J-S22032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CHARLES KENNETH STEELE,

                            Appellant                   No. 1016 MDA 2016


              Appeal from the Judgment of Sentence May 24, 2016
              in the Court of Common Pleas of Cumberland County
                Criminal Division at No.: CP-21-CR-0002244-2015


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 16, 2017

        Appellant, Charles Kenneth Steele, appeals from the judgment of

sentence imposed following his jury conviction of burglary and related

charges.1 Appellant challenges the weight and sufficiency of the evidence.

We affirm on the basis of the trial court’s opinion.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. (See Trial Court Opinion, 8/11/16,

at 2-4). Therefore, we have no reason to restate them at length here.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  This was a second trial. In the previous trial, the jury could not reach a
unanimous verdict, and the trial court declared a mistrial. (See Order,
1/29/16).
J-S22032-17


         For the convenience of the reader, we note briefly that Appellant was

convicted of the theft of money from “Trades Cars and Trucks,” the used car

dealership where his long-time paramour and co-conspirator, Sue Ellen

Leonhard, worked. Ms. Leonhard had a key to the office and knew where

her employer kept cash between bank deposits.

         Ms. Leonhard claimed that even though she initially agreed to

cooperate in the burglary, and entered the premises (twice) with Appellant,

she had a change of heart and left.          Later, about five that morning,

Appellant called her by cell phone. He confirmed he had stolen the money,

and promised to meet Leonhard in a few days to divide the proceeds of the

theft.

         A few days later, her employer discovered the cash was missing.

Leonhard denied any knowledge, and tried to cover up the burglary by

replacing some of the missing cash with her own funds. Nevertheless, she

was fired.      She lied repeatedly to the police, until she finally agreed to

cooperate.       Even then her explanations of certain details were still

inconsistent.

         Leonhard admitted at trial that she had four previous crimen falsi

convictions. She conceded that she had lied repeatedly to police when they

began to investigate this theft.      She acknowledged that she hoped for

consideration from the District Attorney’s office for her cooperation, but

denied that she had been promised any specific benefit.


                                      -2-
J-S22032-17


        On March 23, 2016, the jury convicted Appellant of burglary,2 criminal

conspiracy (burglary),3 criminal trespass,4 and theft by unlawful taking.5

The court imposed an aggregate sentence of not less than nine months nor

more than twenty-three months’ incarceration.          The trial court denied

Appellant’s motion for a new trial, which challenged the weight of the

evidence. (See Order, 6/09/16). This timely appeal followed.6

        Appellant raises two issues for our review:

              I. Did the trial court abuse its discretion in denying
        Appellant’s motion for a new trial challenging the verdict as
        against the weight of the evidence as the co-defendant’s
        testimony at trial was not credible?

              II. Was the evidence insufficient to support guilty verdicts
        where the Commonwealth failed to prove beyond a reasonable
        doubt that Appellant entered Trades Cars and Trucks, conspired
        with another to enter Trades Cars and Trucks for the purpose of
        committing a theft, or unlawfully took any money from Trades
        Cars and Trucks?

(Appellant’s Brief, at 7) (unnecessary capitalization omitted).




____________________________________________


2
    18 Pa.C.S.A. § 3502(a)(4).
3
    18 Pa.C.S.A. § 903.
4
    18 Pa.C.S.A. § 3503.
5
    18 Pa.C.S.A. § 3921.
6
  Appellant filed a court-ordered statement of errors, on July 18, 2016. The
trial court filed a Rule 1925(a) opinion on August 11, 2016. See Pa.R.A.P.
1925.



                                           -3-
J-S22032-17


       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court we conclude

that there is no merit to the issues Appellant has raised on appeal. The trial

court opinion properly disposes of the questions presented. (See Trial Court

Opinion, 8/11/16, at 5-10) (concluding: (1) conviction was not against

weight of evidence where jury was informed of co-defendant’s past crimes

and inconsistent statements, but still found her to be credible; jury was free

to believe all, some or none of evidence; jury’s verdict did not shock

conscience     of   court;    and    (2)   viewed   in   light   most   favorable   to

Commonwealth as verdict winner, evidence presented to jury, including

testimony of co-conspirator Leonhard (and her husband) as corroborated by

cell telephone records placing Appellant in vicinity of business office around

time of theft, was sufficient to support guilty verdict).

       Accordingly, we affirm on the basis of the trial court’s opinion.7



____________________________________________


7
  Furthermore, we agree with the trial court that Appellant’s boilerplate
assertion of generic insufficiency was inadequate to identify which elements
of multiple charges were allegedly not proven. (See Trial Ct. Op., at 7).
Moreover, we add that Appellant’s claim that co-defendant Leonhard was
“wholly unbelievable” is not a challenge to sufficiency, but a variation on his
weight claim. (Appellant’s Brief, at 17). See Commonwealth v. Griffin,
65 A.3d 932, 939 (Pa. Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)
(claim defendant was wrongly identified as perpetrator of crimes based on
“unbelievable identification testimony” went to credibility and weight, not
sufficiency, of evidence).




                                           -4-
J-S22032-17


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017




                                 -5-
                                                                             Cl1C\llated 04120/2017 05:08 PU




COMMONWEALTH                                 : IN THE COURT OF COMMON PLEAS OF
                                             : CUMBERLAND COUNTY, PENNSYLVANIA

                                             : CP-21   -CR - 2244 -2015

        v.                                   : CHARGES: (1) BURGLARY
                                                        (2) CRIMINAL CONSPIRACY·
                                                            BURGLARY
                                                        (3) CRIMINAL TRESPASS
                                                        (4) THEFT BY UNLAWFUi,_
CHARLES KENNETH STEELE                                      TAKING      ,,    • '
                                                                                            .,


                    IN RE: OPINION PURSUANT TO PA. R.A.P. 1925(al
                                                                                        !-·       ..,,....
                                                                                                    -
                                                                                        ,...,     :::.,'
                                                                                            .:,
                                                                                        .-·
Ebert, J., August 11, 2016 -
                                                                               .        '
                                                                                        ·-.)
                                                                                            -·'
       In this post-trial appeal, Appellant challenges his conviction on the charges of

burglary, criminal conspiracy·    burglary, criminal trespass and theft by unlawful taking.

Trial was held on March 21-23, 2016, and the jury's verdict of guilty on all counts was

entered on March 23, 2016. This Opinion is written pursuant to Pa. R.A.P. 1925(a).

Appellant's bases for appeal are as follows:

       1.    The trial court abused its discretion in denying Appellant's Motion for a New
             Trial challenging the verdict as against the weight of the evidence as the co-
             defendant's testimony at trial was not credible.

      2. The evidence was insufficient to support guilty verdicts for the above
         captioned charges as the Commonwealth failed to prove beyond a
         reasonable doubt that Appellant entered Trades Cars and Trucks, conspired
         with another to enter Trades Cars and Trucks for the purpose of committing a
         theft, or unlawfully took any money from Trades Cars and Trucks.




                                               1
                                               Statement of Facts

            Co-Defendant, Sue Ellen Leonhard, testified at trial that she was engaged in a

     long-term, extramarital affair with Appellant.1 Co-Defendant testified that, following their

     rendezvous on the evening of June 06, 2015, Appellant proposed that they enter co-

     Defendant's place of employment, Trades Cars and Trucks.2 The purpose of entering

    the business was to steal approximately $10,000,3 which represented the business's

    cash transactions during the preceding two weeks.4 Co-Defendant testified that she

    knew where the money was kept on-premises,5 and had access to the keys to the

    building.6 Co-Defendant further testified that she was reluctant to steal from her

    employer and risk losing her job.7

            Appellant and co-Defendant waited until approximately 1 :00 A.M. on June 07,

                                                                                                            8
    2015, before driving to Trades Cars and Trucks and parking a short distance away.

After arriving at the dealership, Appellant and co-Defendant noticed that a nearby bar

was still open, and that an individual that was standing in front of the bar had a clear line

of sight to Trades Cars and Trucks. 9 Appellant and co-Defendant feigned interest in the

vehicles displayed on the lot, then decided to leave after noting that there was too much

activity in the area to successfully break into the car dealership."? At approximately 3:00




1
  Notes of Testimony, In Re: Jury Trial, 67-68, March 22, 2016 (Hereinafter, N.T. _   of March_,   2016).
2
  N.T. 63 of March 22, 2016.
3
  N.T. 82 of March 22, 2016.
4
  N.T. 52 of March 22, 2016.
5
  N.T. 89 of March 22, 2016.
6
  N .T. 88 of March 22, 2016.
7
  N.T. 90-91 of March 22, 2016.
8
  N.T. 83-84 of March 22, 2016.
9
  N.T. 84-86 of March 22, 2016.
10   l!i.


                                                          2
      A.M., Appellant and co-Defendant returned to the car dealership and were successful in

      entering the premises through use of a key kept hidden in the mailbox. 11

                  After entering the business. co-Defendant testified that she developed cold feet

      and refused to be complicit in the theft. 12 Appellant brought co-Defendant back to her

      vehicle at approximately 3:45 A.M., and promised that he would complete the theft on

      his own." At approximately 5:00 A.M., co-Defendant received a call from Appellant,

      infonming her that the theft was successful and that Appellant would meet her in a few

     days to divide the proceeds of the theft."           Cellular telephone records provided by T-

     Mobile indicated Appellant's presence within the cellular coverage zone providing

     service to Trades Cars and Trucks at the approximate time of the second break-in.••

                  On June 08, 2015, co-Defendant arrived al work to discover that the office was

     ransacked.16 the exterior door unlocked and the key that had been hidden in the

     mailbox was missing."           Co-Defendant     attempted to cover up the crime to the best of her
                   11
     abilities.         That included replacing approximately $6,000 of the stolen funds using her

 personal money" and replacing the missing key on June 09, 2015.20 The theft was

 detected on June 10, 2015, and suspicion quickly fell on co-Defendant.21                    who was

                                        22
 promptly fired from her job.                Prior to her scheduled interview with the New Cumberland



 u N. T. 88 of March '2, 2016.
 "~       Note 7, .Bl.Ra·
u N.T. 91 of Match 22, 2016.
u N.T. 93 of March 22., 2016 (lndtQting lhal the phone caN WI$ plaud at approxlmat~ly S:07 A.M, on Sunday, lune
07, 20151.
u ill. Nolt 38, infri.
1•
   N.T. 95-96 of March 22, 2016.
11
      N.T. 95, lOOofMarch 22, 2016,
14
     N.T. 96 of Match 22, 2016.
>, Id,
» N.T. 10(>-101 of March 22, 2016.
21
  N.T. 102 of March 22, 2016; }CC also N.T. 40of M.irch 21. 2016.


                                                          3
_ Police Department on June 12, 2015, Appellant called co-Defendant and asked her to

     accept sole responsibility for the crime.23 Co-Defendant refused, and named Appellant

     to the police investigators. The police contacted Appellant, who had returned to Texas,

     and informed him that a warrant had been issued for his arrest and that the police

     wished to speak with. him in connection to the break-in.24 Appellant returned to

     Pennsylvania and was interviewed regarding the break-in and any knowledge he

     possessed of same. 25

             The matter proceeded to trial, where Appellant was found guilty on all charges

     and sentenced to a term of incarceration of not less than nine months or more than

     twenty three months.26 Appellant timely filed a post-trial motion, seeking a new trial on

     the grounds that the weight of the evidence was insufficient to support conviction,27

 which was denied by Order of Court dated June 08, 2016.28 On June 22, 2016,

 Appellant filed his notice of appeal, and on that same day Appellant was ordered by this

 Court to file his Concise Statement no later than July 13, 2016. On July 18, 2016,

 Appellant served this Court with his concise statement of errors pursuant to Pa. R.A.P.

 1925(b), prompting this Opinion pursuant to Pa. R.A.P. 1925(a).




22
      N.T. 104 of March 22, 2016.

23
      N.T. 105 of March 22, 2016.

24
      N.T. 166 of March 22, 2016.

25
     N.T. 167 of March 22, 2016.

26
     See Order of Court In Re: Sentence, filed May 24, 2016.

27
     See Post-Sentence Motions, filed June 02, 2016.
28
     See Order of Court In Re: Motion for New Trial, filed June 08, 2016.

                                                             4
                                         Discussion

        Appellant raises two errors on appeal, arguing that this Court improperly denied

 his post-trial motion for a new trial and that Appellant was improperly found guilty of the

 charges against him. These challenges invoke the weight of the evidence and the

 sufficiency of the evidence, respectively. For the following reasons, this Court properly

 denied Appellant's post-trial motion for a new trial, and properly accepted the findings of

 the jury that Appellant was guilty on all charges.

        i.     Weight of the evidence

        To begin, as stated by the Superior Court in Com. v. Galindes, 2001 PA Super

315, 786 A.2d 1004, 1013 (Pa. Super. 2001), when reviewing the weight of the

evidence:

               [A] true weight of the evidence challenge 'concedes that
               sufficient evidence exists to sustain the verdict' but questions
               which evidence is to be believed.

Com. v. Galindes, supra, citing to Armbruster v. Horowitz, 1999 PA Super 333, 744

A.2d 285, 286 (Pa. Super. 1999). The Galindes Court further stated:

               An appellate court may review the trial court's decision to
               determine whether there was an abuse of discretion, but it
               may not substitute its judgment for that of the lower court.
               Indeed, an appellate court should not entertain challenges to
               the weight of the evidence since our examination is confined
               to the "cold record." Com. v. Murray, 408 Pa. Super. 435,
               597 A.2d 111, 113 (Pa. Super. 1991 ). Our Court may not
               reverse a verdict unless it is so contrary to the evidence as
              to shock one's sense of justice. Id. "Finally, the trier 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." Com. v. Valette, 531 Pa. 384, 613
              A.2d 548, 549 (Pa. 1992). Our review, therefore, is confined
              to whether the trial court abused its discretion.

Com. v. Galindes, supra (emphasis original).


                                             5
           "It is the province of the jury to assess the credibility of witnesses, and a trial

 judge will not grant a new trial merely because of a conflict in the testimony or because

 he would have reached a different conclusion on the same facts. if he had been the trier

 of fact." Corn v, VanDiviner. 599 Pa. 617, 630, 962 A.2d 1170 (Pa. 2009) (internal

 citations omitted). Here, Appellant contends that this Court erred by abusing its

 discretion in the denial of Appellant's motion for a new trial, as the verdict was against

 the weight of the evidence due to the purported incredibilijy of co-Defendant's        testimony

 at trial. The facttinder, a duly-empaneled jury, had the opportunity to observe co-

 Defendant as she testified and was free lo believe all, some or none of her testimony

against Appellant. Clearly, the factfinder found co-Defendant sufficiently credible to

support finding Appellant guilty of all of the charges against him. This Court did not find

the jury's conclusions regarding Appellant's guilt and the credibility or oo-Defendanl to

be shocking to its sense of justice, and properly denied Appellant's motion for a new

trial. As such, this Court's decision to deny Appellant's post-trial motion for a new trial

should property be affirmed on appeal.

         ii.    The sufficiency    of the evidence

         In the alternative, Appellant contends that there was insufficient evidence to

sustain guilty verdicts against him for the charges of burglary, criminal conspiracy -

burglary, criminal trespass and theft by unlawful taking. As stated by the Supreme

Court:

               The test for sufficiency of the evidence is whether accepting
               as true all of the evidence reviewed in the light most
               favorable to the Commonwealth, together with all reasonable
               inferences therefrom, the trier or fact could have found that
               each element of the offenses charged was supported by



                                                6
                       evidence and inferences sufficient in law to prove guilt
                       beyond a reasonable doubt.

     J:;gmmonwealth        v.   Lovette. 450 A.2d 975, 977 (Pa. 1982).

              Here. based on Appellant's concise statement of errors, it appears that he

     concedes that all of the elements of the crimes were proven beyond a reasonable doubt

     except for the identity of the perpetrator. Appellant's concise statement was examined in

     light of Com. v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015), wherein the Superior

     Court noted that the use of a boilerplate declaration that the evidence was insufficient to

     support a conviction did not sufficiently identify the elements of the crime an appellant

     contended were insufficiently proven. ]Q. Here, it appears that Appellant specified that

     the Commonwealth failed to prove that he was the perpetrator of the crimes in question.

 In other words, Appellant appears to concede that the crimes occurred in the location

 and on the dale and time alleged, but challenges the jury's conclusion that he

 committed them.

             Co-Defendant testified that Appellant transported her to Trad es Cars and Trucks

 two times between 1:00 AM. and approximately 3:00 A.M. on June 07, 2015, with the

 intention of using co-Defendant's key and knowledge of the business to unlawfully enter

the business office and steal money located on-site. 29 Co-Defendant testified that, but

for her insislence that the money not be taken, Appellant would have unlawfully

removed the funds in question from the premises at approximately 3:00 A.M. Co-

Defendant further testified that Appellant called her at approximately 5:00 A.M . .'0 and


29
     Whlle co-Oefendant testHied lhat shtt did not use her key to access the bustness, she furthe• testified that the
rt'a~ns for tht$ were that she did not want App.el!at'lt to know SM h;:d her key, and because she kne\\' a sp&re kev
was kept in the business m.-ilbox. N,T. 88, l1S-!l6of March 22, 20:!6.

'° co-Defendant    tcstif"~d that the call was approxlmatetyone mlnut~ long. N.T. 93 of M;irdi 22, 2016.

                                                            7
  briefly informed her that he returned lo Trades Cars and Trucks and completed the theft

 without the further assistance of co-Defendant. James Layton, Sr., owner of Trades

 Cars and Trucks, {hereinafter. "Victim") testified that Appellant had no authorization to

 be on the premises whatsoever"              and that co-Defendant did not have authorization to

 be on the premises during the time frame in question.32 The business was usually

 closed from 3:00 P.M. on Saturdays until 10:00 A.M. on the following Monday.33 Victim

 further test~ied that only he, his son and co-Defendant had keys to the building.3' and

 that his son did not handle any money whatsoever on behalF of the business. 35

            Pursuant to Lovette, supra, that testimony must be considered in the light most

 favorable to the Commonwealth, along with all reasonable inferences therefrom. That

 testimony showed that Appellant and co-Defendant did not have authorization                            to be on
 the premises, that Appellant was on the premises for the purpose of unlawfully entering

 the business offioe, and that the objective or unlawfully entering the business office was

 to steal money located in the business's cash drawer. The testimony further showed

that Appellant and co-Defendant did unlawfully enter the business office together to

steal the money in question, but were initially thwarted by co-Defendant's change of

heart Again, in the light most favorable to the Commonwealth. the testimony showed




u N.T. 32·33 of March 21, 2016 (stating that no Ont'! is authorized to be on the premises ovtsSde of normal business
hours without his express permission, and that co-Defendant did not have authorization to bring anyone onto the
premises after besmess hours).



11
     N,T. 20 of March 2L, 2016.

,.. N,T, 21 or M;,1(h 21, 2015.

u N.T. 38 of March 21, 2016.


                                                         8
     that Appellant returned to the business at approximately 5:00 A.M. without co-

     Defendant, and successfully completed the theft. Appellant later told co-Defendant that

     he wanted her to take sole responsibility for the crime in order to protect his career and

     family life.36

             In addition to the above testimony, the Commonwealth presented Appellant's

     cellular telephone records. The records included locational metadata, providing the

     approximate location of the caller and call recipient within a roughly two and a half mile

     radius from the relevant cellular tower.37 The phone records indicated that Appellant-

     placed an approximately·one minute long call to co-Defendant around 5:00 A.M. on the

 day of the break-in, from a location within the cellular tower coverage range of Victim's

 place of business.38

             In short, co-Defendant testified regarding Appellant's direction of and

 involvement in the break-in. The cellular metadata demonstrated a corroborating phone

 call by Appellant to co-Defendant at approximately 5:00 A.M. on the morning of the

 break-in, placed by Appellant from the vicinity of Victim's business. T-Mobile's business

 records demonstrated that Appellant and co-Defendant communicated by voice and text

 message numerous times between June 06, 2015, the evening before the break-in, and

June 12, 2015, the day co-Defendant participated in a police interview concerning the




36
     See Note 23, supra.

37
     N .T. 146 of March 22, 2016.

38
  The cellular tower in question was located approximately two blocks from Victim's place of business. Appellant
placed the 5:00 A.M. phone call from within the two and a half mile radius of that specific tower. N.T. 168-169 of
March 22, 2016.

                                                         9
     theft,39 following which all communications between the two ceased.'? It would be

     reasonable for the jury to infer Appellant's involvement in the crimes, reviewing that

     information in the light most favorable to the Commonwealth. For the foregoing reasons,

     the guilty verdicts reached by the jury were sufficiently supported by the evidence

     submitted at trial, and the guilty verdicts should properly be sustained on appeal.

                                                 Conclusion

             There was sufficient evidence produced at trial to prove beyond a reasonable

     doubt that Appellant entered into a criminal conspiracy with co-Defendant to break into

     Trades Cars and Trucks, for the purpose of_stealing· approximately $10,000 in cash kept

     in a locked cash drawer on the premises. The evidence showed that co-Defendant and

 Appellant first entered the premises at approximately 3:00 AM. on June 07, 2015, after

 an aborted attempt at 1 :00 AM., which was thwarted by the presence of nearby

 potential witnesses. Appellant and co-Defendant removed the cash from the locked

 cash drawer at that time, but returned it upon co-Defendant's insistence. Following the

 3:00 AM. attempted theft, co-Defendant returned to her house while Appellant returned

 to the business and successfully removed the $10,000. The Commonwealth submitted

 sufficient evidence at trial to prove Appellant's participation in the theft, including

telephone records placing Appellant in the vicinity of the business at the time of the theft

and the testimony of co-Defendant implicating Appellant. The jury properly weighed the

credibility of co-Defendant in assessing her testimony against Appellant. Thus, the guilty

verdicts returned by the jury were properly supported by the available evidence

39
  N.T. 174 of March 22, 2016 (wherein co-Defendant's phone records indicated six consecutive calls or text
messages between Appellant and co-Defendant on June 06, 2015, followed by the 5:07 A.M. call on the morning of
June 07, 2015).

40
     N.T. 108-109 of March 22, 2016.

                                                     10
 submitted at trial, which the jury carefully weighed and considered, and therefore should

 properly be affomed on appeal.

                                                        By the Court,




                                                       M. L. Ebert, Jr.,           J.

Matthew P. Smith, Esquire
District Attorney's Office

Joshua M. Yohe, Esquire
Assistant Public Defender
Attorney for Defendant




                             AVG J 2 2016




                                         11
