Com. v. Walker, A. ( 2016 )


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  • J-A17017-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    ANDREW THOMAS WALKER
    Appellant                No. 3218 EDA 2014
    Appeal from the Judgment of Sentence June 9, 2014
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0015522-2013
    BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
    MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 04, 2016
    Andrew Thomas Walker appeals from the judgment of sentence
    imposed in the Court of Common Pleas of Philadelphia County following his
    convictions for theft by unlawful taking1 and criminal conspiracy to commit
    theft.2 Upon review, we affirm Walker’s judgment of sentence.
    The charges in this matter relate to the theft of equipment from the
    Bartram High School Annex in Philadelphia on November 30, 2013. Officers
    witnessed two men matching flash information from a burglary radio call
    enter a pick-up truck, one in the driver’s seat and one in the passenger’s
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    18 Pa.C.S.A. § 3921.
    2
    18 Pa.C.S.A. § 903.
    J-A17017-16
    seat. An officer attempted to stop the truck, and it fled across a grass field.
    After a chase, the truck crashed into a utility pole. The passenger then fled
    the crash scene and was eventually located, hiding in a residence’s tool
    shed.     In the bed of the pick-up truck, the officers observed tools,
    equipment, copper pipes, and a sink, which were later identified by the
    facility coordinator of the Bartram Annex as being similar to the items that
    had been stolen from the school.
    Following a non-jury trial on June 9, 2014, the Honorable Daniel
    McCaffery found Walker, along with his co-defendant Marvin Thornton, guilty
    of the aforementioned charges.       Walker was sentenced to three years’
    probation and ordered to pay restitution.    His post-sentence motions were
    denied on October 6, 2014.
    Walker filed a timely notice of appeal and court-ordered concise
    statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
    On appeal, Walker raises one issue for our review:
    Was the evidence presented at trial by the Commonwealth
    insufficient to sustain Defendant’s convictions for theft by
    unlawful taking or disposition, 18 Pa.C.S.A. [§ 3921] and
    criminal conspiracy, 18 Pa.C.S.A. § 903?
    Brief for Appellant, at 7.
    The main thrust of Walker’s appeal is that all of the Commonwealth’s
    evidence is circumstantial, and therefore cannot sustain the convictions.
    This Court reviews the sufficiency of the evidence according to the following
    standard:
    -2-
    J-A17017-16
    [The] standard of review of sufficiency claims requires that we
    evaluate the record in the light most favorable to the verdict
    winner giving the prosecution the benefit of all reasonable
    inferences to be drawn from the evidence. Evidence will be
    deemed sufficient to support the verdict when it establishes each
    material element of the crime charged and the commission
    thereof by the accused, beyond a reasonable doubt.
    Nevertheless, the Commonwealth need not establish guilt to a
    mathematical certainty. Any doubt about the defendant’s guilt is
    to be resolved by 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.                 The
    Commonwealth may sustain its burden by means of wholly
    circumstantial evidence.
    Commonwealth v. Lynch, 
    72 A.3d 706
    , 707-08 (Pa. Super. 2013)
    (internal citations and quotation marks omitted).
    Walker contends the officers merely observed him entering the
    passenger side of a pick-up truck that contained various copper piping and
    porcelain sinks, and that they never observed him carrying any goods.
    Therefore, he claims no evidence exists to show he had control or possession
    of the materials in the truck.         Moreover, Walker asserts that the
    Commonwealth failed to establish that he and Thornton formed an
    agreement to take items from the Bartram Annex.
    We have reviewed the transcripts, the briefs, the relevant law, and the
    record as a whole.     We find that opinion authored by Judge McCaffery
    thoroughly, comprehensively and correctly disposes of the issue raised by
    Walker on appeal and, for that reason, we affirm based on the trial court’s
    opinion. Counsel is directed to attach a copy of that opinion in the event of
    further proceedings in this matter.
    -3-
    J-A17017-16
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/4/2016
    -4-
    Circulated 07/11/2016 02:47 PM
    IN THE COURT OF COM!vlON PLEAS
    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
    TRIAL DIVlSION-CRJMINAL SECTION
    COtVIl\·ION\VEALTH OF PENNSYLVANIA                         : PHILADELPIDA COURT
    : OF COi\.1MON PLEAS
    : CRINllNAL TRIAL DIVISION
    I                                        v.                                    CP·Sl·CR-0015522·2013
    l
    I
    'i
    ANDREW THOMAS WALKER
    i
    FilED
    OPINION                            MAY     6 2015
    _ Criminal Appeals Unit
    MCCAF:fi'ERY, J                                                            First Judicial District of Pt.
    Andrew Thomas Walker (hereinafter "Appellant") appeals from the judgment of sentence
    imposed by this Court on June 9, 2014. For the reasons set forth below it is suggested that the
    judgment of sentence be affirmed.
    PROCEDURAL HISTORY
    On June 9, 2014, following a waiver trial. Appellant was found guilty of Theft by
    Unlawful Taking,18 Pa.C.S § 3921, graded as a misdemeanor of the first degree, and Criminal
    Conspiracy to comm it theft, 18 Pa.C.S § 903 .1 Post verdict, this Court imposed a sentence of
    three years' probation on the Theft by Unlawful Taking charge. (N.T. 6/9/14, 83).2 This Court
    also ordered Appellant to pay restitution. Appellant filed post-sentence motions, which were
    denied on October 6, 2014. Appellant thereafter filed a timely notice of appeal and a court
    ordered Pa.R.A.P. 1925(b) statement.              ln his 1925(b) statement, Appellant asserts that the
    evidence was insufficient to support the theft conviction beyond a reasonable doubt. Specifically,
    .l       I
    Appellant was tried jointly with Marvin Thornton, who was also found guilty.
    ,1       l
    - A verdict without further penalty was entered on the Criminal Conspiracy charge.
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    Appellant    asserts that the Commonwealth             failed to prove that either Appellant             or his co-
    conspirator    removed the property found in a truck in which Appellant was a passenge1· and which
    belonged      lo Appellant's     co-actor,   which property having          been unlawfully      removed      from a
    school; or that Appellant exercised unlawful control of the properly. In addition, he asserts that
    the evidence was insufficient to establish that he committed the crime of criminal conspiracy to
    commit theft because there was no evidence that he made an agreement with any other person to
    commit the theft from a school.
    FACTUAL HISTORY
    On November 30, 2013, at about 1:20 p.m., Philadelphia Police Officer Vincent Ficchi
    and his partner, Police Officer Brown, members of the Police Department's Burglary Detail,
    were working in plain clothes when they received a radio call for a burglary in progress at 8110
    Lyons Avenue, the location of Bartram High School AO!leX, which, at the time, was not being
    utilized by the Philadelphia School District. (N.T. 11-14).3 The officers immediately proceeded
    to that location. Officer Ficchi and his partner checked the school and saw that a window on one
    of the doors had been broken and that the door's locks had been tampered with, thereby allowing
    entry into the building.        (N.T. 14, 15-16, 27). Officer Ficchi informed police radio about what
    he had observed. Ficchi and his partner then set up a perimeter and parked where they could see
    down both Lyons Avenue and 81st Street. (N.T. 14-15).4
    Approximately ten to fifteen minutes before the radio call, Officer Ficchi observed two
    men in the parking lot of the school about twenty to thirty feet from the location of the broken
    door. (N.T. 26). Officer Ficchi again saw the same two men while parked outside the school.
    I    (N.T. 25, 26). Al the time, the men were not carrying anything. (N.T. 25). The two men, who
    'I!   'All re fereom to lhe record refer 10 the transcript or Appellant's trial recorded on June 9, 2014.
    ~ The officers decided not to search the building because ii was a large property and they were alone. (N.T. 14).
    ·1
    i                                                             2
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    were dressed in clothing      that matched flash informal ion contained    in the radio call of the
    burglary, entered a black Chevrolet    pick-up truck, which was then driven into a cul de   S(!C   and
    then across a grass field. (N.T. 15-16). Officer Ficchi activated his vehicle's emergency lights
    and siren and pursued the vehicle. (N.T. 16-17). When the truck reached             so"   Street and
    Lindbergh Boulevard, its driver disregarded a red light and proceeding westbound on Lindbergh
    al a high rate of speed until it reached 841h Street where it went southbound for a couple of blocks
    before its driver pulled over. (N.T. 17).
    Officer Ficchi pulled behind the pick-up and ordered its driver, Marvin Thornton, to put
    the vehicle in park. (N.T. 17). Thornton ignored the officer and fled the scene. Officer Brown
    and Officer Carter, who were in separate vehicles, pursued the pick-up along with Officer Ficchi
    for several blocks. (N.T. 18). During the pursuit, Thornton ignored several red lights. (N.T. 36).
    The pursuit ended at 841h Street and Lindbergh Avenue when Thornton crash his pick-up into a
    utility pole. (N.T. 18, 36).     Upon looking in the bed of the pick-up, Officer Ficchi observed
    tools, equipment, a sink, and pipes. (N.T. 23, 33).
    After the crash, Officers Ficchi and Carter placed Thorton in custody. Appellant fled
    following the crash after Officer Brown attempted to place him in custody.           (N.T. 19, 37).
    Officer Brown chased Appellant, who ran through the backyards of nearby residences, to avoid
    apprehension. (N.T. 21-22). It took police over an hour to locate and apprehend Appellant, who
    was found hiding in a buck yard shed. Appellant also resisted arrest. (N.T. 38, 39). As stated,
    upon looking in the bed of the pick-up, Officer Ficchi observed tools, equipment, a sink, and
    pipes. (N.T. 23, 33).
    Mr. Edward Coleman, employed by the Philadelphia School District as a facility area
    coordinator for the Bartram Annex and other schools, was working on the day of the incident and
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    was summoned         to the Bartram Annex following        the report of the burglary.      (N.T. 48-49).   He
    conducted an inspection      of the Annex and observed that an entry door had been dismantled               and
    in the lower levels of the building, copper pipes had been cut out and several porcelain cast iron
    sinks were missing.        (N.T. 49-51). Mr. Coleman          testified that if the door been broken the
    previous day, it would have been repaired. (N.T. 64).
    After inspecting the building, Mr. Coleman went to the location where the pick-up
    crashed at the behest of the police to inspect the items in the back of the truck, (N.T. 52). Upon
    inspecting the pipes and sink in the truck, Mr. Coleman indicated that they were "similar to" the
    types of items that were removed from Bartram Annex.                      (N.T. 52-53). According to Mr.
    Coleman, neither Appellant nor Thornton had permission to be inside the Annex and that the cost
    to fix the damage done inside the school ranged from $7,000.00 to $10, 000.
    DISCUSSION
    In his l 925(b) statement, Appellant raises the following claims:
    1.    THE EVIDENCE WAS JNSUFFlCJENTTO FIND
    THE DEFENDANT GUILTY BEYOND A
    REASONABLE DOUBT OF THE OFFENSE OF
    THEFT BY UNLAWFUL TAKING AND
    CRIMINAL CONSPIRACY.5
    Appellant asserts that the evidence was insufficient to establish the crime of Theft by
    Unlawful Taking for a number of reasons including: 1) no one observed Appellant and/or his co-
    actor actually removing items from the school and placing them in the truck; 2) the
    Commonwealth failed to prove that Appellant exercised unlawful control of the property found
    in the truck; 3) the Commonwealth failed to prove that Appellant was aware of the items in the
    5
    Appellant's claims have been combined and rephrased for purposes of efficiency and ease of review.
    4
    truck or that he knew or should have known that they were stolen; and 4) the evidence showing
    that Appellant left the scene was circumstantial, and thus, insufficient to support the charges.
    Appellant next claims that his conspiracy conviction rests on insufficient evidence
    because the Commonwealth failed to establish that Appellant and Thornton, his co-actor, formed
    an agreement to take items from the Bartram Annex. It is respectfully suggested that both claims
    be deemed lacking in merit.
    In ruling upon claims challenging the sufficiency of the evidence, the reviewing court
    must view all evidence and reasonable inferences therefrom in a light most favorable to the
    Commonwealth as verdict winner and determine whether the evidence enabled the fact-finder to
    find that each element of the offense was established beyond a reasonable doubt. Commonwealth
    v. Ho.J.ky, 
    945 A.2d 241
    , 246~247 (Pa. Super. 2008), appeal denied, 
    598 Pa. 787
    , 
    959 A.2d 928
    (2008). When reviewing the sufficiency of the evidence, the reviewing court may not substitute
    its judgment for that of the fact-finder, which can believe all, some, or none of a witness's
    testimony, and if the record contains support for a conviction it may not be disturbed. 
    Id. at 247.
    Finally, the "Commonwealth's burden may be met by wholly circumstantial evidence and any
    doubt about the defendant's guilt is to be resolved by 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." Commonwealth v. Stokes, 
    38 A.3d 846
    , 853 (Pa. Super. 2011)
    (quoting Commonwealth v. Mobley, 
    14 A.3d 887
    , 889-890 (Pa. Super. 2011)).
    In Pennsylvania, an individual commits Theft by Unlawful Taking or Disposition when
    he "unlawfully takes, or exercises unlawful control over movable property of another with intent
    to deprive him thereof." 18 Pa.C.S. § 3921(a). Movable property is defined, in pertinent part, as
    i
    }I   "[pjroperty the location of which can be changed .... " 18 Pa.C.S. § 3901. The term "deprive" is
    Ii
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    defined as: "(1) To withhold property of another permanently            ...   or (2) to dispose of the
    property so as to make it unlikely that the owner will recover it." 
    Id. "The material
    elements of conspiracy are: "(1) an intent to commit or aid in an unlawful
    act, (2) an agreement with a co-conspirator     and (3) an overt act in furtherance of the conspiracy."
    Commonwealth         v. Gross, 
    101 A.3d 28
    , 34 (Pa.2014); 18 Pa.C.S. § 903. "An 'overt act' means an
    act done in furtherance of the object of the conspiracy." 
    Id. "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, Bricker, 
    882 A.2d 1008
    , 1017
    (Pa.Super.2005).
    A conspiratorial    agreement may be inf erred 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." 
    Bricker, 882 A.2d at 1017
    . This Court has explained the agreement element of
    conspiracy as follows:
    The essence of a criminal conspiracy is a common
    understanding, no matter how it came into being, that a
    particular criminal objective be accomplished. Therefore, a
    conviction for conspiracy requires proof of the existence of
    a shared criminal intent. An explicit or formal agreement to
    commit crimes can seldom, if ever, be proved and it need
    not be, for proof of a criminal partnership is almost
    invariably extracted from the circumstances that attend its
    activities. Thus, 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.   The conduct of the parties and the
    circumstances surrounding their conduct may create a web
    of evidence linking the accused to the alleged conspiracy
    beyond a reasonable doubt. Even if the conspirator did not
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    act as a principal in committing the underlying crime, he is
    still criminally liable for the actions of his co-conspirators
    in furtherance of the conspiracy.
    Commonwealth            v. McCall, 
    911 A.2d 992
    , 996-97 (Pa.Super.2006).
    The "overt act [necessary to establish criminal conspiracy]       need not be committed by the
    defendant; it need only be committed by a co-conspirator."             
    McCall, 911 A.2d at 996
    . Further,
    "[ejach co-conspirator        is liable for the actions of the others if those actions were in furtherance of
    the common criminal design." Commonwealth                  v. King, 
    990 A.2d 1172
    , 1178 (Pa.Super.2010)
    (Citing Commonwealth           v. Baskerville, 
    681 A.2d 195
    , 201 (Pa. Super.1996)).
    Instantly,    a review of the evidence     in a light most favorable     to the Commonwealth
    establishes the evidence was more than sufficient to support the theft and criminal conspiracy
    charges.     On the day of the incident, Philadelphia Police observe Appellant and his co-defendant
    on the property of a closed public school. Fifteen minutes later, the officers receive a radio call
    announcing a burglary at the school leading them to investigate. Uponarrival at the school, they
    discover a door with a broken window and a door. The door was situated on the same side of the
    school where the police observed Appellant and his co-defendant.
    Shortly thereafter, Police set up a perimeter around the school to conduct a surveillance
    of the area. Instantly, the police observe Appellant and his co-defendant coming from the
    direction of the school, enter a pick-up truck, and drive across a grass field lo flee the area.
    Police immediately pursued the truck and its driver, Appellant's co-defendant, ·who ignored
    police directives to stop and fled from police at a high rate of speed, running red lights. The
    pursuit finally ended when the truck crashed at which point Appellant fled and secreted himself
    in a back yard shed. When police went to take Appellant in custody, he resisted.
    7
    Further evidence showed that the truck contained property linked to the school. It also
    established      that Appellant did not have permission     to enter the school and that the school had
    been secure the previous day.
    111e circumstances   surrounding   the conduct of Appellant and his co-defendant   created a
    circumstantial      web of evidence linking Appellant to the theft of the property from the school.
    There was clearly sufficient evidence circumstantial       and direct to find that Appellant and his co-
    defendant      formed a conspiracy,    the object of which was to commit a theft from the school
    beyond a reasonable doubt.         When viewed in conjunction     with each other and in the context in
    which the events herein occurred, it is clear that the evidence proved beyond a reasonable doubt
    that Appellant was not an "innocent bystander or merely present in the truck", but rather, he was
    an active participant in the theft, which was conclusively established by the conduct of the
    parties.
    It is well settled that a permissible inference of guilty knowledge may be drawn from the
    unexplained possession of recently stolen good as well as from surrounding circumstances.
    Commonwealth v. Grabowski, 
    549 A.2d 145
    , 148 (Pa. Super. 1988), appeal denied, 
    559 A.2d 526
    (Pa. 1988). Such surrounding circumstances include, but are not limited to the time elapsed
    between the accused's possession and the theft; the type of property; and the situs of the theft and
    the situs of the possession. 
    Id., 549 A.2d
    at 148. Moreover, whether possession is recent and
    whether it is unexplained are genera Hy questions for the trier of fact. 
    Id. at 461,
    549 A.2d at l 48.
    Appellant and Thornton confirmed their joint participation in a conspiracy and the
    possession of the stolen items by their joint actions on the day of the incident including their
    joint flight on the day of the incident. Appellant further confirmed his involvement when he fled
    following the crash of the truck. If Appellant had been "merely" an innocent bystander, it is
    8
    reasonable to infer that he would not have fled after the truck crashed or hidden in a back yard
    shed to avoid apprehension.    See Commonwealth v. Rizzuto, 
    566 Pa. 40
    , 
    777 A.2d 1069
    , 1078
    (Pa. 2001) ("[E)vidence of flight shows a consciousness of guilt."); Commonwealth v. Davalos,
    
    779 A.2d 1190
    , 1194 (Pa. Super. 2001) (flight from crime scene with alleged co-conspirators
    shows consclousness of guilt, and thus participation in conspiracy).
    Evidence showing possession of recently stolen items was deemed sufficient to sustain a
    conviction for Theft by Unlawful Taking when, as is the case here, other factors are present.
    Commonwealth v. Plath, 405 A.2 1273 (Pa. Super. 1979) (section 3921 conviction upheld where
    defendant found in possession of a vehicle stolen several hours earlier and attempted to evade
    police after being spotted); Commonwealth v. Hanes, 
    522 A.2d 622
    (Pa. Super. 1987) (evidence
    was sufficient to sustain theft conviction under section 3921 where defendant found driving a
    logging truck filled with logs that had been stolen the same day).
    Accordingly for all of the foregoing reasons, it is submitted that the evidence was
    sufficient to sustain Appellant's conviction and the judgment of sentence should be affirmed.
    CONCLUSION
    Based on the foregoing, it is respectfully suggested that the judgment of sentence be
    affirmed.
    BY THE COURT,
    /1, i .     ,-
    Date:~
    Daniel D. McCaffery, J.
    \
    '.
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