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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. 

LEVERETT EDWARD JOHNSON 

Appellant : No. 175 WDA 2018 

Appeal from the Judgment of Sentence January 20, 2016 

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0013866-2014, 

CP-02-CR-0013867-2014, CP-02-CR-0014229-2014, 

CP-02-CR-0014230-2014, CP-02-CR-0014231-2014, 

CP-02-CR-0014233-2014, CP-02-CR-0014234-2014, 

CP-02-CR-0015392-2014, CP-02-CR-0015534-2014, 

CP-02-CR-0016430-2014, CP-02-CR-0016687-2014 

BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J. 

MEMORANDUM BY SHOGAN, J.: FILED JUNE 03, 2019 

Appellant, Leverett Edward Johnson, appeals nunc pro tunc from the 

judgment of sentence imposed on January 20, 2016 in the Allegheny County 

Court of Common Pleas. This case involves a procedural morass related to 

the sheer number of docket numbers and the attendant scrivener error in 

record keeping and by Appellant. We affirm in part and vacate in part. 

The trial court summarized the procedural history as follows: 

On' October 21, 2015, Mr. Leverett Johnson [("Appellant")], 

plead guilty at criminal complaint numbers 2014-13867; 14233; 

and 14251, to three (3) counts of robbery -threatened serious 
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bodily injury under 18 Pa.C.S.A. § 3701([(a)(1)](ii);[1] one (1) 

count of theft by unlawful taking under 18 Pa.C.S.A. § 3921([a]); 

one (1) count of aggravated assault under 18 Pa.C.S.A. 

§ 2702([a)(1)]; and one (1) count of criminal mischief under 18 

Pa.C.S.A. § 3304([a])3. 

1 For the purposes of clarity, it should be noted that 

[Appellant] was charged at eighteen different criminal 

complaint numbers[, o]nly eleven of which are 

contained in this appeal.[2] However, as this was a 

crime "spree" it is not possible to leave the additional 

cases unaddressed for purposes of a complete 

recounting of events. 

On the same date this [c]ourt began a stipulated non -jury 

trial regarding the remaining cases. At criminal complaint number 

2014-13866, this [c]ourt found [Appellant] guilty of one (1) count 

of robbery -threatened infliction of serious bodily injury under 18 

Pa.C.S.A. § 3701([a)(1)](ii). At criminal complaint number 2014- 

14227, this [c]ourt found [Appellant] guilty of one (1) count of 

robbery -threatened serious bodily injury under 18 Pa.C.S.A. 

§ 3701([a)(1)](ii). At criminal complaint number 2014-14228, 

this [c]ourt found [Appellant] guilty of one (1) count of robbery - threatened serious bodily injury under 18 Pa.C.S.A. 

§ 3701([a)(1)](ii). At criminal complaint number 2014-14229, 

1 We note that subsections (i) and (ii) are consistently mischaracterized 

throughout documents in the cases as (I) and (II). The charging documents, 

the trial court, and Appellant also refer to subsection (a) of the charged 

statutes as subsection (A). These scrivener errors add to the confusion in the 

cases but do not affect the resolution of the issues. 

2 As noted by the trial court, Appellant's notice of appeal lists eleven docket 

numbers including, inter alia, Allegheny County Docket Numbers 2014-13867 

and 2014-14233. However, Appellant fails to make any argument in his brief 

related to these two cases to which he pled guilty. Because Appellant has 

abandoned any argument related to these docket numbers, any claim related 

to them is waived. See Commonwealth v. Woodard, 129 A.3d 480, 509 

(Pa. 2015) (holding that "where an appellate brief fails to ... develop an issue 

in any other meaningful fashion capable of review, that claim is waived. It is 

not the obligation of an appellate court to formulate [an] appellant's 

arguments for him.") (citing Wirth v. Commonwealth, 95 A.3d 822, 837 

(Pa. 2014)). 

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this [c]ourt found [Appellant] guilty of two (2) counts of robbery - threatened infliction of serious bodily injury under 18 Pa.C.S.A. 

§ 3701([a)(1)](ii). The proceedings were then continued and 

resumed on November 3, 2015. 

On November 3, 2015, at criminal complaint number 2014- 

14230, this [c]ourt found [Appellant] guilty of one (1) count of 

robbery -threatened infliction of serious bodily injury under 18 

Pa.C.S.A. § 3701([a)(1)](ii), as well as one (1) count of theft by 

unlawful taking under 18 Pa.C.S.A. § 3921([a]). At criminal 

complaint number 2014-14231, this [c]ourt found [Appellant] 

guilty of two (2) counts of robbery -threatened infliction of serious 

bodily injury under 18 Pa.C.S.A. § 3701([a)(1)](ii), as well as one 

(1) count of theft by unlawful taking under 18 Pa.C.S.A. 

§ 3921([a]). At criminal complaint number 2014-14232, this 

[c]ourt found [Appellant] guilty of one (1) count of robbery - threatened serious bodily injury under 18 Pa.C.S.A. 

§ 3701([a)(1)](ii). At criminal complaint number 2014-14234, 

this [c]ourt found [Appellant] guilty of one (1) count of robbery - threatened infliction of serious bodily injury under 18 Pa.C.S.A. 

§ 3071([a)(1)](ii). At criminal complaint number 2014-14235, 

this [c]ourt found [Appellant] guilty of one (1) count of robbery - threatened serious bodily injury under 18 Pa.C.S.A. 

§ 3701([a)(1)](ii), as well as one (1) count of theft by unlawful 

taking under 18 Pa.C.S.A. § 3921([a]). 

At criminal complaint number 2014-14236, this [c]ourt 

found [Appellant] guilty of two (2) counts of robbery -threatened 

immediate serious bodily injury under 18 Pa.C.S.A. 

§ 3701([a)(1)](ii). At criminal complaint number 2014-14248, 

this [c]ourt found [Appellant] guilty of robbery under 18 Pa.C.S.A. 

§ 3701([a)(1)](iv). At criminal complaint 2014-15392, this 

[c]ourt found [Appellant] guilty of one (1) count of robbery - threatened infliction of serious bodily injury under 18 Pa.C.S.A. 

§ 3701([a)(1)](ii), as well as one (1) count of terroristic threats 

under 18 [Pa.C.S.] § 2706([a)(1)]. At criminal complaint number 

2014-15534, this [c]ourt found [Appellant] guilty of one (1) count 

of robbery -threatened infliction of serious bodily injury under 18 

Pa.C.S.A. § 3701([a)(1)](ii), as well as one (1) count of terroristic 

threats under 18 Pa.C.S.A. § 2706([a)(1)]. At criminal complaint 

number 2014-16430, this [c]ourt found [Appellant] guilty of one 

(1) count of robbery -threatened infliction of serious bodily injury 

under 18 Pa.C.S.A. § 3701([a)(1)](ii), as well as one (1) count of 

terroristic threats under 18 Pa.C.S.A. § 2706([a)(1)]. Finally, at 

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criminal complaint number 2014-16687, this [c]ourt found 

[Appellant] guilty of one (1) count of robbery -take property by 

force under 18 Pa.C.S.A. § 3701([a)(1)](v). Sentencing was 

waived until January 20, 2016. 

On January 20, 2016, this [c]ourt sentenced [Appellant] to 

an aggregate sentence of ten (10) to twenty (20) years pursuant 

to a mandatory nnininnunn.[3] On September 15, 2016, [Appellant] 

filed a pro se Post -Conviction Relief Act [("PCRA")] Petition with 

this [c]ourt. On September 19, 2016, this [c]ourt appointed 

counsel to represent [Appellant] in his PCRA [petition]. On 

June 26, 2017, counsel filed an Amended Petition for Collateral 

Relief with this [c]ourt, requesting nunc pro tunc reinstatement of 

[Appellant's] rights to a direct appeal. On July 26, 2017, the 

Commonwealth filed an Answer to [Appellant's] Amended PCRA 

Petition and consented to the reinstatement of [Appellant's] right 

to a direct appeal. On August 2, 2017, this [c]ourt reinstated 

[Appellant's] appellate rights. 

On September 7, 2017, [Appellant] filed a Post -Sentence 

Motion with this [c]ourt. On October 13, 2017, the 

Commonwealth filed a Response to [Appellant's] Post -Sentence 

Motion. On January 3, 2018, this [c]ourt denied [Appellant's] 

Post -Sentence Motion in its entirety. 

On February 1, 2018, [Appellant] filed a Notice of Appeal to 

Superior Court. On February 16, 2018, this [c]ourt ordered that 

[Appellant] filed [sic] a [Pa.R.A.P.] 1925(b) Concise Statement of 

Errors Complained of on Appeal. On March 13, 2018, this [c]ourt 

granted [Appellant] an Extension of Time to File Concise 

Statement of Errors Complained of on Appeal. [Appellant] timely 

filed his [Rule] 1925(b) Concise Statement of Errors Complained 

of on Appeal on April 24, 2018. 

Trial Court Opinion, 10/11/18, at 1-4. 

In reciting its summary of the facts, the trial court noted that beginning 

on September 22, 2014, and ending on October 6, 2014, Appellant committed 

3 The mandatory minimum sentences were due to prior convictions. N.T. 

(Sentencing), 1/20/16, at 17-18. 

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eighteen robberies in various areas of Pittsburgh. Trial Court Opinion, 

10/11/18, at 4. While we will not repeat them here, the trial court set forth a 

summary of the facts of each of the robberies drawn "from the affidavits of 

probable cause[,] which were stipulated to as the factual basis for each case, 

[and] which should be submitted to this Superior Court as part of the official 

record." See id. at 4-11. 

Appellant raises the following two issues on appeal: 

I. Was the evidence insufficient as a matter of law to sustain 

the convictions under 18 Pa.C.S. § 3701([a])(1)(i)-robberyinfliction of serious bodily injury at CC #2014H14229, CC 

#2014[-]13866, CC # 2014[-]13887,[4] CC #2014[-]15392, 

CC #2014H14231, CC #2014H14230, CC #2014[- 

]16430, CC #2014H14234, and CC #2014H15534, 

insofar as the Commonwealth did not prove beyond a 

reasonable doubt that [Appellant], in the course of 

committing a theft, inflicted bodily injury upon another in 

those cases? 

II. Was the evidence insufficient as a matter of law to sustain 

the conviction at CC #2014[-]16687 under 18 Pa.C.S.§ 

3701([a])(1)([v]) (robbery -takes property from another by 

force) insofar as the Commonwealth failed to prove beyond 

4 Our review of the record reveals that there were no charges identified as 

related to Docket Number CC 2014-13887 in this case, nor was this docket 

number included in Appellant's notice of appeal. Indeed, the trial court 

pointed out that this docket number, which also was included in Appellant's 

Pa.R.A.P. 1925(b) statement, "does not correspond to any of [Appellant's] 

cases . . . ." Trial Court Opinion, 10/11/18, at 12 n.2. Despite the trial court's 

notification of this apparent error, Appellant failed to correct reference to it in 

his Statement of the Questions Involved in his appellate brief, thereby 

perpetuating the error and continuing confusion in this case. Moreover, in the 

argument section of Appellant's brief, Appellant fails to present any claim 

regarding such docket number. It is likely that Appellant has made a scrivener 

error in both his Rule 1925(b) statement and his Statement of Questions 

Involved pursuant to Pa.R.A.P. 2116. 

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a reasonable doubt that any property was taken or 

removed, or that [Appellant] used any force, and therefore, 

did not establish the elements required to establish an 

offense pursuant to Section 3701([a])(1)(v)? 

Appellant's Brief at 4 (unnecessary capitalization removed). 

Because a determination of evidentiary sufficiency presents a question 

of law, our standard of review is de novo and our scope of review is plenary. 

Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011). In reviewing the 

sufficiency of the evidence, we must determine whether the evidence admitted 

at trial and all reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, were sufficient to prove 

every element of the offense beyond a reasonable doubt. Commonwealth 

v. Von Evans, 163 A.3d 980, 983 (Pa. Super. 2017). "[T]he facts and 

circumstances established by the Commonwealth need not preclude every 

possibility of innocence." Commonwealth v. Colon -Plaza, 136 A.3d 521, 

525-526 (Pa. Super. 2016) (quoting Commonwealth v. Robertson -Dewar, 

829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the province of the fact - 

finder to determine the weight to be accorded to each witness's testimony and 

to believe all, part, or none of the evidence. Commonwealth v. Tejada, 107 

A.3d 788, 792-793 (Pa. Super. 2015). The Commonwealth may sustain its 

burden of proving every element of the crime by means of wholly 

circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa. 

Super. 2016). Moreover, as an appellate court, we may not re -weigh the 

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evidence and substitute our judgment for that of the fact -finder. 

Commonwealth v. Rogal, 120 A.3d 994,1001 (Pa. Super. 2015). 

In his first issue, Appellant asserts that the evidence was insufficient as 

a matter of law to sustain his convictions under 18 Pa.C.S. § 3701(a)(1)(i)- 

robbery-infliction of serious bodily injury, at eight designated docket numbers. 

Appellant's Brief at 24-26. In particular, Appellant avers that there "was no 

evidence presented that any of the victims in the cases at issue suffered 

serious bodily injury." Appellant's Brief at 29. This is the sole argument 

Appellant proffers for this issue. For the reasons that follow, we will not 

address the substance of this claim of insufficient evidence because Appellant 

was not convicted of subsection 3701(a)(1)(i). 

Appellant does not clarify the basis for his argument, suggesting, 

without clearly substantiating, that "[t]he [trial] court's verdict in these cases 

appears on page 1 of each Criminal Information and references only the Count 

numbers which appear on the same page." Appellant's Brief at 9 n.2. The 

Commonwealth suggests that Appellant rests his argument "on the front page 

docket sheet of the information[s], which list[] 18 Pa.C.S.A. § 3701(a)(1)(i) 

as the charge, rather than recognizing that charging language set forth in the 

information encompasses both 18 Pa.C.S.A. § 3701(a)(1)(i) and 18 Pa.C.S.A. 

§ 3701(a)(1)(ii). Commonwealth's Brief at 19. 

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In the eights correctly referenced cases set forth in Issue One, Docket 

Numbers 2014-13866, 2014-14229, 2014-14230, 2014-14231, 2014-14234, 

2014-15392, 2014-15534, and 2014-16430, Appellant was charged, inter 

alia, with robbery, which provides, in pertinent part, as follows: 

§ 3701. Robbery 

(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; 

18 Pa.C.S. § 3701(a)(1)(i)-(ii). A review of the charging documents reveals 

that Appellant was charged with robbery -serious bodily injury, "in violation of 

18 Pa.C.S. § 3701(a)(1)(i) or (ii) of the Pennsylvania Crimes Code." 

Informations in referenced docket numbers (emphasis added). Both the trial 

court and the Commonwealth agree with Appellant that the victims in these 

cases did not suffer serious bodily injury. Trial Court Opinion, 10/11/18, at 

13; Commonwealth's Brief at 18. However, both the trial court and the 

Commonwealth make clear that Appellant was convicted of 18 Pa.C.S. 

§ 3701(a)(1)(ii), not subsection (i). The trial court stated as follows: 

A review of the record indicates that at every criminal 

complaint number complained of under this prong of [Appellant's] 

5 The robbery section charged in the ninth case, Docket Number 2014-16687, 

is different, and that case is addressed in Appellant's second issue. 

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argument, the notation "Count 99,999: 18 § 3701 §§ A IIRobbery-Threat Immed Ser Injury (F1) Offense Disposition: 

Charge Changed" can be found. [There was] clearly a clerical 

error, where the record was changed from the correct charge to 

the incorrect charge. Additionally, a review of the Sentencing 

Guidelines in each case reflects the accurate convictions of 

Robbery -Threatens Serious Bodily Injury. This Court does not 

profess to be perfect, however, it is not so incompetent as to find 

[Appellant] guilty in nine (9) cases of an offense of which there is 

clearly no proof. In an age of computer technology where the 

paperwork of justice has been replaced with keystrokes and "drop - down menus" the potential for error is greatly increased. 

However, this is not an error for which [Appellant] is entitled to 

any relief other than the correction of his paperwork. 

[Appellant] is correct in that he never inflicted any serious 

bodily injury. He did however, threaten to do so when he either 

brandished the replica firearm or behaved as if he had a weapon 

in his sweatshirt. In multiple robberies he threatened to shoot his 

victims if they did not comply with his demands more quickly. 

Trial Court Opinion, 10/11/18, at 13-14 (emphasis added). 

We have carefully reviewed the certified records. The Informations in 

the appealed cases identify the robbery counts consistently as, for example, 

the Information at Docket Number 2014-14229, which is representative of all 

of the relevant Informations, and states: 

Count 1 ROBBERY -SERIOUS BODILY INJURY Felony 1 

The actor in the course of committing a theft, either inflicted 

serious bodily injury upon [the victim], threatened that person 

or persons with, or put that person or persons in fear of 

immediate serious bodily injury, in violation of Section 

3701(a)(1)(i) or (ii) of the Pennsylvania Crimes Code, Act of 

December 6, 1972, 18 Pa. C.S. §3701(a)(1)(i) or (ii). 

Count 2 ROBBERY -SERIOUS BODILY INJURY Felony 1 

The actor in the course of committing a theft, either inflicted 

serious bodily injury upon [the victim], threatened that person 

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or persons with, or put that person or persons in fear of 

immediate serious bodily injury, in violation of Section 

3701(a)(1)(i) or (ii) of the Pennsylvania Crimes Code, Act of 

December 6, 1972, 18 Pa. C.S. §3701(a)(1)(i) or (ii). 

Information at Docket Number 2014-14229, 12/10/14, at 1 (emphases 

added). The description of the acts in the complaint at that Docket Number 

states as follows: 

18 [Pa.C.S. §] 3701[(a)(1)(ii)] ROBBERY F1 2 COUNTS 

The actor, in the course of committing a theft, threatened 

another person with, or intentionally put that person . . . in 

fear of immediate serious bodily injury, in violation of 18 Pa. 

C.S. § 3701(a)(1)(ii). 

The actor, in the course of committing a theft, threatened 

another person with, or intentionally put that person . . . in 

fear of immediate serious bodily injury, in violation of 18 Pa. 

C.S. § 3701(a)(1)(ii). 

Criminal Complaint at Docket Number 2014-14229, 10/13/14, at 2. 

As noted, following Appellant's guilty pleas in three of the cases, the 

trial court conducted a stipulated bench trial. N.T., 10/21/15, at 31, 36. Using 

Docket Number 2014-14229 as an example, the trial court found Appellant 

"guilty of Counts One and Two." Id. at 42. The verdict was recorded as 

follows: 

And now 10-21 2015 after hearing a stipulated non -jury in open 

court, [Appellant] is Adjudged 

Guilty of counts 1-2. 

By the Court 

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The Guideline Sentence Form for Docket Number 2014-14229 identifies 

the offense as "Robbery -threatens SBI[6]" as provided in "18 [Pa.C.S. §] 3701 

AM." At sentencing on Docket Number 2014-14229, the trial court stated: 

[W]ith regard to Count 1, the [c]ourt imposes a sentence of no 

less than seven years and no more than 14 years. Said sentence 

will run concurrent with all other sentences imposed. 

N.T. (Sentencing), 1/20/16, at 34. The Order of Sentence provides, in 

pertinent part: 

AND NOW, this 20th day of January, 2016, [Appellant] 

having been convicted in the above -captioned case is hereby 

sentenced by this [c]ourt as follows. [Appellant] is to pay all 

applicable fees and costs unless otherwise noted below: 

Count 1-18 § 3701 §§ AlI-Robbery-Inflict Serious Bodily Injury 

(F1 ) 

To be confined for a minimum period of 7 Year(s) and a 

maximum period of 14 Year(s) at SCI Camp Hill. The 

following conditions are imposed: 

Comply -DNA: [Appellant] is to comply with DNA 

registration. 

Contact -No Contact: [Appellant] is to have no contact 

with victim(s) and establishment. 

Restitution: [Appellant] is to pay restitution in the 

amount of $400.00 to see order filed. 

Other: [Appellant] is NOT RRRI ELIGIBLE. 

This sentence shall commence on 01/20/2016. 

Count 2-18 § 3701 §§ AlI-Robbery-Inflict Serious Bodily Injury 

(F1) 

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A determination of guilty without further penalty. 

Count 99,999-18 § 3701 §§ A1II - Robbery -Threat Immed Ser 

Injury (F1) 

Offense Disposition: Charge Changed 

Count 99,999-18 § 3701 §§ A1II-Robbery-Threat Immed Ser 

Injury (F1) 

Offense Disposition: Charge Changed 

Order of Sentence, 1/20/16, at 1 (emphases added). The paperwork in the 

other appealed cases is consistent. 

Our careful review of the record reveals that Appellant was charged with 

robbery in violation of subsection 3701(a)(1)(i) or (ii). The language of the 

Informations put Appellant on notice that he was charged with inflicting 

serious bodily injury or threatening bodily injury. It is beyond cavil that 

Appellant knew the facts surrounding the offenses charged. Bills of 

information are governed by the Pennsylvania Rules of Criminal Procedure, 

which require that they include a "plain and concise statement of the essential 

elements of the offense substantially the same as or cognate to the offense 

alleged in the complaint[.]" Pa.R.Crim.P. 560(6)(5); see also 

Commonwealth v. Badman, 580 A.2d 1367, 1371 (Pa. Super. 1990) 

(stating that "[t]he information should be read in a common sense manner, 

rather than being construed in an overly technical sense."). Importantly, 

Pa.R.Crim.P. 560(C) provides that the Information "shall contain the official 

or customary citation of the statute and section thereof, or other provision of 

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law that the defendant is alleged therein to have violated; but the omission 

of or error in such citation shall not affect the validity or sufficiency 

of the information." Pa.R.Crim.P. 560(C) (emphasis added). "The purpose 

of the information is to advise the accused of the allegations and the crimes 

charged, to give sufficient notice to allow the opportunity to prepare a defense, 

and to define the issues for trial." Commonwealth v. Kisner, 736 A.2d 672, 

674 (Pa. Super. 1999). 

We agree with the trial court that a claim regarding the sufficiency of 

the evidence under 18 Pa.C.S. § 3701(a)(1)(i) is irrelevant in this case 

because Appellant was convicted, instead, of 18 Pa.C.S. § 3701(a)(1)(ii). "A 

trial court has inherent, common-law authority to correct 'clear clerical errors' 

in its orders." Commonwealth v. Thompson, 106 A.3d 742, 766 (Pa. Super. 

2014) (citation omitted). Moreover, this authority "exists even after the 30 - 

day time limitation for the modification of orders expires." Id. (citing 42 

Pa.C.S. § 5505). The Thompson Court reiterated that "[w]e have previously 

concluded that a 'clear clerical error' exists on the face of the record 'when a 

trial court's intentions are clearly and unambiguously declared during the 

sentencing hearing." Id. (quoting Commonwealth v. Borrin, 12 A.3d 466, 

473 (Pa. Super. 2011) (en banc) (citing Commonwealth v. Holmes, 933 

A.2d 57, 67 (Pa. 2007) ("concluding the limited, inherent judicial power of the 

court to correct patent errors arise in cases 'involving clear errors in the 

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imposition of sentences that are incompatible with the record'")). Appellant's 

first issue is rejected as meritless. 

Appellant's second issue involves only Docket Number 2014-16687. In 

its opinion, the trial court described the facts of that case as follows: 

On September 24, 2014, at approximately 3:52 p.m. 

[Appellant] robbed an Eat N Park on West Liberty Avenue. 

[Appellant] entered the restaurant wearing a black hooded jacket, 

a bandanna covering his face with a skull pattern and red lips. 

The managers noticed [Appellant] enter the restaurant and head 

for the cash register. Both managers began to yell "register!" and 

[Appellant] seemed to become fearful and ran. [Appellant] would 

later confess that he attempted to rob this location. 

Trial Court Opinion, 10/11/18, at 6. The Information therein charged as 

follows: 

Count 1 ROBBERY -FORCE HOWEVER SLIGHT Felony 3 

The actor in the course of committing a theft, namely, theft 

of United States currency physically took or removed 

property from the person or persons of [victim 1] and/or 

[victim 2] by force, however slight, in violation of Section 

3701(a)(1)(v) of the Pennsylvania Crimes Code, Act of 

December 6, 1972, 18 Pa.C.S.§ 3701(a)(1)(v). 

Information, 2/2/15, at 1. The relevant statute provides as follows: 

§ 3701. Robbery 

(a) Offense defined.- 

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

committing a theft, he: 

* * * 

(v) physically takes or removes property from 

the person of another by force however slight[.] 

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(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. 

18 Pa.C.S. § 3701(a)(1)(v), (a)(2). 

Appellant argues that there was insufficient evidence to support his 

conviction and contends the Commonwealth failed to prove beyond a 

reasonable doubt "that any property was taken or removed, or that 

[Appellant] used any force, and therefore, did not establish the elements 

required to establish an offense pursuant to [18 Pa.C.S. §] 3701(a)(1)(v)." 

Appellant's Brief at 32. Appellant maintains that he "never touched either of 

the managers or anyone else in the restaurant. He did not remove any item 

from anyone's person or control. The fact that his hand was reaching into his 

pocket and [he was] heading for the cash register did not establish 'force 

however slight." Id. at 34. As noted by both Appellant and the 

Commonwealth, "force however slight" occurs when the victim is compelled 

"to part with the conscious control of [his] property." Commonwealth v. 

Brown, 484 A.2d 738, 742 (Pa. 1984); Appellant's Brief at 33; 

Commonwealth's Brief at 24. 

The trial court addressed this issue as follows: 

[Appellant] entered the restaurant wearing a bandana over his 

face and his hand reaching into his pocket and headed straight for 

the cash register. Any reasonable individual can readily deduce 

that [Appellant] was not there to purchase a smiley cookie or 

some pie. The fact [Appellant] became scared by the yelling of 

the managers and fled without any items is irrelevant. Our State 

Supreme Court has held, "that circumstances made it such that 

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appellant...failed to obtain and remove money (or other 

valuables) is irrelevant because proof of an attempted theft is 

sufficient to establish the "in the course of committing a theft" 

element of robbery." Commonwealth v. Sanchez, 36 A.3d 24, 

[42] (2011). Therefore, [Appellant's] claim is without merit. 

Trial Court Opinion, 10/11/18, at 15. We do not agree with the trial court's 

reasoning. 

The section of the statute charged in this case required that Appellant, 

in the course of committing a theft, physically took or removed property from 

the person of another by force however slight. 18 Pa.C.S. § 3701(a)(1)(v). 

In Commonwealth v. Brandon, 79 A.3d 1192 (Pa. Super. 2013), this Court 

stated, "[U]nder the plain language of the robbery statute, the act of 

'physically taking or removing property from the person of another' is required 

only under subsection (v) of the robbery statute at section 3701(a)(1)." Id. 

at 1195. While the trial court is correct that there need not be a completed 

theft under this subsection of 3701, we have made clear that there must have 

been force used "during an attempted theft." Commonwealth v. Lloyd, 545 

A.2d 890, 892 (Pa. Super. 1988). 

As the Commonwealth points out,' it failed to prove the element of force 

or taking and removing. The Commonwealth avers that Appellant 

never touched either victim, nor did he remove money from the 

victim's person or control. The fact that [A]ppellant put his hands 

in his pockets is not sufficient to establish "force however slight," 

We appreciate the Commonwealth's candor in acknowledging that it failed 

to present sufficient evidence to support this conviction. Commonwealth's 

Brief at 24-26. 

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as it did not compel the victim to hand over money. See 

[Commonwealth v.] Brown, [484 A.2d 738,] 741-742 [(Pa. 

1984)]. Under a plain meaning of the statute, . . . the facts are 

insufficient to sustain a conviction under this subsection of the 

statute. 

Commonwealth's Brief at 26. In regard to the use of force, this Court has 

stated: 

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(1)(a)(v). This force, of course, may be 

either actual or constructive. Actual force is applied to the body; 

constructive force is the use of threatening words or gestures, and 

operates on the mind. 

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. Any injury to the victim, or any struggle to obtain the 

property, or any resistance on his part which requires a greater 

counter attack to effect the taking is sufficient. The same is true 

if the force used, although insufficient to frighten the victim, 

surprises him into yielding his property. 

Brown, 484 A.2d at 741 (internal citation omitted). 

In this case, there was no use of force nor separation of property from 

the victims, or even an attempt to do so proven beyond a reasonable doubt. 

We cannot say that the Commonwealth's evidence that Appellant, wearing a 

bandanna, with his hand in his pocket, walking toward the register at the Eat'n 

Park Restaurant was sufficient to prove robbery pursuant to 18 Pa.C.S. 

§ 3701(a)(1)(v) beyond a reasonable doubt. In the absence of any evidence 

to support this element of the crime, we reverse Appellant's conviction at 

Docket Number 2014-16687. 

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If we can vacate a sentence without upsetting the trial court's overall 

sentencing scheme, we need not remand for resentencing. Commonwealth 

v. Thur, 906 A.2d 552, 570 (Pa. Super 2006). On the other hand, where the 

sentence vacated will affect the sentence imposed by the court, we must 

remand. Commonwealth v. Williams, 550 A.2d 579 (Pa. Super. 1988). We 

conclude herein that a remand for resentencing is not required. See 

Commonwealth v. Robinson, 817 A.2d 1153, 1163 n.14 (Pa. Super. 2003) 

(no need to remand for resentencing where trial court's sentencing scheme is 

not upset by reversal of conviction and sentence that was imposed 

concurrently to sentence on another conviction). 

The conviction at Docket Number 2014-16687 is reversed and the 

judgment of sentence at that docket number is vacated. The judgments of 

sentence of all other docket numbers appealed are affirmed. 

Judgment Entered. 

J seph D. Seletyn,r Es 

Prothonotary 

Date: 6/3/2019 

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