7 Mass. App. Ct. 9

December 13, 1978 - January 25, 1979

Suffolk County

Present: HALE, C.J., ROSE, & BROWN, JJ.

Pickpocketing does not constitute robbery merely because the victim has an awareness that the pickpocketing is taking place. [11-12]

At the trial of a defendant charged with unarmed robbery, there was sufficient evidence for the jury to infer that the taking of the victim's wallet from his pocket was brought about by "assault and putting in fear." [12]

INDICTMENT found and returned in the Superior Court on October 21, 1977.

The case was tried before Tamkin, J., a District Court judge sitting under statutory authority.

Brownlow M. Speer for the defendant.

Willie Ivory Carpenter, Jr., Assistant District Attorney, for the Commonwealth.

HALE, C.J. The defendant was tried by a jury and convicted of unarmed robbery (G. L. c. 265, Section 19) of seventeen dollars from the person of one Richard Lento. He has assigned as error the refusal of the judge to direct a verdict of not guilty on so much of the indictment as charged assault with intent to rob and robbery, on the ground that the Commonwealth's evidence disclosed, at most, larceny from the person. [Note 1]

The jury heard testimony from which it could have been found that Lento, his brother, and two friends had been walking together side by side through the Boston Common on the evening of August 12, 1977. While on a

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pathway near the bandstand, an area which is surrounded by a circular row of benches, they were approached from the rear by a group of four or five youths. The youths were talking in a "friendly fashion." The two groups "slowly merged together," with the youths forming a circle around Lento and his companions. The youths then separated Lento and his companions so that they were about eight to ten feet apart. One of Lento's companions, John Paquette, was outside the circle of benches, while the others were inside the circle, so that they formed the four corners of a square. There was a youth with each of Lento's companions. The defendant was with Lento.

The defendant leaned on Lento's back and pulled his wallet out of his left back pocket. Lento, upon feeling his wallet being removed, turned around, saw the defendant with his back turned toward him, and said that the defendant had taken his wallet. The defendant then turned around and handed the wallet back to Lento. Seventeen dollars which the wallet had contained were gone. Lento then observed another of the youths taking his friends' wallets. Lento testified that at the time of the incident [Note 2] he felt "kind of afraid."

Lento and his companions then ran away and telephoned the police from Park Square. Shortly thereafter, two police officers arrived in a patrol car. They drove Lento and his companions through the Common, where the defendant was seen standing on the bandstand and was identified by Lento as the person who had stolen his money.

The defendant concedes that the Commonwealth presented sufficient evidence to support a guilty verdict of the lesser included offense of larceny from the person (see G. L. c. 266, Section 25) but argues that there was insufficient

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evidence to support a conviction of robbery. See Commonwealth v. Novicki, 324 Mass. 461 , 467 (1949). He contends that the evidence presented nothing more than a case of pickpocketing. The ordinary pickpocket is guilty of larceny from the person, rather than robbery, because there is neither violence nor intimidation involved in the perpetration of the theft. Perkins, Criminal Law 282 (2d ed. 1969). The force used to bring about the theft is only that amount of force needed to lift and remove the property and is not of the class of violence essential to robbery. 67 Am. Jur. Robbery Section 27 (2d ed. 1973). 77 C.J.S. Robbery Section 19 (1952). 8 A.L.R. 359 (1920). Pickpocketing characteristically involves stealth and a lack of awareness of the taking by the victim. LaFave & Scott, Criminal Law Section 94 (1972).

The Commonwealth argues that the rule of Commonwealth v. Jones, 362 Mass. 83 (1972), makes pickpocketing the crime of robbery whenever the victim has an awareness that the pickpocketing is taking place and that, as Lento was aware of the theft at the moment of its commission, the defendant was guilty as charged. We disagree. In the circumstances of a purse snatching, Jones held that where the snatching or sudden taking of property from a victim is sufficient to produce awareness, there is sufficient evidence of force to permit a finding of robbery. Jones does not, however, stand for the proposition that awareness of the theft constitutes the essential difference between larceny and robbery. See Commonwealth v. Brown, 2 Mass. App. Ct. 883 (1974). It is the "exertion of force, actual or constructive, [that] remains the principal distinguishing characteristic of the offence." Commonwealth v. Jones, supra at 86. In Massachusetts prior to Jones, and in Kentucky, the jurisdiction from which the Jones rule was derived, cases of pickpocketing where the victim became aware of the taking have been treated as larceny from the person. Commonwealth v. Cronan, 155 Mass. 393 (1892) (victim felt a "tug"). Commonwealth v. Williams, 161 Mass. 442 (1894) (victim was "jostled").

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Jones v. Commonwealth, 115 Ky. 592 (1903). Bibb v. Commonwealth, 112 S.W. 401 (Ky. 1908). We decline the Commonwealth's invitation to extend the Jones rule to include pickpocketing, even if inartfully performed.

However, upon considering the evidence in the light most favorable to the Commonwealth (Commonwealth v. Kelley, 370 Mass. 147 , 150 [1976]; Commonwealth v. Nichols, 4 Mass. App. Ct. 606 , 612-613 [1976]), we are of the opinion that in the circumstances of this case there was sufficient evidence for the jury to infer that the taking of Lento's money was brought about by "assault and putting in fear." The inferences drawn by the jury "need not be necessary or inescapable, as long as they are reasonable, possible, and not unwarranted because too remote from the ordinary course of events." Commonwealth v. Cohen, 6 Mass. App. Ct. 653 , 658 (1978), and cases cited. There was evidence that Lento and his companions were followed, surrounded, and separated, that Lento did not resist the taking, and that he and his companions left the scene immediately after the thefts. That evidence warranted a finding by the jury that the defendant, and those acting with him, acted in a manner which would be reasonably expected to induce fear and that Lento's group acceded to their separation because of their apprehension of danger. They could also have found that Lento did not resist the taking of his wallet because of fear. Contrast Commonwealth v. Novicki, 324 Mass. at 465. Although there was a conflict in Lento's testimony before the jury on direct and cross-examination as to when he first felt afraid (see note 2, supra), whether his fear arose before the taking or afterwards was a question properly left for the determination of the jury. Commonwealth v. Jones, 362 Mass. at 89-90.

Judgment affirmed.


[Note 1] The defendant's only other assignment of error has been waived.

[Note 2] Lento testified on direct examination that he felt "kind of afraid" at the time of the theft, on cross-examination that he first felt afraid after the theft, and on voir dire that he first felt fear when approached by the group of youths. However, the statement made at voir dire was not made before the jury.