Commonwealth v. Brandon
79 A.3d 1192
| Pa. Super. Ct. | 2013Background
- Appellant Earl Brandon entered a taxi, argued over upfront fare, threatened the driver and kept his hand in his pocket; driver feared Appellant had a weapon and fled to police.
- Police stopped and arrested Appellant shortly after; no weapon or cash was recovered; Appellant appeared intoxicated and admitted saying he had a gun but claimed he was not serious.
- Appellant was charged with robbery in the second degree and making terroristic threats; at trial he was convicted of second-degree robbery, third-degree robbery, and terroristic threats.
- The record and parties show Appellant was never charged with third-degree robbery in the information, and he had no advance notice of that charge.
- The trial court upheld the third-degree robbery conviction reasoning it was a lesser included offense of second-degree robbery, relying on In re C.S.
- The Superior Court rejected that reasoning, vacated the third-degree robbery conviction, and affirmed the terroristic threats conviction; aggregate probation remained unchanged.
Issues
| Issue | Appellant's Argument | Commonwealth / Trial Court Argument | Held |
|---|---|---|---|
| Whether convicting Appellant of third-degree robbery violated notice and due process because he was charged only with second-degree robbery | Conviction on an uncharged offense denied required notice and violated Rules of Criminal Procedure and Due Process | Trial court: third-degree robbery is a lesser included offense of second-degree robbery, so conviction valid without separate charge | Yes: vacated third-degree robbery conviction — third-degree robbery is not a lesser included offense of second-degree robbery; notice violation requires vacatur |
Key Cases Cited
- Commonwealth v. Petrillo, 338 Pa. 65, 12 A.2d 317 (1940) (indictment must give defendant notice of the charges to be met)
- Commonwealth v. Ostolaza, 267 Pa.Super. 451, 406 A.2d 1128 (1979) (holding that taking from the person is not an element of certain robbery subsections; limitation on lesser-included analysis)
- In re C.S., 63 A.3d 351 (Pa. Super. 2013) (held that force is implicit throughout the robbery statute; relied on by trial court)
- Commonwealth v. Thomas, 376 Pa.Super. 455, 546 A.2d 116 (1988) (en banc) (framework for determining lesser included offenses)