Com. v. Delgros, E. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD STEPHEN DELGROS
Appellant No. 1472 WDA 2015
Appeal from the Judgment of Sentence entered June 23, 2015
In the Court of Common Pleas of Mercer County
Criminal Division at No: CP-43-CR-0001496-2014
BEFORE: BOWES, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 13, 2016
Appellant, Edward Stephen Delgros, appeals from the judgment of
sentence the Court of Common Pleas of Mercer County entered June 23,
2015. Upon review, we affirm.
The trial court summarized the factual and procedural background as
follows:
In June of 2001, Robert Croyle was hired to install a doublewide
for [Appellant]. Croyle used two I-beams to move the
doublewide into position. The I-beams were described as being
lightweight magnesium, 20 plus feet long and had been
purchased for $1,400 a piece.
[Appellant] was not satisfied with the job. Croyle left the beams
and other materials behind with the plan to pick them up later.
Croyle returned a week or so later to retrieve the I-beams and
other materials. The items were not at the site. When Croyle
questioned [Appellant] as to their whereabouts, [Appellant]
indicated he did not know.
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Croyle reported the I-beams were missing to the Hermitage
Police Department.
Deputy Chief Eric Jewel of the Hermitage Police Department
went to [Appellant]’s residence. [Appellant] told him he did not
know what happened to the I-beams and gave Jewell permission
to look for them. Deputy Chief Jewell was unable to find them.
As a result, no charges were filed.
Several months later, [Appellant] asked his father to help him
hide the I-beams in the woods. [Appellant] identified the I-
beams as the ones Croyle had left.
Five to seven years later, [Appellant]’s father helped [Appellant]
retrieve the I-beams. [Appellant] used them to build a porch on
his house.
In April 2014, Danielle Hackett told the Hermitage Police that the
I-beams were on the property and they might be visible from a
certain vantage point. Deputy Chief Jewell went to the site, but
was unable to see them.
Shortly thereafter, [Appellant]’s father told Deputy Chief Jewell
[Appellant] had used them to build his porch.
Deputy Chief Jewell went to the residence and saw I-beams in
the porch roof in plain view. He obtained a search warrant.
Pursuant to the warrant, photographs were taken and a sample
of the beams [was] taken.
The sample was tested and showed that the beams to be made
of aluminum.
When confronted with the fact the I-beams were aluminum,
Croyle indicated he thought they were magnesium, but they
could have been aluminum. Croyle did, however, identify the I-
beams in the photo taken by Deputy Chief Jewell as the I-beams
that went missing in 2001, based on the holes in them.
A criminal complaint was filed against [Appellant] on August 20,
2014, charging him with Receiving Stolen Property, F-3.
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A jury trial in this matter commenced on April 16, 2015. A
verdict of guilty on the sole count was returned on April 17,
2015.
...
[Appellant] was sentence on June 23, 2015, to pay restitution in
the sum of $2,800.00 and to pay a fine of $15,000.00.
Trial Court Opinion, 9/2/15, at 1-3 (citations to record omitted).
On appeal, Appellant raises the following issues:
I. Whether the lower court erred by failing to dismiss the
criminal charge as the applicable statute of limitations for
the offense of receiving stolen property as a felony of the
third degree, expired prior to the Hermitage Police
Department [] securing the arrest warrant dated August
20, 2014[.]
II. Whether the evidence presented by the Commonwealth
was insufficient to sustain the verdict for receiving stolen
property as a felony of the third degree[.]
III. Whether, in evaluating the weight of the evidence
challenge, the lower court committed an abuse of
discretion by failing to engage in a meaningful analysis of
the physical evidence as it contradicted the testimony
presented in support of the verdict[.]
IV. Whether the lower court committed legal error by
concluding that the ineffective assistance of counsel claims
raised in the post-sentence motion were by nature
collateral claims and Appellant was ineligible for review[.]
Appellant’s Brief at viii-ix.
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In his first claim, Appellant argues the trial court erred in not finding
that the statute of limitations barred the instant prosecution.1 Appellant
acknowledges that receiving stolen property “can, and frequently is, a
continuing offense.” Appellant’s Brief at 11. According to Appellant, the
continuing offense rationale is designed to prevent criminals from
“benefit[ing] from hiding a crime so well that no one knows they committed
it.” Id. However, he adds that, under the circumstances of the case, the
rationale above described is not present because the instant crime was a
complete offense when the police learned that the property was stolen and
who stole it. Id. According to Appellant, the investigators’ failure to pursue
the investigation does not operate to extend the five-year statute of
limitations. Id. Similarly, Appellant argues that his “alleged concealment of
the property at issue” does not extend the statute of limitations. Id. We
disagree.
It is well-established that receiving stolen property is an ongoing
offense, which continues as long as the perpetrator retains possession of the
stolen property. See, e.g., Commonwealth v. Farrar, 413 A.2d 1094,
1098 (Pa. Super. 1979) (the language of the statute defining the crime of
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1
A question regarding the application of the statute of limitations is a
question of law. See Commonwealth v. Russell, 938 A.2d 1082, 1087
(Pa. Super. 2007). “Where the petitioner raises questions of law, our
standard of review is de novo and our scope of review plenary.”
Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa. Super. 2013).
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receiving stolen property makes the offense an ongoing or continuing one);
see also Commonwealth v. Hawkins, 439 A.2d 748, 752 (Pa. Super.
1982) (retention of stolen property is a “continuing” offense which does not
terminate until the stolen property is taken from the accused). At the time
of the filing of charges against Appellant, he continued to have possession of
the stolen I-beams. Accordingly, the statute of limitations does not bar the
instant prosecution.
Regarding the police officers’ alleged knowledge of the identity of the
culprit, the trial court noted: “The fact officers of the Hermitage Police
Department suspected [Appellant] of stealing the I-beams in 2001 and
investigated the alleged theft is irrelevant for purposes of the Statute of
Limitations in this case. The I-beams were not located and the officers did
not have a legal basis to charge him.” Trial Court Opinion, 9/2/15, at 4
(emphasis added). We agree.
Next, Appellant’s reliance on Sections 5552(b)(1) and/or 5552(c) of
the Judicial Code to suggest that the statute of limitations bars the instant
prosecution is misplaced. See 42 Pa.C.S.A. §§ 5552(b)(1), 5552(c)
(relating to statute of limitations for offenses other than those listed in
Section 5551). Indeed, neither section directly addresses the issue raised
here. Interestingly, however, Appellant fails to mention that under Section
5552(d), which specifically deals with continuing offenses: “An offense is
committed when every element occurs, or, if a legislative purpose to prohibit
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a continuing course of conduct plainly appears, at the time when the course
of conduct . . . is terminated.” 42 Pa.C.S.A. § 5552(d) (emphasis added).
Finally, Appellant’s reliance on Commonwealth v. Cardonick, 292
A.2d 402 (Pa. 1972) for the general proposition that the statute of
limitations must be construed liberally in favor of the accused is also
misplaced. Cardonick dealt with the tolling of the statute of limitations in
connection with invalid indictments. There is no issue of tolling here. The
only issue here is when the offense of receiving stolen property was
committed. As noted, Section 5552(d) specifically provides that continuing
offenses, such as receiving stolen property, are completed when the conduct
constituting the crime is terminated.
Next, Appellant argues the evidence was insufficient to prove he
committed the crime of receiving stolen property.2 Specifically, Appellant
argues the Commonwealth failed to prove the property at issue was stolen
because the physical description of the stolen property provided by the
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2
In Commonwealth v. Mattison, 82 A.3d 386 (Pa. 2013), our Supreme
Court reiterated:
In reviewing the sufficiency of the evidence, we examine
whether the evidence admitted at trial, and all reasonable
inferences drawn therefrom, viewed in the light most favorable
to the Commonwealth as verdict winner, support the jury’s
finding of all the elements of the offense beyond a reasonable
doubt. The Commonwealth may sustain its burden by means of
wholly circumstantial evidence.
Id. at 392 (citation omitted).
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witness did not match the property recovered from Appellant. The argument
is specious.
As correctly noted by the trial court, the mere fact that victim was
wrong about what the I-beams were made of, and the fact of how long they
were, does not negate the crime of receiving stolen property. If anything,
the discrepancy may affect the weight of the evidence, not the sufficiency.
At any rate, the record is sufficient to prove that the property was in fact
stolen. “In the case at hand, the evidence established that [Appellant] stole
[victim]’s I-beams in 2001, based on his admission to his father.
[Appellant] had the [I-beams] and then used them to build a porch onto his
residence.” Trial Court Opinion, 9/2/15, at 5.
Next, Appellant argues the Commonwealth failed to provide sufficient
evidence of the value of the stolen property. Specifically, according to
Appellant, the Commonwealth failed to produce evidence of the fair market
value3 of the property at the time and place it was stolen. Appellant’s Brief
at 19. Additionally, Appellant argues that “under no circumstances should
the value be based upon the amount of money [victim] paid for the
[property].” Id. at 20.
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3
“Market value has been defined as the price which a purchaser, willing but
not obligated to buy, would pay an owner, willing but not obligated to sell[.]”
Commonwealth v. Hanes, 522 A.2d 622, 625 (Pa. Super. 2007).
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Appellant fails to recognize that “[t]estimony of the owner . . . is
admissible to establish the market value of the stolen property.” Hanes,
522 A.2d at 625. Here, the victim testified he paid $2,800 for the property.4
The evidence, therefore, is sufficient to prove that the value of the stolen
property exceeded $2,000.00. As such, the crime was properly graded as a
felony of the third degree. See 18 Pa.C.S.A. 3903(a.1).
Next, Appellant argues the conviction is against the weight of the
evidence. Essentially, Appellant argues the trial court abused its discretion
in not weighing in his favor the inconsistencies between the physical
description of the property as provided by the victim and the actual
characteristics of property recovered from Appellant.
It is not our role to determine whether the conviction is against the
weight of the evidence. On appeal, we determine whether the trial court
abused its discretion in denying his challenge. Commonwealth v.
Widmer, 744 A2d 745, 753 (Pa. 2000). Based on the evidence in the
record, and the trial court’s explanation of the denial, we conclude the trial
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4
Appellant argues that the amount paid by victim to acquire the property is
not a proper measure of the value because victim mistakenly believed he
purchased magnesium beams as opposed to aluminum beams. Nowhere
does Appellant explain how this error by victim affected the price he paid for
the property, which is a proper method for determining the value of the
stolen property. Additionally, as articulated, the challenge goes to the
weight of evidence, not the sufficiency.
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court did not abuse its discretion in denying Appellant’s weight of the
evidence challenge.
Finally, Appellant argues that the trial court erred in not entertaining
his ineffective assistance of counsel (IAC) claims. Specifically, Appellant
argues that under Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013)
said claims were reviewable. The trial court rejected Appellant’s request on
the basis that he was not eligible for collateral relief because he was
sentenced to a fine.
The Holmes Court reiterated the general rule that claims focusing on
counsel’s performance presumptively should await collateral review, with
two exceptions:
First, we appreciate that there may be extraordinary
circumstances where a discrete claim (or claims) of trial counsel
ineffectiveness is apparent from the record and meritorious to
the extent that immediate consideration best serves the
interests of justice; and we hold that trial courts retain their
discretion to entertain such claims.
....
Second, with respect to other cases and claims, including cases
such as Bomar[5] and the matter sub judice, where the
defendant seeks to litigate multiple or prolix claims of counsel
ineffectiveness, including non-record-based claims, on post-
verdict motions and direct appeal, we repose discretion in the
trial courts to entertain such claims, but only if (1) there is good
cause shown, and (2) the unitary review so indulged is preceded
by the defendant’s knowing and express waiver of his
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5
Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003).
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entitlement to seek PCRA review from his conviction and
sentence, including an express recognition that the waiver
subjects further collateral review to the time and serial petition
restrictions of the PCRA. In other words, we adopt a paradigm
whereby unitary review may be available in such cases only to
the extent that it advances (and exhausts) PCRA review in time;
unlike the so-called Bomar exception, unitary review would not
be made available as an accelerated, extra round of collateral
attack as of right. . . . This exception follows from the
suggestions of prior Court majorities respecting review of prolix
claims, if accompanied by a waiver of PCRA review.
Holmes, 79 A.3d at 563-64 (footnotes omitted).
Thus, under Holmes, claims of ineffective assistance of counsel may
be reviewed by a trial court if (i) the ineffectiveness is apparent from the
record and meritorious such that immediate consideration best serves the
interests of justice or (ii) if (1) there is good cause shown, and (2) the
unitary review so indulged is preceded by the defendant’s knowing and
express waiver of his entitlement to seek PCRA review from his conviction
and sentence.
Appellant claims, without much explanation, that he would be entitled
to a review of his IAC claims under either test. Appellant’s Brief at 26. We
disagree.
Regarding the first test under Holmes, Appellant suggests that trial
counsel should have challenged the underlying search warrant and the
Commonwealth’s determination of the stolen property’s value. Appellant
claims these “errors” are apparent from the record. N.T. Post-Sentence
Motions Hearing, 8/3/15, at 17-18. However, the record is devoid of any
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evidence of ineffectiveness, unless allegations of ineffectiveness amount to
evidence of ineffectiveness. Id. Of course, they do not.
Regarding the second test under Holmes, Appellant fails to recognize
that the test presumes that Appellant is entitled to PCRA review of his
conviction and sentence. As also acknowledged by Appellant, however,
Appellant is not entitled to PCRA relief.6 Accordingly, Appellant did not meet
the second test.
Finally, Appellant argues that, absent the opportunity to challenge his
trial counsel ineffectiveness at this stage, he would be denied his right to
assert his constitutional right to competent representation, which constitutes
a denial of his procedural due process. Appellant’s Brief at 26-28.
The right to challenge counsel’s effectiveness is not absolute. Indeed,
it is well-established that there is no due process right to non-custodial
collateral reviews. Commonwealth v. Turner, 80 A.3d 754, 764-67 (Pa.
2013).7 Appellant was sentenced to pay a fine, which makes him not eligible
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6
See Commonwealth v. Reigel, 75 A.3d 1284, 1288-1289 (Pa. Super.
2013) (appellant, who was sentenced to pay fine and costs only, not eligible
to obtain PCRA relief); Commonwealth v. Fisher, 703 A.2d 714 (Pa.
Super. 1997) (PCRA precludes relief for petitioners whose only sentence is a
fine).
7
Relying on Holmes, Appellant argues he is entitled to a hearing on trial
counsel’s ineffectiveness, regardless of the PCRA eligibility requirements.
Appellant’s Brief at 26. Appellant misreads Holmes. Holmes did not create
an additional exception to the general rule under Grant, nor did it modify
the PCRA eligibility requirements.
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for collateral relief on his ineffective assistance of counsel claim. See
Reigel, supra; Fisher, supra.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2016
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