J-S51006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RALPH D. JOHNSON
Appellant No. 1709 EDA 2015
Appeal from the Judgment of Sentence May 15, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012567-2014
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 20, 2016
Appellant, Ralph D. Johnson, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial convictions for criminal trespass, theft by unlawful taking,
receiving stolen property, and conspiracy.1 We affirm.
In its opinion, the trial court set forth the relevant facts and procedural
history of this case as follows:
At the bench trial on March 4, 2015, Commonwealth
witness Leslie Miller testified that she resides at or near
2100 Federal Street in Philadelphia. On June 22, 2014[,]
at approximately 5:00 [p.m.], she was sitting in her car at
that location waiting for her [nephew] to come out of her
home when she looked across the street towards a housing
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1
18 Pa.C.S.A. §§ 3503(a)(1)(i), 3921(a), 3925(a)(1), 903(c), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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development in the midst of construction. It was then that
she noticed a green truck and two guys at that site. She
thought it was unusual because it was Sunday and there’s
usually no one there. One man was inside the fenced area
taking lumber from the house and putting it into their
truck. The other man was sitting inside the truck but
eventually was standing adjacent to it, as the lumber was
loaded. The gate was pulled apart so that the man could
enter and leave through it. Ms. Miller said that the man
went in and out of the house, carrying lumber, two or
three times. After that they both got into the green truck
and departed.
At the same time, Ms. Miller followed the vehicle and called
the police telling them of the incident and relating
descriptions of the truck, including the tag number and the
description of the males. Ms. Miller’s daughter was driving
and she remained as a passenger in the car following the
truck with the lumber and men to the area of 25th and
Federal.
At approximately 5:00 [p.m.,] Police Officer Matthew
Czarnecki, on that same date, received a radio call
directing his attention to proceed to the area of 25 th and
Federal Streets regarding a possible theft in progress.
Officer Czarnecki…testified that he encountered the green
pickup truck with one of the men (Codefendant [Cantey])
buckling the wood to the vehicle and the other male
[(Appellant)] walking away from the truck. The reported
description matched those of [Appellant and Codefendant].
After physically going to the housing construction site, the
officer saw the lumber which matched that on the green
truck resulting in the arrest of the men.
The Commonwealth’s last witness, Greg Karamitopoulos,
testified that he is the head contractor on the site where
the lumber was removed and that no one had permission
to take materials from the site. He also stated that the
lumber was the same items missing, calling it “Framing
Materials.” Mr. Karamitopoulos further reiterated that no
one is permitted on that site and that his men do not work
on Saturdays or Sundays.
(Trial Court Opinion, filed January 21, 2016, at 2-3) (internal citations to
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record omitted).
On May 15, 2015, following a one-day bench trial, the court convicted
Appellant of theft by unlawful taking, receiving stolen property, criminal
trespass, and conspiracy. On that same day, the court sentenced Appellant
to two (2) years’ probation. Appellant filed a timely notice of appeal on June
9, 2015. The trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
timely complied.
Appellant raises the following issue for our review:
WHETHER THE TRIAL COURT ADJUDICATION OF GUILTY
AS TO CONSPIRACY (F3), CRIMINAL TRESPASS (F3),
THEFT BY UNLAWFUL TAKING (M2) AND RECEIVING
STOLEN PROPERTY (M2) [WAS SUPPORTED BY
SUFFICIENT EVIDENCE].
(Appellant’s Brief at 3).
Appellant argues the housing development at the construction site was
“being built.” Appellant contends the development was not an “occupied
structure” within the meaning of the criminal trespass statute. Appellant
asserts, “[T]here was no ‘inchoate’ crime to the conspiracy.” (Appellant’s
Brief at 8). Appellant concludes the evidence was insufficient to sustain all
of his convictions. We cannot agree.
Preliminarily, issues not raised in a Pa.R.A.P. 1925(b) statement will
be deemed waived for appellate review. Commonwealth v. Castillo, 585
Pa. 395, 888 A.2d 775 (2005). A Rule 1925(b) statement that is not specific
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enough for the trial court to identify and address the issues Appellant wishes
to raise on appeal may also result in waiver. Commonwealth v. Reeves,
907 A.2d 1 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956
(2007). To preserve a claim that the evidence was insufficient to sustain a
conviction, an appellant must specify the allegedly unproven element or
elements in his Rule 1925(b) statement. Commonwealth v. Williams, 959
A.2d 1252 (Pa.Super. 2008). Nevertheless, the requested sufficiency review
may be granted in a relatively straightforward case, where the evidentiary
record is not overly burdensome, and the trial court readily apprehended the
appellant’s claim and thoroughly addressed it in its opinion.
Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d 1058 (2007).
Further, “The Pennsylvania Rules of Appellate Procedure require that
each question an appellant raises be supported by discussion and analysis of
pertinent authority, and failure to do so constitutes waiver of the claim.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1287 (Pa.Super. 2014).
See Pa.R.A.P. 2119(a)-(b). “Arguments not appropriately developed are
waived.” Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa.Super. 2006),
appeal denied, 596 Pa. 704, 940 A.2d 363 (2007).
Instantly, Appellant raised the following issue in his Rule 1925(b)
statement: “Whether the weight of the evidence was enough to sustain a
conviction pursuant to Rule 607. The evidence was not sufficient to sustain
a conviction pursuant to Rule 606 and the weight of the evidence was not
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enough to sustain a conviction pursuant to Rule 607.” (Pa.R.A.P. 1925(b)
statement, filed 7/2/15).2 Appellant’s Rule 1925(b) statement failed to set
forth any allegedly unproven element pertaining to any of his four
convictions. Therefore, Appellant’s sufficiency challenge is waived for
vagueness. See Williams, supra. Additionally, in Appellant’s brief, he
presents no argument regarding the theft and receiving stolen property
convictions beyond a conclusory statement that those convictions were
unsupported by sufficient evidence. Thus, Appellant’s failure to develop his
argument in his brief provides an additional basis for waiver with respect to
the theft and receiving stolen property convictions. See Love, supra.
Moreover, the following principles of review apply to challenges to the
sufficiency of the evidence:
The standard we apply in 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 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
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2
Appellant abandoned on appeal his challenge to the weight of the evidence.
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evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
Instantly, the Commonwealth produced the following evidence at trial.
Leslie Miller testified that she observed Appellant and Codefendant at the
construction site loading lumber onto a pickup truck. Ms. Miller immediately
called the police and provided a description of Appellant, Codefendant, and
the truck, including its license plate number. Ms. Miller also described the
material taken and the location where Appellant and Codefendant went after
leaving the construction site. The arresting officer, Matthew Czarnecki,
found Appellant and Codefendant at the reported location minutes later.
Officer Czarnecki positively identified Appellant, Codefendant, Appellant’s
truck, and the building material based on the information provided by Ms.
Miller. Officer Czarnecki also confirmed that a portion of the fence
surrounding the construction site was pulled open. The site displayed a sign
that read, “Do Not Enter, Private Property.” The head contractor of the
construction project testified no one had permission to be on the site that
day and the materials in the pickup truck matched those used at the site.
Based on the foregoing, Appellant’s sufficiency challenge would merit no
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relief even if he had properly preserved it. See id. See also
Commonwealth v. Hagan, 539 Pa. 609, 654 A.2d 541 (1995) (holding
fenced and secured storage lot was “occupied structure” under criminal
trespass statute). Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2016
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