J-S27027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANTHONY PORTER

                            Appellant                 No. 1672 EDA 2014


          Appeal from the Judgment of Sentence entered May 2, 2014
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0005838-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JULY 28, 2015

        Appellant, Anthony Porter, appeals from the judgment of sentence the

Court of Common Pleas of Philadelphia County imposed May 2, 2015.

Appellant argues the evidence was insufficient to sustain his convictions of

receiving stolen property and conspiracy to receive stolen property.

Specifically, Appellant argues the Commonwealth presented no evidence to

prove he knew the property was stolen and of his conspiratorial agreement

with associate. Upon review, we affirm.

        The trial court summarized the relevant background as follows:

        In February 2013, Detective David Strother was involved in the
        investigation of a series of dirt bike and ATV thefts in Bucks, Chester,
        Montgomery, and Delaware counties.           During this investigation,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     Detective Strother was contacted by a victim of these thefts, Anthony
     Coonick, who stated that he believed that his stolen dirt bike had been
     listed for sale on Craigslist, an online market forum. The Craigslist ad
     specified a contact telephone number for potential buyers. After
     learning that the seller associated with the ad was using the name
     “Ant Porter,” Detective Strother conducted a public search of the social
     media website Facebook, looking for the contact number from the
     Craigslist ad and the name “Ant Porter.” That search led Detective
     Strother to the public profile page of [Appellant] Anthony Porter.
     Contained on [Appellant]’s Facebook profile page was a picture of
     [Appellant] sitting on Cooninck’s stolen motorcycle (hereafter,
     “Facebook photo”). A dent in the motorcycle’s right exhaust pipe is
     visible in both the photograph in the Craigslist and [Appellant]’s
     Facebook photo.

     Using the phone number provided in the Craigslist ad, Detective
     Strother arranged a meeting at McClellan Street and Pint Breeze
     Avenue in Philadelphia on February 21, 2013. [Detective] Strother
     was accompanied by Officer Reilly, of the Bensalem Township,
     Pennsylvania State Police Auto Theft Task Force. Upon arriving at the
     agreed location, an unidentified black male approached the officers,
     riding a motorcycle. The officers spoke with the unidentified male
     about the bike while attempting to view the VIN number of the
     motorcycle. Officer Reilly was able to view the VIN number, and
     confirmed that the last eight digits of the VIN matched that of the bike
     that Coonick had reported stolen.

     While the officers were speaking with the unidentified male, a white
     minivan pulled up to the trio and [Appellant] exited from the
     passenger side. [Appellant] immediately took over the negotiation for
     the sale of the bike. [Appellant] appeared to be nervous during his
     conversation with the officers, and before the officers could close any
     sale on the bike, [Appellant] suddenly turned and fled the area on
     foot.    Detective Strother chased [Appellant], but was unable to
     apprehend him at that time. The unidentified male fled the scene on
     the bike and was also not apprehended. After [Appellant] and the
     unidentified male fled the scene, Detective Strother sent a text
     message to the telephone number listed in the Craigslist ad, stating
     “Yo, call me. Just trying to get this kid his bike back.” Detective
     Strother received a reply text from the same number stating “I will
     give it to you guys. I don’t want to be locked up for a bike. I thought
     y’all was trying to rob me.” [Appellant] was arrested the following
     month.


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Trial Court Opinion, 8/21/14, at 2-3 (citations to record and footnote

omitted).

        On May 2, 2014, following a non-jury trial before this [c]ourt,
        [Appellant] was convicted of one count of receiving stolen
        property (18 Pa.C.S.A. § 3925(a)) and one count of conspiracy
        to receive stolen property (18 Pa.C.S.A. § 903). Immediately
        following trial, the [c]ourt imposed a sentence of three years
        reporting probation.     [Appellant] did not file post-sentence
        motions.

Id. at 1.

        On appeal, Appellant argues the evidence was insufficient to support

his convictions.1 We disagree.

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at trial in
        the light most favorable to the verdict winner, there is sufficient
        evidence to enable the fact-finder to find every element of the
        crime beyond a reasonable doubt. In applying the above test,
        we may not weigh the evidence and substitute our judgment for
        the fact-finder.   In addition, we note that the facts and
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1
    The questions raised for our review are:

        1. Was not the evidence insufficient to support a conviction for
           receiving stolen property where the Commonwealth failed to
           establish that the [A]ppellant knew or should have known the
           motorcycle was stolen as it had been reported stolen over a
           month earlier, did not exhibit any damage indicative of theft,
           the [A]ppellant had a reasonable explanation for his
           possession and he cooperated with police?

        2. Was not the evidence insufficient to support a conviction for
           criminal conspiracy where there was no evidence that the
           [A]ppellant entered into an agreement with another person to
           commit a crime?

Appellant’s Brief at 3.



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      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. 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. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Fabian, 60 A.3d 146, 150-51 (Pa. Super. 2013)

(quotation omitted).

      As noted, at issue here are two crimes: receiving stolen property and

conspiracy. We will address each ad seriatim.

      “The elements of receiving stolen property may be stated as: (1)

intentionally acquiring possession, control or title, retaining, disposing, or

lending on the security of movable property of another; (2) with knowledge

or belief that it was probably stolen; and (3) intent to deprive permanently.”

Commonwealth v. Young, 35 A.3d 54, 63 (Pa. Super. 2011) (citations

omitted), appeal denied, 48 A.3d 1249 (Pa. 2012).

      In connection with the first element of the crime, in Commonwealth

v. Foreman, 797 A.2d 1005, 1012-13 (Pa. Super. 2002) (quotation marks

and citations omitted), this Court noted:

      [A] permissible inference of guilty knowledge may be drawn
      from the unexplained possession of recently stolen goods
      without infringing upon an accused’s right of due process or his
      right against self-incrimination, as well as other circumstances,
      such as the accused’s conduct at the time of arrest.

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       Nonetheless, the mere possession of stolen property is
       insufficient to prove guilty knowledge, and the Commonwealth
       must introduce other evidence, which can be either
       circumstantial or direct, that demonstrates that the defendant
       knew or had reason to believe that the property was stolen. This
       additional evidence can include the nature of the goods, the
       quantity of the goods involved, the lapse of time between
       possession and theft, and the ease with which the goods can be
       assimilated into trade channels. Further, whether the property
       has alterations indicative of being stolen can be used to establish
       guilty knowledge.      Finally, even if the accused offers an
       explanation for his possession of stolen property, the trier of fact
       may consider the possession as unexplained if it deems the
       explanation unsatisfactory.

Id. at 1012-13 (quotation marks and citations omitted).

       Applying the proper standard of review, the trial court found there was

sufficient evidence to conclude that Appellant was aware the motorcycle was

in fact stolen property:

       [T]he evidence established that [Appellant] arrived at the meet-
       up location and assumed responsibility for negotiations of a
       motorcycle that had been reported stolen one month prior.
       Detective Strother testified that [Appellant] appeared nervous
       throughout the negations. Although [Appellant] claimed that he
       was selling the vehicle on behalf of a mother whose child had
       recently died, the factfinder [the trial court here] was free to find
       this evidence to be incredible and to consider the possession
       unexplained.     [Appellant]’s flight from the scene is further
       evidence of a consciousness of guilt.

Trial Court Opinion, 8/21/14, at 11.           In essence, the trial court drew an

inference of guilty knowledge from Appellant’s unexplained2 possession of

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2
  “The term unexplained includes an explanation which a judge or jury as the
trier of fact finds unsatisfactory.” Commonwealth v. Williams, 362 A.2d
244, 249 n.6 (Pa. 1976). Here, the court, sitting as fact-finder, did not find
(Footnote Continued Next Page)


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the recently stolen motorcycle, Appellant’s behavior during the negotiations,

and his flight while negotiating the sale of the motorcycle. The trial court

properly did so.       See Williams, 362 A.2d at 248-49 (it is permissible to

infer guilty knowledge by the unexplained possession of a recently stolen

vehicle); Commonwealth v Hargrave, 745 A.2d 20, 23 (Pa. Super. 2000)

(“Flight does indicate consciousness of guilt, and a trial court may consider

this as evidence, along with other proof, from which guilt may be inferred.”)

(quotation marks and citation omitted).

      Furthermore, the evidence offered at trial provided additional evidence

of Appellant’s consciousness of guilt.            As noted above, in his text to

Appellant, the officer stated that he was trying to get the motorcycle back to

the owner.     Appellant did not object to the officer’s statement.        Indeed,

recognizing that keeping the motorcycle would expose him to criminal

liability, Appellant texted the officer back saying, inter alia, he did not want

to “be locked up for a bike.”        We also note that, during the negotiations for

the sale of the motorcycle, Appellant did not state that he was selling his

motorcycle. Rather, he stated that he was selling a motorcycle on behalf of

a mother who recently lost his child—an explanation that the factfinder did

not believe to be true.

                       _______________________
(Footnote Continued)

Appellant’s explanation for the possession to be credible.           As such, the
possession here is “unexplained.”




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      We conclude, therefore, that viewing all the evidence admitted at trial

in the light most favorable to the Commonwealth, there was sufficient

evidence to enable the court to find the mens rea element of the crime

proved beyond a reasonable doubt.

      Regarding the criminal conspiracy conviction, 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

criminal intent and, (3) an overt act was done in furtherance of the

conspiracy.” Commonwealth v. Fisher, 80 A.3d 1186, 1190-91 (Pa. 2013)

(citation omitted).

      The trial court, sitting as fact-finder, rejected Appellant’s sufficiency

claim, finding as follows:

      Here, the evidence clearly established that [Appellant] acted in
      concert with an unidentified male in order to sell the stolen
      motorcycle. Both Detective Strother and Officer Reilly testified
      that upon arriving at the meet-up location they first encountered
      an unidentified black male who brought the [stolen] motorcycle
      to the location. Upon this individual’s arrival, both officers then
      engaged him in conversation concerning the motorcycle. This
      individual stated that the bike was not his, and that “his boy
      would be [there] shortly.” While the officers were thus engaged,
      [Appellant] arrived in a white van and “immediately began
      taking over negotiations for the sale of the bike from the
      individual that showed up on it.” [Appellant] further indicated
      that the bike was property that he had been asked to sell.
      [Appellant]’s flight from the meet-up location further supports
      concerted action between the two young men, as both
      individuals fled the scene at the same time and without
      contemporaneous communication.




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Trial Court Opinion, 8/21/14, at 12 (citation to record omitted) (alteration in

original).

       We agree with the trial court that the evidence showed that Appellant

and his associate worked together to sell the stolen motorcycle, which is

sufficient to support Appellant’s conviction for conspiracy, and in particular,

the agreement element of the crime.

       Upon review of the record and pertinent law, we conclude, therefore,

the evidence presented at trial, and all reasonable inferences derived

therefrom, viewed in the light most favorable to the Commonwealth as

verdict winner, is sufficient to satisfy all elements of the offenses at issue

here beyond a reasonable doubt.3

       Judgment of sentence affirmed.




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3
  In passing, we note Appellant, throughout his brief, repeatedly points to
evidence the Commonwealth failed to offer in support of the convictions or
asks us to draw an inference favorable to Appellant.          In reviewing a
sufficiency claim, we review the evidence admitted at trial, not the missing
evidence. Additionally, the evidence must be viewed in the light most
favorable to the verdict winner, not the losing party. Appellant’s approach is
inconsistent with our standard of review.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




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