Com. v. Setlock, M., Jr.

J-A22028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

MICHAEL JOHN SETLOCK, JR.

Appellant No. 183 MDA 2016

Appeal from the Judgment of Sentence December 14, 2015
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001527-2014

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 07, 2016

Appellant, Michael John Setlock, Jr., appeals from the judgment of

sentence entered in the Schuylkill County Court of Common Pleas, Criminal

Division, following his jury trial conviction for theft by unlawful taking or

disposition and receiving stolen property.1 We affirm.

On June 3, 2014, Daniel Fanelli, part owner of Fanelli Trucking &

Warehousing, reported a missing gold 2001 Ford F-250 company truck that

usually was parked in the front parking lot of the establishment. The truck’s

door handle assembly was found on the ground where the truck had been.

An officer took Fanelli’s report and later spoke with an employee of a

neighboring business. The employee stated that a truck was found

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1
18 Pa.C.S.A. §§ 3921(a), 3925(a), respectively.
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abandoned in the alleyway behind the business. The police determined it

was the stolen truck and impounded it. Detective Kirk Becker later processed

it.

Anne Marie Reedy testified that around the time of June 2014, she and

Appellant were in a relationship, though they had been in an on-and-off-

again relationship since 2012. On the night of June 2, 2014, Appellant told

Reedy that he needed to “make some money”; he arrived at Reedy’s house

around 11:00 p.m. and asked her to go for a ride with him in an F-250

truck. N.T., Trial, 10/26/16, at 68-69. Reedy testified Appellant did not own

a truck, but he often borrowed trucks from his friends, so she entered it.

Reedy noticed there were large spools of covered copper wire in the truck

bed. Appellant drove to an area where the couple burned the covering off

the wire. Once the burning was complete, Appellant drove back to Reedy’s

house to drop off the burned wire. Appellant requested that Reedy stay with

him while he “dump[ed] the truck”; he later disclosed that it belong to

Fanelli Trucking & Warehousing. Id., at 74-75. These revelations angered

Reedy because she realized that the truck was stolen based on Appellant’s

vernacular and that he had stolen it from her employer. Appellant eventually

secured a parking place in an alleyway near Fanelli Trucking & Warehousing

to dispose of the truck. Security video of the business that abutted the

alleyway captured the truck parking and two individuals exiting it. At trial,

Reedy identified herself and Appellant in the video.

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For an investigation in another case, Detective Becker arrested

Appellant and Reedy. Detective Becker interviewed Reedy, and she provided

him with information relating to Appellant and the events that occurred on

June 2, 2014.

The Commonwealth filed a criminal information against Appellant

charging him with theft by unlawful taking or disposition and receiving stolen

property. Appellant waived his right to an arraignment and entered a plea of

“not guilty.” A jury trial was held on October 26, 2015, and the jury

convicted Appellant of those charges. On December 14, 2015, the court

sentenced Appellant to 1½ to 3 years’ imprisonment, followed by 4 years’

probation; to pay restitution to Fanelli Trucking & Warehousing and

Bethlehem Regional Crime Laboratory; and to pay prosecution fees and

costs. Appellant filed a post-sentence motion on December 22, 2015. The

court denied Appellant relief. Appellant then filed a timely notice of appeal.

Appellant raises three issues for our review:

DID THE TRIAL COURT ERR AND COMMIT AN ABUSE OF
DISCRETION WHEN IT DETERMINED THAT THE EVIDENCE
ESTABLISHED AT TRIAL WAS SUFFICIENT AS A MATTER OF LAW
TO SUPPORT A FINDING OF GUILT ON ALL COUNTS CHARGED?

DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION
WHEN IT DETERMINED THAT THE VERDICT WAS NOT AGAINST
THE WEIGHT OF THE EVIDENCE?

DID THE TRIAL COURT ERR AND COMMIT AN ABUSE OF
DISCRETION WHEN IT FAILED TO GIVE STANDARD JURY
INSTRUCTION § 4.01 ACCOMPLICE TESTIMONY, SINCE THE
RECORD SHOWS THAT [REEDY] WAS AN ACCOMPLICE AND THE

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FAILURE TO GIVE THE INSTRUCTION PREJUDICED
[APPELLANT]?

Appellant’s Brief at 4.2

Appellant first challenges the sufficiency of the evidence. A challenge

to the sufficiency of evidence implicates the following principles:

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 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) (citations

omitted) (emphasis added).

A person is guilty of theft by unlawful taking 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). A person is guilty of receiving

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2
For ease of disposition, we have rearranged Appellant’s issues.

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stolen property 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.” 18 Pa.C.S.A. § 3925(a).

Appellant argues the Commonwealth failed to present sufficient

evidence to establish each of the elements of his convictions because the

Commonwealth’s case relied almost solely on Reedy’s testimony, which

Appellant claims was incredible. Appellant emphasizes that Reedy intended

to use her testimony against Appellant as leverage to force him to commit to

a relationship with her or at least place Appellant in a position where he

needed her to clear him of the charges. Upon being questioned by Detective

Becker and once Reedy involved herself in the incident, Appellant complains

she accused Appellant of being the primary perpetrator. Appellant avers

Detective Becker subsequently relied on Reedy’s statement without more in

bringing charges against Appellant, and not her, and Reedy’s testimony is

the only evidence that implicates him in the crime.

The trial court addressed this issues as follows:

A 2001 Ford F-250 truck owned by [Fanelli Trucking &
Warehousing] was found missing on June 3, 2014. Police called
the business following the discovery of the theft [and] found the
truck’s door handle assembly on the ground where the then
missing truck had been. When the vehicle was recovered about
two days later . . . it was found to have a broken steering
column. A recording from a video camera near the site where
the truck was recovered depicted two persons exiting the vehicle
and departing from the location.

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[Reedy] testified that she and [Appellant] had been
boyfriend/girlfriend on and off since 2012 and that she had been
in a relationship with [Appellant] in early June 2014. [On t]he
evening of June 2, 2014, [Appellant] had left, but later returned
to Reedy’s home at about 11:00 p.m. He asked her to go for a
ride with him. She did. Although [Appellant] was operating a
Ford pick-up truck and did not own a truck, Reedy knew that he
had many friends and borrowed vehicles. Unbeknownst to Reedy
at the time, [however,] the truck [Appellant] possessed
belonged to [Fanelli Trucking & Warehousing].

[Appellant] and Reedy traveled about ten miles to Dark Water
where they built a fire and burned covering from wire that
[Appellant] had in the truck. After the coating was burned, they
returned to the building where Reedy resided and [Appellant]
put the exposed copper wire by the home. Although Reedy
desired to go in her residence. [Appellant] said he wanted her to
stay with him to “dump the truck.” By [Appellant’s] statement,
Reedy “kind of knew” that the truck was stolen. Reedy “was
mad” because [Appellant] then told her that it was her boss’s
truck and she believed she “could now get in trouble for being in
a stolen vehicle.” Reedy rode with [Appellant] a short distance
until he parked the vehicle. During trial, Reedy viewed the video
recording obtained by police from the camera by the parking lot
where the vehicle was recovered and identified [Appellant] as
the driver and herself as the passenger depicted in, and then,
exiting the vehicle.

The testimony offered by Reedy, together with that of the victim,
the investigating police officer (Detective Kirk Becker), and the
exhibited video recording were more than sufficient to sustain
the Commonwealth’s burden relative to the identity of
[Appellant] as the perpetrator of the crimes.

Trial Court Opinion, filed 3/15/16, at 3-4 (internal citations omitted). The

record supports the trial court’s reasoning. Appellant’s claim that Reedy’s

testimony was incredible was obviously rejected by the members of the jury

who were the sole judges of credibility at trial.

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Appellant next contends the Commonwealth’s reliance on Reedy’s

testimony, given the facts and circumstances set forth above, establishes

that the verdict was against the weight of the evidence.

The weight of the evidence is exclusively for the finder of fact
who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact.
Thus, we may only reverse the lower court’s verdict if it is so
contrary to the evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal

citations omitted).

When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal

quotes and citations omitted).

The trial court did not abuse its discretion in rejecting Appellant’s claim

that the verdict was against the weight of the evidence.

In his final issue, Appellant maintains the trial court improperly refused

to give an accomplice jury instruction, given that Reedy’s testimony

indicates she participated in disposing of the truck. Appellant submits he was

prejudiced by the court’s refusal because her testimony was the only

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evidence that tied Appellant to the crime. Appellant concludes he should be

released from custody or granted a new trial with a direction to the trial

court that an accomplice instruction be given. We disagree.

“[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court's

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Galvin, 985 A.2d 783, 788–89 (Pa. 2009) (citation

omitted). Specifically,

[i]n reviewing a challenge to the trial court’s refusal to give a
specific jury instruction, it is the function of this Court to
determine whether the record supports the trial court’s decision.
In examining the propriety of the instructions a trial court
presents to a jury, our scope of review is to determine whether
the trial court committed a clear abuse of discretion or an error
of law which controlled the outcome of the case. A jury charge
will be deemed erroneous only if the charge as a whole is
inadequate, not clear or has a tendency to mislead or confuse,
rather than clarify, a material issue. A charge is considered
adequate unless the jury was palpably misled by what the trial
judge said or there is an omission which is tantamount to
fundamental error. Consequently, the trial court has wide
discretion in fashioning jury instructions. The trial court is not
required to give every charge that is requested by the parties
and its refusal to give a requested charge does not require
reversal unless the Appellant was prejudiced by that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013)

(quoting Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.Super. 2006)

(internal citations, quotation marks, and brackets omitted)).

An accomplice is one who knowingly and voluntarily cooperates
with or aids another in the commission of a crime. To be an
accomplice, one must be an active partner in the intent to
commit the crime. An accomplice must have done something to

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participate in the venture. A showing of mere presence at the
scene of a crime is insufficient to support a conviction: evidence
indicating participation in the crime is required. Even presence at
the scene of a crime in the company of its perpetrator has been
held to be insufficient to sustain a conviction.

Commonwealth v. Brady, 560 A.2d 802, 805 (Pa.Super. 1989) (internal

citations, quotation marks, and brackets omitted).

“An accomplice charge is necessitated not only when the evidence

requires an inference that the witness was an accomplice, but also when it

permits that inference.” Commonwealth v. Upshur, 410 A.2d 810, 812

(Pa. 1980). Thus, “[i]f the evidence is sufficient to present a jury question

with respect to whether the prosecution’s witness was an accomplice, the

defendant is entitled to an instruction as to the weight to be given to that

witness’s testimony.” Commonwealth v. Thomas, 387 A.2d 820, 822 (Pa.

1978). “Where, however, there is no evidence that would permit the jury to

infer that a Commonwealth witness was an accomplice, the court may

conclude as a matter of law that he was not an accomplice and may refuse

to give the charge.” Commonwealth v. Smith, 495 A.2d 543, 549

(Pa.Super. 1985). This is so because “[a] trial court is not obliged to instruct

a jury upon legal principles which have no applicability to the presented

facts. There must be some relationship between the law upon which an

instruction is required and the evidence presented at trial.” Commonwealth

v. Tervalon, 345 A.2d 671, 678 (Pa. 1975). Therefore, “an accomplice

instruction is only warranted when the evidence shows the witness was an

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active partner in the intent to commit the crime.” Commonwealth v.

Phillips, 601 A.2d 816, 822 (Pa.Super. 1992).

The trial court found that

there was no evidence that Reedy knowingly and voluntarily
cooperated with or aided [Appellant] in the actual commission of
either crime…. Although Defendant argued that Reedy, at some
point, knew that the vehicle had been stolen, [Appellant] could
not identify any proof in the record indicating that Reedy had
done any act to aid in the commission of the crimes or that she
had the requisite intent to do so.

Trial Court Opinion, filed 3/15/16, at 4-5. Therefore, the trial court refused

to instruct the jury on accomplice liability. The record supports the trial

court’s decision.

The record evidence does not indicate that Reedy possessed the intent

to commit either crime warranting an accomplice jury instruction. See

Smith, 495 A.2d at 549; Phillips, 601 A.2d at 822. Reedy entered the truck

on the assumption that Appellant had borrowed it from a friend because he

frequently did that. Reedy went with Appellant to burn copper wire; they

dropped the wire off at Reedy’s house; and Reedy stayed in the truck, at

Appellant’s request, while he “dumped” it. At the point of disclosure, Reedy

was merely present while the crimes occurred as a passenger in the truck.

See Brady, 560 A.2d at 805. Appellant failed to establish that Reedy

knowingly and voluntarily cooperated with or aided Appellant in the

commission of the truck theft or receipt of the stolen truck. See id.; 18

Pa.C.S.A. §§ 3921(a), 3925(a). Rather, Reedy was angry that she was

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present while the events were transpiring. Accordingly, the court properly

refused Appellant’s request to give an accomplice jury instruction. See

Galvin, 985 A.2d at 788–89; Sandusky, 77 A.3d at 667.

Based on the foregoing, we conclude Appellant’s issues are without

merit. Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/7/2016

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