Com. v. Council, T. ( 2021 )

J-S05024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TORREY COUNCIL :
:
Appellant : No. 1063 EDA 2020
Appeal from the Judgment of Sentence Entered January 28, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011682-2010
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 18, 2021
Torrey Council appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his convictions, after
a nonjury trial, of theft by unlawful taking of movable property1 and receiving
stolen property (RSP).2 After review, we affirm based on the well-reasoned
opinion authored by the Honorable Carmella J. Jacquinto.
In her opinion, Judge Jacquinto sets forth the relevant facts and
procedural history of the case, which we adopt, as follows:
Louis Schifreen, the complainant [], owns a residential property
located at 1813 Hartel Avenue in Philadelphia that he ha[s] owned
since March of 1988. On June 23, 2010, [] Schifreen, who did not
reside at the property but let [Council] stay there with the
____________________________________________
1 18 Pa.C.S.A. § 3921(a).
2 18 Pa.C.S.A. § 3925(a).
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[agreement] that [Council] watch his things, went to the property
and noticed that numerous items[,] including various pieces of
antique furniture, a mantel clock, a record player and records, two
televisions and VCRs[,] and other items[,] were missing.
[Council] was the only person [Schifreen] permitted to reside at
the property. [Schifreen] ha[d] granted [Council] this permission
six or eight months prior to June 23, 2010[.] At the time when []
Schifreen granted [Council] permission to reside [at] the
residence, the items [] Schifreen noticed [had since gone] missing
were [originally] present inside the residence. [Schifreen] did not
give anyone permission to take those items, which he saw
previously anywhere from two to six months prior to June 23,
2010.
When [] Schifreen asked [Council] about the missing items,
[Council] stated that they had been moved to other locations
inside the residence, including the basement. Upon checking the
basement, [Schifreen] did not see any of his missing items.
Trial Court Opinion, 7/21/20, at 2 (internal citations omitted).
Following trial on January 28, 2020, Judge Jacquinto sentenced Council
to twelve months of probation3 and ordered him to pay $2,000 in restitution.
N.T. Trial, 1/28/20, at 46. On February 7, 2020, Council filed a post-sentence
motion. The trial court denied that motion on March 4, 2020, and Council filed
a direct appeal to this Court that same day. On May 26, 2020, the trial court
ordered Council to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Council complied on May 27, 2020, and the
trial court filed its Rule 1925(a) opinion on July 21, 2020. On appeal, Council
____________________________________________
3 For purposes of sentencing, the crime of RSP merged into the crime of theft
by unlawful taking. See Commonwealth v. Wilson, 458 A.2d 244, 245-46
(Pa. Super. 1983).
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raises the following issues for our review: whether the trial court committed
a reversible error of law
A. . . . by finding Council guilty of theft and receiving stolen
property based on insufficient evidence[;]
B. . . . in violation of [Council’s] right to due process by finding
[Council] guilty of theft and receiving stolen property in the
absence of evidence fixing the date of the offenses with
reasonable certainty[; and]
C. . . . by finding [Council] guilty of theft and receiving stolen
property in contravention to the weight of the evidence
presented[.]
Brief of Appellant, at 8-11.
With regard to Council’s sufficiency of the evidence claim, we note our
well-settled standard of review: we must determine whether the
Commonwealth established every element of each crime with which the
defendant was charged beyond a reasonable doubt. Commonwealth v.
Swann, 635 A.2d 1103, 1104 (Pa. Super. 1994). In doing so, we view the
evidence in the light most favorable to the Commonwealth as verdict winner,
giving it the benefit of all reasonable inferences to be drawn therefrom; we
will not re-weigh the evidence and substitute our judgment for that of the
factfinder. Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014).
Further, the Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt through wholly circumstantial
evidence. Commonwealth v. Glass, 200 A.3d 477, 490 (Pa. Super. 2018),
citing Melvin, supra at 39-40. The evidence need not, however, preclude
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every possibility of the defendant’s innocence. Id. The factfinder may resolve
any doubts surrounding a defendant’s guilt unless the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact may be drawn from
the combined circumstances. Id.
With respect to Council’s due process claim, the Pennsylvania Supreme
Court has established that due process requires the prosecution to fix the date
the offense was committed with reasonable certainty. Commonwealth v.
Benner, 147 A.3d 915, 920 (Pa. Super. 2016), citing Commonwealth v.
Devlin, 333 A.2d 888, 891 (Pa. 1975). However, the court allows the
prosecution flexibility in making this determination.
[t]he pattern of due process is picked out in the facts and
circumstances of each case. Due process is not reducible to a
mathematical formula. Therefore, we cannot enunciate the exact
degree of specificity in the proof of the date of a crime which will
be required or the amount of latitude which will be acceptable.
Certainly[,] the Commonwealth need not always prove a single
specific date of the crime. Any leeway permissible would vary with
the nature of the crime and the age and condition of the victim,
balanced against the rights of the accused.
Id. (internal citations omitted).
With regard to Council’s weight of the evidence claim, it is well-settled
that an appellant must first raise this claim with the trial judge. See
Pa.R.Crim.P. 607. An appellant must preserve his weight claim in a post-
sentence motion, by a written motion before sentencing, or orally prior to or
at sentencing. Id.; Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa.
Super. 2011). Here, Council’s weight of the evidence claim was properly
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preserved by a written post-sentence motion. See Council’s Post Sentence
Motion, 2/7/20, at 1.4
When reviewing a weight of the evidence claim,
[a]n appellate court cannot substitute its judgment for that of
the finder of fact . . . thus, we may only reverse the lower court’s
verdict if it is so [contrary] to the evidence as to shock one’s sense
of justice. Moreover, where the trial court has ruled on
the weight claim below, an appellate court’s role is not to consider
the underlying question of whether the verdict is against
the weight of the evidence, . . . rather, appellate review is limited
to whether the trial court palpably abused its discretion in ruling
on the weight claim.
Commonwealth v. Kim, 888 A.2d 847, 851 (Pa. Super. 2005) (internal
citations omitted).
Theft by unlawful taking requires that the defendant unlawfully took, or
exercised unlawful control over, another’s movable property with the intent to
permanently deprive that person thereof. See 18 Pa.C.S.A. § 3921(a). To
prove this offense, the Commonwealth must establish: (1) the unlawful taking
or unlawful control over moveable property; (2) that belongs to another; (3)
with the intent to permanently deprive the lawful owner. See
Commonwealth v. Young, 35 A.3d 54, 62 (Pa. Super. 2011), citing
____________________________________________
4 Council preserved his weight of the evidence claim in his post-sentence
motion, where he avers that: “The adjudication of guilt for [t]heft and [RSP]
is against the weight of the evidence and shocking to one’s sense of justice
where the evidence showed that the complainant was dishonest, unbelievable,
and inherently not credible in any respect so that no reasonable finder of fact
could rely on his testimony.” See id. (unnecessary capitalization omitted).
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Commonwealth v. Goins, 867 A.2d 526, 530 (Pa. Super. 2004).5 Receiving
stolen property is the intentional receipt, retention, or disposal of another’s
movable property while either knowing or believing it has been stolen, unless
the defendant received, retained, or disposed of the property with the intent
of restoring it to the owner.6 See 18 Pa.C.S.A. § 3925.
Instantly, Council argues that: (1) Schifreen merely speculated, and
the evidence failed to establish beyond a reasonable doubt, that Council stole
Schifreen’s property; (2) the Commonwealth failed to prove what property
____________________________________________
5 Council argues that the Commonwealth is “[un]able to establish exactly what
was taken, who took it, how it was removed from the house, if it all was taken
at the same time, or even where the property ended up, the Commonwealth
cannot even pinpoint, outside of a six-month window, where the property was
taken.” Brief of Appellant, at 10. Council further avers that there is no
evidence in the record establishing the existence of the missing property aside
from the testimony of Schifreen, “who was caught red-handed by the police
in a U-Haul truck in possession of items he admitted to stealing from
[Council].” Id.
6Council also argues that Schifreen’s following testimony was too unsound to
be the basis for a conviction beyond a reasonable doubt:
[Schifreen] wasn't sure when he purchased some of the items in
question, what exactly was stolen, when exactly the property was
stolen, or where it went. [Schifreen] also testified that, although
the alleged year of the commission of the crime was 2010, the
movable property at issue had been in the home at issue since
before 1994. [Schifreen] testified to the fact that he had moved
out of the house wherein the property was allegedly stolen in
1994. [Schifreen] also testified that as the years went by[,] he
went to that property to check on it and the movable property in
it, less and less to the point that he almost never went there.
Id. at 9-11.
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Council stole and in what manner he stole it; and (3) the Commonwealth did
not establish that Council committed either crime at any fixed point in time
with reasonable certainty. Brief of Appellant, at 9-11. Council claims,
therefore, that his convictions were against the weight of the evidence, based
on insufficient evidence, and in violation of his due process rights. Id.
After a thorough review of the record, the parties’ briefs, the applicable
law, and the well-reasoned opinion of Judge Jacquinto, we affirm on the basis
of the trial court’s opinion. Specifically, we agree with the trial court that there
was sufficient evidence to support Council’s convictions of theft by unlawful
taking and RSP. See Trial Court Opinion, 7/21/20, at 5-10 (finding
circumstantial evidence overwhelmingly established Council was responsible
for theft, because: Council had sole dominion and control over property; no
one else, including Schifreen, had access to property during period in
question; Council was only other person who knew of, and had access to,
stolen items; and Council manifested consciousness of guilt by “falsely
claim[ing] that he had moved the missing property to other parts of the
house”). See also Young, supra at 63 (facts sufficient to support elements
of theft by unlawful taking also support conviction for RSP). Further, we find
no abuse of discretion in the trial court’s rejection of Council’s weight claim.
See Trial Court Opinion, 7/21/20, at 3-5 (concluding that verdict did not shock
conscience, and court did not commit abuse of discretion, because Schifreen
testified truthfully and without hesitation); see also Commonwealth v.
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Clay, 64 A.3d 1049, 1055 (Pa. 2013), quoting Commonwealth v. Widmer,
744 A.2d 745, 753 (Pa. 2000) (“One of the least assailable reasons for
granting or denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new trial should
be granted in the interest of justice.”). Finally, we agree with the trial court
that no violation of Council’s due process rights occurred. See Trial Court
Opinion, supra at 10-11 (determining Commonwealth established time period
within which crimes occurred with reasonable certainty and that Council was
sufficiently informed about when crimes occurred).
We, therefore, rely on Judge Jacquinto’s opinion to affirm Council’s
judgment of sentence. We direct the parties to attach a copy of that decision
in the event of further proceedings.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2021
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Circulated 04/22/2 Z) 042,1 •lyJ
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
T RIAL DIVISION-CRIMINAL SECTION
COMMONWEALTH OF PENNSYLVANIA :PHILADELPHIA COTIRT
:OF COMMON PLEAS
CRIMINAL TRIAL DIVISION
•,. CP-51-CR-0011682 -2010
TORREY COUNCIL FILED
rJUL 21 2020
OPINION office of Judicial Records
RppealslpostTrial
JACQUINTO, J.
Torrey Council (hereinafter "Appellant") appeals from the order dated January 28, 2020,
imposing judgment of sentence. F'or the reasons set forth below, it is respectfully suggested that
the referenced order be affirmed..
CASE HISTORY
On January 28, 2020, Appellant was tried before this Court, sitting without ajury, and at
its conclusion was convicted of Theft by Unlawful. Taking-Movable Property, 18 Pa. C:.S. §392 1,
graded as amisdearieanor of the first degree, and "Theft-Receiving Stolen Property, 18 Pa-C-S' §
3925, graded as amisdemeanor of the second degree. Immediately following the recording of the
verdict, this Court unposed a sentence of twelve months reporting probation that included an
order requiring Appellant to pay 52000.00 in restitution. Following the imposition of sentence,
Appellant filed aPost-Sentence Motion, which. this Court denied on March 4, 2020. Appellant
thereafter timely filed acounseled notice of appeal from the judgment of sentence, and acourt-
ordered 1925(b) statement.
1
1eAC'TUAL RECITATION
Louis Schifreen, the complainant herein, owns a residential property located at 1813
Hnrtel Avenue in Philadelphia [hat he had owned. since March of 1988. (N.T. 9-10). On June
23, 2410, Mr. Schifreen, who did not reside at the property but let Appellant stay there with the
stipulation that Appellant Nvatch his things, event to the property and noticed that numerous items
including various pieces of antique Rwniture, a mantel clock, record player and records, t
,,vo
televisions and VCRs and other items were missing. (N.T. 10-11). Appellant was the only person
he permitted to reside at the property. He had granted Nina this pe Tnission six or eight months
prior to June 23, 2010, with the stipulation that Appellant watch his property. (N.T. II-14). At
the time when Mr. Schifreen granted Appellant pennission to reside inside the residence, the
items Mr. Scliifi-een noticed were missing were present. inside the residence. (N.T. 14). He did
not give anyone permission to take those items, which he saw previously an;-,vherc Born two to
six months prior to June 23, 2010. (N.T. 14).'
When Mr. Schifreen asked Appellant about the missing items, Appellant stated that they
had been moved to other locations inside the residence, including the basement. (N.T. 14-15).
upon checking the basement, he did not see any of his missing items. (N.T. 15).
DISCUSSION
In his 1925(b) statement, Appellant raised three issues that alleging that the guilty
verdicts were against the weight of the evidence, the Commonwealth presented insufficient
evidence to preserve his guilt, and that the guilty verdicts deprived him of due process of law. It
is the recommendation of this court that each of the claims be deemed to lack merit.
First, Appellant argues that verdicts are against the weight of the evidence because the
complainant falsely accused Appellant of the theft of the missing property after Appellant
2
accused him of taking his property. According to Appellant, the complainant's testimony should
not have been believed because lie is "dishonest, an admitted thief, and inherently not.
credible.... ,,
in Appellant's attack on the sufficiency of the evidence, he argues that the
Commonwealth failed to present evidence showing what items were stolen from Mr. Schi freen,
,vhcn
, and how they were taken, and who took fliem. He adds that the Commonwealth failed to
present evidence liming hinn to any of the elements of the crimes herein. Appellant's reasoning
was that the C;ornmonwcalth only presented the testimnny of the complainant who did not
witness the thefts, and admitted that other people had access to the house, and that the locks to
the premises were upgraded prior to the thefts because they were deemed to he too weak to
prevent abreak in.
East, Appellant asserts that the convictions constitute a violation of his right to due
process. hn support of this claim, lie argues that the Commonwealth did not fix the elate or dates
the crimes were committed with the reasonable certainty required by the. law,
With respect to Appellant's weight of the evidence claim, the standard in reviewing a
weight or the evidence claim is well-settled:
Appellate review of aweight claim is areview of the exercise of
discretion, not of the underlying question of whether the verdict is
against the weight of the evidence. Because the trial judge has had
the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying anew trial is the lower court's convict ion that the verdict
was or was not against the weight of the evidence and that anew
trial should be granted in the interest of .
justice.
3
Commonwealth v. Clav, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and citations ornittcd); see
also Conulionw'calth v. Sanchez, 36 .3d 24, 27 (Pa. 2011) (stating that "Li'Jelief on aweight of the
evidence claim is reserved for extraordinary circurrtstances, when thc .lury's verdict is so contrary
to the evidence as to shock one's sense of justice and the award of ane-
w trial is imperative so
thaat right may be give nanother opportunity to prevail." (citation omitted)).
The initial determination regarding the weight of the evidence is for the fact-finder.
Commonwealth v. Jaroweeld, 923 A.2d 425, 433 (Pa. Super. 2007). The trier of fact is free to
believe all, some or none of the evidence. Id. A reviewing court is not permitted to substitute its
judgment for that of the fact-finder. Commonwealth v. Small. 741 A.2d 666, 672 (Pa. 1999).
When the challenge to the weight of the evidence is predicated on the credibility of trial
testimony, appellate review of atrial court's decision is extremely limited. Unless the evidence is
so unreliable andlor contradictory as to make any verdict based thereon pure co iceture, weigh€
of evidence clainrs shall be rejected. Coninronwcalth v. Rosse€ti, 863 A.2d 1185, 1191 (Pa.
Super. 2004).
Applying the foregoing to the instant matter shows that the verdict did not shock the
conscience for the reasons proffered by Appellant. During the trial, the complainant candidly
admitted that after he discovered his property missing from the residence where he let Appellant
reside, he stole aused television from Appellant. (N.T. 34-35, 37). Appellant argues that this
admission required this Court sitting as fact finder, to reject his testimony in its entirety because
the admission showed the complainant to be "inherently not credible in any respect." Appellant's
1925(b) Statement, Issue 1. This Court disagrees with Appellant's premise because the
complainant testified trvtbfuily and without hesitation about his misdeed. Moreover, the
remainder of the complainant's testimony rang true including his testimony regarding the
4
missing iteins, permitting Appellant and only Appellant to reside inside his property, and that
Appellant falsely claimed that he fiad moved the missing property to other parts of the house
thereby manifesting consciousness of guilt. Therefore, for the foregoing reasons the verdict does
not shock the conscience and it is clear that this Court did not commit all abuse of discretion by
denying Appellant's weight of the evidence claim. Accordingly, it is suggested that Appellant be
denied relief on his first claim.
With regard to Appellant's sufficiency claim, the following standards apply thereto:
[T]hc critical inquiry on review of the sufficiency of the evidence
to support acriminal conviction... does not require acourt to ``ask
itself whether it believes that the evidence at the trial established
guilL beyond areasonable doubt. Instead, it must determine simply
whether the evidence believed by the facL-finder was sufficient to
support the verdict... [A]11 of the evidence and any inferences
drawn therefrom must be viewed in the light most favorable to the
Commonwealth as the verdict winner.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-1236 (Pa. 2007) (emphasis in original).
The Commonwealth need nut establish guilt to a mathematical certainty ; and it may
sustain its burden by means of tivholly eirctanstantial evidence, Commonwealth v. Duncan, 932
AN 226, 231 (Pa. Soper. 2007) (citation omitted). A reviewing court may not substitute its
judgment for that of the fact finder, and where the record contains support fur the convictions,
they may not be disturbed. Id. Lastly, the finder of fact is free to believe some, all, or none of the
evidence presented. Commonwealth v. IIarde, 894 A.2d 500, 804 (Pa. Super. 2006).
"[W]hen challenging the sufficiency of the evidence on appeal, the [a]ppcllant's [rule] 1925
statement must ``specify the element or elements upon which the evidence was insufficient' in
order to preserve the issue for appeal." Commonwealth v. Gibbs, 981 .A.2d 274, 281 (Fa. Super.
200}), appeal denied, 3 A.3d 670 (Pa. 2010) (cluoting Cornmonwcalth v. Willianis, 959 A.2d
1252, 1257 (Pa. Soper. 2008) ). ``'Stich specificity is of particular importance ill cases whcrc, as
5
here, the Appellant was convicted oflnultiple cringes each of which contains numerous elements
that the Commonwealth must Drove beyond areasonable doubt." Id. (_quoting Williams at 1258
11,9). A sufficiency analysis does not ccnisider the credibility, reliability, or weight of the
evidence. Commonwealth v. Bristow. 538 A.2d 1343, 1345-1346 (Pa. Super. 1988). Rather, a
sufficiency claim must accept the credibility and reliability of all evidence that supports the
verdict. C;omntonwealtb v. 13reakiron, 571 A.2d 1035 ; 1042 (Pa. 1990). As noted, a proper
sufficiency challenge accepts all of the Commonwealth's evidence and assesses whether, if
believed, it is stlfFcient to establish the defendant's guilt. Con rnonwcaltll v. Reed, 990 A.2d
1158, 1161 (1'a. 2010): Commonwealth v. Laird. 988 A.2d 618, 624-625 (Pa. 2010);
Commonwealth. v. Segida, 985 AN 871, 880 (Ila. 2009).
'``,1 person is guilty of Theft by 7TnlavN441 Taking if he unlawfully takes, or exercises
unlawful control over, movable property of another with intent to deprive hire thereof.``' 18
Pa.C.S.A. §3921(a). To sustain aconviction for receiving stolen property, the Commonwealth
must prove that: 1) the property was stolen; 2) defendant was in possession of the property; and
3) defendant knew or had reason to know that that the property was, stolen. 18 Pa.C.S.A. §3925;
Commonwealth v. Matthews, 632 A.2d 5701 572 (Pa. Super. 1993); Commonwealth v. Tillery.
611 A.2d 1245, 1248 (Pa.. Super. 1993). The defendant's mental state can be demonstrated
entirely through circurnstantial-evidence. Commonwealth v. Carson, 592 A.2d 1318, 1321
(Pa. Super. 1991).
Applying the foregoing to the instant matter, it is clear thclt the Commonwealth Proved
each element of the two theft convictions beyond areasonable doubt. First, the evidence showed
that Appellant had sole possession of the residence where the items were stored during the period
of time when the complainant testified that the ilcrzls were removal from the house. This
6
uvidence supported an inference that Appellant had sole dominion and control of the property
hoth before and allcr it had been removed fxoin the premises thereby rinderinining any claim
attacking the sufficiency of the verdicts based on alack of evidence directly showing who took
the stolen items. In addition, the record lacks any evidence that anyone other than Appellant
accessed the property during the period of time during which the property was removed from the
residence. Although Appellant complains that ethers had access to the residence, he is mistaken
for while there was testimony that members from the Philadelphia Department of Licenses and
Inspections may have been present at the residence, there is no evidence of record indicating that
any inspector entered the residence. At most, the evidence shows that the Department found
violations and not that they entered the promises. See N.T. 28, 29, 35.
In addition, there was no evidence that the complainant, the only other person who had
access to the property took the items. The evidence indicates that the complainant was rarely at
the property and it did not show that he removed the items he reported stolen or was responsible
for their removal from the property.
Similarly, kyjhile there was evidence indicating that the locks to the residence were
insufficient to meet city codes for rental property, there is no evidence that the existing locks
failed or that anyone other than Appellant and the complainant accessed the property.
In a similar case, circumstantial evidence was deemed suRicient to sustain convictions
for the crimes of Theft by Unlawful Taking and Theft by Receiving Stolen Property.
Cornmonwealth v. Haines, 442 A.2d 757 (Pa. Super. 1982). in Haines, the evidence included
proof that while Haines was in astore, astare ernployec was absent from main store area for 3
and 5minutes during which time Haines was alone. When the store olvner returned from hunch,
he noticed two chainsaws were missing. One of the chainsaws later was discovered being
7
repaired at garage, and that the person who brought it to the repair shop testified that Haines had
an unidentified man sell him the chainsaw. Id.
In sustaining Haines' two -Theft convictions, the Superior Court stated:
While it is true as t1}e trial court noted that there was no
evidence unquivocally placing the chain saws in the hands of
defendant, we hold that the Commonwealth, albeit
circumstantially ;sustained its burden to prove beyond areasonable
doubt that defendant was guilty of theft. A defendant is guilty of
18 Pa,C,S.A. s 3921(a) "if he unlawfully takes, or exercises
unla4vfttl control over, movable property of another with intent to
deprive him thereof." We hold that the trial court's verdict was
premised upon areasonable inference lirorn the evidence that the
saws were taken during the hour defendant was in the store and
from the evidence connecting defendant to the recovered save.
Since there was sufficient evidence to convict defendant of theft by
unlawful taking or disposition, it necessarily follows that the
evidence, was also sufficicnt to convict hirer of receiving stolen
property. Defendant is guilty of receiving stolen property, 18
Pa.C.S.A. s 3925(a), "if lie intentionally receives, retains or
disposes of movable property of another knowing that it has been
stolen, or believing that, it has probably been stolen."
Haines, 442 A.2d at 759-764.
Here, as in Haines, circumstantial evidence overwhelmingly establishes that Appellant
was the person responsible for the then of the items. Appellant lived alone in the residence and
obviously had access to them. Given the totality of the circumstances ; it is clear that the
Conunonwealth presented sufficient evidence to prove circumstantially not only that Appellant
tools the items but also that he possessed them thereafter knowing that they had been stolen.
Pursuant to Haines, the fact that no one testi.lied that they specificatly observed Appellant take
the itenrs stolen from the residence does not al''fect the verdicts because the inferences raised by
the evidence were more than sufficient to establish Appellant's guilt beyond areasonable doubt..
The instant case is also analogous in some ways to Commonwealth v. Robinson, 33 A.3d
89 (Pa. Super. 2011). therein., the Superior Court ruled the evidence sufficient to establish theft
8
because Robinson was the only person with access to a bedroom, in which the victim kept
jeNvelry. Robinson. 33 A.3d at 91, 95. Die victim's jewelry boxes were undisturbed before
Robinson entered the bedroom, and, after he left, she discovered that the boxes were open and
the jewelry was missing. Id.
As in Robinson, Appellant N,vas the only person, other than the complainant, who knew
about, and had access to, the stolen items. These facts support the inference that. Appellant took
the, complainant's possessions, Robinson, 33 A.3d at 95, and, in doing so, unlawfully possessed
them.
Finally, Appellant manifested consciousness of guilt where he falsely told the complainant
that lie had relocated the missing property to other places in the residence when he clearly had
not done so. In C:omnionwealth v. Glass, 405 A.2d 1236, 1242 (Pa. 1979), the defendant,
charged with murder, provided astatement in which he admitted many facts that placed hire at
the scene of the ci7ine before and after the victim's stabbing but in the same statement denied any
knowledge of how the victim had suffered her fatal injury. The Pennsylvania Supreme Court
Stated that it was settled law that adenial of guilt by the accused was admissible evidence and
held that the defendant's statement was merely "an attempt to exculpate himself by means of an
obvious falsehood" that the jury was permitted to consider as cons6oustiess of his guilt. Id. at
1242-43). Sec also ; Commonwealth v. Dollinan, 541 A.2d 319, 322 (Pa. 1988) (lying about
circumstances after crime showed consciousness of guilt) (lying about circumstances after crime
showed consciousness of guilt). Appellant's lie to the complainant added another inference
Supporting this Court's finding that Appellant stole the complainant's property. Parenthetically,
Appellant never reported that items were missing from the, property thereby also circumstantially
inculpating himself in the commission of the clime.
9
Accordingly, it is respectfully suggested that the evidence be detennincd to be sufficient
to sustain Appellant's two thcil convictions fur the reasons stated.
Finally, Appellant's last claim should be determined to lack merit because the
Commonwealth established with reasonable certainty the period of time within which the crimes
herein occurred. Appcllant was well aware of the period of time in which the Commonwealth
-,vas alleging that he took the complainant's property, and thus, there was no violation of
Appellant's due process rights.
PYirsuant to Pa.R.Crim.P. 560(B)(3), the Information signed by the attorney for the
commonwealth is valid and sufficient if it contains:
the date when the offense is alleged to have been committed if
the precise date is known.., provided that if the precise date is
not known or if the offense charges is a continuing onc, all
allegation that it was committed on or about any date within the
period fixed by the statute of limitations shall be sufficient.
The purpose of advising a defendant of the date of the alleged offisrlsc is to provide
sufficient notice so he or she can "meet the charges and prepare adefense." ConimODivealth v.
Brooks, 7A.3d 852, 858 (Pa,Super. 2010).
However, "due process is not reducible to a mathematical
formula.." and the Commonwealth does not always need to prove a
specific date of an alleged crime. Commonwealth v. Devlin, 460
Pa. 508, 515-516, 333 A.2d 888, 892 (1975). Additionally,
"indictments must be read in acommon sense manner and are not
to be construed in an overly technical sense." Commonwealth v.
Einhozn. 911 A.2d 960 ; 979 (Pa. Super. 2006) (quoting
Commonwealth v. Ofile, 503 Pa. 566, 588, 470 A.2d 61, 73
(i 983)). Permissible leeway regarding the date provided varies
with, inter a1ia, the nature of the cringe and the rights of the
accused. Einhorn, 911 A.2d at 978. See Pa.R.Crin1.P. 560(B)(3),
stating that it shall be sutricicnt for the Commonwealth to provide
in the inforniation, if the precise date, of all offense is not known,
a.n allegation that the offense was committed on or about any date
within the period fixed by the statute of limitations.
10
Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa. Supor. 2006). Case law also establishes "that
the ("ornmonwealth must be afforded broad latitude wncon attempting to fix the date of offenses
which involve acontinuous course of criminal conduct." Commonwealth v. G.o.M., Sr.. 926
A.2d 984, 990 (Pa. Super. 2007) (quoting Commonwealth v. Groff 548 A.2d 1237, 1242 (Pa.
Super.198 R)).
Tn Commonwealth v. Devlin ;333 A.2d 888, 892 (Pa. 1975) ;"our Supreme Court opted
for abalancing approach to resolve conflicting interests of the accused and the victims of crime
when it carne to the specificity required to be proven as to the time-frame of the alleged crime."
Comtmonwealth v. Fanelli, 517 A.2d 1241 ; 1204 (Pa. Super. 198 9) ("en bane: ).
Here, in addition to advising Appellant of the period of time during which the crimes
occurred, Appellant has never set forth how the lack of specificity in the information or
complainant's testiniony concerning the exact date or dates when the crimes occurred affected liis
ability to prepare adefense to the charges herein. This is not stu-prising because throughout the
period of time during which the Cornmonwcafth alleged the complainant's property was
removed front the residence, Appellant had sole possession and control of the property. He
clearly could not deny that he resided in the property or that the property that had been present
when he moved i
ll was not inside the residence. Moreover, even had he done so, the period of
time the Commonwealth alleged the crinic occurred was not so long such that it would have
prevented Appellant of investigating possible defenses. Thus, Appellant's rights were not
violated because he was sufficiently inforined about when the crime occurred, namely during the
last month of December of 2009 and the first six months or so of 2010. Therefore, he did not
suffer adue process violation and it is suggested that the prescnt issue be deemed lacking in
merit.
11
CONCLUSION
Based on the foregoing, it is respect.raily suggested that the order isriposing judgment of
sentence be affirmed.
BY THE CCUKI',
Date: -7'2-1 /7 0
armella Jacq} nto, J.
12
CIGHTIFICATION OF 4
S RVICF
1, James Molinari, Esquire, LaNv clerk to the Honorable Carmella lacgLdnto hereby
.. day oi``. ;' :''.2420, by first class snail, postage prepaid ,atrue
certifies that oil the _ . -}7 k
and correct copy of the attached opinioii was served upon the following:
Lawrence Goode, Esquire
Chief-Appeals Unit
Ot1'ice of the Philadelphia
District Attorney
Three South Penn Square
Philadelphia, PA 19107
Derek A. Steenson, Esquire
1500 Walnut. Street, Suite 812
Philadelphia, PA 19102
JaMe.S N4nlinX ,Esquire
I
13