J-S92026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KENNETH DUAN REESE, JR.

                            Appellant                  No. 736 WDA 2016


               Appeal from the Judgment of Sentence April 1, 2016
                In the Court of Common Pleas of Crawford County
               Criminal Division at No(s): CP-20-CR-0000754-2015


BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                             FILED APRIL 19, 2017

       Kenneth Duan Reese, Jr. appeals from the April 1, 2016 judgment of

sentence entered in the Crawford County Court of Common Pleas following

his jury trial convictions for two counts of conspiracy to commit burglary,1

two counts of conspiracy to commit criminal trespass,2 one count of

conspiracy to commit theft by unlawful taking,3 and one count of receiving

stolen property.4 We affirm.

____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
           18 Pa.C.S. §§ 903(a)(1), §3502(a)(2).
       2
           18 Pa.C.S. §§ 903(a)(1), 3503(a)(1).
       3
           18 Pa.C.S. §§ 903(a)(1), 3921(a).
       4
           18 Pa.C.S. § 3925(a).
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      The trial court provided the following factual summary of the four-day

jury trial:

             Testifying for the Commonwealth were the following:
          Thomas Miller and Joanie Ondrako, whose residences were
          the alleged targets of the conspiracies; Philip Shaffer of the
          Pennsylvania State Police, the investigating officer;
          Zachary Eli Trout (“Trout”) and Craig Alan Hanes, Jr.
          (“Hanes”), two of [Reese’s] alleged co-conspirators; Sage
          Powell, Trout’s girlfriend, who allegedly had contacted the
          State Police about suspicious activities; and Martha
          Wheeler, from whom the State Police allegedly retrieved
          property stolen from Mr. Miller. All except for the trooper
          were sequestered. The defense called only William A.
          Phillips, III (“Phillips”), the remaining co-conspirator.

             Trout had previously pleaded guilty to criminal
          conspiracy to commit burglary, and to theft by receiving
          stolen property, graded as felonies of the first and third
          degree, respectively; he received the maximum county
          incarceration sentence on December 5, 2015.3 Hanes had
          pleaded guilty to burglary and to attempt to commit
          burglary, both first degree felonies, and received the same
          incarceration sentence on December 2, 2015.4 Phillips had
          pleaded guilty to burglary (two counts, as first degree
          felonies), theft by unlawful taking or disposition (two
          counts, as a second degree felony and first degree
          misdemeanor), and theft by receiving stolen property (one
          count, a first degree misdemeanor); he received
          concurrent state sentences on October 8, 2015.5 All three
          had also been charged with offenses occurring at other
          residences during the same time period (April 2015). The
          jury was informed that they were currently serving those
          sentences.
              3
                Case No. CR 578-2015 (Counts 1 and 3; Count 2,
              for burglary, was nolle prossed).
              4
                Case No. CR 579-2015 (Counts 3 and 7; thirteen
              other counts were nolle prossed).
              5
                Case No. CR 51-2015 (Counts 2, 3, 9, 11, 13;
              eighteen other counts were nolle prossed).


                                      -2-
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          Hanes testified that he had known Trout from high
       school, for almost six years, and had known Phillips, who
       had lived across from Hanes’ mother, for three or four
       years. On a day when he and Phillips had been staying at
       Trout’s, they left to burglarize houses. Another evening, in
       April 2015, he, Phillips, and [Reese], who was then also
       staying at Trout’s (as was Trout’s girlfriend), left on foot to
       burglarize more homes, having arranged to have Trout
       pick them up afterwards. [Reese] entered a brown house
       on Rhueville Road through an unlocked rear window, and
       unlocked the front door for the others to follow. They
       removed guns, a black duffle bag, air compressor, and
       other items, and stashed them under a picnic table at a
       house across the street. At a nearby house on Farley
       Lane, they pushed in an air conditioning unit for [Reese] to
       enter; he emerged from the back door a few minutes later
       with only a rifle. They then returned to Trout’s, who took
       them to where they had left the stolen items, which Hanes,
       Phillips, and [Reese] loaded onto the bed of Trout’s pickup
       truck. They unloaded these items at Trout’s, and later, at
       Trout’s direction, took some items to sell to David Simons
       and Ms. Wheeler.        When subsequently questioned by
       Trooper Shaffer, Hanes reported [Reese’s] involvement in
       the second criminal episode. He never told him that
       [Reese] committed all of the burglaries.

          Trout testified that Hanes, Phillips, and [Reese]
       frequently stayed with him and Ms. Powell in April 2015.
       When they left one evening, they said they would call to
       have him pick them up. Trout was the only one with a
       vehicle, and did not specifically know what they planned to
       do. When he picked them all up about two hours later,
       they placed various items in the bed of his Ford Ranger.
       Back at Trout’s, these items were moved to a shed. The
       next day, [Reese] took some tools and firearms from the
       shed, and he left with someone in a van. Returning, he
       asked for a ride to the Andover flea market, and when
       Trout and Ms. Powell met up with him later there, he did
       not have the power converter and tools that he had taken
       along with him. These were items that Trout had seen him
       with when picking up the three the previous evening.
       Trout also took [Reese] to the Simon-Wheeler residence to
       trade some items for marijuana, including a black duffel
       bag containing ammunition which had been in the shed.


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          Ms. Powell stated that [Reese] was among those who
       had stayed at Trout’s in April of 2015. While walking the
       dogs, she had seen him and Hanes and Phillips taking guns
       and other things in and out of the shed, and later reported
       her suspicions to the police. [Reese], sometime in April,
       had asked to be driven to the Andover flea market, where
       he had apparently disposed of some firearms and [a]
       mobile hotspot that she had not seen previously.

          Mr. Miller described his discovery of his summer home
       on Rhueville Road in disarray, with the front door and a
       rear window open. Thirty-two items, including knives,
       guns, ammunition, wifi hotspot, laptop computer, and a
       large black tote had been taken. Ms. Ondrako reported
       that she also had been notified by a neighbor of the break-
       in at her camp on Farley Lane, and had found the air
       conditioner pushed in and cupboard doors open and other
       signs of entry. A rifle, saw, and hunting suit were missing.

          Ms. Wheeler testified that Hanes was a “shirttail”
       relative, and that she had paid Phillips, Hanes, and Trout
       to clean some stalls. Toward the end of April, they came
       to her house in a black pickup truck to sell things to Mr.
       Simons, in exchange for drugs. This happened more than
       once, with different persons coming, including [Reese].
       They said that these things had been bought at flea
       markets, or came from cleaning out Trout’s grandfather’s
       garage.6 The State Police had later contacted her and
       retrieved some tools, a gun, a bucket of bullets, and other
       stolen items.
          6
            Trout mentioned that his grandfather had worked
          for Mr. Simons. Ms. Wheeler was apparently familiar
          with [Reese], as she added, on cross-examination,
          that “Kenny” [Reese] . . . had also tried to sell her
          some jewelry, which she knew to have been stolen
          due to his recent release from prison.

          Trooper Shaffer testified that, while working in the
       crime investigation unit, he had received an anonymous
       call about items sold to Ms. Wheeler and Mr. Simons. He
       met with Ms. Wheeler, who identified Hanes, Trout,
       Phillips, and [Reese] as the sellers. Among the items
       recovered there were tools, a rifle, ammunition, and a
       large black duffle bag bearing Mr. Miller’s name. The


                                  -4-
J-S92026-16


            trooper then obtained a search warrant for the Trout
            residence, where he discovered numerous tools, knives,
            shotgun shells, and a rifle all belonging to Mr. Miller.
            Later, Hanes agreed to accompany him to the Rhueville
            Road area, where he identified the Miller and Ondrako
            residences as the two houses that he, Phillips and [Reese]
            had visited.

               Phillips testified for the defense that he was [] eighteen
            and had a “pretty clear recollection” of events. He had
            stayed at Trout’s three or four times, along with Hanes and
            Ms. Powell. They had gone out to burglarize four houses in
            the Rhueville Road, all at the same time. He and Hanes
            entered by bending and breaking a back door, by breaking
            a window in a garage, and by pushing in an air conditioner.
            Trout drove them back to his place with the rifle, air
            compressor, and other items they had collected, some of
            which were sold to David Simons on two different
            occasions. [Reese] was never present. Phillips had met
            him when [Reese] had stayed overnight once or twice at
            Trout’s. Trout, fearing that they had been discovered, had
            asked him to change his testimony to implicate [Reese],
            and he had agreed to do so.

                Asked on cross-examination whether he remembered
            the brown house, he wasn’t sure, as he had been high and
            very intoxicated. He did not recall making a statement that
            all four had been involved. He was aware that both Hanes’
            and Trout’s statements implicated [Reese] in the
            conspiracies, and that no one had followed through on the
            scheme to blame everything on [Reese].

Memorandum and Order, 4/21/16, at 2-6 (“Post-Sentence Op.”).5

       On     January    22,   2016,     the   jury   found   Reese   guilty   of   the

aforementioned counts.6          On April 1, 2016, the trial court imposed an

____________________________________________


       5
       On June 15, 2016, the trial court issued an opinion pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a) incorporating its post-
sentence opinion as addressing the issues on appeal.




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J-S92026-16



aggregate sentence of 54 to 120 months’ incarceration. 7 On April 11, 2016,

Reese filed a post-sentence motion arguing the evidence was insufficient to

support the verdict and the verdict was against the weight of the evidence.

On April 21, 2016, the trial court denied the motion.        On May 19, 2016,

Reese filed a timely notice of appeal.8

      Reese raises the following issue on appeal:

          I. Whether the verdict of guilty as to five counts of criminal
          conspiracy and one count of theft by receiving stolen


                       _______________________
(Footnote Continued)
      6
        The jury found Reese not guilty of one count of conspiracy to commit
theft by unlawful taking. The trial court declared a mistrial as to seven other
counts: six counts that charged Reese with the offenses underlying the
conspiracy convictions — burglary, theft by unlawful taking, and criminal
trespass — and one count that charged Reese with theft by receiving stolen
property. A nolle pros was later entered for the seven counts.
      7
       The trial court sentenced Reese to 27 to 60 months’ incarceration for
conspiracy to commit burglary of the Rhueville Road residence, a concurrent
term of 21 to 42 months’ incarceration for conspiracy to commit burglary of
the Farley Lane residence, and a consecutive term of 27 to 60 months’
imprisonment for the conviction for theft by receiving stolen property. The
remaining convictions merged for sentencing purposes.
      8
       Reese also filed a pro se notice of appeal on April 28, 2016. On July
25, 2016, this Court dismissed the pro se appeal, docketed at 797 WDA
2016, as duplicative of the instant appeal.

       Further, on July 13, 2016, counsel filed an application to withdraw as
counsel, stating Reese requested that counsel cease representation and
refrain from taking further action. On July 21, 2016, this Court remanded
the case to the trial court for a colloquy of Reese pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). On August 11, 2016,
following a Grazier hearing, the trial court issued an order finding Reese
chose to retain his counsel and denying counsel’s motion to withdraw.



                                            -6-
J-S92026-16


         property was insufficiently supported by the evidence and
         against the weight of the evidence?

Reese’s Br. at 4.

      Reese first claims the evidence was insufficient to support the verdict.

We apply the following standard when reviewing a sufficiency of the

evidence claim:

         [W]hether 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 [finder] 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. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quoting

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)) (some

alterations in original).

      The jury found Reese guilty of two counts of conspiracy to commit

burglary, one count for the burglary on Rhueville Road and one for the

burglary on Farley Lane; one count of theft by receiving stolen property, for



                                     -7-
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property removed from Rhueville Road residence; two counts of conspiracy

to commit criminal trespass, one count for trespass at Rhueville Road and

one count for trespass at Farley Lane; and one count of conspiracy to

commit theft by unlawful taking, for property removed from Rhueville Road

residence.

       Reese maintains the Commonwealth failed to establish that he entered

into a conspiracy or that he had possession or actual control of the property

allegedly taken from the victims’ residences. Reese’s Br. at 9. He argues

that only Hanes testified that any conspiracy existed and that he testified

that the conspiracy was between Hanes, Trout, and Phillips.        Id. at 13.

Reese maintains that Phillips testified Reese had no involvement and that

Wheeler’s testimony confirmed the lack of involvement.9      Id.   He further

contends that the police failed to establish they found any of the stolen

property in his possession. Id.

____________________________________________


       9
        Reese maintains that Wheeler testified that on the weekend when the
sale of the items stolen from the two residences occurred, Reese was not at
her house. Reese’s Br. at 7. Wheeler testified that “[t]owards the end of
April,” Reese and the alleged co-conspirators came to her house to sell items
to Simons. N.T., 1/20/16, at 37. She stated they were there several times.
Id. On cross-examination she stated that the four were never at her house
at the same time; rather, “[i]t was usually two boys or three boys.” Id. at
39. The cross-examination further attempted to establish that on the
weekend of the burglaries, only Trout, Hanes, and Phillips went to sell items
to Simons. Id. at 39-43. However, as the trial court noted, “[t]he possible
sale of some stolen property to Mr. Simons when [Reese] was absent does
not contradict Ms. Wheeler’s testimony that [Reese] appeared at her
residence at other times to sell items.” Post-Sentence Op. at 8.



                                           -8-
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       Criminal conspiracy is defined as follows:

            A person is guilty of conspiracy with another person or
            persons to commit a crime if with the intent of promoting
            or facilitating its commission he:

            (1) agrees with such other person or persons that they or
            one or more of them will engage in conduct which
            constitutes such crime or an attempt or solicitation to
            commit such crime; or

            (2) agrees to aid such other person or persons in the
            planning or commission of such crime or of an attempt or
            solicitation to commit such crime.

18 Pa.C.S. § 903. This Court has stated that:

            [c]ircumstantial evidence may provide proof of the
            conspiracy. The conduct of the parties and the
            circumstances surrounding such conduct may create a
            “web of evidence” linking the accused to the alleged
            conspiracy beyond a reasonable doubt.

Commonwealth v. Irvin, 134 A.3d 67, 75 (Pa.Super. 2016) (quoting

Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007)). Further,

            [a]n agreement can be inferred from a variety of
            circumstances including, but not limited to, the relation
            between the parties, knowledge of and participation in the
            crime, and the circumstances and conduct of the parties
            surrounding the criminal episode. These factors may
            coalesce to establish a conspiratorial agreement beyond a
            reasonable doubt where one factor alone might fail.

Id. (quoting Perez, 931 A.2d at 708).10
____________________________________________


       10
            Burglary is defined as:

            (a) Offense defined.--A person commits the offense of
            burglary if, with the intent to commit a crime therein, the
            person:
(Footnote Continued Next Page)


                                           -9-
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      Theft by receiving stolen property is defined as: “A person is guilty of

theft if he intentionally receives, retains, or disposes of movable property of

another 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 restore it to the owner.”              18 Pa.C.S. § 3925(a).   “Receiving” is




                       _______________________
(Footnote Continued)

          ...

          (2) enters a building or occupied structure, or separately
          secured or occupied portion thereof that is adapted for
          overnight accommodations in which at the time of the
          offense no person is present[.]

18 Pa.C.S. § 3502(a)(2).

      Trespass is defined as:

          (a) Buildings and occupied structures.--

          (1) A person commits an offense if, knowing that he is not
          licensed or privileged to do so, he:

          ...

             (ii) breaks into any building or occupied structure or
             separately secured or occupied portion thereof.

          ...

          (3) As used in this subsection:

          “Breaks into.” To gain entry by force, breaking,
          intimidation, unauthorized opening of locks, or through an
          opening not designed for human access.

18 Pa.C.S. § 3503(a).




                                           - 10 -
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defined as “acquiring possession, control or title, or lending on the security

of the property.” Id. at § 3925(b).

      We conclude the Commonwealth presented sufficient evidence from

which a reasonable jury could find Reese guilty of the crimes beyond a

reasonable doubt.

      The Commonwealth presented evidence that: Reese, Hanes, and

Phillips were staying at Trout’s home; Reese, Hanes, and Phillips went to

burglarize two houses; Reese, Hanes and/or Phillips entered the residences;

Trout then drove to pick up the others; and Reese, Hanes, Phillips, and Trout

returned to Trout’s home with the stolen items.        The evidence further

established that Reese and his co-conspirators sold some stolen items to

Simons and that Reese brought some stolen items to a flea market.         We

conclude this was sufficient to establish Reese had an agreement with

Hanes, Phillips, and/or Trout to burglarize the two homes, an agreement to

trespass on the properties, and an agreement to commit theft by receiving

stolen property from the Rhueville Road home.       See Commonwealth v.

Jones, 874 A.2d 108, 122-23 (Pa.Super. 2005) (finding sufficient evidence

of conspiracy where evidence established close relationship between

appellant and his passengers, all three passengers were present at the

scene, cocaine was in area where any passenger could have seen it and

exercised control over it, and passengers made inconsistent statements

regarding duration and purpose of trip); Commonwealth v. Galindes, 786

A.2d 1004, 1010 (Pa.Super. 2001) (finding sufficient evidence of conspiracy

                                      - 11 -
J-S92026-16



to commit burglary where appellants knocked on front door to determine

whether someone was home, took turns kicking back door, and, when

discovered, fled and fired shots).

      Further, the evidence was sufficient for the jury to find that Reese

received stolen property. Testimony established that Reese participated in

the burglaries where items were stolen; on at least one occasion, Reese

accompanied Trout to sell items to Simons; and Trout drove Reese to a flea

market in Andover, to which Reese brought some of the stolen items and did

not return with them.     Therefore, a jury could find beyond a reasonable

doubt that Reese “acquir[ed] possession, control or title . . . of the

property.” 18 Pa.C.S. § 3925(b)

      Reese next argues the verdict was against the weight of the evidence.

He claims the combination of Phillips’ testimony that Reese was not involved,

which was “seemingly corroborated by” Wheeler, and Trout’s and Hanes’

inconsistent testimony establishes that the verdict was against the weight of

the evidence. Reese’s Br. at 9.

      This court reviews a weight of the evidence claim for an abuse of

discretion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). “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.” Id. (quoting Commonwealth v. Widmer 744 A.2d 745, 753 (Pa.

2000)). “Because the trial judge has had the opportunity to hear and see

                                     - 12 -
J-S92026-16



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.” Id.

      A trial court should not grant a motion for a new trial “because of a

mere conflict in the testimony or because the judge on the same facts would

have arrived at a different conclusion.”          Clay, 64 A.3d at 1055.          “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. (quoting

Widmer, 744 A.2d at 752). Courts have 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.”          Id.    (quoting

Commonwealth v. Brown, 648 A.2d 1177, 1090 (Pa. 1994)).

      Although Phillips testified that Reese was not involved, and Reese

challenged the credibility of other witnesses, the jury was free to credit the

Commonwealth’s evidence linking him to the crime. See Commonwealth

v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) (stating credibility

determination    “lies   solely    within   the    province    of    the    factfinder”);

Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004) (“The weight

of the evidence is exclusively for the finder of fact, which is free to believe

all, part, or none of the evidence, and to assess the credibility of the

                                        - 13 -
J-S92026-16



witnesses.”).   The trial court did not abuse its discretion in finding the

verdict was not against the weight of the evidence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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