Com. v. Reese, K. ( 2017 )

J-S92026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH DUAN REESE, JR.
Appellant No. 736 WDA 2016
Appeal from the Judgment of Sentence April 1, 2016
In the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000754-2015
BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED APRIL 19, 2017
Kenneth Duan Reese, Jr. appeals from the April 1, 2016 judgment of
sentence entered in the Crawford County Court of Common Pleas following
his jury trial convictions for two counts of conspiracy to commit burglary,1
two counts of conspiracy to commit criminal trespass,2 one count of
conspiracy to commit theft by unlawful taking,3 and one count of receiving
stolen property.4 We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 903(a)(1), §3502(a)(2).
2
18 Pa.C.S. §§ 903(a)(1), 3503(a)(1).
3
18 Pa.C.S. §§ 903(a)(1), 3921(a).
4
18 Pa.C.S. § 3925(a).
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The trial court provided the following factual summary of the four-day
jury trial:
Testifying for the Commonwealth were the following:
Thomas Miller and Joanie Ondrako, whose residences were
the alleged targets of the conspiracies; Philip Shaffer of the
Pennsylvania State Police, the investigating officer;
Zachary Eli Trout (“Trout”) and Craig Alan Hanes, Jr.
(“Hanes”), two of [Reese’s] alleged co-conspirators; Sage
Powell, Trout’s girlfriend, who allegedly had contacted the
State Police about suspicious activities; and Martha
Wheeler, from whom the State Police allegedly retrieved
property stolen from Mr. Miller. All except for the trooper
were sequestered. The defense called only William A.
Phillips, III (“Phillips”), the remaining co-conspirator.
Trout had previously pleaded guilty to criminal
conspiracy to commit burglary, and to theft by receiving
stolen property, graded as felonies of the first and third
degree, respectively; he received the maximum county
incarceration sentence on December 5, 2015.3 Hanes had
pleaded guilty to burglary and to attempt to commit
burglary, both first degree felonies, and received the same
incarceration sentence on December 2, 2015.4 Phillips had
pleaded guilty to burglary (two counts, as first degree
felonies), theft by unlawful taking or disposition (two
counts, as a second degree felony and first degree
misdemeanor), and theft by receiving stolen property (one
count, a first degree misdemeanor); he received
concurrent state sentences on October 8, 2015.5 All three
had also been charged with offenses occurring at other
residences during the same time period (April 2015). The
jury was informed that they were currently serving those
sentences.
3
Case No. CR 578-2015 (Counts 1 and 3; Count 2,
for burglary, was nolle prossed).
4
Case No. CR 579-2015 (Counts 3 and 7; thirteen
other counts were nolle prossed).
5
Case No. CR 51-2015 (Counts 2, 3, 9, 11, 13;
eighteen other counts were nolle prossed).
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Hanes testified that he had known Trout from high
school, for almost six years, and had known Phillips, who
had lived across from Hanes’ mother, for three or four
years. On a day when he and Phillips had been staying at
Trout’s, they left to burglarize houses. Another evening, in
April 2015, he, Phillips, and [Reese], who was then also
staying at Trout’s (as was Trout’s girlfriend), left on foot to
burglarize more homes, having arranged to have Trout
pick them up afterwards. [Reese] entered a brown house
on Rhueville Road through an unlocked rear window, and
unlocked the front door for the others to follow. They
removed guns, a black duffle bag, air compressor, and
other items, and stashed them under a picnic table at a
house across the street. At a nearby house on Farley
Lane, they pushed in an air conditioning unit for [Reese] to
enter; he emerged from the back door a few minutes later
with only a rifle. They then returned to Trout’s, who took
them to where they had left the stolen items, which Hanes,
Phillips, and [Reese] loaded onto the bed of Trout’s pickup
truck. They unloaded these items at Trout’s, and later, at
Trout’s direction, took some items to sell to David Simons
and Ms. Wheeler. When subsequently questioned by
Trooper Shaffer, Hanes reported [Reese’s] involvement in
the second criminal episode. He never told him that
[Reese] committed all of the burglaries.
Trout testified that Hanes, Phillips, and [Reese]
frequently stayed with him and Ms. Powell in April 2015.
When they left one evening, they said they would call to
have him pick them up. Trout was the only one with a
vehicle, and did not specifically know what they planned to
do. When he picked them all up about two hours later,
they placed various items in the bed of his Ford Ranger.
Back at Trout’s, these items were moved to a shed. The
next day, [Reese] took some tools and firearms from the
shed, and he left with someone in a van. Returning, he
asked for a ride to the Andover flea market, and when
Trout and Ms. Powell met up with him later there, he did
not have the power converter and tools that he had taken
along with him. These were items that Trout had seen him
with when picking up the three the previous evening.
Trout also took [Reese] to the Simon-Wheeler residence to
trade some items for marijuana, including a black duffel
bag containing ammunition which had been in the shed.
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Ms. Powell stated that [Reese] was among those who
had stayed at Trout’s in April of 2015. While walking the
dogs, she had seen him and Hanes and Phillips taking guns
and other things in and out of the shed, and later reported
her suspicions to the police. [Reese], sometime in April,
had asked to be driven to the Andover flea market, where
he had apparently disposed of some firearms and [a]
mobile hotspot that she had not seen previously.
Mr. Miller described his discovery of his summer home
on Rhueville Road in disarray, with the front door and a
rear window open. Thirty-two items, including knives,
guns, ammunition, wifi hotspot, laptop computer, and a
large black tote had been taken. Ms. Ondrako reported
that she also had been notified by a neighbor of the break-
in at her camp on Farley Lane, and had found the air
conditioner pushed in and cupboard doors open and other
signs of entry. A rifle, saw, and hunting suit were missing.
Ms. Wheeler testified that Hanes was a “shirttail”
relative, and that she had paid Phillips, Hanes, and Trout
to clean some stalls. Toward the end of April, they came
to her house in a black pickup truck to sell things to Mr.
Simons, in exchange for drugs. This happened more than
once, with different persons coming, including [Reese].
They said that these things had been bought at flea
markets, or came from cleaning out Trout’s grandfather’s
garage.6 The State Police had later contacted her and
retrieved some tools, a gun, a bucket of bullets, and other
stolen items.
6
Trout mentioned that his grandfather had worked
for Mr. Simons. Ms. Wheeler was apparently familiar
with [Reese], as she added, on cross-examination,
that “Kenny” [Reese] . . . had also tried to sell her
some jewelry, which she knew to have been stolen
due to his recent release from prison.
Trooper Shaffer testified that, while working in the
crime investigation unit, he had received an anonymous
call about items sold to Ms. Wheeler and Mr. Simons. He
met with Ms. Wheeler, who identified Hanes, Trout,
Phillips, and [Reese] as the sellers. Among the items
recovered there were tools, a rifle, ammunition, and a
large black duffle bag bearing Mr. Miller’s name. The
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trooper then obtained a search warrant for the Trout
residence, where he discovered numerous tools, knives,
shotgun shells, and a rifle all belonging to Mr. Miller.
Later, Hanes agreed to accompany him to the Rhueville
Road area, where he identified the Miller and Ondrako
residences as the two houses that he, Phillips and [Reese]
had visited.
Phillips testified for the defense that he was [] eighteen
and had a “pretty clear recollection” of events. He had
stayed at Trout’s three or four times, along with Hanes and
Ms. Powell. They had gone out to burglarize four houses in
the Rhueville Road, all at the same time. He and Hanes
entered by bending and breaking a back door, by breaking
a window in a garage, and by pushing in an air conditioner.
Trout drove them back to his place with the rifle, air
compressor, and other items they had collected, some of
which were sold to David Simons on two different
occasions. [Reese] was never present. Phillips had met
him when [Reese] had stayed overnight once or twice at
Trout’s. Trout, fearing that they had been discovered, had
asked him to change his testimony to implicate [Reese],
and he had agreed to do so.
Asked on cross-examination whether he remembered
the brown house, he wasn’t sure, as he had been high and
very intoxicated. He did not recall making a statement that
all four had been involved. He was aware that both Hanes’
and Trout’s statements implicated [Reese] in the
conspiracies, and that no one had followed through on the
scheme to blame everything on [Reese].
Memorandum and Order, 4/21/16, at 2-6 (“Post-Sentence Op.”).5
On January 22, 2016, the jury found Reese guilty of the
aforementioned counts.6 On April 1, 2016, the trial court imposed an
____________________________________________
5
On June 15, 2016, the trial court issued an opinion pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a) incorporating its post-
sentence opinion as addressing the issues on appeal.
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aggregate sentence of 54 to 120 months’ incarceration. 7 On April 11, 2016,
Reese filed a post-sentence motion arguing the evidence was insufficient to
support the verdict and the verdict was against the weight of the evidence.
On April 21, 2016, the trial court denied the motion. On May 19, 2016,
Reese filed a timely notice of appeal.8
Reese raises the following issue on appeal:
I. Whether the verdict of guilty as to five counts of criminal
conspiracy and one count of theft by receiving stolen
_______________________
(Footnote Continued)
6
The jury found Reese not guilty of one count of conspiracy to commit
theft by unlawful taking. The trial court declared a mistrial as to seven other
counts: six counts that charged Reese with the offenses underlying the
conspiracy convictions — burglary, theft by unlawful taking, and criminal
trespass — and one count that charged Reese with theft by receiving stolen
property. A nolle pros was later entered for the seven counts.
7
The trial court sentenced Reese to 27 to 60 months’ incarceration for
conspiracy to commit burglary of the Rhueville Road residence, a concurrent
term of 21 to 42 months’ incarceration for conspiracy to commit burglary of
the Farley Lane residence, and a consecutive term of 27 to 60 months’
imprisonment for the conviction for theft by receiving stolen property. The
remaining convictions merged for sentencing purposes.
8
Reese also filed a pro se notice of appeal on April 28, 2016. On July
25, 2016, this Court dismissed the pro se appeal, docketed at 797 WDA
2016, as duplicative of the instant appeal.
Further, on July 13, 2016, counsel filed an application to withdraw as
counsel, stating Reese requested that counsel cease representation and
refrain from taking further action. On July 21, 2016, this Court remanded
the case to the trial court for a colloquy of Reese pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). On August 11, 2016,
following a Grazier hearing, the trial court issued an order finding Reese
chose to retain his counsel and denying counsel’s motion to withdraw.
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property was insufficiently supported by the evidence and
against the weight of the evidence?
Reese’s Br. at 4.
Reese first claims the evidence was insufficient to support the verdict.
We apply the following standard when reviewing a sufficiency of the
evidence claim:
[W]hether 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 [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. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quoting
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)) (some
alterations in original).
The jury found Reese guilty of two counts of conspiracy to commit
burglary, one count for the burglary on Rhueville Road and one for the
burglary on Farley Lane; one count of theft by receiving stolen property, for
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property removed from Rhueville Road residence; two counts of conspiracy
to commit criminal trespass, one count for trespass at Rhueville Road and
one count for trespass at Farley Lane; and one count of conspiracy to
commit theft by unlawful taking, for property removed from Rhueville Road
residence.
Reese maintains the Commonwealth failed to establish that he entered
into a conspiracy or that he had possession or actual control of the property
allegedly taken from the victims’ residences. Reese’s Br. at 9. He argues
that only Hanes testified that any conspiracy existed and that he testified
that the conspiracy was between Hanes, Trout, and Phillips. Id. at 13.
Reese maintains that Phillips testified Reese had no involvement and that
Wheeler’s testimony confirmed the lack of involvement.9 Id. He further
contends that the police failed to establish they found any of the stolen
property in his possession. Id.
____________________________________________
9
Reese maintains that Wheeler testified that on the weekend when the
sale of the items stolen from the two residences occurred, Reese was not at
her house. Reese’s Br. at 7. Wheeler testified that “[t]owards the end of
April,” Reese and the alleged co-conspirators came to her house to sell items
to Simons. N.T., 1/20/16, at 37. She stated they were there several times.
Id. On cross-examination she stated that the four were never at her house
at the same time; rather, “[i]t was usually two boys or three boys.” Id. at
39. The cross-examination further attempted to establish that on the
weekend of the burglaries, only Trout, Hanes, and Phillips went to sell items
to Simons. Id. at 39-43. However, as the trial court noted, “[t]he possible
sale of some stolen property to Mr. Simons when [Reese] was absent does
not contradict Ms. Wheeler’s testimony that [Reese] appeared at her
residence at other times to sell items.” Post-Sentence Op. at 8.
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Criminal conspiracy is defined as follows:
A person is guilty of conspiracy with another person or
persons to commit a crime if with the intent of promoting
or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S. § 903. This Court has stated that:
[c]ircumstantial evidence may provide proof of the
conspiracy. The conduct of the parties and the
circumstances surrounding such conduct may create a
“web of evidence” linking the accused to the alleged
conspiracy beyond a reasonable doubt.
Commonwealth v. Irvin, 134 A.3d 67, 75 (Pa.Super. 2016) (quoting
Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007)). Further,
[a]n agreement can be inferred from a variety of
circumstances including, but not limited to, the relation
between the parties, knowledge of and participation in the
crime, and the circumstances and conduct of the parties
surrounding the criminal episode. These factors may
coalesce to establish a conspiratorial agreement beyond a
reasonable doubt where one factor alone might fail.
Id. (quoting Perez, 931 A.2d at 708).10
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10
Burglary is defined as:
(a) Offense defined.--A person commits the offense of
burglary if, with the intent to commit a crime therein, the
person:
(Footnote Continued Next Page)
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Theft by receiving stolen property is defined as: “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.” 18 Pa.C.S. § 3925(a). “Receiving” is
_______________________
(Footnote Continued)
...
(2) enters a building or occupied structure, or separately
secured or occupied portion thereof that is adapted for
overnight accommodations in which at the time of the
offense no person is present[.]
18 Pa.C.S. § 3502(a)(2).
Trespass is defined as:
(a) Buildings and occupied structures.--
(1) A person commits an offense if, knowing that he is not
licensed or privileged to do so, he:
...
(ii) breaks into any building or occupied structure or
separately secured or occupied portion thereof.
...
(3) As used in this subsection:
“Breaks into.” To gain entry by force, breaking,
intimidation, unauthorized opening of locks, or through an
opening not designed for human access.
18 Pa.C.S. § 3503(a).
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defined as “acquiring possession, control or title, or lending on the security
of the property.” Id. at § 3925(b).
We conclude the Commonwealth presented sufficient evidence from
which a reasonable jury could find Reese guilty of the crimes beyond a
reasonable doubt.
The Commonwealth presented evidence that: Reese, Hanes, and
Phillips were staying at Trout’s home; Reese, Hanes, and Phillips went to
burglarize two houses; Reese, Hanes and/or Phillips entered the residences;
Trout then drove to pick up the others; and Reese, Hanes, Phillips, and Trout
returned to Trout’s home with the stolen items. The evidence further
established that Reese and his co-conspirators sold some stolen items to
Simons and that Reese brought some stolen items to a flea market. We
conclude this was sufficient to establish Reese had an agreement with
Hanes, Phillips, and/or Trout to burglarize the two homes, an agreement to
trespass on the properties, and an agreement to commit theft by receiving
stolen property from the Rhueville Road home. See Commonwealth v.
Jones, 874 A.2d 108, 122-23 (Pa.Super. 2005) (finding sufficient evidence
of conspiracy where evidence established close relationship between
appellant and his passengers, all three passengers were present at the
scene, cocaine was in area where any passenger could have seen it and
exercised control over it, and passengers made inconsistent statements
regarding duration and purpose of trip); Commonwealth v. Galindes, 786
A.2d 1004, 1010 (Pa.Super. 2001) (finding sufficient evidence of conspiracy
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to commit burglary where appellants knocked on front door to determine
whether someone was home, took turns kicking back door, and, when
discovered, fled and fired shots).
Further, the evidence was sufficient for the jury to find that Reese
received stolen property. Testimony established that Reese participated in
the burglaries where items were stolen; on at least one occasion, Reese
accompanied Trout to sell items to Simons; and Trout drove Reese to a flea
market in Andover, to which Reese brought some of the stolen items and did
not return with them. Therefore, a jury could find beyond a reasonable
doubt that Reese “acquir[ed] possession, control or title . . . of the
property.” 18 Pa.C.S. § 3925(b)
Reese next argues the verdict was against the weight of the evidence.
He claims the combination of Phillips’ testimony that Reese was not involved,
which was “seemingly corroborated by” Wheeler, and Trout’s and Hanes’
inconsistent testimony establishes that the verdict was against the weight of
the evidence. Reese’s Br. at 9.
This court reviews a weight of the evidence claim for an abuse of
discretion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). “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 evidence and that a new trial should be granted in the interest of
justice.” Id. (quoting Commonwealth v. Widmer 744 A.2d 745, 753 (Pa.
2000)). “Because the trial judge has had the opportunity to hear and see
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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.” Id.A trial court should not grant a motion for a new trial “because of a
mere conflict in the testimony or because the judge on the same facts would
have arrived at a different conclusion.” Clay, 64 A.3d at 1055. “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.’” Id. (quoting
Widmer, 744 A.2d at 752). Courts have stated that “a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as to shock
one’s sense of justice and the award of a new trial is imperative so that right
may be given another opportunity to prevail.” Id. (quoting
Commonwealth v. Brown, 648 A.2d 1177, 1090 (Pa. 1994)).
Although Phillips testified that Reese was not involved, and Reese
challenged the credibility of other witnesses, the jury was free to credit the
Commonwealth’s evidence linking him to the crime. See Commonwealth
v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) (stating credibility
determination “lies solely within the province of the factfinder”);
Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004) (“The weight
of the evidence is exclusively for the finder of fact, which is free to believe
all, part, or none of the evidence, and to assess the credibility of the
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witnesses.”). The trial court did not abuse its discretion in finding the
verdict was not against the weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
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