*2 TAMILIA, Before JOHNSON BROSKY, JJ.
BROSKY, Judge. appeal
This sentence, final the denial as made motions,1 entered appellant’s post-sentencing robbery,2 following convictions for Chamberlain, post-sentencing disposes of the defendant’s Pa.Su- court See Commonwealth (1995), motion, per. quashed, by opera- appeal A.2d motion or when the is denied Pa. law). tion Pa.R.Crim.P., A(2), Rule 1410 42 Pa.C.S.A. and (judgment thereto of sentence becomes comment 3701(a)(1). 2. 18 Pa.C.S.A. purposes appeal date on the when the final for wealth, restraint,4 conspiracy,3 sufficient evidence to find criminal ter- there is threats,5 simple roristic assault6 and every beyond a rea- element presented of a motor vehicle.7 The sole issue sonable doubt. The Commonwealth for our review is whether the proving every sustain its burden of ele- sufficient to sustain conviction for beyond ment of the crime a reasonable *3 robbery of a motor vehicle. For the reasons wholly of circumstantial doubt means below, set forth we affirm the Moreover, applying in evidence. the above sentence. test, be the entire trial record must evalu- addressing actually
Before the merits and all evidence received ated claim, briefly pertinent will recount we Finally, must be considered. the trier of 29, 1996, appel- facts of this case. On June credibility passing upon fact while lant, accomplice, George, and an weight of the witnesses and the evidence Kirby entered the vehicle of the all, produced, part free to believe relinquish him and forced none of the evidence. personal property gun- various items of Valette, Commonwealth point. Appellant in further struck Black (citations (1992) quota- and head and forced to drive to various omitted). tion marks We will evaluate managed locations Erie before the victim evidence accordance with this standard. escape Appellant convenience store. companion and his then from fled the scene person robbery A commits the crime of Appellant in the victim’s car. was subse- a motor if a motor vehicle “he steals takes quently charged arrested and with various vehicle from another arising offenses out this incident.8 of that Appellant was of the above of- convicted possession of the motor vehicle.” 18 Pa. following jury fenses trial in December of 3702(a). presents § C.S.A. The instant case Appellant January was sentenced on appellate courts to the first occasion for the (7) aggregate 1997 to an term of seven so, interpret apply doing this statute. In (20) twenty years’ Appellant incarceration.9 principles governing we are mindful of the timely post-sentencing filed motions which statutory Specifically, construction. our ob- were denied the trial court. ject is to ascertain and effectuate the inten- timely appealed. Assembly. 1 tion of the General Pa.C.S.A. 1921(a). § of a statute are words
Appellant challenges sufficiency explicit, may we ascertain the General robbery relating of the evidence to his Assembly’s by considering, among motor vehicle intention conviction. (1) necessity occasion other matters: In determining whether the Common- (2) statute; the circumstances under proof, wealth has met its burden of the test (3) enacted; it the mischief to be [wjhether, which was applied viewing to be is: (4) remedied; attained; object light favorable to the most (5) Commonwealth, contemporaneous legislative history drawing all reason- 1921(c). Id., § able inferences favorable to the Common- the statute. We (4) 903(a). (10) 9.Appellant years § 3. 18 Pa.C.S.A. received four ten addition, robbery conviction. In sentences of 2902(a). § 4. 18Pa.C.S.A. (5) (l'/i) years to five were one and one-half conspiracy imposed for the § 5. 18 Pa.C.S.A. 2706. These were motor vehicle convictions. sentences other, consecutively directed to run to each thus 2701(a)(1). Pa.C.S.A.§ 6. 18 resulting aggregate in the above sentence. A probationary years sentence of five was fur- 3702(a). § 7. 18 Pa.C.S.A. imposed regard ther conviction restraint, but this sentence was di- for unlawful separated 8. Ms. later concurrently appellant's con- subsequently pled rected to run was arrested in Erie. She penalty spiracy was im- guilty charges sentence. No further that are not relevant to the remaining appeal. posed appellant's convictions. instant completion of the offense headings as an aid constru- utilize titles or Com- § of the owner.” taken from the ing a statute. Pa.C.S.A. Dantine, supra monwealth face, prohibits the its the statute On However, it is stealing of a motor vehicle. history pertinent legislative Review than the encompasses that it more evident precise nature of light on the sheds further a motor or unauthorized use of mere theft began as this offense. Section Assembly included the General pending before to a bill that was amendment the vehicle be taken requirement proposing the Assembly. In our General presence. person in their Salvatore, amendment, sponsor, Senator 3702(a), supra, Compare 18 Pa.C.S.A. car- deals with that “this amendment stated 3921(a) (defining theft as the 18 Pa.C.S.A. very important issue.” it is a jacking. think con- taking or exercise of unlawful *4 II, Senate, Legislative Vol. Journal with the property the of another trol over 1993).10 (June 8, It is thus No. at 945 thereof) deprive intent drafted, that, inartfully sec- apparent while 3928(a) § use (defining unauthorized C.S.A. criminalize the intended to tion 3702 was operation of an motor vehicle as the of a carjacking. known as conduct motor-propelled or other vehicle automobile owner). the consent of the of another without of an Carjacking is defined as the theft Moreover, Assembly in- the not General did by force or intimi- from its driver automobile clude this offense the section Collegiate Dic- Merriam Webster’s dation.11 it was dealing Code with theft and Crimes ed.1996). (10th previously As tionary 173 Instead, as a theft crime. section labeled indicated, taking the unlawful a theft involves “Robbery of Motor Vehi- 3702 was entitled property. control over or of unlawful exercise cle,” the was included the section of 3921(a). § Black’s See also 18 Pa.C.S.A. pertaining robbery, and was Crimes Code ed.1990) (6th (defining Dictionary 1477 Law felony degree, see as a of the first classified property taking personal of be- theft as the 3702(b), unlike the theft of- 18 Pa.C.S.A. consent, another, with longing to without fenses, graded the most serious of which the value of the deprive him of the intent degree, felony a of the second or third see use or appropriate it to the same and to 3903(a) (a.l). 18 Pa.C.S.A. taker). taking when A occurs benefit of the control possession, dominion or acquires one Supreme Court has defined rob Our Dictionary 1454 object. Black’s Law over an bery taking forcible as “the felonious and ed.1990). (6th a Stealing likewise connotes goods or mon from the of another of of anoth- taking personal property theft or ey any by putting value violence or consent, er, the or and with Dantine, without leave Pa. fear[.]” Commonwealth thereof. Id. at (1918). keep or make use intent 104 A. See (6th ed.1990) 1413. Dictionary Black’s Law taking of (defining robbery as the felonious and our the above definitions Given any arti property or other
money, personal history underlying the analysis the another, value, possession in the cle of intended to legislature we believe presence, and or from his immediate motor vehi the crime of define will, accomplished by means of against cle, taking or exercise carjacking, as the fear). complete if offense is “[T]he force or vehicle, from a motor control over pres are taken money goods] [the force, or fear. user, by intimidation its lawful putting in by of the owner violence ence prove therefore words, necessary for The Commonwealth it is not fear. In other impetus the enactment as the prominence and served anti-carjacking legislation). gained fol- Carjacking national Basu in lowing tragic death of Mrs. Pamela Television, Group Inc. v. State W. 1992. See 712, 714-715, a combi- carjacking derived from Maryland, Md.App. 11. The term hijacking. (1993) giving Merriam (describing car and the facts of the words nation (10th Dictionary Collegiate during carjacking and Webster's Basu’s death rise to Mrs. ed.1996). attention noting the case received national following elements to the com- cash a check at a convenience store. Id. As establish (1) stealing, taking result, mission of this crime: Country Black drove to another Fair or exercise of unlawful control over a motor accompanied store. Id. Black into vehicle; (2) pres- store, employee informed him where person in ence of that As that that he could not cash his check. Id. vehicle; result, appellant paid each for a few he and by accomplished must be the use of gas. worth of dollars’ force, of fear intimidation or inducement Bowser, Pennsyl- an officer Having in the victim. elucidated the nature Commission, accompa- crime, vania Fish and Boat and elements of the we must deter- Country mine whether the was sufficient to his fellow officers to the Fair nied sustain conviction for this offense. convenience store. N.T. Offi- 12/10/96 appellant cer Bowser observed testified that he thought something inside the store and parked Country outside a Fair conve- appel- was amiss. Id. at 7-8. He watched listening to nience store music when he saw store, appel- lant victim exit appellant’s accomplice, Kirby, walk placing lant his hand on the back of the his car. N.T. at 40 and 50-51. While 12/9/96 conversed, 44; Ms. victim’s neck. N.T. N.T. 12/9/96 passenger walked side of Black’s vehi- Appellant again admonished 12/10/96 *5 cle, opened the door and entered the vehicle. “try anything.” victim not N.T. to Appellant pulled gun Id. at 40 and 51. out a that, at 44. After Officer Bowser lost 12/9/96 jack.” and said “it’s a Id. at 40. After sight appellant Black. N.T. and 12/10/96 car, ordering Kirby get appel- Ms. in-the eye, lant Black in him struck told not to vehicle, pumping gas into While his “try nothing” and ordered to drive to the attempt decided to create a diversion pier. Kirby Id. 41 52. Ms. at and corrobo- escape. at 44-45 and 58. As a N.T. 12/9/96 testimony rated Black’s and indicated result, hard, gas cap he slammed the down appellant pulled gun out a and ordered the 44- thereby activating the car alarm. Id. at 62 victim drive. Id. at and 66. Appellant 45. was somewhat startled and route, appellant en informed the vic- While pretend- 45. Black got the vehicle. Id. at money. tim that he The victim re- wanted likewise ran to Bowser’s ed do but Officer plied money person, that he had no on his apprised him of the situation. vehicle and might get his but be able to some from 62; at 9- N.T. at 45 and N.T. 12/9/96 12/10/96 apartment. appel- Consequently, Id. at 41. Kirby Appellant 10. and Ms. then fled from apart- lant directed the victim drive to his appellant’s area in N.T. 12/9/96 arrival, Upon appellant ment. Id. his accom- 63; at 46 and N.T. 12/10/96 panied apartment that he the victim to the 41, Id. at 52-53 and shared with fiancée. that the above evidence was We find
78. Black told his fiancée that he needed appellant’s more than sufficient to sustain 41, money. Id. at 53-55 and 79. His efforts however, carjacking in unsuccessful, conviction. The this case effec appellant and were 42, tively appellant directed Black to leave. Id. at 55 and 79- occurred when entered vehicle, Appellant weapon then ordered Black to contin- displayed his and forced the driving in Erie. Id. at ue to various locations locations. The victim to drive to various drive, during point 42 and 55. At some require that a victim be statute does appellant took the victim’s wallet and various forcibly ejected from his vehicle or the driv pieces jewelry, some of which were later to occur. er’s seat order for of her recovered from Ms. at the time Rather, pursuant previous to the definitions 64-65, 68-69, 49, 75 arrest. and forth, necessary is that the ly set all that take or exercise unlawful defendant either low on fuel
Black discovered that he was operation control over the apprised appellant of this fact. Id. at 43. and presence, in his might further that he be able to from the driver and stated crime, specific given the facts unique of force or on this means intimidation.12 respectful- of this case. alternative, carjacking may In the ly dissent. having at the viewed occurred time of of a statute are clear When words escape. undisputed the victim’s It was ambiguity, all it is not free from letter of appellant trial threatened victim disregarded pretext pursu under gun compel compli with a struck him to 1921(b); Prevish ing spirit. its 1 Pa.C.S. ance with demands. Center, 192, v. Northwest 692 A.2d Medical by accompanying reinforced the victim’s fear (Pa.Super.1997). language stop advising him whenever made ambiguity, from a statute is clear and free all try only anything. him not to It was meaning as to any further deliberation ingenuity daring that the victim’s he Trucking Associa unwarranted. American escaping predations succeeded further tions, Scheiner, 450-54, Inc. sequence ran his car. from Given this (1986); A.2d Meier v. Male 849-50 events, it is victim evident was (Pa.Cmwlth.1996). ski, relinquish forced to and control of give to the This Court is constrained effect because his vehicle actions. meaning unambiguous obvious of clear and carjacking crime of then The consum statutory when are language; the words appellant the car and mated when took fled ambiguity, all clear and free from the letter from the scene. disregarded. of it is not to be Common manner, unpersuad- in this are Viewed we Patchett, Pa.Super. 252, wealth by appellant’s arguments ed that his conduct (1981). A.2d Rather, simple constituted theft. the evi- re- The words of the statute here under clearly dence demonstrates that any clearer. statute view could not be forcibly unlawfully took seized or control provides: the vehicle the victim and *6 Robbery § 3702. of motor vehicle presence. Because not appellant is entitled (a) person com- any relief, Offense defined. —A grant the we affirm the degree mits a first if he steals felony of the judgment of sentence. per- takes a or motor vehicle Judgment of sentence affirmed. person any of that presence son possession in of the other lawful JOHNSON, J., Opinion. Dissenting files a motor vehicle. JOHNSON, Judge, dissenting. terms, requires the By its the statute that victim, testimony pres- of the occur “in the employee The the the theft motor vehicle Commission, any in Fish and ence of other [the victim] Boat the possession motor The co-conspirator agreement are all in that the lawful of the vehicle.” victim, Black, testimony of the Thomas fled from his motor unrebutted vehicle, that been ran to and was was to the effect he had another vehicle seat- gasoline into the pumping car ed in the second vehicle before the defen- outside his (JTT) dant, Jury Transcript Trial George, fuel occupied John the driver’s seat car’s tank. 9, 1996, he had sped away. George December Black’s car and was gasoline, began he presence pumping time the finished not in Black’s at the car defendant, enacted, vehicle, requires enter his observed the was taken. The as vehicle, George entering the Black presence taken of’ the the car to be “in the John car, door, and he shut the robbery of a and then exited victim before the crime of motor by operated over to owned and be I must ran a vehicle vehicle can established. conclude Pennsylvania and Boat Fish Commission. George is to arrest of that entitled why logical a similar result should analogy hijacking reason An further illustrates this case, control suggest pertain carjacking, in a as in either point. It would ludicrous that forcibly acquired hijacker hijacking use of has been does not when a forces the vehicle occur operator right by who has pilot one no from his course an airline deviate possession. use or There no to its threat of violence other means. is testified that presence “[had] commissioners, seen the fish and started to in lawful of the motor vehi- get in the car and then ran.” Id. at 62. majority The cle.” concludes that car- “[t]he Bowser, employee Pennsylvania jacking effectively in case this occurred when Commission, Fish and Boat testified that displayed entered the Black “came at a pas- dead run weapon towards and forced the victim to drive to senger door of our car ... he stood various Id. at 920. I must re- locations.” passenger there in our door like he spectfully disagree. didn’t majority would ex- do, what to opened know and then he pand meaning clear of the statute to door, unlocked, which jumped in provide, addition, that the com- JTT, passenger side.” December pleted once an actor “exercises unlawful con- operation trol over the of the vehicle.” Id. at nothing 920. I support find the statute to produced There was no evidence this conclusion. George took the car victim Black. distances are not set While George, appellant, arguing, is not as testimony, forth from the one surmise assert, my colleagues that his conduct consti- feet, that the distance was more than a few trial, simple Following tuted a theft. jury based on testimony Bowser’s that the victim George robbery, was convicted of criminal “came at a dead run passenger towards the restraint, conspiracy, unlawful terroristic door of our car.” Black ran from his own threats, assault, simple robbery vehicle, unimpeded, and was seated only motor vehicle. The conviction that passenger front seat of the Fish and Boat George has appeal contested this George Commission vehicle when took the the conviction for of a motor vehicle. sped vehicle and off. I am unable to con- He contends that the elements as set forth clude, my colleagues, do that this consti- necessary support the statute a conviction George’s presence. tuted the vehicle in proven. agree, were not I on the basis that disagree need not my colleagues only by George the car was taken after Black 3702 was “intended to criminalize the escaped, had ran to the Fish and Com- Boat carjacking.” conduct known as Slip opinion jumped mission vehicle and inside that latter However, because the words chosen George got At the time that behind legislature are both clear and free from off, the wheel of Black’s car and drove any ambiguity, join my I cannot distin- longer George’s was no presence. Since *7 guished colleagues pursuing legislative the theft occur in history. Nor do I find the definition of “rob- conclude, I am constrained to on bery” helpful, appears inasmuch as the term facts, undisputed these George heading statute but crimes, guilty of a number of but not included the words of the statute itself. of a motor con- am Lopez, See Commonwealth v. 444 Pa.Super. strained to dissent. (1995) (statute 748-49 headings may in construing be considered
statute but the letter of a not to statute is
disregarded pretext pursuing under the
spirit).
My colleagues describe the statute here being “inartfully
under review as drafted.”
Maj. opinion They then turn to Mer- Collegiate Dictionary
riam Webster’s for a carjacking,
definition of and to Black’s Law
Dictionary for a definition of theft. Howev-
er, § 3702 stands on its own. It defines the
offense occurring when an actor “steals
takes a motor vehicle from another