J-S23017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRIAN DERCOLE

                            Appellant                 No. 1491 EDA 2015


             Appeal from the Judgment of Sentence March 4, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013541-2014


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                  FILED JUNE 20, 2016

        Brian Dercole appeals from the judgment of sentence imposed on

March 4, 2015, in the Court of Common Pleas of Philadelphia County

following his conviction1 on the charges of theft by unlawful taking and

access device fraud.2 Dercole received an aggregate sentence of eight to 23

months’ incarceration followed by three years of probation.     In this timely

appeal, Dercole claims there was insufficient evidence to support his

conviction in that all evidence was hearsay and/or circumstantial.3 After a
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    Dercole received a bench trial before the Honorable Joan A. Brown.
2
    18 Pa.C.S. §§ 3921(a) and 4106(a)(1), respectively.
3
  See Dercole’s Pa.R.A.P. 1952(b) statement of error complained of on
appeal.
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thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.

      We recite the facts as related by the trial court in the Rule 1925(a)

opinion.

      At the bench trial on March 4, 2015, Commonwealth witness
      Stacy Calabretta testified that she resides at 505 Cross Street in
      Philadelphia. She resides there with her fiancé John Crane. She
      was having contractor/remodeling work done at her property in
      June/July 2014. She hired Creative Kitchens and Baths, LLC, to
      do the needed repairs.       Perry Carson is the owner of the
      business and he had access to her property. Usually, Ms.
      Calabretta’s father would provide the key to the contractors and
      their employees to gain access to perform their tasks.
      Sometime near the end of June, 2014, while she was away on
      vacation, Ms. Calabretta gave instructions for her father to keep
      providing access to the contractor employees. Upon her return
      from vacation she noticed that her ATM/Debit card was missing
      and that jewelry was missing from her bedroom.       Upon further
      investigation through her bank she confirmed that the debit card
      was used for approximately 8 transactions without her
      knowledge or permission. They were fraudulent. Ms. Calabretta
      eventually contacted Perry Carson and informed him of the
      missing items.

      Mr. Caron admitted in testimony that the last person at the
      residence on or about June 28, 2014 was defendant Brian
      Dercole, who went to the property by himself with instructions to
      lock the door and put the key through the mail slot for Ms.
      Calabretta’s father to return that evening and get it back.

      Mr. Carson decided to confront [Dercole] regarding the theft at
      505 Cross Street. He utilized a ruse to determine if he was the
      perpetrator. His conversation was as follows:

           By Perry Carson:

           Q: Did you speak to [Dercole] about this?

           A: I did speak to Brian.


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        Q: What, if anything, did he say to you?

        A: Well, I kind of misled him as I do a lot of my employees
        if they break something or do something wrong with a
        truck, there’s ways to get it out of them. I said, Bri, listen,
        you know, the cops are contacting me, they have you on
        camera using her card at the gas station. Mr. Dercole
        admitted that he had the cards in his pocket but that he
        didn’t take them. That he had actually found them out
        front of her home. And the jewelry, he would never admit
        to me.

        THE COURT: I’m sorry, what about the jewelry?

        THE WITNESS: He would never admit it to me. He had
        actually shut his phone off, all his social media contact and
        everything was shut off that night so I had no way of
        talking to him every [sic] again.

        Mr. Carson testified that [Dercole] never returned to work
        and that he never heard from him again.

     [Dercole] testified on his own behalf and denied taking anything
     from the property. He admitted access to the property of Ms.
     Calabretta, including having the key on or about June 28, 2014.
     He also admitted to a series of crimen falsi charges.

Trial Court Opinion, 6/16/2015, at 2-4 (citations to notes of testimony

omitted).

     Initially, we note,

     The standard of review for claims of insufficient evidence is well-
     settled. With respect to such claims, we consider the evidence in
     the light most favorable to the Commonwealth as verdict winner.
     Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa. Super.
     2005). In that light, we decide if the evidence and all reasonable
     inferences from that evidence are sufficient to establish the
     elements of the offense beyond a reasonable doubt. Id. We keep
     in mind that it was for the trier of fact to determine the weight of
     the evidence and the credibility of witnesses. Id. The jury was
     free to believe all, part or none of the evidence. Id. This Court

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      may not weigh the evidence or substitute its judgment or that of
      the factfinder. Id.

Commonwealth v. Devries, 112 A.3d 663, 667 (Pa. Super. 2015) (citation

omitted).

      Additionally,

      The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence. Accordingly, the fact that the evidence
      establishing a defendant's participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence.

Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citation

omitted).

      Finally, we note,

      “[i]n evaluating the sufficiency of the evidence, we do not review
      a diminished record.” Commonwealth v. Palmer, 751 A.2d
      223, 227 (Pa. Super. 2000). “Rather, the law is clear that we are
      required to consider all evidence that was actually received,
      without consideration as to the admissibility of that evidence or
      whether the trial court's evidentiary rulings are correct.” Id.

Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005).

      Here, the evidence presented at trial, when viewed in the light most

favorable to the Commonwealth as verdict winner, along with all reasonable

inferences drawn therefrom, provides sufficient evidence to support the

convictions.   On the last day of work at the Calabretta residence, Dercole

was the sole person with access to that residence, providing him with ample

opportunity to have found and taken the ATM card and jewelry. When he

was told that the police had video evidence of him using the ATM card at a


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gas station, Dercole admitted he had possession of the card but claimed that

he had obtained it innocently, having found it on the ground.             Despite his

assertion of innocence, Dercole did not return to work and essentially

remained   incommunicado     thereafter,     shutting   down   all    methods       his

employer had to contact him.      Dercole’s admission taken with the other

circumstantial   evidence   provided    sufficient   foundation      to   support    a

determination Dercole stole the ATM card. Thereafter, this evidence permits

a reasonable inference that he took the jewelry, as well.

      To the extent Dercole claims his conviction was based upon hearsay,

we note that he has not challenged any of the trial court’s evidentiary

rulings. In any event, such claim is essentially a request that we review a

diminished record to determine the sufficiency of the evidence. Pursuant to

Commonwealth v. Gray, supra, we may not do so.

      To the extent that Dercole claims the testimony of this employer, Perry

Carson, was self-serving and unworthy of belief, this represents an

argument that the verdict was against the weight of the evidence, not the

sufficiency of the evidence. See Commonwealth v. Griffin, 64 A.3d 932,

939 (Pa. Super. 2013) (argument against the credibility of witnesses’

testimony attacks the weight of the evidence, not sufficiency.)            However,

Dercole never challenged the weight of the evidence before the trial court.

Accordingly, any such a claim is waived. See Commonwealth v. Priest,




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18 A.3d 1235 (Pa. Super. 2011) (weight of evidence claim waived for failure

to present claim in the lower court).

      In light of the foregoing, Dercole is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016




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