J-S88029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DIETRICK RYAN HOSIER                       :
                                               :
                      Appellant                :   No. 1091 EDA 2016

           Appeal from the Judgment of Sentence February 18, 2016
               In the Court of Common Pleas of Carbon County
             Criminal Division at No(s): CP-13-CR-0000404-2015


BEFORE: OLSON, J., RANSOM, J., STRASSBURGER, J.*

MEMORANDUM BY RANSOM, J.:                                FILED MARCH 24, 2017

        Appellant Dietrick Ryan Hosier appeals from the February 18, 2016

judgment of sentence of twenty-one months to four years of imprisonment

with Recidivism Risk Reduction Incentive (RRRI) after a minimum of fifteen

months and twenty-two days and restitution of $500.00 to the victim,

imposed following a jury trial for theft by unlawful taking and receiving

stolen property.1

        The relevant facts and procedural history are as follows. On October

17, 2014, at 2:30 p.m., Jason Green (“Victim”) finished work at the Mallard

Market in the meat department.                 See Notes of Testimony (“N.T.”),
____________________________________________


*Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3921 (a), § 3925(a), respectively.
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9/14/2015, at 152. Victim always left his personal keys in a tray next to the

meat door room near the steps that lead up to the bathroom located in the

back of the store. See N.T., 9/14/2015, at 96-97, 152. Behind this area

was a door leading to the employee parking lot where Victim kept his red

jeep. See id. 98-99. Victim grabbed his key ring from the bin and put them

in his pocket. See id. at 151. Victim keeps the key fob to his red jeep on

the key ring; the key fob unlocks the doors to his red jeep automatically

from his pocket when he approaches the car. See id.

       Victim walked out to his red jeep, but the car did not automatically

unlock. See id. at 152. Victim checked his pockets and discovered that the

key fob was missing from his keyring. See id. at 152. After having a friend

get his extra keys from home, Victim opened his car and immediately

checked for his blue Colt .380 caliber pistol and wallet, but they were gone.

See id. at 153-154.    Victim cancelled his credit cards before going to the

Lehighton borough Police Station to file a report with Officer Broyles that his

pistol, key fob, and wallet had been stolen. See id. at 93-94, 159.

       Officer Broyles went to the Mallard Market to collect evidence. Id. at

94.    The Officer interviewed the manager, Judy Miller, who remembered

seeing Appellant at the store on the day of the incident.     See id. at 100.

The manager knew Appellant for over five years because he dated another

employee’s granddaughter and came to the store frequently.         See id. at

127.    The manager was charged with monitoring employees’ restroom


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breaks, and she noted that they let customers use the “employees only

restroom,” which she could observe from her station at the meat

department. See id. at 130. When the manager saw Appellant enter the

store through the swinging doors and head toward the bathroom in the back

of the store, she made Victim and Stephen Nace aware. See id. at 128.

     The manager went to the police station to provide a statement.          At

that time, she gave video footage of the alleged theft to Officer Broyles and

identified Appellant on the video. See id. at 102. Although there were no

cameras in the employees-only restroom area, the video depicted Appellant

exiting Mallard Market and then walking along the north side of the store,

around to the rear of the store toward the employee parking lot. See id. at

103. Another shot showed the employee parking lot where one could see

movement inside of Victim’s red jeep followed by the suspect exiting from

the driver’s side. See id. According to the manager, the footage was taken

minutes after Appellant left the store. See id. at 105-107.

     At trial, four witnesses identified Appellant as the individual depicted in

the video footage: Officer Broyles, Patrolman Defuso, Ms. Miller (the

manager), and Stephen Nace (employee). Patrolman Defuso testified that

he had known Appellant for five to ten years and had become familiar with

Appellant’s mannerisms, characteristics, and gait.     See id. at 123.      The

Patrolman also testified that he definitely recognized those features on the

suspect in the video. See id. He also recognized the white stripe on the


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sneakers worn by the suspect in the video as the same ones Appellant was

wearing the next day.         See id. at 123-125.     Among the employees who

recalled Appellant going into the area where Victim stored his keys, Mr. Nace

testified that he saw Appellant go into the bathroom area and stay in there

for a long time. See id. at 94-96, 100, 145-147.

        The jury found Appellant guilty of theft by unlawful taking and

receiving stolen property.2 Appellant challenged the sufficiency and weight

of the evidence to support these convictions through an oral motion for

acquittal and a post-sentence motion for a new trial filed on September 25,

2015. See Trial Ct. Op., 6/8/2016, at 1. The court denied these motions on

January 25, 2016. Sentencing was continued while Appellant was in rehab.

On February 18, 2016, Appellant was sentenced as described above.

        Appellant timely appealed his judgment of sentence on March 17,

2016, and filed a court-ordered 1925(b) statement on April 8, 2016.       The

trial court issued a responsive opinion.

        Appellant raises the following issues:

        A. Whether the Commonwealth’s evidence was insufficient to
        sustain the jury’s conviction of the [Appellant].

        B. Whether the [Appellant’s] conviction was against the weight
        of the evidence.

Appellant’s Br. at 6.

____________________________________________


2
    18 Pa.C.S. § 3921 (a), § 3925(a), respectively.



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       Appellant purports to challenge the sufficiency of the evidence

presented at trial. “In order to develop a claim challenging the sufficiency of

the evidence properly, an appellant must specifically discuss the elements of

the crime and identify those which he alleges the Commonwealth failed to

prove.”     Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super.

2014) (citing Commonwealth v. McDonald, 17 A.3d 1282, 1286 (Pa.

Super. 2011)).

       Appellant offers no analysis of any particular elements that comprise

the charges against him.3 See Appellant’s Br. at 13-16. For example, the

crime of theft by unlawful taking of moveable property is defined as follows:

“A person is guilty of theft if he [1] unlawfully takes, or exercises unlawful

control over, [2] movable property of another [3] with intent to deprive him

thereof.”    18 Pa.C.S. § 3921.          Receiving stolen property is defined as

follows: “A person is guilty of theft if he [1] intentionally [2] receives,

retains, or disposes of movable property of another [3] 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.” 18 Pa.C.S. § 3925. Accordingly, Appellant has waived this claim for

lack of development. Samuel, 102 A.3d at 1005; Pa.R.A.P. 2119(a).

       Next, Appellant contends that the verdict is against the weight of the
____________________________________________


3
  Appellant only cites Pa.R.Crim.Pro. 606 providing for challenges to the
sufficiency of the evidence. See Appellant’s Br. at 13-16.



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evidence. See Appellant’s Br. at 16-17 (citing Pa.R.Crim.P. 607). Appellant

suggests, for example, that (1) the witnesses’ testimony was contradictory,

(2) Victim never saw Appellant enter the back room, (3) someone else could

have taken the pistol while Victim was working that day, (4) such as another

employee, and (5) one of the witnesses was not one hundred percent certain

that Appellant was the one who stole Victim’s pistol. See id. at 17-19.

     Our standard of review is as follows:

           A motion for a new trial based on a claim that the verdict
     is against the weight of the evidence is addressed to the
     discretion of the trial court…. It has often been stated that a
     new trial should be awarded when the jury’s verdict is so
     contrary to the evidence as to shock one’s sense of justice and
     the award of a new trial is imperative so that right may be given
     another opportunity to prevail.

           An appellate court's standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court. Appellate review of a weight
     claim is a review of the exercise of discretion, not of the
     underlying question of whether the verdict is against the weight
     of the evidence. 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 evidence and
     that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (thereafter

defining   an   abuse   of   discretion    as   a   judgment   that   is   manifestly

unreasonable) (internal formatting and punctuation modified; citations

omitted); see also Commonwealth v. Champney, 832 A.2d 403, 408 (Pa.

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2003) (noting that “appellate review is limited to whether the court palpably

abused its discretion”).

      Appellant’s claim is devoid of merit.   Sitting as fact finder, the jury

deemed the Commonwealth’s witnesses credible and the video evidence

persuasive.   We may not disturb these findings.     Clay, 64 A.3d at 1055

(reversing this Court where we “stepped into the shoes of the trial judge and

revisited the underlying question of whether the verdict was against the

weight of the evidence, an analysis that is not appropriate under the

appellate standard of review”).

      In reviewing Appellant’s challenge to the weight of the evidence, the

trial court did not find the jury’s verdict shocking. See Trial Ct. Op. at 9.

Rather, the court explained that the individual pieces of evidence were

“pieces of a puzzle” that, when put together, supported the jury’s verdict.

See id. at 12-13. We discern no palpable abuse of discretion in this regard.

Champney, 832 A.2d at 408.

      Judgment of sentence affirmed.

      Judge Strassburger Joins. Judge Olson Concurs in result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2017

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