stolen goods from 

his stabbing of the victim. Id. at 408–09. We observed that the victim was 

killed, “[w]ithin seconds, or at most minutes” of the theft. Id. at 409.

Here, the evidence showed that in less than five minutes, Appellant stole 

tip money, threw objects, and punched Armstrong and Toth. There was no 

break in the chain of events. Therefore, the evidence was sufficient to sustain 

Appellant’s robbery conviction. Maldonado, 494 A.2d at 408-09. Cf.

Commonwealth v. Barkley, 484 A.2d 189, 190-92 (Pa. Super. 1984), 

overruled on unrelated grounds by Commonwealth v. Smith, 544 A.2d 

943 (Pa. 1988) (concluding there was a “break in the chain of events” between 

a theft and a murder that occurred more than a day and ten miles apart from 

the theft).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/19/2023