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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOSE LUIS BATISTA
Appellant No. 178 MDA 2014
Appeal from the Judgment of Sentence November 26, 2013
In the Court of Common Pleas of York County
Civil Division at No(s): CP-67-CR-0003680-2013
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 07, 2014
Appellant, Jose Luis Batista, appeals from the judgment of sentence
entered November 26, 2013, by the Honorable Gregory M. Snyder, Court of
-appointed
counsel, Michael A. Rutt, Esquire, has filed an application to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). After
petition to withdraw.
Shortly after midnight on April 5, 2013, York City Police Officer
Matthew DeWitt was on routine patrol when he observed Batista walking up
the porch to a residence located at 605 West Princess Street. See N.T., Jury
Trial, 10/11/13 at 64-65. When Officer DeWitt drove by the residence again
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a few minutes later, he observed Batista walking down the street carrying a
50-inch flat screen television. See id. at 6. Officer DeWitt stopped his
vehicle to question Batista, who said that he had purchased the television for
$40 from an African-American male and gestured vaguely to the end of the
block. See id. at 66. When Officer DeWitt asked Batista where his home
was, Batista pointed westbound on West Princess Street; although at the
time, he was walking eastbound. See id.
At this point, two other officers went to the residence Batista was last
observed walking to at 605 West Princess Street, where the residents were
sound asleep. See id. As the residents turned on the lights in their living
room, they noticed that a large television was missing. See id. at 67. Also
missing from the home was an iPod Nano and a white DVD remote, both of
See id. at
68. Batista then admitted to Officer DeWitt that he had obtained the items
from the house. See id. at 69.
Batista was arrested and charged with Burglary,1 Criminal Trespass,2
Theft by Unlawful Taking-Movable Property,3 and Receiving Stolen Property.4
Following a jury trial, Batista was convicted of all charges. On November 25,
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1
18 Pa.C.S.A. § 3502(a)(1).
2
18 Pa.C.S.A. § 3503(a)(1)(i).
3
18 Pa.C.S.A. § 3921(a).
4
18 Pa.C.S.A. § 3925(a).
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Batista did not file post-sentence motions. This appeal followed.
As noted, Attorney Rutt has requested to withdraw and has submitted
an Anders
frivolous. The Pennsylvania Supreme Court has articulated the procedure to
be followed when court-appointed counsel seeks to withdraw from
representing an appellant on direct appeal:
[I]n the Anders brief that accompanies court-appointed
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel arguably believes supports the appeal; (3) set
appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Commonwealth v. Santiago, 602 Pa. 159, 178-79, 978 A.2d 349, 361
(2009).
We note that Attorney Rutt has complied with all of the requirements
of Anders as articulated in Santiago. Additionally, Attorney Rutt confirms
that he sent a copy of the Anders brief to Batista as well as a letter
explaining to Batista that he has the right to proceed pro se or the right to
Commonwealth v.
Millisock
faci must attach as an exhibit to the
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petition to withdraw filed with this Court a copy of the letter sent to
Id. at 749 (emphasis in
original).
We will now proceed to examine the issues counsel set forth in the
Anders brief.5
weight and sufficiency of the evidence. Preliminarily, we note that weight
of the evidence claim must be preserved either in a post-sentence motion,
Commonwealth v. Thomson, --- A.3d ---, 2014 WL 2131965 at *9 (Pa.
Super., filed May 22, 2014) (citing Pa.R.Crim.P. 607). Failure to do so will
result in waiver of the claim on appeal. See id.
Instantly, Batista failed to raise a challenge to the weight of the
evidence to support his conviction either at sentencing or in a post-sentence
motion. Therefore, this claim is waived. See id.
Batista alternatively challenges the sufficiency of the evidence to
support his convictions. We review a challenge to the sufficiency of the
evidence as follows:
The standard we apply when 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
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judgment for the 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 actually 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. Furthermore, when reviewing a sufficiency
claim, our Court is required to give the prosecution the benefit of
all reasonable inferences to be drawn from the evidence.
However, the inferences must flow from facts and
circumstances proven in the record, and must be of such volume
and quality as to overcome the presumption of innocence and
satisfy the jury of an accused's guilt beyond a reasonable doubt.
The trier of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on suspicion will fail
even under the limited scrutiny of appellate review.
Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)
(citation omitted).
As noted, a jury convicted Batista of Burglary, Criminal Trespass, Theft
by Unlawful Taking - Moveable Property, and Receiving Stolen Property. An
individual is guilty of burglary under 18 Pa.C.S.A. § 3502(a)(1) where he
enters a building or occupied structure, or separately secured or occupied
portion thereof that is adapted for overnight accommodations in which at the
o commit a crime
therein.
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An individual commits the offense of trespass pursuant to 18 Pa.C.S.A.
he: (i) enters, gains entry by subterfuge or surreptitiously remains in any
building or occupied structure or separately secured or occupied portion
A person commits the offense of theft by unlawful taking moveable
property if he unlawfully takes, or exercises unlawful control over, movable
property of another wi
3921(a).
Finally, a person is guilty of receiving of stolen property if he
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
on
Based on the evidence presented by the Commonwealth, we do not
hesitate to find that the evidence was sufficient to support the elements of
cer DeWitt observed
Batista on the porch to the residence at 605 West Princess Street and then
again, several minutes later, walking down the street carrying a large flat
screen television. Two responding officers woke the sleeping residents at
605 West Princess Street, who noticed that their flat screen television was
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missing, along with an iPod Nano and a white DVD remote. These latter
Officer DeWitt that he had retrieved the items from the house.
The residents of 605 West Princess Street, T-Harra Riviera and Abel
Torrez, also testified at trial. Riviera testified that when she was awoken by
police on April 5, 2013, she noticed that her 50-inch Sony flat screen
television was missing. See N.T., Jury Trial, 10/11/13 at 74. Riviera
testified that when she went to bed, the front door was closed and locked.
See id. at 75. When the police arrived later that evening, Riviera observed
that the basement window was broken and the front door was open and
unlocked. See id. at 75-76. Torrez testified that he did not know Batista,
and had never sold him the television or granted him permission to enter the
premises and take the television. See id. at 79. Torrez identified the
residence. See id. at 81-82.
After examining the issues contained in the Anders brief and
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Permission to withdraw as counsel is
granted. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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