J-S71011-16

* Former Justice specially assigned to the Superior Court.

2016 PA Super 267

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ATO LLOYD,

Appellant No. 3500 EDA 2015

Appeal from the Judgment of Sentence November 4, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002915-2015

CP-51-CR-0002916-2015

BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

OPINION BY BOWES, J.: FILED NOVEMBER 29, 2016

Ato Lloyd appeals from the judgment of sentence of eleven to twentythree months incarceration plus two years probation imposed following his 

convictions for robbery and resisting arrest. We affirm. 

The Commonwealth adduced the following facts at trial. In the early 

morning hours of December 2, 2014, Appellant approached a valet-parking 

booth situated in front of a parking garage attended by Ahmed Indris. 

Appellant feigned a need for aid from Mr. Indris and entreated him to unlock 

the booth door. Mr. Indris directed Appellant to a nearby fire station, but 

Appellant persisted. Mr. Indris eventually succumbed to Appellant’s pleas 

and opened the door to the booth. Appellant then forced his way inside the 

booth, knocking Mr. Indris to the side with his body. While inside the booth, 
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Appellant obtained a plastic garbage bag and filled it with keys from vehicles 

parked in the garage. Mr. Indris, fearing for his safety, retreated to the fire 

department where a fireman contacted police on his behalf. Shortly 

thereafter, police officers apprehended Appellant. After a brief scuffle, 

during which two officers were injured, police detained Appellant. 

Based on the foregoing, Appellant was charged with theft by unlawful 

taking, receiving stolen property, and robbery at action number 2915-2015. 

At action number 2916-2015, Appellant was charged with simple assault, 

recklessly endangering another person, and resisting arrest. Following a 

bench trial, the court found Appellant guilty of robbery graded as a thirddegree felony and of resisting arrest. He was acquitted of all other charges. 

The trial court imposed a sentence of eleven to twenty-three months 

incarceration for robbery, followed by two years probation for resisting 

arrest. Appellant filed a timely appeal and complied with the trial court’s 

directive to file a Rule 1925(b) statement of errors complained of on appeal. 

The court then authored its Rule 1925(a) opinion. This matter is now ready 

for our consideration. 

Appellant raises a single issue for our review: “Was not the evidence 

insufficient to support a conviction for robbery as a felony of the third degree 

where there was no evidence of a taking from the person of the complainant 

or that the requisite force was employed?” Appellant’s brief at 3. 
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In reviewing claims challenging the sufficiency of the evidence, our 

standard of review is well-settled: 

[W]e examine whether the evidence admitted at trial, and all 

reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, support the 

jury’s finding of all the elements of the offense beyond a 

reasonable doubt. The Commonwealth may sustain its burden 

by means of wholly circumstantial evidence. 

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). 

Appellant asserts there was insufficient evidence to convict him of 

robbery as defined by 18 Pa.C.S. § 3701. In pertinent part, 18 Pa.C.S. § 

3701 reads: 

(a) Offense defined. –

(1) A person is guilty of robbery if, in the course of 

committing a theft, he:

(i) inflicts serious bodily injury upon another; 

(ii) threatens another with or intentionally puts him in 

fear of immediate serious bodily injury;

(iii) commits or threatens immediately to commit any 

felony of the first or second degree; 

(iv) inflicts bodily injury upon another or threatens 

another with or intentionally puts him in fear of 

immediate bodily injury; 

(v) physically takes or removes property from the 

person of another by force however slight; or

(vi) takes or removes the money of a financial 

institution without the permission of the financial 

institution by making a demand of an employee of 

the financial institution orally or in writing with 
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the intent to deprive the financial institution 

thereof. 

(2) 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. 

. . . 

(b) Grading. –

(1) Except as provided under paragraph (2), robbery 

under subsection (a)(1)(iv) and (vi) is a felony of the 

second degree; robbery under subsection (a)(1)(v) is a 

felony of the third degree; otherwise it is a felony of the 

first degree. 

18 Pa.C.S. § 3701. 

Appellant contends that the Commonwealth failed to prove beyond a 

reasonable doubt that he “removed property from the person of another by 

force however slight.” Id. at (a)(1)(v). He notes that he did not take the 

keys from Mr. Indris’s immediate person, but from the wall of the valet 

booth. Appellant observes that no struggle between himself and Mr. Indris 

occurred while he was removing the keys. Therefore, Appellant continues, 

the Commonwealth did not prove that he utilized force in obtaining the keys. 

In support of his position, Appellant relies on Commonwealth v. 

Moore, 494 A.2d 447 (Pa.Super. 1985). In Moore, the defendant entered a 

supermarket, retrieved a steak from the meat counter, and placed it under 

his jacket. As Moore attempted to leave, a plainclothes store security officer 

who had witnessed Moore conceal the steak identified himself to the 
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defendant. Moore was apprehended while attempting to flee. The 

Commonwealth charged Moore with, inter alia, third-degree felony robbery, 

and subsequently, he was found guilty of that crime. 

On appeal, Moore argued, in part, that the evidence was insufficient to 

sustain his conviction for robbery graded as a third-degree felony since § 

3701(a)(1)(iv) requires that the theft of property must be from the person 

of another. This Court agreed with the defendant. We found that a contrary 

perspective “would lead to the absurd result that a robbery would result 

every time a retail theft is observed by a store security guard or employee.” 

Id. at 450. We reasoned that such an occurrence was not in keeping with 

robbery as contemplated under § 3701, stating “[r]etail theft cannot become 

robbery merely because someone to whom property is entrusted observes a 

theft of that property.” Id. 

Nevertheless, even in determining that a robbery pursuant to § 3701 

had not occurred under the facts presented in Moore, supra, we found that 

case law pertaining to common law robbery was, in fact, applicable to our 

current statute. See Commonwealth v. Brown, 484 A.2d 738 (Pa. 1984) 

(finding that § 3701 reinstated the two common law standards of robbery 

under one crime). We observed that a robbery may be committed by a 

taking from the presence of another as well as from the person’s body, 

declaring “common sense dictates that a person need not be in actual 
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physical possession of property to have it taken from his person[.]” Moore,

supra, at 450.1 

When viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, we find it sufficient to sustain the trial 

court’s finding that Appellant took the keys from Mr. Indris’s person. Mr. 

Indris was entrusted with protecting the keys at issue. In order to gain 

access to those keys, Appellant deceived Mr. Indris into unlocking and 

opening the valet booth, and physically pushed past him. Despite fearing for 

his safety, Mr. Indris initially remained in the booth and attempted to 

dissuade Appellant from taking the keys. Unlike the security guard in 

Moore, Mr. Indris was not a mere observer of the crime in question. 

Rather, Mr. Indris had exercised dominion, control, and possession over the 

keys when Appellant took them in his presence. Consistent with our 

standard of the law in Moore, these facts were sufficient to establish that 

Appellant took property from Mr. Indris’s person. 

Appellant’s argument that he did not rely on force in taking the keys 

since he did not struggle with Mr. Indris, nor did Mr. Indris retaliate, is also 

misguided. It is well-settled that “[a]ny amount of force applied to a person 

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1 Similarly, in Commonwealth v. Shamberger, 788 A.2d 408, 418 

(Pa.Super. 2001), we found that property taken in a victim’s presence, and 

under his immediate control, constituted theft from “the person” for 

purposes of grading under the theft statute. See 18 Pa.C.S. § 3903. 
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while committing a theft brings that act within the scope of the robbery 

statute.” Commonwealth v. Bedell, 954 A.2d 1209, 1213 (Pa.Super. 

2008) (citation omitted). In addition, “the degree of force is immaterial, so 

long as it is sufficient to separate the victim from his property in, on or 

about his body.” Id. (citation omitted). 

When viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, we find it supports a finding that 

Appellant took the keys with force. Appellant gained entry to the valetbooth by using his body to physically remove Mr. Indris from the entrance. 

In so doing, Appellant forcefully separated Mr. Indris from the keys under his 

protection. Bedell, supra. Thus, Appellant is not entitled to relief. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2016
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