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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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