J-S46003-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                       Appellee        :
                                       :
           v.                          :
                                       :
MIOSOTIS MARIBEL MARTE,                :
                                       :
                       Appellant       :     No. 200 MDA 2014


    Appeal from the Judgment of Sentence Entered September 6, 2013,
             In the Court of Common Pleas of Lebanon County,
             Criminal Division, at No. CP-38-CR-0000539-2013.


BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ

MEMORANDUM BY SHOGAN, J.:                      FILED OCTOBER 14, 2014

     Appellant, Miosotis Maribel Marte, appeals from the judgment of

sentence entered September 6, 2013, following her conviction by a jury of

two misdemeanor counts of defrauding secured creditors. We affirm.

     At the start of trial, the prosecutor read the following stipulation of

facts between the parties:

     1.    Miosotis Marte (hereinafter referred to as the Defendant),
     along with two other individuals, Brent Taylor and Bryant Taylor,
     were tenants, and they actively rented an apartment from John
     Light, their Landlord.

     2.    The Defendant Miosotis Marte, failed to make payments on
     her rent.

     3.   John Light made several attempts to collect payment from
     the Defendant, with no success.
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      4.     John Light filed appropriate paperwork in magisterial
      District Office 52-1-01.

      5.   The Honorable Maria M. Dissinger, Magisterial District
      Judge, entered a civil judgment in favor of Mr. Light and against
      the Defendant, and two other individuals Brent Taylor and
      Bryant Taylor.

      6.    A civil judgment is an official court document which legally
      established that a debt is owed by the named individuals to a
      named creditor.

      7.     A valid civil judgment authorizes the creditor, the person
      to whom the debt is owed to take necessary legal measures to
      collect the debt that is owed.

      8.    The civil judgment was entered against all three individuals
      referenced above finding them jointly and severally liable.

      9.    Joint and several liability means that the creditor may
      obtain the entire amount of the money judgment against any of
      the individuals named.

      10. The judgment that Mr. Light obtained in this case was valid
      in all respects.

      11. A copy of the judgement [sic] is being admitted into
      evidence as Exhibit Number 2 and is to be made part of the
      record.

N.T., 8/7/13, at 4–6.     The trial court further summarized the facts as

follows:

            The charges against [Appellant] stem from an incident that
      occurred on August 24, 2012[,] when [Appellant] failed to
      produce two vehicles to be sold at an Execution Sale. This sale
      [was] conducted by the Lebanon County Sheriff pursuant to a
      judgment lodged against [Appellant] by a Plaintiff by the name
      of John Light.

                                     * * *


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            Constable James Drahovsky (hereafter “DRAHOVSKY”)
     testified as to the protocol that must be used when a levy is
     imposed. DRAHOVSKY described the Order of Execution and
     Notice that is given [Appellant] and the rights that he/she is
     entitled to under this Notice. DRAHOVSKY testified that a Notice
     of Levy gives defendants legal notice that certain property has
     been levied upon. The Notice of Levy shows the date and time
     that the constable was there to do the levy on them.
     DRAHOVSKY went on to say that the Notice of Levy explicitly
     states that defendants are not to remove property without a
     Court Order and that such removal, concealment or destruction
     of property could be considered to be a criminal action.
     DRAHOVSKY also indicated that [Appellant] was provided with a
     Notice of Execution Sale, which provided [Appellant] with the
     date and time the sale was to take place. Finally, DRAHOVSKY
     testified that this Notice of Execution Sale spells out exactly what
     property is to be sold.

           On August 15, 2012, DRAHOVSKY was given an Order of
     Execution by the Court for [Appellant]. DRAHOVSKY contacted
     [Appellant]. In accordance with the above-referenced protocol,
     DRAHOVSKY provided [Appellant] with a copy of all of the
     required paperwork. DRAHOVSKY stated that when he served
     [Appellant] with all of the paperwork, he took the time to explain
     every piece of paper to her to the best of his knowledge.

            The property levied upon was a Ford Windstar, tan in
     color, with a license plate number HYR-04630 and a vehicle
     identification number (VIN) 2FM2A51471BA80234. The second
     item to be levied upon was a red Chevy Lumina LS with license
     plate number HYV-2225. The execution sale was scheduled for
     August 24, 2012 at 9:00 a.m. at 1317 Church Street, Lebanon,
     PA 17046.

           At the time DRAHOVSKY served the paperwork to levy
     upon the property on [Appellant], she admitted to owning both
     the Ford Windstar and the Chevy Lumina. [Appellant] had a
     very carefree attitude at the time. She sat on the hood of the
     vehicle where the VIN was located in order to prevent
     DRAHOVSKY from obtaining the VIN from the vehicle. At no
     point on the date that DRAHOVSKY served the paperwork upon


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      [Appellant] did [Appellant] inform DRAHOVSKY that either car
      has been in the process of being sold.

            On August 24, DRAHOVSKY went to 1317 Church Street,
      Lebanon, PA to conduct the execution sale. Upon his arrival at
      the Church Street address, DRAHOVSKY noticed that the red
      Chevy Lumina was no longer present at the residence.
      DRAHOVSKY also noticed that the Ford Windstar had a different
      license plate on it. At this point in time, DRAHOVSKY telephoned
      the police.

             Upon his arrival at the Church Street residence on August
      24, Officer John Zatorski of the Lebanon City Police Department,
      was presented with documentation by DRAHOVSKY that specified
      the exact property to be sold at the Execution Sale. Officer
      Zatorski noticed that the Ford Windstar was located on the
      property. However, he observed that the Ford Windstar had a
      different license plate on it than had previously been listed on
      the Notice of Execution Sale. Officer Zatorski ran the license
      plate number through the Pennsylvania Department of
      Transportation DMV computer system. The PennDOT printout
      showed that the HYR-4630 license plate listed on the Notice of
      Execution was registered to [Appellant]. Officer Zatorski also
      ran the license plate number that was on the Ford Windstar on
      the date of the Execution Sale. This license plate with matching
      VIN number revealed that the Ford Windstar was registered to
      Tiffany Brockman.

            Officer Zatorski questioned [Appellant] about the Chevy
      Lumina. [Appellant] told Officer Zatorski that her boyfriend had
      the vehicle at work. She appeared unconcerned by the presence
      of police and stated that some people just have to go to work.
      Given the above, charges were filed against [Appellant] by
      Officer Zatorski.

Trial Court Opinion, 1/3/14, at 1–5 (citations to record omitted).

      On August 7, 2013, Appellant was convicted by a jury of two counts of

Defrauding Secured Creditors. On September 6, 2013, the sentencing court

ordered Appellant to pay the cost of prosecution, a fine of $100, and placed


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her on probation for one year, on each count.        The sentencing court also

ordered restitution in the amount of $3,328.26 to be paid to John Light.

Upon Appellant’s compliance with probation for six months, she “may be

released from active supervision . . . and is to be retained on probation

solely for the purpose of insuring that restitution is paid in a timely fashion.”

Order, 9/6/13, at 1.      Appellant filed timely post-sentence motions on

September 11, 2013, which were denied on January 3, 2014. Appellant filed

a timely notice of appeal on January 29, 2014.        Both the trial court and

Appellant complied with Pa.R.A.P. 1925.

      Appellant raises the following single issue in this appeal:      “Whether

Appellant should be acquitted because there was insufficient evidence for

Appellant to be found guilty of the charges (two counts) of Defrauding

Secured Creditors.” Appellant’s Brief at 4.

      In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as

verdict winner, were sufficient to prove every element of the offense beyond

a reasonable doubt.      Commonwealth v. Diamond, 83 A.3d 119 (Pa.

2013). It is within the province of the fact-finder to determine the weight to

be accorded to each witness’s testimony and to believe all, part, or none of

the evidence. Commonwealth v. James, 46 A.3d 776 (Pa. Super. 2012).




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The Commonwealth may sustain its burden of proving every element of the

crime by means of wholly circumstantial evidence.           Commonwealth v.

Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014). “[I]n applying the above

test, the entire record must be evaluated and all evidence actually received

must be considered.” Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa.

Super. 2011).    Moreover, as an appellate court, we may not re-weigh the

evidence   and   substitute   our   judgment   for   that   of   the    fact-finder.

Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007).                     “The critical

inquiry on review of the sufficiency of the evidence to support a criminal

conviction . . . does not require a court to ‘ask itself whether it believes that

the evidence at the trial established guilt beyond a reasonable doubt.’

Instead, it must determine simply whether the evidence believed by the

fact-finder was sufficient to support the verdict.”         Id. at 1235–1236

(emphasis in original, internal citation omitted).

      Appellant was convicted of defrauding secured creditors pursuant to 18

Pa.C.S. § 4110, which provides, “A person commits a misdemeanor of the

second degree if he destroys, removes, conceals, encumbers, transfers or

otherwise deals with property subject to a security interest or after levy has

been made thereon with intent to hinder enforcement of such interest.” The

trial court explained and concluded, viewing the evidence in the light most

favorable to the Commonwealth as the verdict winner, as follows:




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           [Appellant] was convicted of two counts of Defrauding
     Secured Creditors. The statute criminalizes actions taken by a
     debtor that intentionally hinder enforcement of a security
     interest or levy. 18 Pa.C.S.A. § 4110. [Appellant] argues that
     she at no time acted with the intent to defeat a levy.
     Specifically, she argues that the Chevy Lumina vehicle belonged
     to her boyfriend and the Ford Windstar vehicle belonged to Ms.
     Brockman.       In response, the Commonwealth argues that
     [Appellant] intentionally transferred the vehicles in an effort to
     defeat the levy that had been placed upon them.

            Did [Appellant] intentionally transfer her vehicles so as to
     render them unsellable at the time of the Execution Sale? The
     testimony and evidence presented affirms the jury’s conviction
     as follows:

           (1) A Stipulation and Judgment was entered in this
           case at the outset of trial.       The Stipulation
           established the bona fides of the judgment lodged
           against [Appellant] and DRAHOVSKY’s levy upon the
           Lumina and Windstar vehicles.

           (2) DRAHOVSKY served the Order of Execution and
           all necessary paperwork upon [Appellant] on August
           15, 2012.      This paperwork clearly stated that
           [Appellant] was not to remove, conceal or destroy
           said property without a Court Order and that such
           removal, concealment or destruction could result in
           criminal charges being filed.

           (3) The Order of Execution listed two vehicles to be
           levied upon. The two vehicles consisted of a tan
           Ford Windstar, license plate number HYR-04630 with
           a VIN number of 2FM2A51471BA80234 and a red
           Chevy Lumina, license plate number HYV-2225. At
           the time of the levy, [Appellant] owned both vehicles
           and she failed to identify any other possible owners
           to DRAHOVSKY.

           (4) Upon arrival at the 1317 Church Street residence
           on the date of the Execution Sale, DRAHOVSKY
           noticed that the Chevy Lumina was not present.


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            When DRAHOVSKY questioned [Appellant], she told
            him that her boyfriend had the vehicle as he had to
            go to work.

            (5) DRAHOVSKY also noticed that the Ford Windstar
            had a license plate on it with a number different from
            that which had been listed on the Notice of
            Execution.     DRAHOVSKY then contacted Officer
            Zatorski of the Lebanon City Police Department.

            (6) After Officer Zatorski ran both license plate
            numbers through PennDOT’s DMV computer system,
            the printout revealed that the Ford Windstar was no
            longer owned by [Appellant] but was now registered
            in the name of Tiffany Brockman.

      Ultimately the jury believed the Commonwealth’s evidence. The
      jury believed that DRAHOVSKY properly levied upon two vehicles
      that were owned by [Appellant] and the jury believed that
      [Appellant] attempted to hide and/or convey these vehicles to
      someone else in an effort to defeat the levy. More than enough
      information was presented to establish all of the elements of the
      crime of Defrauding Secured Creditors.

Trial Court Opinion, 1/3/14, at 8–10.

      Appellant’s sole argument on appeal is that her testimony and that of

Tiffany Brockman established that they had an agreement for Appellant to

sell the Ford Windstar to Ms. Brockman before the assessment of the levy.

The payments allegedly began in March or April 2012 and concluded in

August 2012. As to the Chevy Lumina, Appellant maintains that she never

told her boyfriend to remove it from her property on August 24, 2012. “She

said that when she got home from work the vehicle was already gone.”

Appellant’s Brief at 10.




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      While Appellant presents her issue in terms of the sufficiency of the

evidence, her one-paragraph argument in her brief, instead, is focused on

the credibility of the witnesses.   It is well settled that a challenge to the

credibility of a witness is a challenge to the weight of the evidence and not

to the sufficiency of the evidence. Commonwealth v. Lopez, 57 A.3d 74,

80 (Pa. Super. 2012); see Commonwealth v. Small, 741 A.2d 666, 672

(Pa. 1999) (stating that although the appellant phrased his claim as a

challenge to the sufficiency of the evidence, the challenge actually concerned

the weight of the evidence). We recently reaffirmed:

      A weight of the evidence claim must be preserved either in a
      post-sentence motion, by a written motion before sentencing, or
      orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth
      v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to
      properly preserve the claim will result in waiver, even if the trial
      court addresses the issue in its [Pa.R.A.P. 1925] opinion.
      Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014)

(quoting Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super.

2012)).    In this case, Appellant presented a weight challenge to the trial

court in her post-sentence motions, and the trial court concluded that the

verdict was not against the weight of the evidence.

      Our Supreme Court also recently explained the focus of both the trial

court and this Court when faced with a weight-of-the-evidence argument, as

follows:




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            A motion for a new trial based on a claim that the verdict
     is against the weight of the evidence is addressed to the
     discretion of the trial court. Commonwealth v. Widmer, 560
     Pa. 308, 319, 744 A.2d 745, 751–52 (2000); Commonwealth
     v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A
     new trial should not be granted because of a mere conflict in the
     testimony or because the judge on the same facts would have
     arrived at a different conclusion. Widmer, 560 Pa. at 319–20,
     744 A.2d at 752. Rather, “the role of the trial judge is to
     determine that ‘notwithstanding all the facts, certain facts are so
     clearly of greater weight that to ignore them or to give them
     equal weight with all the facts is to deny justice.’” Id. at 320,
     744 A.2d at 752 (citation omitted). It has often been stated that
     “a new trial should be awarded when the jury’s verdict is so
     contrary to the evidence as to shock one’s sense of justice and
     the award of a new trial is imperative so that right may be given
     another opportunity to prevail.” Brown, 538 Pa. at 435, 648
     A.2d at 1189.

           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court:

           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. Brown, 648 A.2d at 1189. 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.          Commonwealth v.
           Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
           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.

     Widmer, 560 Pa. at 321–22, 744 A.2d at 753 (emphasis
     added).


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

      Our review of the record reveals that Tiffany Brockman, Appellant’s

former neighbor, and Appellant testified in substantial conformity to

Appellant’s characterization in her brief.1 See N.T., 8/7/13, at 45–51. We

decline Appellant’s invitation to assume the role of factfinder and to reweigh

the evidence.    It is well established that the trier of fact “bears the

responsibility to resolve questions of credibility.”     Commonwealth v.

Blackham, 909 A.2d 315, 319 (Pa. Super. 2006).           Moreover, questions

“concerning inconsistent testimony . . . go to the credibility of witnesses.”

Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. 2006). The jury,

as trier of fact, was free to believe all, part, or none of the evidence.

Commonwealth v. Diggs, 949 A.2d 873 (Pa. 2008).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2014



1
   Appellant did not testify that she never told her boyfriend to remove the
Chevy Lumina from her property on August 24, 2012; rather, she testified
that he had taken it to work and “people need to go to work. . . . Like I can’t
stop somebody for getting to their job.” N.T., 8/7/13, at 51.

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