J-S34007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JERET SAMUEL HARVEY,

Appellant No. 2096 MDA 2014

Appeal from the Judgment of Sentence August 14, 2014

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0001226-2013

BEFORE: BOWES, OTT and STABILE, JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 15, 2015

Jeret Samuel Harvey appeals from the aggregate judgment of 

sentence of five to ten years incarceration to be followed by two years of 

probation imposed by the trial court after a jury found him guilty of receiving 

stolen property and theft by unlawful taking, and a subsequent jury found 

him guilty of persons not to possess a firearm. After careful review, we 

affirm.

The trial court recounted the following facts relative to Appellant’s trial 

for receiving stolen property and theft by unlawful taking.

On June 30, 2013 [Derick] Smith was cleaning his living room 

when he heard the doorbell and knocking on the door. At the 

time, Smith was the only person in his residence. Smith did not 

answer the door, but he noticed the doorknob wiggle and the 

door begin to open. He pointed his revolver towards the door 

because he did not know who was entering the residence. As 
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soon as Smith realized that [Appellant], his cousin, was entering 

the residence, he lowered the revolver. Smith then put the 

revolver in the center compartment of his couch in his living 

room.

[Appellant] and Smith sat on the couch in the living room. 

[Appellant] asked to see Smith’s revolver. Smith took the 

revolver out of the compartment, unloaded it, and handed it to 

[Appellant]. [Appellant] looked at the revolver and then gave it 

back to Smith, who reloaded the revolver and put it back in the 

compartment. Smith and [Appellant] then talked.

After a while, Smith went to the kitchen to get a carpet 

cleaning machine. While in the kitchen, Smith could not see 

[Appellant] and did not hear the sound of the couch 

compartment opening or closing. Smith returned to the living 

room about 45 seconds after leaving it. [Appellant] was sitting 

in the same spot as when Smith left. [Appellant] and Smith 

talked briefly. [Appellant] then said that he was going to a 

specific gas station to buy cigarettes. [Appellant] asked Smith if 

he wanted a pack, and Smith said no thank you. Smith thought 

the offer was unusual because [Appellant] was not “the kind of 

person to buy someone something.” [Appellant] then said 

“that’s what family is for” and left the residence. Thirty seconds 

after [Appellant] left the residence, Smith ran to the couch 

compartment. He opened the compartment but did not see the 

revolver. Smith then ran towards the gas station to find 

[Appellant]. He called 911 either right before he left the 

residence or as he was running to the gas station. Smith could 

not find [Appellant]. When he got back to his residence, police 

were there. 

A few days later, the [sic] Smith communicated with 

[Appellant] via the website Facebook. Smith told [Appellant] 

that if [Appellant] returned the revolver, Smith would tell police 

that he found it in his residence. [Appellant] “agreed to do 

that.” [Appellant] never contacted Smith with a specific date 

and time when he would return the revolver. 

Later, Smith saw [Appellant] on Third Avenue in 

Williamsport. Smith asked [Appellant] about the revolver. 

[Appellant] said the revolver was with a man who lived in an 

apartment off High Street in Williamsport. According to 
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[Appellant], the apartment was numbered four. [Appellant] said 

that two men lived in the apartment, and one of them used a 

wheelchair. [Appellant] got into a woman’s car, and Smith 

called 911. The woman began to drive, and Smith followed in 

his car. Smith gave the dispatcher the location of the woman’s 

car as he followed it. The car stopped near a Uni-mart in 

Williamsport. Police arrived in the area and arrested [Appellant]. 

Trial Court Opinion, 11/18/14, at 1-3. A jury found Appellant guilty of 

receiving stolen property and theft on February 24, 2014. Thereafter, on 

June 9, 2014, Appellant went to trial for the firearms violation. 

Smith’s testimony was substantially similar at Appellant’s trial for the 

firearm crime. However, he did deviate slightly from his earlier testimony. 

Specifically, he averred that he could not recall if the revolver was unloaded 

when he handed it to Appellant. Smith also maintained that Appellant did 

not name the gas station where he intended to purchase cigarettes, but 

Smith assumed it was the local gas station. Further, Smith acknowledged 

that a person other than Appellant may have informed him that one of the 

residents of the High Street apartment was in a wheelchair. Finally, Smith 

added that he did not notice any bulges in Appellant’s pockets when he left, 

and that the revolver was five inches long. The parties stipulated that 

Appellant was not permitted to possess a gun.

The jury found Appellant guilty and he proceeded to sentencing on 

each of the crimes on August 14, 2014. The court sentenced Appellant to 

three and one-half to seven years incarceration for the firearms charge and 

one and one-half to three years incarceration to be followed by two years of 
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probation for the theft offense. The court ordered these sentences to be 

consecutive. Appellant filed a timely post-sentence motion, which the court 

denied. This appeal ensued. The trial court directed Appellant to file and 

serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal. Appellant complied, and the trial court indicated that the reasons for 

its decision could be found in its earlier opinion disposing of Appellant’s postsentence motion. The matter is now ripe for this Court’s review. Appellant 

presents seven questions for our consideration.

1. Whether the evidence was insufficient to meet the offense of 

Person Not to Possess? Specifically, did the evidence show 

that Appellant possessed, used, controlled, sold, transferred 

or manufactured a firearm?

2. Whether the verdict of guilt for Person Not to Possess was 

against the weight of the evidence, specifically, where the 

Jury found that Appellant possessed, used, controlled, sold, 

transferred or manufactured a firearm?

3. Whether the evidence was sufficient to meet the offense of 

Theft by Unlawful Taking? Specifically, did the evidence meet 

the element that Appellant took the property of Derrick 

Smith?

4. Whether the verdict of guilt for Theft by Unlawful Taking was 

against the weight of the evidence, specifically, where the 

Jury found that Appellant took the property of Derrick Smith?

5. Whether the evidence was sufficient to meet the offense of 

Receiving Stolen Property? Specifically, did the evidence 

meet the element that the property was stolen?

6. Whether the verdict of guilt for Receiving Stolen Property was 

against the weight of the evidence, specifically, where the 

Jury found that the property was stolen?
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7. Whether the Court’s Sentence is Excessive?

Appellant’s brief at 6.1 

We address Appellant’s three separate sufficiency claims together at 

the outset. In performing such a review, we consider all of the evidence 

admitted, even improperly admitted evidence. Commonwealth v. Watley, 

81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We view the evidence in a 

light most favorable to the Commonwealth as the verdict winner, drawing all 

reasonable inferences from the evidence in favor of the Commonwealth. Id. 

The evidence “need not preclude every possibility of innocence and the 

fact-finder is free to believe all, part, or none of the evidence presented.” 

Id. When evidence exists to allow the fact-finder to determine beyond a 

reasonable doubt each element of the crimes charged, the sufficiency claim 

will fail. Id. In addition, the Commonwealth can prove its case by 

circumstantial evidence. Where “the evidence is so weak and inconclusive 

that, as a matter of law, no probability of fact can be drawn from the 

combined circumstances[,]” a defendant is entitled to relief. Id. This Court 

does not “re-weigh the evidence and substitute our judgment for that of the 

fact-finder.” Id. 

____________________________________________

1 The Commonwealth has not filed a brief in this matter; instead, it has 

chosen to rely on the trial court opinion. 
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Appellant’s initial sufficiency claim relates to his persons not to possess 

a firearm charge. In order to be found guilty of this offense, the 

Commonwealth is required to show that the defendant had a statutory 

disqualifying offense that precluded him from possessing a gun and that the 

defendant did possess such a weapon. The parties stipulated that Appellant 

had a disqualifying offense.

Here, the evidence is clearly sufficient to sustain Appellant’s 

conviction. The victim testified that he showed Appellant the gun and 

returned it to its storage place. Thereafter, the victim left the room, leaving 

Appellant alone in the room with the weapon. After Appellant left, the victim 

discovered his gun was missing and immediately telephoned law 

enforcement. In addition, the victim testified that Appellant admitted taking 

the gun and indicated that he would return it, but failed to do so. 

Appellant’s persons not to possess a firearm sufficiency claim is meritless.

Appellant’s sufficiency issue pertaining to his theft is also without 

merit. Appellant argues that he told the victim that he was borrowing the 

gun to do a job; therefore, he did not intend to permanently deprive 

Appellant of the weapon. In addition, Appellant maintains that only the 

victim testified that he, the victim, had the gun between the purchase date 

and the date of the theft. Appellant, therefore, seeks to infer that the 

weapon may have been taken beforehand.
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Appellant has ignored our standard of review, which requires us to 

consider the evidence in a light most favorable to the Commonwealth. 

Further, circumstantial evidence alone is sufficient to convict an accused. In 

the present case, the victim testified that he possessed the gun when 

Appellant visited him, but the weapon was gone after Appellant left. 

Additionally, despite Appellant’s claim that he would return the gun, he 

never did so. The evidence was more than sufficient to establish a theft. 

Appellant’s final sufficiency claim relates to his receiving stolen property 

offense. Appellant’s position is identical to his theft argument and fails for 

similar reasons. Appellant’s issue is frivolous. 

Appellant also forwards three separate weight claims relative to each 

of his convictions. A weight claim must be preserved in a timely postsentence motion. Commonwealth v. Lofton, 57 A.3d 1270, 1273 

(Pa.Super. 2012). “Appellate review of a weight claim is a review of the 

exercise of discretion, not of the underlying question of whether the verdict 

is against the weight of the evidence.” Commonwealth v. Clay, 64 A.3d 

1049, 1055 (Pa. 2013) (emphases removed). Accordingly, “[o]ne of the 

least assailable reasons for granting or denying a new trial is the lower 

court's conviction that the verdict was or was not against the weight of the 

evidence and that a new trial should be granted in the interest of justice.” 

Id.
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A trial judge should not grant a new trial due to “a mere conflict in the 

testimony or because the judge on the same facts would have arrived at a 

different conclusion.” Id. Instead, the trial court must examine whether 

“‘notwithstanding all the facts, certain facts are so clearly of greater weight 

that to ignore them or to give them equal weight with all the facts is to deny 

justice.’” Id. (citation omitted). Only where the jury verdict “is so contrary 

to the evidence as to shock one's sense of justice” should a trial court afford 

a defendant a new trial. Id. A weight of the evidence issue concedes that 

sufficient evidence was introduced. Commonwealth v. Charlton, 902 A.2d 

554, 561 (Pa.Super. 2006).

Although Appellant purports to raise weight claims, his actual 

argument is identical to his sufficiency of the evidence positions. Weight 

claims are, however, distinct and concede that the Commonwealth 

introduced sufficient evidence to establish the elements of the crimes. Since 

Appellant’s contentions are merely a rehashing of his sufficiency arguments, 

they fail for reasons outlined above. 

The final claim Appellant levels on appeal is that his sentence is 

excessive. This issue implicates the discretionary aspects of his sentence. 

To preserve such a sentencing claim, the defendant must raise the issue 

either in a post-sentence motion, or during the sentencing proceedings. 

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en 

banc). In addition, a defendant must “preserve the issue in a court-ordered 
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Pa.R.A.P. 1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.” 

Id. 

“There is no absolute right to appeal when challenging the 

discretionary aspect of a sentence.” Cartrette, supra at 1042. “[A]n 

appeal is permitted only after this Court determines that there is a 

substantial question that the sentence was not appropriate under the 

sentencing code.” Id. In considering the merits of a discretionary 

sentencing matter, we review the sentencing court’s decision for an abuse of 

discretion. Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa.Super. 

2013). In performing this review, we consider the statutory requirements of 

42 Pa.C.S. § 9781(c) and (d). Id. Section 9781(c) provides that this Court 

shall vacate a sentence and remand under three circumstances: 

(1) the sentencing court purported to sentence within the 

sentencing guidelines but applied the guidelines 

erroneously;

(2) the sentencing court sentenced within the sentencing 

guidelines but the case involves circumstances where the 

application of the guidelines would be clearly unreasonable; 

or 

(3) the sentencing court sentenced outside the sentencing 

guidelines and the sentence is unreasonable. 

42 Pa.C.S. § 9781(c). Further, we examine: 

(1) The nature and circumstances of the offense and the 

history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.
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(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Appellant timely filed a post-sentence motion asserting an 

excessiveness claim therein. He further preserved the issue by including it 

in his Rule 1925(b) concise statement. Appellant, however, failed to 

provide a Pa.R.A.P. 2119(f) statement in his brief. Nonetheless, since the 

Commonwealth has declined to file a brief, it has not objected to this 

omission. Accordingly, we decline to find waiver on that ground. See 

Dodge, supra at 1271. Nonetheless, Appellant has not raised a substantial 

question for review. It is well-settled that a bald excessiveness claim 

without more does not present this Court with a substantial question of 

sentencing error to review. Dodge, supra. As Appellant only leveled a bald 

excessiveness claim, he is entitled to no relief. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/15/2015