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[U] Commonwealth v. Derrig

Superior Court of Pennsylvania

June 17, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DION DAVID DERRIG Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DION DAVID DERRIG Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence April 2, 2012 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000764-2011, CP-08-CR-0000765-2011

BEFORE: SHOGAN, J., MUNDY, J., and COLVILLE, J. [*]

MEMORANDUM

MUNDY, J.

Appellant, Dion David Derrig, appeals from the April 2, 2012 aggregate judgment of sentence of 32 to 120 months' imprisonment, [1] imposed following Appellant's convictions for retail theft, theft by receiving stolen property, and deceptive or fraudulent business practices.[2] After careful review, we affirm the judgment of sentence.

The trial court has summarized the relevant factual and procedural history of this case as follows.

In May[] 2010, [Appellant] appeared at [the home of Mr. and Mrs. Shangraw] initially to offer a proposed civil war print for sale. While there, he told Mr. Shangraw that [the home] was in need of repair, [and] that he was a contractor and could give him an estimate. Mr. Shangraw agreed. Mrs. Shangraw signed a proposal with [Appellant, ] dated May 16, 2010 for work including material[s] … for a total amount of $9, 650.00. Pursuant to the proposal, the work was to be commenced on June 13, 2010 and completed on September 13, 2010, weather permitting. [Appellant] was paid as follows: June 4, 2012 [sic] $4, 450.00; June 8, 2010 $500.00; June 23, 2010 $2, 200.00[;] and July 23, 2010 $400.00 totaling $7, 550.00. … At some point in time [Appellant] again returned asking for more money. Mr. Shangraw told him he was not going to get any further money and not to return to the house "unless you have your tool belt on and you are going to do some work." [Appellant] left a few notes on [the] Shangraw[] home stating he was going to complete the project, but [the] Shangraws never saw or heard from [Appellant] again after they refused to provide him with further funds. [Appellant] never delivered material[s] to the Shangraws, i.e. windows or siding. Eventually, Mr. Shangraw contacted the police.

Trial Court Opinion, 764-2011, 12/18/12, at 2-3 (citations omitted). Subsequently, on November 16, 2011, Appellant was charged with deceptive business practices and other related offenses in connection with his failure to complete the repairs to the Shangraw home. Also on November 16, 2011, Appellant was charged with retail theft and theft by receiving stolen property in connection with a shoplifting incident that occurred on September 20, 2010. Specifically, the trial court summarized the relevant facts of said event as follows.

Walmart Loss Prevention Officer, Jason Smith, reported that, on September 21, 2010, a theft of a computer was brought to his attention at the Sayre, Bradford County Walmart store. Walmart has numerous surveillance videos covering the majority of the store, including all check out [sic] registers. Smith reviewed the videos and provided copies to the Athens Township Police Department. Upon Athens Township Patrolman John Fedorchak reviewing the surveillance videos, he determined that the two men taking the computer from Walmart were known to him as [Appellant] and his nephew ….

Trial Court Opinion, 765-2011, 12/18/12, at 1-2.

On March 1, 2012, following a one-day jury trial, Appellant was convicted of retail theft and theft by receiving stolen property. Subsequently, on March 6, 2012, following a two-day jury trial, Appellant was convicted of deceptive business practices. Thereafter, on April 2, 2012, the trial court imposed the aforementioned aggregate sentence of 32 to 120 months' imprisonment for all charges. Appellant filed timely post-sentence motions on April 12, 2012, asserting, inter alia, that the verdicts were against the weight of the evidence. On August 27, 2012, said motions were denied by operation of law pursuant to Rule 720 of the Pennsylvania Rules of Criminal Procedure. See Pa.R.Crim.P. 720(B)(3)(a). Appellant filed timely notices of appeal on September 21, 2012.[3]

At docket number 764-2011, Appellant raises the following issues for our review.

1. Was the guilty verdict against [Appellant] against the weight of the evidence?
2. Did the Commonwealth violate Rule 600 of the Pennsylvania Rules of Criminal Procedure and the Interstate Agreement on Detainers Act?

Appellant's Brief at 5.

At docket number 765-2011, Appellant raises the following additional issues for our review.

1. Was the guilty verdict against the weight of the evidence?
2. Did the Commonwealth violate Rule 600 of the Pennsylvania Reles [sic] of Criminal Procedure and the Interstate Agreement on Detainers Act?
3. Did the [trial] court err in allowing the Commonwealth to amend their Criminal Information on the eve of trial?

Id.

Initially, we note Appellant's brief only advances arguments pertaining to his weight of the evidence claims at each docket. Appellant appears to concede his argument at both dockets asserting that the Commonwealth violated Pennsylvania Rule of Criminal Procedure 600 and the Interstate Agreement on Detainers Act (IAD), 42 Pa.C.S.A. § 9101; and at docket 765-2011 that the trial court erred in allowing the Commonwealth to amend the criminal information. Id. Specifically, in reference to each of these issues, Appellant's brief simply argues that he "will defer to the trial [court]'s 1925(a) opinion."[4] Id. at 9, 11, 12. Accordingly, as Appellant appears to agree with the trial court's reasoning pertaining to each of these issues, and as a result fails to assert an argument for this court's review, we conclude to any extent Appellant intended to challenge said issues, the issues are waived. See Commonwealth v. B.D.G., 959 A.2d 362, 371-372 (Pa. Super. 2008) (en banc) (holding, "[w]hen an appellant fails to develop his issue in an argument and fails to cite any legal authority, the issue is waived[]").

We turn now to Appellant's remaining claims at each docket number that his convictions were against the weight of the evidence. We begin by noting, "[a] true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but questions which evidence is to be believed." Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa. Super. 2006) (citation omitted), appeal denied, 927 A.2d 623 (Pa. 2007). As such, an allegation that a "verdict was against the weight of the evidence is addressed to the discretion of the trial court." Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008), cert. denied, Diggs v. Pennsylvania, 129 S.Ct. 1580 (2009).

Where the trial court has ruled on a weight claim, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, "[our] review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim." Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa. Super. 2012) (citation omitted). "The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact." Id. Moreover, "a new trial based on a weight of the evidence claim is only warranted where the [fact-finder's] verdict is so contrary to the evidence that it shocks one's sense of justice." Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (citation omitted), appeal denied, 2013 WL ___ (Pa. 2013).

Additionally, prior to addressing the merits of Appellant's weight claims, we must first ascertain whether he has properly preserved each issue for appellate review. Pennsylvania Rule of Criminal Procedure 607 provides, in pertinent part, that a claim that the verdict was against the weight of the evidence "shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence motion." Pa.R.Crim.P. 607(A). "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." Commonwealth v. McCall, 911 A.2d 992, 997 (Pa. Super. 2006). Following our careful review, we conclude that Appellant has properly preserved his weight of the evidence claims by raising them in his April 12, 2012 post-sentence motions. Accordingly, we now turn to the merits of said claims.

We begin by addressing Appellant's claim that his conviction of deceptive or fraudulent business practices was against the weight of the evidence. See Appellant's Brief at 11. Specifically, Appellant avers that the evidence at trial established that Appellant would have completed the work on the Shangraw home if given the opportunity. Id. Therefore, Appellant asserts, the jury's verdict shocks one's sense of justice. Id.

Upon review of the record, we note that the evidence at trial established Appellant contracted with the Shangraws to perform work on their home in exchange for $9, 650.00. N.T., 3/5/12, at 29. More than one month into the three-month contract, Appellant had done very little work on the home despite receiving payments in excess of $7, 000.00. Id. at 30-31, 75. In addition, Appellant failed to purchased or deliver necessary materials such as windows and siding. Id. at 32. According to testimony of Norman Dale Derrig, Appellant's brother, Appellant was "borrowing from Peter to pay Paul, " including using payments from the Shangraws in order to complete work on other homes. Id. at 36. After the Shangraws refused to advance further funds, Appellant did not return and complete the work as promised. Id. at 37. In light of the foregoing, the jury's verdict convicting Appellant of deceptive or fraudulent business practices does not shock one's sense of justice. Accordingly, we agree with the trial court's conclusion that this claim is without merit. See Karns, supra.

Appellant's final issue challenges the weight of the evidence in support of his convictions for retail theft and theft by receiving stolen property. Specifically, Appellant avers as follows.

[A]ll the Commonwealth established at trial is that a computer was stolen from the Walmart store, and at times, [A]ppellant was in the company of his nephew who clearly removed the computer from the shelf and subsequently pushed the cart with the computer from the store. The Commonwealth did not establish that there was any agreement between [A]ppellant and his nephew nor was there any evidence that they were together the entire time they were in the store. Mere presence at the scene of a crime does not make one guilty. The Commonwealth failed to prove that [A]ppellant was an accomplice of the nephew who plead guilty to the offense. The jury's verdict is clearly based on possible suspicion and not supported by the evidence.

Appellant's Brief at 11-12.

In the instant matter, at trial, the Wal-Mart video surveillance tapes showed that Appellant and his nephew arrived at Walmart together. N.T., 3/1/12, at 75-76. They proceeded to the electronics department where Appellant pointed out the computer. Id. at 89. Appellant's nephew then distracted a Walmart worker while Appellant placed the computer into the shopping cart. Id. at 90. Afterward, they exited the store together through an entrance normally used by employees. Id. at 60. Appellant's nephew pushed the cart with the computer while Appellant led the way, and they did not pay for the computer before leaving the store. Id. In light of the foregoing, the jury's verdict convicting Appellant of retail theft and theft by receiving stolen property does not shock one's sense of justice. Accordingly, we agree with the trial court's conclusion that this claim is without merit. See Karns, supra.

For all the foregoing reasons, we affirm Appellant's April 2, 2012 judgment of sentence.

Judgment of sentence affirmed.


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