J-S32035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
MAX BURNSWORTH,                            :
                                           :
                   Appellant               :           No. 2008 WDA 2014

     Appeal from the Judgment of Sentence entered on November 21, 2014
               in the Court of Common Pleas of Fayette County,
                Criminal Division, No. CP-26-CR-0001255-2014

BEFORE: SHOGAN, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JUNE 15, 2015

        Max Burnsworth (“Burnsworth”) appeals from the           judgment of

sentence imposed after a jury convicted him of receiving stolen property.1

We affirm.

        The trial court summarized the relevant facts underlying this appeal in

its Pa.R.A.P. 1925(a) Opinion; we incorporate the court’s recitation herein by

reference. See Trial Court Opinion, 2/13/15, at 2-4.

        At the close of trial on November 5, 2014, the jury found Burnsworth

guilty of receiving stolen property. On November 21, 2014, the trial court

sentenced Burnsworth to serve 11½ to 23 months in the Fayette County

Prison, and ordered him to pay $2,000 in restitution to the victim of the




1
    18 Pa.C.S.A. § 3925(a).
J-S32035-15

theft, Ronald Martray (“Martray”).       Burnsworth timely filed a Notice of

Appeal.

      On appeal, Burnsworth presents the following issue for our review:

      [Whether] the Commonwealth did not present evidence beyond
      a reasonable doubt that [Burnsworth] was guilt[y] of receiving
      stolen property[,] in that the testimony of [Martray] was
      contradicted by another Commonwealth witness[,] and the jury
      would have to speculate on facts to base their verdict[?]

Brief for Appellant at 7 (capitalization omitted).

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      The standard we apply … 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 [that of] the fact-finder. In addition, we note
      that the facts and 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).




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J-S32035-15

     Burnsworth argues that the evidence presented by the Commonwealth

was insufficient for the jury to find, beyond a reasonable doubt, that he was

guilty of receiving stolen property. Brief for Appellant at 11-12. Burnsworth

contends that the jury’s verdict was “based on speculation,” id. at 12, in

light of conflicting Commonwealth testimony.    See id. at 11 (arguing that

“the jury was presented with the testimony of … Martray … and his son,

Brandon Ozorowski [“Ozorowski”]. There is conflicting testimony as to what

items were removed from the truck and what items were identified by both

[Martray and Ozorowski].”).

     In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly addressed

Burnsworth’s claim, set forth the relevant law, and determined that there

was sufficient evidence to support Burnsworth’s conviction of receiving

stolen property.   See Trial Court Opinion, 2/13/15, at 5-9.     The record

supports the trial court’s sound rationale and determination, and we affirm

on this basis in rejecting Burnsworth’s sufficiency challenge. See id. As an

addendum, even if there were conflicts in the trial testimony presented by

Martray and Ozorowski, it was solely within the province of the jury to

resolve such conflicts and weigh the evidence.     See Commonwealth v.

Brown, 52 A.3d 1139, 1163 (Pa. 2012); see also id. at 1164 (stating that

“in applying th[e] standard [of review concerning sufficiency of the evidence

challenges], a reviewing court faced with a record of historical facts that

supports conflicting inferences must presume – even if it does not



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J-S32035-15

affirmatively appear in the record – that the trier of fact resolved any such

conflicts in favor of the prosecution, and must defer to that resolution.”

(citation and quotation marks omitted)).          We may not substitute our

judgment for that of the jury or re-weigh the evidence. Melvin, supra.

     Because    we   conclude    that    the   trial   court   properly   rejected

Burnsworth’s challenge to the sufficiency of the evidence, we affirm his

judgment of sentence.

     Judgment of sentence affirmed.

     Shogan, J., joins the memorandum.

     Olson, J., concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2015




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            IN THE COURT OF COMMON PLEAS. OF FAYETTECOUNTY,PENNSYLVANIA

                                                   CRIMINALDMSION




        COMMONWEALTHOF PENNSYLVANIA

                                        vs.                                  No. 1255 of 2014

        MAXGRANTBURNSWORTH
                                              Defendant.




                                              Pa. R.A.P. 1925{b) Opinion

        Linda R. Cordaro) Judge

                              Before the Court is the "Concise Issue under Pa.R.A.P. 1925(b)" filed on

        December 11, 2014 by Appellant, Max Grant Burnsworth, hereinafter "Appellant".

        Following a jury trial Appellant was convicted of Receiving Stolen Property' on

        November 5, 2014. On November 21, 2014, Appellant was sentenced to incarceration in

        the Fayette County Prison for a period of not less than eleven and one-half (11 112) and

        not more than twenty-three (23) months with credit for time served from May 16, 2014

        until November 21, 2014. Appellant was also ordered to pay restitution in the amount of

        two-thousand ($2000.00) dollars to the victim, Ronald Martray. Appellant thereafter

        filed a timely appeal from judgment of sentence with the Superior Court.



        1
            18 Pa.C.S. § 3925(a) [F3]


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                               FINDINGS OF FACT

              On or about October 4,     2013,   Mr. Ronald Doppelheuer, a mechanic and

proprietor of Dopp's Garage.located at 710 East Crawford Avenue, Connellsville, Fayette

County, Pennsylvania, arrived at his garage in the morning hours to find that a vehicle

was missing from his lot. The missing vehicle was a green 1999 Ford Ranger pick-up

truck that Mr. Doppelheuer had received from Mr. Ronald Martray in order to repair an

issue with the engine overheating.    Mr. Martray provided Mr. Doppelheuer with the one

and only key to the vehicle. Mr. Doppelheuer noticed pieces of broken glass around the

area where Mr. Martray's vehicle was parked. Mr. Doppelheuer contacted Mr. Martray

to ascertain whether Mr. Martray had retrieved the vehicle himself. After learning Mr.

Martray had not retrieved the vehicle, Mr. Doppelheuer contacted the Pennsylvania

State Police to report the vehicle stolen. Pennsylvania State Police Trooper Cameron

Craig responded to Dopp's Garage where he interviewed Mr. Doppelheuer and Mr.

Martray and filed an incident report.

             On October 26,   2013,   Trooper Craig recovered the vehicle in a wooded

area adjacent to Wills Road and Isabella Road Extension in Connellsville Township,

Fayette County, Pennsylvania. Trooper Craig observed a green Ford Ranger pick-up

truck similar to the description of Mr. Martray's, and he used the vehicle identification

number or "VIN" to confirm that said truck was the same one reported stolen. Trooper

Craig observed that the vehicle had been "stripped," in that several parts of the interior

and exterior of the vehicle had been removed. Further, the driver's side window had

been broken and the steering column and ignition were damaged. Trooper Craig then




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notified Detective William Hammerle of the Auto Theft Task Force for the Connellsville

Police Department regarding the stolen vehicle and its recovery.

                     Detective Hammerle contacted Detective Paul Koropal with the Allegheny

County District Attorney's Office-Western Regional Auto Task Force to assist in the

investigation.         Both Detectives investigated the vehicle after it had been towed to

Burnworth's Garage2 in Uniontown. Detective Koropal investigated the vehicle, noting

several parts missing, including a diamond-plated toolbox Mr. Martray described as
being attached to the bed of the 1999 Ford Ranger.

                     After receiving information that Appellant may have been responsible for

the theft, Detectives Koropal and Hammerle, along with other members of the Auto

Theft Task Force, began surveillance on Appellant's residence, as well as his

grandparents' residence on October              28, 2013.    From a nearby alleyway, the Detectives

observed what appeared to be a diamond-plated toolbox, similar to that described by

Mr. Martray, located in the truck bed of a 1994 red Ford Ranger parked in Appellant's

garage. They also observed a man, later identified as Appellant, performing mechanical

work on the red Ford Ranger.

                     On November 6, 2013, the Detectives interviewed Appellant's father,

Edward Burnsworth, regarding the location of his son Max, the Appellant, and Edward

Burnsworth gave consent to search the detached garage containing the red Ford Ranger.

Inside the garage Detectives observed a radiator and fan shroud underneath a work

bench. Detective Koropal photographed the parts and contacted the victim's two sons,

Brandon and Shawn Ozorowski, who verified that the radiator and fan shroud were the

2                                                                                                            '
    NOTE: "Burnworth Garage" in Uniontown is not the same garage owned by Appellant.   The similarity in names is
coincidental only.


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same previously affixed to their father's stolen Ford Ranger truck. Appellant's red Ford

Ranger was seized and transported                         to the Connellsville Police Department, where

Brandon and Shawn Ozorowski further identified several other parts that had been

stolen from their father's vehicle.

                     Following the investigation, Detective Koropal filed charges of Receiving

Stolen Propertya and Tampering with Public Records or Informations.



                                                     DISCUSSION


                    The Appellant's Concise Issue under Pa.R.C.P. 1925(b) is as follows:

ISSUE NO. 1: THE COMMONWEALTH DID NOT PRESENT EVIDENCE
BEYOND A REASONABLE DOUBT THAT THE APPELLANT WAS GUILTY
OF RECEIVINGSTOLEN PROPERTYIN THAT THE TESTIMONY OF THE
ALLEGED VICTIM OF WHAT WAS MISSING WAS CONTRADICTED BY
ANOTHERCOMMONWEALTH WITNESS AND THE JURY WOULD HAVE
TO SPECULATE ON THE FACTS TO BASE THEIRVERDICT.


                The standard when reviewing the sufficiency of the evidence is whether the

evidence at trial, and all reasonable inferences derived therefrom, when viewed in the

light most favorable to the Commonwealth as verdict winner, are sufficient to establish

all elements of the offense beyond a reasonable doubt. Com. v. Stevenson, 894 A.2d

759, 773 (Pa.Super.2006) quoting Com. v. Smith, 863 A.2d 1172, 1176 (Pa.Super.2004).

The Court may not weigh the evidence or substitute its judgment for that of the fact-

finder. Id. Additionally, the evidence at trial need not preclude every possibility of

innocence, and the fact-finder is free to resolve any doubts regarding a defendant's guilt


' 18 PaC.S. § 3925(a) [F3]
'18 Pa.C.S. § 4911 (a) [M2] **Uismissed July 17, 2014**



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unless the evidence is so weak and inconclusive that as a matter of law no facts

supporting a finding of guilt may be drawn. Id. The fact-finder, when evaluating the

credibility and weight of the evidence, is free to believe all, part, or none of the evidence.

Id.   The test is whether, viewing all evidence admitted at trial, together with all

reasonable inferences drawn therefrom, in a light most favorable to the Commonwealth

as verdict winner, the trier of fact could have found that the defendant's guilt was

established beyond a reasonable doubt. Com. v. Collins, 702 A.2d 540, 543 (Pa. Super.

1997).

                A person is guilty of theft if he intentionally receives, retains, or disposes

of movable property of another 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(a).   As used in this section the word

"receiving" means acquiring possession, control, or title, or lending on the security of

the property.

                In this case, there is little doubt that the testimony provided by the

Commonwealth is sufficient to convict Appellant of receiving stolen property. Detective

Koropal testified that after he took pictures of the radiator and fan shroud found in

Appellant's garage, he contacted Brandon Ozorowski to identify the parts.                  Mr.

Ozorowski testified that he had worked several years as a mechanic, rode in the vehicle

"millions of times," and performed regular maintenance on his father's 1999 Ford

Ranger prior to the vehicle being stolen. Mr. Ozorowski stated that the radiator in

Appellant's garage was the same taken from the stolen truck because of the after-

market, or post-purchase, radiator cap that Mr. Ozorowski had previously used to



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replace the factory installed cap. Further, Mr. Ozorowski identified approximately seven

(7) different interior and exterior parts that had been removed from his father's truck

and were now found in or on Appellant's vehicle. These parts included:

       1) driver's side sun visor; 2) bench seats with center console; 3) a gear
       shifter with cup holders; 4) a diamond-plated tool box; 5) the center
       console; 6) side view mirrors; and 7) plastic interior trim pieces.


              Mr. Ozorowski identified each item and was able to explain identifying
marks or wear and tear consistent with parts he had previously observed in and on his

father's vehicle. Mr. Ozorowski testified that he recognized the driver's side sun visor

because of certain pinholes in the fabric. He testified that the holes were left in the

fabric because their father had fastened pictures of their deceased siblings to the driver

side visor. Mr. Ozorowski further stated that the bench seats, center console, gear

shifter with cup holders, side view mirrors, and the plastic interior trim pieces were

those typically found on a 1999 Ford Ranger vehicle, and would not have been included

by the manufacturer in the 1994 model owned by Appellant. Finally, Mr. Ozorowski

identified markings caused by using an acid-based solution to clean the diamond-plated

toolbox, as well as numerous items Detectives Koropal and Hammerle testified that they

had found in the tool box during their investigation. Mr. Ozorowski testified to each

item individually and from his own recollection, prior to viewing the Commonwealth's

photographs. Mr. Ozorowski's history working as a mechanic and personal experience

with the stolen vehicle makes his testimony highly persuasive when determining the

origin of the parts found in or on Appellant's vehicle.

               This Court notes that circumstantial evidence from which guilty




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knowledge can be inferred         is sufficient to sustain a conviction if the underlying

circumstantial     evidence is sufficiently strong to support      the inference   beyond a

reasonable doubt.      Com. v. Thomas, 429 Pa. 227, 239 A.2d 354 (1968). Moreover, a

permissible inference of guilty knowledge may . be drawn from the unexplained

possession of recently stolen goods without infringing on an accused's right of due

process or his right against self-incrimination, as well as from other circumstances, such

as the accused's conduct at the time of arrest. United States v. Peterson, 522 F.2d 661
(D.C.Cir.1975); United States v. Roberts, 483 F.2d 226 (5th Cir. 1973). The strength of

the underlying evidence, in cases where the inference is drawn from unexplained

possession of recently stolen goods, is dependent on whether possession is recent and

how recent the possession is, as well as, an understanding of what is meant by

unexplained. Com. v. Williams, 468 Pa. 357 (1976).

                 This Court notes that 'Recent' is a relative term, and whether possession is

recent, and how recent it is, are normally questions of fact for the trier of fact and

require that the trier of fact consider the nature and kind of goods involved, the quantity

of goods, the lapse of time from theft and possession, and the ease with which such

goods can be assimilated into trade channels, as well as other circumstances relevant in

any given case. Pendergrast v. United States, 135 U.S.App.D.C. 20, 416 F.2d 776, 790

(1969) cert. denied.

                 A copy of the title acquired by Appellant stating that Appellant had

purchased the 1994 red Ford truck on October 17, 2013, approximately two weeks prior

to the victim's vehicle being stolen, was introduced as Commonwealth's Exhibit Number

3. The jury did not find Appellant's explanation of his vehicle purchase, nor the



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purchase of the toolbox, to be credible.      Appellant testified that he purchased       the

diamond-plated   toolbox at the Perryopolis Flea Market, and was thus unable to produce

proof of purchase or the identity of the individual who sold him the toolbox. Further,

Appellant testified that despite the extremely low price, he did not inquire as to the

origin of the toolbox, nor was he concerned that the toolbox would not fit on his vehicle.

             Consistent   with case law, this Court instructed     the Jury pursuant       to

Pennsylvania Criminal Jury Instruction No. 15.3925(c) stating in part:

       "One of the elements that the Commonwealth must prove is that the
       Defendant either knew that the property had been stolen or believed that it
       had probably been stolen. If you choose to do so, you may infer that the
       Defendant had such guilty knowledge or belief from proof that he was in
       possession of the property, that the property had recently been stolen, and
       that his possession is unexplained. In deciding whether his possession is
       unexplained, you should consider all the evidence that might explain it,
       including evidence presented by the Commonwealth. You may regard the
       Defendant's possession as unexplained if you find the explanation
       unsatisfactory."


              Based on the above facts, this Court finds that a Jury can easily infer that

Appellant either had actual knowledge or at the very least, believed, that the parts in his

possession had been stolen. Appellant was observed possessing the stolen parts in his

garage and attached to his vehicle, and he possessed the stolen parts as recently as

October 28, 2013, just two (2) days from the date the vehicle was recovered. Lastly, the

jury did not find Appellant's testimony credible as to the origin of his vehicle, nor his

testimony regarding the origin of the numerous parts on his vehicle that were not

originally manufactured for his vehicle.      This Court finds that the circumstances

surrounding Appellant's possession of the stolen parts allows a jury to reasonably infer



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           Appellant had knowledge that the parts were stolen.

                                    Based on the above facts and case law, this Court believes that the

           Commonwealth has presented sufficient evidence to sustain a conviction against

           Appellant in this matter and respectfully recommends that Appellant's conviction be

           SUSTAINED.

                                                            BY THE COURT:




           Attest:

              ~M



           Date:     February ieth,          2015




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