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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                     v.                  :
                                         :
WARREN JONES,                            :         No. 1009 WDA 2013
                                         :
                          Appellant      :


            Appeal from the Judgment of Sentence, January 16, 2013,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0008379-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JANUARY 29, 2015

     Following a bench trial, appellant was convicted of one count each of

burglary, theft by unlawful taking, receiving stolen property, and criminal

mischief.    Herein, he appeals from the judgment of sentence entered on

January 16, 2013, in the Court of Common Pleas of Allegheny County.

     The evidence at trial reveals the following.       On April 21, 2012,

Syad Abad, the owner of a convenience store located in McKeesport,

discovered that his business had been burglarized. The burglary had been

recorded on the store’s surveillance camera.     The tape was played during

trial, and the video depicted appellant at three different angles. (Notes of

testimony, 1/16/13 at 13-14.)

     At trial, Abad identified appellant as the person who was on the

surveillance tape footage.      (Id. at 10.)   Abad stated appellant had no
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permission to enter or take items from the store. Abad testified that both

glass and the lock on the side of the building had been broken in order to

enter and the cost of repair was $2,300. (Id. at 8-10.) The value of the

stolen items totaled approximately $7,500.           (Id.)   On cross-examination,

Abad acknowledged that he originally had agreed with one of his female

employees that a man named Carl Johnson was depicted on the video

footage; it was later learned, however, that Johnson was incarcerated at the

time of the instant burglary. (Id. at 11-12, 18.)

      Detective Schelley Gould investigated the matter and testified that he

had known appellant for over a decade, as they lived in the same

community. (Id. at 17.) The officer identified appellant in the courtroom

and   also   identified   him   as   the    person   depicted   on   the   videotape.

Officer Gould reviewed the surveillance video numerous times, and “[a]fter

watching several angles . . . it was clear to [him] that it was [appellant] that

actually did the burglary.”     (Id. at 17-18.)      At the time of the burglary,

appellant lived a block and a half from the convenience store. (Id. at 18.)

None of the items taken were ever recovered. (Id. at 20.) When asked if

he had seen appellant walking, the detective stated he had seen appellant

when appellant was at work, by the playground, in stores, and within the

community. (Id. at 19.)

      Appellant was charged with one count each of burglary, theft by

unlawful taking, receiving stolen property, and criminal mischief. Following



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a non-jury trial before the Honorable Joseph K. Williams, III, appellant was

convicted of all charges.   The court imposed a term of two to four years’

imprisonment at the burglary count followed by ten years of probation; no

further penalty was imposed for the remaining convictions.           A timely

post-sentence motion was filed challenging the weight and sufficiency of the

evidence.   By order dated May 20, 2013, the court denied these motions.

This appeal followed; appellant complied with the trial court’s order to file a

concise statement of errors complained of on appeal within 21 days pursuant

to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an

opinion.

      The following issues have been presented for our review:

            I.     DID   THE   TRIAL  COURT    ABUSE    ITS
                   DISCRETION     IN   DENYING     DEFENSE
                   COUNSEL’S MOTION IN LIMINE TO EXCLUDE
                   POLICE OFFICER SCHELLEY GOULD’S OPINION
                   THAT   [APPELLANT]  WAS   THE    PERSON
                   PICTURED IN [THE] STORE SURVEILLANCE
                   VIDEO WHERE THE VIDEO WAS PLAYED FOR
                   THE COURT, THE OFFICER’S OPINION WAS
                   NOT RATIONALLY BASED ON HIS PERCEPTION,
                   AND HIS OPINION WAS NOT HELPFUL TO THE
                   FACT-FINDER?

            II.    WAS THE EVIDENCE PRESENTED AT TRIAL
                   INSUFFICIENT TO ESTABLISH BEYOND A
                   REASONABLE DOUBT, THAT [APPELLANT] WAS
                   THE   PERSON   WHO    COMMITTED    THE
                   BURGLARY?

            III.   DID   THE   TRIAL   COURT   ABUSE    ITS
                   DISCRETION IN DENYING [APPELLANT’S] POST
                   SENTENCE MOTION THAT THE VERDICT WAS
                   AGAINST THE WEIGHT OF THE EVIDENCE


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                  WHERE THE TRIAL COURT RELIED ON FACTS
                  NOT IN EVIDENCE TO SUPPORT ITS GUILTY
                  VERDICT AND RENDERED A DECISION SOLELY
                  ON THE BASIS OF ONE WITNESS’S GENERAL
                  AND UNSUPPORTED OPINION?

            IV.   IS THE SENTENCE IMPOSED BY THE TRIAL
                  COURT AT COUNT ONE ILLEGAL BECAUSE IT
                  EXCEEDS THE STATUTORY MAXIMUM?

Appellant’s brief at 7-8.

      Appellant first argues that the trial court abused its discretion in

permitting Officer Gould to testify to his belief that the person appearing in

the surveillance video was appellant. Appellant contends the “admission of

such lay person opinion testimony violated [Pa.R.E.] 701, considering the

video was played for the Court, the Officer’s opinion was not rationally based

on his perception of the incident, and his opinion was not helpful to the

fact-finder.” (Appellant’s brief at 17 (footnote omitted).) However, as the

trial court and the Commonwealth aver, this issue is waived.

      We have reviewed the record, and the objection posed by appellant

regarding the officer’s testimony was not offered on the basis of violating

Pa.R.E. 701; rather, trial counsel objected to Officer Gould’s testimony on

the grounds of relevance and the best evidence rule.       This court has long

held that “to preserve for appellate review an objection relating to the

opening or closing address of opposing counsel, that objection must be

specific and be brought to the trial judge's attention as soon as is practical.”

Commonwealth v. Baker, 418 A.2d 693, 694 (Pa.Super. 1980).                Here,



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appellant did not lodge an objection for a violation of Rule 701 at trial and is

raising this basis for objection for the first time on appeal.      Thus, it is

waived. Pa.R.A.P. 302(a).

      Next, appellant avers that the evidence presented was insufficient to

support the conviction of burglary. Rather than contesting the sufficiency of

the evidence in regard to the specific elements of the crimes for which he

was convicted, appellant argues that the evidence presented at trial was

insufficient to establish his identity as the person who committed the crimes.

Appellant contends that the officer’s testimony identifying him on the

surveillance video is insufficient in and of itself to sustain the convictions.

Appellant essentially argues that as the officer was not an eyewitness to the

crimes, his identification of appellant was insufficient.

      This court’s standard of review when considering a challenge to the

sufficiency of the evidence requires us to look at the evidence in a light most

favorable to the verdict winner and determine whether the evidence

presented, actual and/or circumstantial, was sufficient to enable a fact-finder

to find every element of the crime charged, beyond a reasonable doubt.

Commonwealth v. O’Brien, 939 A.2d 912 (Pa.Super. 2007).

            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
            the 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


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              probability of fact may be drawn from the combined
              circumstances.

Id. at 913-914, quoting Commonwealth v. DiStefano, 782 A.2d 574, 582

(Pa.Super. 2001), appeal denied, 806 A.2d 858 (Pa. 2002) (citations and

quotations omitted). The finder-of-fact is free to believe all, some, or none

of the evidence presented and is free to determine the credibility of the

witnesses. Commonwealth v. Dailey, 828 A.2d 356, 358-359 (Pa.Super.

2003).

      In support of this position, appellant compares the identification made

in his situation to that found insufficient in Commonwealth v. Crews, 260

A.2d 771 (Pa. 1970), where the defendant and a cohort had been convicted

of robbing a cab driver. In Crews, a witness’ identification of the defendant

was based on her general description of a tall, light-complexioned black

male wearing a gold-colored sweater.        A gold sweater was found in the

defendant’s home, but the witness could not identify it as the same sweater.

Additional evidence placed the defendant and the co-defendant at a bar not

far from the location of the crime, and other witnesses testified to the

defendant’s similar height and clothing.

      In finding the identification testimony insufficient and granting the

motion   in    arrest   of   judgment,   the   court   held   that   where   the

Commonwealth’s sole identification evidence is based on similar height,

coloring, and clothing, the evidence is not enough to convict a defendant as

the perpetrator of a crime.     The court explained that it forced the jury to


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guess whether the defendant was the perpetrator, and “[o]ur system recoils

at sending a man to prison for the rest of his life on a guess.” Crews, 260

A.2d at 772.

      We find Crews to be inapposite.             Viewing the evidence in the light

most favorable to the Commonwealth as the verdict winner, the certified

record reveals that the officer testified that the video surveillance depicted

appellant in the store. Unlike Crews, Officer Gould had known appellant for

approximately ten years.        We find the evidence sufficient to support

appellant’s burglary conviction.        Officer Gould testified that based on his

perceptions, specifically, his familiarity with appellant in the neighborhood,

he unequivocally identified appellant on the surveillance tape.          The officer

explained that he reviewed the videotape multiple times and that it depicted

the individual on tape from several angles.          The trial court, as fact-finder,

also had the opportunity to view the footage and credited the officer’s

identification. It is the function of the trial judge sitting, without a jury, to

determine issues of credibility. Based on the judge’s findings, it is settled

that a positive identification by one witness is sufficient for conviction. See

Commonwealth v. Wilder, 393 A.2d 927, 928 (Pa.Super. 1978) (stating a

positive identification by one witness, a police officer, is sufficient for

conviction).

      Appellant also argues that the officer failed to provide any basis for his

identification   such   as   “height,     walk,    clothing,   mannerisms,    build”.



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(Appellant’s brief at 27.) Defense counsel, however, had an opportunity to

question the officer on these points during cross-examination and did not.

We likewise reject appellant’s assertion that the verdict was infirm because

no physical evidence linked him to the crimes; contrary to appellant’s belief,

the fact that no forensic evidence, such as fingerprints or blood, linked him

to the scene was simply a fact for the fact-finder to consider in assessing

credibility.   Commonwealth v. King, 959 A.2d 405, 410-11 (Pa.Super.

2008) (rejecting defendant’s “assertion that the verdict was infirm because

no physical evidence linked him to the crimes” since two eyewitnesses’

identification testimony, which the jury was permitted to accept, was

sufficient to support his conviction).

      We also find that most of appellant’s challenges to Officer Gould’s

identification relate to the weight of the evidence, not to its sufficiency. See

Commonwealth v. Galloway, 434 A.2d 1220, 1222 (Pa. 1981) (stating

that variances in testimony go to the credibility of the witnesses and not the

sufficiency of the evidence); Commonwealth v. Halye, 719 A.2d 763, 764

(Pa.Super. 1998) (en banc), appeal denied, 743 A.2d 916 (Pa. 1999),

cert. denied sub nom. Pennsylvania v. Halye, 529 U.S. 1012 (2000)

(mere conflict in the testimony does not render the evidence insufficient

because it is within the province of the fact-finder to determine the weight to

be given to the testimony and to believe all, part, or none of the evidence).

Therefore, viewing the evidence in the light most favorable to the verdict



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winner, we find that the Commonwealth presented sufficient evidence to

identify appellant as the perpetrator of the burglary.

      The third issue presented is whether the trial court abused its

discretion in denying his post-sentence motion challenging the weight of the

evidence.

            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. Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the
            evidence. One 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.

            This does not mean that the exercise of discretion by
            the trial court in granting or denying a motion for a
            new trial based on a challenge to the weight of the
            evidence is unfettered. In describing the limits of a
            trial court’s discretion, we have explained[,] [t]he
            term ‘discretion’ imports the exercise of judgment,
            wisdom and skill so as to reach a dispassionate
            conclusion within the framework of the law, and is
            not exercised for the purpose of giving effect to the
            will of the judge. Discretion must be exercised on
            the foundation of reason, as opposed to prejudice,
            personal motivations, caprice or arbitrary actions.
            Discretion is abused where the course pursued
            represents not merely an error of judgment, but
            where the judgment is manifestly unreasonable or
            where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias or ill-will.



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Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis

omitted) (citations omitted).

          In support of his argument, appellant maintains that the trial court

improperly justified the verdict based on facts not presented at trial and

reiterates his sufficiency argument concerning Officer Gould’s identification.

(Appellant’s brief at 29.) Appellant’s argument fails to provide a basis for

relief.

          We disagree with this characterization of the court’s comments upon

reaching a verdict.      We agree that Officer Gould did not testify that the

“movement, rhythm or beat” of the individual in the video were similar to

appellant. However, the court credited the officer’s identification based on

the officer’s familiarity with appellant as he has known appellant for over a

decade and has observed appellant in various circumstances.          Clearly, the

trial court found Officer Gould’s testimony to be credible and convincing. It

was within the exclusive province of the trial court as fact-finder to resolve

conflicts in the testimony and to believe all, part, or none of the evidence.

The trial court did not abuse its discretion in denying appellant’s motion for a

new trial based on the weight of the evidence.

          The final issue challenges the legality of sentence.   Appellant argues

the trial court imposed an illegal sentence for his burglary conviction as it

exceeded the maximum, for a second degree felony.           The Commonwealth




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and the trial court concede that appellant’s argument is correct and we

concur.

      “The issue of whether a sentence is illegal is a question of law and our

scope of review is plenary.” Commonwealth v. Crump, 995 A.2d 280, 283

(Pa.Super. 2010).    The Pennsylvania Supreme Court has stated than an

illegal sentence is one that exceeds the statutory maximum.               See

Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003).              When a

defendant receives a split sentence, the cumulative amount of incarceration

and probation may not exceed the statutory maximum.         See 42 Pa.C.S.A.

§ 9754.

      Appellant was convicted of burglary under Section 3502(a)(4), which is

a felony in the second degree. It is undisputed that the statutory maximum

for a second degree felony is not more than ten years.           18 Pa.C.S.A.

§ 3502(c)(2)(i).    Thus, the trial court’s two to four-year sentence of

incarceration to be followed by a ten-year probationary period exceeded the

statutory maximum.

      In instances where sentences require correction, we may either

remand for resentencing or amend the sentence directly. Commonwealth

v. Klein, 795 A.2d 424, 430 (Pa.Super. 2002) (citation omitted). See also

Commonwealth v. Eberts, 422 A.2d 1154, 1156 (Pa.Super. 1980);

Commonwealth v. Dobbs, 682 A.2d 388, 392 (Pa.Super. 1996) (while

court has option of amending illegal sentence directly or remanding it to trial



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court for re-sentencing, “[i]f correction by this court may upset the

sentencing scheme envisioned by the trial court, the better practice is to

remand.”).   The trial court suggests we vacate the probationary sentence

and make a “mere change to the length of probation from 10 to 6 years.”

(Trial court opinion, 3/10/14 at 5.)       Although this court is reluctant to

interfere with the discretion normally afforded a sentencing court, the record

clearly reflects what the sentence would have been absent error, thereby

rendering remand unnecessary. We amend the sentence of the trial court

and order appellant to be incarcerated for a period of two to four years

following by six years of probation.

      Conviction is affirmed. Sentence is amended to two to four years of

imprisonment followed by six years of probation.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/29/2015




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