Com. v. Kiss (memorandum)

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J-S73018-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. SAMUEL JOSEPH KISS Appellant No. 323 WDA 2012 Appeal from the Judgment of Sentence January 27, 2012 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001992-2011 BEFORE: SHOGAN, J., OTT, J., and COLVILLE, J.* MEMORANDUM BY OTT, J.: Filed: February 15, 2013 Samuel Joseph Kiss brings this appeal from the judgment of sentence imposed on January 27, 2012, in the Court of Common Pleas of Fayette County. A jury found Kiss guilty of theft by unlawful taking, and theft by receiving stolen property.1 The trial court sentenced Kiss to serve a term of imprisonment of 14 months to 48 months on the charge of theft by unlawful taking, and imposed no further penalty on the theft by receiving stolen property charge. The sole issue raised in this appeal is a challenge to the sufficiency of the evidence. Based upon the following, we affirm. ____________________________________________ * 1 Retired Senior Judge assigned to the Superior Court. See 18 Pa.C.S. §§ 3921(a), 3925(a), respectively. Both crimes were graded as misdemeanors of the first degree. See 18 Pa.C.S. § 3903(b). J-S73018-12 The parties are well acquainted with the facts underlying Kiss s convictions, and we adopt the trial court s factual summary. See Trial Court Opinion, 1/27/2012, at 1 5. Kiss contends that [t]he Commonwealth failed to prove beyond a reasonable doubt that [Kiss] took or removed the items in question. Kiss s Brief at 7.2 Our standard of review and the applicable criminal statutes are as follows: In reviewing a claim regarding the sufficiency of the evidence, an appellate court must determine whether the evidence was sufficient to allow the fact finder to find every element of the crimes charged beyond a reasonable doubt. In doing so, a reviewing court views all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth. Furthermore, in applying this standard, the Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence. When performing its review, an appellate court should evaluate the entire record and all evidence received is to be considered, whether or not the trial court s rulings thereon were ____________________________________________ 2 Kiss timely complied with the order of the trial court to file a statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and claimed [t]he Commonwealth failed to prove beyond a reasonable doubt that [Kiss] took or removed the items in question. Kiss s Concise Statement, 2/22/2012. We note that the claim framed by Kiss in his Rule 1925(b) statement, and the issue and argument set forth in Kiss s brief only concern his conviction on the charge of theft by unlawful taking, 18 Pa.C.S. § 3921(a). See Kiss s Brief at 7, 9 12. Therefore, only that conviction is properly before us for review, and the question of sufficiency of the evidence as it relates to the conviction for theft by receiving stolen property, 18 Pa.C.S. § 3925(a), may be deemed subject to waiver. -2- J-S73018-12 correct. Additionally, we note that the trier of fact, while passing on the credibility of witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence. **** To uphold a conviction for theft by unlawful taking, the Commonwealth must establish the accused unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof. 18 Pa.C.S.A. § 3921(a). **** Receiving stolen property is established by proving that the accused 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 of with intent to restore it to the owner. 18 Pa.C.S.A. § 3925(a). Commonwealth v. Galvin, 985 A.2d 783, 789, 791 792 (Pa. 2009), cert. denied, 130 S. Ct. 2345 (U.S. 2010) (case citations omitted). Testimony at Kiss s trial established that, on the morning of July 23, 2011, Mark Metger, the manager of Sprouts Place, a salvage company, located in Hopwood, Pennsylvania, discovered that a portion of inventory was missing: 30 batteries, two racing wheels, and six radiators. Later that morning, after calling police and other recycling shops, Metzger received a return call from Cherokee Fur Post, which he relayed to Pennsylvania State Trooper Edward Stasko, who was investigating the matter. Metzger later identified the missing parts from pictures taken by Trooper Stasko at Cherokee Fur Post. N.T., 1/5/2012, at 9 18. -3- Meanwhile, Trooper Stasko J-S73018-12 interviewed Ed Regula, the owner of the Cherokee Fur Post, who informed Trooper Stasko he had made a purchase of batteries, racing wheels and radiators that morning. Id. at 24, 28 30, 37 38. Regula could not identify the seller, but was able to provide the seller s name, and information recorded during the transaction. Id. at 29 32, 39. Trooper Stasko, having the seller s name, a check amount ($219.00), and an operator s license number used NCIC and CLEAN3 databases to obtained an address, where he went and found several individuals exiting a Jeep vehicle in front of the residence. Id. at 39 41. Trooper Stasko asked for Samuel Kiss, who identified himself and, when Trooper Stasko explained to Kiss why he was there, Kiss immediately said, I did it, I needed the money. Id. at 41 42, 53 54. Trooper Stasko then took Kiss into custody, provided him with Miranda4 warnings, and transported him to the police barracks where Kiss wrote out a statement detailing his actions. Id. at 42, 47 48, 51 52.5 ____________________________________________ 3 National Crime Information Center and Commonwealth Law Enforcement Assistance Network, respectively. 4 Miranda v. Arizona, 384 U.S. 436 (1966). 5 Kiss s July 23, 2011 written statement reads: I went to a place in Hopwood last night around 11:30. I went behind the big blue building and took batteries, 2 wheels and radiators to Cherokee Fur Post for $219.00 ¦. Yes, I did take the belongings and it did not belong to me. I took all the (Footnote Continued Next Page) -4- J-S73018-12 Kiss now claims that the Commonwealth failed to sustain its burden of proof for theft by unlawful talking, because no one identified him as the person who took the items from Sprout s Place, as neither Metzger or Regula could identify him. This argument is meritless since the name and license number recorded at the Cherokee Fur Post sale, together with Kiss s admission and his written statement, were ample evidence upon which the jury could conclude beyond a reasonable doubt that Kiss unlawfully [took] moveable property of another with intent to deprive him thereof. 6 In this regard, the jury, as fact-finder and assessor of credibility, was free to reject Kiss s defense that he only assisted his brother-in-law in selling the items without knowing they were stolen;7 that his admission to Trooper Stasko simply meant that he had transacted a sale at the Cherokee Fur Post;8 and that the only true part of his written statement was the last part, i.e., that (Footnote Continued) _______________________ belongings with a vehicle that was a black Cherokee Jeep by myself. I took the belongings (items) this morning around 10:00 to Cherokee Fur Post. [It] issued me a check of $219.00 and [I] cash[ed] it this morning at First Niagara Bank. N.T., 1/5/2012, at 51 52; Commonwealth Exhibit 1. 6 18 Pa.C.S. § 3921(a). 7 N.T., 1/5/2012, at 60 61. 8 Id. at 63, 74. -5- J-S73018-12 he had sold the items at the Cherokee Fur Post and cashed the check for $219.00.9 Accordingly, applying our standard of review, and viewing the evidence both direct and circumstantial in the light most favorable to the Commonwealth, Kiss s sufficiency challenge fails.10 See Commonwealth v. Galvin, supra. Judgment of sentence affirmed. ____________________________________________ 9 Id. at 66, 77. 10 Furthermore, were the sufficiency challenge for the conviction for theft by receiving stolen property, 18 Pa.C.S. § 3925(a), not waived, we would reject such contention based upon the above discussion of the evidence. -6-

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