J-S33032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROBERT TORRES

                            Appellant                No. 2953 EDA 2013


       Appeal from the Judgment of Sentence dated October 18, 2013
           In the Court of Common Pleas of Northampton County
             Criminal Division at No: CP-48-CR-0001968-2013


BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                             FILED JULY 31, 2014

       Appellant Robert Torres appeals from a judgment of sentence of the

Court of Common Pleas of Northampton County (trial court), which,

following a jury trial, convicted him of theft by unlawful taking and receiving

stolen property under Sections 3921(a) and 3925(b) of the Crimes Code

(Code).1 For the reasons set forth below, we affirm.

       The facts underlying this appeal appear to be undisputed. On May 5,

2013, Officer Albert Strydesky of the Bethlehem Police Department charged

Appellant with theft by unlawful taking and receiving stolen property. In his




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1
  Act of December 6, 1972, P.L. 1482, 18 Pa.C.S. §§ 3921(a) and 3925(a),
respectively.
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affidavit of probable cause accompanying the complaint, Officer Strydesky

alleged:
      4. I spoke with Cigars International Facilities Manager, Michael
      Schenk, who stated that he hid inside the warehouse with a
      vantage point observing a pallet of Bugatti B-1 Torch Lighters.
      The Bugatti Lighters were on the pallet in individual cardboard
      shipping boxes of 120 lighters. He observed an employee,
      [Appellant], enter the aisle the [sic] with the Bugatti Lighters.
      At the pallet, Michael [Schenk] observed [Appellant] remove a
      cardboard shipping box of 120 lighters from the pallet and carry
      it away from the pallet. [Appellant] walked to the end of the
      pallet rack row, then went to an adjacent row of lockers.
      [Appellant] placed the cardboard box into a locker that was
      empty and not assigned to any employees. This action of taking
      the box of lighters served no legitimate purpose.
      5. The lighters are owned by Cigars International and are valued
      at $100.00 each. The total for a full box of 120 lighters is
      $12,000.00.

Affidavit of Probable Cause, 5/5/13.    Ultimately, the case proceeded to a

jury trial, following which Appellant was convicted of theft by unlawful taking



imprisonment.    Following his filing of a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal, the trial court issued an opinion in

accordance with Pa.R.A.P. 1925(a).     In its Rule 1925(a) opinion, the trial

court determined that there was sufficient evidence to convict Appellant of

theft by unlawful taking and receiving stolen property. Specifically, the trial

                                                                          have

determined that all of the elements of theft by unlawful taking and receiving



Opinion, 12/20/13, at 3.




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       On appeal, Appellant essentially argues that the Commonwealth did

not present sufficient evidence to support his conviction for theft by unlawful

taking and receiving stolen property.

       Our    standard    and    scope    of review   for   a sufficiency   claim is

well-settled:2
       We must determine whether the evidence admitted at trial, and
       all reasonable inferences drawn therefrom, when viewed in a
       light most favorable to the Commonwealth as verdict winner,
       support the conviction beyond a reasonable doubt. Where there
       is sufficient evidence to enable the trier of fact to find every
       element of the crime has been established beyond a reasonable
       doubt, the sufficiency of the evidence claim must fail.
       The evidence established at trial need not preclude every
       possibility of innocence and the fact-finder is free to believe all,
       part, or none of the evidence presented. It is not within the
       province of this Court to re-weigh the evidence and substitute
       our judgment for that of the fact-
       burden may be met by wholly circumstantial evidence and any
                                           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. Mobley, 14 A.3d 887, 889 90 (Pa. Super. 2011).

Additionall

                                                               Commonwealth v.

Coleman, 19 A.3d 1111, 1117 (Pa. Super. 2011).

       Section 3921(a) of the Code, relating to theft by unlawful taking,




____________________________________________


2
  A challenge to the sufficiency of the evidence is a question of law, subject
to plenary review. Commonwealth v. Williams, 871 A.2d 254, 259 (Pa.
Super. 2005).



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unlawful control over, movable property of another with intent to deprive

                                        Section 3925(a) of the Code, relating



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



      Instantly, Appellant does not challenge the facts underlying his

                                                             admitted at trial to

corroborate the eye-

without proffering any legal authority, Appellant asserts:
      The investigating police officer had the opportunity to enlist the
      services of a forensic unit to obtain evidence that would, in fact,
      corroborate the only eye-witness to this crime. Those forensic
      tests could have revealed that DNA, fingerprints, or other such
      samples to prove to the jury that [Appellant] actually had
      possession of the merchandise in question. Furthermore, there
      was no audio/video evidence that would further corroborate the
      eye-witness testimony.

Id.

of the evidence and credibility determinations.     As we noted above, this

Court may not re-weigh the evidence or substitute its judgment for that of

the trial court sitting as the fact-finder. See Mobley, 14 A.3d at 889 90.



based on our review of the entire record and viewing the evidence in the

light favorable to the Commonwealth, thereby giving it the benefit of the




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conclusion that the Commonwealth presented sufficient evidence to sustain



property. The trial court specifically found:
      the evidence at trial established that [Appellant] was observed
      by a manager reporting to work early on the morning of May 5,
      2013. [Appellant] was further observed proceeding to a portion
      of the warehouse where he was not assigned, removing a box of
      specialty lighters from a pallet, and placing the box of lighters in
      an empty employee locker. Based upon the evidence presented
      at trial, the jury could have reasonably found that [Appellant]
      unlawfully took, received, possessed or exercised unlawful
      control over the movable property [box of Bugatti lighters] of his
      employer.

Trial Court Opinion, 12/20/13, at 3.       Accordingly, given the eyewitness

account, the jury could, and did, reasonably infer that Appellant violated

Sections 3921(a) and 3925(a) of the Code.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2014




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