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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MIGUEL ANGEL MORALES-MUNOZ, JR., :
:
Appellant : No. 2053 MDA 2016
Appeal from the Judgment of Sentence October 27, 2016
in the Court of Common Pleas of Berks County,
Criminal Division, No(s): CP-06-CR-0001742-2016
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 17, 2017
Miguel Angel Morales-Munoz, Jr. (“Morales-Munoz”), appeals from the
judgment of sentence imposed following his convictions of retail theft,
receiving stolen property, and conspiracy to commit retail theft. See 18
Pa.C.S.A. §§ 3929(a)(1), 3925(a), 903(a)(1). We affirm.
On January 27, 2016, Morales-Munoz and his ex-girlfriend, Daisy
Hernandez (“Hernandez”), entered a Walmart in Exeter Township, Berks
County, Pennsylvania. Morales-Munoz was wearing a black hooded
sweatshirt that partially covered his face and completely covered his hands.
Morales-Munoz and Hernandez each took a shopping cart upon entering the
store. They proceeded to the hardware department keeping some distance
apart. While in the hardware department, Morales-Munoz picked an air
compressor off the shelf and placed it in Hernandez’s shopping cart. Next,
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they walked to the electronics department where Morales-Munoz selected a
television wall mount and placed it in Hernandez’s shopping cart.
Morales-Munoz and Hernandez then walked toward the front of the
store, where Morales-Munoz walked in and out of closed register lines and
looked around. Next, Morales-Munoz and Hernandez walked toward the
pharmacy area, where they left the shopping cart containing the air
compressor and the television wall mount. Morales-Munoz and Hernandez
then exited the store. Thereafter, Hernandez re-entered the store, retrieved
the shopping cart with the merchandise, and left the store without paying.
Once Morales-Munoz and Hernandez were in the parking lot, they loaded the
items into a vehicle and drove away.
Walmart’s loss prevention personnel, who had observed Morales-
Munoz and Hernandez since the time they entered the store, contacted the
police and provided the license plate number of the vehicle in which Morales-
Munoz and Hernandez were traveling. The Exeter Police Department posted
photographs of the suspects, taken from the Walmart surveillance video, on
Facebook, which lead to their identification and subsequent arrest.
Following a bench trial on October 27, 2016, Morales-Munoz was found
guilty of the above-mentioned charges. On the same date, the trial court
sentenced Morales-Munoz to fifteen to sixty months in prison for the
receiving stolen property conviction, followed by consecutive five-year
probation terms for the retail theft and conspiracy convictions.
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Morales-Munoz filed a timely Post-Sentence Motion, which the trial
court denied. Morales-Munoz filed a timely Notice of Appeal and a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on
Appeal.
On appeal, Morales-Munoz raises the following questions for our
review:
A. Whether the evidence was insufficient to support the guilty
verdicts where the Commonwealth failed to prove, beyond a
reasonable doubt, that [Morales-Munoz] had the requisite intent
and knowledge[?]
B. Whether the verdicts were against the weight of the evidence
in that the testimony at trial established that [Morales-Munoz],
although present when crimes were committed, did not
participate in the crimes or know that they were being
committed[?]
C. Whether the trial court abused its discretion by imposing a
sentence of fifteen (15) to sixty (60) months of incarceration, to
be followed by ten (10) years of probation, where the sentence
was excessive and unreasonable, not in accordance with the
applicable statutory requirements and without articulated
reasons[?]
Brief for Appellant at 8.
In his first claim, Morales-Munoz contends that the evidence was
insufficient to sustain his convictions where the Commonwealth failed to
prove that he had the requisite intent and knowledge to commit the crimes.
Id. at 14-15. Specifically, Morales-Munoz states that Hernandez’s testimony
demonstrated that he was unaware of her intention to take the items
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without paying and that he was not in the store when Hernandez left without
paying. Id.
The standard for review for a sufficiency of the evidence claim is as
follows:
When reviewing a sufficiency of the evidence claim, an appellate
court, viewing the evidence and reasonable inferences in the
light most favorable to the Commonwealth as the verdict winner,
must determine whether the evidence was sufficient to enable
the fact-finder to find that all elements of the offense were
established beyond a reasonable doubt.
Commonwealth v. Hawkins, 701 A.2d 492, 499 (Pa. 1997). Further, the
Commonwealth can sustain its burden of proving every element beyond a
reasonable doubt by using wholly circumstantial evidence. Commonwealth
v. Johnson, 833 A.2d 260, 263 (Pa. Super. 2003).
The Crimes Code defines retail theft as a person who
takes possession of, carries away, or causes to be carried away
or transferred, any merchandise displayed, held, stored or
offered for sale by any store or other retail mercantile
establishment with the intention of depriving the merchant of the
possession, use or benefit of such merchandise without paying
the full retail price thereof.
18 Pa.C.S.A. § 3929(a)(1).
The Crimes Code defines receiving stolen property as follows:
A person is guilty of theft if he intentionally receives, retains, or
disposes of movable property of another 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
restore it to the owner.
Id. § 3925(a).
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In order to sustain a conviction for criminal conspiracy, the
Commonwealth must establish that the defendant (1) entered
into an agreement to commit or aid in an unlawful act with
another person or persons, (2) with a shared criminal intent and
(3) an overt act was done in furtherance of the conspiracy. This
overt act need not be committed by the defendant; it need only
be committed by a co-conspirator.
Commonwealth v. Knox, 50 A.3d 732, 740 (Pa. Super. 2012) (citation
omitted); see also 18 Pa.C.S.A. § 903(a)(1). Further, “a conspiracy may be
inferred where it is demonstrated that the relation, conduct, or
circumstances of the parties, and the overt acts of the co-conspirators
sufficiently prove the formation of a criminal confederation.” Id. (citation
omitted); see also Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa.
Super. 2005) (stating “[c]ircumstantial evidence may provide proof of the
conspiracy.”) (citation omitted).
Here, Noel Rivera (“Rivera”), a loss prevention officer employed by
Walmart, testified that on January 27, 2016, Morales-Munoz and Hernandez
entered the store together and then separated. N.T., 10/27/16, at 9.
Rivera then followed them to the hardware department, where he saw
Morales-Munoz place an air compressor into Hernandez’s shopping cart. Id.
at 10-11. Rivera followed them to the electronics department where he
observed Morales-Munoz place a television wall mount into Hernandez’s
shopping cart. Id. at 11. Rivera testified that Hernandez abandoned her
cart containing the merchandise, and she and Morales-Munoz left the store.
Id. at 12. Rivera stated that Hernandez then re-entered the store, and took
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the shopping cart containing the merchandise, and exited the store without
paying. Id. Rivera also testified that he observed Morales-Munoz loading
the stolen merchandise into a vehicle. Id. at 25. Rivera then called the
police. Id. at 26. The Commonwealth additionally introduced Walmart’s
video surveillance into evidence. Id. at 13-24.
Here, while Morales-Munoz did not physically remove the items from
Walmart, a conspiracy can be inferred from the circumstantial evidence
regarding his and Hernandez’s actions. See Knox, 50 A.3d at 740. Indeed,
the trial court, acting as fact-finder, found Hernandez’s testimony that she
acted alone to be incredible. See Trial Court Opinion, 2/6/7 at 4; see also
Commonwealth v. Talbert, 129 A.2d 536, 542-43 (Pa. Super. 2015)
(stating that the fact-finder is free to believe all, part, or none of the
evidence, and this Court may not substitute our judgment for that of the
fact-finder). Thus, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, the evidence was sufficient to support
Morales-Munoz’s convictions. See Commonwealth v. Simpson, 754 A.2d
1264, 1274 (Pa. 2000) (stating “a defendant can be held accountable for the
actions of his or her co-conspirators although the defendant did not
specifically intend for the co-conspirators to perform these acts.”); see also
Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004).
In his second claim, Morales-Munoz argues that the verdict was
against the weight of the evidence. Brief for Appellant at 15. Morales-
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Munoz argues that although he was present when Hernandez committed the
crime, the weight of the evidence did not establish that he participated in
the crimes or knew that the crime was being committed. Id. at 15-16.
The standard of review for challenges to the weight of evidence is as
follows:
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court’s discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well-settled
that the fact-finder is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses, and a
new trial based on the weight of the evidence claim is only
warranted where the [fact-finder’s] verdict is so contrary to the
evidence that it shocks one’s sense of justice. In determining
whether this standard has been met, appellate review is limited
to whether the trial judge’s discretion was properly exercised,
and relief will only be granted where the facts and inferences of
record disclose a palpable abuse of discretion.
Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (citation
omitted).
In this case, the trial court, acting as the fact-finder, found Rivera’s
testimony, which was corroborated by video surveillance, to be credible.
See Trial Court Opinion, 2/6/17 at 5; see also Karns, 50 A.3d at 165. The
trial court also found Hernandez’s testimony that she acted alone, without
Morales-Munoz’s knowledge, to be incredible. See Trial Court Opinion,
2/6/17, at 5. Based upon these determinations, we conclude that the trial
court did not abuse its discretion in denying Morales-Munoz’s weight of the
evidence claim. Therefore, Morales-Munoz’s second claim lacks merit.
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In his final claim, Morales-Munoz challenges the discretionary aspects
of his sentence. Brief for Appellant at 11-12, 16-17.
An appellant challenging the discretionary aspects of the
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider or modify sentence, see
Pa.R.Crim.P. [720]; (3) whether the appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
***
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Morales-Munoz filed a timely Notice of Appeal, raised his claims
in a timely Post-Sentence Motion, and included a Rule 2119(f) Statement in
his brief. Further, Morales-Munoz’s claims that the trial court imposed an
excessive sentence and failed to offer specific reasons for the sentence, as
required by 42 Pa.C.S.A. § 9721, raises a substantial question. See Brief for
Appellant at 11-12; see also Commonwealth v. Coulverson, 34 A.3d
135, 143 (Pa. Super. 2011) (stating “failure to offer specific reasons for the
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sentence that comport with the considerations required in section 9721(b)”
raises a substantial question). Thus, we will review Morales-Munoz’s
sentencing claim.
Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)
(citation omitted).
Here the trial court considered the sentencing guidelines based upon
Morales-Munoz’s prior record score and offense gravity score. N.T.,
10/27/16, at 46-47. Our review discloses that the trial court also considered
Morales-Munoz’s prior criminal history, his mental health history and need
for treatment, and the fact that he has children.1 Id. at 47-49. Further
Morales-Munoz concedes that his sentence was “in the middle of the
standard range.” Brief for Appellant at 17. Thus, we discern no abuse of
discretion in the trial court’s sentence. See Moury, 992 A.2d at 171
(stating that “where a sentence is within the standard range of the
guidelines, Pennsylvania Law views the sentence appropriate under the
1
The record shows that Morales-Munoz waived a pre-sentence investigation
report. N.T., 10/27/16, at 48.
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Sentencing Code.”); see also Commonwealth v. Perry, 883 A.2d 599,
603 (Pa. Super. 2005) (stating that a trial court may, in its discretion,
impose sentences consecutively or concurrently). Therefore we cannot grant
Morales-Munoz relief on his final claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
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