J-A22028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

MICHAEL JOHN SETLOCK, JR.

                            Appellant                 No. 183 MDA 2016


          Appeal from the Judgment of Sentence December 14, 2015
              In the Court of Common Pleas of Schuylkill County
             Criminal Division at No(s): CP-54-CR-0001527-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 07, 2016

        Appellant, Michael John Setlock, Jr., appeals from the judgment of

sentence entered in the Schuylkill County Court of Common Pleas, Criminal

Division, following his jury trial conviction for theft by unlawful taking or

disposition and receiving stolen property.1 We affirm.

        On June 3, 2014, Daniel Fanelli, part owner of Fanelli Trucking &

Warehousing, reported a missing gold 2001 Ford F-250 company truck that

usually was parked in the front parking lot of the establishment. The truck’s

door handle assembly was found on the ground where the truck had been.

An officer took Fanelli’s report and later spoke with an employee of a

neighboring business. The employee stated that a truck was found

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1
    18 Pa.C.S.A. §§ 3921(a), 3925(a), respectively.
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abandoned in the alleyway behind the business. The police determined it

was the stolen truck and impounded it. Detective Kirk Becker later processed

it.

      Anne Marie Reedy testified that around the time of June 2014, she and

Appellant were in a relationship, though they had been in an on-and-off-

again relationship since 2012. On the night of June 2, 2014, Appellant told

Reedy that he needed to “make some money”; he arrived at Reedy’s house

around 11:00 p.m. and asked her to go for a ride with him in an F-250

truck. N.T., Trial, 10/26/16, at 68-69. Reedy testified Appellant did not own

a truck, but he often borrowed trucks from his friends, so she entered it.

Reedy noticed there were large spools of covered copper wire in the truck

bed. Appellant drove to an area where the couple burned the covering off

the wire. Once the burning was complete, Appellant drove back to Reedy’s

house to drop off the burned wire. Appellant requested that Reedy stay with

him while he “dump[ed] the truck”; he later disclosed that it belong to

Fanelli Trucking & Warehousing. Id., at 74-75. These revelations angered

Reedy because she realized that the truck was stolen based on Appellant’s

vernacular and that he had stolen it from her employer. Appellant eventually

secured a parking place in an alleyway near Fanelli Trucking & Warehousing

to dispose of the truck. Security video of the business that abutted the

alleyway captured the truck parking and two individuals exiting it. At trial,

Reedy identified herself and Appellant in the video.




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      For an investigation in another case, Detective Becker arrested

Appellant and Reedy. Detective Becker interviewed Reedy, and she provided

him with information relating to Appellant and the events that occurred on

June 2, 2014.

      The Commonwealth filed a criminal information against Appellant

charging him with theft by unlawful taking or disposition and receiving stolen

property. Appellant waived his right to an arraignment and entered a plea of

“not guilty.” A jury trial was held on October 26, 2015, and the jury

convicted Appellant of those charges. On December 14, 2015, the court

sentenced Appellant to 1½ to 3 years’ imprisonment, followed by 4 years’

probation; to pay restitution to Fanelli Trucking & Warehousing and

Bethlehem Regional Crime Laboratory; and to pay prosecution fees and

costs. Appellant filed a post-sentence motion on December 22, 2015. The

court denied Appellant relief. Appellant then filed a timely notice of appeal.

      Appellant raises three issues for our review:

      DID THE TRIAL COURT ERR AND COMMIT AN ABUSE OF
      DISCRETION WHEN IT DETERMINED THAT THE EVIDENCE
      ESTABLISHED AT TRIAL WAS SUFFICIENT AS A MATTER OF LAW
      TO SUPPORT A FINDING OF GUILT ON ALL COUNTS CHARGED?

      DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION
      WHEN IT DETERMINED THAT THE VERDICT WAS NOT AGAINST
      THE WEIGHT OF THE EVIDENCE?

      DID THE TRIAL COURT ERR AND COMMIT AN ABUSE OF
      DISCRETION WHEN IT FAILED TO GIVE STANDARD JURY
      INSTRUCTION § 4.01 ACCOMPLICE TESTIMONY, SINCE THE
      RECORD SHOWS THAT [REEDY] WAS AN ACCOMPLICE AND THE



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        FAILURE   TO         GIVE      THE     INSTRUCTION    PREJUDICED
        [APPELLANT]?

Appellant’s Brief at 4.2

        Appellant first challenges the sufficiency of the evidence. A challenge

to the sufficiency of evidence implicates the following principles:

        The standard we apply in 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 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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations

omitted) (emphasis added).

        A person is guilty of theft by unlawful taking if “he unlawfully takes, or

exercises unlawful control over, movable property of another with intent to

deprive him thereof.” 18 Pa.C.S.A. § 3921(a). A person is guilty of receiving

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2
    For ease of disposition, we have rearranged Appellant’s issues.



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stolen property 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.A. § 3925(a).

      Appellant argues the Commonwealth failed to present sufficient

evidence to establish each of the elements of his convictions because the

Commonwealth’s case relied almost solely on Reedy’s testimony, which

Appellant claims was incredible. Appellant emphasizes that Reedy intended

to use her testimony against Appellant as leverage to force him to commit to

a relationship with her or at least place Appellant in a position where he

needed her to clear him of the charges. Upon being questioned by Detective

Becker and once Reedy involved herself in the incident, Appellant complains

she accused Appellant of being the primary perpetrator. Appellant avers

Detective Becker subsequently relied on Reedy’s statement without more in

bringing charges against Appellant, and not her, and Reedy’s testimony is

the only evidence that implicates him in the crime.

      The trial court addressed this issues as follows:

      A 2001 Ford F-250 truck owned by [Fanelli Trucking &
      Warehousing] was found missing on June 3, 2014. Police called
      the business following the discovery of the theft [and] found the
      truck’s door handle assembly on the ground where the then
      missing truck had been. When the vehicle was recovered about
      two days later . . . it was found to have a broken steering
      column. A recording from a video camera near the site where
      the truck was recovered depicted two persons exiting the vehicle
      and departing from the location.


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      [Reedy] testified that she and [Appellant] had been
      boyfriend/girlfriend on and off since 2012 and that she had been
      in a relationship with [Appellant] in early June 2014. [On t]he
      evening of June 2, 2014, [Appellant] had left, but later returned
      to Reedy’s home at about 11:00 p.m. He asked her to go for a
      ride with him. She did. Although [Appellant] was operating a
      Ford pick-up truck and did not own a truck, Reedy knew that he
      had many friends and borrowed vehicles. Unbeknownst to Reedy
      at the time, [however,] the truck [Appellant] possessed
      belonged to [Fanelli Trucking & Warehousing].

      [Appellant] and Reedy traveled about ten miles to Dark Water
      where they built a fire and burned covering from wire that
      [Appellant] had in the truck. After the coating was burned, they
      returned to the building where Reedy resided and [Appellant]
      put the exposed copper wire by the home. Although Reedy
      desired to go in her residence. [Appellant] said he wanted her to
      stay with him to “dump the truck.” By [Appellant’s] statement,
      Reedy “kind of knew” that the truck was stolen. Reedy “was
      mad” because [Appellant] then told her that it was her boss’s
      truck and she believed she “could now get in trouble for being in
      a stolen vehicle.” Reedy rode with [Appellant] a short distance
      until he parked the vehicle. During trial, Reedy viewed the video
      recording obtained by police from the camera by the parking lot
      where the vehicle was recovered and identified [Appellant] as
      the driver and herself as the passenger depicted in, and then,
      exiting the vehicle.

      The testimony offered by Reedy, together with that of the victim,
      the investigating police officer (Detective Kirk Becker), and the
      exhibited video recording were more than sufficient to sustain
      the Commonwealth’s burden relative to the identity of
      [Appellant] as the perpetrator of the crimes.

Trial Court Opinion, filed 3/15/16, at 3-4 (internal citations omitted). The

record supports the trial court’s reasoning. Appellant’s claim that Reedy’s

testimony was incredible was obviously rejected by the members of the jury

who were the sole judges of credibility at trial.




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      Appellant next contends the Commonwealth’s reliance on Reedy’s

testimony, given the facts and circumstances set forth above, establishes

that the verdict was against the weight of the evidence.

      The weight of the evidence is exclusively for the finder of fact
      who is free to believe all, part, or none of the evidence and to
      determine the credibility of the witnesses. An appellate court
      cannot substitute its judgment for that of the finder of fact.
      Thus, we may only reverse the lower court’s verdict if it is so
      contrary to the evidence as to shock one’s sense of justice.
      Moreover, where the trial court has ruled on the weight claim
      below, an appellate court’s role is not to consider the underlying
      question of whether the verdict is against the weight of the
      evidence. Rather, appellate review is limited to whether the trial
      court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal

citations omitted).

      When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal

quotes and citations omitted).

      The trial court did not abuse its discretion in rejecting Appellant’s claim

that the verdict was against the weight of the evidence.

      In his final issue, Appellant maintains the trial court improperly refused

to give an accomplice jury instruction, given that Reedy’s testimony

indicates she participated in disposing of the truck. Appellant submits he was

prejudiced by the court’s refusal because her testimony was the only


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evidence that tied Appellant to the crime. Appellant concludes he should be

released from custody or granted a new trial with a direction to the trial

court that an accomplice instruction be given. We disagree.

      “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court's

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Galvin, 985 A.2d 783, 788–89 (Pa. 2009) (citation

omitted). Specifically,

      [i]n reviewing a challenge to the trial court’s refusal to give a
      specific jury instruction, it is the function of this Court to
      determine whether the record supports the trial court’s decision.
      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. A jury charge
      will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission which is tantamount to
      fundamental error. Consequently, the trial court has wide
      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties
      and its refusal to give a requested charge does not require
      reversal unless the Appellant was prejudiced by that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013)

(quoting Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.Super. 2006)

(internal citations, quotation marks, and brackets omitted)).

      An accomplice is one who knowingly and voluntarily cooperates
      with or aids another in the commission of a crime. To be an
      accomplice, one must be an active partner in the intent to
      commit the crime. An accomplice must have done something to

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      participate in the venture. A showing of mere presence at the
      scene of a crime is insufficient to support a conviction: evidence
      indicating participation in the crime is required. Even presence at
      the scene of a crime in the company of its perpetrator has been
      held to be insufficient to sustain a conviction.

Commonwealth v. Brady, 560 A.2d 802, 805 (Pa.Super. 1989) (internal

citations, quotation marks, and brackets omitted).

      “An accomplice charge is necessitated not only when the evidence

requires an inference that the witness was an accomplice, but also when it

permits that inference.” Commonwealth v. Upshur, 410 A.2d 810, 812

(Pa. 1980). Thus, “[i]f the evidence is sufficient to present a jury question

with respect to whether the prosecution’s witness was an accomplice, the

defendant is entitled to an instruction as to the weight to be given to that

witness’s testimony.” Commonwealth v. Thomas, 387 A.2d 820, 822 (Pa.

1978). “Where, however, there is no evidence that would permit the jury to

infer that a Commonwealth witness was an accomplice, the court may

conclude as a matter of law that he was not an accomplice and may refuse

to give the charge.” Commonwealth v. Smith, 495 A.2d 543, 549

(Pa.Super. 1985). This is so because “[a] trial court is not obliged to instruct

a jury upon legal principles which have no applicability to the presented

facts. There must be some relationship between the law upon which an

instruction is required and the evidence presented at trial.” Commonwealth

v. Tervalon, 345 A.2d 671, 678 (Pa. 1975). Therefore, “an accomplice

instruction is only warranted when the evidence shows the witness was an


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active partner in the intent to commit the crime.” Commonwealth v.

Phillips, 601 A.2d 816, 822 (Pa.Super. 1992).

      The trial court found that

      there was no evidence that Reedy knowingly and voluntarily
      cooperated with or aided [Appellant] in the actual commission of
      either crime…. Although Defendant argued that Reedy, at some
      point, knew that the vehicle had been stolen, [Appellant] could
      not identify any proof in the record indicating that Reedy had
      done any act to aid in the commission of the crimes or that she
      had the requisite intent to do so.

Trial Court Opinion, filed 3/15/16, at 4-5. Therefore, the trial court refused

to instruct the jury on accomplice liability. The record supports the trial

court’s decision.

      The record evidence does not indicate that Reedy possessed the intent

to commit either crime warranting an accomplice jury instruction. See

Smith, 495 A.2d at 549; Phillips, 601 A.2d at 822. Reedy entered the truck

on the assumption that Appellant had borrowed it from a friend because he

frequently did that. Reedy went with Appellant to burn copper wire; they

dropped the wire off at Reedy’s house; and Reedy stayed in the truck, at

Appellant’s request, while he “dumped” it. At the point of disclosure, Reedy

was merely present while the crimes occurred as a passenger in the truck.

See Brady, 560 A.2d at 805. Appellant failed to establish that Reedy

knowingly and voluntarily cooperated with or aided Appellant in the

commission of the truck theft or receipt of the stolen truck. See id.; 18

Pa.C.S.A. §§ 3921(a), 3925(a). Rather, Reedy was angry that she was


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present while the events were transpiring. Accordingly, the court properly

refused Appellant’s request to give an accomplice jury instruction. See

Galvin, 985 A.2d at 788–89; Sandusky, 77 A.3d at 667.

      Based on the foregoing, we conclude Appellant’s issues are without

merit. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2016




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