J-S31009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

PATRICK GENE WILLITS,

                         Appellant                   No. 1274 MDA 2014


        Appeal from the Judgment of Sentence December 30, 2013
            In the Court of Common Pleas of Lycoming County
           Criminal Division at No(s): CP-41-CR-0001925-2012


BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.


MEMORANDUM BY BENDER, P.J.E.:                          FILED MAY 29, 2015

      Patrick Willits (Appellant) appeals from the December 30, 2013

judgment of sentence entered by the Lycoming County Court of Common

Pleas of an aggregate term of eight to sixteen years’ imprisonment with a

consecutive two years’ probation. Appellant now challenges the sufficiency

and weight of the evidence supporting his identity as the perpetrator of the

offenses. After careful review, we affirm.

      Appellant was convicted, after a trial by jury, of burglary, 18 Pa.C.S. §

3502(a); aggravated assault, 18 Pa.C.S. § 2702(a)(4); attempted robbery,

18 Pa.C.S. § 901(a) and 18 Pa.C.S. § 3701; access device fraud, 18 Pa.C.S.

§ 4106(a)(1)(ii); simple assault, 18 Pa.C.S. § 2701(a)(1); theft by unlawful

taking, 18 Pa.C.S. § 3921(a); receiving stolen property, Pa.C.S. § 3925(a);

and false reports to law enforcement agencies, 18 Pa.C.S. § 4906(a).
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   The trial court set forth a factual summary of this matter as follows:

     At all relevant times, Thomas Willits (victim) lived at the Harvest
     Moon Trailer Park in Linden, Pennsylvania. The victim testified
     that he kept his bank card in his car, which he kept by his home.
     The victim testified that he never locked his car and his PIN was
     attached to his bank card. The victim testified that other than
     his daughter, nobody had permission to access his bank account.
     Randolph Stahl (Stahl), a friend of the victim, testified that when
     the victim owed money to a person, the victim gave that person
     his bank card and PIN.

     On March 29, 2012, $1,260.00 was withdrawn from the victim’s
     bank account. The person who withdrew the money used the
     victim’s bank card at an ATM in Jersey Shore, Pennsylvania.
     Stahl testified that he did not have the victim’s card on March
     29, 2012.

     On March 29, 2012, a person using the victim’s bank card
     purchased $36.00 of gasoline at the Sheetz store in Linden,
     Pennsylvania. Surveillance video from the store showed that the
     person who purchased the gasoline drove a car with a for sale
     sign on the back. Surveillance video also showed that the person
     who purchased the gasoline was the same race and around the
     same age as Patrick Willits ([Appellant]). Pennsylvania State
     Police Trooper Tyson Havens (Havens) was familiar with
     [Appellant]’s car and testified that he could determine from the
     video that [Appellant]’s car was the car driven by the person
     who purchased the gasoline. [Appellant]’s ex-girlfriend, Chase
     Maggs (Maggs), testified that she had made a for sale sign for
     [Appellant]’s car, and [Appellant] had the sign on the back of his
     car. Maggs testified that [Appellant] told her that the victim had
     given [Appellant] a card to get gasoline.

     The victim testified that around March 31, 2012, he noticed the
     lights that turn on when he opens his car doors had been
     removed. He testified that a few days before March 31, 2012,
     [Appellant] was at the victim’s home.

     On March 31, 2012, around 11:30 P.M., the victim was assaulted
     in his home. The assailant hit the victim in the side of the head
     with the claw of a hammer. The victim testified that after the
     blow, blood began to pour down his face. Blood got on the


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     victim’s sweatshirt and on a bed that was close to the location of
     the assault.

     The victim could not see his assailants face because it was too
     dark. The victim could not determine whether his assailant was
     male or female and could not determine the color of the
     assailant’s skin.   The victim noticed that his attacker was
     wearing a gray sweatshirt with a hood. The victim also noticed
     that the sweatshirt had a zipper.

     About fifteen minutes after the assault, the victim heard a loud
     sound coming from inside the Harvest Moon Trailer Park. The
     victim recognized the sound as the sound that [Appellant]’s car
     makes when it is started. The victim was familiar with the sound
     of [Appellant]’s car because the victim is [Appellant]’s uncle.
     The victim testified that [Appellant]’s car had a large muffler and
     made a distinct sound.

     According to cellular phone records, [Appellant]’s phone was
     physically in Linden at 11:19 P.M. on March 31, 2012.

     On April 1, 2012, at 12:25 A.M., the victim called police to report
     the assault. Pennsylvania State Police Trooper Christine Fye
     (Fye) arrived at the trailer park shortly after the call. Fye saw
     blood that was almost dry on the victims face. Fye noticed that
     the victim was upset and distraught.

     Maggs testified that she saw [Appellant] a little after midnight of
     April 1, 2012. Maggs saw [Appellant] at a mini-mart in Jersey
     Shore (Jersey Shore Mini-Mart). Maggs testified that [Appellant]
     showed her a gray sweatshirt that had a hood and a zipper.
     Maggs testified that the sweatshirt had blood on it. Maggs also
     testified that there were little drops of blood on [Appellant]’s
     pants. Tara Litz (Litz) also saw [Appellant] at the Jersey Shore
     Mini-Mart. Litz testified that she saw a gray sweatshirt with a
     hood in [Appellant]’s car. Litz also testified that the sweatshirt
     had blood on it. Unlike Maggs, Litz testified that she saw
     [Appellant] before midnight of April 1, 2012.

     According to cellular phone records, [Appellant]’s phone was not
     in Jersey Shore at 12:16 A.M. on April 1, 2012. At 12:27 A.M.,
     [Appellant]’s phone was closer to Jersey Shore than it was at
     12:16 A.M.       An expert testified that the movement of
     [Appellant]’s phone in relation to cellular phone towers was

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     consistent with the phone being in a car that was travelling from
     Linden to Jersey Shore.

     Sergeant Nathan DeRemer (DeRemer) of the Tiadaghton Valley
     Regional Police Department testified that he saw [Appellant] at
     the Jersey Shore Mini-Mart after midnight of April 1, 2012.
     Officer Kyle Fera (Fera) of the Tiadaghton Valley Regional Police
     Department testified that he saw [Appellant] at the Jersey Shore
     Mini-Mart around 1:00 A.M. on April 1, 2012. DeRemer and Fera
     testified that when they saw [Appellant] at the Jersey Shore
     Mini-Mart, [Appellant] did not have any noticeable injuries.

     On April 1, 2012, at 3:00 A.M., DeRemer and Fera again saw
     [Appellant]. They saw [Appellant] at the emergency room of the
     Jersey Shore Hospital. [Appellant] told them that around 11:30
     P.M. on March 31, 2012, he was driving in Jersey Shore.
     [Appellant] said that two individuals in another car followed his
     car into a gravel parking lot in Jersey Shore. [Appellant] said
     that the car with the two individuals skidded in the parking lot
     and cornered his car in the parking lot. [Appellant] said that
     when he got out of his car, one of the individuals slapped him in
     the face.     [Appellant] said that after the slap, the other
     individual took out a pistol and ejected, but did not fire, a round
     from it. [Appellant] said that the individual then pistol-whipped
     him in the head. At the hospital, DeRemer and Fera did not
     notice any signs of injury on [Appellant].

     Between 3:00 A.M. and 4:00 A.M. on April 1, 2012, DeRemer
     and Fera went to the gravel parking lot where [Appellant] said
     he was assaulted. DeRemer and Fera looked for an ejected
     round but did not find one. Additionally, the officers did not find
     any marks that a skidding car would leave on gravel. DeRemer
     testified that the parking lot was fairly large, and DeRemer didn’t
     know how a car could have been cornered in the lot.

     At 8:55 P.M. on April 1, 2012, Fera interviewed the two
     individuals who [Appellant] said assaulted him.         The two
     individuals denied assaulting [Appellant] and told Fera that they
     were not in Jersey Shore during the time that [Appellant] said
     that he was assaulted. They provided a receipt that supported
     what they told Fera. Fera did not notice any injuries on the
     individual who [Appellant] said pistol-whipped him.



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     At 10:00 P.M. on April 1, 2012, DeRemer, Fera, and [Appellant]
     went to the gravel lot to look for an ejected round. [Appellant]
     showed DeRemer and Fera the area where the alleged assault
     took place. Again, no round was found. Again, no skid marks
     were found.

     On the afternoon of April 1, 2012, Havens interviewed
     [Appellant].   [Appellant] gave Havens an account of his
     whereabouts on March 31, 2012 and April 1, 2012. [Appellant]
     said that on those days, he was only in Jersey Shore and Lock
     Haven,    Pennsylvania. [Appellant] told Havens that he was
     assaulted by two individuals in a gravel parking lot. Havens did
     not notice any injuries on [Appellant]. Havens spoke with the
     two individuals that [Appellant] said assaulted him. As with
     DeRemer and Fera, the individuals said they were not in Jersey
     Shore during the time that [Appellant] said he was assaulted.

     On April 2, 2012, [Appellant] paid $1,275.00 in cash to a trailer
     park in order to rent a lot. Maggs testified that [Appellant]
     received about $700.00 per month in supplemental security
     income. Maggs testified that [Appellant] also bought gold and
     then sold it for a higher price. Maggs testified that she knew of
     [Appellant] buying gold only from the parents of his sister’s
     boyfriend. Maggs testified that before [Appellant] moved into the
     trailer park, he paid $400.00 per month to rent an apartment.
     Maggs testified that [Appellant] also paid an electric bill and
     bought cigarettes. Maggs testified that [Appellant] said he got
     the money to rent the lot by selling two old bicycles that were in
     his father’s basement. Maggs testified that [Appellant] said that
     he sold one of the bicycles for $600.00, but she thought $600.00
     was too much for the brand of bicycle that [Appellant] said he
     sold.
Trial Court Opinion (T.C.O.), 9/22/14, at 2-6 (citations to the record

omitted).

     After the jury trial, Appellant was found guilty and sentenced as stated

above.   He then filed a post-sentence motion that the trial court denied.

Subsequently he filed a notice of appeal and a concise statement of matters

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

     Appellant now presents the following issues for our review:

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      1. Whether the evidence was sufficient to meet the
         Commonwealth’s burden of proving that Appellant was the
         actor for each offense charged in the information beyond a
         reasonable doubt?

      2. Whether the verdict of guilty to each offense was against the
         weight of the evidence that Appellant was the actor?
Appellant’s Brief, at 6.

                      Sufficiency of the Identity Evidence

      Appellant claims that the evidence was not sufficient to prove that he

was the actor for each offense charged because Thomas Willits, the victim,

made inconsistent statements at trial, and because an alibi was offered. Our

review of sufficiency claims is governed by a well-established standard and

scope of review:

      A claim challenging the sufficiency of the evidence is a question
      of law. 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. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal

citations omitted).

      The trial court found that the evidence is sufficient to enable a

reasonable jury to find beyond a reasonable doubt that Appellant was the

actor. We agree.

      Appellant claims that, “[The victim’s] statements made at trial

regarding the identification of the actor create doubt that he knew who the



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actor was. In contrast, because of the doubt he expressed in five previous

statements, there is no reasonable inference to be drawn that established

that Appellant was the actor.” Appellant’s Brief, at 12. In order to render

insufficient the element of identity, the victim’s testimony and proffered alibi

would have had to so contradict the physical facts, viewed in the light most

favorable to the verdict winner, that they contravene human experience and

the laws of nature.     Here the evidence does not rise to that level of

contradiction, as discussed below.    Instead, Appellant’s claim goes to the

credibility of a witness rather than to the sufficiency of the evidence.

“Traditionally under our system of jurisprudence, issues of credibility are left

to the trier of fact for resolution.” Commonwealth v. Farquharson, 354

A.2d 545, 550 (Pa. 1976).

      The Commonwealth presented evidence to show that Appellant used

the victim’s bank card. Appellant had been at the victim’s home before the

card was used.     A surveillance video at a gas station showed a person

matching Appellant’s race and age, driving Appellant’s vehicle, use the bank

card to purchase gasoline. Appellant also paid $1,275.00 in cash to rent a

lot four days after a similar amount was withdrawn from the victim’s bank

account.

      The Commonwealth also presented evidence to show that Appellant

was in the vicinity of the victim when the assault took place.           Expert

testimony placed Appellant’s cell phone in the area of the victim’s residence

within fifteen minutes of the assault. The victim testified that, shortly after

the incidence, he recognized Appellant’s car when it started.       The victim

further testified that blood poured down his face after he was attacked and



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that the assailant wore a gray sweatshirt.      Other testimony provided that

Appellant was seen with a gray sweatshirt with blood on it nearly fifteen

minutes after the attack.

      Given that the credibility of the witnesses offering the aforementioned

evidence is left to the jury, we consider only whether the evidence offered

could have satisfied the element of identity without regard to the weight of

the   evidence.    When     viewed   in   the   light   most   favorable   to   the

Commonwealth, as verdict winner, sufficient evidence was presented to

show that Appellant was the person who used the bank card and assaulted

the victim.

                     Weight of the Identity Evidence

      Appellant also claims that the verdict of guilty was against the

evidence again because the victim made inconsistent statements at trial and

due to a lack of police investigation and physical evidence.        We review a

weight of the evidence claim according to the following standard:

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court’s discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the [jury] is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the [jury’s] verdict is so contrary to the evidence that it shocks
      one’s sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion.




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Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (internal

citation omitted).

      The trial court determined that with the testimony offered, the jury’s

verdict is not so contrary to the evidence that it shocks one’s sense of

justice. T.C.O., at 9-11. We agree.

      Although evidence was presented that other people knew about the

victim’s bank card, and that Appellant had recently sold two old bicycles

from his father’s basement to account for how he acquired enough money to

rent the lot, there was also evidence to support the conclusion that he was

the person who used the victim’s bank card.         Appellant’s vehicle was

identified through surveillance video when the victim’s card was used.    In

addition, he rented a lot for $1,275.00 four days after a similar amount was

withdrawn from the victim’s bank account.

      Similarly, evidence was presented that the victim did not see his

assailant’s face, did not know the sex of the assailant, and did not know the

color of the assailant’s skin; however, there was other evidence to support

the conclusion that Appellant was the person who assaulted the victim. As

noted above, Appellant was seen with a gray sweatshirt with blood on it

minutes after the attack and his car was heard by the victim.       Further,

Appellant’s alibi was rebutted by several pieces of evidence.         Expert

testimony placed his cell phone near the victim’s home and moving in the

direction of the location where Appellant was seen later that night. Police

investigation of the alibi revealed that there were no skid marks as was

expected to be found, no ejected round as described, and the alleged

assailants were able to provide their own alibi.



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      We find no error in the trial court’s determination that the jury’s

credibility assessments on these matters did not shock the conscience of the

trial court.   There were no facts in this case contradicting the verdict that

were of such undeniably great weight that the trial court could rationally

conclude that justice had been obviously denied by Appellant’s conviction.

Accordingly, we conclude the trial court did not abuse its discretion when it

found that the verdict was not contrary to the weight of the evidence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2015




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