J-S33005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DENNIS MICHAEL HANNAN                      :
                                               :
                       Appellant               :   No. 3818 EDA 2017

            Appeal from the Judgment of Sentence October 31, 2017
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003328-2017


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 31, 2018

        Dennis Michael Hannan appeals from the judgment of sentence of two

years of probation, which was imposed after the trial court, in a non-jury trial,

convicted him of theft by unlawful taking of movable property.1 We affirm.

        On March 15, 2017, [Colleen] Hanna met [Hannan], whom she
        befriended through Facebook, for drinks at a restaurant in
        Conshohocken, Montgomery County, Pennsylvania[.] N.T.,
        [10/31/2017], p. 7, 8[].       After having a few drinks each,
        Ms. Hanna and [Hannan] went to a club before arriving at the
        home of Ms. Hanna’s friend in Conshohocken later that night. Id.
        at 8, 9, 10. Ms. Hanna left her car at the restaurant, and [Hannan]
        drove her to the club and then to her friend’s home. Id. at 9, 10.
        Later, [Hannan] agreed to drive Ms. Hanna back to her car. Id.
        at 10. Because someone else parked behind [Hannan]’s car in the
        driveway, Ms. Hanna volunteered to move the car so she and
        [Hannan] could leave. Id. Ms. Hanna moved the car, and then
        went inside the home to return the keys to the car she moved.
____________________________________________


   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. § 3921(a).
J-S33005-18


     Id. at 12. By the time Ms. Hanna walked outside to leave with
     [Hannan], he was gone. Id. Ms. Hanna attempted to contact
     [Hannan] via phone calls and text messages. Id. [Hannan] drove
     away with several of Ms. Hanna’s personal possessions, including
     a suede faux fur jacket, a Dooney and B[o]urke handbag, and car
     keys. Id. at 12, 13, 19-20. Inside the handbag, Ms. Hanna had
     radiation goggles, two radiation dosimeter badges, and her work
     identification card. Id. at 13, 14. The value of Ms. Hanna’s
     personal possessions calculated to approximately $1,300. Id. at
     12, 13, 14, 20. Sometime before four o’clock in the morning,
     Ms. Hanna contacted police to report her stolen possessions. Id.
     at 12. [Hannan] only answered one of Ms. Hanna’s phone calls -
     he disclosed to her, at four o’clock in the morning, that he was in
     Kensington, which is a neighborhood within Philadelphia. Id.

     Matthew Bahn, an officer with the Conshohocken Borough Police
     Department, responded to Ms. Hanna’s call on March 15 and
     reported to the home of Ms. Hanna’s friend in Conshohocken. Id.
     at 21, 22. He met with Ms. Hanna, who described how [Hannan]
     left with her personal possessions in his car.1 Id. at 22. Officer
     Bahn called [Hannan] several times, and left voicemails, but
     received no response from [Hannan]. Id. at 23, 24. When he
     called [Hannan], Officer Bahn could tell that “the phone would ring
     at various lengths” and, on one occasion, “the call waiting tone
     was audible.” Id. at 23. Officer Bahn patrolled by [Hannan]’s
     home “to see if he would arrive home.” Id. at 24. [Hannan] did
     not return home. Id. at 25. It was not until March 17, 2017 that
     Norristown Police Department found [Hannan]’s car at a motel.
     Id. at 25-26, 28. Officer Bahn recovered Ms. Hanna’s personal
     possessions from inside [Hannan]’s car. Id. at 26. He later
     arrested [Hannan] on March 29, 2017. Id. at 27.
        1  Ms. Hanna told Officer Bahn that she went to look for
        [Hannan] at his home in Conshohocken, but called police
        after she spoke with Christine Bertino, [Hannan]’s girlfriend.
        Id. at 23.

     [Hannan was charged with one count of theft by unlawful taking
     or disposition, a misdemeanor of the first degree.]

                                 *    *    *

     [Hannan] waived his right to a jury trial, and proceeded with a
     bench trial . . . on October 31, 2017. Id. at 4-5. [Hannan]
     testified at trial.  [Hannan] explained how he suffers from
     alcoholism, and was in recovery when he met Ms. Hanna for drinks

                                     -2-
J-S33005-18


       on March 15. Id. at 33. [Hannan] admitted he drank at the
       restaurant that night, but does not remember leaving the
       restaurant with Ms. Hanna. Id. at 34. In fact, [Hannan] did not
       remember anything that occurred that night except meeting
       Ms. Hanna for drinks. Id. Although [Hannan] had a limited
       recollection of his whereabouts on March 15, he did “remember
       waking up in a motel in Norristown” the next day. Id. at 34, 35.
       He called police, and requested that they transport him to a
       hospital. Id. at 35. He was hospitalized up until March 29 when
       Officer Bahn arrested him. Id. at 35, 36, 38.

       Immediately following the bench trial, [the trial judge] found
       [Hannan] guilty of one count of theft by unlawful taking or
       disposition[.]

Trial Court Opinion, 12/28/2017, at 1-3. Hannan did not make any motions

on the record between his conviction and the beginning of the sentencing

hearing, including no challenges to the weight of the evidence or motions for

a new trial. N.T., 10/31/2017, at 43. The trial court sentenced Hannan to

two years of probation. This appeal followed.2

       Hannan raises the following issues on appeal:

       I.     Was the verdict against the weight of evidence?

       II.    Was the evidence insufficient to support the guilty verdict?

Hannan’s Brief at 6.

       As a preliminary matter, generally, a challenge to the weight of the

evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607.

The Rule provides:


____________________________________________


2  On November 28, 2017, the trial court ordered Hannan to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and Hannan complied on December 7, 2017. On December 28, 2017, the trial
court entered an opinion pursuant to Pa.R.A.P. 1925(a).

                                           -3-
J-S33005-18


      (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).    “As noted in the comment to Rule 607, the

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004).

      The fact that [an a]ppellant included an issue challenging the
      verdict on weight of the evidence grounds in his 1925(b)
      statement and the trial court addressed [the a]ppellant’s weight
      claim in its Pa.R.A.P 1925(a) opinion d[oes] not preserve his
      weight of the evidence claim for appellate review in the absence
      of an earlier motion.

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009); accord In

re Estate of Smaling, 80 A.3d 485, 491 n.2 (Pa. Super. 2013) (en banc)

(“the inclusion of a weight claim in an appellant’s Rule 1925(b) statement did

not preserve his weight of the evidence claim for appellate review in the

absence of an earlier motion, even where the trial court addressed the

appellant’s weight claim in its Pa.R.A.P. 1925(a) opinion”).

      Instantly, Hannan failed to challenge the weight of the evidence before

the trial court in a motion for a new trial.   See N.T., 10/31/2017, at 43;

Pa.R.Crim.P. 607. Rather, Hannan raised his weight claim for the first time in

his concise statement. See Sherwood, 982 A.2d at 494; Smaling, 80 A.3d




                                     -4-
J-S33005-18



at 491 n.2. Therefore, his first issue on appeal is waived. See Pa.R.Crim.P.

607; Sherwood, 982 A.2d at 494; Smaling, 80 A.3d 485, 491 n.2.

      Next, Hannan challenges the sufficiency of the evidence to support his

conviction of theft. Theft by unlawful taking of movable property is defined at

18 Pa.C.S. § 3921(a):

      A person is guilty of theft if he unlawfully takes, or exercises unlawful

control over, moveable property of another with intent to deprive thereof.

18 Pa.C.S. § 3921(a).

      Specifically Hannan contends:

      [He] was convicted on clear and mere speculation, as [he] never
      took control of [Hanna]’s bag and coat, had no knowledge that
      they were in the vehicle and clearly did not have any intent to
      deprive [Hanna] of her property. . . . In the instant case,
      Mr. Hannan never had any “thieving state of mind” let alone any
      inference of any intent to take and deprive [Hanna] of her bag and
      coat.

Hannan’s Brief at 23-24.

      Further, Hannan claims the Commonwealth failed to establish the

requisite intent when the only evidence of intent was his failure to answer his

telephone. Id. at 25. Accordingly, the only element of the crime Hannan

challenges is intent.

      Our standard of review is as follows:

      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. . . .



                                      -5-
J-S33005-18


      Finally, the trier of fact while passing upon the credibility of
      witnesses . . . , is free to believe all, part or none of the evidence.

Commonwealth v. Fortson, 165 A.3d 10, 14–15 (Pa. Super.) (citation and

internal brackets omitted), appeal denied, 174 A.3d 558 (Pa. 2017).

      The trial court’s analysis of the sufficiency of the evidence is as follows:

      Here, the evidence was sufficient to support a guilty verdict for
      theft by unlawful taking or disposition because [Hannan] drove
      away with Ms. Hanna’s personal possessions in his car and did not
      attempt to return any of her belongings. []N.T., [10/31/2017], p.
      12, 26.[] After many failed attempts to contact [Hannan] about
      the return of Ms. Hanna’s possessions, Officer Matthew Bahn
      recovered Ms. Hanna’s belongings from inside [Hannan]’s car. Id.
      at 23, 26. Because [Hannan] kept Ms. Hanna’s personal
      possessions in his car until Officer Bahn reclaimed them,
      and did not attempt to return anything, [Hannan] thus
      intended to deprive Ms. Hanna of her belongings.

Trial Court Opinion, 12/28/2017, at 7 (emphases added).

      Furthermore, in the trial court’s analysis of the weight of the evidence,

the judge also stated the following about his consideration of Hannan’s intent

and his conclusions, as fact-finder, about the witnesses’ credibility:

      Officer Matthew Bahn . . . called [Hannan] several times, and left
      [Hannan] two voicemails. [N.T., 10/31/2017,] at 23. [Hannan]
      never responded. Id. at 24. When Officer Bahn called [Hannan],
      he could tell that his “phone would ring at various lengths” and,
      on one occasion, “the call Waiting tone was audible.” Id. at 23.
      . . . Therefore, the [trial judge] chose to believe the
      testimony of Ms. Hanna and Officer Bahn, and not the
      testimony of [Hannan], because the evidence suggests that
      [Hannan] purposely avoided phone calls from both
      Ms. Hanna and Officer Bahn, and thus intended to keep
      Ms. Hanna’s possessions when he drove away and did not
      attempt to later return anything.

Id. at 5 (emphases added).




                                       -6-
J-S33005-18



      The trial judge, as fact-finder, thus considered whether Hannan had the

requisite intent to deprive Hanna of her movable property. See 18 Pa.C.S.

§ 3921; Trial Court Opinion, 12/28/2017, at 5, 7. We will not and must not

substitute our judgment for that of the fact-finder, and all credibility

determinations are the prerogative of the fact-finder. See Fortson, 165 A.3d

at 14-15. Here, the trial judge weighed the trustworthiness of the witnesses

and did not find Hannan’s testimony to be credible.       Trial Court Opinion,

12/28/2017, at 5. When accepting the trial judge’s credibility determinations

and viewing all evidence admitted at trial in the light most favorable to the

Commonwealth as verdict winner, there was sufficient evidence to enable the

trial judge, as fact-finder, to find the element of intent and therefore to find

theft by unlawful taking of moveable property beyond a reasonable doubt.

See 18 Pa.C.S. § 3921; Fortson, 165 A.3d at 14.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/18




                                     -7-
