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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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

:

EMMANUEL HOWARD, : No. 1549 WDA 2016

:

 Appellant :

Appeal from the Judgment of Sentence, September 14, 2016,

in the Court of Common Pleas of Fayette County

Criminal Division at No. CP-26-CR-0001069-2016

BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 21, 2017

Emmanuel Howard appeals from the September 14, 2016 judgment of 

sentence entered in the Court of Common Pleas of Fayette County after a 

jury convicted him of two counts of robbery and one count each of theft by 

unlawful taking, receiving stolen property, and simple assault.1 The trial 

court imposed a sentence of 7 to 20 years of imprisonment on one of the 

robbery convictions and imposed no further sentence on the remaining 

convictions. We affirm.

The trial court set forth the following factual history:

On December 29, 2015, Christine Arthur 

(hereinafter “Victim”) was employed as a waitress at 

the Canton Restaurant on Fayette Street in 

Uniontown, Fayette County, Pennsylvania. 

 

1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3701(a)(1)(v), 3921(a), 3925(a), and 

2701(a)(3), respectively.
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Approximately thirty minutes into her shift, a man 

described by Victim as a young black male, with 

facial hair, distinguished eyes and wearing a dark 

hooded sweatshirt came into the restaurant and 

placed an order. The man grabbed a can of pop out 

of the refrigerator cooler and set it down on the 

counter where Victim was working. After Victim 

requested payment for the order, the man went 

around the counter, pointed an object that was 

covered up with a handkerchief into her side and 

demanded money from the cash register. The 

assailant then ran off after taken [sic] approximately 

sixty dollars. Victim testified she complied with the 

demand because she “was afraid for my life.”

About five minutes after the assailant fled the 

restaurant, Lieutenant Tom Kolencik with the 

Uniontown Police Department arrived on scene and 

spoke with Victim. Lieutenant Kolencik also took into 

evidence the pop can that was handled by the 

assailant during the commission of the crime. The 

conclusion of the lab results was that a set of 

fingerprints on the pop can belonged to [a]ppellant.

Appellant briefly testified at trial. He testified 

that since he resided across the street from the 

restaurant, he frequented it numerous times. 

Finally, [a]ppellant testified that he did not rob the 

Canton on December 29, 2015.

Trial court opinion, 12/5/16 at 2-3 (citations to notes of testimony and 

footnote omitted).

The record reflects that appellant filed a timely post-sentence motion 

for modification of sentence, which the trial court denied. Appellant then 

filed a timely notice of appeal to this court. The trial court ordered appellant 

to file a concise statement of errors complained of on appeal pursuant to 
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Pa.R.A.P. 1925(b). Appellant complied. Thereafter, the trial court filed its 

Rule 1925(a) opinion.

Appellant raises the following issues for our review:

[1.] Whether the evidence presented at trial 

sufficiently established that during the course 

of a theft at the Canton Restaurant on Fayette 

Street in Uniontown, Fayette County, 

Pennsylvania, [appellant] threatened the victim 

with serious bodily injury or that he used 

physical force when removing the money from 

the register, as required under both 

18 Pa.C.S.A. § 3701(a)(1)(ii) and (v)?

[2.] Whether the evidence at trial sufficiently 

established that [appellant’s] conduct placed 

the victim in fear of imminent serious bodily 

injury, as required under 18 Pa.C.S.A. 

§ 2701(a)(3)[?]

[3.] Whether the evidence presented at trial 

demonstrated that the individual who robbed 

the Canton Restaurant on December 29, 2015 

was in fact [appellant?]

[4.] Whether [appellant’s] sentence of no less than 

seven (7) years to twenty (20) years was 

harsh, severe and excessive in light of the 

surrounding circumstances[?]

Appellant’s brief at 7 (capitalization omitted).

Appellant’s first three issues challenge the sufficiency of the evidence.

In reviewing a challenge to the sufficiency of the 

evidence, we must determine whether, viewing the 

evidence in the light most favorable to the 

Commonwealth as verdict winner, together with all 

reasonable inferences therefrom, the trier of fact 

could have found that each and every element of the 

crimes charged was established beyond a reasonable 

doubt.
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Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa.Super. 2015).

The statutory definition of robbery reads, 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:

. . . .

(ii) threatens another with or 

intentionally puts him in fear 

of immediate serious bodily 

injury; [or]

. . . . 

(v) physically takes or removes 

property from the person of 

another by force however 

slight[.]

18 Pa.C.S.A. § 3701(a)(1)(ii), (v).

Appellant complains that the evidence was insufficient to convict him 

of robbery under Section 3701(a)(1)(ii) because appellant “made no verbal 

threats to the [victim]”; appellant “never brandished a weapon”; the victim 

“did not observe any firearm throughout the entire incident”; and the victim 

followed appellant’s orders. (Appellant’s brief at 12.) As such, appellant 

contends that the evidence failed to demonstrate that appellant threatened 

the victim or intended to put her in fear of immediate serious bodily injury 

and that it failed to demonstrate that the victim was threatened or feared 
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immediate serious bodily injury. Appellant further complains that the 

evidence was insufficient to convict him under Section 3701(a)(1)(v) 

because appellant “removed the cash from the cash register, not from the 

[victim’s] person.” (Id.) Appellant is mistaken.

In a case starkly similar to this, this court found that where the 

Commonwealth presented evidence that the defendant pressed a hard object 

into the victim’s side and told the victim to give him all the money from the 

cash register and the safe, and the victim complied, the evidence was 

sufficient for the jury, sitting as fact-finder and examining the evidence in its 

totality, to convict under Sections 3701(a)(1)(ii) and (v). Commonwealth 

v. Taylor, 831 A.2d 661, 664 (Pa.Super. 2003).

Here, at trial, the victim testified that appellant “came along next to 

[her,]” “pointed something in her side[,]” and told her to “open the 

register.” (Notes of testimony 9/7/16 at 20.) The victim further testified 

that the object that appellant put into her side was covered with a 

handkerchief or a bandana. (Id.) She stated that she did what appellant 

told her to do and “feared for [her] life.” (Id. at 21.)

Therefore, viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, together with all reasonable inferences 

therefrom, we find that the Commonwealth presented sufficient evidence for 

the jury, sitting as fact-finder, to find every element of the robbery counts 
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under Section 3702(a)(1)(ii) and (v) was established beyond a reasonable 

doubt.

Appellant next complains that the evidence was insufficient to sustain 

his conviction for simple assault under Section 2701(a)(3) because the 

victim “testified that no verbal threats were made to her and she never 

observed any firearm during the brief incident.” (Appellant’s brief at 13.) 

Appellant cites no authority -- and we are aware of none -- for his 

contention that to be convicted of simple assault, the Commonwealth was 

required to prove that he verbally threatened the victim and that the victim 

observed a firearm during the assault.

A person is guilty of simple assault if he “attempts by physical menace 

to put another in fear of imminent serious bodily injury.” 18 Pa.C.S.A. 

§ 2701(a)(3). Again, at trial, the victim testified that appellant pressed a 

hard object into her side, instructed her to open the cash register, and that 

she “feared for [her] life.” (Id.) Viewing this evidence in the light most 

favorable to the Commonwealth, together with all reasonable inferences 

therefrom, we find that the Commonwealth presented sufficient evidence for 

the jury, sitting as fact-finder, to find every element of Section 2701(a)(3) 

was established beyond a reasonable doubt.

Appellant next complains that the Commonwealth failed to present 

sufficient evidence that appellant was the person who robbed the restaurant. 

The record belies appellant’s claim. During trial, the victim identified 
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appellant as the person who robbed the restaurant. (Notes of testimony, 

9/7/16 at 18.) The victim further testified that immediately prior to the 

robbery, appellant took a can of soda from the cooler and placed it on the 

counter. (Id. at 19-20.) The record reflects that law enforcement secured 

the soda can and subsequently sent it to the Pennsylvania State Police Crime 

Lab for analyzation of latent fingerprints. (Id. at 43-47, 55-56, 68.) At 

trial, the Commonwealth presented forensic evidence that the fingerprints 

lifted from the soda can were appellant’s fingerprints. (Id. at 89.) 

Therefore, this claim fails.

Appellant finally challenges the discretionary aspects of his sentence. 

[T]he proper standard of review when considering 

whether to affirm the sentencing court’s 

determination is an abuse of discretion. . . . [A]n 

abuse of discretion is more than a mere error of 

judgment; thus, a sentencing court will not have 

abused its discretion unless the record discloses that 

the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, 

bias or ill-will. In more expansive terms, our Court 

recently offered: An abuse of discretion may not be 

found merely because an appellate court might have 

reached a different conclusion, but requires a result 

of manifest unreasonableness, or partiality, 

prejudice, bias, or ill-will, or such lack of support so 

as to be clearly erroneous.

The rationale behind such broad discretion and the 

concomitantly deferential standard of appellate 

review is that the sentencing court is in the best 

position to determine the proper penalty for a 

particular offense based upon an evaluation of the 

individual circumstances before it.
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Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010) 

(citation omitted; brackets in original).

Challenges to the discretionary aspects of sentencing 

do not entitle an appellant to review as of right. 

Commonwealth v. Sierra, [752 A.2d 910, 912 

(Pa.Super. 2000)]. An appellant challenging the 

discretionary aspects of his sentence must invoke 

this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to 

determine: (1) whether appellant has 

filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the 

issue was properly preserved at 

sentencing or in a motion to reconsider 

and modify sentence, see Pa.R.Crim.P. 

[720]; (3) whether appellant’s brief has 

a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial 

question that the sentence appealed 

from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. 

§ 9781(b).

Moury, 992 A.2d at 170 (citation omitted; brackets in original).

Here, appellant filed a timely notice of appeal and properly preserved 

his sentencing challenge in his post-trial motion for modification of sentence. 

As the Commonwealth observes, however, appellant has failed to include in 

his brief the requisite Rule 2119(f) statement. (Commonwealth’s brief at 12 

n.3.) Because the Commonwealth merely observes its exclusion and does 

not object to its omission, the defect is not necessarily fatal. See 

Commonwealth v. Maneval, 688 A.2d 1198, 1199 (Pa.Super. 1997) 

(“When the Commonwealth does not object to the omission of a 
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Rule 2119(f) statement, this Court can overlook the omission if the presence 

or absence of a substantial question can be easily determined from the 

appellant’s brief.”), citing Commonwealth v. Saranchak, 675 A.2d 268, 

277 n.18 (1996).

That said, it is fairly obvious that appellant fails to raise a substantial 

question concerning the appropriateness of his sentence. Appellant claims 

that his sentence is “harsh, severe and excessive in light of the 

circumstances,” despite it falling within the standard range of the sentencing 

guidelines, because “the evidence was highly circumstantial,” the “alleged 

victim was not injured,” “[e]ven though appellant is a repeat felon, his 

record does [not] reflect any violent history, nor a propensity for violence,” 

and his “rehabilitative needs will not be adequately addressed.” (Appellant’s 

brief at 17.) Appellant has entirely failed to demonstrate how the sentence 

is inconsistent with a specific provision of the sentencing code or in what 

way it is contrary to the fundamental norms that underlie appellant’s 

sentencing process. In fashioning appellant’s sentence, the trial court 

reviewed the presentence investigation report, considered the nature and 

seriousness of the offense, considered appellant’s status as a repeat felon 

under his prior record score, considered the need to protect the community, 

and considered appellant’s rehabilitative needs. (Trial court opinion, 

12/5/16 at 9-10.) Therefore, appellant fails to present a substantial 

question for our review.
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/21/2017