Com. v. Montgomery, J.

J-S12027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOSEPH ANTHONY MONTGOMERY,

Appellant No. 1894 EDA 2014

Appeal from the Judgment of Sentence May 8, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006055-2013

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 27, 2015

Appellant, Joseph Anthony Montgomery, appeals from the May 8, 2014

judgment of sentence entered in the Court of Common Pleas of Delaware

County following a jury trial. We affirm.

The trial court summarized the facts of the crime as follows:

At approximately 8:15 a.m. on the morning of July 25,
2012, Pennsylvania State Police responded to reports of a
possible robbery that occurred at 127 Barren Road, Media,
Delaware County, Pennsylvania. (N.T. 4/8/2012 pp. 139-40).
This location is a business, more specifically, Middletown
Archery. Upon arrival, police observed that the pane of glass in
the top half of the door was shattered, and there was a large
rock lying next to the door. (N.T. 4/8/2012 p. 140). Trooper
Jeffrey Hand was the first Trooper to arrive on the scene.
Additional police also arrived to assist with the investigation a
short time later.
____________________________________________

*
Former Justice specially assigned to the Superior Court.
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After the building had been cleared for any possible
intruder, police began their investigation into the alleged
robbery. Police proceeded by contacting the owner of the
archery shop, Grace Hadmeck, who lived right next to the shop,
the two buildings being separated by a common parking lot.
(N.T. 4/8/2012 p. 143). Ms. Hadmeck closed up the archery
shop at approximately 9:00 p.m. on July 24, 2012, making sure
to turn the heat off, turn on the alarm system, and lock the
doors. (N.T. 4/9/2012 pp. 8-9). At around 2 a.m. on July 25,
2012, her dog’s barking awakened her. (N.T. 4/8/2012 p. 154).
Ms. Hadmeck thought the dog’s agitated demeanor was strange
because the dog is usually quiet and sleeps through the night in
her room. (N.T. 4/8/2012 p. 154).

Police entered Middletown Archery with Ms. Hadmeck in
order to assess the damage and determine if any items had been
stolen from the shop. The front door that had been broken into
was the only point of entry for the shop. Police noticed that the
wires used to secure the archery bows to the racks had been
cut, a sign that they had been stolen. (N.T. 4/8/2012 p. 156).
Troopers and Ms. Hadmeck began to inventory what items had
been stolen from the shop. Middletown Archery sells equipment
and components for all varieties of archery, including: field
archery, 3-D archery, target archery, recreational archery, and
hunting archery. (N.T. 4/9/2012 p. 8). The compound bows
and crossbows that were stolen were used almost exclusively for
hunting archery. (N.T. 4/9/2012 pp. 13-14). The value of the
bows and crossbows that were stolen was over $19,000.00.
(N.T. 4/8/2012 p. 152). There was other archery equipment
that was left behind in the store, primarily for other types of
archery, and that merchandise had very similar value to the
items that were stolen from the shop. (N.T. 4/9/2012 pp. 13-
14). A forensics investigation of the inside of the shop, as well
as the exterior of the building yielded no evidence that tied the
Appellant to the scene. (N.T. 4/8/2012 pp. 183-84).

At approximately 4:30 a.m. on the morning in question,
Ralph Miles, a neighbor of the Appellant’s, observed a red Ford
Tempo driving up their road with the trunk popped half-open
with a tarp covering the contents. (N.T. 4/8/2012 pp. 210-16).
Mr. Miles witnessed the Appellant driving the vehicle, and knew
that the red Ford Tempo was the Appellant’s. Mr. Miles observed
the Appellant and his son exit the vehicle once it was parked in

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front of the Appellant’s home, and take something out of the
backseat of the car, then walk into the house. (N.T. 4/8/2012 p.
218). The Appellant then came back outside, got into his [car],
and proceeded to drive the vehicle to his backyard. (N.T.
4/8/2012 pp. 219-20). Mr. Miles observed the Appellant and his
son taking objects out of the trunk of the vehicle, but he was
unable to see exactly what they were moving. Then, after a
conversation with the Appellant’s son, Mr. Miles walked over to
the Appellant’s backyard to speak to the Appellant. (N.T.
4/8/2012 p. 221).

Mr. Miles walked up to the Appellant, who was still by his
vehicle, and observed some ten (10) to twenty (20) archery
bows in the back of the vehicle. (N.T. 4/8/2012 p. 225). The
Appellant offered to sell Mr. Miles one of the bows, which Mr.
Miles knew to have an estimated value of $800 to $1000, for
only $400. (N.T. 4/8/2012 pp. 226-27). The Appellant told Mr.
Miles that he had to get rid of them because he and his son had
gotten the bows from Middletown Archery. (N.T. 4/8/2012 p.
230). Mr. Miles knew the Appellant was not working at the time
when this incident occurred and there were too many bows for
the Appellant to be able to afford all of them. (N.T. 4/8/2012
pp. 239-40). A day or so later, the Appellant told Mr. Miles that
all of the bows were gone. (N.T. 4/8/2012 pp. 240-41). Mr.
Miles observed several vehicles pull up to the Appellant’s home
from the time that he first observed the bows in the back of the
Appellant’s car, until the time the Appellant stated that all of the
bows were gone. (N.T. 4/8/2012 p. 241). Mr. Miles knew the
Appellant had kept at least one bow, a 10-point crossbow for his
son, but was unaware if the Appellant kept any other bows.
(N.T. 4/8/2012 p. 242). The Appellant told Mr. Miles that he had
pawned the crossbow at Aston Pawn Shop in December of that
year because he needed money, and that he would have to get
the bow back before his son found out. (N.T. 4/8/2012 pp. 246-
50).

Mr. Miles eventually contacted police, and later provided a
written statement about the hunting bows he observed in the
Appellant's vehicle, and the conversations that he had with the
Appellant. (N.T. 4/8/2012 pp. 244, 254-55). Mr. Miles also
went to Aston Pawn Shop and placed the crossbow on layaway
so that no one would buy the bow, and Police would be able to
recover it from the Pawn Shop. (N.T. 4/8/2012 p. 250-51).
Equipped with this information after having several in-person[]

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conversations with Mr. Miles, State Trooper Robert Kirby
retrieved the crossbow from the Aston Pawn Shop. The owner of
Aston Pawn Shop was able to identify the individual who had
pawned the crossbow to the store as the Appellant through the
store records. (N.T. 4/9/2012 p. 66). Trooper Kirby then took
the bow to Ms. Hadmeck, who was able to affirmatively identify
the crossbow as one that had been stolen from Middletown
Archery. (N.T. 4/9/2012 pp. 68-69).

Trial Court Opinion, 8/14/14, at 1–4.

Appellant was arrested on August 23, 2013, and charged with

burglary, criminal conspiracy to commit burglary, criminal trespass, and

driving while operating privilege was suspended or revoked. A jury trial

commenced on April 8, 2014, and on April 9, 2014, the jury found Appellant

guilty of all charges. The trial court sentenced Appellant on May 8, 2014, to

fifteen to thirty-six months of imprisonment for burglary, a consecutive term

of fifteen to thirty-six months of incarceration for criminal conspiracy to

commit burglary, a concurrent term of sixteen to thirty-two months of

imprisonment for criminal trespass; and a concurrent term of ninety days of

incarceration for driving while operating privilege was suspended due to

driving under the influence, plus payment of a $1,000.00 fine. N.T., 5/8/14,

at 19–20.

On May 12, 2014, Appellant filed two timely post-sentence motions, as

follows: (1) Motion for Post-Sentence Relief Pursuant to Rule 720(B), and

(2) Motion for Reconsideration of Sentence. That same day, defense counsel

filed a Petition to Withdraw Representation, which the trial court granted on

July 17, 2014. In two orders dated May 28, 2014, the trial court denied

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both the Motion for Post-Sentence Relief Pursuant to Rule 720(B) and the

Motion for Reconsideration of Sentence. On June 26, 2014, new counsel

filed a timely notice of appeal to this Court. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

Whether the evidence was insufficient to support the
charges of burglary, conspiracy to commit burglary and criminal
trespass because the Commonwealth did not prove each element
of the crimes beyond a reasonable doubt?

Appellant’s Brief at 5.

In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as

verdict winner, were sufficient to prove every element of the offense beyond

a reasonable doubt. Commonwealth v. James, 46 A.3d 776, 779 (Pa.

Super. 2012). It is within the province of the fact-finder to determine the

weight to be accorded to each witness’s testimony and to believe all, part, or

none of the evidence. Commonwealth v. Cousar, 928 A.2d 1025 (Pa.

2007); Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence. Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011).

Moreover, as an appellate court, we may not re-weigh the evidence and

substitute our judgment for that of the fact-finder. Commonwealth v.

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Ratsamy, 934 A.2d 1233 (Pa. 2007); Commonwealth v. Brown, 23 A.3d

544 (Pa. Super. 2011). Any doubts regarding a defendant’s guilt may be

resolved by the fact-finder unless the evidence is so inconclusive that as a

matter of law no probability of fact may be drawn from the circumstances.

Moreno, 14 A.3d at 133.

Appellant’s argument that the verdict is not supported by sufficient

evidence is based on his contention that the “jury made a collective mistake

when it convicted Appellant . . . .” Appellant’s Brief at 10. Appellant asserts

the jury “employed surmise and speculation” because it “evidently” believed

that Mr. Miles had knowledge that the bows were stolen. Id. at 10.

We conclude that Appellant’s challenge to the sufficiency of the

evidence is waived because Appellant failed to specify which elements of the

crimes were not satisfied. In Commonwealth v. Samuel, 102 A.3d 1001

(Pa. Super. 2014), we stated, “In order to develop a claim challenging the

sufficiency of the evidence properly, an appellant must specifically discuss

the elements of the crime and identify whose which he alleges the

Commonwealth failed to prove.” Id. at 1005. Here, such specificity is

lacking in Appellant’s claim of error, and therefore, Appellant’s claim is

unreviewable.1

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1
Even if not waived, the trial court completely addressed the sufficiency of
evidence supporting Appellant’s convictions, and we would rely on the
(Footnote Continued Next Page)

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Judgment of sentence affirmed.

Judge Bowes joins the Memorandum.

Justice Fitzgerald Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/2015

_______________________
(Footnote Continued)

thorough explanation provided by the trial court in its opinion. Trial Court
Opinion, 8/14/14, at 7–16.

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