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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT TORRES
Appellant No. 2953 EDA 2013
Appeal from the Judgment of Sentence dated October 18, 2013
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR-0001968-2013
BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 31, 2014
Appellant Robert Torres appeals from a judgment of sentence of the
Court of Common Pleas of Northampton County (trial court), which,
following a jury trial, convicted him of theft by unlawful taking and receiving
stolen property under Sections 3921(a) and 3925(b) of the Crimes Code
(Code).1 For the reasons set forth below, we affirm.
The facts underlying this appeal appear to be undisputed. On May 5,
2013, Officer Albert Strydesky of the Bethlehem Police Department charged
Appellant with theft by unlawful taking and receiving stolen property. In his
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1
Act of December 6, 1972, P.L. 1482, 18 Pa.C.S. §§ 3921(a) and 3925(a),
respectively.
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affidavit of probable cause accompanying the complaint, Officer Strydesky
alleged:
4. I spoke with Cigars International Facilities Manager, Michael
Schenk, who stated that he hid inside the warehouse with a
vantage point observing a pallet of Bugatti B-1 Torch Lighters.
The Bugatti Lighters were on the pallet in individual cardboard
shipping boxes of 120 lighters. He observed an employee,
[Appellant], enter the aisle the [sic] with the Bugatti Lighters.
At the pallet, Michael [Schenk] observed [Appellant] remove a
cardboard shipping box of 120 lighters from the pallet and carry
it away from the pallet. [Appellant] walked to the end of the
pallet rack row, then went to an adjacent row of lockers.
[Appellant] placed the cardboard box into a locker that was
empty and not assigned to any employees. This action of taking
the box of lighters served no legitimate purpose.
5. The lighters are owned by Cigars International and are valued
at $100.00 each. The total for a full box of 120 lighters is
$12,000.00.
Affidavit of Probable Cause, 5/5/13. Ultimately, the case proceeded to a
jury trial, following which Appellant was convicted of theft by unlawful taking
imprisonment. Following his filing of a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal, the trial court issued an opinion in
accordance with Pa.R.A.P. 1925(a). In its Rule 1925(a) opinion, the trial
court determined that there was sufficient evidence to convict Appellant of
theft by unlawful taking and receiving stolen property. Specifically, the trial
have
determined that all of the elements of theft by unlawful taking and receiving
Opinion, 12/20/13, at 3.
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On appeal, Appellant essentially argues that the Commonwealth did
not present sufficient evidence to support his conviction for theft by unlawful
taking and receiving stolen property.
Our standard and scope of review for a sufficiency claim is
well-settled:2
We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-
burden may be met by wholly circumstantial evidence and any
is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Mobley, 14 A.3d 887, 889 90 (Pa. Super. 2011).
Additionall
Commonwealth v.
Coleman, 19 A.3d 1111, 1117 (Pa. Super. 2011).
Section 3921(a) of the Code, relating to theft by unlawful taking,
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2
A challenge to the sufficiency of the evidence is a question of law, subject
to plenary review. Commonwealth v. Williams, 871 A.2d 254, 259 (Pa.
Super. 2005).
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unlawful control over, movable property of another with intent to deprive
Section 3925(a) of the Code, relating
intentionally receives, retains, or disposes of movable property of another
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
Instantly, Appellant does not challenge the facts underlying his
admitted at trial to
corroborate the eye-
without proffering any legal authority, Appellant asserts:
The investigating police officer had the opportunity to enlist the
services of a forensic unit to obtain evidence that would, in fact,
corroborate the only eye-witness to this crime. Those forensic
tests could have revealed that DNA, fingerprints, or other such
samples to prove to the jury that [Appellant] actually had
possession of the merchandise in question. Furthermore, there
was no audio/video evidence that would further corroborate the
eye-witness testimony.
Id.
of the evidence and credibility determinations. As we noted above, this
Court may not re-weigh the evidence or substitute its judgment for that of
the trial court sitting as the fact-finder. See Mobley, 14 A.3d at 889 90.
based on our review of the entire record and viewing the evidence in the
light favorable to the Commonwealth, thereby giving it the benefit of the
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conclusion that the Commonwealth presented sufficient evidence to sustain
property. The trial court specifically found:
the evidence at trial established that [Appellant] was observed
by a manager reporting to work early on the morning of May 5,
2013. [Appellant] was further observed proceeding to a portion
of the warehouse where he was not assigned, removing a box of
specialty lighters from a pallet, and placing the box of lighters in
an empty employee locker. Based upon the evidence presented
at trial, the jury could have reasonably found that [Appellant]
unlawfully took, received, possessed or exercised unlawful
control over the movable property [box of Bugatti lighters] of his
employer.
Trial Court Opinion, 12/20/13, at 3. Accordingly, given the eyewitness
account, the jury could, and did, reasonably infer that Appellant violated
Sections 3921(a) and 3925(a) of the Code.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2014
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