J-S60027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

RALPH THOMPSON

                             Appellant              No. 1289 EDA 2013


              Appeal from the Judgment of Sentence April 4, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007995-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                     FILED NOVEMBER 30, 2015

        Ralph Thompson appeals from his judgment of sentence imposed by

the Court of Common Pleas of Philadelphia County following his convictions

for receiving stolen property1 and unauthorized use of a motor vehicle.2

Upon review, we affirm.

        On June 1, 2012, Mr. Vitaliy Ignatovets was working as a department

manager at Central City Toyota and was responsible for receiving new cars

from the port.      On that day, Ignatovets discovered that one of the new

cars—a Toyota Highlander with a VIN ending in 155825—was missing.



____________________________________________


1
    18 Pa.C.S.§ 3925.
2
    18 Pa.C.S.§ 3928.
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Ignatovets later learned that a new employee accidentally left the keys in

the ignition of the car.

      Three weeks later, on June 22, 2012,      at approximately 1:30 a.m.,

Philadelphia Police Officer Clifford Doorley stopped a vehicle for operating

without lights. Officer Doorley asked the driver, Elizabeth Rich, to provide

her license and registration.      Rich provided her license, but not the

registration.

      Thompson, who was sitting in the front passenger seat and visibly

intoxicated, told Officer Doorley that he owned the vehicle.       Thompson

searched the glove compartment and the front of the vehicle for the

ownership paperwork. At the request of Thompson, Officer Doorley allowed

him to step out the vehicle and search the rear of the vehicle.        Officer

Doorley observed Thompson rummage through personal items, including

male clothing, while he searched the back of the Toyota Highlander.

Thompson was unable to locate any ownership paperwork in the vehicle, and

told officer Doorley that the paperwork was likely at home.

       Officer Doorley ran the vehicle’s VIN and discovered that the vehicle

was stolen.     Additionally, Officer Doorley ran the vehicle’s license plate,

which disclosed that it was registered to a 1995 Buick. The stopped vehicle

was a Toyota Highlander.

      Thompson was arrested and charged with receiving stolen property,

criminal conspiracy, and unauthorized use of a motor vehicle.




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      At trial, Ignatovets testified that he did not know Thompson and did

not give him permission to use the Toyota Highlander. He also testified that

he did not give anyone permission to use the Toyota Highlander.

      On January 24, 2013, at the conclusion of a non-jury trial, the court

granted Thompson’s motion for judgment of acquittal for the charge of

conspiracy, but found him guilty of the aforementioned offenses. On April 4,

2013, the court sentenced Thompson to two and one-half to five years of

incarceration, plus two years of reporting probation.

      Following sentencing, Thompson filed a timely appeal, presenting the

following issues for our review:

      1. Can the Commonwealth sustain its burden of proof to show
      that [Thompson] knew or should have known that the car he
      was a passenger in was stolen where he was intoxicated and the
      Commonwealth failed to establish that the driver was not
      allowed to be in possession of the car, or even that the car itself
      was stolen?

      2. Are the verdicts against the weight of the evidence where the
      driver of the car defendant was riding in may have been
      authorized to use the car and the car itself was not stolen?

      3. Was the Commonwealth impermissibly allowed to introduce
      rank hearsay into evidence to establish [Thompson] received a
      ride home in his car?

Brief of Appellant, at 10.

      In his first issue, Thompson argues that the Commonwealth failed to

present sufficient evidence to support his convictions. This Court reviews

the sufficiency of the evidence according to the following standard:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in

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     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 [this] 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. Chine, 40 A.3d 1239, 1241-42 (Pa. Super. 2012).

     At issue here is whether the Commonwealth proved the material

elements of the charged crimes.    To convict Thompson of receiving stolen

property, the Commonwealth was required to prove beyond a reasonable

doubt that: (1) the car was stolen, (2) Thompson was in possession of the

car, and (3) Thompson knew or had reasonable cause to know that the car

was stolen.   See Commonwealth v. Phillips, 392 A.2d 708, 709 (Pa.

Super. 1978).   Similarly, to convict Thompson of unauthorized use of a

motor vehicle, the Commonwealth was required to prove that he:             (1)

operated the car without the owner’s consent; and (2) knew or had reason

to know that he lacked permission to operate the car. See Commonwealth

v. Carson, 592 A.2d 1318, 1321 (Pa. Super. 1991).




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      In his challenge to the sufficiency of the evidence, Thompson argues

that the Commonwealth could not convict him of receiving stolen property

and unauthorized use of a motor vehicle, because the Commonwealth did

not prove that he knew that the Toyota Highlander was stolen or that the

driver was not allowed to be in possession of the vehicle.

      Here, the evidence, viewed in the light most favorable to the

Commonwealth, was sufficient to establish that the vehicle was stolen. At

the time of his arrest, Thompson was a passenger in a Toyota Highlander

operated by another individual. A police officer had stopped the vehicle for a

traffic violation and asked the driver for her license and registration. While

the driver provided her license, she was unable to produce the vehicle’s

ownership paperwork. At that time, Thompson told the officer that he was

the owner of the vehicle.     Thompson then proceeded to search for the

registration, but to no avail.   As a result, the police officer checked the

vehicle’s VIN, which disclosed that the vehicle was stolen. The officer also

checked the vehicle’s plates and discovered that the plates were registered

to a 1995 Buick, not a Toyota Highlander. The Commonwealth established

that the Toyota Highlander in which Thompson was a passenger was the

same vehicle that was reported stolen three weeks earlier.

      Assuming that the Toyota Highlander in question was a stolen vehicle,

Thompson argues that he cannot be charged with receiving stolen property

and the unauthorized use of a motor vehicle based on the fact that he was a

passenger in a vehicle operated by another individual at the time of the

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traffic stop. See Commonwealth v. Scudder, 416 A.2d 1003 (Pa. 1980)

(defendant could not be charged with receiving stolen property solely

because he was a passenger in stolen vehicle).

     Thompson further claims that his statement regarding ownership of

the vehicle is not enough to show that he was in possession of the vehicle.

See Commonwealth v. Dunlap, 505 A.2d 255, 257 (Pa. Super. 1985)

(evidence insufficient to support conviction for receiving stolen property

even though defendant admitted stolen vehicle belonged to him).

     While Thompson is correct that presence inside of a stolen vehicle by

itself is not enough to support a finding of receiving stolen property,

Thompson overlooks the existence of other evidence.        Unlike Scudder,

where there was “no showing that appellant exercised conscious control or

dominion over [the stolen vehicle and goods],” here the Commonwealth

established that Thompson exercised control over the vehicle by Thompson’s

own statements as to the ownership of the vehicle, as well as Thompson’s

conduct in freely rummaging through the vehicle for the ownership

paperwork. See Scudder, supra at 1005.

     Additionally, in this case, Thompson’s statements to the police

regarding ownership were sufficient to prove possession.    Unlike Dunlap,

where the Commonwealth did not provide evidence of the defendant’s

inability to provide ownership paperwork, here the Commonwealth presented

evidence showing that Thompson did not possess ownership paperwork.

See Dunlap, supra at 258.

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       Next, in his second issue, Thompson argues that the verdict was

against the weight of the evidence.            Before reaching the merits of that

question, we must determine whether the weight claim has been properly

preserved for consideration on appeal.           Commonwealth v. Mikell, 968

A.2d 779, 780 (Pa. Super. 2009).

       The relevant rule, Pennsylvania Rule of Criminal Procedure 607

provides as follows:

       (A) A claim that the verdict was against the weight of the
       evidence shall be raised with the trial judge in a motion for a
       new trial:

              (1) orally, on the record, at any time before sentencing;

              (2) by written motion at any time before sentencing; or

              (3) in a post-sentence motion.

Pa. R. Crim. P. 607(A)(1)-(3).

       Here, Thompson first raised his claim that the verdict was against the

weight of the evidence in his brief on appeal. As he did not comply with Rule

607, his claim is waived and we are precluded from engaging in appellate

review.

       Lastly, Thompson contends that the trial court committed reversible

error when it allowed the Commonwealth to introduce hearsay testimony

regarding the occupation of the driver of the vehicle. 3          However, upon

____________________________________________


3
 Decisions regarding the admissibility of evidence are within the discretion
of the trial court. Commonwealth v. Laich, 777 A.2d 1057, 1060 (Pa.
(Footnote Continued Next Page)


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examination of the record, Thompson objected to the testimony regarding

the driver’s occupation based on relevance, not hearsay.

      To preserve a claim of error, a party must make “a timely objection,

motion to strike, or motion in limine,” as well as state “the specific ground

[for objection], unless it was apparent from the context.”              Pa.R.E.

103(a)(1)(A)-(B).

      The challenged testimony was given by the police officer who stopped

the vehicle in which Thompson was a passenger. Defense counsel suggested

on cross-examination that Thompson told the police that it was his vehicle to

help out “the nice lady” who was giving him a ride home. In response, the

Commonwealth tried to refute the claim, and the following exchange ensued

on redirect examination:

      Q: Were you able to ascertain the profession of the woman that
      was driving the car?

      [Appellant’s Counsel]: Relevance, Your Honor.

      The Court: Sustained unless you can give me some offer of
      proof.

      [ADA]: Your Honor, the offer of proof would be the nice person
      that was driving the individual home isn’t such a nice person.

      The Court: I’ll let it go since you offered up testimony that she
      was a nice person.


                       _______________________
(Footnote Continued)

2001). Thus, this Court will not reverse the trial court's decision unless the
trial court abused its discretion. Id.




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      [ADA]: Were you able to ascertain the profession of the
      individual that’s driving the car?

      A: Yes.

      Q: Okay. And what was that?

      A: She was a bartender.

N.T. Trial, 1/24/13, at 24-25.

      While Thompson now argues that the information regarding the

driver’s occupation is hearsay, Thompson did not articulate this specific

objection at trial.   Instead, Thompson objected to the testimony based on

relevance. The situation here is similar to Commonwealth v. Parker, 104

A.3d 17, 29 (Pa. Super. 2014), where the appellant objected to the

admission of evidence at trial on the basis of relevance, but then claimed on

appeal that the trial court erred in admitting hearsay. Id. This Court denied

relief, noting, “[a]s Appellant failed to state the specific grounds of his

hearsay objection in the trial court, and the specific grounds were not

apparent from the record, the issue is not preserved for appellate review.”

Id.   Similarly, here, Thompson did not preserve the issue.    See Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”).    Thus, Thompson’s hearsay claim is

waived and we are precluded from review it.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2015




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