Com. v. Ennis

• Decision Date: 16 May 1990
• Citation: 574 A.2d 1116,394 Pa.Super. 1
• Parties: COMMONWEALTH of Pennsylvania v. Darren ENNIS, Appellant.
• Court: Pennsylvania Superior Court

Page 1116

574 A.2d 1116

394 Pa.Super. 1

COMMONWEALTH of Pennsylvania v. Darren ENNIS, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 15, 1989.

Filed May 16, 1990.

Stanford Shmukler, Philadelphia, for appellant.

Suzan Willcox, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.

MONTEMURO, Judge:

Appellant, Darren Ennis, appeals from a judgment of sentence imposed following a jury verdict finding him guilty of robbery, aggravated assault, possession of an instrument of crime, and conspiracy. After denying appellant's post-trial motions, the trial court sentenced appellant to a term of imprisonment of ten to twenty years on the robbery charge and imposed a consecutive six month to four year prison term for conspiracy and a concurrent sentence of five to ten years on the assault charge. No sentence was imposed for the possession of an instrument of crime conviction. Following the denial of his petition for reconsideration of sentence, appellant brought this timely appeal. Appellant is represented by new counsel on this appeal.

On appeal, appellant claims that (1) trial counsel was ineffective for failing to object to the sufficiency of the evidence to sustain a conviction for robbery; (2) trial counsel was ineffective for failing to present a point for charge or to object to the charge on the elements necessary to prove robbery; ¹ (3) trial counsel was ineffective in failing to move to suppress an in-court identification; (4) trial counsel was ineffective in failing to object to an improper cross-examination of a character witness; (5) the separate sentence for the aggravated assault charge was illegal because the robbery and aggravated assault merged for purposes of sentencing; (6) the sentencing court abused its discretion in considering appellant's low I.Q. as a factor in sentencing appellant. Because we find that the aggravated assault merged with robbery for sentencing purposes, we vacate the five to ten year sentence for the aggravated assault charge. We also find that the sentencing judge abused his discretion in relying upon appellant's low I.Q. in sentencing appellant and we vacate the judgment of sentence and remand the case for resentencing.

The underlying facts of the case are as follows. During the early morning hours of July 31, 1987, William DeShields was walking with his friend, James Horace, in the vicinity of 55th and Chestnut Streets, Philadelphia, when two men approached them from behind. Suspecting trouble, Mr. Horace alerted DeShields and then ran for safety. When DeShields turned around to face his followers, he was shot in the stomach by one of them and fell to the ground. Two police officers in an unmarked car happened to be in the area and sighted the three men on the corner. When the police heard the gunshot ring out, they gave chase to the two assailants. The officers apprehended one of the two men, Christopher Hightower. Seven months later, in February of 1988, Hightower, angered at his accomplice for not providing him with bail assistance, divulged appellant's name to the police. Appellant was tried and convicted by a jury on September 6-7, 1988.

I. SUFFICIENCY OF EVIDENCE TO SUPPORT ROBBERY CONVICTION

Appellant argues that trial counsel was ineffective for failing to object to the sufficiency of the evidence to sustain a conviction for robbery.

In determining whether counsel rendered ineffective assistance, we first ascertain whether the issue underlying the claim is of arguable merit. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). If appellant's claim does have arguable merit, we then determine whether counsel's chosen course of action had any reasonable basis designed to serve the interests of his or her client. Id. If our review of the record reveals that counsel was ineffective, appellant will be granted relief if he demonstrates that counsel's ineffectiveness worked to his prejudice. Id.; Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 976 (1987). To prove actual prejudice from the ineffectiveness, appellant must show that counsel's error had an adverse effect on the outcome of the trial. Davis, supra at 83, 541 A.2d at 318.

We first determine whether the underlying issue--the sufficiency of evidence to sustain the verdict--is of arguable merit. Appellant claims that the evidence was insufficient to sustain the robbery verdict because there was no proof that anything was taken from the victim and there was no evidence that the victim was threatened.

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Aulisio, 514 Pa. 84, 522 A.2d 1075, 1079 (1987), citing Commonwealth v. Syre, 507 Pa. 299, 303, 489 A.2d 1340, 1342 (1985). The jury is free to believe all, part, or none of the evidence. Commonwealth v. Fahy, 512 Pa. 298, 308, 516 A.2d 689, 694 (1986) (citations omitted). "It is a basic tenet of our system of jurisprudence that issues of credibility are properly left to the trier of fact for resolution." Id., quoting Commonwealth v. Whack, 482 Pa. 137, 140, 393 A.2d 417, 419 (1978).

To sustain a conviction of robbery, the Commonwealth must establish beyond a reasonable doubt that appellant, in the course of committing a theft, inflicted serious bodily injury upon Mr. DeShields, or threatened him with or intentionally put him in fear of immediate serious bodily injury. 18 Pa.C.S.A. § 3701(a). The element "in the course of committing a theft" is proven if the Commonwealth proves that the offense occurred during an attempt to commit theft or in flight after the attempt or commission. 18 Pa.C.S.A. § 3701(a)(2). An attempted theft is committed when a person, with intent to commit a theft, does any act which constitutes a substantial step toward commission of the theft. 18 Pa.C.S.A. § 910(a). A person commits a theft if he or she "unlawfully takes ... movable property of another with intent to deprive him thereof." 18 Pa.C.S.A. § 3921(a). In light of these statutory definitions, the Commonwealth must prove beyond a reasonable doubt that appellant, with the intent to take property from DeShields and deprive DeShields of the property, took a substantial step toward those ends, and during the course of the act, inflicted serious bodily injury upon DeShields. We find that the Commonwealth has met its burden.

DeShields testified that on July 31, 1987, as he was walking down the street with his friend, the friend alerted him to the fact that they were being followed. N.T. September 6, 1988 Volume II at 29-30. DeShields turned to face his followers and saw appellant who mumbled something which DeShields could not understand. As soon as DeShields noticed that appellant was pointing a gun at DeShields' chest, DeShields immediately tried to knock the gun down, and as he did so, appellant shot him in the stomach. DeShields required hospitalization and surgery for treatment of the bullet wounds. Id. at 33-34, 36. Appellant also testified that $280 was missing from his pocket after the incident. The police did not find the money when they arrived on the scene a few minutes after the attack.

Christopher Hightower, appellant's accomplice, testified that before the incident, appellant and Hightower drove in appellant's car from the Germantown section of Philadelphia to 55th and Chestnut Streets, looking for someone to "stick up" for some money. N.T. September 6, 1988 Volume II at 94-95. They parked on Chestnut Street and got out of the car. Id. at 96. According to Hightower, appellant approached DeShields and DeShields' companion from behind, pulled a gun out, and said "Where the money at? Where the money at?" Id at 96. Hightower then saw appellant shoot DeShields. Id. at 97.

The testimony of DeShields and Hightower is sufficient to prove the elements of robbery beyond a reasonable doubt. The evidence shows that during the course of an attempted theft, appellant inflicted serious bodily injury upon DeShields. The attempted theft was proven by Hightower's testimony, which showed that appellant, with the intent of stealing money from DeShields, came up from behind DeShields with a gun, asked for money, and then shot DeShields as DeShields turned around and tried to knock the gun to the ground. We find that this constitutes a substantial step toward the commission of a theft.

Appellant points out that the testimony of Hightower contradicts that of DeShields, who testified that he did not hear his assailant ask for money, but that he did hear appellant mumble something. The fact that DeShields did not hear appellant ask for money does not make the attempt fail. The fact that appellant approached

DeShields with a gun, with the intent of taking money from him, even in the absence of a request for money, establishes that appellant did an act which constituted a substantial step toward the commission of the theft within the meaning of the statute defining criminal attempt, 18 Pa.C.S.A. § 901(a). See Commonwealth v. Everett, 299 Pa.Super. 182, 186, 445 A.2d 514 (1982) (although defendants neither demanded nor took any money during the course of a hold-up, attempt to commit theft could be inferred from evidence that defendants entered store, held gun to head of storekeeper, and fatally shot the store owner).

The jury could also have reasonably inferred that appellant took the $280 which was missing from DeShields' pocket after the incident, and thus actually committed theft. See Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981) (where rape victim left her handbag in defendant's possession and handbag was later found with cash, checks and credit cards missing, evidence was sufficient to...