J-A17017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANDREW THOMAS WALKER

                            Appellant                No. 3218 EDA 2014


              Appeal from the Judgment of Sentence June 9, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0015522-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 04, 2016

        Andrew Thomas Walker appeals from the judgment of sentence

imposed in the Court of Common Pleas of Philadelphia County following his

convictions for theft by unlawful taking1 and criminal conspiracy to commit

theft.2 Upon review, we affirm Walker’s judgment of sentence.

        The charges in this matter relate to the theft of equipment from the

Bartram High School Annex in Philadelphia on November 30, 2013. Officers

witnessed two men matching flash information from a burglary radio call

enter a pick-up truck, one in the driver’s seat and one in the passenger’s
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3921.
2
    18 Pa.C.S.A. § 903.
J-A17017-16



seat. An officer attempted to stop the truck, and it fled across a grass field.

After a chase, the truck crashed into a utility pole. The passenger then fled

the crash scene and was eventually located, hiding in a residence’s tool

shed.     In the bed of the pick-up truck, the officers observed tools,

equipment, copper pipes, and a sink, which were later identified by the

facility coordinator of the Bartram Annex as being similar to the items that

had been stolen from the school.

        Following a non-jury trial on June 9, 2014, the Honorable Daniel

McCaffery found Walker, along with his co-defendant Marvin Thornton, guilty

of the aforementioned charges.       Walker was sentenced to three years’

probation and ordered to pay restitution.    His post-sentence motions were

denied on October 6, 2014.

        Walker filed a timely notice of appeal and court-ordered concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On appeal, Walker raises one issue for our review:

        Was the evidence presented at trial by the Commonwealth
        insufficient to sustain Defendant’s convictions for theft by
        unlawful taking or disposition, 18 Pa.C.S.A. [§ 3921] and
        criminal conspiracy, 18 Pa.C.S.A. § 903?

Brief for Appellant, at 7.

        The main thrust of Walker’s appeal is that all of the Commonwealth’s

evidence is circumstantial, and therefore cannot sustain the convictions.

This Court reviews the sufficiency of the evidence according to the following

standard:


                                     -2-
J-A17017-16


      [The] standard of review of sufficiency claims requires that we
      evaluate the record in the light most favorable to the verdict
      winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. Evidence will be
      deemed sufficient to support the verdict when it establishes each
      material element of the crime charged and the commission
      thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt 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.                 The
      Commonwealth may sustain its burden by means of wholly
      circumstantial evidence.

Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)

(internal citations and quotation marks omitted).

      Walker contends the officers merely observed him entering the

passenger side of a pick-up truck that contained various copper piping and

porcelain sinks, and that they never observed him carrying any goods.

Therefore, he claims no evidence exists to show he had control or possession

of the materials in the truck.         Moreover, Walker asserts that the

Commonwealth failed to establish that he and Thornton formed an

agreement to take items from the Bartram Annex.

      We have reviewed the transcripts, the briefs, the relevant law, and the

record as a whole.     We find that opinion authored by Judge McCaffery

thoroughly, comprehensively and correctly disposes of the issue raised by

Walker on appeal and, for that reason, we affirm based on the trial court’s

opinion. Counsel is directed to attach a copy of that opinion in the event of

further proceedings in this matter.



                                      -3-
J-A17017-16



     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2016




                                 -4-
                                                                                                            Circulated 07/11/2016 02:47 PM




                                            IN THE COURT OF COM!vlON PLEAS
                                       FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                           TRIAL DIVlSION-CRJMINAL SECTION

                   COtVIl\·ION\VEALTH OF PENNSYLVANIA                         : PHILADELPIDA COURT
                                                                              : OF COi\.1MON PLEAS
                                                                              : CRINllNAL TRIAL DIVISION
 I                                        v.                                    CP·Sl·CR-0015522·2013

 l
 I
'i
                  ANDREW THOMAS WALKER
 i
                                                                                                    FilED
                                                                  OPINION                            MAY     6 2015
                                                                                              _ Criminal Appeals Unit
                  MCCAF:fi'ERY, J                                                            First Judicial District of Pt.
                         Andrew Thomas Walker (hereinafter "Appellant") appeals from the judgment of sentence

                  imposed by this Court on June 9, 2014. For the reasons set forth below it is suggested that the

                  judgment of sentence be affirmed.

                  PROCEDURAL HISTORY

                         On June 9, 2014, following a waiver trial. Appellant was found guilty of Theft by

                  Unlawful Taking,18 Pa.C.S § 3921, graded as a misdemeanor of the first degree, and Criminal

                  Conspiracy to comm it theft, 18 Pa.C.S § 903 .1 Post verdict, this Court imposed a sentence of

                  three years' probation on the Theft by Unlawful Taking charge. (N.T. 6/9/14, 83).2 This Court

              also ordered Appellant to pay restitution. Appellant filed post-sentence motions, which were

              denied on October 6, 2014. Appellant thereafter filed a timely notice of appeal and a court

              ordered Pa.R.A.P. 1925(b) statement.              ln his 1925(b) statement, Appellant asserts that the

              evidence was insufficient to support the theft conviction beyond a reasonable doubt. Specifically,
     .l       I
                Appellant was tried jointly with Marvin Thornton, who was also found guilty.
     ,1       l
              - A verdict without further penalty was entered on the Criminal Conspiracy charge.
          I
      I
                                                                       1
        Appellant    asserts that the Commonwealth             failed to prove that either Appellant             or his co-

       conspirator    removed the property found in a truck in which Appellant was a passenge1· and which

       belonged      lo Appellant's     co-actor,   which property having          been unlawfully      removed      from a

       school; or that Appellant exercised unlawful control of the properly. In addition, he asserts that

       the evidence was insufficient to establish that he committed the crime of criminal conspiracy to

       commit theft because there was no evidence that he made an agreement with any other person to

       commit the theft from a school.

       FACTUAL HISTORY

                On November 30, 2013, at about 1:20 p.m., Philadelphia Police Officer Vincent Ficchi

       and his partner, Police Officer Brown, members of the Police Department's Burglary Detail,

       were working in plain clothes when they received a radio call for a burglary in progress at 8110

      Lyons Avenue, the location of Bartram High School AO!leX, which, at the time, was not being

      utilized by the Philadelphia School District. (N.T. 11-14).3 The officers immediately proceeded

      to that location. Officer Ficchi and his partner checked the school and saw that a window on one

      of the doors had been broken and that the door's locks had been tampered with, thereby allowing

      entry into the building.        (N.T. 14, 15-16, 27). Officer Ficchi informed police radio about what

      he had observed. Ficchi and his partner then set up a perimeter and parked where they could see

      down both Lyons Avenue and 81st Street. (N.T. 14-15).4

               Approximately ten to fifteen minutes before the radio call, Officer Ficchi observed two

      men in the parking lot of the school about twenty to thirty feet from the location of the broken

      door. (N.T. 26). Officer Ficchi again saw the same two men while parked outside the school.

 I    (N.T. 25, 26). Al the time, the men were not carrying anything. (N.T. 25). The two men, who


'I!   'All re fereom to lhe record refer 10 the transcript or Appellant's trial recorded on June 9, 2014.
      ~ The officers decided not to search the building because ii was a large property and they were alone. (N.T. 14).
·1
  i                                                             2
  I
 were dressed in clothing      that matched flash informal ion contained    in the radio call of the

 burglary, entered a black Chevrolet    pick-up truck, which was then driven into a cul de   S(!C   and

 then across a grass field. (N.T. 15-16). Officer Ficchi activated his vehicle's emergency lights

 and siren and pursued the vehicle. (N.T. 16-17). When the truck reached             so"   Street and

 Lindbergh Boulevard, its driver disregarded a red light and proceeding westbound on Lindbergh

 al a high rate of speed until it reached 841h Street where it went southbound for a couple of blocks

 before its driver pulled over. (N.T. 17).

        Officer Ficchi pulled behind the pick-up and ordered its driver, Marvin Thornton, to put

 the vehicle in park. (N.T. 17). Thornton ignored the officer and fled the scene. Officer Brown

and Officer Carter, who were in separate vehicles, pursued the pick-up along with Officer Ficchi

for several blocks. (N.T. 18). During the pursuit, Thornton ignored several red lights. (N.T. 36).

The pursuit ended at 841h Street and Lindbergh Avenue when Thornton crash his pick-up into a

utility pole. (N.T. 18, 36).     Upon looking in the bed of the pick-up, Officer Ficchi observed

tools, equipment, a sink, and pipes. (N.T. 23, 33).

        After the crash, Officers Ficchi and Carter placed Thorton in custody. Appellant fled

following the crash after Officer Brown attempted to place him in custody.           (N.T. 19, 37).

Officer Brown chased Appellant, who ran through the backyards of nearby residences, to avoid

apprehension. (N.T. 21-22). It took police over an hour to locate and apprehend Appellant, who

was found hiding in a buck yard shed. Appellant also resisted arrest. (N.T. 38, 39). As stated,

upon looking in the bed of the pick-up, Officer Ficchi observed tools, equipment, a sink, and

pipes. (N.T. 23, 33).

       Mr. Edward Coleman, employed by the Philadelphia School District as a facility area

coordinator for the Bartram Annex and other schools, was working on the day of the incident and




                                                 3
     was summoned         to the Bartram Annex following        the report of the burglary.      (N.T. 48-49).   He

     conducted an inspection      of the Annex and observed that an entry door had been dismantled               and

     in the lower levels of the building, copper pipes had been cut out and several porcelain cast iron

     sinks were missing.        (N.T. 49-51). Mr. Coleman          testified that if the door been broken the

    previous day, it would have been repaired. (N.T. 64).

             After inspecting the building, Mr. Coleman went to the location where the pick-up

    crashed at the behest of the police to inspect the items in the back of the truck, (N.T. 52). Upon

    inspecting the pipes and sink in the truck, Mr. Coleman indicated that they were "similar to" the

    types of items that were removed from Bartram Annex.                      (N.T. 52-53). According to Mr.

    Coleman, neither Appellant nor Thornton had permission to be inside the Annex and that the cost

    to fix the damage done inside the school ranged from $7,000.00 to $10, 000.

    DISCUSSION

            In his l 925(b) statement, Appellant raises the following claims:


                     1.    THE EVIDENCE WAS JNSUFFlCJENTTO FIND
                           THE DEFENDANT GUILTY BEYOND A
                           REASONABLE DOUBT OF THE OFFENSE OF
                           THEFT BY UNLAWFUL TAKING AND
                           CRIMINAL CONSPIRACY.5

            Appellant asserts that the evidence was insufficient to establish the crime of Theft by

    Unlawful Taking for a number of reasons including: 1) no one observed Appellant and/or his co-

actor actually removing items from the school and placing them in the truck; 2) the

Commonwealth failed to prove that Appellant exercised unlawful control of the property found

in the truck; 3) the Commonwealth failed to prove that Appellant was aware of the items in the




5
    Appellant's claims have been combined and rephrased for purposes of efficiency and ease of review.


                                                          4
      truck or that he knew or should have known that they were stolen; and 4) the evidence showing

      that Appellant left the scene was circumstantial, and thus, insufficient to support the charges.

             Appellant next claims that his conspiracy conviction rests on insufficient evidence

      because the Commonwealth failed to establish that Appellant and Thornton, his co-actor, formed

     an agreement to take items from the Bartram Annex. It is respectfully suggested that both claims

     be deemed lacking in merit.

             In ruling upon claims challenging the sufficiency of the evidence, the reviewing court

     must view all evidence and reasonable inferences therefrom in a light most favorable to the

     Commonwealth as verdict winner and determine whether the evidence enabled the fact-finder to

     find that each element of the offense was established beyond a reasonable doubt. Commonwealth

     v. Ho.J.ky, 945 A.2d 241, 246~247 (Pa. Super. 2008), appeal denied, 598 Pa. 787, 959 A. 2d 928

     (2008). When reviewing the sufficiency of the evidence, the reviewing court may not substitute

     its judgment for that of the fact-finder, which can believe all, some, or none of a witness's

     testimony, and if the record contains support for a conviction it may not be disturbed. Id. at 247.

     Finally, the "Commonwealth's burden may be met by wholly circumstantial evidence and any

     doubt about the defendant's guilt 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. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011)

     (quoting Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa. Super. 2011)).

            In Pennsylvania, an individual commits Theft by Unlawful Taking or Disposition when

     he "unlawfully takes, or exercises unlawful control over movable property of another with intent

     to deprive him thereof." 18 Pa.C.S. § 3921(a). Movable property is defined, in pertinent part, as
 i
}I   "[pjroperty the location of which can be changed .... " 18 Pa.C.S. § 3901. The term "deprive" is
Ii

                                                      5
defined as: "(1) To withhold property of another permanently            ...   or (2) to dispose of the

property so as to make it unlikely that the owner will recover it." Id.

        "The material elements of conspiracy are: "(1) an intent to commit or aid in an unlawful

act, (2) an agreement with a co-conspirator     and (3) an overt act in furtherance of the conspiracy."

Commonwealth         v. Gross, 101 A.3d 28, 34 (Pa.2014); 18 Pa.C.S. § 903. "An 'overt act' means an

act done in furtherance of the object of the conspiracy." Id. "The conduct of the parties and the

circumstances      surrounding such conduct may create a web of evidence linking the accused to the

alleged conspiracy beyond a reasonable doubt." Commonwealth           v, Bricker, 882 A.2d 1008, 1017

(Pa.Super.2005).

        A conspiratorial    agreement may be inf erred from "a variety of circumstances     including,

but not limited to, the relation between the parties, knowledge of and participation     in the crime,

and the circumstances      and conduct of the parties surrounding the criminal episode. These factors

may coalesce to establish a conspiratorial    agreement beyond a reasonable doubt where one factor

alone might fail." Bricker, 882 A.2d at 1017. This Court has explained the agreement element of

conspiracy as follows:

                The essence of a criminal conspiracy is a common
                understanding, no matter how it came into being, that a
                particular criminal objective be accomplished. Therefore, a
                conviction for conspiracy requires proof of the existence of
                a shared criminal intent. An explicit or formal agreement to
                commit crimes can seldom, if ever, be proved and it need
                not be, for proof of a criminal partnership is almost
                invariably extracted from the circumstances that attend its
                activities. Thus, a conspiracy may be inferred where it is
                demonstrated that the relation, conduct, or circumstances of
                the parties, and the overt acts of the co-conspirators
                sufficiently   prove    the formation       of a criminal
                confederation.   The conduct of the parties and the
                circumstances surrounding their conduct may create a web
                of evidence linking the accused to the alleged conspiracy
                beyond a reasonable doubt. Even if the conspirator did not



                                                   6
                    act as a principal in committing the underlying crime, he is
                    still criminally liable for the actions of his co-conspirators
                    in furtherance of the conspiracy.

Commonwealth            v. McCall, 911 A.2d 992, 996-97 (Pa.Super.2006).

           The "overt act [necessary to establish criminal conspiracy]       need not be committed by the

defendant; it need only be committed by a co-conspirator."             McCall, 911 A.2d at 996. Further,

"[ejach co-conspirator        is liable for the actions of the others if those actions were in furtherance of

the common criminal design." Commonwealth                  v. King, 990 A.2d 1172, 1178 (Pa.Super.2010)

(Citing Commonwealth           v. Baskerville, 681 A.2d 195, 201 (Pa. Super.1996)).

           Instantly,    a review of the evidence     in a light most favorable     to the Commonwealth

establishes the evidence was more than sufficient to support the theft and criminal conspiracy

charges.     On the day of the incident, Philadelphia Police observe Appellant and his co-defendant

on the property of a closed public school. Fifteen minutes later, the officers receive a radio call

announcing a burglary at the school leading them to investigate. Uponarrival at the school, they

discover a door with a broken window and a door. The door was situated on the same side of the

school where the police observed Appellant and his co-defendant.

           Shortly thereafter, Police set up a perimeter around the school to conduct a surveillance

of the area. Instantly, the police observe Appellant and his co-defendant coming from the

direction of the school, enter a pick-up truck, and drive across a grass field lo flee the area.

Police immediately pursued the truck and its driver, Appellant's co-defendant, ·who ignored

police directives to stop and fled from police at a high rate of speed, running red lights. The

pursuit finally ended when the truck crashed at which point Appellant fled and secreted himself

in a back yard shed. When police went to take Appellant in custody, he resisted.




                                                       7
             Further evidence showed that the truck contained property linked to the school. It also

 established      that Appellant did not have permission     to enter the school and that the school had

 been secure the previous day.

             111e circumstances   surrounding   the conduct of Appellant and his co-defendant   created a

 circumstantial      web of evidence linking Appellant to the theft of the property from the school.

 There was clearly sufficient evidence circumstantial       and direct to find that Appellant and his co-

 defendant      formed a conspiracy,    the object of which was to commit a theft from the school

 beyond a reasonable doubt.         When viewed in conjunction     with each other and in the context in

 which the events herein occurred, it is clear that the evidence proved beyond a reasonable doubt

 that Appellant was not an "innocent bystander or merely present in the truck", but rather, he was

 an active participant in the theft, which was conclusively established by the conduct of the

 parties.

            It is well settled that a permissible inference of guilty knowledge may be drawn from the

unexplained possession of recently stolen good as well as from surrounding circumstances.

Commonwealth v. Grabowski, 549 A.2d 145, 148 (Pa. Super. 1988), appeal denied, 559 A.2d

526 (Pa. 1988). Such surrounding circumstances include, but are not limited to the time elapsed

between the accused's possession and the theft; the type of property; and the situs of the theft and

the situs of the possession. Id., 549 A.2d at 148. Moreover, whether possession is recent and

whether it is unexplained are genera Hy questions for the trier of fact. Id. at 461, 549 A.2d at l 48.

            Appellant and Thornton confirmed their joint participation in a conspiracy and the

possession of the stolen items by their joint actions on the day of the incident including their

joint flight on the day of the incident. Appellant further confirmed his involvement when he fled

following the crash of the truck. If Appellant had been "merely" an innocent bystander, it is




                                                      8
     reasonable to infer that he would not have fled after the truck crashed or hidden in a back yard

     shed to avoid apprehension.    See Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069, 1078

     (Pa. 2001) ("[E)vidence of flight shows a consciousness of guilt."); Commonwealth v. Davalos,

     779 A.2d 1190, 1194 (Pa. Super. 2001) (flight from crime scene with alleged co-conspirators

     shows consclousness of guilt, and thus participation in conspiracy).

            Evidence showing possession of recently stolen items was deemed sufficient to sustain a

     conviction for Theft by Unlawful Taking when, as is the case here, other factors are present.

     Commonwealth v. Plath, 405 A.2 1273 (Pa. Super. 1979) (section 3921 conviction upheld where

     defendant found in possession of a vehicle stolen several hours earlier and attempted to evade

     police after being spotted); Commonwealth v. Hanes, 522 A.2d 622 (Pa. Super. 1987) (evidence

     was sufficient to sustain theft conviction under section 3921 where defendant found driving a

     logging truck filled with logs that had been stolen the same day).

            Accordingly for all of the foregoing reasons, it is submitted that the evidence was

     sufficient to sustain Appellant's conviction and the judgment of sentence should be affirmed.




     CONCLUSION
            Based on the foregoing, it is respectfully suggested that the judgment of sentence be

     affirmed.
                                                                  BY THE COURT,


           /1, i .     ,-
     Date:~
                                                                  Daniel D. McCaffery, J.


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