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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BURNELL WILLIAMS

                            Appellant                No. 314 WDA 2015


          Appeal from the Judgment of Sentence of January 8, 2015
               In the Court of Common Pleas of Butler County
             Criminal Division at No.: CP-10-CR-0001775-2013


BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                       FILED NOVEMBER 20, 2015

       Burnell Williams appeals his January 8, 2015 judgment of sentence,

which was entered following his convictions of theft by unlawful taking of

movable property, criminal conspiracy, retail theft, and receiving stolen

property.1 We affirm.

       The evidence adduced at trial, viewed in the light most favorable to

the Commonwealth as verdict-winner, supports the following account of the

factual and procedural history of this case.   On January 29, 2013, Burnell

Williams, Melinda Pounds, and Paul Druschel drove together in Williams’ car

from New Castle, Pennsylvania, to a convenience store located in Cranberry

Township, Pennsylvania, for the sole purpose of shoplifting in that store.

____________________________________________


1
       18 Pa.C.S. §§ 3921(a), 903(c), 3929(a)(1), and 3925(a), respectively.
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         Upon arriving at the store, Williams, Pounds, and Druschel entered and

began to conceal store items under their clothes. An employee at the store

noticed one of the individuals attempting to shoplift and notified the store

manager, Steven Knight. Before Knight could inspect the situation, Druschel

exited the store with several bottles of shampoo bulging out of his jacket.

Knight followed Druschel out of the store and confronted him.         Druschel

immediately returned the items to Knight and returned to Williams’ car.

Before Druschel could leave, Knight used his cellphone to take pictures of

him and Williams’ car. Knight then called the police to report the incident.

Immediately thereafter, Druschel drove away in William’s car without Pounds

or Williams. Knight returned to the store.

         After witnessing the confrontation between Knight and Druschel,

Williams and Pounds abandoned the items in their possession and exited the

store.     Pounds and Williams realized that Druschel had departed without

them. Officer Mike Kramer then arrived at the store. He observed Williams

and Pounds walking outside of the store; however, he was unaware at that

moment that Williams and Pounds were associated with the reported

shoplifting incident.

         At some point between Druschel’s departure and Officer Kramer’s

arrival, Williams came into possession of Knight’s car keys.2     Williams and

____________________________________________


2
      It is unclear precisely how Williams came into possession of Knight’s
car keys. However, the record suggests that Knight may have dropped his
(Footnote Continued Next Page)


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Pounds located Knight’s car by using the remote attached to Knight’s car

keys. After locating Knight’s car, Pounds and Williams stole Knight’s car and

left the store parking lot. Williams drove the vehicle, and Pounds sat in the

front passenger seat.        Upon departing the store parking lot, Williams and

Pounds passed Officer Kramer in his patrol car. Officer Kramer observed the

car and recognized Pounds and Williams as the individuals who he had seen

earlier walking near the convenience store.         Pounds and Williams drove

together back to New Castle, Pennsylvania.

      After finishing work several hours later, Knight left the store.    Upon

leaving the store, Knight realized that his car and his car keys were missing.

Knight immediately called the police to report that his car had been stolen.

Later that evening, New Castle police recovered Knight’s car in New Castle,

Pennsylvania, and the car was returned to Knight.

      The following day, Detective Matthew Irvin was assigned to investigate

the reported retail theft and subsequent car theft. Regarding the retail theft,

Detective Irvin learned that the car that Knight witnessed Druschel driving

belonged to Williams and his former girlfriend, Ashley Shirley. A few weeks

later, Detective Irvin contacted Shirley and Williams.          Detective Irvin

interviewed Williams on February 19, 2013. During that interview, Williams



                       _______________________
(Footnote Continued)

keys onto the ground outside of the convenience store during his initial
confrontation with Druschel.



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acknowledged that he was involved in the retail theft with Pounds and

Druschel. However, he denied stealing Knight’s car.

       On May 14, 2013, the police filed a criminal complaint against

Williams. Williams was arrested on June 4, 2013. Williams posted bail on

June 25, 2013.

       On December 12, 2014, Williams filed a motion in limine seeking, in

part, to exclude Officer Kramer’s identification of him, which the trial court

denied.     After a one-day jury trial, Williams was convicted of theft by

unlawful taking of movable property, criminal conspiracy, and receiving

stolen property on December 16, 2014.3 On January 8, 2015, the trial court

sentenced Williams to two to four years’ imprisonment on the criminal

conspiracy count, and to two to four years’ imprisonment on the theft by

unlawful taking of movable property count, which the court ordered to run

concurrently with the criminal conspiracy count.     Williams also received a

sentence of guilt with no further penalty on both the receiving stolen

property count and the retail theft count.       Williams was ordered to pay

$972.89 to Knight in restitution. On January 9, 2015, Williams filed a post-

sentence motion, which was denied by the trial court on January 23, 2015.




____________________________________________


3
       Separate from the jury’s verdict, but during the same proceeding, the
trial court, from the bench, found Williams guilty of retail theft, 18 Pa.C.S. §
3929(a)(1), a summary offense.



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      On February 3, 2015, Williams simultaneously filed a notice of appeal

and application for leave to appeal in forma pauperis. On February 9, 2015,

the trial court granted Williams’ request to proceed in forma paupris and

directed him to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Williams timely filed his concise statement

on February 23, 2015.     On March 2, 2015, the trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a).

      Williams raises two issues for our review:

      I.    Whether the weight and sufficiency of the evidence
            presented by the Commonwealth is enough to sustain the
            guilty verdict rendered for the offense of criminal
            conspiracy, theft by unlawful taking[,] and receiving stolen
            property?

      II.   Whether the trial court abused its discretion, or erred as a
            matter of law, by denying [Williams’] motion in limine to
            exclude the testimony of Officer Kramer?

Brief for Williams at 9 (capitalization omitted; italics added).

      In his first issue, Williams generally challenges the weight and the

sufficiency of the evidence developed by the Commonwealth to convict him

of criminal conspiracy, theft by unlawful taking, and receiving stolen

property. Williams does not raise any challenge regarding his conviction of

retail theft.    Although Williams combines his weight and sufficiency

challenges into a single issue, he addresses those issues separately within

his brief. Accordingly, we will review Williams’ sufficiency challenges first.

      When examining a challenge to the sufficiency of evidence:



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      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 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
      [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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).

      In order for the jury to convict Williams of theft by unlawful taking of

movable property, the Commonwealth must establish that Williams had

“unlawfully take[n], or exercise[d] unlawful control over, movable property

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

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

changed.” 18 Pa.C.S. § 3901. Property of another is defined as “property in

which any person other than the actor has an interest which the actor is not

privileged to infringe.”   Id.   Deprive is defined as “dispos[ing] of the

property so as to make it unlikely that the owner will recover it.” Id.




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         In response to the retail theft complaint, Officer Kramer arrived at the

convenient store and observed Williams and Pounds walking outside of the

store.      Notes of Testimony (“N.T.”), 12/16/2014, at 62-63.           Shortly

thereafter, while driving in his patrol car, Officer Kramer observed Williams

and Pounds traveling in a green Dodge Intrepid on a road near the

convenience store.      Id. at 65.   Officer Kramer searched the license plate

number of the vehicle, because he recognized Pounds as the individual who

was walking in front of the convenience store fifteen minutes earlier. Id. As

a result of Officer Kramer’s search, he learned that the vehicle was

registered to Steven Knight. Id. at 66. Knight’s car, at that moment, was

not reported as stolen. Id.

         Williams points out that Knight “was not able to determine at what

time or location in which he lost control over his vehicle keys.”       Brief for

Williams at 17.      To the extent that Williams argues that he was not in

possession of Knight’s car keys, we note that circumstantial evidence is

sufficient to prove any element or all of the elements of unlawful taking of

movable property.        Commonwealth v. Quel, 27 A.3d 1033, 1041-42

(Pa. Super. 2011).

         In the present matter, Pounds testified that, after leaving the store,

she realized that Druschel had driven away in Williams’ car leaving her and

Williams behind.      N.T. at 46.    Immediately thereafter, Pounds witnessed

Williams pull a set of car keys from his pocket, which he then used to

operate Knight’s car and drive himself and Pounds back to New Castle,

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Pennsylvania. Id. Furthermore, Knight testified that he did not give anyone

permission to drive his car that day. Id. at 33. Detective Irvin also testified

that Knight’s car was recovered by police only a few blocks from Williams’

residence in New Castle. Id. at 96-99. Viewing all of 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 unlawful taking of

movable property beyond a reasonable doubt.

      Williams next challenges the sufficiency of the evidence developed by

the Commonwealth to convict him of receiving stolen property.          Brief for

Williams at 16. In order for the jury to convict Williams of receiving stolen

property, the Commonwealth must establish that Williams “intentionally

receiv[ed], retain[ed], or dispos[ed] of movable property of another knowing

that it has been stolen, or believing that it has been probably stolen, unless

the property is received, retained, or disposed with intent to restore it to the

owner.”    18 Pa.C.S. § 3925(a).        Receiving is defined as “acquiring

possession, control or title, or lending on the security of property.”       18

Pa.C.S. § 3925(b).

      Williams’ argument hinges upon his contention that Officer Kramer’s

identification of him as the driver of Knight’s car was unreliable, and that

“[t]he testimony of [Pounds] is completely unreliable and self-serving.”

Brief for Williams at 16.     However, in reviewing the sufficiency of the

evidence, we may not weigh the evidence and substitute our judgment for

the fact-finder. Commonwealth v. Yong, 120 A.3d 299, 311 (Pa. Super.

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2015).    A challenge to the indefiniteness or uncertainty of certain

identification testimony goes to its weight and is not relevant to our review

of sufficiency of the evidence claims. Commonwealth v. Orr, 38 A.3d 868,

874 (Pa. Super. 2011). Williams does not make any other specific argument

relating to the sufficiency of the evidence regarding receiving stolen

property. Hence, this claim necessarily fails.

      Williams also challenges the sufficiency of the evidence developed by

the Commonwealth to convict him of criminal conspiracy. Id. In order to

convict Williams of criminal conspiracy, the Commonwealth must have

established that Williams entered into an agreement to commit or aid in an

unlawful act with another person; that he and that person acted with a

shared criminal intent; and that an overt act was taken in furtherance of the

conspiracy. 18 Pa.C.S. § 903. Further, “[i]f a person conspires to commit a

number of crimes, he is guilty of only one conspiracy so long as such

multiple crimes are the object of the same agreement or continuous

conspiratorial relationship.” 18 Pa.C.S. § 903(c).

      In most cases of conspiracy, it is difficult to prove an explicit or formal

agreement or agreements; hence, the agreement is generally established via

circumstantial evidence, such as by the relations, conduct, or circumstances

of the parties or overt acts on the part of co-conspirators. Commonwealth

v. Sanchez, 82 A.3d 943, 973 (Pa. 2013). However, Pounds testified that

she, Williams, and Druschel planned to drive to the store together and steal

from that store. N.T. at 43. Additionally, during his interview with Detective

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Irvin, Williams confessed that he traveled to the convenience store with

Druschel and Pounds in order to shoplift.          N.T. at 91.   This evidence

demonstrated that the participants shared the same criminal intent, and that

they acted upon that intent. Entering the store together, and commencing

to conceal unpaid-for items suffice as overt acts. Consequently, there was

ample evidence of a criminal conspiracy.

       Moreover, after realizing that Druschel had departed in Williams’ car

without her and Williams, Pounds testified, “[t]hat’s when [Williams] pulled

the keys from his pocket and beeped for the car. Once we found the car we

got in and we left.” Id. at 46. To the extent that Williams now argues that

there was no specific agreement to steal Knight’s car, a conspiracy can

germinate instantaneously based upon changing circumstances.          The car

that Pounds and Williams departed in was not the car in which they arrived.

Further, Pounds’ testimony is evidence of an explicit agreement between her

and Williams to steal Knight’s car. Accordingly, there is sufficient evidence

to support a finding of criminal conspiracy with multiple criminal objectives

when Williams and Pounds agreed to leave the store together in Knight’s car.

       Williams next claims that the jury’s verdict was against the weight of

the evidence.4       Brief for Williams at 18-20.     As previously discussed,

Williams did not raise any weight challenge regarding his retail theft

____________________________________________


4
      Pursuant to Pa.R.Crim.P. 607(A)(3), Williams preserved his weight
challenge in his post-sentence motion.



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conviction.   Accordingly, we review the weight of the evidence only as to

Williams’ convictions for criminal conspiracy, theft by unlawful taking, and

receiving stolen property.

      An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court. Commonwealth v. Dupre,

866 A.2d 1089, 1101 (Pa. Super. 2005), (citing Commonwealth v.

Sullivan,     820   A.2d     795,   805–806    (Pa.   Super.   2003)    (quoting

Commonwealth v. Widmer, 744 A.2d 745, 751–752 (Pa. 2000))).                   The

Pennsylvania Supreme Court has explained that “[a]ppellate 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.”

Widmer, 744 A.2d at 753 (citation omitted). To grant a new trial on the

basis that the verdict is against the weight of the evidence, this Court has

explained that “the evidence must be ‘so tenuous, vague and uncertain that

the verdict shocks the conscience of the court.’” Sullivan, 820 A.2d at 806

(quoting Commonwealth v. La, 640 A.2d 1336, 1351 (Pa. Super. 1994)).

      [This Court shall not undertake to reassess credibility of
      witnesses, as] it is well settled that we cannot substitute our
      judgment for that of the trier of fact. Commonwealth v.
      Holley, 945 A.2d 241, 246 (Pa. Super. 2008). Further, the
      finder of fact was free to believe the Commonwealth’s witnesses
      and to disbelieve the witness for the Appellant.                  See
      Commonwealth v. Griscavage, 517 A.2d 1256 (Pa. 1986) (the
      finder of fact is free to believe all, none, or part of the testimony
      presented at trial).




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Commonwealth v. Bozic, 997 A.2d 1211, 1223-24 (Pa. Super. 2010)

(citing Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009))

(citations modified).

      To support his weight of the evidence claim, Williams essentially

reiterates his sufficiency argument and contends that the “Commonwealth’s

witnesses presented testimony that was unreliable, tenuous[,] and vague.”

Brief for Williams at 18.     Although some inconsistencies existed in the

testimony produced at trial, the jury was free to believe, or not to believe,

all, none, or part of that testimony. Having reviewed the entire record, we

conclude that the record supports the jury’s verdict, and we discern no basis

upon which to conclude that the trial court abused its discretion by

concluding that the jury’s verdict failed to shock that court’s conscience.

      In his final issue, Williams argues that the trial court erred by denying

his motion in limine to exclude Officer Kramer’s testimony.      Id. at 20-21.

Specifically, Williams argues that the “identification made by Officer Kramer

was inherently unreliable,” and that “[Officer Kramer] gave an extremely

vague description of the driver at the time of the incident.” Id.

      A motion in limine gives the trial judge an opportunity to weigh

potentially prejudicial and harmful evidence outside the presence of the jury.

Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011). A motion

in limine is a procedure for obtaining a ruling upon the admissibility of

evidence, which is similar to a ruling on a motion to suppress evidence.


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Commonwealth v. Valcarel, 94 A.3d 397, 398 (Pa. Super. 2014). Thus,

our review is the same as that of a motion to suppress, which is for an abuse

of discretion. Id.

      Initially, the Commonwealth in its brief contends that Williams’ motion

in limine actually was a motion to suppress evidence, and, thus, the motion

should have been raised in an omnibus pretrial motion.              Brief for

Commonwealth at 11. As a result, the Commonwealth argues that Williams

waived his right pursuant to Pa.R.Crim.P 581 to seek to preclude Officer

Kramer’s testimony. See Pa.R.Crim.P. 581(b) (deeming that a defendant’s

motions to suppress evidence will be waived when the defendant had the

opportunity but failed to raise that motion to suppress such evidence at the

omnibus pretrial hearing).

      A motion in limine differs from a suppression motion in that a

suppression motion is designed to preclude evidence that was obtained in

violation of the defendant’s constitutional rights, while a motion in limine

intends to preclude evidence that was constitutionally obtained but which is

prejudicial to the moving party. Commonwealth v. King, 689 A.2d 918,

921 (Pa. Super. 1997). Here, Williams’ motion pertains to the reliability of

Officer Kramer’s identification of him and in no way argues that Officer

Kramer’s identification was formed in violation of Williams’ constitutional

rights.   In fact, Williams’ counsel, Attorney Joseph Smith, Esq., stated, “I

filed that motion because I was looking at the probative values and the


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weight respectively of the evidence at this time that the jury may hear.”

N.T. at 2. Accordingly, Williams’ did not waive his right to file a motion in

limine to preclude Officer Kramer’s testimony, and we will review the trial

court’s denial of that motion for an abuse of discretion.

      At trial, Officer Kramer testified that, after being dispatched to the

convenience store regarding a retail theft complaint, he witnessed Pounds

and Williams walking outside of the store. However, he was unaware at the

time that they were involved in the retail theft. Id. at 63. Officer Kramer

further testified that, nearly fifteen minutes later, he observed Williams and

Pounds driving in a green Dodge Intrepid on a road in front of the store,

which led him to run a search of the license plate number of that car. Id. at

65-67.   Officer Kramer’s search revealed that the car belonged to Knight,

but Knight’s car was not reported as stolen at that moment.       Id.   Officer

Kramer identified Williams as the driver of that vehicle, and, at trial, he

provided the following relevant testimony:

      Q: Now, you just said that the female matched [] who you
      believed you saw in the lot. What about the driver, did you get
      to see the driver?

      A: I did as I passed the vehicle and I was in the right lane I
      passed the vehicle. They’re still in the left lane. The female in
      the passenger seat turned away from me.

      Q: Okay.

      A: As I passed the vehicle, I looked in my rearview mirror. I
      could see in the front windshield of the Intrepid, and I could,
      observed [sic] the defendant was the driver of the vehicle.




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Id.   Officer Kramer eventually made a positive photo identification of

Williams to Detective Irvin. Id. at 74.

      Williams argues that “[Officer Kramer’s] questionable identification

was inappropriate as it serve[d] no purpose other than to bolster the

account of a biased witness, [Pounds], and lead the jury to conclude that

[Pounds] was honest.”    Brief for Williams at 22.   Further, Williams argues

that Officer Kramer improperly bolstered Pounds’ testimony by “vouching for

the accuracy of [Pounds’] statements.” Id. After a thorough reading of the

record, specifically Officer Kramer’s testimony at trial, we detect no

indication that Officer Kramer improperly vouched or bolstered the veracity

of Pounds’ statements.

      Williams also claims Officer Kramer’s identification is unreliable

because Detective Irvin only presented Officer Kramer with a single photo

before Officer Kramer positively identified Williams.    Id. at 21.   Williams’

claim factually is incorrect, because Officer Kramer testified that Williams’

photo was not the only photo presented to him by Detective Irvin before he

made a positive identification. N.T. at 77.

      Regarding the reliability of a particular identification, the court should

consider:

      the opportunity of the witness to view the criminal at the time of
      the crime, the witness’ degree of attention, the accuracy of [his]
      prior description of the criminal, the level of certainty
      demonstrated at the confrontation, and the time between the
      crime and the confrontation. The opportunity of the witness to
      view the actor at the time of the crime is the key factor in the
      totality of the circumstances analysis.

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Commonwealth v. Bruce, 717 A.2d 1033, 1037 (Pa. Super. 1998)

(citations omitted). Here, Officer Kramer observed Williams driving Knight’s

car only ten or fifteen feet away from where he was driving in his patrol car.

N.T. at 65. Further, he witnessed Williams driving Knight’s car only fifteen

minutes after he observed him walking in front of the convenience store.

Id.

       The trial court concluded that there was no legal basis to exclude

Officer Kramer’s testimony. We agree. To the extent that Williams argues

that Officer Kramer’s above-stated testimony was unreliable, Williams had

the opportunity to cross-examine Officer Kramer at trial, and the jury was

free to believe all, none, or part of that testimony.   Accordingly, the trial

court did not abuse its discretion by denying Williams’ motion in limine prior

to trial.

       Judgment of sentence affirmed.

       Judge Shogan joins the memorandum.

       Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015




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