J-S80043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES WALKER                             :
                                               :
                       Appellant               :   No. 3858 EDA 2017

              Appeal from the Judgment of Sentence July 20, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0003253-2016


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 29, 2019

        Appellant Charles Walker appeals from the judgment of sentence

imposed following his convictions for criminal conspiracy, burglary, and theft

by unlawful taking or disposition.1 Appellant challenges the sufficiency of the

evidence supporting his convictions. We affirm.

        The trial court summarized the relevant facts of this case as follows:

        On March 2, 2016, the apartment of Ms. Alicia Green, the
        complainant herein, was burglarized while she was at work. Over
        $3,000 in personal items[, including jewelry and a laptop
        computer,] were taken during the commission of the crime.[fn2]
        The apartment building had a working video recording system and
        upon viewing it police observed two men, one of whom was later
        identified as [Appellant], entering the apartment building shortly
        after 1:00 p.m. Neither [Appellant] nor the other male resided in
        the building and neither of them was carrying anything when they
        entered the property.


____________________________________________


1   18 Pa.C.S. §§ 903, 3502(a)(2), and 3921(a), respectively.
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             None of Ms. Green’s personal items were returned to
         [fn2]

         her and she did not give anyone permission to enter her
         apartment on the day of the burglary.

      The video recording showed that approximately twenty minutes
      later, [Appellant] and the other male exited the building.
      [Appellant’s cohort was carrying an unidentified bag that appeared
      to be filled with items. Appellant was] carrying a large bag
      belong[ing] to the complainant when they left the property. Police
      thereafter placed the video on YouTube and Mr. Edward Pyzia, a
      government employee, informed the police that [Appellant] was
      one of the two males seen in the video. Police then confirmed
      that one of the person[s] in the video was [Appellant] and on
      March 16, 2016, police apprehended him. At the time of his
      arrest, he was wearing a jacket that matched the one he was
      wearing on the day of the incident.

Trial Ct. Op., 4/2/18, at 1-2.

      At trial, the victim viewed the surveillance video on direct examination

and identified the bag carried by Appellant:

      Q. Ms. Green, you’re seeing one male walk out and a second male.
      I want you to focus on that bag and tell me―well, at some point
      with the detectives, you were able to view this video with your
      glasses, correct?

      A. Yeah.

      Q. Okay. And did you recognize that bag?

      A. Yeah. It was a gift bag that was about this large in size that
      had white, green and red stripes on it. It used to have kind of a
      3-D like portion of it that said happy birthday, but it was ripped
      off. And that was one of the bags.

      And the other bag [carried by Appellant’s cohort], I think, was a
      Trader Joe’s bag. It was like a paper bag.

      Q. In terms of the bag that you saw [Appellant] carrying, had that
      been in your apartment earlier that day?




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      A. Yeah. That was holding other like gift wrapping things, and
      that was all dumped on the floor. So that was easy to notice when
      I got back, that everything was on the floor and that bag was
      missing.

N.T. Trial, 5/16/17, at 53.

      On cross-examination, defense counsel questioned the victim about her

initial statement to officers concerning the bag:

      Q. Do you see down in the middle of the page where you were
      asked, “Can you identify any of the bags that either of the males
      were carrying out?”

      A. Yeah.

      Q. And your answer was, “The bag [Appellant] was carrying out
      looks like the gift bag that is missing from my apartment; it’s a
      brown large gift bag with red strips; I believe it has green accents
      on it.”

      So you, at the time, right after this happened when you gave a
      statement, you thought you saw a bag that looked like something
      that could’ve been yours.

      A. Yeah.

      Q. Today you’re sure of it?

      A. I mean, you can see it on the video.

Id. at 56-57.

      Following trial, a jury found Appellant guilty of conspiracy, burglary, and

theft by unlawful taking or disposition.    On July 20, 2017, the trial court

sentenced Appellant to an aggregate term of three and one-half to seven

years’ imprisonment, followed by five years’ probation. Appellant timely filed

a post-sentence motion on July 25, 2017, alleging that the court imposed an




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excessive sentence.       On November 22, 2017, the court entered an order

denying Appellant’s post-sentence motion by operation of law.

       Appellant timely filed a notice of appeal and court-ordered Pa.R.A.P.

1925(b) statement of errors complained of on appeal, challenging the

sufficiency of the evidence supporting his convictions.2 The trial court filed a

responsive Pa.R.A.P. 1925(a) opinion, concluding that the Commonwealth

provided sufficient evidence to support the convictions beyond a reasonable

doubt.

       On appeal, Appellant raises three questions, which we have reordered

as follows:

       1.     Was not the evidence insufficient to support Appellant’s
       conviction for burglary and conspiracy, insofar as there was
       insufficient evidence that Appellant did enter the apartment at
       issue and that he had any intent to commit a crime therein?

       [2]. Was not the evidence insufficient to support Appellant’s
       conviction for theft by unlawful taking, insofar as there was
       insufficient evidence that Appellant took the property of another?

       [3]. Was not the evidence insufficient for Appellant’s conviction
       for conspiracy, insofar as there was insufficient evidence that
       there was any agreement to commit the crime of burglary?

Appellant’s Brief at 3.

       Appellant’s three questions are related, and we address them together.

Appellant contends that he did not possess any of the stolen goods when police

apprehended him two weeks after the burglary at a location that was nowhere

____________________________________________


2 Appellant also raised an allegation of error regarding the Commonwealth’s
closing argument, but he has abandoned this claim on appeal.

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near the crime scene. Id. at 12. Appellant notes that the police did not collect

physical evidence, including fingerprints or DNA, linking him to the burglarized

apartment. Id. at 13. Appellant also complains about the Commonwealth’s

reliance on the surveillance video, because the victim said that the bag

Appellant carried in the video merely “looked like” an item from her

apartment. Id.

      Regarding his conspiracy conviction, Appellant asserts that the

Commonwealth did not present any evidence demonstrating that he: (1)

became an active participant in the criminal enterprise, and (2) possessed

knowledge of a conspiratorial agreement. Id. at 16. Appellant argues that

the evidence established only his mere presence at the scene, which “is

insufficiently probative to establish that he was an active partner in the intent

of another to commit a crime.”       Id.    Absent more, Appellant insists his

“conviction[s] stand on guesswork alone.” Id. at 18.

      We apply the following standard when reviewing a sufficiency claim:

      Because a determination of evidentiary sufficiency presents a
      question of law, our standard of review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      The facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of
      proving every element of the crime by means of wholly
      circumstantial evidence. Moreover, as an appellate court, we

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     may not re-weigh the evidence and substitute our judgment for
     that of the fact-finder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (emphasis

added) (citation and brackets omitted).

     The Crimes Code defines the offense of burglary as follows:

     (a) Offense defined.―A person commits the offense of burglary if,
     with the intent to commit a crime therein, the person:

                                 *    *    *

        (2) enters a building or occupied structure, or separately
        secured or occupied portion thereof that is adapted for
        overnight accommodations in which at the time of the
        offense no person is present[.]

18 Pa.C.S. § 3502(a)(2).

     The Crimes Code defines the offense of criminal conspiracy as follows:

     § 903. Criminal conspiracy

     (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

        (2) agrees to aid such other person or persons in the
        planning or commission of such crime or of an attempt or
        solicitation to commit such crime.

18 Pa.C.S. § 903(a).

     “To sustain a conviction for criminal conspiracy, the Commonwealth

must establish that the defendant (1) entered into an agreement to commit

or aid in an unlawful act with another person or persons, (2) with a shared

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criminal intent and (3) an overt act was done in furtherance of the conspiracy.”

Commonwealth v. Melvin, 103 A.3d 1, 42 (Pa. Super. 2014) (citation

omitted).

      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.

Id. at 42-43 (emphasis added) (citation omitted).

      “Once the trier of fact finds that there was an agreement and the

defendant intentionally entered into the agreement, that defendant may be

liable for the overt acts committed in furtherance of the conspiracy regardless

of which co-conspirator committed the act.” Commonwealth v. Barnes, 871

A.2d 812, 820 (Pa. Super. 2005) (citation omitted).

      To sustain a conviction for theft by unlawful taking or disposition, the

Commonwealth must prove that a person “unlawfully takes, or exercises

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

thereof.” 18 Pa.C.S. § 3921(a).

      Instantly, multiple pieces of circumstantial evidence combined to

demonstrate that Appellant committed the crimes at issue. Specifically, the


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surveillance video showed Appellant and a cohort entering the victim’s

apartment building empty-handed on the day of the burglary. Approximately

twenty minutes later, when the men exited the building, Appellant was

carrying the victim’s bag. That same day, when the victim returned home

after work, she found that someone had damaged her front door and

ransacked her apartment. In addition to jewelry and a laptop, the victim was

also missing a distinctive bag that she used to store gift wrapping materials.

      We    emphasize   that   Appellant’s   argument   does   not   accurately

characterize the victim’s identification of her bag. Although Appellant focuses

on the victim’s pretrial statement to police that the bag Appellant carried in

the surveillance video “looked like” one that she owned, he ignores the victim’s

unequivocal identification of the bag at trial. See N.T. Trial at 53. To the

extent Appellant also complains about the lack of physical evidence linking

him to the victim’s apartment, the Commonwealth may sustain its burden of

proving every element of the crimes by means of wholly circumstantial

evidence.      See Palmer, 192 A.3d at 89; accord Commonwealth v.

Hardcastle, 546 A.2d 1101, 1109 (Pa. 1988) (explaining that the victim’s

front door was closed and locked when the defendant was first seen nearby;

later, the door had been forced open and the defendant was still in the

immediate vicinity; the evidence of forced entry combined with evidence of

the crimes committed inside the home supported the defendant’s burglary

conviction).




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     Regarding the conspiracy conviction, the trial court properly analyzed

the web of evidence linking Appellant and his co-conspirator:

     Both [Appellant] and the male seen in the video with him entered
     the building together empty-handed and shortly thereafter were
     observed leaving the building carrying bags[, at least one of
     which] belonged to the complainant . . . and which ostensibly were
     filled with the complainant’s belongings. Given these overt actions
     and the fact that they were committed together by [Appellant]
     and the male with him, it is clear that they were acting in concert
     and that they were doing so pursuant to an agreement between
     them.

See Trial Ct. Op. at 6. Here, the parties’ conduct sufficiently demonstrated

the formation of a criminal confederation. See Melvin, 103 A.3d at 42-43;

accord Commonwealth v. Tillery, 611 A.2d 1245, 1248 (Pa. Super. 1992)

(holding that sufficient evidence supported the defendant’s conviction for

conspiracy to commit retail theft where the defendant and his nephew acted

in concert, the defendant had knowledge of the commission of the crime, the

defendant was present at the scene, and he participated in his nephew’s

actions by driving the getaway car).

     In sum, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, Appellant’s sufficiency challenges fail. See

Palmer, 192 A.3d at 89; 18 Pa.C.S. §§ 903, 3502(a)(2), 3921. Accordingly,

we affirm the judgment of sentence.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/19




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