J-S52037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BURNELL WILLIAMS
Appellant No. 314 WDA 2015
Appeal from the Judgment of Sentence of January 8, 2015
In the Court of Common Pleas of Butler County
Criminal Division at No.: CP-10-CR-0001775-2013
BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 20, 2015
Burnell Williams appeals his January 8, 2015 judgment of sentence,
which was entered following his convictions of theft by unlawful taking of
movable property, criminal conspiracy, retail theft, and receiving stolen
property.1 We affirm.
The evidence adduced at trial, viewed in the light most favorable to
the Commonwealth as verdict-winner, supports the following account of the
factual and procedural history of this case. On January 29, 2013, Burnell
Williams, Melinda Pounds, and Paul Druschel drove together in Williams’ car
from New Castle, Pennsylvania, to a convenience store located in Cranberry
Township, Pennsylvania, for the sole purpose of shoplifting in that store.
____________________________________________
1
18 Pa.C.S. §§ 3921(a), 903(c), 3929(a)(1), and 3925(a), respectively.
J-S52037-15
Upon arriving at the store, Williams, Pounds, and Druschel entered and
began to conceal store items under their clothes. An employee at the store
noticed one of the individuals attempting to shoplift and notified the store
manager, Steven Knight. Before Knight could inspect the situation, Druschel
exited the store with several bottles of shampoo bulging out of his jacket.
Knight followed Druschel out of the store and confronted him. Druschel
immediately returned the items to Knight and returned to Williams’ car.
Before Druschel could leave, Knight used his cellphone to take pictures of
him and Williams’ car. Knight then called the police to report the incident.
Immediately thereafter, Druschel drove away in William’s car without Pounds
or Williams. Knight returned to the store.
After witnessing the confrontation between Knight and Druschel,
Williams and Pounds abandoned the items in their possession and exited the
store. Pounds and Williams realized that Druschel had departed without
them. Officer Mike Kramer then arrived at the store. He observed Williams
and Pounds walking outside of the store; however, he was unaware at that
moment that Williams and Pounds were associated with the reported
shoplifting incident.
At some point between Druschel’s departure and Officer Kramer’s
arrival, Williams came into possession of Knight’s car keys.2 Williams and
____________________________________________
2
It is unclear precisely how Williams came into possession of Knight’s
car keys. However, the record suggests that Knight may have dropped his
(Footnote Continued Next Page)
-2-
J-S52037-15
Pounds located Knight’s car by using the remote attached to Knight’s car
keys. After locating Knight’s car, Pounds and Williams stole Knight’s car and
left the store parking lot. Williams drove the vehicle, and Pounds sat in the
front passenger seat. Upon departing the store parking lot, Williams and
Pounds passed Officer Kramer in his patrol car. Officer Kramer observed the
car and recognized Pounds and Williams as the individuals who he had seen
earlier walking near the convenience store. Pounds and Williams drove
together back to New Castle, Pennsylvania.
After finishing work several hours later, Knight left the store. Upon
leaving the store, Knight realized that his car and his car keys were missing.
Knight immediately called the police to report that his car had been stolen.
Later that evening, New Castle police recovered Knight’s car in New Castle,
Pennsylvania, and the car was returned to Knight.
The following day, Detective Matthew Irvin was assigned to investigate
the reported retail theft and subsequent car theft. Regarding the retail theft,
Detective Irvin learned that the car that Knight witnessed Druschel driving
belonged to Williams and his former girlfriend, Ashley Shirley. A few weeks
later, Detective Irvin contacted Shirley and Williams. Detective Irvin
interviewed Williams on February 19, 2013. During that interview, Williams
_______________________
(Footnote Continued)
keys onto the ground outside of the convenience store during his initial
confrontation with Druschel.
-3-
J-S52037-15
acknowledged that he was involved in the retail theft with Pounds and
Druschel. However, he denied stealing Knight’s car.
On May 14, 2013, the police filed a criminal complaint against
Williams. Williams was arrested on June 4, 2013. Williams posted bail on
June 25, 2013.
On December 12, 2014, Williams filed a motion in limine seeking, in
part, to exclude Officer Kramer’s identification of him, which the trial court
denied. After a one-day jury trial, Williams was convicted of theft by
unlawful taking of movable property, criminal conspiracy, and receiving
stolen property on December 16, 2014.3 On January 8, 2015, the trial court
sentenced Williams to two to four years’ imprisonment on the criminal
conspiracy count, and to two to four years’ imprisonment on the theft by
unlawful taking of movable property count, which the court ordered to run
concurrently with the criminal conspiracy count. Williams also received a
sentence of guilt with no further penalty on both the receiving stolen
property count and the retail theft count. Williams was ordered to pay
$972.89 to Knight in restitution. On January 9, 2015, Williams filed a post-
sentence motion, which was denied by the trial court on January 23, 2015.
____________________________________________
3
Separate from the jury’s verdict, but during the same proceeding, the
trial court, from the bench, found Williams guilty of retail theft, 18 Pa.C.S. §
3929(a)(1), a summary offense.
-4-
J-S52037-15
On February 3, 2015, Williams simultaneously filed a notice of appeal
and application for leave to appeal in forma pauperis. On February 9, 2015,
the trial court granted Williams’ request to proceed in forma paupris and
directed him to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Williams timely filed his concise statement
on February 23, 2015. On March 2, 2015, the trial court filed an opinion
pursuant to Pa.R.A.P. 1925(a).
Williams raises two issues for our review:
I. Whether the weight and sufficiency of the evidence
presented by the Commonwealth is enough to sustain the
guilty verdict rendered for the offense of criminal
conspiracy, theft by unlawful taking[,] and receiving stolen
property?
II. Whether the trial court abused its discretion, or erred as a
matter of law, by denying [Williams’] motion in limine to
exclude the testimony of Officer Kramer?
Brief for Williams at 9 (capitalization omitted; italics added).
In his first issue, Williams generally challenges the weight and the
sufficiency of the evidence developed by the Commonwealth to convict him
of criminal conspiracy, theft by unlawful taking, and receiving stolen
property. Williams does not raise any challenge regarding his conviction of
retail theft. Although Williams combines his weight and sufficiency
challenges into a single issue, he addresses those issues separately within
his brief. Accordingly, we will review Williams’ sufficiency challenges first.
When examining a challenge to the sufficiency of evidence:
-5-
J-S52037-15
The standard we apply . . . 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 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.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).
In order for the jury to convict Williams of theft by unlawful taking of
movable property, the Commonwealth must establish that Williams had
“unlawfully take[n], or exercise[d] unlawful control over, movable property
of another with the intent to deprive him thereof.” 18 Pa.C.S. § 3921(a).
Movable property is defined as “[p]roperty the location of which can be
changed.” 18 Pa.C.S. § 3901. Property of another is defined as “property in
which any person other than the actor has an interest which the actor is not
privileged to infringe.” Id. Deprive is defined as “dispos[ing] of the
property so as to make it unlikely that the owner will recover it.” Id.
-6-
J-S52037-15
In response to the retail theft complaint, Officer Kramer arrived at the
convenient store and observed Williams and Pounds walking outside of the
store. Notes of Testimony (“N.T.”), 12/16/2014, at 62-63. Shortly
thereafter, while driving in his patrol car, Officer Kramer observed Williams
and Pounds traveling in a green Dodge Intrepid on a road near the
convenience store. Id. at 65. Officer Kramer searched the license plate
number of the vehicle, because he recognized Pounds as the individual who
was walking in front of the convenience store fifteen minutes earlier. Id. As
a result of Officer Kramer’s search, he learned that the vehicle was
registered to Steven Knight. Id. at 66. Knight’s car, at that moment, was
not reported as stolen. Id.
Williams points out that Knight “was not able to determine at what
time or location in which he lost control over his vehicle keys.” Brief for
Williams at 17. To the extent that Williams argues that he was not in
possession of Knight’s car keys, we note that circumstantial evidence is
sufficient to prove any element or all of the elements of unlawful taking of
movable property. Commonwealth v. Quel, 27 A.3d 1033, 1041-42
(Pa. Super. 2011).
In the present matter, Pounds testified that, after leaving the store,
she realized that Druschel had driven away in Williams’ car leaving her and
Williams behind. N.T. at 46. Immediately thereafter, Pounds witnessed
Williams pull a set of car keys from his pocket, which he then used to
operate Knight’s car and drive himself and Pounds back to New Castle,
-7-
J-S52037-15
Pennsylvania. Id. Furthermore, Knight testified that he did not give anyone
permission to drive his car that day. Id. at 33. Detective Irvin also testified
that Knight’s car was recovered by police only a few blocks from Williams’
residence in New Castle. Id. at 96-99. Viewing all of 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 unlawful taking of
movable property beyond a reasonable doubt.
Williams next challenges the sufficiency of the evidence developed by
the Commonwealth to convict him of receiving stolen property. Brief for
Williams at 16. In order for the jury to convict Williams of receiving stolen
property, the Commonwealth must establish that Williams “intentionally
receiv[ed], retain[ed], or dispos[ed] of movable property of another knowing
that it has been stolen, or believing that it has been probably stolen, unless
the property is received, retained, or disposed with intent to restore it to the
owner.” 18 Pa.C.S. § 3925(a). Receiving is defined as “acquiring
possession, control or title, or lending on the security of property.” 18
Pa.C.S. § 3925(b).
Williams’ argument hinges upon his contention that Officer Kramer’s
identification of him as the driver of Knight’s car was unreliable, and that
“[t]he testimony of [Pounds] is completely unreliable and self-serving.”
Brief for Williams at 16. However, in reviewing the sufficiency of the
evidence, we may not weigh the evidence and substitute our judgment for
the fact-finder. Commonwealth v. Yong, 120 A.3d 299, 311 (Pa. Super.
-8-
J-S52037-15
2015). A challenge to the indefiniteness or uncertainty of certain
identification testimony goes to its weight and is not relevant to our review
of sufficiency of the evidence claims. Commonwealth v. Orr, 38 A.3d 868,
874 (Pa. Super. 2011). Williams does not make any other specific argument
relating to the sufficiency of the evidence regarding receiving stolen
property. Hence, this claim necessarily fails.
Williams also challenges the sufficiency of the evidence developed by
the Commonwealth to convict him of criminal conspiracy. Id. In order to
convict Williams of criminal conspiracy, the Commonwealth must have
established that Williams entered into an agreement to commit or aid in an
unlawful act with another person; that he and that person acted with a
shared criminal intent; and that an overt act was taken in furtherance of the
conspiracy. 18 Pa.C.S. § 903. Further, “[i]f a person conspires to commit a
number of crimes, he is guilty of only one conspiracy so long as such
multiple crimes are the object of the same agreement or continuous
conspiratorial relationship.” 18 Pa.C.S. § 903(c).
In most cases of conspiracy, it is difficult to prove an explicit or formal
agreement or agreements; hence, the agreement is generally established via
circumstantial evidence, such as by the relations, conduct, or circumstances
of the parties or overt acts on the part of co-conspirators. Commonwealth
v. Sanchez, 82 A.3d 943, 973 (Pa. 2013). However, Pounds testified that
she, Williams, and Druschel planned to drive to the store together and steal
from that store. N.T. at 43. Additionally, during his interview with Detective
-9-
J-S52037-15
Irvin, Williams confessed that he traveled to the convenience store with
Druschel and Pounds in order to shoplift. N.T. at 91. This evidence
demonstrated that the participants shared the same criminal intent, and that
they acted upon that intent. Entering the store together, and commencing
to conceal unpaid-for items suffice as overt acts. Consequently, there was
ample evidence of a criminal conspiracy.
Moreover, after realizing that Druschel had departed in Williams’ car
without her and Williams, Pounds testified, “[t]hat’s when [Williams] pulled
the keys from his pocket and beeped for the car. Once we found the car we
got in and we left.” Id. at 46. To the extent that Williams now argues that
there was no specific agreement to steal Knight’s car, a conspiracy can
germinate instantaneously based upon changing circumstances. The car
that Pounds and Williams departed in was not the car in which they arrived.
Further, Pounds’ testimony is evidence of an explicit agreement between her
and Williams to steal Knight’s car. Accordingly, there is sufficient evidence
to support a finding of criminal conspiracy with multiple criminal objectives
when Williams and Pounds agreed to leave the store together in Knight’s car.
Williams next claims that the jury’s verdict was against the weight of
the evidence.4 Brief for Williams at 18-20. As previously discussed,
Williams did not raise any weight challenge regarding his retail theft
____________________________________________
4
Pursuant to Pa.R.Crim.P. 607(A)(3), Williams preserved his weight
challenge in his post-sentence motion.
- 10 -
J-S52037-15
conviction. Accordingly, we review the weight of the evidence only as to
Williams’ convictions for criminal conspiracy, theft by unlawful taking, and
receiving stolen property.
An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. Commonwealth v. Dupre,
866 A.2d 1089, 1101 (Pa. Super. 2005), (citing Commonwealth v.
Sullivan, 820 A.2d 795, 805–806 (Pa. Super. 2003) (quoting
Commonwealth v. Widmer, 744 A.2d 745, 751–752 (Pa. 2000))). The
Pennsylvania Supreme Court has explained that “[a]ppellate review of a
weight claim is a review of the exercise of discretion, not of the underlying
question of whether the verdict is against the weight of the evidence.”
Widmer, 744 A.2d at 753 (citation omitted). To grant a new trial on the
basis that the verdict is against the weight of the evidence, this Court has
explained that “the evidence must be ‘so tenuous, vague and uncertain that
the verdict shocks the conscience of the court.’” Sullivan, 820 A.2d at 806
(quoting Commonwealth v. La, 640 A.2d 1336, 1351 (Pa. Super. 1994)).
[This Court shall not undertake to reassess credibility of
witnesses, as] it is well settled that we cannot substitute our
judgment for that of the trier of fact. Commonwealth v.
Holley, 945 A.2d 241, 246 (Pa. Super. 2008). Further, the
finder of fact was free to believe the Commonwealth’s witnesses
and to disbelieve the witness for the Appellant. See
Commonwealth v. Griscavage, 517 A.2d 1256 (Pa. 1986) (the
finder of fact is free to believe all, none, or part of the testimony
presented at trial).
- 11 -
J-S52037-15
Commonwealth v. Bozic, 997 A.2d 1211, 1223-24 (Pa. Super. 2010)
(citing Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009))
(citations modified).
To support his weight of the evidence claim, Williams essentially
reiterates his sufficiency argument and contends that the “Commonwealth’s
witnesses presented testimony that was unreliable, tenuous[,] and vague.”
Brief for Williams at 18. Although some inconsistencies existed in the
testimony produced at trial, the jury was free to believe, or not to believe,
all, none, or part of that testimony. Having reviewed the entire record, we
conclude that the record supports the jury’s verdict, and we discern no basis
upon which to conclude that the trial court abused its discretion by
concluding that the jury’s verdict failed to shock that court’s conscience.
In his final issue, Williams argues that the trial court erred by denying
his motion in limine to exclude Officer Kramer’s testimony. Id. at 20-21.
Specifically, Williams argues that the “identification made by Officer Kramer
was inherently unreliable,” and that “[Officer Kramer] gave an extremely
vague description of the driver at the time of the incident.” Id.
A motion in limine gives the trial judge an opportunity to weigh
potentially prejudicial and harmful evidence outside the presence of the jury.
Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011). A motion
in limine is a procedure for obtaining a ruling upon the admissibility of
evidence, which is similar to a ruling on a motion to suppress evidence.
- 12 -
J-S52037-15
Commonwealth v. Valcarel, 94 A.3d 397, 398 (Pa. Super. 2014). Thus,
our review is the same as that of a motion to suppress, which is for an abuse
of discretion. Id.
Initially, the Commonwealth in its brief contends that Williams’ motion
in limine actually was a motion to suppress evidence, and, thus, the motion
should have been raised in an omnibus pretrial motion. Brief for
Commonwealth at 11. As a result, the Commonwealth argues that Williams
waived his right pursuant to Pa.R.Crim.P 581 to seek to preclude Officer
Kramer’s testimony. See Pa.R.Crim.P. 581(b) (deeming that a defendant’s
motions to suppress evidence will be waived when the defendant had the
opportunity but failed to raise that motion to suppress such evidence at the
omnibus pretrial hearing).
A motion in limine differs from a suppression motion in that a
suppression motion is designed to preclude evidence that was obtained in
violation of the defendant’s constitutional rights, while a motion in limine
intends to preclude evidence that was constitutionally obtained but which is
prejudicial to the moving party. Commonwealth v. King, 689 A.2d 918,
921 (Pa. Super. 1997). Here, Williams’ motion pertains to the reliability of
Officer Kramer’s identification of him and in no way argues that Officer
Kramer’s identification was formed in violation of Williams’ constitutional
rights. In fact, Williams’ counsel, Attorney Joseph Smith, Esq., stated, “I
filed that motion because I was looking at the probative values and the
- 13 -
J-S52037-15
weight respectively of the evidence at this time that the jury may hear.”
N.T. at 2. Accordingly, Williams’ did not waive his right to file a motion in
limine to preclude Officer Kramer’s testimony, and we will review the trial
court’s denial of that motion for an abuse of discretion.
At trial, Officer Kramer testified that, after being dispatched to the
convenience store regarding a retail theft complaint, he witnessed Pounds
and Williams walking outside of the store. However, he was unaware at the
time that they were involved in the retail theft. Id. at 63. Officer Kramer
further testified that, nearly fifteen minutes later, he observed Williams and
Pounds driving in a green Dodge Intrepid on a road in front of the store,
which led him to run a search of the license plate number of that car. Id. at
65-67. Officer Kramer’s search revealed that the car belonged to Knight,
but Knight’s car was not reported as stolen at that moment. Id. Officer
Kramer identified Williams as the driver of that vehicle, and, at trial, he
provided the following relevant testimony:
Q: Now, you just said that the female matched [] who you
believed you saw in the lot. What about the driver, did you get
to see the driver?
A: I did as I passed the vehicle and I was in the right lane I
passed the vehicle. They’re still in the left lane. The female in
the passenger seat turned away from me.
Q: Okay.
A: As I passed the vehicle, I looked in my rearview mirror. I
could see in the front windshield of the Intrepid, and I could,
observed [sic] the defendant was the driver of the vehicle.
- 14 -
J-S52037-15
Id. Officer Kramer eventually made a positive photo identification of
Williams to Detective Irvin. Id. at 74.
Williams argues that “[Officer Kramer’s] questionable identification
was inappropriate as it serve[d] no purpose other than to bolster the
account of a biased witness, [Pounds], and lead the jury to conclude that
[Pounds] was honest.” Brief for Williams at 22. Further, Williams argues
that Officer Kramer improperly bolstered Pounds’ testimony by “vouching for
the accuracy of [Pounds’] statements.” Id. After a thorough reading of the
record, specifically Officer Kramer’s testimony at trial, we detect no
indication that Officer Kramer improperly vouched or bolstered the veracity
of Pounds’ statements.
Williams also claims Officer Kramer’s identification is unreliable
because Detective Irvin only presented Officer Kramer with a single photo
before Officer Kramer positively identified Williams. Id. at 21. Williams’
claim factually is incorrect, because Officer Kramer testified that Williams’
photo was not the only photo presented to him by Detective Irvin before he
made a positive identification. N.T. at 77.
Regarding the reliability of a particular identification, the court should
consider:
the opportunity of the witness to view the criminal at the time of
the crime, the witness’ degree of attention, the accuracy of [his]
prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the
crime and the confrontation. The opportunity of the witness to
view the actor at the time of the crime is the key factor in the
totality of the circumstances analysis.
- 15 -
J-S52037-15
Commonwealth v. Bruce, 717 A.2d 1033, 1037 (Pa. Super. 1998)
(citations omitted). Here, Officer Kramer observed Williams driving Knight’s
car only ten or fifteen feet away from where he was driving in his patrol car.
N.T. at 65. Further, he witnessed Williams driving Knight’s car only fifteen
minutes after he observed him walking in front of the convenience store.
Id.
The trial court concluded that there was no legal basis to exclude
Officer Kramer’s testimony. We agree. To the extent that Williams argues
that Officer Kramer’s above-stated testimony was unreliable, Williams had
the opportunity to cross-examine Officer Kramer at trial, and the jury was
free to believe all, none, or part of that testimony. Accordingly, the trial
court did not abuse its discretion by denying Williams’ motion in limine prior
to trial.
Judgment of sentence affirmed.
Judge Shogan joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2015
- 16 -