Com. v. Woodruff, T.

J-S04036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS WOODRUFF :
:
Appellant : No. 1197 EDA 2021
Appeal from the Judgment of Sentence Entered April 6, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002873-2020
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 25, 2022
Appellant, Thomas Woodruff, appeals from the judgment of sentence
entered in the Court of Common Pleas of Delaware County after a non-jury
trial resulted in his conviction of Retail Theft, 18 P.S. 3929(a)(1). Sentenced
to 18 months’ probation plus $599 restitution payable to Lowe’s Hardware,
Appellant challenges the sufficiency and weight of identification evidence
offered against him and contends for the first time on appeal that his sentence
of restitution is illegal for failing to specify a method of payment as is required
under statute. We affirm.
On November 3, 2019, at about 3:00 p.m., Evangelos Papadopoulos, a
Lowe’s Hardware asset protection manager with seven years’ industry
experience detecting both employee and customer retail theft, was sitting in
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* Former Justice specially assigned to the Superior Court.
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his personal vehicle while on break when he observed what he considered
suspicious behavior of a customer who had exited the store. N.T. 4/6/21 at
11-13.
From about 40 feet away, Papadopoulos watched a man he would later
identify as Appellant walk up to a Nissan Rogue that had just rolled to a stop
and quickly shove a large box off the top of the shopping cart into the trunk
while talking on a cell phone. N.T. at 13-14. Papadopoulos could see the box
contained a pressure washer, an expensive item which Papadopoulos believed
would be handled more carefully by someone who actually had purchased it.
Id.
Appellant returned to the store, and a watchful Papadopoulos followed,
quickly taking pictures of the Rogue’s license plate and trunk along the way.
N.T. at 15. In-store video surveillance captured Appellant as he entered
through the exit and made his way between the registers and the self-
checkout before stopping to look in the tool area. N.T. at 15, 24-25.
Papadopoulos discretely walked to within ten feet of Appellant and kept
him in clear view for several minutes before moving to his office, where he
remotely controlled a wall-mounted camera to zoom in closely on Appellant.
N.T. at 28-30. These in-person and surveillance observations, in particular,
later would serve as the basis for Papadopoulos’ photo array and in-court
identifications of Appellant as the man who unlawfully removed the pressure
washer from Lowes. N.T. at 28, 30, 31-32.
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Appellant eventually left the tool section with a Hitachi nail gun and a
laser level in his shopping cart, and Papadopoulos went to alert the manager
of the ongoing surveillance in case Appellant attempted to exit without paying.
N.T. at 32-33. About three minutes later, Appellant abandoned his shopping
cart and exited emptyhanded. N.T. at 34. Because Papadopoulos witnessed
no theft and lacked the immediate opportunity to confirm whether the
pressure washer had been stolen, he could not detain Appellant. N.T. at 37.
Papadopoulos completed his investigation by reviewing an electronic
journal of sales that confirmed no pressure washer had been sold that day.
N.T. at 38-39. Lowe’s informed the Brookhaven Police of his report and
provided them with surveillance video and photos of the Nissan Rogue’s
Delaware license plate.
Ascertaining that the vehicle was registered to Appellant, police
assembled a photo array and met Papadopoulos at his Lowe’s office, where
he selected Appellant’s photo without hesitation. N.T. at 40-41, 64, 67. A
criminal complaint was filed charging Appellant with one count of retail theft.
Appellant’s criminal trial turned on identification evidence. The
Commonwealth relied primarily on Papadopoulos’ eyewitness testimony—
which included his surveillance video commentary—and his unequivocal photo
array identification made without having seen Appellant since the November
3, 2019 alleged theft.
The defense, meanwhile, pressed a mistaken identity theory centered
on the surveillance video’s marginal picture quality, Papadopoulos’ cautious
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identification at the preliminary hearing, and Appellant’s testimony that his
passenger, Shane Diebold, entered the store while he remained in the driver’s
seat of his own vehicle, unaware of Diebold’s ongoing crime.
In his defense, Appellant recounted that he was visiting a friend in
Elkton, Maryland when Diebold, a “friend of a friend”, offered to pay $40 if
Appellant would drive him to the Brookhaven Lowe’s, explaining the store was
the closest one stocking an item his employer needed to complete a job. N.T.
at 76-78. Appellant testified that he agreed to make the 80-minute round trip
as a favor to a friend and because Diebold was paying him $40. N.T. at 87.
Turning to the video evidence offered against him, Appellant insisted
that if he resembles the man depicted it is only because Diebold and he are
somewhat alike in appearance. Id. Similarly defiant was Appellant’s reply to
the Commonwealth’s observation that the man on the video and he share
identical marks and scars on their heads. When asked if the court was to
believe that Diebold likewise bears these same scars, Appellant responded,
“Yes, that’s correct, he does, yes. . . . Apparently he does. There’s the video.
Apparently, he does. I never looked at the back of his head, but . . . .” N.T.
at 87-88.
Another pillar of the defense was the cross-examination of
Papadopoulos, wherein counsel questioned the certainty of his September 24,
2020, preliminary hearing identification of Appellant. At the preliminary
hearing, Papadopoulos was asked the following: “Okay. Do you see that
person [the shoplifter] in the courtroom today?", Papadopoulos answered,
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“Yes, from my best recollection it looks like the gentleman over there
[identifying Appellant]." "Does that mean you are sure that's the gentleman
that you saw?", the Commonwealth continued, to which he replied, "He fits
the description of what I saw that day." N.T. at 53-54.
At trial, defense counsel asked if Papadopoulos would dispute that he
sounded unsure when making this identification about the identification. N.T.
at 53. Papadopoulos clarified that it was only by chance that he was at the
magisterial district judge’s office that day testifying on an unrelated case when
he was asked on the spot to provide testimony in Appellant’s preliminary
hearing. Therefore, he explained, that even with many months having passed
since the November 3, 2019, theft and the March 16, 2020 photo array, and
having had no opportunity to review the surveillance video and his notes to
refresh his memory, he still felt “90 percent” certain at the preliminary hearing
of his identification of Appellant. N.T. at 52, 54-55, 60-61.
On redirect, Papadopoulos stated with complete certainty that Appellant
was the shoplifting suspect he followed back into the store and surveilled from
as close as 10 feet away. In contrast, he denied recognizing Diebolt from the
defense exhibit photograph of him that he was shown. N.T. at 61-62.
In closing arguments, defense counsel emphasized circumstances that
suggested Appellant would have remained behind the wheel of his car while
Diebolt entered the store, and she asserted that a reliable identification of
Appellant could not come from the grainy video image of a man that
resembled Appellant but looked more like Diebolt.
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The prosecutor agreed the video was not of optimal clarity, but it was
clear enough to show specific scars identical to those visible on Appellant’s
head at trial. Notwithstanding any such video limitations, he emphasized, the
pivotal evidence was supplied by Mr. Papadopoulos, whose definitive
identifications at both the photo array and trial were based on his extended,
close-range surveillance of Appellant in the store.
At the conclusion of trial, the court found Appellant guilty on the single
count of retail theft and imposed a sentence of 18 months’ probation and $599
restitution payable to Lowe’s. On April 16, 2021, Appellant filed a post-
sentence motion challenging the weight and sufficiency of the evidence.
Following a May 12, 2021, hearing, the court entered its order of May 14,
2021 denying the motion. This timely appeal followed.
Appellant raises the following issues for our review:
1. Whether the evidence was insufficient to establish Appellant’s
identity as the person who took a pressure washer from Lowe’s
Hardware beyond a reasonable doubt in order to sustain his
guilty verdict for retail theft, in violation of Appellant’s federal
and state constitutional rights?
2. Whether the trial court imposed an illegal sentence of
restitution where it did not set forth the method of payment
pursuant to 18 Pa.C.S. § 1106(c)(2)?
3. Whether the trial court erred in denying Appellant’s motion for
a new trial as the verdict was against the weight of the
evidence, where the testimony of the Commonwealth’s witness
was of insufficient weight to support the retail theft conviction
because it was plainly contradictory to the clear image on the
video footage, in violation of Appellant’s constitutional rights
under the state and federal constitutions?
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Appellant’s brief at 5.
Appellant’s first issue challenges the sufficiency of the evidence. Our
standard of review for a sufficiency challenge is as follows:
The standard we apply in reviewing the sufficiency of the evidence
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 a 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 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.
Commonwealth v. Williams, 255 A.3d 565, 578–79 (Pa. Super. 2021)
(quoting Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014)
(citation omitted)).
The crux of Appellant’s sufficiency claim is that when one compares the
still frame photograph from the surveillance video, introduced as Exhibit C-2,
snippet #9, with the photograph of Appellant’s license photo used in the photo
array introduced in Exhibit C-4, “it is abundantly clear that they are not the
same person.” Appellant’s brief, at 15. Instead, Appellant submits, the still
frame more closely resembles the photograph of Shane Diebold admitted as
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Defense Exhibit 2. At best, Appellant concludes, the evidence is equally
consistent with Appellant’s innocence as it is with his guilt, which establishes
that the Commonwealth failed to prove Appellant’s guilt beyond a reasonable
doubt. Id at 16 (citing In re J.B., 189 A.3d 390, 415 (Pa. 2018)).
For its part, the trial court opines in its Rule 1925(a) opinion that the
shortcomings with the video did not preclude its use as supplementary
evidence corroborating the credible testimony of Mr. Papadopoulos, who, the
court noted, “immediately identified the photo as [depicting] the individual he
had observed in the parking lot and the retail area of the Lowe’s store in
question and the same individual shown on the store video (N.T. p. 40).” Trial
Court Opinion, 7/22/21, at 3.
On this point, the trial court observed:
that while the video footage appears to show someone closely
resembling [Appellant] it would not, standing alone, be sufficient
to establish [Appellant’s] identity beyond a reasonable doubt.
Nevertheless, the video when combined with the remaining
testimony in the case, particularly that of Mr. Papadopoulos,
who[m] the court found to be very credible, did convince this court
sitting as the finder of fact that the evidence established
[Appellant’s] guilt beyond a reasonable doubt. Furthermore, the
court found Appellant’s testimony to be quite incredible.
Trial Court Opinion, 7/22/21 at 4.
Guided by our standard of review, we agree that the evidence, viewed
in the light most favorable to the Commonwealth as the verdict-winner, was
sufficient to establish Appellant’s identity as the shoplifter in question. Mr.
Papadopoulos was shown a photo array and, without hesitation, identified
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Appellant as the suspect. He made two more confident in-court identifications
of Appellant despite a significant passage of time and, in the case of the
preliminary hearing, having no opportunity to review his records beforehand.
Also significant was Papadopoulos’ testimony that he saw only the man
who shoved the pressure washer into the Rogue and returned to the store,
and not the driver. Moreover, he denied ever having seen Diebold, even after
being shown Diebolt’s photograph.
As for the surveillance video, the court stopped short of regarding either
it or the still photos taken from it as dispositive proof of the shoplifter’s
identification. Nevertheless, it determined that, on balance, the depictions
resembled Appellant sufficiently to align with Papadopoulos’ eyewitness
testimony implicating Appellant in the crime. After careful review of the
record, we discern no abuse of discretion in this respect.
Therefore, contrary to Appellant’s contention, the Commonwealth’s
evidence was neither equally consistent with his innocence as it was with his
guilt, nor, more specifically, was the testimonial evidence undermined by the
video evidence on the matter of identification. Accordingly, we find misplaced
his reliance on In re J.B., supra, and Commonwealth v. Widmer, 744 A.2d
645, 751 (Pa. 2000) (holding evidence is insufficient where it stands “in
contradiction to the physical facts, in contravention to human experience and
laws of nature[.]”). Accordingly, we conclude that Appellant’s sufficiency
claim is devoid of merit.
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In Appellant’s second issue, he contends that court violated the express
terms of the restitution statute, 18 Pa.C.S.A. § 1106, by failing to specify a
method of payment at sentencing. The record reflects that Appellant did not
include this issue at sentencing or in his post-sentence motion before the trial
court. Ordinarily, such a lapse would render an issue waived. See, e.g.,
Pa.R.A.P. 302(a); Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005).
The claim before us, however, implicates the trial court's statutory
authority to impose restitution and, thus goes to the legality of Appellant’s
sentence. See Commonwealth v. Smith, 956 A.2d 1029, 1032–33 (Pa.
Super. 2008) (noting a claim that restitution was excessive challenges the
discretionary aspects of the sentence, while a claim that restitution was
inappropriate challenges the legality of the sentence)1. "Therefore,
Appellant’s failure to file post-sentence motions or object at the time of
sentencing does not relieve the court or the Commonwealth of its obligations
to comply with the statutory requirements of sentencing. Inquiry into the
legality of sentence is a non-waivable matter.” Id. (citing Commonwealth v.
Dinoia, 801 A.2d 1254 (Pa. Super. 20012).
A trial court's authority to order restitution is codified at 18 Pa.C.S. §
1106. Section 1106 mandates, in relevant part, that when property has been
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1 We have recognized that “[i]n the context of criminal proceedings, an order
of restitution is not simply an award of damages, but, rather, a sentence.”
Commonwealth v. Holmes, 155 A.3d 69, 78 (Pa. Super. 2017) (en banc)
(citation omitted).
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unlawfully obtained as a direct result of a crime, “the offender shall be
sentenced to make restitution in addition to the punishment prescribed
therefor.” 18 Pa.C.S. § 1106(a). Subsection (c)(1) states full restitution is
mandatory “[r]egardless of the current financial resources of the defendant.”
Id. at § 1106(c)(1)(i).
Relevant to Appellant’s claim, subsection (c)(2) further provides:
(2) At the time of sentencing the court shall specify the amount
and method of restitution. In determining the amount and
method of restitution, the court:
(i) Shall consider the extent of injury suffered by the
victim, the victim's request for restitution as
presented to the district attorney in accordance with
paragraph (4) and such other matters as it deems
appropriate.
(ii) May order restitution in a lump sum, by monthly
installments or according to such other schedule as it
deems just.
Id. at § 1106(c)(2)(i) and (ii).
Consistent with Section 1106, our jurisprudence has recognized that a
trial court “may not impose a general order of restitution at sentencing and
then ‘work out the details’ and amounts at a later date.” Smith. at 1033
(citation omitted).
The whole of Appellant’s argument on this issue states, “Instantly, at
sentencing, the trial court failed to specify the method of payment of
restitution, i.e., whether it should be paid in one lump sum, by monthly
payments, or by some other payment plan. The restitution should be vacated
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as it was imposed in violation of the requirements set forth under §
1106(c)(2).” Appellant’s brief, at 20.
The record reflects that the trial court’s sentencing order imposed upon
Appellant 18 months’ probation and directed “you’ll pay the restitution in the
amount of $599.” N.T. at 95. Contrary to Appellant’s summary argument,
although the court never uttered the words “lump sum,” it is implicit in the
court’s words that Appellant was to pay the $599 at once.
Because Appellant failed to indicate in his Rule 1925(b) statement what
aspect of Section 1106 the court allegedly violated, the court was unable to
predict Appellant’s particular claim and respond meaningfully. Nevertheless,
in consideration of the facts of the case, the amount of restitution involved,
and the court’s direct language, we find that Appellant was ordered to pay
$599 forthwith to Lowe’s. We, therefore, find no merit to Appellant’s claim.
Finally, Appellant asserts that the court’s verdict went against the weight
of the evidence when the court unduly attributed great importance and
credence to the identification testimony of Mr. Papadopoulos. Our standard
of review for a weight of the evidence claim is well-settled:
The law pertaining to weight of the evidence claims is well-settled.
The weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the fact, 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. On appeal, our purview
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is extremely limited and is confined to whether the trial court
abused its discretion in finding that the jury verdict did not shock
its conscience. Thus, appellate review of a weight claim consists
of a review of the trial court's exercise of discretion, not a review
of the underlying question of whether the verdict is against the
weight of the evidence.
Commonwealth v. Williams, 255 A.3d 565, 580 (Pa. Super. 2021) (quoting
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015).
(quotation marks and citations omitted)).
Upon close inspection of Appellant’s weight argument, however, we note
that it largely reiterates the failed argument made in his sufficiency claim, that
is, that the Commonwealth’s own video evidence contradicts Papadopoulos’
testimony with respect to the identity of the shoplifter. For the reasons
expressed in disposition of Appellant’s sufficiency claim, we dismiss
Appellant’s weight claim as equally meritless.
Judgment of sentence AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2022
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