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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LESTER RAY MOUNTAIN, : No. 683 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, March 17, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0012946-2014
BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 19, 2016
Lester Ray Mountain appeals from the judgment of sentence of
March 17, 2015, following his conviction of one count each of theft by
unlawful taking, defiant trespass, and receiving stolen property (“RSP”). We
affirm.
The trial court, sitting as finder-of-fact in this non-jury trial, briefly
summarized the testimony as follows:
Briefly, the evidence presented at trial
established that Kim Daugherty lived at 112 Hillside
Avenue in Pitcairn. She had a new lawnmower,
which she kept in a separately-gated chicken coop
area within her gated yard. In September, 2014,
she went to get the lawnmower and found it missing.
The police were called.
Several days later, Ms. Daugherty’s neighbor,
Mark Wojton, told the police that he had seen
[appellant] in Ms. Daugherty’s chicken coop and,
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later, on her front porch. As a result of Mr. Wojton’s
information, the police searched a residence where
[appellant] had been squatting and discovered the
lawnmower. [Appellant]’s wallet and Social Security
card were also located at that residence. [Appellant]
subsequently admitted to Pitcairn Police Officer
Patrick Loalbo that he had taken the lawnmower.
(Trial Transcript, p. 14-15).
Trial court opinion, 7/20/15 at 2.
Following a bench trial held March 17, 2015 before the Honorable
Donna Jo McDaniel, appellant was found guilty of theft by unlawful taking,
defiant trespass, and RSP.1 Immediately following trial, appellant was
sentenced to two years’ probation and to have no further contact with the
victim, Daugherty. Post-sentence motions were denied, and this timely
appeal followed. Appellant complied with Pa.R.A.P. 1925(b), and the trial
court has filed an opinion.
Appellant has raised the following issues for this court’s review,
challenging the weight and sufficiency of the evidence:
I. Was the evidence insufficient to prove that
[appellant] took or exercised control of the
lawnmower (as the theft count required), or
that he possessed the lawnmower (as the
[RSP] count required)?
II. Were the guilty verdicts at Counts 1 and 3
against the weight of the evidence because
they were based on entirely vague testimony
about an alleged confession, and
[Officer] Loalbo failed to include that allegation
in his affidavit and police report?
1
18 Pa.C.S.A. §§ 3921(a), 3503(b), & 3925(a), respectively.
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Appellant’s brief at 5 (capitalization deleted).2
In his first issue on appeal, appellant argues that the Commonwealth
failed to establish that he took, exercised control over, or possessed the
lawnmower. Appellant states that he was not found with the lawnmower,
and no one saw him take it. (Appellant’s brief at 12.) Appellant was not
present at the abandoned house when Officer Loalbo discovered the
lawnmower, and there was no testimony about whether other people slept in
or visited the house. (Id. at 15.)
When considering a challenge to the sufficiency of the evidence, this
court must view the evidence presented in a light most favorable to the
Commonwealth, the verdict winner, and draw all reasonable inferences
therefrom. Commonwealth v. Ketterer, 725 A.2d 801, 803 (Pa.Super.
1999). We must then determine whether the evidence was sufficient to
permit the fact-finder to conclude that all of the elements of the crimes
charged were proven beyond a reasonable doubt. Id. Any question of
doubt is for the fact-finder, unless the evidence is so weak and inconclusive
that as a matter of law no probability of fact can be drawn from the
combined circumstances. Id. at 804.
The Commonwealth may sustain its burden of
proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
2
Additional issues raised in appellant’s Rule 1925(b) statement have been
abandoned on appeal. Appellant does not challenge the weight or
sufficiency of the evidence to support his conviction of Count 2, defiant
trespass.
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evidence. Moreover, in applying the above test, the
entire trial 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. George, 705 A.2d 916, 918 (Pa.Super. 1998), appeal
denied, 725 A.2d 1218 (Pa. 1998), quoting Commonwealth v. Valette,
613 A.2d 548, 549 (Pa. 1992) (citations and quotation marks omitted).
As stated above, appellant was found guilty of theft by unlawful taking
and RSP. The Crimes Code defines theft by unlawful taking, in relevant part,
as follows:
§ 3921. Theft by unlawful taking or disposition
(a) Movable property.--A person is guilty of theft
if he unlawfully takes, or exercises unlawful
control over, movable property of another with
intent to deprive him thereof.
18 Pa.C.S.A. § 3921(a).
RSP is defined as follows:
§ 3925. Receiving stolen property
(a) Offense defined.--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.
(b) Definition.--As used in this section the word
‘receiving’ means acquiring possession, control
or title, or lending on the security of the
property.
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18 Pa.C.S.A. § 3925.
To establish the offense of receiving stolen property,
the Commonwealth was required to present evidence
sufficient to prove beyond a reasonable doubt that
(1) the property had been stolen, (2) the accused
received the property and (3) the accused knew or
had reasonable cause to know that it had been
stolen. The Commonwealth may sustain its burden
of proof by means of circumstantial evidence.
Commonwealth v. Worrell, 419 A.2d 1199, 1201 (Pa.Super. 1980)
(citations omitted).
Instantly, appellant was not found in actual physical possession of the
lawnmower. Therefore, the Commonwealth had to prove that appellant
constructively possessed the lawnmower. “To prove constructive possession
of an item, the Commonwealth must show that the defendant had both the
intent and the ability to control the item. At the least, the evidence must
show that the defendant knew of the existence of the item.”
Commonwealth v. Hamm, 447 A.2d 960, 962 (Pa.Super. 1982) (citations
omitted). “[P]ossession may be proved by circumstantial evidence.
‘Individually, the circumstances may not be decisive; but, in combination,
they may justify an inference that the accused had both the power to control
and the intent to exercise that control, which is required to prove
constructive possession.’” Commonwealth v. Carter, 450 A.2d 142, 144
(Pa.Super. 1982), quoting Commonwealth v. DeCampli, 364 A.2d 454,
456 (Pa.Super. 1976) (other citations omitted).
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Constructive possession is a legal fiction, which is
invoked when actual possession at the time of arrest
cannot be shown, but there is a strong inference of
possession from the facts surrounding the case.
Commonwealth v. Carroll, 510 Pa. 299, 302, 507
A.2d 819, 820 (1986) (citing Whitebread and
Stevens, To Have and To Have Not, 58
U.Va.L.Rev. 751, 755 (1972)); Commonwealth v.
Thompson, 779 A.2d 1195, 1199 (Pa.Super. 2001),
appeal denied, 567 Pa. 760, 790 A.2d 1016 (2001)
(citations omitted); Commonwealth v. Hoetzel,
284 Pa.Super. 623, 426 A.2d 669, 673 (1981).
Constructive possession has been defined as
“conscious dominion,” which requires two elements:
the power to control the contraband and the intent
to exert such control. Carroll, 510 Pa. at 302, 507
A.2d at 820-21; Commonwealth v. Heidler, 741
A.2d 213, 215-16 (Pa.Super. 1999) (en banc),
appeal denied, 563 Pa. 627, 758 A.2d 660 (2000).
Commonwealth v. Battle, 883 A.2d 641, 644-645 (Pa.Super. 2005),
appeal denied, 902 A.2d 1238 (Pa. 2006).
Instantly, Wojton, a good friend of appellant’s and Daugherty’s
next-door neighbor, testified that he saw appellant in Daugherty’s chicken
coop. (Notes of testimony, 3/17/15 at 10.) Appellant then went onto
Daugherty’s front porch. (Id. at 11.) Wojton asked appellant what he was
doing, and appellant said that he was looking for cigarette butts. (Id.)
Wojton “thought that was strange.” (Id.) Wojton could not remember the
date that he saw appellant on Daugherty’s property. (Id. at 12.)
After Daugherty’s lawnmower was reported stolen, Officer Loalbo
proceeded to an abandoned house that appellant had recently been seen in.
(Id. at 13-14, 18.) Officer Loalbo recovered Daugherty’s lawnmower from a
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back room of the house. (Id. at 14.) Appellant’s wallet and social security
card were found upstairs. (Id.) Officer Loalbo subsequently questioned
appellant regarding the incident, and he admitted taking the lawnmower.
(Id. at 14-15.)
We determine that this evidence was sufficient to prove that appellant
was in constructive possession of the stolen lawnmower. As the trial court
stated, the crucial piece of evidence was appellant’s admission to
Officer Loalbo that he took the lawnmower. (Trial court opinion, 7/20/15
at 3.) While appellant argues that his alleged confession was unreliable
because Officer Loalbo could not testify as to when and where appellant
made the statement, on sufficiency review, we consider the whole record.
Appellant’s sufficiency claim fails.
Next, appellant claims that the trial court’s verdict was against the
weight of the evidence. Appellant argues that Officer Loalbo’s testimony
regarding appellant’s alleged confession was unreliable and vague where
Officer Loalbo could not specify when or where he made the confession. In
addition, Officer Loalbo first mentioned appellant’s confession at trial, and it
was not included in his police report or in the affidavit of probable cause.
(Appellant’s brief at 23.) Appellant argues that it is unlikely a police officer
with Officer Loalbo’s experience (22 years) would not include such crucial
evidence in his affidavit or in a supplemental report. (Id. at 25.)
An allegation that the verdict is against
the weight of the evidence is addressed
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to the discretion of the trial court. A new
trial should not be granted because of a
mere conflict in the testimony or because
the judge on the same facts would have
arrived at a different conclusion. A trial
judge must do more than reassess the
credibility of the witnesses and allege
that he would not have assented to the
verdict if he were a juror. Trial judges,
in reviewing a claim that the verdict is
against the weight of the evidence[,] do
not sit as the thirteenth juror. Rather,
the role of the trial judge is to determine
that notwithstanding all the facts, certain
facts are so clearly of greater weight that
to ignore them or to give them equal
weight with all the facts is to deny
justice.
Commonwealth v. Widmer, 560 Pa. 308, 319-20,
744 A.2d 745, 751-52 (2000). (citations, quotation
marks, and footnote omitted). In other words, a
court may grant a new trial because the verdict is
against the weight of the evidence only when the
verdict rendered is so contrary to the evidence as to
shock one’s sense of justice. Commonwealth v.
Goodwine, 692 A.2d 233, 236 (Pa.Super.1997).
The determination of whether to grant a new trial
rests within the discretion of the trial court, and we
will not disturb this determination absent an abuse of
discretion. Commonwealth v. Young, 692 A.2d
1112, 1114 (Pa.Super.1997).
Commonwealth v. Bruce, 916 A.2d 657, 665 (Pa.Super. 2007).
Because the trial judge has had the opportunity to
hear and see the evidence presented, an appellate
court will give the gravest consideration to the
findings and reasons advanced by the trial judge
when reviewing a trial court’s determination that the
verdict is against the weight of the evidence. One of
the least assailable reasons for granting or denying a
new trial is the lower court’s conviction that the
verdict was or was not against the weight of the
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evidence and that a new trial should be granted in
the interest of justice.
Widmer, 744 A.2d at 753 (citations omitted). See also Commonwealth
v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (reiterating that appellate review of
a weight claim is a review of the trial court’s exercise of discretion, not of
the underlying question of whether the verdict is, in fact, against the weight
of the evidence).
Officer Loalbo testified that appellant admitted taking Daugherty’s
lawnmower: “I don’t know the date and time, but I did speak to him, and
he had admitted he had taken the lawn mower.” (Notes of testimony,
3/17/15 at 14-15.) Officer Loalbo conceded on cross-examination that he
did not know the date and time he spoke with appellant regarding the
incident; however, he testified that, “I speak to [appellant] on almost a daily
basis.” (Id. at 16.) Officer Loalbo did not reference appellant’s confession
in his police report or in the affidavit of probable cause, nor did he file a
supplemental report. (Id. at 17-18.)
The reliability of Officer Loalbo’s testimony was for the trial judge, who
apparently found him to be credible. The trial court remarked that
appellant’s admission to Officer Loalbo “weighs very heavily.” (Id. at 23.)
The trial court did not abuse its discretion in denying appellant’s weight of
the evidence claim.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2016
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