Com. v. Hosier, D. ( 2017 )

J-S88029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DIETRICK RYAN HOSIER :
:
Appellant : No. 1091 EDA 2016
Appeal from the Judgment of Sentence February 18, 2016
In the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000404-2015
BEFORE: OLSON, J., RANSOM, J., STRASSBURGER, J.*
MEMORANDUM BY RANSOM, J.: FILED MARCH 24, 2017
Appellant Dietrick Ryan Hosier appeals from the February 18, 2016
judgment of sentence of twenty-one months to four years of imprisonment
with Recidivism Risk Reduction Incentive (RRRI) after a minimum of fifteen
months and twenty-two days and restitution of $500.00 to the victim,
imposed following a jury trial for theft by unlawful taking and receiving
stolen property.1
The relevant facts and procedural history are as follows. On October
17, 2014, at 2:30 p.m., Jason Green (“Victim”) finished work at the Mallard
Market in the meat department. See Notes of Testimony (“N.T.”),
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*Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3921 (a), § 3925(a), respectively.
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9/14/2015, at 152. Victim always left his personal keys in a tray next to the
meat door room near the steps that lead up to the bathroom located in the
back of the store. See N.T., 9/14/2015, at 96-97, 152. Behind this area
was a door leading to the employee parking lot where Victim kept his red
jeep. See id. 98-99. Victim grabbed his key ring from the bin and put them
in his pocket. See id. at 151. Victim keeps the key fob to his red jeep on
the key ring; the key fob unlocks the doors to his red jeep automatically
from his pocket when he approaches the car. See id.
Victim walked out to his red jeep, but the car did not automatically
unlock. See id. at 152. Victim checked his pockets and discovered that the
key fob was missing from his keyring. See id. at 152. After having a friend
get his extra keys from home, Victim opened his car and immediately
checked for his blue Colt .380 caliber pistol and wallet, but they were gone.
See id. at 153-154. Victim cancelled his credit cards before going to the
Lehighton borough Police Station to file a report with Officer Broyles that his
pistol, key fob, and wallet had been stolen. See id. at 93-94, 159.
Officer Broyles went to the Mallard Market to collect evidence. Id. at
94. The Officer interviewed the manager, Judy Miller, who remembered
seeing Appellant at the store on the day of the incident. See id. at 100.
The manager knew Appellant for over five years because he dated another
employee’s granddaughter and came to the store frequently. See id. at
127. The manager was charged with monitoring employees’ restroom
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breaks, and she noted that they let customers use the “employees only
restroom,” which she could observe from her station at the meat
department. See id. at 130. When the manager saw Appellant enter the
store through the swinging doors and head toward the bathroom in the back
of the store, she made Victim and Stephen Nace aware. See id. at 128.
The manager went to the police station to provide a statement. At
that time, she gave video footage of the alleged theft to Officer Broyles and
identified Appellant on the video. See id. at 102. Although there were no
cameras in the employees-only restroom area, the video depicted Appellant
exiting Mallard Market and then walking along the north side of the store,
around to the rear of the store toward the employee parking lot. See id. at
103. Another shot showed the employee parking lot where one could see
movement inside of Victim’s red jeep followed by the suspect exiting from
the driver’s side. See id. According to the manager, the footage was taken
minutes after Appellant left the store. See id. at 105-107.
At trial, four witnesses identified Appellant as the individual depicted in
the video footage: Officer Broyles, Patrolman Defuso, Ms. Miller (the
manager), and Stephen Nace (employee). Patrolman Defuso testified that
he had known Appellant for five to ten years and had become familiar with
Appellant’s mannerisms, characteristics, and gait. See id. at 123. The
Patrolman also testified that he definitely recognized those features on the
suspect in the video. See id. He also recognized the white stripe on the
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sneakers worn by the suspect in the video as the same ones Appellant was
wearing the next day. See id. at 123-125. Among the employees who
recalled Appellant going into the area where Victim stored his keys, Mr. Nace
testified that he saw Appellant go into the bathroom area and stay in there
for a long time. See id. at 94-96, 100, 145-147.
The jury found Appellant guilty of theft by unlawful taking and
receiving stolen property.2 Appellant challenged the sufficiency and weight
of the evidence to support these convictions through an oral motion for
acquittal and a post-sentence motion for a new trial filed on September 25,
2015. See Trial Ct. Op., 6/8/2016, at 1. The court denied these motions on
January 25, 2016. Sentencing was continued while Appellant was in rehab.
On February 18, 2016, Appellant was sentenced as described above.
Appellant timely appealed his judgment of sentence on March 17,
2016, and filed a court-ordered 1925(b) statement on April 8, 2016. The
trial court issued a responsive opinion.
Appellant raises the following issues:
A. Whether the Commonwealth’s evidence was insufficient to
sustain the jury’s conviction of the [Appellant].
B. Whether the [Appellant’s] conviction was against the weight
of the evidence.
Appellant’s Br. at 6.
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2
18 Pa.C.S. § 3921 (a), § 3925(a), respectively.
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Appellant purports to challenge the sufficiency of the evidence
presented at trial. “In order to develop a claim challenging the sufficiency of
the evidence properly, an appellant must specifically discuss the elements of
the crime and identify those which he alleges the Commonwealth failed to
prove.” Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super.
2014) (citing Commonwealth v. McDonald, 17 A.3d 1282, 1286 (Pa.
Super. 2011)).
Appellant offers no analysis of any particular elements that comprise
the charges against him.3 See Appellant’s Br. at 13-16. For example, the
crime of theft by unlawful taking of moveable property is defined as follows:
“A person is guilty of theft if he [1] unlawfully takes, or exercises unlawful
control over, [2] movable property of another [3] with intent to deprive him
thereof.” 18 Pa.C.S. § 3921. Receiving stolen property is defined as
follows: “A person is guilty of theft if he [1] intentionally [2] receives,
retains, or disposes of movable property of another [3] 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. Accordingly, Appellant has waived this claim for
lack of development. Samuel, 102 A.3d at 1005; Pa.R.A.P. 2119(a).
Next, Appellant contends that the verdict is against the weight of the
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3
Appellant only cites Pa.R.Crim.Pro. 606 providing for challenges to the
sufficiency of the evidence. See Appellant’s Br. at 13-16.
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evidence. See Appellant’s Br. at 16-17 (citing Pa.R.Crim.P. 607). Appellant
suggests, for example, that (1) the witnesses’ testimony was contradictory,
(2) Victim never saw Appellant enter the back room, (3) someone else could
have taken the pistol while Victim was working that day, (4) such as another
employee, and (5) one of the witnesses was not one hundred percent certain
that Appellant was the one who stole Victim’s pistol. See id. at 17-19.
Our standard of review is as follows:
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court…. It has often been stated that a
new trial should be awarded when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and
the award of a new trial is imperative so that right may be given
another opportunity to prevail.
An appellate court's standard of review when presented
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court. 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. Because the trial judge has had the opportunity
to hear and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial court's
determination that the verdict is against the weight of the
evidence. One 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.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (thereafter
defining an abuse of discretion as a judgment that is manifestly
unreasonable) (internal formatting and punctuation modified; citations
omitted); see also Commonwealth v. Champney, 832 A.2d 403, 408 (Pa.
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2003) (noting that “appellate review is limited to whether the court palpably
abused its discretion”).
Appellant’s claim is devoid of merit. Sitting as fact finder, the jury
deemed the Commonwealth’s witnesses credible and the video evidence
persuasive. We may not disturb these findings. Clay, 64 A.3d at 1055
(reversing this Court where we “stepped into the shoes of the trial judge and
revisited the underlying question of whether the verdict was against the
weight of the evidence, an analysis that is not appropriate under the
appellate standard of review”).
In reviewing Appellant’s challenge to the weight of the evidence, the
trial court did not find the jury’s verdict shocking. See Trial Ct. Op. at 9.
Rather, the court explained that the individual pieces of evidence were
“pieces of a puzzle” that, when put together, supported the jury’s verdict.
See id. at 12-13. We discern no palpable abuse of discretion in this regard.
Champney, 832 A.2d at 408.
Judgment of sentence affirmed.
Judge Strassburger Joins. Judge Olson Concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2017
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