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[U] Commonwealth v. Blakney

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JAMES BLAKNEY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered April 4, 2012, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0012521-2010.

BEFORE: SHOGAN, ALLEN and FITZGERALD [*] , JJ.

MEMORANDUM

SHOGAN, J.

Appellant, James Blakney, appeals from the judgment of sentence of two and one-half to seven years of incarceration entered April 4, 2012, following his conviction in a bench trial of receiving stolen property graded as a third-degree felony. For the reasons that follow, we affirm.

Appellant filed a pro se notice of appeal on May 2, 2012. The trial court had ordered the appointment of counsel on April 4, 2012, and the filing of a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925 on May 7, 2012. No Rule 1925(b) statement was filed.[1] While the trial court noted the absence of the Rule 1925(b) statement in its opinion, it addressed an issue it believed Appellant would raise.

In Commonwealth v. Scott, 952 A.2d 1190 (Pa.Super. 2008), we re-examined the issue of waiver for failure to file a proper Rule 1925(b) statement and ruled that counsel was per se ineffective in such a case. In Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009), we extended the procedure for remand for per se ineffectiveness to cases in which the appellant had filed a Rule 1925(b) statement but failed to do so within the court-ordered deadline. More recently, in Commonwealth v. Thompson, 39 A.3d 335 (Pa.Super. 2012), we addressed an untimely Rule 1925(b) statement where the trial court did not address the issues in its Rule 1925(a) opinion because the appellant had not yet filed the statement when the court filed its opinion. Thus, we remanded for the trial court to file a Rule 1925(a) opinion addressing the issues raised in the untimely Rule 1925(b) statement.

In the instant case, while Appellant's counsel failed to file the court-ordered Rule 1925(b) statement, counsel cannot be deemed ineffective per se because she was not appointed until after the time for filing the statement had expired. Counsel should have sought permission to file a statement nunc pro tunc pursuant to Pa.R.A.P. 1925(b)(2), but did not do so. Instead, counsel proceeded with the filing of the appellate brief.

In light of the timing of counsel's appointment and the trial court's failure to enlarge the time after counsel was appointed, [2] we remanded this case for counsel to file a Pa.R.A.P. 1925(b) statement nunc pro tunc, the trial court to file an opinion addressing the issues raised therein, and the filing of new briefs. This having been accomplished, we can now address the issue raised.

The trial court summarized the facts of the crime as follows:

On September 19, 2010, Daniel Elhyani, a technician employed by MK Mechanical, performed a service call at the McDonald's restaurant located at 5020 City Avenue, Philadelphia, Pennsylvania. During the service call, his company vehicle, a white van with the words "MK Mechanical" written on it, was stolen from the McDonald's parking lot. Elhyani called 911 to report the vehicle as stolen and also provided police with the vehicle's GPS tracking information. (N.T., 5/10/11 at 5–8).
A short time later, Police Officer Renard Bournett responded to a radio call at the 2900 block of Jefferson Street in Philadelphia. Upon arrival, he observed a white construction van parked on the block. Officer Bournett went around the corner to the 1400 block of North 30th Street to ask residents if they observed anyone unloading items from the van. Based upon information received from those residents, Officer Bournett went to 1431 North 30th Street. At that location, Office Bournett observed that the property was being renovated, and he found a note on the door with a phone number. (N.T., 12/5/2011 at 9– 12).
Another police officer called the phone number posted on the property. About five to ten minutes after that phone call, Defendant arrived at the property and told Officer Bournett that he was the owner of the property and that he was there to remove equipment. Officer Bournett then asked Defendant, "Do you know why you are here?" Defendant responded, "Yes, about some stolen equipment that was inside the house." Defendant also stated that he was called by a worker at the property who wanted to sell several items to Defendant for $500. Defendant used a key to unlock the front door and allowed Officer Bournett to enter the property with him. No other persons were present inside the property. In a search incident to his arrest, police recovered more than $500 from Defendant's person. Id. at 11– 13, 16, 21.
Meanwhile, Elhyani was brought to the 2900 block of Jefferson Street where he identified the white construction van as his MK Mechanical work van. Elhyani was then taken to 1431 North 30th Street where he identified several items that either belonged to his company or to him personally including his work jacket, three ladders, refrigerant tanks, and various tools. All of these items were taken from the MK Mechanical work van. The total value of all of the items recovered was in excess of $8000; the total value of the items not recovered — including Elhyani's laptop computer, a laptop bag and various hand tools — was in excess of $2000. Id. at 12–15; (N.T. 5/10/11 at 9–11).

Supplemental Trial Court Opinion, 9/16/13, at 1–2.

Appellant raises a single issue for our review: "Whether the Evidence Was Insufficient as A matter of Law to convict the Appellant of Felony Receiving Stolen Property." Appellant's Brief at 5 (verbatim).

In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. Commonwealth v. Rivera, 983 A.2d 1211 (Pa. 2009). It is within the province of the fact-finder to determine the weight to be accorded to each witness's testimony and to believe all, part, or none of the evidence. Commonwealth v. Diamond, __ A.3d __, 2013 WL 6831851 (Pa. December 27, 2013). The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Commonwealth v. Montalvo, 956 A.2d 932 (Pa. 2008); Commonwealth v. Hansley, 24 A.3d 410 (Pa.Super. 2011). Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Commonwealth v. Kelly, 78 A.3d 1136 (Pa.Super. 2013).

Appellant purports to argue that the evidence was insufficient to support his conviction for receiving stolen property ("RSP").[3] In actuality, he makes no claims disputing satisfaction of the elements of RSP. Rather, he makes a two-paragraph bald assertion that the evidence failed to establish that he knew the items were stolen, and as the Commonwealth failed to produce receipts for the stolen items, it could not prove their value. Appellant's Brief at 11. As Appellant fails to cite a single case to support his claim, we could find this issue waived. See Commonwealth v. Rompilla, 983 A.2d 1207, 1210 (Pa. 2009) ("Appellant's failure to adequately develop his arguments or support his bald assertions with sufficient citation to legal authority impedes meaningful judicial review of his claims."). We will address, however, the two instances of the evidence's alleged shortcomings identified in Appellant's brief.

Regarding the RSP conviction, the statute provides, in relevant part:

§3925. Receiving stolen property

(a) Offense defined.-A person is guilty of theft if he intentionally receives, retains or disposes of personal 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 with intent to restore it to the owner.
(b) Definition.-As used in this section the word "receiving" means acquiring possession, control or title, or lending on the security of the property.

18 Pa.C.S.A. § 3925.

To convict a person of receiving stolen property, the Commonwealth must prove: "(1) the property was stolen; (2) the defendant was in possession of the property; and (3) the defendant knew or had reason to believe the property was stolen." Commonwealth v. Foreman, 797 A.2d 1005, 1011 (Pa.Super. 2002). As noted, circumstantial evidence alone can establish guilty knowledge. Commonwealth v. Marrero, 914 A.2d 870, 873 (Pa.Super. 2006). Herein, the Commonwealth established Appellant's control of the stolen items inside the house because Appellant had keys to the house, unlocked it for police, admitted that he owned the house, and admitted that he knew the items were stolen. N.T., 12/5/11, at 11–16, 20.

Regarding Appellant's claim that it "could not prove the value of the items that were stolen, " Appellant's Brief at 11, we note that Appellant wholly failed to raise the claim in his statement of errors complained of on appeal. The Pa.R.A.P. 1925(b) statement raises the following issue: "The Evidence Was Insufficient As A Matter of Law to Find the Defendant Guilty of Receiving Stolen Property Because There was No Evidence Presented That the Defendant Exercised Control Over The Stolen Items Or That He Had Knowledge That They Were Stolen." Pa.R.A.P. 1925(b) Statement, 9/3/13, at 1. Pa.R.A.P. 1925(b)(4)(vii) provides, "Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived." See also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) ("Any issues not raised in a 1925(b) statement will be deemed waived."). Thus, where the issue is omitted completely from the concise statement, as here, the issue is waived.[4]

Even if not waived, a claim regarding proof of the value of the stolen items lacks merit.[5] This Court has held that the testimony of the owner of stolen property is admissible to establish the market value of the stolen property. Commonwealth v. Hanes, 522 A.2d 622, 625 (Pa.Super. 1987). The Commonwealth's burden is not to establish the precise market value of the stolen items, but only to present sufficient evidence from which a reasonable fact-finder could conclude that the market value was above the threshold amount set by the statute. Commonwealth v. Reiss, 655 A.2d 163, 168 (Pa.Super. 1995). Here, Mr. Elhyani testified that the value of the items in Appellant's house exceeded $8, 000, and there were unrecovered items valued in excess of $2, 000. N.T., 5/10/11, at 14-15. This was sufficient.

Judgment of sentence affirmed. Judgment Entered.

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