J-S32035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MAX BURNSWORTH, :

: Appellant : No. 2008 WDA 2014 Appeal from the Judgment of Sentence entered on Nov ember 21, 2014

in the Court of Common Pleas of Fayette County, Criminal Division, No. CP-26-CR-0001255-2014 BEFORE: SHOGAN, OLSON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JUNE 15, 2015 Max Burnsworth (“Burnsworth”) appeals from the jud gment of sentence imposed after a jury convicted him of rece iving stolen property. 1
We affirm. The trial court summarized the relevant facts unde rlying this appeal in its Pa.R.A.P. 1925(a) Opinion; we incorporate the c ourt’s recitation herein by reference. SeeTrial Court Opinion, 2/13/15, at 2-4. At the close of trial on November 5, 2014, the jur y found Burnsworth guilty of receiving stolen property. On November 2 1, 2014, the trial court sentenced Burnsworth to serve 111⁄2 to 23 months in th e Fayette County Prison, and ordered him to pay $2,000 in restitutio n to the victim of the

1 18 Pa.C.S.A. § 3925(a).J-S32035-15

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theft, Ronald Martray (“Martray”). Burnsworth time ly filed a Notice of Appeal. On appeal, Burnsworth presents the following issue for our review: [Whether] the Commonwealth did not present evidence beyond a reasonable doubt that [Burnsworth] was guilt[y] o f receiving stolen property[,] in that the testimony of [Martra y] was contradicted by another Commonwealth witness[,] and the jury would have to speculate on facts to base their verd ict[?] Brief for Appellant at 7 (capitalization omitted). We apply the following standard of review when cons idering a challenge to the sufficiency of the evidence: The standard we apply ... is whether[,] viewing all t he evidence admitted at trial in the light most favorable to th e verdict winner, there is sufficient evidence to enable the fact-fin der to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and s ubstitute our judgment for [that of] the fact-finder. In add ition, 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 res olved by the fact-finder unless the evidence is so weak and inco nclusive that[,] as a matter of law[,] no probability of fac t 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 circumstantia l evidence. Moreover, in applying the above test, the entire re cord must be evaluated and all evidence actually received must b e considered. Finally, the finder of fact[,] while passing upon t he credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Melvin , 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation omitted).J-S32035-15

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Burnsworth argues that the evidence presented by th e Commonwealth was insufficient for the jury to find, beyond a rea sonable doubt, that he was guilty of receiving stolen property. Brief for App ellant at 11-12. Burnsworth contends that the jury’s verdict was “based on spec ulation,” id. at 12, in light of conflicting Commonwealth testimony. See id. at 11 (arguing that “the jury was presented with the testimony of ... Mar tray ... and his son, Brandon Ozorowski [“Ozorowski”]. There is conflict ing testimony as to what items were removed from the truck and what items we re identified by both [Martray and Ozorowski].”). In its Pa.R.A.P. 1925(a) Opinion, the trial court t horoughly addressed Burnsworth’s claim, set forth the relevant law, and determined that there was sufficient evidence to support Burnsworth’s con viction of receiving stolen property. SeeTrial Court Opinion, 2/13/15, at 5-9. The record supports the trial court’s sound rationale and dete rmination, and we affirm on this basis in rejecting Burnsworth’s sufficiency challenge. See id. As an addendum, even if there were conflicts in the trial testimony presented by Martray and Ozorowski, it was solely within the pro vince of the jury to resolve such conflicts and weigh the evidence. See Commonwealth v.
Brown , 52 A.3d 1139, 1163 (Pa. 2012); see also id. at 1164 (stating that “in applying th[e] standard [of review concerning s ufficiency of the evidence challenges], a reviewing court faced with a record of historical facts that supports conflicting inferences must presume – even if it does notJ-S32035-15

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affirmatively appear in the record – that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” (citation and quotation marks omitted)). We may no t substitute our judgment for that of the jury or re-weigh the evide nce. Melvin, supra

. Because we conclude that the trial court properly rejected Burnsworth’s challenge to the sufficiency of the ev idence, we affirm his judgment of sentence. Judgment of sentence affirmed. Shogan, J., joins the memorandum. Olson, J., concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 6/15/2015P a ge 1 of 9 1 18 Pa.C.S

. § 3925(a) [F3] 

### filed a timely appeal from judgment of sentence with the Superior Court. two-thousand ($2000.00) dollars to the victim, Ronald Martray. Appellant thereafter until November 21, 2014. Appellant was also ordered to pay restitution in the amount of not more than twenty-three (23) months with credit for time served from May 16, 2014 the Fayette County Prison for a period of not less than eleven and one-half (11 112) 

### and November 5, 2014. On November 21, 2014, Appellant was sentenced to incarceration in Following a jury trial Appellant was convicted of Receiving Stolen Property' on December 11, 

### 2014 by Appellant, Max Grant Burnsworth, hereinafter "Appellant".

Before the Court is the "Concise Issue under Pa.R.A.P. 1925(b)" filed on Linda R. Cordaro ) Judge 

### Pa. R.A.P. 1925{b) Opinion Defendant. MAX GRANT BURNSWORTH No. 1255 of 2014

vs. COMMONWEALTH OF PENNSYLVANIA CRIMINAL DMSION IN THE COURT OF COMMON PLEAS

. OF FAYETTE COUNTY, PENNSYLVANIA 

## . J-53~035-/5 t' \
~ j ~ Circulated 05/19/2015 11:45 AMP a ge 2 of 9 

### On or about October 4, 2013, 

### Mr. Ronald Doppelheuer , a mechanic and proprietor of Dopp's Garage.located at 710 

### East Crawford Avenue, Connellsville, Fayette County , Pennsylvania, arrived at his garage in the morning hours to find that a vehicle was missing from his lot. The missing vehicle was a green 1999 Ford Ranger pick-up truck that Mr. Doppelheuer had received from Mr. Ronald Martray in order to repair an issue with the engine o v erheating. Mr. Martray provided Mr. 

### Doppelheuer with the one and only key to the vehicle. Mr. Doppelheuer noticed pieces of broken glass around the area where Mr. Martray's vehicle was parked. Mr. Doppelheuer contacted Mr. Martray to ascertain whether Mr. Martray had retrieved the vehicle himself

. After learning Mr. Martray had not retrieved the vehicle, Mr. Doppelheuer contacted the Pennsylvania State Police to report the vehicle stolen. Pennsylvania State Police Trooper Cameron Craig responded to Dopp's Garage where he interviewed Mr. Doppelheuer and Mr

. Martray and filed an incident report

.

On October 26, 2013, 

### Trooper Craig recovered th e vehicle in a wooded area adjacent to Wills Road and Isabella Road Extension in Connellsville Township, Fayette County, Pennsylvania. Trooper Craig observed a green Ford Ranger pick-up truck similar to the description of Mr

. Martray's, and he used the vehicle identification number or "VIN" to confirm that said truck was the same one reported stolen. Trooper Craig observed that the vehicle had been "stripped," in that several parts of the interior and exterior of the vehicle had been removed. Further, the driver's side window had been broken and the steering column and ignition were damaged. Trooper Craig then 

### FINDINGS OF FACT Circulated 05/19/2015 11:45 AMP age 3 of 9 '

2 NOTE : " Burnworth Garage" in Uniontown is not the same garag e owned by Appellant. The similarity in names is coincidental only. 

### Brandon and Shawn Ozorowski, who verified that the radiator and fan shroud were the bench. Detective Koropal photographed the parts and contacted the victim's two sons, Inside the garage Detectives observed a radiator and fan shroud underneath a work Burnsworth gave consent to search the detached garage containing the red Ford Ranger. Edward Burnsworth, regarding the location of his son Max, the Appellant, and Edward

On November 6, 2013, 

### the Detectives interviewed Appellant's father, work on the red Ford Ranger

. garage. They also observed a man, later identified as Appellant, performing mechanical Mr. Martray, located in the truck bed of a 1994 

### red Ford Ranger parked in Appellant's observed what appeared to be a diamond-plated toolbox, similar to that described by grandparents' residence on October 28, 2013. 

### From a nearby alleyway, the Detectives Theft Task Force, began surveillance on Appellant's residence, as well as his the theft, Detectives Koropal and Hammerle, along with other members of the Auto

After receiving information that Appellant may have been responsible for being attached to the bed of the 1999 

### Ford Ranger. several parts missing, including a diamond-plated toolbox Mr. Martray described as Burnworth's Garage 2 

### in Uniontown. Detective Koropal investigated the vehicle, noting investigation. Both Detectives investigated the vehicle after it had been towed to County District Attorney's Office-Western Regional Auto Task Force to assist in the

Detective Hammerle contacted Detective Paul Koropal with the Allegheny Police Department regarding the stolen vehicle and its recovery. notified Detective William Hammerle of the Auto Theft Task Force for the Connellsville ( " \

~ · Circulated 05/19/2015 11:45 AMP age 4 of 9

' 1 8 P aC. S. § 3925(a) [ F 3] '1 8 P a . C.S. § 4911 (a) [M 2 ] * * Uismissed Jul y 17, 2014** 

### innocence, and the fact-finder is free to resolve any d o ubts regarding a defendant's guilt finder. Id. Additionally, the evidence at trial need not preclude every possibility ofThe Court may not weigh the evidence or substitute its judgment for that of the fact759, 773 (Pa.Super.2006) quoting Com. v . Smith, 863 A.2d 1172 , 1176 (Pa

. Super.2004)

. all elem e nts of the offense beyond a reasonable doubt. Com. v. Stevenson , 894 A.2d light most favorable to the Commonwealth as verdict winner , are sufficient to establish evidence at trial, and all reasonable inferences derived therefrom, when viewed in the

The standard when reviewing the sufficiency of the evidence is whether the ISSUE NO. 1: 

### THE COMMONWEALTH DID NOT PRESENT EVIDENCE BEYOND A REASONABLE DOUBT THAT THE APPELLANT WAS GUILTY OF RECEIVING

STOLEN PROPERTY IN THAT THE TESTIMONY OF THE ALLEGED VICTIM OF WHAT WAS MISSING WAS CONTRADICTED BY ANOTHER COMMONWEALTH WITNESS AND THE JURY WOULD HAVE TO SPECULATE ON THE FACTS TO BASE THEIR VERDICT. The Appellant's Concise Issue under Pa.R.C.P. 1925(b) 

### is as follows:



### DISCUSSION Stolen Propertya and Tampering with Public Records or Informations.

Following the investigation, Detective Koropal filed charges of Receiving stolen from their father's vehicle. Ranger was seized and transported to the Connellsville Police Department, where Brandon and Shawn Ozorowski further identified several other parts that had been same previously affixed to their father's stolen Ford Ranger truck. Appellant's red Ford Circulated 05/19/2015 11:45 AMP a g e 5 of 9



### market, or post-purchase , radiator cap that Mr. Ozorowski had previously used toAppellant's garage was the same taken from the stolen truck because of the afterRanger prior to the vehicle being stolen. Mr. Ozorowski stated that the radiator in "millions of times," and performed regular maintenance on his father's 1999 Ford Ozorowski testified that he had worked several years as a mechanic, rode in the vehicle Appellant's garage, he contacted Brandon Ozorowski to identify the parts. Mr. Koropal testified that after he took pictures of the radiator and fan shroud found in Commonwealth is sufficient to convict Appellant of receiving stolen property. Detective

In this case, there is little doubt that the testimony provided by the the property. "receiving" means acquiring possession, control, or title, or lending on the security of to restore it to the owner. 18 Pa.C.S. § 3925(a). As 

### used in this section the word probably been stolen, unless the property is received, retained, or disposed with intent of movable property of another knowing that it has been stolen, or believing that it has

A person is guilty of theft if he intentionally receives, retains, or disposes 1997). established beyond a reasonable doubt. Com. v. Collins, 702 A.2d 540, 543 (Pa. Super. as verdict winner, the trier of fact could have found that the defendant's guilt was reasonable inferences drawn therefrom, in a light most favorable to the Commonwealth Id. The test is whether, viewing all evidence admitted at trial, together with all credibility and weight of the evidence, is free to believe all, part, or none of the evidence. supporting a finding of guilt may be drawn. 

### Id. The fact-finder, when evaluating the unless the evidence is so weak and inconclu s ive that as a matter of law no facts Circulated 05/19/2015 11:45 AMPage 6 of 9 

### This Court notes that circumstantial evidence from which guilty origin of the parts found in or on Appellant's vehicle. with the stolen vehicle makes his testimony highly persuasive when determining the photographs. Mr. Ozorowski's history working as a mechanic and personal experience item individually and from his own recollection, prior to viewing the Commonwealth's had found in the tool box during their investigation. Mr. Ozorowski testified to each toolbox, as well as numerous items Detectives Koropal and Hammerle testified that they identified markings caused by using an acid-based solution to clean the diamond-plated by the manufacturer in the 1994 model owned by Appellant. Finally, Mr. Ozorowski those typically found on a 1999 Ford Ranger vehicle, and would not have been included shifter with cup holders, side view mirrors, and the plastic interior trim pieces were side visor. Mr. Ozorowski further stated that the bench seats, center console, gear fabric because their father had fastened pictures of their deceased siblings to the driver because of certain pinholes in the fabric. He testified that the holes were left in the father's vehicle. Mr. Ozorowski testified that he recognized the driver's side sun visor marks or wear and tear consistent with parts he had previously observed in and on his

Mr. Ozorowski identified each item and was able to explain identifying 1) 

### driver's side sun visor; 2) 

### bench seats with center console; 3) a gear shifter with cup holders; 4) a diamond-plated tool box; 5) the center console; 6) side view mirrors; and 7) plastic interior trim pieces. and were now found in or on Appellant's vehicle. These parts included: (7) different interior and exterior parts that had been removed from his father's truck replace the factory installed cap. Further, Mr. Ozorowski identified approximately seven Circulated 05/19/2015 11:45 AMPag e 7 o f 9

knowledge can be inferred is sufficient to sustain a conviction if the underlying circumstantial evidence is sufficiently strong to support the inference beyond a reasonable doubt. Com. 

### v. Thomas, 429 Pa. 227, 239 A.2d 354 (1968). Moreover, a permissible inference of guilty knowledge may

. be drawn from the unexplained possession of recently stolen goods without infringing on an accused's right of due process or his right against self-incrimination, as well as from other circumstances, such as the accused's conduct at the time of arrest. United States v. Peterson , 522 F.2d 661 (D.C.Cir

. 19 7 5); United States v. 

### Roberts, 483 F

. 2d 226 (5th Cir. 1973). The strength of the underlying evidence, in cases where the inference is drawn from unexplained possession of recently stolen goods, is dependent on whether possession is recent and how recent the possession is, as well as, an understanding of what is meant by unexplained. Com

. v. Williams, 468 Pa. 357 (1976).

This Court notes that ' Recent' is a relative term, and whether possession is recent, and how recent it is, are normally questions of fact for the trier of fact and require that the trier of fact consider the nature and kind of goods involved, the quantity of goods, the lapse of time from theft and possession, and the ease with which such goods can be assimilated into trade channels, as well as other circumstances relevant in any given case. Pendergrast v. United States, 135 U.S.App.D.C. 20, 416 F.2d 776, 790 (1969) cert. denied.

A copy of the title acquired by Appellant stating that Appellant had purchased the 1994 red Ford truck on October 17, 2013, approximately two w e eks prior to the victim ' s vehicle being stolen, was introduced as Commonwealth ' s Exhibit Number 3. The jury did not find Appell ant's explanation of his vehicle purchase , nor the Circulated 05/19/2015 11:45 AMPag e 8 of 9



### surrounding Appellant ' s possession of the stolen parts allows a jury to reasonably infer originally manufactured for his vehicle. This Court finds that the circumstances testimony regarding the origin of the numerous parts on his vehicle that were not jury did not find Appellant's testimony credible as to the origin of his vehicle, nor his October 28, 

### 2013, just two (2) days from the date the vehicle was recovered. Lastly, the garage and attached to his vehicle, and he possessed the stolen parts as recently as possession had been stolen. Appellant was observed possessing the stolen parts in his Appellant either had actual knowledge or at the very least, believed, that the parts in his

Based on the above facts, this Court finds that a Jury can easily infer that " One of the elements that the Commonwealth must prove is that the Defendant either knew that the property had been stolen or believed that it had probably been stolen

. If 

### you choose to do so, you may infer that the Defendant had such guilty knowledge or belief from proof that he was in possession of the property, that the property had recently been stolen, and that his possession is unexplained. In deciding whether his possession is unexplained, you should consider all the evidence that might explain it, including evidence presented by the Commonwealth. You may regard the Defendant's possession as unexplained if you find the explanation unsatisfactory." Pennsylvania Criminal Jury Instruction No. 15.3925(c) stating in part:

Consistent with case law, this Court instructed the Jury pursuant to origin of the toolbox, nor was he concerned that the toolbox would not fit on his vehicle. Appellant testified that despite the extremely low price, he did not inquire as to the proof of purchase or the identity of the individual who sold him th e toolbox. Further, diamond-plated toolbox at the Perryopolis Flea Market , and was thus unable to produce purchase of the toolbox, to be credible

. Appellant testified that he purchased the Circulated 05/19/2015 11:45 AM1_ : , .. ·

.. ,; '. 

### (J)-13-J.5 Lf'.00 DIST/DATE

DEF DA 

## -r PO :::i::: PD .:t: WARD 

### x: SHER 

### CA 

### .r: ATIY 

### cc BKG.CTR

__ PR.SLV.CRT._ Page 9 of 9 

### r-::A'/. <!.O

. 

### .6 AR. - f2- ·-..---! C:l \--: 

### Date: February ieth, 2015 

### Attest: 

## ~M BY THE COURT: SUSTAINED. 

### Appellant in this matter and respectfully recommends that Appellant's conviction be Commonwealth has presented sufficient evidence to sustain a conviction against

Based on the above facts and case law, this Court believes that the Appellant had knowledge that the parts were stolen. ........ Circulated 05/19/2015 11:45 AM