Com. v. Thompson, R. ( 2015 )

J-S60027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RALPH THOMPSON
Appellant No. 1289 EDA 2013
Appeal from the Judgment of Sentence April 4, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007995-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 30, 2015
Ralph Thompson appeals from his judgment of sentence imposed by
the Court of Common Pleas of Philadelphia County following his convictions
for receiving stolen property1 and unauthorized use of a motor vehicle.2
Upon review, we affirm.
On June 1, 2012, Mr. Vitaliy Ignatovets was working as a department
manager at Central City Toyota and was responsible for receiving new cars
from the port. On that day, Ignatovets discovered that one of the new
cars—a Toyota Highlander with a VIN ending in 155825—was missing.
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1
18 Pa.C.S.§ 3925.
2
18 Pa.C.S.§ 3928.
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Ignatovets later learned that a new employee accidentally left the keys in
the ignition of the car.
Three weeks later, on June 22, 2012, at approximately 1:30 a.m.,
Philadelphia Police Officer Clifford Doorley stopped a vehicle for operating
without lights. Officer Doorley asked the driver, Elizabeth Rich, to provide
her license and registration. Rich provided her license, but not the
registration.
Thompson, who was sitting in the front passenger seat and visibly
intoxicated, told Officer Doorley that he owned the vehicle. Thompson
searched the glove compartment and the front of the vehicle for the
ownership paperwork. At the request of Thompson, Officer Doorley allowed
him to step out the vehicle and search the rear of the vehicle. Officer
Doorley observed Thompson rummage through personal items, including
male clothing, while he searched the back of the Toyota Highlander.
Thompson was unable to locate any ownership paperwork in the vehicle, and
told officer Doorley that the paperwork was likely at home.
Officer Doorley ran the vehicle’s VIN and discovered that the vehicle
was stolen. Additionally, Officer Doorley ran the vehicle’s license plate,
which disclosed that it was registered to a 1995 Buick. The stopped vehicle
was a Toyota Highlander.
Thompson was arrested and charged with receiving stolen property,
criminal conspiracy, and unauthorized use of a motor vehicle.
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At trial, Ignatovets testified that he did not know Thompson and did
not give him permission to use the Toyota Highlander. He also testified that
he did not give anyone permission to use the Toyota Highlander.
On January 24, 2013, at the conclusion of a non-jury trial, the court
granted Thompson’s motion for judgment of acquittal for the charge of
conspiracy, but found him guilty of the aforementioned offenses. On April 4,
2013, the court sentenced Thompson to two and one-half to five years of
incarceration, plus two years of reporting probation.
Following sentencing, Thompson filed a timely appeal, presenting the
following issues for our review:
1. Can the Commonwealth sustain its burden of proof to show
that [Thompson] knew or should have known that the car he
was a passenger in was stolen where he was intoxicated and the
Commonwealth failed to establish that the driver was not
allowed to be in possession of the car, or even that the car itself
was stolen?
2. Are the verdicts against the weight of the evidence where the
driver of the car defendant was riding in may have been
authorized to use the car and the car itself was not stolen?
3. Was the Commonwealth impermissibly allowed to introduce
rank hearsay into evidence to establish [Thompson] received a
ride home in his car?
Brief of Appellant, at 10.
In his first issue, Thompson argues that the Commonwealth failed to
present sufficient evidence to support his convictions. This Court reviews
the sufficiency of the evidence according to the following standard:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
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the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [this] test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Chine, 40 A.3d 1239, 1241-42 (Pa. Super. 2012).
At issue here is whether the Commonwealth proved the material
elements of the charged crimes. To convict Thompson of receiving stolen
property, the Commonwealth was required to prove beyond a reasonable
doubt that: (1) the car was stolen, (2) Thompson was in possession of the
car, and (3) Thompson knew or had reasonable cause to know that the car
was stolen. See Commonwealth v. Phillips, 392 A.2d 708, 709 (Pa.
Super. 1978). Similarly, to convict Thompson of unauthorized use of a
motor vehicle, the Commonwealth was required to prove that he: (1)
operated the car without the owner’s consent; and (2) knew or had reason
to know that he lacked permission to operate the car. See Commonwealth
v. Carson, 592 A.2d 1318, 1321 (Pa. Super. 1991).
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In his challenge to the sufficiency of the evidence, Thompson argues
that the Commonwealth could not convict him of receiving stolen property
and unauthorized use of a motor vehicle, because the Commonwealth did
not prove that he knew that the Toyota Highlander was stolen or that the
driver was not allowed to be in possession of the vehicle.
Here, the evidence, viewed in the light most favorable to the
Commonwealth, was sufficient to establish that the vehicle was stolen. At
the time of his arrest, Thompson was a passenger in a Toyota Highlander
operated by another individual. A police officer had stopped the vehicle for a
traffic violation and asked the driver for her license and registration. While
the driver provided her license, she was unable to produce the vehicle’s
ownership paperwork. At that time, Thompson told the officer that he was
the owner of the vehicle. Thompson then proceeded to search for the
registration, but to no avail. As a result, the police officer checked the
vehicle’s VIN, which disclosed that the vehicle was stolen. The officer also
checked the vehicle’s plates and discovered that the plates were registered
to a 1995 Buick, not a Toyota Highlander. The Commonwealth established
that the Toyota Highlander in which Thompson was a passenger was the
same vehicle that was reported stolen three weeks earlier.
Assuming that the Toyota Highlander in question was a stolen vehicle,
Thompson argues that he cannot be charged with receiving stolen property
and the unauthorized use of a motor vehicle based on the fact that he was a
passenger in a vehicle operated by another individual at the time of the
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traffic stop. See Commonwealth v. Scudder, 416 A.2d 1003 (Pa. 1980)
(defendant could not be charged with receiving stolen property solely
because he was a passenger in stolen vehicle).
Thompson further claims that his statement regarding ownership of
the vehicle is not enough to show that he was in possession of the vehicle.
See Commonwealth v. Dunlap, 505 A.2d 255, 257 (Pa. Super. 1985)
(evidence insufficient to support conviction for receiving stolen property
even though defendant admitted stolen vehicle belonged to him).
While Thompson is correct that presence inside of a stolen vehicle by
itself is not enough to support a finding of receiving stolen property,
Thompson overlooks the existence of other evidence. Unlike Scudder,
where there was “no showing that appellant exercised conscious control or
dominion over [the stolen vehicle and goods],” here the Commonwealth
established that Thompson exercised control over the vehicle by Thompson’s
own statements as to the ownership of the vehicle, as well as Thompson’s
conduct in freely rummaging through the vehicle for the ownership
paperwork. See Scudder, supra at 1005.
Additionally, in this case, Thompson’s statements to the police
regarding ownership were sufficient to prove possession. Unlike Dunlap,
where the Commonwealth did not provide evidence of the defendant’s
inability to provide ownership paperwork, here the Commonwealth presented
evidence showing that Thompson did not possess ownership paperwork.
See Dunlap, supra at 258.
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Next, in his second issue, Thompson argues that the verdict was
against the weight of the evidence. Before reaching the merits of that
question, we must determine whether the weight claim has been properly
preserved for consideration on appeal. Commonwealth v. Mikell, 968
A.2d 779, 780 (Pa. Super. 2009).
The relevant rule, Pennsylvania Rule of Criminal Procedure 607
provides as follows:
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for a
new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa. R. Crim. P. 607(A)(1)-(3).
Here, Thompson first raised his claim that the verdict was against the
weight of the evidence in his brief on appeal. As he did not comply with Rule
607, his claim is waived and we are precluded from engaging in appellate
review.
Lastly, Thompson contends that the trial court committed reversible
error when it allowed the Commonwealth to introduce hearsay testimony
regarding the occupation of the driver of the vehicle. 3 However, upon
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3
Decisions regarding the admissibility of evidence are within the discretion
of the trial court. Commonwealth v. Laich, 777 A.2d 1057, 1060 (Pa.
(Footnote Continued Next Page)
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examination of the record, Thompson objected to the testimony regarding
the driver’s occupation based on relevance, not hearsay.
To preserve a claim of error, a party must make “a timely objection,
motion to strike, or motion in limine,” as well as state “the specific ground
[for objection], unless it was apparent from the context.” Pa.R.E.
103(a)(1)(A)-(B).
The challenged testimony was given by the police officer who stopped
the vehicle in which Thompson was a passenger. Defense counsel suggested
on cross-examination that Thompson told the police that it was his vehicle to
help out “the nice lady” who was giving him a ride home. In response, the
Commonwealth tried to refute the claim, and the following exchange ensued
on redirect examination:
Q: Were you able to ascertain the profession of the woman that
was driving the car?
[Appellant’s Counsel]: Relevance, Your Honor.
The Court: Sustained unless you can give me some offer of
proof.
[ADA]: Your Honor, the offer of proof would be the nice person
that was driving the individual home isn’t such a nice person.
The Court: I’ll let it go since you offered up testimony that she
was a nice person.
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(Footnote Continued)
2001). Thus, this Court will not reverse the trial court's decision unless the
trial court abused its discretion. Id.-8-
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[ADA]: Were you able to ascertain the profession of the
individual that’s driving the car?
A: Yes.
Q: Okay. And what was that?
A: She was a bartender.
N.T. Trial, 1/24/13, at 24-25.
While Thompson now argues that the information regarding the
driver’s occupation is hearsay, Thompson did not articulate this specific
objection at trial. Instead, Thompson objected to the testimony based on
relevance. The situation here is similar to Commonwealth v. Parker, 104
A.3d 17, 29 (Pa. Super. 2014), where the appellant objected to the
admission of evidence at trial on the basis of relevance, but then claimed on
appeal that the trial court erred in admitting hearsay. Id. This Court denied
relief, noting, “[a]s Appellant failed to state the specific grounds of his
hearsay objection in the trial court, and the specific grounds were not
apparent from the record, the issue is not preserved for appellate review.”
Id. Similarly, here, Thompson did not preserve the issue. See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”). Thus, Thompson’s hearsay claim is
waived and we are precluded from review it.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2015
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