Variance Between Crime Charged and Conviction/ 3° Robbery is not a Lesser Included Crime of 2° Robbery

 

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Commonwealth v. Brandon, 2103 PA Super 285, 11/6/13 (7 pages)

In the very, very early morning hours one late Fall in Philadelphia, Mr. Brandon got into a cab in Center City Philadelphia, and asked to be taken to Lansdale, The cabdriver, after ascertaining the distance, said the ride would cost over $70.00, and asked for payment in advance. When Mr. Brandon, claiming lack of funds, asked to be driven there with assurance of payment upon arrival at his destination, the cabdriver demurred. Mr. Brandon then told the Defendant to drive, and put his left hand in his pocket, telling the cabdriver not to call police, and threatened him bodily harm.   Believing Brandon armed, the cabdriver drove. Mr. Brandon then told the cabdriver to put his phone in a box on the seat.  A few blocks away the cabdriver saw two police cars, drove up to them, jumped out and told the police what was happening. After hearing the account the officers saw Mr. Brandon running away. When caught after a chase Mr, Brandon said he did not know why the cabdriver thought there was a robbery, and that he was not serious about having a gun, He did not have one when caught. Mr. Brandon said he was intoxicated, and the police did not argue with that claim.

At trial the Defendant essentially repeated his story. He was charged with 2° robbery and terroristic threats, but due to the trial court’s charging the jury on what it believed to be a lesser included offense, he was convicted of 3° robbery and terroristic threats. On appeal, Mr, Brandon claimed that if he could not be convicted of 3° robbery because it is not a lesser included crime of 2° robbery. 3° robbery requires proof that a defendant in the ccourse of a theft “physically takes or removes property from the person of another by force however slight.” 18 Pa.C.S. §3701(a)(1)(v).  2° robbery requires that a defendant, in the course of a theft, “inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury. “18 Pa.C.S. § 3701(a)(1)(iv). Because the taking of property is not required for 2° robbery,  3° robbery could not be a lesser included. The robbery conviction was vacated.

 

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