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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                  :
                                       :
MICHAEL LEE EVANS,                     :         No. 1781 WDA 2013
                                       :
                        Appellant      :


           Appeal from the Judgment of Sentence, June 4, 2013,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0015114-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED JANUARY 21, 2015

     Michael Lee Evans appeals from the judgment of sentence entered on

June 4, 2013, in the Court of Common Pleas of Allegheny County. Following

a bench trial, appellant was convicted of theft by unlawful taking, receiving

stolen property, and fleeing or attempting to elude police officer.   For the

following reasons, we reverse and remand for resentencing and affirm on all

other bases.

     On October 25, 2012, at approximately 5:20 a.m., Officer Robert J.

Stipetich was dispatched to the 3600 block of Mt. Troy Road for a vehicle

that was reported stolen. The officer was informed that the vehicle, a white

Impala, had a GPS system installed which indicated the vehicle was traveling

southbound on that road. (Notes of testimony, 6/4/13 at 22.) As the officer

traveled to this location, a white Impala passed him in the 2600 block of
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Mt. Troy Road. (Id.) The vehicle had the lettering “ComTransit” on its side

in black lettering.

      Officer Stipetich turned his marked police vehicle around, followed the

Impala, and activated his overhead lights at a stop sign.        (Id. at 22-23.)

The Impala drove off at a high rate of speed, and the officer followed for a

few blocks until the vehicle crashed into a wall. (Id. at 23.) At the scene,

Officer Stipetich found appellant unconscious. Once the vehicle was opened,

appellant was conscious and alert; paramedics were notified, and he was

transported to a hospital. (Id. at 25.) After appellant was removed from

the vehicle, the officer noticed the steering column was intact and the keys

were in the ignition.

      Richard    J.     McCrosby,   a   safety   supervisor    for   Communities

Transportation, Inc., testified that while heading to work on October 25,

2012, at approximately 4:50 a.m., he was informed that one of the

organization’s vehicles was missing from a secured lot. (Id. at 6.) He called

the police and stated a white Chevrolet Impala was missing from lot No. 4

River Road. (Id. at 6-7.)

      McCrosby testified that although lot No. 4 was equipped with

surveillance equipment on the date of the incident, it did not record the theft

of the vehicle. He also testified that the vehicles are equipped with a GPS

tracking device and a “drive cam device” which measures “any quick stop

. . . or lateral G force [motion] from side to side.”         (Id. at 7, 11-12.)



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McCrosby viewed a number of videos taken from a camera located inside the

vehicle, which pictured the driver. (Id. at 8.) He then identified appellant

as the driver and stated that appellant was not an employee of the

company, and McCrosby did not know appellant. (Id. at 9.) The video was

played for the trial court; the video consisted of various clips taken from a

camera located inside the vehicle, which activated when the vehicle moved

in certain directions.

      McCrosby then described the condition of the vehicle when it was

recovered by the police; he stated it was “totaled.”        (Id. at 12.)      On

cross-examination, McCrosby noted the ignition wiring underneath the

steering column had not been pulled out or spliced, stated the driver’s side

window was intact, and there was no sign of manipulation of the door locks.

(Id. at 17.) He testified the keys were likely in the vehicle. (Id. at 19.)

      Thereafter, the trial court found appellant guilty of all counts.       The

court then sentenced appellant to two to four years of incarceration on each

of the three counts to run concurrently; he was also sentenced to an

additional seven years of probation on each of the three counts to run

consecutively to the incarceration and to each other. (Id. at 37.) Appellant

filed a timely post-sentence motion, which was denied by operation of law

pursuant to Pa.R.Crim.P. 720(B)(3)(b). A timely notice of appeal was filed,

and appellant complied with the trial court’s order to file a concise statement




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of errors complained of on appeal; the trial court has filed a Rule 1925(a)

opinion.

      The following issues have been presented for our review:

            I.      DID THE TRIAL COURT ERR WHEN IT IMPOSED
                    A SENTENCE THAT EXCEEDED THE STATUTORY
                    MAXIMUM AT EACH COUNT AND FAILED TO
                    MERGE THE LESSER INCLUDED OFFENSE FOR
                    PURPOSES OF SENTENCING?

            II.     DID THE TRIAL COURT ERR WHEN IT
                    RELIEVED THE COMMONWEALTH OF ITS
                    NEVER-SHIFTING   BURDEN    OF   PROVING
                    GUILT, AND REQUIRED MR. EVANS TO PROVE
                    HIS INNOCENCE, WHEN, DURING DEFENSE
                    COUNSEL’S    CLOSING     ARGUMENT,    IT
                    IMPLORED   COUNSEL     TO  PROVIDE   AN
                    EXPLANATION FOR WHY MR. EVANS WAS
                    DRIVING THE VEHICLE IN QUESTION?

            III.    WAS     THE   CIRCUMSTANTIAL   EVIDENCE
                    INSUFFICIENT    TO  PROVE,   BEYOND   A
                    REASONABLE DOUBT, THAT MR. EVANS STOLE
                    THE VEHICLE, KNEW IT WAS STOLEN, OR
                    BELIEVED IT WAS PROBABLY STOLEN, WHERE,
                    AMONG OTHER THINGS, THE VEHICLE HAD NO
                    PHYSICAL MANIFESTATIONS OF THEFT WHEN
                    IN MR. EVANS’ POSSESSION?

Appellant’s brief at 6.

      Appellant first argues that his sentence is illegal and we must remand

for resentencing.     Appellant claims that the trial court was limited to

imposing a sentence not to exceed seven years’ on each count. Appellant

also contends that theft and receiving stolen property convictions merge for

the purposes of sentencing.




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      This issue was not included in appellant’s Rule 1925(b) statement and

was not raised in the trial court. However, challenges to an illegal sentence

cannot be waived.      Commonwealth v. Mears, 972 A.2d 1210, 1211

(Pa.Super. 2009).

            The scope and standard of review applied to
            determine the legality of a sentence are well
            established. If no statutory authorization exists for a
            particular sentence, that sentence is illegal and
            subject to correction. An illegal sentence must be
            vacated. In evaluating a trial court’s application of a
            statute, our standard of review is plenary and is
            limited to determining whether the trial court
            committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001-1002 (Pa.Super. 2006)

(citations omitted). A challenge to the legality of a sentence:

            is essentially a claim that the trial court did not have
            jurisdiction to impose the sentence that it handed
            down . . . . A trial court ordinarily has jurisdiction to
            impose any sentence which is within the range of
            punishments which the legislature has authorized for
            the defendant’s crimes.

Commonwealth v. Cappellini, 690 A.2d 1220, 1226 (Pa.Super. 1997),

quoting Commonwealth v. Catanch, 581 A.2d 226, 228 (Pa.Super. 1990).

      The Commonwealth concedes that appellant’s arguments are correct

and we concur. The statutory maximum penalty for a third degree felony is

seven years’ incarceration.     18 Pa.C.S.A. § 1103(3).       Thus, appellant’s

sentence on each count that involved both incarceration and probation is

illegal as it exceeded seven years.




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      Appellant is also correct, and the Commonwealth concurs, that the

crimes of theft and receiving stolen property should have merged.           The

crimes arose from the same incident and involved the same stolen item.

Where there is but one single act, offenses do not merge unless one offense

is a lesser-included offense of the other.   This court has previously stated

that theft by receiving stolen property is a lesser-included offense of theft by

unlawful taking.   See Commonwealth v. Rippy, 732 A.2d 1216, 1224

(Pa.Super. 1999) (overruled on other grounds). Therefore, we remand for

re-sentencing.

      In his second issue, appellant alleges the trial court relieved the

Commonwealth of its burden of proof.         Appellant argues the trial court

“demanded on numerous occasions” that defense counsel provide a reason

why appellant was in the vehicle. (Appellant’s brief at 18-19.) We cannot

agree.

      “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). “When an event prejudicial

to a defendant occurs at trial, he may either object, requesting curative

instructions, or move for a mistrial.” Commonwealth v. Boring, 684 A.2d

561, 568 (Pa.Super. 1996), appeal denied, 689 A.2d 230 (Pa. 1997). An

allegedly prejudicial event at a bench trial requires a prompt objection from

defense or a request for a mistrial to preserve the issue for appellate review.

Commonwealth v. Rhone, 619 A.2d 1080 (Pa.Super. 1993), appeal



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denied, 627 A.2d 731 (Pa. 1993). “When a case is tried to the court rather

than a jury, we will presume the court applied proper legal standards.”

Commonwealth v. Hunter, 554 A.2d 550, 558 (Pa.Super. 1989), citing

Commonwealth v. Donofrio, 372 A.2d 859, 860 (Pa.Super. 1977)

(stating, in non-jury trial, court “is imbued with the knowledge of the law

that he would have given in a formal charge in a jury case. . .”).

      Appellant directs our attention to the following exchange during closing

argument:

            THE COURT:      Do you want to make any closing
            comments?

            MR. NESS: I would, your Honor.

            THE COURT:      I am curious; I want to hear your
            argument.

            MR. NESS: Your Honor, I am not going to insult the
            Court and argue that Mr. Evans was not the
            individual that was ultimately recovered inside this
            vehicle. That would defy logic; obviously he was.

            THE COURT: Right.

            MR. NESS: The question today is whether or not --
            primarily let’s start with did he steal the white
            Impala that morning?

            THE COURT: Let me tell you as the statute reads.
            The actor unlawfully took or exercised unlawful
            control over an automobile.

            You don’t have just take it, but if you exercise
            unlawful control over an automobile, 2007 Chevy
            Impala with Community Transportation Inc., written
            on it, with the intent to deprive the owner thereof,
            then you are guilty of theft.


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          It doesn’t mean you have to take it. If you exercise
          unlawful control over it.

          Now, let me tell you the second charge.        It is
          receiving stolen property.       Actor intentionally
          received, retained or disposed of a vehicle, 2007
          Chevrolet, belonging to Community Transit, knowing
          that it had been stolen or believed it had probably
          been stolen.

          Fleeing or attempting to elude police officers: The
          actor drove a motor vehicle[,] willfully failed or
          refused to bring the vehicle to a stop, or otherwise
          fled or attempted to elude pursuing police officers,
          having been given visual or audible signals to bring
          the vehicle to a stop.

          Now, you tell me what your argument is.

          MR. NESS: Even under unlawful control, theft by
          unlawful taking, your Honor, the Commonwealth has
          to prove my client did exercise unlawful control;
          there has been no testimony --

          THE COURT: What is he doing in a Community
          Transportation vehicle at 4:30 in the morning,
          driving at 50 miles an hour, fleeing the police officers
          with a light on?

          MR. NESS: They still haven’t demonstrated that he
          knew it was stolen, or otherwise potentially stolen.
          It is to produce that he would have known that.

          THE COURT: Why he would be in a vehicle that
          belongs to Community Transportation, a white 2007
          Chevy with Community Transportation written on
          both sides? What’s the reason for him being in it?

          MR. NESS: I don’t necessarily believe my client has
          to offer an explanation, your Honor.

          THE COURT: Okay.



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          MR. NESS: But I would pose to you, that there is --
          all the other signs that an individual would usually
          have known that a car is stolen are absent in this
          case. The steering column is intact, the wiring is
          intact; the locking mechanism is intact.

          THE COURT: Why is he in the car?

          MR. NESS: I could draw any number of possibilities,
          your Honor.

          THE COURT: Give me one logical explanation why
          he is driving the Community Transportation vehicle,
          at four in the morning?

          MR. NESS:      Why is he driving in the morning?
          Perhaps he needed to run to the convenience store.
          How did he get the vehicle? Perhaps someone else
          stole the vehicle and allowed him to use it. I could
          throw out all kinds of different possibilities.

          THE COURT: Give me one that makes sense.

          MR. NESS: Someone -- another individual stole the
          car. We don’t know what time the -- time the crime
          occurred. In an effort to get rid of the vehicle, they
          passed it to Mr. Evans. Mr. Evans needed some type
          of other items, goes to the convenience store. And
          as a result the police officers -- Also, with regards to
          the fleeing and eluding, your Honor, they have to
          have a felony elevation of the statute. They have to
          prove that he was otherwise speeding. He was going
          fast. And there is no testimony offered regarding the
          exact speed or whether or not --

          THE COURT: Well, what if he crashes into a wall?
          Does that mean he is going faster --

          MR. NESS:       Perhaps he it [sic] was driving
          recklessly, but not necessarily to the grading of a
          felony.

          THE COURT:       Very well.     Any other from the
          defense?


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              Mr. McKendry, what are your thoughts? You don’t
              need to make any argument, I am finding him guilty
              of all counts.

Notes of testimony, 6/4/13 at 31-35.

         As the trial court notes, the record reflects counsel did not promptly

object to the court’s “pointed inquiries about his client’s unexplained

possession of the car” and argue such was an improper shift of the burden of

proof to appellant. (Trial court opinion, 3/5/14 at 9.) Nor did counsel move

for a mistrial. Consequently, we could find appellant failed to preserve this

issue for appellate review.

         Nevertheless, we disagree with appellant’s assertion that the trial

court’s comments evidenced that the court had shifted the burden of proof

following this non-jury trial.      Sitting as fact-finder, the trial court is

presumed to have applied the proper legal standard regarding the burden of

proof.      See Hunter, supra; Donofrio, supra.          The court gave the

testimony the weight it deemed appropriate and gauged the credibility of the

Commonwealth’s witnesses.        See also Commonwealth v. McCall, 911

A.2d 992 (Pa.Super. 2006) (holding trial court did not shift burden of proof

to defendant by commenting, just prior to reaching verdict in a bench trial,

that no evidence detracted from conclusion that defendant was a member of

conspiracy; the court’s reflection on production of evidence was fair

commentary, and presented no grounds for reversal).           Even if properly

preserved, we would decline to disturb the court’s verdict on this ground.


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      The final issue presented challenges the sufficiency of the evidence.

(Appellant’s brief at 26.)         We must first determine if this claim was

preserved        for     review   in   appellant’s      Rule     1925(b)    statement.

Rule 1925(b)(4) provides, in pertinent part, as follows:

             The Statement shall concisely identify each ruling or
             error that the appellant intends to challenge with
             sufficient detail to identify all pertinent issues for the
             judge.

Pa.R.A.P. 1925(b)(4)(ii).         Pursuant to Rule 1925(b)(4)(vii), “Issues not

included    in    the     Statement    and/or     not   raised   in   accordance   with

[Rule 1925(b)(4) ] are waived.” As our supreme court recently reiterated:

             Our jurisprudence is clear and well-settled, and
             firmly establishes that: Rule 1925(b) sets out a
             simple bright-line rule, which obligates an appellant
             to file and serve a Rule 1925(b) statement, when so
             ordered; any issues not raised in a Rule 1925(b)
             statement will be deemed waived; the courts lack
             the authority to countenance deviations from the
             Rule’s terms; the Rule’s provisions are not subject to
             ad hoc exceptions or selective enforcement;
             appellants and their counsel are responsible for
             complying with the Rule’s requirements.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

      In his Rule 1925(b) statement, appellant stated the following

pertaining to the instant issue:

             a.         The verdict of guilty on counts 1 and 2 was
                        rendered contrary to the weight of the
                        evidence presented at trial, as the “evidence
                        presented” was so contrary to the verdict
                        rendered that it shocks one’s sense of justice
                        and the award of a new trial is imperative so
                        that right may be given another opportunity to


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                  prevail.” Commonwealth v. Smith, 861 A.2d
                  892, 295 (Pa.Super. 2004). Count 1 required
                  the Commonwealth to prove [appellant] either
                  stole the vehicle or exercised unlawful control
                  over    it,  and    Count    2  required   the
                  Commonwealth to prove he knew or should
                  have known the vehicle was stolen.         The
                  Commonwealth presented no evidence of
                  when, how, or even if the vehicle in question
                  was illegally taken from the premises. The
                  Commonwealth presented no testimony by any
                  witness with any firsthand knowledge of the
                  alleged theft of the vehicle. Additionally, it
                  “shocks one’s sense of justice that the Court
                  convicted [appellant] based on the theory that
                  possession of the vehicle alone equated to the
                  unproved assumption that he stole, or
                  otherwise knew it was stolen.

Docket #16.

      We agree with the trial court that appellant’s “assertions sound like

sufficiency challenges dressed in weight clothes. The mere genuflection to

the correct legal standard does not transpose what is a sufficiency argument

into a weight challenge.” (Trial court opinion, 3/5/14 at 3-4.) Appellant has

waived his claim that the evidence was insufficient to support his convictions

of theft and receiving stolen property as he did not present a sufficiency

claim in his Rule 1925(b) statement; rather, his challenges to these

convictions were styled as a weight of the evidence claim.

      Sufficiency of the evidence claims are distinct from weight of the

evidence claims, as there are different standards of review as well as

separate remedies involved. Commonwealth v. Whiteman, 485 A.2d 459

(Pa.Super. 1984). Indeed, in making a claim that the verdict was against


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the weight of the evidence, it is conceded that there was sufficient evidence

to sustain the verdict.   Commonwealth v. Murray, 597 A.2d 111, 113

(Pa.Super. 1991), appeal denied, 605 A.2d 333 (Pa. 1992), citing

Commonwealth v. Taylor, 471 A.2d 1228 (Pa.Super. 1984).              Thus, the

claims presented in appellant’s brief are technically waived.

      However, the trial court addressed appellant’s argument and found the

sufficiency claim to be meritless.    Thus, we have carefully reviewed the

briefs, the relevant law, the record, and the well-reasoned opinion authored

by the Honorable Joseph K. Williams, III.       We find that Judge Williams’

opinion correctly disposes of the issues presented, and accordingly, we

affirm the conviction based on the trial court’s opinion. (Trial court opinion,

3/5/14 at 4.)

      Conviction affirmed.   Case remanded for resentencing.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/21/2015




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