Com. v. Harvey, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JERET SAMUEL HARVEY,
Appellant No. 2096 MDA 2014
Appeal from the Judgment of Sentence August 14, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001226-2013
BEFORE: BOWES, OTT and STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 15, 2015
Jeret Samuel Harvey appeals from the aggregate judgment of
sentence of five to ten years incarceration to be followed by two years of
probation imposed by the trial court after a jury found him guilty of receiving
stolen property and theft by unlawful taking, and a subsequent jury found
him guilty of persons not to possess a firearm. After careful review, we
affirm.
The trial court recounted the following facts relative to Appellant’s trial
for receiving stolen property and theft by unlawful taking.
On June 30, 2013 [Derick] Smith was cleaning his living room
when he heard the doorbell and knocking on the door. At the
time, Smith was the only person in his residence. Smith did not
answer the door, but he noticed the doorknob wiggle and the
door begin to open. He pointed his revolver towards the door
because he did not know who was entering the residence. As
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soon as Smith realized that [Appellant], his cousin, was entering
the residence, he lowered the revolver. Smith then put the
revolver in the center compartment of his couch in his living
room.
[Appellant] and Smith sat on the couch in the living room.
[Appellant] asked to see Smith’s revolver. Smith took the
revolver out of the compartment, unloaded it, and handed it to
[Appellant]. [Appellant] looked at the revolver and then gave it
back to Smith, who reloaded the revolver and put it back in the
compartment. Smith and [Appellant] then talked.
After a while, Smith went to the kitchen to get a carpet
cleaning machine. While in the kitchen, Smith could not see
[Appellant] and did not hear the sound of the couch
compartment opening or closing. Smith returned to the living
room about 45 seconds after leaving it. [Appellant] was sitting
in the same spot as when Smith left. [Appellant] and Smith
talked briefly. [Appellant] then said that he was going to a
specific gas station to buy cigarettes. [Appellant] asked Smith if
he wanted a pack, and Smith said no thank you. Smith thought
the offer was unusual because [Appellant] was not “the kind of
person to buy someone something.” [Appellant] then said
“that’s what family is for” and left the residence. Thirty seconds
after [Appellant] left the residence, Smith ran to the couch
compartment. He opened the compartment but did not see the
revolver. Smith then ran towards the gas station to find
[Appellant]. He called 911 either right before he left the
residence or as he was running to the gas station. Smith could
not find [Appellant]. When he got back to his residence, police
were there.
A few days later, the [sic] Smith communicated with
[Appellant] via the website Facebook. Smith told [Appellant]
that if [Appellant] returned the revolver, Smith would tell police
that he found it in his residence. [Appellant] “agreed to do
that.” [Appellant] never contacted Smith with a specific date
and time when he would return the revolver.
Later, Smith saw [Appellant] on Third Avenue in
Williamsport. Smith asked [Appellant] about the revolver.
[Appellant] said the revolver was with a man who lived in an
apartment off High Street in Williamsport. According to
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[Appellant], the apartment was numbered four. [Appellant] said
that two men lived in the apartment, and one of them used a
wheelchair. [Appellant] got into a woman’s car, and Smith
called 911. The woman began to drive, and Smith followed in
his car. Smith gave the dispatcher the location of the woman’s
car as he followed it. The car stopped near a Uni-mart in
Williamsport. Police arrived in the area and arrested [Appellant].
Trial Court Opinion, 11/18/14, at 1-3. A jury found Appellant guilty of
receiving stolen property and theft on February 24, 2014. Thereafter, on
June 9, 2014, Appellant went to trial for the firearms violation.
Smith’s testimony was substantially similar at Appellant’s trial for the
firearm crime. However, he did deviate slightly from his earlier testimony.
Specifically, he averred that he could not recall if the revolver was unloaded
when he handed it to Appellant. Smith also maintained that Appellant did
not name the gas station where he intended to purchase cigarettes, but
Smith assumed it was the local gas station. Further, Smith acknowledged
that a person other than Appellant may have informed him that one of the
residents of the High Street apartment was in a wheelchair. Finally, Smith
added that he did not notice any bulges in Appellant’s pockets when he left,
and that the revolver was five inches long. The parties stipulated that
Appellant was not permitted to possess a gun.
The jury found Appellant guilty and he proceeded to sentencing on
each of the crimes on August 14, 2014. The court sentenced Appellant to
three and one-half to seven years incarceration for the firearms charge and
one and one-half to three years incarceration to be followed by two years of
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probation for the theft offense. The court ordered these sentences to be
consecutive. Appellant filed a timely post-sentence motion, which the court
denied. This appeal ensued. The trial court directed Appellant to file and
serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Appellant complied, and the trial court indicated that the reasons for
its decision could be found in its earlier opinion disposing of Appellant’s post-
sentence motion. The matter is now ripe for this Court’s review. Appellant
presents seven questions for our consideration.
1. Whether the evidence was insufficient to meet the offense of
Person Not to Possess? Specifically, did the evidence show
that Appellant possessed, used, controlled, sold, transferred
or manufactured a firearm?
2. Whether the verdict of guilt for Person Not to Possess was
against the weight of the evidence, specifically, where the
Jury found that Appellant possessed, used, controlled, sold,
transferred or manufactured a firearm?
3. Whether the evidence was sufficient to meet the offense of
Theft by Unlawful Taking? Specifically, did the evidence meet
the element that Appellant took the property of Derrick
Smith?
4. Whether the verdict of guilt for Theft by Unlawful Taking was
against the weight of the evidence, specifically, where the
Jury found that Appellant took the property of Derrick Smith?
5. Whether the evidence was sufficient to meet the offense of
Receiving Stolen Property? Specifically, did the evidence
meet the element that the property was stolen?
6. Whether the verdict of guilt for Receiving Stolen Property was
against the weight of the evidence, specifically, where the
Jury found that the property was stolen?
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7. Whether the Court’s Sentence is Excessive?
Appellant’s brief at 6.1
We address Appellant’s three separate sufficiency claims together at
the outset. In performing such a review, we consider all of the evidence
admitted, even improperly admitted evidence. Commonwealth v. Watley,
81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We view the evidence in a
light most favorable to the Commonwealth as the verdict winner, drawing all
reasonable inferences from the evidence in favor of the Commonwealth. Id.The evidence “need not preclude every possibility of innocence and the
fact-finder is free to believe all, part, or none of the evidence presented.”
Id. When evidence exists to allow the fact-finder to determine beyond a
reasonable doubt each element of the crimes charged, the sufficiency claim
will fail. Id. In addition, the Commonwealth can prove its case by
circumstantial evidence. Where “the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from the
combined circumstances[,]” a defendant is entitled to relief. Id. This Court
does not “re-weigh the evidence and substitute our judgment for that of the
fact-finder.” Id.____________________________________________
1
The Commonwealth has not filed a brief in this matter; instead, it has
chosen to rely on the trial court opinion.
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Appellant’s initial sufficiency claim relates to his persons not to possess
a firearm charge. In order to be found guilty of this offense, the
Commonwealth is required to show that the defendant had a statutory
disqualifying offense that precluded him from possessing a gun and that the
defendant did possess such a weapon. The parties stipulated that Appellant
had a disqualifying offense.
Here, the evidence is clearly sufficient to sustain Appellant’s
conviction. The victim testified that he showed Appellant the gun and
returned it to its storage place. Thereafter, the victim left the room, leaving
Appellant alone in the room with the weapon. After Appellant left, the victim
discovered his gun was missing and immediately telephoned law
enforcement. In addition, the victim testified that Appellant admitted taking
the gun and indicated that he would return it, but failed to do so.
Appellant’s persons not to possess a firearm sufficiency claim is meritless.
Appellant’s sufficiency issue pertaining to his theft is also without
merit. Appellant argues that he told the victim that he was borrowing the
gun to do a job; therefore, he did not intend to permanently deprive
Appellant of the weapon. In addition, Appellant maintains that only the
victim testified that he, the victim, had the gun between the purchase date
and the date of the theft. Appellant, therefore, seeks to infer that the
weapon may have been taken beforehand.
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Appellant has ignored our standard of review, which requires us to
consider the evidence in a light most favorable to the Commonwealth.
Further, circumstantial evidence alone is sufficient to convict an accused. In
the present case, the victim testified that he possessed the gun when
Appellant visited him, but the weapon was gone after Appellant left.
Additionally, despite Appellant’s claim that he would return the gun, he
never did so. The evidence was more than sufficient to establish a theft.
Appellant’s final sufficiency claim relates to his receiving stolen property
offense. Appellant’s position is identical to his theft argument and fails for
similar reasons. Appellant’s issue is frivolous.
Appellant also forwards three separate weight claims relative to each
of his convictions. A weight claim must be preserved in a timely post-
sentence motion. Commonwealth v. Lofton, 57 A.3d 1270, 1273
(Pa.Super. 2012). “Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence.” Commonwealth v. Clay, 64 A.3d
1049, 1055 (Pa. 2013) (emphases removed). Accordingly, “[o]ne 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.”
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A trial judge should not grant a new trial due to “a mere conflict in the
testimony or because the judge on the same facts would have arrived at a
different conclusion.” Id. Instead, the trial court must examine whether
“‘notwithstanding all the facts, certain facts are so clearly of greater weight
that to ignore them or to give them equal weight with all the facts is to deny
justice.’” Id. (citation omitted). Only where the jury verdict “is so contrary
to the evidence as to shock one's sense of justice” should a trial court afford
a defendant a new trial. Id. A weight of the evidence issue concedes that
sufficient evidence was introduced. Commonwealth v. Charlton, 902 A.2d
554, 561 (Pa.Super. 2006).
Although Appellant purports to raise weight claims, his actual
argument is identical to his sufficiency of the evidence positions. Weight
claims are, however, distinct and concede that the Commonwealth
introduced sufficient evidence to establish the elements of the crimes. Since
Appellant’s contentions are merely a rehashing of his sufficiency arguments,
they fail for reasons outlined above.
The final claim Appellant levels on appeal is that his sentence is
excessive. This issue implicates the discretionary aspects of his sentence.
To preserve such a sentencing claim, the defendant must raise the issue
either in a post-sentence motion, or during the sentencing proceedings.
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en
banc). In addition, a defendant must “preserve the issue in a court-ordered
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Pa.R.A.P. 1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.”
Id.“There is no absolute right to appeal when challenging the
discretionary aspect of a sentence.” Cartrette, supra at 1042. “[A]n
appeal is permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate under the
sentencing code.” Id. In considering the merits of a discretionary
sentencing matter, we review the sentencing court’s decision for an abuse of
discretion. Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa.Super.
2013). In performing this review, we consider the statutory requirements of
42 Pa.C.S. § 9781(c) and (d). Id. Section 9781(c) provides that this Court
shall vacate a sentence and remand under three circumstances:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable;
or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
42 Pa.C.S. § 9781(c). Further, we examine:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
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(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Appellant timely filed a post-sentence motion asserting an
excessiveness claim therein. He further preserved the issue by including it
in his Rule 1925(b) concise statement. Appellant, however, failed to
provide a Pa.R.A.P. 2119(f) statement in his brief. Nonetheless, since the
Commonwealth has declined to file a brief, it has not objected to this
omission. Accordingly, we decline to find waiver on that ground. See
Dodge, supra at 1271. Nonetheless, Appellant has not raised a substantial
question for review. It is well-settled that a bald excessiveness claim
without more does not present this Court with a substantial question of
sentencing error to review. Dodge, supra. As Appellant only leveled a bald
excessiveness claim, he is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2015
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