J-A20045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
              v.                           :
                                           :
JESSE JAMES TINSLEY,                       :
                                           :
                   Appellant               :          No. 1776 WDA 2015

              Appeal from the Judgment of Sentence May 18, 2015
                in the Court of Common Pleas of Greene County,
               Criminal Division, No(s): CP-30-CR-0000186-2014

BEFORE: BOWES, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED AUGUST 31, 2016

        Jesse James Tinsley (“Tinsley”) appeals from the judgment of sentence

imposed following his conviction of theft by unlawful taking, criminal

conspiracy to commit theft, and tampering with or fabricating physical

evidence.1 We reverse and discharge Tinsley.

        On April 6, 2014, Brian Yeager (“Yeager”) saw a red truck with square

headlights, possibly a 1982-era GMC, driving away from Levine’s Iron &

Metal around 11:00 p.m. See N.T., 3/3/15, at 33-34. Yeager testified that

the truck did not have its lights on, left at a high rate of speed, and

appeared to have scrap metal in the bed of the truck. Id. at 33-34, 39, 41-

42, 45. After Yeager saw the truck head west, he returned inside and called

the police.    Id. at 34.   Thereafter, Yeager called Larry Levine (“Levine”),




1
    18 Pa.C.S.A. §§ 3921(a); 903(c); 4910(1).
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owner of Levine’s Iron & Metal, to tell Levine what he witnessed. Id. at 34-

35, 96-97.

     James Babirad (“Trooper Babirad”), a Pennsylvania State Trooper,

reported to Yeager’s call. Id. at 52-53. Trooper Babirad drove toward West

Waynesburg to search for the reported truck, but did not locate the vehicle

in that area.   Id. at 53.   As Trooper Babirad was returning to the police

station, he noticed a truck that matched Yeager’s description parked in front

of a house. Id. at 54. Trooper Babirad noted some scrap metal in the bed

of the truck before knocking on the door of the residence. Id. Rachel Eddy

(“Eddy”), Tinsley’s co-defendant,2 answered the door and told Trooper

Babirad she was the only person to drive the truck that day, and that she

returned home around 10:00 p.m. Id. However, Trooper Babirad had not

observed the truck parked at the house on his way into West Waynesburg

approximately 15 minutes earlier.    Id. at 55.   After seeing several other

people in the home, Trooper Babirad asked if Tinsley was home. Id. at 55,

84-85.   Tinsley came to the door and confirmed that Eddy was the only

person who drove the truck that day. Id. at 55-56. Trooper Babirad asked

Tinsley and Eddy about the scrap metal in the truck and advised them of

why he was asking about the scrap metal. Id. at 58.

     Thereafter, Trooper Babirad told Tinsley and Eddy not to do anything

with the scrap metal, and he returned to the police barracks to get a camera

2
 Tinsley and Eddy live together with Eddy’s family.    See N.T., 3/3/15, at
162.


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in order to photograph the metal in the bed of the truck. Id. at 60. The

police contacted Levine and asked him to come to Eddy and Tinsley’s

residence in order to view the scrap metal in person. Id. at 60, 97, 104-05.

Trooper Babirad returned to the residence around 15 minutes later, but

noticed that some of the scrap metal had been moved out of the bed of the

truck, and a silver grate that had previously been in the truck was missing.

Id. at 61, 87.    After Tinsley showed Trooper Babirad where the missing

silver grate was located in the basement, Trooper Babirad photographed all

of the scrap metal, as well as the truck. Id. at 61-62, 77-78. Subsequently,

Levine arrived at the residence to inspect the scrap metal. Id. at 69, 97-98.

Although he does not keep an inventory of his scrap yard, Levine reported

that the material in question appeared to be similar to scrap metal that was

dropped off at his facility two days prior.    Id. at 106, 112-13.    Trooper

Babirad told Tinsley and Eddy not to do anything with the scrap metal until it

could be investigated further, and left for the night. Id. at 70.

      After beginning his usual 4:00 p.m. shift the following day, Trooper

Babirad noticed Tinsley driving the truck, with Eddy as a passenger, around

4:30 p.m.   Id. at 70-71, 94.    Trooper Babirad observed that none of the

scrap metal was in the bed of the truck, so he turned around and met

Tinsley and Eddy at their residence to speak with them. Id. at 71. Eddy

notified Trooper Babirad that she took the scrap metal to a different scrap

yard, Jack’s Recycling, early that morning to get money.        Id. at 72, 94.



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Trooper Babirad called Jack’s Recycling and confirmed Eddy’s statement.

Id. at 123. Trooper Babirad then met Levine at Levine’s Iron & Metal, and

Trooper Babirad took photos of a pile of scrap metal with pieces similar to

those found at the Tinsley and Eddy residence.       Id. at 73-76.    Trooper

Babirad also took photos of tire impressions in the mud located at Levine’s

Iron & Metal. Id. at 77. On April 9, 2014, Trooper Babirad went to Jack’s

Recycling and received a receipt showing that Eddy received $163.20 for the

scrap metal she had dropped off two days prior. Id. at 131.

      Tinsley was charged with theft, criminal conspiracy, and tampering

with physical evidence. On March 3, 2015, a jury found Tinsley guilty on all

three charges. The trial court sentenced Tinsley to an aggregate sentence of

3 to 23 months in jail, and imposed $246 in restitution. Tinsley filed a Post-

Sentence Motion to Amend Sentence and a Motion for a New Trial. The trial

court reduced the restitution amount to $163.20. However, the trial court

denied the Motion for a New Trial and all other remaining claims in Tinsley’s

Post-Sentence Motion. Subsequently, Tinsley filed a timely Notice of Appeal

and a court-ordered Pa.R.A.P. 1925(b) Concise Statement.

      On appeal, Tinsley raises the following issue for our review: “Did the

trial court err in denying [Tinsley’s] [P]ost-[S]entence [M]otions where the

Commonwealth failed to present sufficient evidence of [t]heft by [u]nlawful

[t]aking, [c]riminal [c]onspiracy, and [t]ampering with or [f]abricating

[p]hysical [e]vidence?” Brief for Appellant at 7.



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      Our standard of review for a sufficiency of the evidence claim is as

follows:

      When presented with a claim that the evidence was insufficient
      to sustain a conviction, an appellate court, viewing all of the
      evidence and reasonable inferences therefrom in the light most
      favorable to the Commonwealth as the verdict winner, must
      determine whether the evidence was sufficient to enable the
      fact-finder to find that all elements of the offense were
      established beyond a reasonable doubt.

Commonwealth v. Woody, 939 A.2d 359, 361 (Pa. Super. 2007) (citation

omitted). “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.”      Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.

Super. 2014) (citation omitted).

             Although the Commonwealth does not have to establish
      guilt to a mathematical certainty, and may in a proper case rely
      upon wholly circumstantial evidence, a conviction must be based
      upon more than mere suspicion or conjecture. Evidence of
      something more than mere presence at or near the scene of the
      crime is required to justify a conclusion that someone committed
      or participated in a crime. When evidence is as consistent with
      innocence as it is with guilt, a conviction may not stand.

Commonwealth v. Key, 492 A.2d 48, 49 (Pa. Super. 1985) (citations

omitted).

      Tinsley contends that the evidence was insufficient to support his

convictions. See Brief for Appellant at 15-22. First, Tinsley argues that the

evidence was insufficient to support his theft by unlawful taking conviction,

as the Commonwealth failed to prove that he exercised any control over the


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scrap metal.   Id. at 16-19.     Tinsley asserts that this is a case of mere

presence, based on the lack of any evidence that he was in the truck on the

night of the possible theft, that he touched the scrap metal, or that he sold

the scrap metal. Id. at 16-18.

      The Crimes Code defines theft by unlawful taking as follows:          “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).

            To establish that appellant … possessed the stolen
      property[,] it [is] sufficient to show that appellant had joint or
      constructive possession of it.        Where the Commonwealth
      proceeds under a theory of joint or constructive possession,
      however, it must establish that the accused exercised conscious
      control or dominion over the stolen property.                 The
      Commonwealth could also establish guilt by showing that
      appellant was an accomplice … in the disposition of the stolen
      property.

Commonwealth v. Brady, 560 A.2d 802, 806 (Pa. Super. 1989) (citations

omitted).

      Viewing the evidence in a light most favorable to the Commonwealth,

we conclude that the evidence is insufficient to demonstrate Tinsley

exercised unlawful control over the scrap metal.          The uncontroverted

evidence suggests that Eddy was the only person who drove the truck on

April 6, 2014. See N.T., 3/3/15, at 54, 56. There was no evidence placing

Tinsley at the scrapyard or handling the scrap metal.            Further, the

Commonwealth did not demonstrate that the scrap metal stolen was the



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same as the scrap metal found in the truck.         Finally, there was also no

evidence that Tinsley was an accomplice.            Thus, the evidence was

insufficient to support a conviction of theft by unlawful taking.

      Tinsley next claims that the evidence did not prove that he had

conspired to take another’s property.      See Brief for Appellant at 19-20.

Tinsley argues that the Commonwealth only presented evidence of his

association with Eddy. Id. at 20.

      The Crimes Code defines criminal conspiracy as follows:

      (a)   Definition of conspiracy. – A person is guilty of
            conspiracy with another person or persons to commit a
            crime if with the intent of promoting or facilitating its
            commission he:

            (1)   agrees with such other person or persons that they
                  or one or more of them will engage in conduct which
                  constitutes such crime or an attempt or solicitation
                  to commit such crime; or

18 Pa.C.S.A. § 903(a)(1).

             The essence of a criminal conspiracy is the common
      understanding that a particular criminal objective is to be
      accomplished. Mere association with the perpetrators, mere
      presence at the scene, or mere knowledge of the crime is
      insufficient. Rather, the Commonwealth must prove that the
      defendant shared the criminal intent, i.e., that the [a]ppellant
      was an active participant in the criminal enterprise and that he
      had knowledge of the conspiratorial agreement.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002)

(citations and internal quotations omitted).

      Viewing the evidence in a light most favorable to the Commonwealth,

the evidence is insufficient to support the conspiracy to commit theft


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conviction.    There is no evidence of any agreement between Tinsley and

Eddy.    The fact that Tinsley and Eddy live together, and were seen in the

truck together the following day, merely evidences their association.        See

id.   Thus, the evidence is insufficient to support a conviction of criminal

conspiracy to commit theft. See Commonwealth v. Swerdlow, 636 A.2d

1173, 1177-78 (Pa. Super. 1994) (concluding that evidence that appellant’s

alleged co-conspirator used a crawlspace in appellant’s home to rob

neighbors was insufficient to support conspiracy conviction, as there was no

evidence that appellant agreed to participate or knew about the burglaries).

        Finally, Tinsley asserts that the evidence was insufficient to prove that

he tampered with physical evidence. See Brief for Appellant at 20-21.

        A person is guilty of tampering with physical evidence “if, believing

that an official proceeding or investigation is pending or about to be

instituted, he … alters, destroys, conceals or removes any record, document

or things with intent to impair its verity or availability in such proceeding or

investigation.” 18 Pa.C.S.A. § 4910(1).

        Here, Trooper Babirad testified that he “just said sit tight” when he left

to retrieve the camera. N.T., 3/3/15, at 60. Subsequently, Trooper Babirad

testified that he “advised [Tinsley and Eddy] not to do anything with the

scrap until [he had conducted] further investigation” before leaving the

house at the end of the night.        Id. at 70.   Although Trooper Babirad is




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uncertain of his “exact words” at certain points, he knows he “told [Tinsley

and Eddy] there was an investigation.” Id. at 86.

      Assuming Tinsley knew the items were under investigation, the

Commonwealth failed to prove that Tinsley participated in the alteration,

destruction, concealment or removal of the scrap metal in attempt to impair

its availability. See 18 Pa.C.S.A. § 4910. In point of fact, Eddy told Trooper

Babirad that she took the metal to Jack’s Recycling on the morning of April

7, 2014.    N.T., 3/3/15, at 94, 122.     There is no evidence that Tinsley

assisted or knew about Eddy’s actions. As such, the evidence of record is

insufficient to support a conviction of tampering with physical evidence.

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the evidence is insufficient to

support Tinsley’s convictions.   Thus, the judgment of sentence must be

reversed, and Tinsley discharged.

      Judgment of sentence reversed. Tinsley discharged.       Superior Court

jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2016




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