Opinion
J-S59036-18 No. 3305 EDA 2017
12-31-2018
COMMONWEALTH OF PENNSYLVANIA v. JERICK MARINEY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 5, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005261-2013 BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J. MEMORANDUM BY OTT, J.:
Jerick Mariney appeals from the judgment of sentence imposed on September 5, 2014, in the Court of Common Pleas of Philadelphia County following his conviction by a judge on the charges of burglary, criminal trespass, conspiracy, attempted theft and criminal mischief. Mariney received an aggregate sentence of 34½ to 69 months' incarceration followed by five years of probation. In this appeal, Mariney challenges the sufficiency of the evidence of all crimes as well as a claim the verdict was against the weight of the evidence. After a thorough review of the certified record, submissions by the parties and relevant law, we affirm.
Mariney's direct appeal rights were reinstated by order of the PCRA court on September 17, 2017.
18 Pa.C.S. §§ 3502(a)(4), 3503(a)(1)(ii), 903, 901, and 3304(a)(2), respectively.
We quote the factual history from the Pa.R.A.P. 1925(a) opinion of the trial court.
It was shortly after midnight on April 2, 2013, when Philadelphia Police Officer Brendan Donahue responded to a motorcycle/dirt bike shop at 2008 Clifford Street in Philadelphia. As he pulled up, Officer Donahue observed a running white van parked in near the shop. He blocked the van with his marked police patrol car and approached the van. Although it was running, there was no one in the van.Trial Court Opinion, 1/30/2017, at 2-3.
Officer Donahue then approached the garage doors to the motorcycle shop when he noticed flashlights moving around inside. He proceeded to hug the wall and pull his gun. The first door that he came to was missing a window, and there was broken glass on the ground. As he moved along the wall toward the garage door, it started to lift up, whereupon the officer encountered three males, one of whom was [Mariney]. Several ATV or dirt bikes were lined up in the area of the three men as they opened the door.
Officer Donahue identified himself, whereupon all three men fled. Two of the men fled eastbound on Montgomery Avenue, while [Mariney] ran past the officer and fled west on Montgomery, then south on 31st Street. Officer Donahue gave chase and apprehended [Mariney] after about a block, just as backup officers arrived on the scene. One of those backup officers was Milor Celce, who coincidentally was also a frequent customer of the business, where he had work done on his own motorcycle.
Upon returning to the shop area, Officer Donahue noted pry marks and missing paint on another door to the property, located about twenty to thirty feet from where the running van was parked. The back door was damaged and appeared to have been forced. He also examined the van and found it to have an open cargo area behind the two front seats.
Officer Celce, the back-up officer, also examined the property and observed damage to the rear door and that one of the front glass panes was broken out. He confirmed that two bikes were right at the opened garage door, not where they would ordinarily be stored based on his familiarity with the operation of the shop.
Against this backdrop of evidence, Mariney argues there was insufficient evidence to convict him of burglary, conspiracy and criminal trespass. Specifically, he claims the only thing the Commonwealth proved was that he was in the shop after hours and all other facts needed to convict were merely rank speculation.
When addressing a claim of insufficient evidence, we are mindful that:
A claim impugning the sufficiency of the evidence presents us with a question of law. Commonwealth v. Widmer , 560 Pa. 308, 744 A.2d 745, 751 (2000). Our standard of review is well-established:
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. Estepp , 17 A.3d 939, 943-44 (Pa. Super. 2011) (citing Commonwealth v. Brooks , 7 A.3d 852, 856-57 (Pa. Super. 2010)). "This standard is equally applicable to cases
where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." ( Commonwealth v. Sanders , 426 Pa.Super. 362, 627 A.2d 183, 185 (1993)). "Although a conviction must be based on 'more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.' " Commonwealth v. Gainer , 7 A.3d 291, 292 (Pa. Super. 2010) (quoting Commonwealth v. Badman , 398 Pa.Super. 315, 580 A.2d 1367, 1372 (1990)).Commonwealth v. Antidormi , 84 A.3d 736, 756 (Pa. Super. 2014).
The trial court's Pa.R.A.P. 1925(a) opinion has accurately described the elements of the crimes and analyzed Mariney's claims, finding no merit to them. Our review confirms the trial court's determinations and we rely on the trial court's opinion in this respect. See Trial Court Opinion, 1/30/2017, at 3-7. Although we rely on the trial court's opinion, we highlight aspects of that decision.
The circumstantial evidence against Mariney was substantial. He was discovered in a business, after hours, in the middle of the night, using a flashlight to navigate his way though the building. He and his companions had left a van, capable of transporting stolen vehicles, running outside the building. Merchandise was lined up near the garage door, as if being readied for transport. A window was broken out and a door had pry marks on it, clearly suggesting, along with all of the other relevant facts, entry was not by permission. Finally, consciousness of guilt was established by his and his companions' flight. When viewed in totality, and in the light most favorable to the Commonwealth as verdict winner, there is no doubt that all the elements of burglary, criminal trespass and conspiracy have been met. Mariney's suggestion that, "[w]hat occurred here is certainly consistent with [Mariney] and others entering the building so as to examine the very nice motorcycles that were there," borders on the nonsensical. Mariney's Brief at 8.
Finally, we note that Mariney's claim the verdict is against the weight of the evidence has been waived.
[A] challenge to the weight of the evidence must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607(A)(1)-(3). "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." Comment to Pa.R.Crim.P. 607. If an appellant never gives the trial court the opportunity to provide relief, then there is no discretionary act that this Court can review. Commonwealth v. Thompson , 93 A.3d 478, 491 (Pa. Super. 2014). Further, [...] , issues not presented in a court-ordered Pa.R.A.P. 1925(b) statement are deemed waived on appeal. Pa.R.A.P. 1925(b)(4)(vii).Commonwealth v. Jones , 191 A.3d 830, 834-35 (Pa. Super. 2018) (footnotes omitted).
Because Mariney neither raised the issue before the trial court, nor included it in his Pa.R.A.P. 1925(b) statement, the claim has been waived.
Judgment of sentence affirmed. Parties are directed to attach a copy of the January 30, 2017, trial court opinion in the event of further proceedings. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/31/18
Image materials not available for display.