J-S34007-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JERET SAMUEL HARVEY,

                         Appellant                    No. 2096 MDA 2014


          Appeal from the Judgment of Sentence August 14, 2014
            In the Court of Common Pleas of Lycoming County
           Criminal Division at No(s): CP-41-CR-0001226-2013


BEFORE: BOWES, OTT and STABILE, JJ.

MEMORANDUM BY BOWES, J.:                                FILED JULY 15, 2015

      Jeret Samuel Harvey appeals from the aggregate judgment of

sentence of five to ten years incarceration to be followed by two years of

probation imposed by the trial court after a jury found him guilty of receiving

stolen property and theft by unlawful taking, and a subsequent jury found

him guilty of persons not to possess a firearm.       After careful review, we

affirm.

      The trial court recounted the following facts relative to Appellant’s trial

for receiving stolen property and theft by unlawful taking.

      On June 30, 2013 [Derick] Smith was cleaning his living room
      when he heard the doorbell and knocking on the door. At the
      time, Smith was the only person in his residence. Smith did not
      answer the door, but he noticed the doorknob wiggle and the
      door begin to open. He pointed his revolver towards the door
      because he did not know who was entering the residence. As
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     soon as Smith realized that [Appellant], his cousin, was entering
     the residence, he lowered the revolver. Smith then put the
     revolver in the center compartment of his couch in his living
     room.

           [Appellant] and Smith sat on the couch in the living room.
     [Appellant] asked to see Smith’s revolver. Smith took the
     revolver out of the compartment, unloaded it, and handed it to
     [Appellant]. [Appellant] looked at the revolver and then gave it
     back to Smith, who reloaded the revolver and put it back in the
     compartment. Smith and [Appellant] then talked.

            After a while, Smith went to the kitchen to get a carpet
     cleaning machine. While in the kitchen, Smith could not see
     [Appellant] and did not hear the sound of the couch
     compartment opening or closing. Smith returned to the living
     room about 45 seconds after leaving it. [Appellant] was sitting
     in the same spot as when Smith left. [Appellant] and Smith
     talked briefly. [Appellant] then said that he was going to a
     specific gas station to buy cigarettes. [Appellant] asked Smith if
     he wanted a pack, and Smith said no thank you. Smith thought
     the offer was unusual because [Appellant] was not “the kind of
     person to buy someone something.”            [Appellant] then said
     “that’s what family is for” and left the residence. Thirty seconds
     after [Appellant] left the residence, Smith ran to the couch
     compartment. He opened the compartment but did not see the
     revolver.    Smith then ran towards the gas station to find
     [Appellant].    He called 911 either right before he left the
     residence or as he was running to the gas station. Smith could
     not find [Appellant]. When he got back to his residence, police
     were there.

            A few days later, the [sic] Smith communicated with
     [Appellant] via the website Facebook. Smith told [Appellant]
     that if [Appellant] returned the revolver, Smith would tell police
     that he found it in his residence. [Appellant] “agreed to do
     that.” [Appellant] never contacted Smith with a specific date
     and time when he would return the revolver.

           Later, Smith saw [Appellant] on Third Avenue in
     Williamsport.   Smith asked [Appellant] about the revolver.
     [Appellant] said the revolver was with a man who lived in an
     apartment off High Street in Williamsport.     According to

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      [Appellant], the apartment was numbered four. [Appellant] said
      that two men lived in the apartment, and one of them used a
      wheelchair. [Appellant] got into a woman’s car, and Smith
      called 911. The woman began to drive, and Smith followed in
      his car. Smith gave the dispatcher the location of the woman’s
      car as he followed it. The car stopped near a Uni-mart in
      Williamsport. Police arrived in the area and arrested [Appellant].

Trial Court Opinion, 11/18/14, at 1-3.      A jury found Appellant guilty of

receiving stolen property and theft on February 24, 2014.       Thereafter, on

June 9, 2014, Appellant went to trial for the firearms violation.

      Smith’s testimony was substantially similar at Appellant’s trial for the

firearm crime. However, he did deviate slightly from his earlier testimony.

Specifically, he averred that he could not recall if the revolver was unloaded

when he handed it to Appellant. Smith also maintained that Appellant did

not name the gas station where he intended to purchase cigarettes, but

Smith assumed it was the local gas station. Further, Smith acknowledged

that a person other than Appellant may have informed him that one of the

residents of the High Street apartment was in a wheelchair. Finally, Smith

added that he did not notice any bulges in Appellant’s pockets when he left,

and that the revolver was five inches long.       The parties stipulated that

Appellant was not permitted to possess a gun.

      The jury found Appellant guilty and he proceeded to sentencing on

each of the crimes on August 14, 2014. The court sentenced Appellant to

three and one-half to seven years incarceration for the firearms charge and

one and one-half to three years incarceration to be followed by two years of

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probation for the theft offense.    The court ordered these sentences to be

consecutive. Appellant filed a timely post-sentence motion, which the court

denied. This appeal ensued. The trial court directed Appellant to file and

serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Appellant complied, and the trial court indicated that the reasons for

its decision could be found in its earlier opinion disposing of Appellant’s post-

sentence motion. The matter is now ripe for this Court’s review. Appellant

presents seven questions for our consideration.


      1. Whether the evidence was insufficient to meet the offense of
         Person Not to Possess? Specifically, did the evidence show
         that Appellant possessed, used, controlled, sold, transferred
         or manufactured a firearm?

      2. Whether the verdict of guilt for Person Not to Possess was
         against the weight of the evidence, specifically, where the
         Jury found that Appellant possessed, used, controlled, sold,
         transferred or manufactured a firearm?

      3. Whether the evidence was sufficient to meet the offense of
         Theft by Unlawful Taking? Specifically, did the evidence meet
         the element that Appellant took the property of Derrick
         Smith?

      4. Whether the verdict of guilt for Theft by Unlawful Taking was
         against the weight of the evidence, specifically, where the
         Jury found that Appellant took the property of Derrick Smith?

      5. Whether the evidence was sufficient to meet the offense of
         Receiving Stolen Property? Specifically, did the evidence
         meet the element that the property was stolen?

      6. Whether the verdict of guilt for Receiving Stolen Property was
         against the weight of the evidence, specifically, where the
         Jury found that the property was stolen?

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       7. Whether the Court’s Sentence is Excessive?

Appellant’s brief at 6.1

       We address Appellant’s three separate sufficiency claims together at

the outset.    In performing such a review, we consider all of the evidence

admitted, even improperly admitted evidence. Commonwealth v. Watley,

81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We view the evidence in a

light most favorable to the Commonwealth as the verdict winner, drawing all

reasonable inferences from the evidence in favor of the Commonwealth. Id.

       The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   When evidence exists to allow the fact-finder to determine beyond a

reasonable doubt each element of the crimes charged, the sufficiency claim

will fail.    Id.   In addition, the Commonwealth can prove its case by

circumstantial evidence. Where “the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances[,]” a defendant is entitled to relief. Id. This Court

does not “re-weigh the evidence and substitute our judgment for that of the

fact-finder.” Id.


____________________________________________


1
  The Commonwealth has not filed a brief in this matter; instead, it has
chosen to rely on the trial court opinion.



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      Appellant’s initial sufficiency claim relates to his persons not to possess

a firearm charge.         In order to be found guilty of this offense, the

Commonwealth is required to show that the defendant had a statutory

disqualifying offense that precluded him from possessing a gun and that the

defendant did possess such a weapon. The parties stipulated that Appellant

had a disqualifying offense.

      Here,   the   evidence     is   clearly    sufficient   to   sustain   Appellant’s

conviction.   The victim testified that he showed Appellant the gun and

returned it to its storage place. Thereafter, the victim left the room, leaving

Appellant alone in the room with the weapon. After Appellant left, the victim

discovered    his   gun    was    missing       and   immediately     telephoned    law

enforcement. In addition, the victim testified that Appellant admitted taking

the gun and indicated that he would return it, but failed to do so.

Appellant’s persons not to possess a firearm sufficiency claim is meritless.

      Appellant’s sufficiency issue pertaining to his theft is also without

merit. Appellant argues that he told the victim that he was borrowing the

gun to do a job; therefore, he did not intend to permanently deprive

Appellant of the weapon.         In addition, Appellant maintains that only the

victim testified that he, the victim, had the gun between the purchase date

and the date of the theft.        Appellant, therefore, seeks to infer that the

weapon may have been taken beforehand.




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      Appellant has ignored our standard of review, which requires us to

consider the evidence in a light most favorable to the Commonwealth.

Further, circumstantial evidence alone is sufficient to convict an accused. In

the present case, the victim testified that he possessed the gun when

Appellant visited him, but the weapon was gone after Appellant left.

Additionally, despite Appellant’s claim that he would return the gun, he

never did so.   The evidence was more than sufficient to establish a theft.

Appellant’s final sufficiency claim relates to his receiving stolen property

offense. Appellant’s position is identical to his theft argument and fails for

similar reasons. Appellant’s issue is frivolous.

      Appellant also forwards three separate weight claims relative to each

of his convictions.   A weight claim must be preserved in a timely post-

sentence motion.       Commonwealth v. Lofton, 57 A.3d 1270, 1273

(Pa.Super. 2012).     “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.” Commonwealth v. Clay, 64 A.3d

1049, 1055 (Pa. 2013) (emphases removed).          Accordingly, “[o]ne 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.”

Id.




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      A trial judge should not grant a new trial due to “a mere conflict in the

testimony or because the judge on the same facts would have arrived at a

different conclusion.”      Id.   Instead, the trial court must examine whether

“‘notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice.’” Id. (citation omitted). Only where the jury verdict “is so contrary

to the evidence as to shock one's sense of justice” should a trial court afford

a defendant a new trial. Id. A weight of the evidence issue concedes that

sufficient evidence was introduced. Commonwealth v. Charlton, 902 A.2d

554, 561 (Pa.Super. 2006).

      Although Appellant purports to raise weight claims, his actual

argument is identical to his sufficiency of the evidence positions.        Weight

claims   are,    however,    distinct   and   concede   that   the   Commonwealth

introduced sufficient evidence to establish the elements of the crimes. Since

Appellant’s contentions are merely a rehashing of his sufficiency arguments,

they fail for reasons outlined above.

      The final claim Appellant levels on appeal is that his sentence is

excessive.      This issue implicates the discretionary aspects of his sentence.

To preserve such a sentencing claim, the defendant must raise the issue

either in a post-sentence motion, or during the sentencing proceedings.

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en

banc). In addition, a defendant must “preserve the issue in a court-ordered

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Pa.R.A.P. 1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.”

Id.

       “There    is   no   absolute   right   to   appeal   when   challenging    the

discretionary aspect of a sentence.”          Cartrette, supra at 1042.          “[A]n

appeal is permitted only after this Court determines that there is a

substantial question that the sentence was not appropriate under the

sentencing code.” Id.          In considering the merits of a discretionary

sentencing matter, we review the sentencing court’s decision for an abuse of

discretion.     Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa.Super.

2013). In performing this review, we consider the statutory requirements of

42 Pa.C.S. § 9781(c) and (d). Id. Section 9781(c) provides that this Court

shall vacate a sentence and remand under three circumstances:

      (1)     the sentencing court purported to sentence within the
              sentencing   guidelines but   applied  the  guidelines
              erroneously;

      (2)     the sentencing court sentenced within the sentencing
              guidelines but the case involves circumstances where the
              application of the guidelines would be clearly unreasonable;
              or

      (3)     the sentencing court sentenced outside the sentencing
              guidelines and the sentence is unreasonable.

42 Pa.C.S. § 9781(c). Further, we examine:

       (1)     The nature and circumstances of the offense and the
               history and characteristics of the defendant.

       (2)     The opportunity of the sentencing court to observe the
               defendant, including any presentence investigation.

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      (3) The findings upon which the sentence was based.

      (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      Appellant   timely     filed   a    post-sentence   motion   asserting    an

excessiveness claim therein. He further preserved the issue by including it

in his Rule 1925(b) concise statement.            Appellant, however, failed to

provide a Pa.R.A.P. 2119(f) statement in his brief. Nonetheless, since the

Commonwealth has declined to file a brief, it has not objected to this

omission.   Accordingly, we decline to find waiver on that ground.             See

Dodge, supra at 1271. Nonetheless, Appellant has not raised a substantial

question for review.       It is well-settled that a bald excessiveness claim

without more does not present this Court with a substantial question of

sentencing error to review. Dodge, supra. As Appellant only leveled a bald

excessiveness claim, he is entitled to no relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2015



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