Com. v. Yellin, S. (memorandum)

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J-A14034-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. SETH LOWELL YELLIN, Appellant No. 2033 MDA 2013 Appeal from the Judgment of Sentence October 17, 2013 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000517-2013 BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STRASSBURGER,* JJ. MEMORANDUM BY STRASSBURGER, J.: FILED JULY 11, 2014 Seth Lowell Yellin (Appellant) appeals from the judgment of sentence entered October 17, 2013, after he was found guilty of carrying a false identification card and exhibiting a f 1 We affirm. On February 22, 2013, Appellant was stopped on suspicion of retail theft by security personnel at a store in State College, Pennsylvania. Officer Ken Shaffer of the State College Police Department was called out to the store to investigate. Upon arrival, security personnel handed Officer Shaffer Appellant. Officer Shaffer then spoke with Appellant, who admitted that he attempted to take a beer mug from the store without paying for it, and that ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 6310.3(a) and 75 Pa.C.S. § 1571(a)(5), respectively. J-A14034-14 in 1990. However, Appellant was actually born in 1994. As Officer Shaffer drove Appellant to the booking center, Appellant apologized for possessing the fraudulent license. Appellant explained that he acquired it online through As a result of these events, Appellant was charged with the aforementioned offenses. Appellant also was charged with retail theft. Following a bench trial on September 12, 2013, Appellant was found guilty license, but found not guilty of retail theft. On October 17, 2013, Appellant ely filed a notice of appeal. The trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925, and Appellant timely complied. Appellant now raises the following issues on appeal. 1. Did the trial court err in finding that the evidence was sufficient for a conviction of Violation Concerning Licenses Exhibiting False Identification and Carrying False Identification Card? 2. Did the trial court err in convicting [Appellant] of a Vehicle Code violation as opposed to the lesser offense of Possession of False Identification under the Crimes Code? -2- J-A14034-14 Appellant first contends that the evidence presented at trial was insufficient to support his convictions. We consider a challenge to the sufficiency of the evidence mindful of the following.2 As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he 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. Significantly, we may ____________________________________________ 2 appeal fails to state which elements of the relevant crimes the Commonwealth allegedly failed to prove. Generally, [i]f Appellant wants to preserve a claim that the evidence was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. This Court can then analyze the element or Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008) (quoting Commonwealth v. Flores, 921 A.2d 517, 522 (Pa. Super. 2007) (superseded by statute and overruled in part on other grounds)) (emphasis omitted). A failure to do so may result in waiver. Id. Here, because Appellant was convicted of only two relatively simple criminal offenses, we conclude that waiver is inappropriate. See Commonwealth v. Laboy, 936 A.2d 1058, 1060 ( claim was properly preserved despite a vague Rule 1925 statement in a relatively straightforward drug case, [i]t may be possible in more complex criminal matters that the common pleas court may require a more detailed statement to address the basis for a sufficiency challenge . -3- J-A14034-14 not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld. Commonwealth v. Stays, 70 A.3d 1256, 1266 (Pa. Super. 2013) (citations and quotation marks omitted). The offense of carrying a false identification card is defined as follows. (a) Offense defined.--A person commits a summary offense for a first violation and a misdemeanor of the third degree for any subsequent violation if he, being under 21 years of age, possesses an identification card falsely identifying that person by name, age, date of birth or photograph as being 21 years of age or older or obtains or attempts to obtain liquor or malt or brewed beverages by using the identification card of another or by using an identification card that has not been lawfully issued to or in the name of that person who possesses the card. 18 Pa.C.S. § 6310.3(a). The offense of is defined as follows. (a) Offenses defined.--It is unlawful for any person: *** (5) To exhibit or cause or permit to be exhibited or have in 75 Pa.C.S. § 1571(a)(5). at trial, that [Appellant] not only possessed a false identification card, but evidence was therefore sufficient -4- J-A14034-14 1/10/2014, at 3. In response, Appellant argues that Officer Shaffer never testified to seeing him in possession of the fraudulent license, and that the Commonwealth failed to establish how the license was obtained. Brief at 10-12. Upon reviewing the record in this matter in the light most favorable to the Commonwealth, it is clear that sufficient evidence was presented to establish that Appellant possessed the fraudulent license. The license is include that Appellant twice admitted that the fraudulent license was his. N.T., 1/10/2014, at 8, 13. Appellant even explained to Officer Shaffer how he obtained the license. Id. at 13-14. Thus, regardless of whether Officer Shaffer ever saw Appellant in physical possession of the fraudulent license, essed it. Both of the offenses of which Appellant was convicted require mere possession, and testimony regarding the actual exhibition of the license was unnecessary. Even if testimony of exhibition were required, Officer Shaffer testified that Appellant admitted to handing the fraudulent license to the -5- J-A14034-14 identification card that he had handed to the security officers when we 3 Appellant next claims that the trial court erred by convicting him of both , graded as a misdemeanor, as well as carrying a false identification card, graded as a summary offense. Appellant argues that he should only have been convicted of the lesser of Brief at 13-19. In support of this argument, Appellant directs our attention Commonwealth v. Gordon, 897 A.2d 504 (Pa. Super. 2006). In that case, Gordon was convicted of possession of a controlled substance pursuant to 35 P.S. § 780-113(a)(16), after he was found to possess 8.67 grams of marijuana. Appellant also had been charged with the lesser offense of possession of a small amount of marijuana pursuant to 35 P.S. § 780-113(a)(31); however, the trial court dismissed that count. ____________________________________________ 3 At oral argument, counsel for Appellant claimed, for the first time, that because Appellant possessed a fraudulent New York license and not a fraudulent [a] license or permit to drive a motor vehicle issued under this title, 75 Pa.C.S. § 102 (emphasis added). Appellant has waived this claim by failing to raise it with the trial court, and by failing to include it in his brief. See Issues not raised in the lower court are waived and cannot be raised for the first time on appeal. Commonwealth v. Furrer, -6- J-A14034-14 On appeal, Appellant argued that the trial court erred by convicting him of possession under subsection (a)(16) when his conduct was covered by subsection (a)(31), and a panel of this Court agreed. The Court reasoned that the General Assembly, by including subsection (31) in section 780 113 of the proscribed conduct section of the Act, wisely set out the specific crime of possession of a small amount of marijuana, and created a graduated system of penalties that imposes far heavier punishment for traffickers and lesser sanctions for casual users of marijuana. This tiered approach furthers the quite purposeful penological goals of not imprisoning slight offenders and not further crowding already burdened prison facilities. Gordon, 897 A.2d at 509.4 ____________________________________________ 4 This Court also discussed the facts of Commonwealth v. Giampa, 846 A.2d 130 (Pa. Super. 2004). Giampa was convicted of possession of a controlled substance (steroids) under 35 P.S. § 780 113(a)(16). Giampa, that since there is a separate subsection of the Drug, Device, and Cosmetic Act, 35 P.S. § 780 113(a)(37) Id. A panel of this Court rejected that argument, on the basis that otherwise would require a tortured interpretation of the statute, and clearly was not 846 A.2d at 132 (quoting Trial Court Opinion, 9/22/2002, at 5). This Court in Gordon distinguished Giampa as follows. It bears further mention that, unlike the anabolic steroid proscription of subsection (37), which was at issue in Giampa, subsection (31) defines an offense for possession of a lesser amount of contraband, and explicitly provides for a lesser sanction for that offense, a distinction that cannot be overstated. In fact, the Court in Giampa, specifically referred with approval to the decision of the General Assembly to exempt the possession of small amounts of a drug from penalties, as it did in drafting a section providing for less penalties for possession of small amounts of marijuana. (Footnote Continued Next Page) -7- J-A14034-14 Gordon persuasive. In that case, the offenses at issue were codified at two different subsections of 35 P.S. § 780-113(a), and the conduct prohibited by both subsections code, let alone the same section, and the two crimes have several key differences. 75 Pa.C.S. § 1571 regardless of what makes the license fraudulent or to whom the license is exhibited. On the other 5 (Footnote Continued) hand, 18 Pa.C.S. § 6310.3(a) applies to and operates only in situations where an individual _______________________ Finally, the Pennsylvania Supreme Court, pursuant to the rule that penal provisions shall be strictly construed, has consistently held that when a criminal statute calls for construction, it is not the construction that is supported by the greater reason that is to prevail but that one which, if reasonable, operates in favor of life and liberty. Gordon, 897 A.2d 509 (citations and quotation marks omitted, emphasis in original). 5 A driver's license, a Department of Transportation nondriver's identification card or a card issued by the Pennsylvania Liquor Control Board for the purpose of identifying a person desiring liquor or malt or brewed beverages, a card which falsely purports to be any of the foregoing, or any card, paper or document which falsely identifies the person by name, photograph, age or date of birth as being 21 years of age or older. 18 Pa.C.S. § 6310.6. -8- J-A14034-14 possesses an identification card stating incorrectly that he or she is over the age of 21, or where such a card is exhibited for the purpose of purchasing alcoholic beverages. Additionally, while Appellant violated both 75 Pa.C.S. § 1571(a)(5) and 1 , Appellant also engaged in conduct prohibited under 75 Pa.C.S. § 1571(a)(5), but not prohibited under 18 Pa.C.S. § 6310.3(a). Namely, Appellant exhibited his we find that Gordon is distinguishable from the present matter, and that Accordingly, because we c entitles him to relief, we affirm his judgment of sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/11/2014 -9-

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