Com. v. Burnsworth, M. ( 2015 )

J-S32035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MAX BURNSWORTH, :
:
Appellant : No. 2008 WDA 2014
Appeal from the Judgment of Sentence entered on November 21, 2014
in the Court of Common Pleas of Fayette County,
Criminal Division, No. CP-26-CR-0001255-2014
BEFORE: SHOGAN, OLSON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 15, 2015
Max Burnsworth (“Burnsworth”) appeals from the judgment of
sentence imposed after a jury convicted him of receiving stolen property.1
We affirm.
The trial court summarized the relevant facts underlying this appeal in
its Pa.R.A.P. 1925(a) Opinion; we incorporate the court’s recitation herein by
reference. See Trial Court Opinion, 2/13/15, at 2-4.
At the close of trial on November 5, 2014, the jury found Burnsworth
guilty of receiving stolen property. On November 21, 2014, the trial court
sentenced Burnsworth to serve 11½ to 23 months in the Fayette County
Prison, and ordered him to pay $2,000 in restitution to the victim of the
1
18 Pa.C.S.A. § 3925(a).
J-S32035-15
theft, Ronald Martray (“Martray”). Burnsworth timely filed a Notice of
Appeal.
On appeal, Burnsworth presents the following issue for our review:
[Whether] the Commonwealth did not present evidence beyond
a reasonable doubt that [Burnsworth] was guilt[y] of receiving
stolen property[,] in that the testimony of [Martray] was
contradicted by another Commonwealth witness[,] and the jury
would have to speculate on facts to base their verdict[?]
Brief for Appellant at 7 (capitalization omitted).
We apply the following standard of review when considering a
challenge to the sufficiency of the evidence:
The standard we apply … is whether[,] viewing all the evidence
admitted at trial in 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
the above test, we may not weigh the evidence and substitute
our judgment for [that of] 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 finder 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
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Burnsworth argues that the evidence presented by the Commonwealth
was insufficient for the jury to find, beyond a reasonable doubt, that he was
guilty of receiving stolen property. Brief for Appellant at 11-12. Burnsworth
contends that the jury’s verdict was “based on speculation,” id. at 12, in
light of conflicting Commonwealth testimony. See id. at 11 (arguing that
“the jury was presented with the testimony of … Martray … and his son,
Brandon Ozorowski [“Ozorowski”]. There is conflicting testimony as to what
items were removed from the truck and what items were identified by both
[Martray and Ozorowski].”).
In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly addressed
Burnsworth’s claim, set forth the relevant law, and determined that there
was sufficient evidence to support Burnsworth’s conviction of receiving
stolen property. See Trial Court Opinion, 2/13/15, at 5-9. The record
supports the trial court’s sound rationale and determination, and we affirm
on this basis in rejecting Burnsworth’s sufficiency challenge. See id. As an
addendum, even if there were conflicts in the trial testimony presented by
Martray and Ozorowski, it was solely within the province of the jury to
resolve such conflicts and weigh the evidence. See Commonwealth v.
Brown, 52 A.3d 1139, 1163 (Pa. 2012); see also id. at 1164 (stating that
“in applying th[e] standard [of review concerning sufficiency of the evidence
challenges], a reviewing court faced with a record of historical facts that
supports conflicting inferences must presume – even if it does not
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affirmatively appear in the record – that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that resolution.”
(citation and quotation marks omitted)). We may not substitute our
judgment for that of the jury or re-weigh the evidence. Melvin, supra.
Because we conclude that the trial court properly rejected
Burnsworth’s challenge to the sufficiency of the evidence, we affirm his
judgment of sentence.
Judgment of sentence affirmed.
Shogan, J., joins the memorandum.
Olson, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2015
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IN THE COURT OF COMMON PLEAS. OF FAYETTECOUNTY,PENNSYLVANIA
CRIMINALDMSION
COMMONWEALTHOF PENNSYLVANIA
vs. No. 1255 of 2014
MAXGRANTBURNSWORTH
Defendant.
Pa. R.A.P. 1925{b) Opinion
Linda R. Cordaro) Judge
Before the Court is the "Concise Issue under Pa.R.A.P. 1925(b)" filed on
December 11, 2014 by Appellant, Max Grant Burnsworth, hereinafter "Appellant".
Following a jury trial Appellant was convicted of Receiving Stolen Property' on
November 5, 2014. On November 21, 2014, Appellant was sentenced to incarceration in
the Fayette County Prison for a period of not less than eleven and one-half (11 112) and
not more than twenty-three (23) months with credit for time served from May 16, 2014
until November 21, 2014. Appellant was also ordered to pay restitution in the amount of
two-thousand ($2000.00) dollars to the victim, Ronald Martray. Appellant thereafter
filed a timely appeal from judgment of sentence with the Superior Court.
1
18 Pa.C.S. § 3925(a) [F3]
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FINDINGS OF FACT
On or about October 4, 2013, Mr. Ronald Doppelheuer, a mechanic and
proprietor of Dopp's Garage.located at 710 East Crawford Avenue, Connellsville, Fayette
County, Pennsylvania, arrived at his garage in the morning hours to find that a vehicle
was missing from his lot. The missing vehicle was a green 1999 Ford Ranger pick-up
truck that Mr. Doppelheuer had received from Mr. Ronald Martray in order to repair an
issue with the engine overheating. Mr. Martray provided Mr. Doppelheuer with the one
and only key to the vehicle. Mr. Doppelheuer noticed pieces of broken glass around the
area where Mr. Martray's vehicle was parked. Mr. Doppelheuer contacted Mr. Martray
to ascertain whether Mr. Martray had retrieved the vehicle himself. After learning Mr.
Martray had not retrieved the vehicle, Mr. Doppelheuer contacted the Pennsylvania
State Police to report the vehicle stolen. Pennsylvania State Police Trooper Cameron
Craig responded to Dopp's Garage where he interviewed Mr. Doppelheuer and Mr.
Martray and filed an incident report.
On October 26, 2013, Trooper Craig recovered the vehicle in a wooded
area adjacent to Wills Road and Isabella Road Extension in Connellsville Township,
Fayette County, Pennsylvania. Trooper Craig observed a green Ford Ranger pick-up
truck similar to the description of Mr. Martray's, and he used the vehicle identification
number or "VIN" to confirm that said truck was the same one reported stolen. Trooper
Craig observed that the vehicle had been "stripped," in that several parts of the interior
and exterior of the vehicle had been removed. Further, the driver's side window had
been broken and the steering column and ignition were damaged. Trooper Craig then
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notified Detective William Hammerle of the Auto Theft Task Force for the Connellsville
Police Department regarding the stolen vehicle and its recovery.
Detective Hammerle contacted Detective Paul Koropal with the Allegheny
County District Attorney's Office-Western Regional Auto Task Force to assist in the
investigation. Both Detectives investigated the vehicle after it had been towed to
Burnworth's Garage2 in Uniontown. Detective Koropal investigated the vehicle, noting
several parts missing, including a diamond-plated toolbox Mr. Martray described as
being attached to the bed of the 1999 Ford Ranger.
After receiving information that Appellant may have been responsible for
the theft, Detectives Koropal and Hammerle, along with other members of the Auto
Theft Task Force, began surveillance on Appellant's residence, as well as his
grandparents' residence on October 28, 2013. From a nearby alleyway, the Detectives
observed what appeared to be a diamond-plated toolbox, similar to that described by
Mr. Martray, located in the truck bed of a 1994 red Ford Ranger parked in Appellant's
garage. They also observed a man, later identified as Appellant, performing mechanical
work on the red Ford Ranger.
On November 6, 2013, the Detectives interviewed Appellant's father,
Edward Burnsworth, regarding the location of his son Max, the Appellant, and Edward
Burnsworth gave consent to search the detached garage containing the red Ford Ranger.
Inside the garage Detectives observed a radiator and fan shroud underneath a work
bench. Detective Koropal photographed the parts and contacted the victim's two sons,
Brandon and Shawn Ozorowski, who verified that the radiator and fan shroud were the
2 '
NOTE: "Burnworth Garage" in Uniontown is not the same garage owned by Appellant. The similarity in names is
coincidental only.
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same previously affixed to their father's stolen Ford Ranger truck. Appellant's red Ford
Ranger was seized and transported to the Connellsville Police Department, where
Brandon and Shawn Ozorowski further identified several other parts that had been
stolen from their father's vehicle.
Following the investigation, Detective Koropal filed charges of Receiving
Stolen Propertya and Tampering with Public Records or Informations.
DISCUSSION
The Appellant's Concise Issue under Pa.R.C.P. 1925(b) is as follows:
ISSUE NO. 1: THE COMMONWEALTH DID NOT PRESENT EVIDENCE
BEYOND A REASONABLE DOUBT THAT THE APPELLANT WAS GUILTY
OF RECEIVINGSTOLEN PROPERTYIN THAT THE TESTIMONY OF THE
ALLEGED VICTIM OF WHAT WAS MISSING WAS CONTRADICTED BY
ANOTHERCOMMONWEALTH WITNESS AND THE JURY WOULD HAVE
TO SPECULATE ON THE FACTS TO BASE THEIRVERDICT.
The standard when reviewing the sufficiency of the evidence is whether the
evidence at trial, and all reasonable inferences derived therefrom, when viewed in the
light most favorable to the Commonwealth as verdict winner, are sufficient to establish
all elements of the offense beyond a reasonable doubt. Com. v. Stevenson, 894 A.2d
759, 773 (Pa.Super.2006) quoting Com. v. Smith, 863 A.2d 1172, 1176 (Pa.Super.2004).
The Court may not weigh the evidence or substitute its judgment for that of the fact-
finder. Id. Additionally, the evidence at trial need not preclude every possibility of
innocence, and the fact-finder is free to resolve any doubts regarding a defendant's guilt
' 18 PaC.S. § 3925(a) [F3]
'18 Pa.C.S. § 4911 (a) [M2] **Uismissed July 17, 2014**
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unless the evidence is so weak and inconclusive that as a matter of law no facts
supporting a finding of guilt may be drawn. Id. The fact-finder, when evaluating the
credibility and weight of the evidence, is free to believe all, part, or none of the evidence.
Id. The test is whether, viewing all evidence admitted at trial, together with all
reasonable inferences drawn therefrom, in a light most favorable to the Commonwealth
as verdict winner, the trier of fact could have found that the defendant's guilt was
established beyond a reasonable doubt. Com. v. Collins, 702 A.2d 540, 543 (Pa. Super.
1997).
A person is guilty of theft if he intentionally receives, retains, or disposes
of movable property of another knowing that it has been stolen, or believing that it has
probably been stolen, unless the property is received, retained, or disposed with intent
to restore it to the owner. 18 Pa.C.S. § 3925(a). As used in this section the word
"receiving" means acquiring possession, control, or title, or lending on the security of
the property.
In this case, there is little doubt that the testimony provided by the
Commonwealth is sufficient to convict Appellant of receiving stolen property. Detective
Koropal testified that after he took pictures of the radiator and fan shroud found in
Appellant's garage, he contacted Brandon Ozorowski to identify the parts. Mr.
Ozorowski testified that he had worked several years as a mechanic, rode in the vehicle
"millions of times," and performed regular maintenance on his father's 1999 Ford
Ranger prior to the vehicle being stolen. Mr. Ozorowski stated that the radiator in
Appellant's garage was the same taken from the stolen truck because of the after-
market, or post-purchase, radiator cap that Mr. Ozorowski had previously used to
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replace the factory installed cap. Further, Mr. Ozorowski identified approximately seven
(7) different interior and exterior parts that had been removed from his father's truck
and were now found in or on Appellant's vehicle. These parts included:
1) driver's side sun visor; 2) bench seats with center console; 3) a gear
shifter with cup holders; 4) a diamond-plated tool box; 5) the center
console; 6) side view mirrors; and 7) plastic interior trim pieces.
Mr. Ozorowski identified each item and was able to explain identifying
marks or wear and tear consistent with parts he had previously observed in and on his
father's vehicle. Mr. Ozorowski testified that he recognized the driver's side sun visor
because of certain pinholes in the fabric. He testified that the holes were left in the
fabric because their father had fastened pictures of their deceased siblings to the driver
side visor. Mr. Ozorowski further stated that the bench seats, center console, gear
shifter with cup holders, side view mirrors, and the plastic interior trim pieces were
those typically found on a 1999 Ford Ranger vehicle, and would not have been included
by the manufacturer in the 1994 model owned by Appellant. Finally, Mr. Ozorowski
identified markings caused by using an acid-based solution to clean the diamond-plated
toolbox, as well as numerous items Detectives Koropal and Hammerle testified that they
had found in the tool box during their investigation. Mr. Ozorowski testified to each
item individually and from his own recollection, prior to viewing the Commonwealth's
photographs. Mr. Ozorowski's history working as a mechanic and personal experience
with the stolen vehicle makes his testimony highly persuasive when determining the
origin of the parts found in or on Appellant's vehicle.
This Court notes that circumstantial evidence from which guilty
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knowledge can be inferred is sufficient to sustain a conviction if the underlying
circumstantial evidence is sufficiently strong to support the inference beyond a
reasonable doubt. Com. v. Thomas, 429 Pa. 227, 239 A.2d 354 (1968). Moreover, a
permissible inference of guilty knowledge may . be drawn from the unexplained
possession of recently stolen goods without infringing on an accused's right of due
process or his right against self-incrimination, as well as from other circumstances, such
as the accused's conduct at the time of arrest. United States v. Peterson, 522 F.2d 661
(D.C.Cir.1975); United States v. Roberts, 483 F.2d 226 (5th Cir. 1973). The strength of
the underlying evidence, in cases where the inference is drawn from unexplained
possession of recently stolen goods, is dependent on whether possession is recent and
how recent the possession is, as well as, an understanding of what is meant by
unexplained. Com. v. Williams, 468 Pa. 357 (1976).
This Court notes that 'Recent' is a relative term, and whether possession is
recent, and how recent it is, are normally questions of fact for the trier of fact and
require that the trier of fact consider the nature and kind of goods involved, the quantity
of goods, the lapse of time from theft and possession, and the ease with which such
goods can be assimilated into trade channels, as well as other circumstances relevant in
any given case. Pendergrast v. United States, 135 U.S.App.D.C. 20, 416 F.2d 776, 790
(1969) cert. denied.
A copy of the title acquired by Appellant stating that Appellant had
purchased the 1994 red Ford truck on October 17, 2013, approximately two weeks prior
to the victim's vehicle being stolen, was introduced as Commonwealth's Exhibit Number
3. The jury did not find Appellant's explanation of his vehicle purchase, nor the
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purchase of the toolbox, to be credible. Appellant testified that he purchased the
diamond-plated toolbox at the Perryopolis Flea Market, and was thus unable to produce
proof of purchase or the identity of the individual who sold him the toolbox. Further,
Appellant testified that despite the extremely low price, he did not inquire as to the
origin of the toolbox, nor was he concerned that the toolbox would not fit on his vehicle.
Consistent with case law, this Court instructed the Jury pursuant to
Pennsylvania Criminal Jury Instruction No. 15.3925(c) stating in part:
"One of the elements that the Commonwealth must prove is that the
Defendant either knew that the property had been stolen or believed that it
had probably been stolen. If you choose to do so, you may infer that the
Defendant had such guilty knowledge or belief from proof that he was in
possession of the property, that the property had recently been stolen, and
that his possession is unexplained. In deciding whether his possession is
unexplained, you should consider all the evidence that might explain it,
including evidence presented by the Commonwealth. You may regard the
Defendant's possession as unexplained if you find the explanation
unsatisfactory."
Based on the above facts, this Court finds that a Jury can easily infer that
Appellant either had actual knowledge or at the very least, believed, that the parts in his
possession had been stolen. Appellant was observed possessing the stolen parts in his
garage and attached to his vehicle, and he possessed the stolen parts as recently as
October 28, 2013, just two (2) days from the date the vehicle was recovered. Lastly, the
jury did not find Appellant's testimony credible as to the origin of his vehicle, nor his
testimony regarding the origin of the numerous parts on his vehicle that were not
originally manufactured for his vehicle. This Court finds that the circumstances
surrounding Appellant's possession of the stolen parts allows a jury to reasonably infer
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Appellant had knowledge that the parts were stolen.
Based on the above facts and case law, this Court believes that the
Commonwealth has presented sufficient evidence to sustain a conviction against
Appellant in this matter and respectfully recommends that Appellant's conviction be
SUSTAINED.
BY THE COURT:
Attest:
~M
Date: February ieth, 2015
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