J-S40032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

JOSE LUIS BATISTA

                         Appellant                 No. 178 MDA 2014


        Appeal from the Judgment of Sentence November 26, 2013
              In the Court of Common Pleas of York County
            Civil Division at No(s): CP-67-CR-0003680-2013


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.                       FILED OCTOBER 07, 2014

      Appellant, Jose Luis Batista, appeals from the judgment of sentence

entered November 26, 2013, by the Honorable Gregory M. Snyder, Court of

                                                                 -appointed

counsel, Michael A. Rutt, Esquire, has filed an application to withdraw as

counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). After



petition to withdraw.

      Shortly after midnight on April 5, 2013, York City Police Officer

Matthew DeWitt was on routine patrol when he observed Batista walking up

the porch to a residence located at 605 West Princess Street. See N.T., Jury

Trial, 10/11/13 at 64-65. When Officer DeWitt drove by the residence again
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a few minutes later, he observed Batista walking down the street carrying a

50-inch flat screen television.           See id. at 6.   Officer DeWitt stopped his

vehicle to question Batista, who said that he had purchased the television for

$40 from an African-American male and gestured vaguely to the end of the

block. See id. at 66. When Officer DeWitt asked Batista where his home

was, Batista pointed westbound on West Princess Street; although at the

time, he was walking eastbound. See id.

          At this point, two other officers went to the residence Batista was last

observed walking to at 605 West Princess Street, where the residents were

sound asleep. See id. As the residents turned on the lights in their living

room, they noticed that a large television was missing. See id. at 67.          Also

missing from the home was an iPod Nano and a white DVD remote, both of

                                                                         See id. at

68. Batista then admitted to Officer DeWitt that he had obtained the items

from the house. See id. at 69.

          Batista was arrested and charged with Burglary,1 Criminal Trespass,2

Theft by Unlawful Taking-Movable Property,3 and Receiving Stolen Property.4

Following a jury trial, Batista was convicted of all charges. On November 25,



____________________________________________


1
    18   Pa.C.S.A.   §   3502(a)(1).
2
    18   Pa.C.S.A.   §   3503(a)(1)(i).
3
    18   Pa.C.S.A.   §   3921(a).
4
    18   Pa.C.S.A.   §   3925(a).



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Batista did not file post-sentence motions. This appeal followed.

        As noted, Attorney Rutt has requested to withdraw and has submitted

an Anders

frivolous. The Pennsylvania Supreme Court has articulated the procedure to

be     followed   when   court-appointed   counsel   seeks   to   withdraw   from

representing an appellant on direct appeal:

           [I]n the Anders brief that accompanies court-appointed

           summary of the procedural history and facts, with citations
           to the record; (2) refer to anything in the record that
           counsel arguably believes supports the appeal; (3) set

                                                                 appeal
           is frivolous. Counsel should articulate the relevant facts of
           record, controlling case law, and/or statutes on point that
           have led to the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 602 Pa. 159, 178-79, 978 A.2d 349, 361

(2009).

        We note that Attorney Rutt has complied with all of the requirements

of Anders as articulated in Santiago. Additionally, Attorney Rutt confirms

that he sent a copy of the Anders brief to Batista as well as a letter

explaining to Batista that he has the right to proceed pro se or the right to



                                                             Commonwealth v.

Millisock

faci                                         must attach as an exhibit to the


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petition to withdraw filed with this Court a copy of the letter sent to

                                                       Id. at 749 (emphasis in

original).

       We will now proceed to examine the issues counsel set forth in the

Anders brief.5

weight and sufficiency of the evidence. Preliminarily, we note that     weight

of the evidence claim must be preserved either in a post-sentence motion,



Commonwealth v. Thomson, --- A.3d ---, 2014 WL 2131965 at *9 (Pa.

Super., filed May 22, 2014) (citing Pa.R.Crim.P. 607). Failure to do so will

result in waiver of the claim on appeal. See id.

       Instantly, Batista failed to raise a challenge to the weight of the

evidence to support his conviction either at sentencing or in a post-sentence

motion. Therefore, this claim is waived. See id.

       Batista alternatively challenges the sufficiency of the evidence to

support his convictions.       We review a challenge to the sufficiency of the

evidence as follows:

              The standard we apply when reviewing the sufficiency of
       the evidence 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
____________________________________________


5




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      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. Furthermore, when reviewing a sufficiency
      claim, our Court is required to give the prosecution the benefit of
      all reasonable inferences to be drawn from the evidence.

             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused's guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      As noted, a jury convicted Batista of Burglary, Criminal Trespass, Theft

by Unlawful Taking - Moveable Property, and Receiving Stolen Property. An

individual is guilty of burglary under 18 Pa.C.S.A. § 3502(a)(1) where he

enters a building or occupied structure, or separately secured or occupied

portion thereof that is adapted for overnight accommodations in which at the

                                                            o commit a crime

therein.




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     An individual commits the offense of trespass pursuant to 18 Pa.C.S.A.



he: (i) enters, gains entry by subterfuge or surreptitiously remains in any

building or occupied structure or separately secured or occupied portion



     A person commits the offense of theft by unlawful taking      moveable

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

property of another wi

3921(a).

     Finally, a person is guilty of receiving of stolen property if he



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

stolen, unless the property is received, retained, or disposed with intent to




on

     Based on the evidence presented by the Commonwealth, we do not

hesitate to find that the evidence was sufficient to support the elements of

                                                        cer DeWitt observed

Batista on the porch to the residence at 605 West Princess Street and then

again, several minutes later, walking down the street carrying a large flat

screen television. Two responding officers woke the sleeping residents at

605 West Princess Street, who noticed that their flat screen television was

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missing, along with an iPod Nano and a white DVD remote.         These latter



Officer DeWitt that he had retrieved the items from the house.

      The residents of 605 West Princess Street, T-Harra Riviera and Abel

Torrez, also testified at trial. Riviera testified that when she was awoken by

police on April 5, 2013, she noticed that her 50-inch Sony flat screen

television was missing.    See N.T., Jury Trial, 10/11/13 at 74.       Riviera

testified that when she went to bed, the front door was closed and locked.

See id. at 75. When the police arrived later that evening, Riviera observed

that the basement window was broken and the front door was open and

unlocked. See id. at 75-76. Torrez testified that he did not know Batista,

and had never sold him the television or granted him permission to enter the

premises and take the television.     See id. at 79.    Torrez identified the



residence. See id. at 81-82.

      After examining the issues contained in the Anders brief and



assessment that the appeal is wholly frivolous.

      Judgment of sentence affirmed. Permission to withdraw as counsel is

granted. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




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