Com. v. Lindell, L. ( 2021 )

J-A10012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAWRENCE LINDELL :
:
Appellant : No. 1393 EDA 2020
Appeal from the Judgment of Sentence Entered June 18, 2020
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003091-2018
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 31, 2021
Lawrence (“Larry”) Lindell appeals from his judgment of sentence for
theft by unlawful taking, receipt of stolen property and criminal conspiracy.
He contends the Commonwealth failed to establish his involvement in the theft
or a conspiracy. We affirm.
Lindell and Ralph Walsh were arrested after a tree stump grinder was
stolen from the property of Joseph Denisar. Lindell was charged with one count
of theft by unlawful taking, one count of receiving stolen property and two
counts of criminal conspiracy. The matter proceeded to a two-day jury trial on
October 29, 2019, and October 30, 2019.
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* Retired Senior Judge assigned to the Superior Court.
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Denisar testified at trial that he was in the tree service business and
owned a green stump grinder that he kept outside his residence on Street
Road in West Grove, Pennsylvania. See N.T. Trial, N.T. 10/29/2019, at 71,
83, 91. At around 7:15 in the morning on June 1, 2017, Denisar was leaving
for work when his girlfriend told him that a truck with a gun was riding up and
down their road. See id. at 85-86. Denisar looked out the window and saw a
black Dodge dually pickup truck1 with a Delaware license plate. See id. at 87.
Denisar left, but when he drove by his house around noon on that same day,
he noticed that his stump grinder was no longer outside his residence. See
id. at 85. He reported the missing stump grinder to the police, and his
daughter posted about the stolen stump grinder on social media. See id. at
85, 88.
Tina Hoffman also testified at trial. She recounted that between 6:30
and 7:00 a.m. on June 1, 2017, she was commuting to work on Route 926
not far from Denisar’s residence and was behind a black Dodge pickup truck
with Delaware plates. See N.T. Trial, 10/30/2019, at 7-8. According to
Hoffman, the black Dodge truck slowed down, and quickly motioned for a red
Chevy truck with a ladder rack to pull into traffic in front of it. See id. at 7, 9,
10. Hoffman stated that the red Chevy truck was pulling a large, green
____________________________________________
1 A dually truck is a “pickup truck with dual rear wheels for a total of six
wheels.” https://www.motortrend.com, “The Best Heavy-Duty Dually Trucks
to Buy in 2021,” May 6, 2021; see also N.T. Trial, 10/30/19, at 69 (describing
a dually as a pickup truck with dual wheels on the back).
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machine which she later recognized to be a stump grinder. See id. at 9. After
seeing the post about Denisar’s stolen stump grinder on social media a day or
two later, Hoffman called the police and gave them the license plate number
of the Dodge pickup truck she had been behind. See id. at 12
Robert Denisar, Joseph Denisar’s nephew, also testified at trial. He
explained that he had used his uncle’s stump grinder many times, that his
uncle’s stump grinder was distinctive in that it had a tool box attached to it,
and that he was aware that the grinder had been stolen. See N.T. Trial,
10/29/2019, at 96-97. On June 17, 2017, Robert Denisar was driving near his
residence in Wilmington, Delaware when he saw a red and white Chevy pickup
truck towing what he recognized as his uncle’s stump grinder. See id. at 97,
98. Robert Denisar testified that the stump grinder now had a sign on it that
read “Larry’s Lumberjack” with an accompanying phone number of 384-4499.
See id. at 113-114.
Robert Denisar took a picture of the stump grinder, which he later sent
to his uncle, and followed the Chevy truck. See id. at 98, 100, 102. When the
Chevy truck stopped to confront Robert Denisar, Robert Denisar was able to
see the driver through the window of the truck. See id. at 100 -101. He
testified at trial that Lindell looked like the driver of the red Chevy truck that
he had seen on June 17. See id. at 106-107.
Robert Polen, who knew Joseph Denisar through the tree industry,
testified that about a week or two after he had seen the social media posting
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about Denisar’s missing stump grinder, he found a cell phone on the side of
the road near Grove Road in London Grove Township. See N.T. Trial,
10/30/19, at 17, 20-21. The text messages on the cell phone included the
same number that had been included on the social media post about the stolen
stump grinder. See id. at 18. That number had the contact name “Larry”
attached to it. See id. at 19.
Polen called the contact on the cell phone labeled “dad” in an attempt
to locate the owner of the cell phone. See id. at 19. That contact informed
Polen that his son lived on a property off of Route 841 in London Grove
Township, and told him that if there was a black Dodge dually truck in the
driveway, his son was home. See id. at 19, 21. Polen did not attempt to return
the cell phone to its owner but rather, gave it to the police. See id. at 20.
Pennsylvania State Trooper Scott Enedy testified that the owner of the
cell phone turned out to be Ralph Walsh. See N.T. Trial, 10/30/19, at 73.
Trooper Enedy also stated that after viewing the photograph taken by Robert
Denisar, he learned that the phone number under the “Larry’s Lumberjack”
sign on that photograph belonged to Lindell and that Lindell’s address was
listed as 402 Maple Avenue in Delaware. See id. at 75. Trooper Enedy went
to that property, but nobody answered the door.
Trooper Enedy then went to the property off of Route 841 that had been
described to Robert Polen by the “dad” contact on the found cell phone. That
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property had a black dually truck outside of it with a license plate number that
matched the one provided by Tina Hoffman. See id. at 77.
The trooper spoke with Ralph Walsh at that property. Walsh claimed
that he had just bought the truck. See id. at 78. He denied any involvement
with the taking of Denisar’s stump grinder, but he told the trooper that he
could find the grinder and red Chevy pickup truck at 402 Maple Avenue in
Delaware. See id. at 79. He advised the trooper that if the grinder was not
there, it would be behind the property across the street from 402 Maple
Avenue. See id. at 80. The trooper found the stump at 403 Maple Avenue,
and the serial number on the grinder matched the serial number given to
Trooper Enedy by Denisar. See id. at 80-81. The grinder had been painted
yellow. See id. at 80.
Trooper Enedy also spoke with Walsh about his cell phones. According
to Trooper Enedy, Walsh had two cell phones. See id. at 91. One was the
phone found by Robert Polen on the side of the road, issued through Verizon,
that had a number ending in 1647. See id. At 91-92. The other was a work
cell phone through AT & T that had a number ending in 7815. See id. at 91.
Phone records showed that Walsh received a call at 4:45 a.m. on June
1, 2017 on his AT & T phone from 302-384-4499, which an employee of T-
Mobile testified was Lindell’s cell phone number. See id. at 29, 40-41, 93. The
call originated somewhere in the vicinity of Wilmington, Delaware. See id. at
94. At 6:38 a.m., there was another call made from Lindell’s cell phone to
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Walsh’s AT & T phone and the call originated from an area on Route 926 close
to Denisar’s residence. See id. at 95-97.
The phone records also revealed that, between 4:43 a.m. and 4:57 a.m.
on June 1, 2017, there were eight text messages exchanged between Walsh’s
AT & T phone and Lindell’s phone. See id. at 101. At 10:28 a.m. that same
morning, a text was sent from Walsh’s Verizon cell phone to Lindell’s cell
phone asking “How’s grinder working for you[?]” Id. at 102-103. Twelve
minutes later, Walsh received a text on his Verizon cell phone from Lindell’s
cell phone responding “Good.” Id. at 103-104.
Following the testimony, the jury convicted Lindell of one count of theft
by unlawful taking, one count of receiving stolen property and two counts of
conspiracy. The court sentenced Lindell to eleven and one-half to 23 months’
incarceration, to be followed by one year of probation. Lindell filed a timely
notice of appeal. He then complied with the court’s directive to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal, raising a claim that the
evidence was insufficient to support the verdict. In response, the court issued
a Pa.R.A.P. 1925(a) opinion in which it rejected Lindell’s sufficiency claim.
In his sole issue on appeal, Lindell contends that the trial court erred by
concluding that the evidence was sufficient to sustain the verdict. He primarily
argues that because there was no direct evidence of him stealing the stump
grinder or agreeing with Walsh to do so, the Commonwealth had failed to
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present sufficient evidence to support his conviction for theft by unlawful
taking and conspiracy. This claim is meritless.
The evidence presented at trial is sufficient when, viewed in the light
most favorable to the Commonwealth as the verdict winner, the evidence and
all reasonable inferences derived from the evidence are sufficient to establish
all of the elements of the offense beyond a reasonable doubt. See
Commonwealth v. Blakeney, 946 A.2d 645, 651 (Pa. 2008). The
Commonwealth may sustain its burden entirely by circumstantial evidence.
See Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011). Moreover,
the jury, which passes upon the weight and credibility of each witness’s
testimony, is free to believe all, part or none of the evidence. See id.To sustain a conviction for theft by unlawful taking, the Commonwealth
must show that the defendant has “unlawfully take[n], or exercise[d] unlawful
control over, movable property of another with intent to deprive him” of that
property. 18 Pa. C.S.A. § 3921(a).
To sustain a conviction for conspiracy, meanwhile, the Commonwealth
must show that the defendant “with the intent of promoting or facilitating [a
crime’s] commission … [has] agree[d] with [another] person or persons that
they or one or more of them will engage in conduct which constitutes such
crime or an attempt or solicitation to commit such crime; or … [has] agree[d]
to aid [another] person or persons in the planning and commission of such
crime, or of an attempt or solicitation to commit such crime.” 18 Pa. C.S.A. §
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903(a)(1), (a)(2). The Commonwealth must also prove that an overt act was
committed in furtherance of the conspiracy. See id. at § 903(e). A co-
conspirator may be liable for the overt acts committed in furtherance of the
conspiracy, regardless of whether it was he or his co-conspirator who
committed the acts. See Commonwealth v. Barnes, 871 A.2d 812, 820 (Pa.
Super. 2005).
Moreover, in order to prove conspiracy, the Commonwealth is not
required to present evidence of an explicit or formal agreement to commit a
certain crime. See Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super.
2014). Instead:
[P]roof of a criminal partnership is almost invariably extracted
from the circumstances that attend its activities. Thus, a
conspiracy may be inferred where it is demonstrated that the
relation, conduct, or circumstances of the parties, and the overt
acts of the co-conspirators sufficiently prove the formation of a
criminal confederation. The conduct of the parties and the
circumstances surrounding their conduct may create a web of
evidence linking the accused to the alleged conspiracy beyond a
reasonable doubt.
Id. (citation omitted).
In finding that there was sufficient evidence to sustain Lindell’s
convictions for theft by unlawful taking as well as conspiracy, the trial court
stated:
… A stump grinder, owned by Joseph Denisar, was
unlawfully taken from his property on June 1, 2017. Tina Hoffman
saw the stump grinder[ ] being pulled by a red and white truck
between 6:30 a.m. and 7:00 a.m. on June 1, 2017. Tina Hoffman
also saw a black pick-up truck with a Delaware license plate wave
the red truck with [the] stump grinder onto the roadway. Robert
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Denisar took a photo of the same red and white truck with the
stump grinder driving in his neighborhood. He followed the truck
and identified the driver as [Lindell]. The photo taken by Robert
Denisar included a sign “Larry Lumberjack” with the phone
number of 384-4499. That same phone number was identified by
… an employee of T-Mobile [ ] as [Lindell’s] cell phone number. …
Trooper Enedy investigated the Delaware license plate
number given to him by Tina Hoffman and discovered the black
Dodge truck belonged to Ralph Walsh. After speaking with Ralph
Walsh, Trooper Enedy found the stump grinder [ ] attached to a
red and white pick-up truck across the street from [Lindell’s]
father’s residence. The serial number matched the serial number
Joseph Denisar gave the police.
Finally, the cell phone records from AT & T, Verizon and T-
Mobile … show phone calls and text messages between [Lindell]
and Ralph Walsh on the morning of June 1, 2017. … The cell phone
records identify that the calls were made within the area of
Delaware, where [Lindell] resides, West Grove, where Ralph
resides, and Route 926 and Street Road, near Joseph Denisar’s
residence.
Trial Court Opinion, 9/14/20, at 9-10.
We agree with the trial court that these circumstances provided
sufficient evidence to support the jury’s conclusion that Lindell and Walsh
entered into an agreement to steal the stump grinder from Denisar and did,
in fact, steal that stump grinder. While Lindell disputes this finding on the
basis that there was no direct evidence of an agreement between him and
Walsh or that he was the one who actually used his cell phone on June 1,
2017, this Court has made clear that the Commonwealth may prove the
charges against a defendant, including conspiracy, using circumstantial
evidence alone. See Ramtahal, 33 A.3d at 607; Melvin, 103 A.3d at 42.
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The evidence was capable of establishing that Lindell was in
communication with Walsh before and after the theft, and that he was nearby
when the theft occurred. Further, the evidence was sufficient to allow the jury
to find that Lindell aided Walsh not only in transporting the stolen stump
grinder, but that he exercised control over it by storing it near his home. No
relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2021
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