Com. v. Bennett, Jr.,B. ( 2014 )

J.A22043/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
BRICE EDWARD BENNETT JR., :
:
Appellant : No. 2231 MDA 2013
Appeal from the Judgment of Sentence October 30, 2013
In the Court of Common Pleas of York County
Criminal Division No(s).: CP-67-CR-0000822-2013
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 16, 2014
Appellant, Brice Edward Bennett, Jr., appeals from the judgment of
sentence entered in the York County Court of Common Pleas following his
jury conviction for retail theft.1 He challenges the sufficiency and weight of
the evidence. We affirm.
Appellant was charged with leaving a Giant grocery store, with food
items hidden in his jacket, without paying for them. The case proceeded to
a jury trial on July 11 and 12, 2013, at which Appellant was pro se with
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3929(a)(1).
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appointed, stand-by counsel.2
trial
grocery store and the responding police officer.3 See Trial Ct. Op. at 2-3.
We add that Appellant did not testify or present evidence or witnesses.
The jury returned a guilty verdict for retail theft. Appellant filed a pro
se motion for relief, which was denied. On October 30, 2013, the trial court
held a sentencing hearing, at which Appellant was represented by the same
attorney. The court imposed a sentence in the aggravated range of eighteen
to thirty-six months.4 Appellant filed a timely, counseled post-sentence
motion, which was denied,5 and then filed a timely notice of appeal.6
2
The same attorney now represents Appellant in this appeal.
3
The retail value of the food items was $45.07. Trial Ct. Op., 2/12/14, at 7.
To stop Appellant from fleeing, the officer attempted to taser him as he ran
jacket but did not hit his body.
4
Appellant raised a challenge to the discretionary aspects of his sentence in
his Pa.R.A.P. 1925(b) statement. However, he abandons that claim on
5
On December 2, 2013, after the court denied the post-sentence motion but
before counsel filed the notice of appeal, Appellant filed a pro se Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, petition. While it is not
clear whether the court forwarded a copy of the petition to counsel, the
court did not rule on it. See Pa.R.Crim.P. 576(A)(4) (stating that when
criminal defendant, who is represented by attorney, submits motion for filing
that has not been signed by attorney, clerk of court shall accept it for filing
and forward copy to counsel).
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On appeal, Appellant first challenges the sufficiency of the evidence for
retail theft. He asserts that the surveillance video played at trial did not
show, and there was no testimony that he took anything from the store.
that he saw a
pellant ran away
from him in the parking lot
probable cause, which stated he saw hot dogs and other meat products.
Appellant also contends that although other items were found on his person,
he was not seen with these items in the store. Appellant concludes the
evidence was speculative and thus not sufficient.
Appellant next challenges the weight of the evidence.7 His argument,
the
Brief at 13. We find no relief is due.
We set forth the relevant standard of review:
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted
6
statement of errors complained of on appeal, and the court issued a
responsive opinion.
7
-sentence
motion. See Pa.R.Crim.P. 607(A)(1)-(3).
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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 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.
* * *
An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court. A
new trial should not be granted because of a mere conflict
in the testimony or because the judge on the same facts
would have arrived at a different conclusion. A trial judge
must do more than reassess the credibility of the
witnesses and allege that he would not have assented to
the verdict if he were a juror. Trial judges, in reviewing a
claim that the verdict is against the weight of the
evidence[,] do not sit as the thirteenth juror. Rather, the
role of the trial judge is to determine that 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.
Commonwealth v. Bruce, 916 A.2d 657, 661, 665 (Pa. Super. 2007)
(citations omitted).
After review of the certified record, including the trial transcript, the
-4-
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and relev
See Trial Ct. Op. at 2-3, 5-8 ((1) stating
credibility determinations are within sole province of jury; (2) noting: (a)
requests to stop, and (b) police officer testified he respond
parking lot was empty, Appellant was only person in this area, officer tried
to stop Appellant but Appellant fled, officer observed hot dogs fall from
identity; and (3) holding evidence was sufficient for jury to find Appellant
took items that were offered for sale away from store, without paying full
retail value for them, with intent to deprive store of items). We likewise no
See id. at 8 (stating jury
found testimony of cashier and officer credible, any inconsistencies in
sense of justice).
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J. A22043/14
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
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