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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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