J-S17015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEONARDO SANTANA-MORALES                   :
                                               :
                       Appellant               :   No. 1418 MDA 2019

        Appeal from the Judgment of Sentence Entered March 20, 2019
               In the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0001404-2018


BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                   FILED: APRIL 14, 2020

        Leonardo Santana-Morales appeals from the judgment of sentence

entered March 20, 2019, in the Lebanon County Court of Common Pleas, made

final by the denial of post-sentence motions on July 23, 2019. On February

28, 2019, a jury convicted Santana-Morales of theft by unlawful taking or

disposition – movable property (firearm).1 On appeal, Santana-Morales raises

sufficiency and weight claims. For the reasons below, we affirm the judgment

of sentence.2




____________________________________________


1   See 18 Pa.C.S.A. § 3921(a).

2   We note the Commonwealth has not filed a responsive brief in this matter.
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      Santana-Morales’ conviction stems from the theft of a firearm at a

pizzeria on August 28, 2018. The trial court set forth the factual history as

follows:

      Francisco Sandoval (hereafter Sandoval) is the owner of Bella’s
      Pizza shop located at 701 Lehman Street, in the city of Lebanon.
      At one time, Sandoval employed [Santana-Morales] at Bella’s
      Pizza Shop. [Santana-Morales] was not a regular employee and
      was only paid in cash for the days he worked. Sandoval stated
      that [Santana-Morales] worked at Bella’s Pizza Shop on August
      28, 2018.

            As of August 28, 2018, Sandoval kept a Smith & Wesson
      1911 handgun at the pizza shop for self-defense. The handgun
      was kept in an unlocked box in the pizza shop’s backroom, which
      is accessible to the pizza shop employees. Sandoval left the
      firearm in the backroom of the pizza shop on August 28, 2018,
      prior to leaving the pizza shop. When Sandoval returned to the
      pizza shop later that day, the firearm and [Santana-Morales] were
      missing. Sandoval called the Lebanon City Police Department to
      report the missing firearm.

             Juan Alvarado (hereafter Alvarado) also worked at Bella’s
      Pizza Shop on August 28, 2018. Alvarado confirmed [Santana-
      Morales] was not a regular employee at Bella’s Pizza, but was
      working on August 28, 2018. Alvarado stated that [Santana-
      Morales] was at the pizza shop for a brief period of time on August
      28, 2018. [Santana-Morales] then disappeared and never
      returned to the pizza shop. Alvarado stated that when Sandoval
      returned to the pizza shop, Sandoval realized the firearm was
      missing and called the police. Alvarado stated that he did not take
      the firearm.

            Francisco Infante (hereafter Infante) also worked at Bella’s
      Pizza Shop on August 28, 2019. Infante corroborated that
      [Santana-Morales] was working at the pizza shop on August 28,
      2018 for a brief period of time and that [Santana-Morales] left and
      did not return. Infante confirmed that when Sandoval returned to
      the shop, Sandoval realized the firearm was missing. Infante
      stated he did not take the gun.




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            Lebanon City Police Department Officer Frank Betancourt
     (hereafter Betancourt) received a report of a stolen handgun at
     Bella’s Pizza Shop on August 28, 2018. Betancourt met with
     Sandoval, Alvarado and Infante at the pizza shop. Betancourt
     confirmed that all three men told him that [Santana-Morales]
     worked at Bella’s Pizza for a brief period of time on August 28,
     2018, went for a smoke break and never came back to the pizza
     shop. Betancourt referred the case to the Lebanon City Police
     Department’s Detective Division.

           Lebanon City Detective William Walton (hereafter Walton)
     responded to Betancourt’s report of a stolen handgun at Bella’s
     Pizza Shop on August 28, 2018. Walton spoke with Sandoval,
     Alvarado and Infante who all confirmed the information related
     above. Sandoval also told Walton that August 28, 2018 was
     [Santana-Morales’] first day of work in quite a while.

            Walton took a description of the stolen firearm and stated
     that it was a Smith & Wesson 1911 style .45 caliber handgun.
     Walton viewed the pizza shop’s surveillance tape from August 28,
     2018. Walton noted that [Santana-Morales] could be seen leaving
     the pizza shop with a “slight bulge” in his hip area or waistband
     area. The “bulge” appeared after [Santana-Morales] entered the
     back room of Bella’s Pizza, where Sandoval’s firearm was stored.
     Walton noted that the surveillance video confirmed that [Santana-
     Morales] never returned to Bella’s Pizza on the day of the incident.

           Walton interviewed [Santana-Morales] regarding the August
     28, 2018 incident. Walton stated that [Santana-Morales]
     acknowledged that he worked for Bella’s Pizza Shop on August 28,
     2018 and that he was aware that a gun was stolen. During the
     interview with Walton, [Santana-Morales] acknowledged that he
     never returned to the pizza shop that day and was not paid for
     working that day. Also during the interview with Walton,
     [Santana-Morales] acknowledged his heroin addiction. He stated
     that as of August 28, he owed money to someone for drugs.
     [Santana-Morales] told Walton that “he got to pay for it” with
     regard to Walton’s question about the missing firearm.

Trial Court Opinion, 7/23/2019, at 2-5 (record citations omitted and some

capitalization removed).




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       Santana-Morales was subsequently charged with theft by unlawful

taking. A one-day jury trial took place on January 28, 2019. As noted above,

the jury found Santana-Morales guilty of theft. On March 20, 2019, the court

sentenced Santana-Morales to a term of 27 months to 6 years’ incarceration.

Santana-Morales filed post-sentence motions, which the court denied on July

23, 2019. This timely appeal followed.3

       In Santana-Morales’ first argument, he asserts there was insufficient

evidence to support his theft conviction because the Commonwealth failed to

prove that he stole the firearm. See Appellant’s Brief, at 9. Santana-Morales

concisely states:

       At trial, no one testified they saw [him] take the firearm. The
       firearm was never recovered. The video surveillance did not show
       that [he] had possession of the firearm when he left Bell[a]’s
       Pizza. Finally, when [he] was interviewed by law enforcement[, …]
       he never stated that he stole nor possessed the firearm.

Id., at 10.

       We begin with our well-settled standard of review:

       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
____________________________________________


3 On August 28, 2019, the trial court ordered Santana-Morales to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Santana-Morales filed a concise statement on September 17, 2019. The trial
court issued an order adopting its July 23, 2019 opinion, which addressed
Santana-Morales’s post-sentence motions.

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      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. Brown, 186 A.3d 985, 990-991 (Pa. Super. 2018)

(citation omitted).

      A person is guilty of theft by unlawful taking or disposition of movable

property 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). As defined, “property of another” includes “property in which any

person other than the actor has an interest which the actor is not privileged

to infringe, regardless of the fact that the actor also has an interest in the

property[.]” 18 Pa.C.S.A. § 3901.

      In finding there was sufficient evidence to support Santana-Morales’

theft conviction, the trial court relied on the following: (1) Sandoval kept the

firearm in a storage room at the pizzeria for self-defense purposes; (2) the

firearm was present early on August 28, 2018 but by the end of that day, it

was missing; (3) Santana-Morales was an employee at the pizzeria on the day

in question, and knew where Sandoval kept the firearm; (4) Santana-Morales

abruptly left work on August 28th without advising his co-workers and never

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returned; (5) surveillance video showed Santana-Morales at the pizza shop

without a bulge in his waistband but as he left the shop, there was a bulge in

his waistband area; (6) no other employee at the business possessed the

firearm, and all employees verified that no other individual entered the store

either surreptitiously or forcibly; and (7) Santana-Morales admitted to police

he was addicted to heroin and that he owed a drug dealer money as of August

28th. See Trial Court Opinion, 7/23/2019, at 8. The court concluded there was

a fair inference” that Santana-Morales “was the only person in position to take

possession of the firearm,” and his debt to the drug dealer afforded him a

motive to commit the theft. Id.

      Notwithstanding the lack of any witness observing Santana-Morales take

the handgun or proof of its recovery, our review of the entire record, in the

light most favorable to the Commonwealth as the verdict winner, and drawing

all reasonable inferences therefrom, reveals no error in the court’s disposition.

While a considerable amount of the evidence of demonstrating Santana-

Morales’ possession was circumstantial, we reiterate that the “Commonwealth

may sustain its burden of proving every element of the crime beyond a

reasonable doubt by means of wholly circumstantial evidence.” Brown, 186

A.3d at 990-991.

      Here, the circumstantial evidence supported the Commonwealth’s

theory that Santana-Morales unlawfully possessed Sandoval’s handgun with




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intent to deprive him thereof,4 including: (1) Sandoval placed the gun in a box

in the back room of the pizza shop prior to Santana-Morales arriving at work

on the day in question; (2) Santana-Morales told the other employees he was

going to take a smoke break and then never returned; (3) video surveillance

showed Santana-Morales leaving the business with a slight bulge on his right

hip/waistband area; (4) the other employees denied taking the gun; (5) when

Sandoval returned approximately two hours later and learned that Santana-

Morales had left, he immediately went to the box that contained the gun and

noticed it was missing; and (6) Santana-Morales admitted to Detective Walton

that he had a drug problem, he purchased drugs on the day the gun went

missing, and he needed to pay off a debt to his supplier. See generally N.T.,

2/28, 2019, at 5-103.

       Furthermore, to the extent Santana-Morales relies on his own statement

to police that he did not steal or possess the firearm, such an assertion is a

credibility determination which goes to the weight of the evidence, not

sufficiency, and is for the fact-finder to decide. Accordingly, Santana-Morales’

sufficiency claim fails.

       In his second argument, Santana-Morales challenges the weight of the

evidence supporting his conviction.5 He complains that the jury gave “too


____________________________________________


4See 18 Pa.C.S.A. § 3921(a).
5 Santana-Morales properly preserved his weight challenge in his post-
sentence motion. See Pa.R.Crim.P. 607(A)(3); Defendant’s Consolidated Post
Sentence Motions, 4/1/2019, at 4.

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great a weight to the testimony of the Commonwealth’s witnesses” that

Santana-Morales stole the firearm. Appellant’s Brief, at 10 (emphasis

removed). Rather, he states the jury “should have given greater weight to

Santana-Morales[’] statements to law enforcement that he did not steal the

firearm.” Id., at 11.

      Our standard of review is as follows:

      When reviewing a challenge to the weight of the evidence, we
      review the trial court’s exercise of discretion. A reversal of a
      verdict is not necessary unless it is so contrary to the evidence as
      to shock one’s sense of justice. The weight of the evidence is
      exclusively for the finder of fact, who is free to believe all, none
      or some of the evidence and to determine the credibility of the
      witnesses. The fact-finder also has the responsibility of resolving
      contradictory testimony and questions of credibility. We give great
      deference to the trial court’s decision regarding a weight of the
      evidence claim because it had the opportunity to hear and see the
      evidence presented.

Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2019) (citations

and quotation marks omitted).

      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. This does not mean that the
      exercise of discretion by the trial court in granting or denying a
      motion for a new trial based on a challenge to the weight of the
      evidence is unfettered.... The term “discretion” imports the
      exercise of judgment, wisdom and skill so as to reach a
      dispassionate conclusion within the framework of the law, and is
      not exercised for the purpose of giving effect to the will of the
      judge. Discretion must be exercised on the foundation of reason,
      as opposed to prejudice, personal motivations, caprice or arbitrary
      actions. Discretion is abused where the course pursued represents
      not merely an error of judgment, but where the judgment is
      manifestly unreasonable or where the law is not applied or where


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      the record shows that the action is a result of partiality, prejudice,
      bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted).

      In addressing this claim, the trial court found the evidence was “so

strong that the jury’s verdict of guilty [did] not shock [its] conscience.” Trial

Court Opinion, 7/23/2019, at 9. We cannot conclude this was an abuse of the

trial court’s discretion. Santana-Morales is asking this Court to reweigh the

evidence, and view it in his favor because he believes the jury should have

given greater weight to his statements to police than the testimony of the

Commonwealth’s witnesses. We decline to do so. See Commonwealth v.

Olsen, 82 A.3d 1041, 1049 (Pa. Super. 2013) (“The fact-finder is free to

believe all, part, or none of the evidence; an appellate court will not make its

own assessment of the credibility of the evidence.”). Moreover, he fails to

explain how the trial court abused its discretion in denying his weight claim.

Santana-Morales provides us with no basis upon which to disagree.

Consequently, his weight claim fails.

      Accordingly, because both of Santana-Morales’ arguments are without

merit, we affirm his judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/14/2020




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