Opinion
J-S17010-16 No. 574 WDA 2015
04-07-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. VINCENT A. CORTLESSA, SR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 12, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010837-2014 BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Vincent A. Cortlessa, Sr., appeals from the judgment of sentence entered in the Allegheny County Court of Common Pleas, following his jury trial convictions of theft by unlawful taking or disposition and criminal mischief. We affirm.
18 Pa.C.S.A. §§ 3921(a) and 3304(a)(5), respectively.
In its opinion, the trial court fully and correctly sets forth the relevant facts of this case. Therefore, we have no reason to restate them. Procedurally, the Commonwealth charged Appellant with theft by unlawful taking or disposition and criminal mischief on September 19, 2014. On March 11, 2015, Appellant proceeded to a jury trial; and the jury convicted Appellant of both charged offenses on March 12, 2015. That same day, the court sentenced Appellant to a term of eighteen (18) to thirty-six (36) months' incarceration for Appellant's theft by unlawful taking or disposition conviction and no further penalty for Appellant's criminal mischief conviction. The court also ordered Appellant to pay the victim, Moses Electrical, restitution in the amount of $1,027.58. On April 9, 2015, Appellant filed a timely notice of appeal. On April 20, 2015, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant complied on July 10, 2015.
From the face of the record, Appellant's Rule 1925(b) statement appears to be untimely. During the appeal process, trial counsel withdrew and the court appointed new counsel to represent Appellant on appeal. This change in counsel may account for the late filing of Appellant's Rule 1925(b) statement. Nevertheless, we decline to waive Appellant's issue on appeal because the trial court received the statement and ultimately addressed Appellant's issue in a written opinion. See Commonwealth v. Burton , 973 A.2d 428 (Pa.Super. 2009) (en banc) (allowing for immediate review under these circumstances).
Appellant raises the following issue for our review:
THE COMMONWEALTH FAILED TO PRESENT EVIDENCE SUFFICIENT TO CONVICT [APPELLANT] OF THE CRIMES OF THEFT BY UNLAWFUL TAKING AND CRIMINAL MISCHIEF AS THE JURY NECESSARILY ENGAGED IN SPECULATION AND CONJECTURE WHEN CONSIDERING THE EVIDENCE THAT [APPELLANT] WAS THE INDIVIDUAL WHO STOLE THE ITEMS IN QUESTION FROM THE VEHICLE TRAILER AND THEREFORE FAILED TO MEET ITS BURDEN OF PROVING [APPELLANT] GUILTY BEYOND A REASONABLE DOUBT[?](Appellant's Brief at 8).
Our standard of review for sufficiency of the evidence claims implicates the following legal 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 [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. Jones , 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting Commonwealth v. Bullick , 830 A.2d 998, 1000 (Pa.Super. 2003)).
Section 3921 of the Crimes Code defines the offense of theft by unlawful taking or disposition in relevant part as follows:
§ 3921. Theft by unlawful taking or disposition18 Pa.C.S.A. § 3921(a). Movable property is "property the location of which can be changed, including documents, and anything of value, including tangible and intangible personal property." Commonwealth v. Stetler , 95 A.3d 864, 884 (Pa.Super. 2014), appeal denied, ___ Pa. ___, 108 A.3d 35 (2015). See also 18 Pa.C.S.A. § 3901. "Further, 'property of another' includes property in which 'any person other than the actor has an interest which the actor is not privileged to infringe.'" Id.
(a) Movable property.—A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.
Section 3304 of the Crimes Code defines the offense of criminal mischief in relevant part as follows:
§ 3304. Criminal mischief
(a) Offense defined.—A person is guilty of criminal mischief if he:
* * *
18 Pa.C.S.A. § 3304(a)(5).(5) intentionally damages real or personal property of another;
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Edward J. Borkowski, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed August 26, 2015, at 6-8) (finding: evidence established Appellant's van matched van in surveillance video of theft, Appellant's physical appearance matched individual seen in surveillance video of theft, Appellant was only individual with access to his van, and Appellant became visibly nervous when Officer Beatty questioned Appellant about theft; additionally, when viewing surveillance video of theft at police station, Appellant's body language indicated consciousness of guilt; after viewing surveillance video and all of Commonwealth's evidence, jury concluded Appellant was individual who committed crimes captured by surveillance cameras; thus, evidence was sufficient to sustain Appellant's convictions of theft by unlawful taking or disposition and criminal mischief). Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed.
Judge Shogan joins this memorandum.
Justice Fitzgerald concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/7/2016
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