J-S36014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TODD PATRICK GOODRICK

                            Appellant                 No. 1521 MDA 2015


             Appeal from the Judgment of Sentence April 29, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000686-2014


BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                                 FILED MAY 11, 2016

        Appellant, Todd Patrick Goodrick, appeals from the April 29, 2015

aggregate judgment of sentence of 23 months’ probation (as well as costs,

fines, and restitution), imposed by the trial court after it convicted Appellant

of theft by unlawful taking and defiant trespass.1 After careful review, we

affirm.

        The trial court recited the facts of record presented at Appellant’s

bench trial as follows.

                    On or about November 10, 2013, employees of
              Klick Lewis (herein the Victim), located at 720 East
              Main Street, Palmyra Borough, Lebanon County,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3921(a) and 3503(b), respectively.
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              Pennsylvania, noticed that the dumpster used for
              scrap metal had been partially emptied over
              weekends and some evenings. The dumpster is
              owned by [the Victim]. The dumpster contained
              scrap metal which the Victim collects from its
              business and sells to third parties by weight. There
              were “No Trespassing” signs on the dumpster on the
              dates in question. The signs were reflective so that
              they could be seen at night as well as during the
              day.

                     Specifically, Scott R[yan], an employee of the
              [V]ictim, testified that when he arrived at work on
              Monday morning, November 11, 2013, he noticed
              that the dumpster was not as full as it was on
              Saturday when he left the property at the close of
              business. The dumpster was approximately half to
              three quarters full on Saturday and was nearly
              empty on Monday morning. [Ryan] testified that the
              dumpster usually gets emptied about every two to
              three months. The worth of the contents varies each
              time the dumpster is emptied because the price is
              based on weight.

                    The police were notified and Officer Timothy
              Langle[2] (herein Offcr. Langle) of the Palmyra Police
              Department suggested that a camera of some sort
              be installed to monitor the dumpster. [Ryan] setup
              [sic] a “trail” camera up in the trees near the
              dumpster. The camera was motion activated, so
              that when a person or anything moved within a
              certain area near the camera, it would begin
              recording and stop when activity ceased for a period
              of time. The camera was set up to capture any
              movement around the dumpster. [Ryan] printed the
              photos from the camera and provided the SD card to
              police on December 16, 2013, after items had been
              removed from the dumpster.

____________________________________________


2
  The parties’ briefs and the notes of testimony from the March 10, 2015
bench trial spell this individual’s surname “Lengle.”



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                     The pictures showed a car pulling up to the
              dumpster. R[yan] testified that where the car pulled
              up, the “No Trespassing” sign would have been
              visible to someone inside the car. These pictures
              show a male wearing a ballcap climbing into the
              dumpster and removing items. Knowing that these
              thefts were occurring with some frequency, Offcr.
              Langle would go by the dumpster while he was on
              patrol at night to check as well.

                     Offcr. Langle was on patrol from midnight until
              eight a.m. on December 21, 2013. He pulled into
              the Wells Fargo [B]ank parking lot and noticed a
              vehicle parked near the dumpster at the Victim’s
              business. He turned on the alley light on his patrol
              vehicle, heard someone in the dumpster, and a
              person emerged from the dumpster. Offcr. Langle
              identified [Appellant] as the person who emerged
              from the dumpster that night. [Appellant] got out of
              the dumpster and told Offcr. Langle that he had not
              seen the “No Trespassing” signs. [Appellant] stated
              that he was dumpster diving and admitted to taking
              scrap from the dumpster on previous occasions,
              including December 16th.

Trial Court Opinion, 8/11/15, 2-4.

         Appellant was charged with the above offenses and proceeded to a

bench trial on March 10, 2015, after which the trial court rendered its guilty

verdicts. Appellant immediately moved for judgment of acquittal, asserting

that the criminal information listed November 10, 2013 as the date of the

theft.     N.T., 3/10/15, at 37.      Appellant specifically averred that the

Commonwealth “had no specific evidence to tie [Appellant] to the date

charged in the information.”      Id. at 38.    Despite stating that it “had a

problem     with   November    10th   because   nobody   tied   that   [theft]   to




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[Appellant],” the trial court denied Appellant’s request for judgment of

acquittal. Id. at 39.

       On April 29, 2015, the trial court sentenced Appellant to 23 months’

probation, as well as costs of prosecution, fines, and restitution. Appellant

filed a post-sentence motion on May 8, 2015, again raising his claim that the

verdict was against the weight of the evidence, as well as a sufficiency of the

evidence claim. The trial court convened a hearing on July 22, 2015, and

denied the post-sentence motion on August 11, 2015.          Appellant filed a

notice of appeal on September 1, 2015.3

       On appeal, Appellant presents two issues for our review.

          I.     Whether the [trial c]ourt’s verdict of guilty on the
                 Theft by Unlawful Taking was against the weight of
                 the evidence?

          II.    Whether the Commonwealth failed to present
                 sufficient evidence that [Appellant] committed the
                 theft of the scrap metal on November 10, 2013?

Appellant’s Brief at 4.

       In his first claim, Appellant argues that the trial court’s “verdict of

guilty was against the weight of the evidence.”4       Appellant’s Brief at 9.

Specifically, Appellant asserts that he was wrongfully convicted of theft
____________________________________________


3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
4
  As indicated in our recitation of the procedural history, Appellant has
complied with Pennsylvania Rule of Criminal Procedure 607 governing his
challenge to the weight of the evidence.



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because the criminal information “addresses a theft on November 10, 2013,”

the evidence presented at trial “was solely about the theft on December 16th

and December 21st,” and “the Commonwealth did not amend the information

to reflect the proper date.” Id.

      The Commonwealth counters that Appellant’s claim is without merit

because he “was provided with discovery which covered all the alleged

thefts. … [He] also asked questions referencing all dates” and “was clearly

aware that the Commonwealth would be presenting evidence of the

December thefts prior to trial and managed his trial strategy accordingly.”

Commonwealth’s Brief at 8.

      Preliminarily, we note that Appellant’s counsel did not object at trial

when the Commonwealth began introducing testimony regarding the

December thefts.    See, e.g., N.T., 3/10/15, at 20-21 (including, but not

limited to, Appellant’s counsel expressly stating “no objection” to the

Commonwealth’s introduction, through Mr. Ryan, of photographs taken

December 16, 2013 from the trail camera).

         It is well settled that “a defendant’s failure to object to
         allegedly improper testimony at the appropriate stage ...
         constitutes waiver.” [Commonwealth v.] Molina[, 33
         A.3d 51, []55 [(Pa. Super. 2011)], citing Commonwealth
         v. Redel, 484 A.2d 171, 175 (Pa. Super. 1984). … See
         also Commonwealth v. Baumhammers, 960 A.2d 59,
         73 (Pa. 2008) (“it is axiomatic that issues are preserved
         when objections are made timely to the error or offense”);
         Commonwealth v. Powell, 956 A.2d 406, 423 (Pa.
         2008) (absence of a contemporaneous objection below
         constituted a waiver of appellant’s claim respecting the
         prosecutor’s closing argument)[.]

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Commonwealth v. Adams, 39 A.3d 310, 319-20 (Pa. Super. 2012),

affirmed, 104 A.3d 511 (Pa. 2014).

      Instantly, although Appellant moved for judgment of acquittal on the

basis of the November 10, 2013 date in the criminal information, he did not

do so until after all of the testimony had concluded and the trial court

rendered its verdicts. As such, Appellant has arguably waived his challenge

on appeal to the litigation of the December thefts, for having failed to object

to that testimony at the proper stage. Adams, supra.

      Nonetheless, with regard to the merits, we note that when reviewing a

weight claim we are bound by the following.

                  The weight of the evidence is exclusively for
                  the finder of fact who is free to believe all,
                  part, or none of the evidence and to determine
                  the      credibility   of    the     witnesses.
                  Commonwealth v. Johnson, 668 A.2d 97,
                  101 (1995), cert. denied, 117 S.Ct. 90 (1996).
                  An appellate court cannot substitute its
                  judgment for that of the finder of fact.
                  Commonwealth v. Pronkoskie, 445 A.2d
                  1203, 1206 (1982).        Thus, we may only
                  reverse the lower court’s verdict if it is so
                  contrary to the evidence as to shock one’s
                  sense of justice.         Commonwealth v.
                  Hawkins, 701 A.2d 492, 500 (1997), cert.
                  denied, 118 S.Ct. 1535 (1998).

            Commonwealth v. Small, 741 A.2d 666, 672–73
            (1999). Moreover, where the trial court has ruled on
            the weight claim below, an appellate court’s role is
            not to consider the underlying question of whether
            the verdict is against the weight of the evidence.
            Rather, appellate review is limited to whether the
            trial court palpably abused its discretion in ruling on


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            the weight claim. Commonwealth v. Tharp, 830
            A.2d 519, 528 (Pa. 2003) (citations omitted).

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (parallel

citations omitted), cert. denied, 542 U.S. 939 (2004).

      Here, the trial court explained its rationale for rejecting Appellant’s

weight claim as follows.

                   [Appellant] was provided with discovery prior
            to trial which covered all three dates mentioned, not
            only the date of November 10, 2013.           Defense
            counsel asked questions regarding the December 16
            and 21, 2013 incidents, as well as the November 10,
            2013 incident.      While the date given in the
            information is November 10, 2013, [Appellant] was
            found in the dumpster by Officer Langle on
            December 21, 2013 and admitted to being the
            person shown on camera in the dumpster on
            December 16, 2013. The Commonwealth presented
            evidence that [Appellant] was the person who
            unlawfully removed scrap metal from the Victim’s
            dumpster on December 16 and 21 of 2013. The
            date, while not amended by the Commonwealth, is a
            formal defect in the information. It does not change
            the offense or any element of the offense charged.
            [Appellant] was aware that the Commonwealth
            would be presenting evidence regarding the
            December dates prior to trial. This [trial c]ourt finds
            that the verdict was not against the weight of the
            evidence presented because there was evidence
            presented as to the December dates.

Trial Court Opinion, 8/11/15, at 6.

      Our   review   of    the   certified   record confirms   that   the   criminal

information lists November 10, 2013 as the sole offense date.               Criminal

Information, 5/5/14, at 1. In addition, November 10, 2013 was listed as an

offense date on the criminal complaint. Criminal Complaint, 3/10/14, at 1.

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However, the criminal complaint also lists December 21, 2013 as a date

when Appellant “on 12/21/13 … did unlawfully take, or exercise unlawful

control over, moveable property, scrap metal ….”    Id. at 3. Furthermore,

the affidavit of probable cause signed by Officer Langle listed December 16,

2013 and December 21, 2013 as offense dates. Affidavit of Probable Cause,

3/11/14, at 1. The criminal complaint and affidavit of probable cause were

filed prior to the criminal information.   Consequently, as the trial court

indicated, Appellant was aware that the Commonwealth would be presenting

evidence regarding the two December dates prior to trial.

     Pennsylvania Rule of Criminal Procedure 560 provides as follows.

        Rule 560. Information: Filing, Contents, Function

        (A) After the defendant has been held for court following a
        preliminary hearing or an indictment, the attorney for the
        Commonwealth shall proceed by preparing an information
        and filing it with the court of common pleas.

        (B) The information shall be signed by the attorney for the
        Commonwealth and shall be valid and sufficient in law if it
        contains:

        (1) a caption showing that the prosecution is carried on in
        the name of and by the authority of the Commonwealth of
        Pennsylvania;

        (2) the name of the defendant, or if the defendant is
        unknown, a description of the defendant as nearly as may
        be;

        (3) the date when the offense is alleged to have been
        committed if the precise date is known, and the day
        of the week if it is an essential element of the
        offense charged, provided that if the precise date is
        not known or if the offense is a continuing one, an
        allegation that it was committed on or about any


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         date within the period fixed by the statute of
         limitations shall be sufficient;

         (4) the county where the offense is alleged to have been
         committed;

         (5) a plain and concise statement of the essential elements
         of the offense substantially the same as or cognate to the
         offense alleged in the complaint; and

         (6) a concluding statement that “all of which is against the
         Act of Assembly and the peace and dignity of the
         Commonwealth.”

         (C) The information shall contain the official or customary
         citation of the statute and section thereof, or other
         provision of law that the defendant is alleged therein to
         have violated; but the omission of or error in such citation
         shall not affect the validity or sufficiency of the
         information.

         (D) In all court cases tried on an information, the issues at
         trial shall be defined by such information.

         Comment: The attorney for the Commonwealth may
         electronically prepare, sign, and transmit the information
         for filing.

                                      …

         When there is an omission or error of the type referred to
         in paragraph (C), the information should be amended
         pursuant to Rule 564.

Pa.R.Crim.P. 560 (emphasis added).

      The text emphasized above in subsection (3), although not directly

applicable to the situation presented in this case, indicates that the

legislature contemplated continuing offenses and flexibility in an information.

In addition, the comment referencing amendment of an error in an

information permissively indicates that the information should be amended,

not that it must.

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      We agree with Appellant that “a review of cases dealing with

information amendments could find no case on point.” Appellant’s Brief at

10.   However, it is uncontroverted that “the purpose of a criminal

information is to notify the defendant of the charge he has to meet.”

Commonwealth v. McIntosh, 476 A.2d 1316, 1321 (Pa. Super. 1984),

citing Commonwealth v. Petrillo, 12 A.2d 317, 324 (Pa. 1940). “Although

the information is not to be read in an overly technical manner, we must

arrest judgment where an error in the information is one that could ‘mislead

the defendant or [that] involves an element of surprise prejudicial to the

defendant’s efforts to prepare his defense, or precludes the defendant from

anticipating the prosecution's proof, or impairs a substantial right.’”   Id.

quoting Commonwealth v. Pope, 317 A.2d 887, 890 (Pa. 1974).

      We further find the recent commentary of our Court to be instructive.

We stated as follows.

           It is the duty of the prosecution to “fix the date when
           an alleged offense occurred with reasonable
           certainty.”    Commonwealth v. Jette, 818 A.2d
           533, 535 (Pa. Super. 2003) (citation omitted). The
           purpose of so advising a defendant of the date when
           an offense is alleged to have been committed is to
           provide him with sufficient notice to meet the
           charges and prepare a defense. Commonwealth v.
           Gibbons, 784 A.2d 776 (Pa. 2001).

                 However, “due process is not reducible to a
                 mathematical      formula,”      and      the
                 Commonwealth does not always need to prove
                 a specific date of an alleged crime.
                 Commonwealth v. Devlin, 333 A.2d 888,
                 892 (Pa. 1975)…. Permissible leeway regarding

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                  the date provided varies with, inter alia, the
                  nature of the crime and the rights of the
                  accused. See Pa.R.Crim.P. 560(B)(3), stating
                  that    it  shall    be     sufficient for  the
                  Commonwealth to provide in the information, if
                  the precise date of an offense is not known, an
                  allegation that the offense was committed on
                  or about any date within the period fixed by
                  the statute of limitations.

            Commonwealth v. Koehler, 914 A.2d 427, 436
            (Pa. Super. 2006).

Commonwealth v. Riggle, 119 A.3d 1058, 1069-70 (Pa. Super. 2015)

(parallel citations omitted).   Instantly, the trial court referenced the policy

and rationale where “the purpose of so advising a defendant of the date

when an offense is alleged to have been committed is to provide him with

sufficient notice to meet the charges and prepare a defense.”         Id.   Our

review of the record confirms that Appellant had sufficient notice to meet the

charges and prepare a defense, which he in fact did present at the March 10,

2015 bench trial. We thus find no abuse of discretion by the trial court, and

reject Appellant’s weight claim.

      In his second issue, Appellant assails the sufficiency of the evidence,

and repeats his argument concerning the November 10, 2013 date in the

information relative to the December 16 and 21, 2013 dates.

      It is well-settled that when reviewing a sufficiency of the evidence

claim, this Court must review the evidence and all reasonable inferences in

the light most favorable to the Commonwealth as the verdict winner, and we

must determine if the evidence, thus viewed, is sufficient to enable the fact-

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finder to find every element of the offense beyond a reasonable doubt.

Commonwealth v. Goins, 867 A.2d 526, 527-528 (Pa. Super. 2004)

(citations omitted). “The fact-finder is free to believe all, part, or none of

the evidence presented[, t]his Court may not substitute its judgment for that

of the fact-finder, and if the record contains support for the verdict, we may

not disturb the verdict.” Id. (citations omitted). “A person is guilty of theft

if he unlawfully takes, or exercises unlawful control over, movable property

of another with intent to deprive him thereof.”      18 Pa.C.S.A. § 3921(a).

Movable property is defined as “[p]roperty the location of which can be

changed.” 18 Pa.C.S.A. § 3901.

      Here, the trial court recognized that Appellant’s sufficiency argument

was “based on the date contained in the information.” Trial Court Opinion,

8/11/15, at 7.    In rejecting Appellant’s claim, the trial court stated, “the

verdict was based on th[e] evidence and not the date contained in the

information.” Id. at 8. Given the facts of record and applicable standard of

review, we apply our analysis of Appellant’s weight claim to his sufficiency

claim, and find no abuse of discretion where there was sufficient evidence to

support the trial court’s verdict.

      Accordingly, we decline to grant Appellant relief on his weight and

sufficiency claims, and affirm the April 29, 2015 judgment of sentence.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




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