Com. v. Evans, M.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : MICHAEL LEE EVANS, : No. 1781 WDA 2013 : Appellant :

Appeal from the Judgment of Sentence, June 4, 2013, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0015114-2012

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 21, 2015

Michael Lee Evans appeals from the judgment of sentence entered on June 4, 2013, in the Court of Common Pleas of Allegheny County. Following a bench trial, appellant was convicted of theft by unlawful taking, receiving stolen property, and fleeing or attempting to elude police officer. For the following reasons, we reverse and remand for resentencing and affirm on all other bases.

On October 25, 2012, at approximately 5:20 a.m., Officer Robert J. Stipetich was dispatched to the 3600 block of Mt. Troy Road for a vehicle that was reported stolen. The officer was informed that the vehicle, a white Impala, had a GPS system installed which indicated the vehicle was traveling southbound on that road. (Notes of testimony, 6/4/13 at 22.) As the officer traveled to this location, a white Impala passed him in the 2600 block of

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Mt. Troy Road. (Id.) The vehicle had the lettering “ComTransit” on its side in black lettering.

Officer Stipetich turned his marked police vehicle around, followed the Impala, and activated his overhead lights at a stop sign. (Id. at 22-23.) The Impala drove off at a high rate of speed, and the officer followed for a few blocks until the vehicle crashed into a wall. (Id. at 23.) At the scene, Officer Stipetich found appellant unconscious. Once the vehicle was opened, appellant was conscious and alert; paramedics were notified, and he was transported to a hospital. (Id. at 25.) After appellant was removed from the vehicle, the officer noticed the steering column was intact and the keys were in the ignition.

Richard J. McCrosby, a safety supervisor for Communities Transportation, Inc., testified that while heading to work on October 25, 2012, at approximately 4:50 a.m., he was informed that one of the organization’s vehicles was missing from a secured lot. (Id. at 6.) He called the police and stated a white Chevrolet Impala was missing from lot No. 4 River Road. (Id. at 6-7.)

McCrosby testified that although lot No. 4 was equipped with surveillance equipment on the date of the incident, it did not record the theft of the vehicle. He also testified that the vehicles are equipped with a GPS tracking device and a “drive cam device” which measures “any quick stop . . . or lateral G force [motion] from side to side.” (Id. at 7, 11-12.)

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McCrosby viewed a number of videos taken from a camera located inside the vehicle, which pictured the driver. (Id. at 8.) He then identified appellant as the driver and stated that appellant was not an employee of the company, and McCrosby did not know appellant. (Id. at 9.) The video was played for the trial court; the video consisted of various clips taken from a camera located inside the vehicle, which activated when the vehicle moved in certain directions.

McCrosby then described the condition of the vehicle when it was recovered by the police; he stated it was “totaled.” (Id. at 12.) On cross-examination, McCrosby noted the ignition wiring underneath the steering column had not been pulled out or spliced, stated the driver’s side window was intact, and there was no sign of manipulation of the door locks. (Id. at 17.) He testified the keys were likely in the vehicle. (Id. at 19.)

Thereafter, the trial court found appellant guilty of all counts. The court then sentenced appellant to two to four years of incarceration on each of the three counts to run concurrently; he was also sentenced to an additional seven years of probation on each of the three counts to run consecutively to the incarceration and to each other. (Id. at 37.) Appellant filed a timely post-sentence motion, which was denied by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(b). A timely notice of appeal was filed, and appellant complied with the trial court’s order to file a concise statement

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of errors complained of on appeal; the trial court has filed a Rule 1925(a) opinion.

The following issues have been presented for our review:

I. DID THE TRIAL COURT ERR WHEN IT IMPOSED A SENTENCE THAT EXCEEDED THE STATUTORY MAXIMUM AT EACH COUNT AND FAILED TO MERGE THE LESSER INCLUDED OFFENSE FOR PURPOSES OF SENTENCING?

II. DID THE TRIAL COURT ERR WHEN IT RELIEVED THE COMMONWEALTH OF ITS NEVER-SHIFTING BURDEN OF PROVING GUILT, AND REQUIRED MR. EVANS TO PROVE HIS INNOCENCE, WHEN, DURING DEFENSE COUNSEL’S CLOSING ARGUMENT, IT IMPLORED COUNSEL TO PROVIDE AN EXPLANATION FOR WHY MR. EVANS WAS DRIVING THE VEHICLE IN QUESTION?

III. WAS THE CIRCUMSTANTIAL EVIDENCE INSUFFICIENT TO PROVE, BEYOND A REASONABLE DOUBT, THAT MR. EVANS STOLE THE VEHICLE, KNEW IT WAS STOLEN, OR BELIEVED IT WAS PROBABLY STOLEN, WHERE, AMONG OTHER THINGS, THE VEHICLE HAD NO PHYSICAL MANIFESTATIONS OF THEFT WHEN IN MR. EVANS’ POSSESSION?

Appellant’s brief at 6.

Appellant first argues that his sentence is illegal and we must remand for resentencing. Appellant claims that the trial court was limited to imposing a sentence not to exceed seven years’ on each count. Appellant also contends that theft and receiving stolen property convictions merge for the purposes of sentencing.

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This issue was not included in appellant’s Rule 1925(b) statement and was not raised in the trial court. However, challenges to an illegal sentence cannot be waived. Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa.Super. 2009).

The scope and standard of review applied to determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court’s application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001-1002 (Pa.Super. 2006) (citations omitted). A challenge to the legality of a sentence:

is essentially a claim that the trial court did not have jurisdiction to impose the sentence that it handed down . . . . A trial court ordinarily has jurisdiction to impose any sentence which is within the range of punishments which the legislature has authorized for the defendant’s crimes.

Commonwealth v. Cappellini, 690 A.2d 1220, 1226 (Pa.Super. 1997), quoting Commonwealth v. Catanch, 581 A.2d 226, 228 (Pa.Super. 1990).

The Commonwealth concedes that appellant’s arguments are correct and we concur. The statutory maximum penalty for a third degree felony is seven years’ incarceration. 18 Pa.C.S.A. § 1103(3). Thus, appellant’s sentence on each count that involved both incarceration and probation is illegal as it exceeded seven years.

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Appellant is also correct, and the Commonwealth concurs, that the crimes of theft and receiving stolen property should have merged. The crimes arose from the same incident and involved the same stolen item. Where there is but one single act, offenses do not merge unless one offense is a lesser-included offense of the other. This court has previously stated that theft by receiving stolen property is a lesser-included offense of theft by unlawful taking. See Commonwealth v. Rippy, 732 A.2d 1216, 1224 (Pa.Super. 1999) (overruled on other grounds). Therefore, we remand for re-sentencing.

In his second issue, appellant alleges the trial court relieved the Commonwealth of its burden of proof. Appellant argues the trial court “demanded on numerous occasions” that defense counsel provide a reason why appellant was in the vehicle. (Appellant’s brief at 18-19.) We cannot agree.

“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). “When an event prejudicial to a defendant occurs at trial, he may either object, requesting curative instructions, or move for a mistrial.” Commonwealth v. Boring, 684 A.2d 561, 568 (Pa.Super. 1996), appeal denied, 689 A.2d 230 (Pa. 1997). An allegedly prejudicial event at a bench trial requires a prompt objection from defense or a request for a mistrial to preserve the issue for appellate review. Commonwealth v. Rhone, 619 A.2d 1080 (Pa.Super. 1993), appeal

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denied, 627 A.2d 731 (Pa. 1993). “When a case is tried to the court rather than a jury, we will presume the court applied proper legal standards.” Commonwealth v. Hunter, 554 A.2d 550, 558 (Pa.Super. 1989), citing Commonwealth v. Donofrio, 372 A.2d 859, 860 (Pa.Super. 1977) (stating, in non-jury trial, court “is imbued with the knowledge of the law that he would have given in a formal charge in a jury case. . .”).

Appellant directs our attention to the following exchange during closing argument:

THE COURT: Do you want to make any closing comments?

MR. NESS: I would, your Honor.

THE COURT: I am curious; I want to hear your argument.

MR. NESS: Your Honor, I am not going to insult the Court and argue that Mr. Evans was not the individual that was ultimately recovered inside this vehicle. That would defy logic; obviously he was.

THE COURT: Right.

MR. NESS: The question today is whether or not -- primarily let’s start with did he steal the white Impala that morning?

THE COURT: Let me tell you as the statute reads. The actor unlawfully took or exercised unlawful control over an automobile.

You don’t have just take it, but if you exercise unlawful control over an automobile, 2007 Chevy Impala with Community Transportation Inc., written on it, with the intent to deprive the owner thereof, then you are guilty of theft.

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It doesn’t mean you have to take it. If you exercise unlawful control over it.

Now, let me tell you the second charge. It is receiving stolen property. Actor intentionally received, retained or disposed of a vehicle, 2007 Chevrolet, belonging to Community Transit, knowing that it had been stolen or believed it had probably been stolen.

Fleeing or attempting to elude police officers: The actor drove a motor vehicle[,] willfully failed or refused to bring the vehicle to a stop, or otherwise fled or attempted to elude pursuing police officers, having been given visual or audible signals to bring the vehicle to a stop.

Now, you tell me what your argument is.

MR. NESS: Even under unlawful control, theft by unlawful taking, your Honor, the Commonwealth has to prove my client did exercise unlawful control; there has been no testimony --

THE COURT: What is he doing in a Community Transportation vehicle at 4:30 in the morning, driving at 50 miles an hour, fleeing the police officers with a light on?

MR. NESS: They still haven’t demonstrated that he knew it was stolen, or otherwise potentially stolen. It is to produce that he would have known that.

THE COURT: Why he would be in a vehicle that belongs to Community Transportation, a white 2007 Chevy with Community Transportation written on both sides? What’s the reason for him being in it?

MR. NESS: I don’t necessarily believe my client has to offer an explanation, your Honor.

THE COURT: Okay.

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MR. NESS: But I would pose to you, that there is -- all the other signs that an individual would usually have known that a car is stolen are absent in this case. The steering column is intact, the wiring is intact; the locking mechanism is intact.

THE COURT: Why is he in the car?

MR. NESS: I could draw any number of possibilities, your Honor.

THE COURT: Give me one logical explanation why he is driving the Community Transportation vehicle, at four in the morning?

MR. NESS: Why is he driving in the morning? Perhaps he needed to run to the convenience store. How did he get the vehicle? Perhaps someone else stole the vehicle and allowed him to use it. I could throw out all kinds of different possibilities.

THE COURT: Give me one that makes sense.

MR. NESS: Someone -- another individual stole the car. We don’t know what time the -- time the crime occurred. In an effort to get rid of the vehicle, they passed it to Mr. Evans. Mr. Evans needed some type of other items, goes to the convenience store. And as a result the police officers -- Also, with regards to the fleeing and eluding, your Honor, they have to have a felony elevation of the statute. They have to prove that he was otherwise speeding. He was going fast. And there is no testimony offered regarding the exact speed or whether or not --

THE COURT: Well, what if he crashes into a wall? Does that mean he is going faster --

MR. NESS: Perhaps he it [sic] was driving recklessly, but not necessarily to the grading of a felony.

THE COURT: Very well. Any other from the defense?

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Mr. McKendry, what are your thoughts? You don’t need to make any argument, I am finding him guilty of all counts.

Notes of testimony, 6/4/13 at 31-35.

As the trial court notes, the record reflects counsel did not promptly object to the court’s “pointed inquiries about his client’s unexplained possession of the car” and argue such was an improper shift of the burden of proof to appellant. (Trial court opinion, 3/5/14 at 9.) Nor did counsel move for a mistrial. Consequently, we could find appellant failed to preserve this issue for appellate review.

Nevertheless, we disagree with appellant’s assertion that the trial court’s comments evidenced that the court had shifted the burden of proof following this non-jury trial. Sitting as fact-finder, the trial court is presumed to have applied the proper legal standard regarding the burden of proof. See Hunter, supra; Donofrio, supra. The court gave the testimony the weight it deemed appropriate and gauged the credibility of the Commonwealth’s witnesses. See also Commonwealth v. McCall, 911 A.2d 992 (Pa.Super. 2006) (holding trial court did not shift burden of proof to defendant by commenting, just prior to reaching verdict in a bench trial, that no evidence detracted from conclusion that defendant was a member of conspiracy; the court’s reflection on production of evidence was fair commentary, and presented no grounds for reversal). Even if properly preserved, we would decline to disturb the court’s verdict on this ground.

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The final issue presented challenges the sufficiency of the evidence. (Appellant’s brief at 26.) We must first determine if this claim was preserved for review in appellant’s Rule 1925(b) statement. Rule 1925(b)(4) provides, in pertinent part, as follows:

The Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge.

Pa.R.A.P. 1925(b)(4)(ii). Pursuant to Rule 1925(b)(4)(vii), “Issues not included in the Statement and/or not raised in accordance with [Rule 1925(b)(4) ] are waived.” As our supreme court recently reiterated:

Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule’s terms; the Rule’s provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule’s requirements.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

In his Rule 1925(b) statement, appellant stated the following pertaining to the instant issue:

a. The verdict of guilty on counts 1 and 2 was rendered contrary to the weight of the evidence presented at trial, as the “evidence presented” was so contrary to the verdict rendered that it shocks one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to

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prevail.” Commonwealth v. Smith, 861 A.2d 892, 295 (Pa.Super. 2004). Count 1 required the Commonwealth to prove [appellant] either stole the vehicle or exercised unlawful control over it, and Count 2 required the Commonwealth to prove he knew or should have known the vehicle was stolen. The Commonwealth presented no evidence of when, how, or even if the vehicle in question was illegally taken from the premises. The Commonwealth presented no testimony by any witness with any firsthand knowledge of the alleged theft of the vehicle. Additionally, it “shocks one’s sense of justice that the Court convicted [appellant] based on the theory that possession of the vehicle alone equated to the unproved assumption that he stole, or otherwise knew it was stolen.

Docket #16.

We agree with the trial court that appellant’s “assertions sound like sufficiency challenges dressed in weight clothes. The mere genuflection to the correct legal standard does not transpose what is a sufficiency argument into a weight challenge.” (Trial court opinion, 3/5/14 at 3-4.) Appellant has waived his claim that the evidence was insufficient to support his convictions of theft and receiving stolen property as he did not present a sufficiency claim in his Rule 1925(b) statement; rather, his challenges to these convictions were styled as a weight of the evidence claim.

Sufficiency of the evidence claims are distinct from weight of the evidence claims, as there are different standards of review as well as separate remedies involved. Commonwealth v. Whiteman, 485 A.2d 459 (Pa.Super. 1984). Indeed, in making a claim that the verdict was against

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the weight of the evidence, it is conceded that there was sufficient evidence to sustain the verdict. Commonwealth v. Murray, 597 A.2d 111, 113 (Pa.Super. 1991), appeal denied, 605 A.2d 333 (Pa. 1992), citing Commonwealth v. Taylor, 471 A.2d 1228 (Pa.Super. 1984). Thus, the claims presented in appellant’s brief are technically waived.

However, the trial court addressed appellant’s argument and found the sufficiency claim to be meritless. Thus, we have carefully reviewed the briefs, the relevant law, the record, and the well-reasoned opinion authored by the Honorable Joseph K. Williams, III. We find that Judge Williams’ opinion correctly disposes of the issues presented, and accordingly, we affirm the conviction based on the trial court’s opinion. (Trial court opinion, 3/5/14 at 4.)

Conviction affirmed. Case remanded for resentencing. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/21/2015

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