COMMONWEALTH of Pennsylvania

Linwood MOSES, Appellant
Superior Court of Pennsylvania
350 Pa.Super. 231,  504 A.2d 330 (1986)

 BROSKY, Judge.

 This appeal is from judgment of sentence imposed after a bench trial at which appellant was found guilty of third degree robbery, theft, and simple assault.


 On April 4, 1983 appellant robbed a ten year old boy of his candy money in a north Philadelphia grocery store.  Appellant was arrested after being confronted by the boy's grandfather, and admitted punching the boy and taking his money.  He was tried, found guilty, and sentenced to one and one-half to three years imprisonment for robbery.


 [p. 234] Appellant contends that his conduct amounted to no more than a de minimis infraction under 18 Pa.C.S.A. § 312. [n. 2]  This section allows the trial court to dismiss conduct that is "within a customary license" or that "did not actually cause or threaten the harm or evil sought to be prevented by the law ..."  Appellant's conduct, specifically the robbing of a ten year old child, cannot be shrugged off as a de minimis infraction.

 Appellant proposes that the application of § 312 rests solely on the monetary consequences of his conduct.  We do not accept such a narrow construction of this section.  At first glance, thirty-five cents may seem a trifling amount to support a robbery conviction.  However, the economic success of criminal activity is not the sole criterion of its criminality.

 Instantly, a child was the victim of the robbery.  To hold that a child's possessions are less important when establishing the existence of a crime would reduce children to second class citizenship.  No child selling or delivering newspapers would be secure if we were to relegate the incident which happened here to a de minimis slap on the wrist characterization.  This Commonwealth will protect a child and his meager possessions with the same vigilance that it protects an adult with great wealth. [n. 3]

3. Indeed, had an adult been placed in fear, and thus gave up thirty- five cents, the same conclusion would apply.

 [p. 235] We believe the legislature enacted 18 Pa.C.S.A. § 312 to apply to situations in which there was no harm done to either the victim or society.  Therefore, it is incumbent upon the trial court not to dismiss criminal conduct that is injurious to the victim or to society.

 In the case before us, society certainly suffered a harm by virtue of this violent act and, without doubt, society would not be benefited by allowing appellant to escape justice because his criminal conduct netted him only thirty-five cents.  Society has the right to see criminal behavior stopped and punished.  Failure to allow society its vindication would pervert our criminal justice system, lead to a decline in personal security and quality of life for us all.  Further, that a harm, emotional as well as economic, was inflicted on the victim is, we think, obvious.

 We find the holding of the trial court accurately reflects a proper application of 18 Pa.C.S.A. § 312.

 Judgment of sentence affirmed.