J. A27002/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : MICHAEL LEE EVANS, : No. 1781 WDA 2013 : Appellant :

Appeal from the Judgment of Sentence, June 4, 2013, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0015114-2012

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 21, 2015 Michael Lee Evans appeals from the judgment of sen tence entered on June 4, 2013, in the Court of Common Pleas of Alleg heny County. Following a bench trial, appellant was convicted of theft by unlawful taking, receiving stolen property, and fleeing or attempting to elude police officer. For the following reasons, we reverse and remand for resent encing and affirm on all

other bases. On October 25, 2012, at approximately 5:20 a.m., O fficer Robert J. Stipetich was dispatched to the 3600 block of Mt. T roy Road for a vehicle that was reported stolen. The officer was informed that the vehicle, a white Impala, had a GPS system installed which indicated the vehicle was traveling southbound on that road. (Notes of testimony, 6/4/ 13 at 22.) As the officer traveled to this location, a white Impala passed hi m in the 2600 block ofJ. A27002/14

- 2 -

Mt. Troy Road. ( Id. ) The vehicle had the lettering “ComTransit” on it s side in black lettering. Officer Stipetich turned his marked police vehicle around, followed the Impala, and activated his overhead lights at a stop sign. ( Id. at 22-23.) The Impala drove off at a high rate of speed, and t he officer followed for a

few blocks until the vehicle crashed into a wall. ( Id. at 23.) At the scene, Officer Stipetich found appellant unconscious. Onc e the vehicle was opened, appellant was conscious and alert; paramedics were notified, and he was transported to a hospital. ( Id. at 25.) After appellant was removed from the vehicle, the officer noticed the steering colum n was intact and the keys were in the ignition. Richard J. McCrosby, a safety supervisor for Commu nities Transportation, Inc., testified that while heading to work on October 25, 2012, at approximately 4:50 a.m., he was informed t hat one of the organization’s vehicles was missing from a secured lot. ( Id. at 6.) He called the police and stated a white Chevrolet Impala was missing from lot No. 4 River Road. ( Id. at 6-7.) McCrosby testified that although lot No. 4 was equ ipped with surveillance equipment on the date of the incident, it did not record the theft

of the vehicle. He also testified that the vehicle s are equipped with a GPS tracking device and a “drive cam device” which meas ures “any quick stop . . . or lateral G force [motion] from side to side .” ( Id. at 7, 11-12.)J. A27002/14

- 3 -

McCrosby viewed a number of videos taken from a cam era located inside the vehicle, which pictured the driver. ( Id. at 8.) He then identified appellant as the driver and stated that appellant was not an employee of the company, and McCrosby did not know appellant. ( Id. at 9.) The video was played for the trial court; the video consisted of various clips taken from a camera located inside the vehicle, which activated when the vehicle moved

in certain directions. McCrosby then described the condition of the vehic le when it was recovered by the police; he stated it was “totaled. ” ( Id. at 12.) On cross-examination, McCrosby noted the ignition wiri ng underneath the steering column had not been pulled out or spliced, stated the driver’s side window was intact, and there was no sign of manipul ation of the door locks. ( Id. at 17.) He testified the keys were likely in the vehicle. ( Id. at 19.) Thereafter, the trial court found appellant guilty of all counts. The court then sentenced appellant to two to four years of incarceration on each of the three counts to run concurrently; he was als o sentenced to an additional seven years of probation on each of the three counts to run consecutively to the incarceration and to each othe r. ( Id. at 37.) Appellant filed a timely post-sentence motion, which was deni ed by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(b). A timely no tice of appeal was filed, and appellant complied with the trial court’s order to file a concise statementJ. A27002/14

- 4 -

of errors complained of on appeal; the trial court has filed a Rule 1925(a) opinion. The following issues have been presented for our r eview:

I. DID THE TRIAL COURT ERR WHEN IT IMPOSED A SENTENCE THAT EXCEEDED THE STATUTORY MAXIMUM AT EACH COUNT AND FAILED TO MERGE THE LESSER INCLUDED OFFENSE FOR PURPOSES OF SENTENCING?

II. DID THE TRIAL COURT ERR WHEN IT RELIEVED THE COMMONWEALTH OF ITS NEVER-SHIFTING BURDEN OF PROVING GUILT, AND REQUIRED MR. EVANS TO PROVE HIS INNOCENCE, WHEN, DURING DEFENSE COUNSEL’S CLOSING ARGUMENT, IT IMPLORED COUNSEL TO PROVIDE AN EXPLANATION FOR WHY MR. EVANS WAS DRIVING THE VEHICLE IN QUESTION?

III. WAS THE CIRCUMSTANTIAL EVIDENCE INSUFFICIENT TO PROVE, BEYOND A REASONABLE DOUBT, THAT MR. EVANS STOLE THE VEHICLE, KNEW IT WAS STOLEN, OR BELIEVED IT WAS PROBABLY STOLEN, WHERE, AMONG OTHER THINGS, THE VEHICLE HAD NO PHYSICAL MANIFESTATIONS OF THEFT WHEN IN MR. EVANS’ POSSESSION? Appellant’s brief at 6. Appellant first argues that his sentence is illega l and we must remand for resentencing. Appellant claims that the trial court was limited to imposing a sentence not to exceed seven years’ on e ach count. Appellant also contends that theft and receiving stolen prope rty convictions merge for the purposes of sentencing.J. A27002/14

- 5 -

This issue was not included in appellant’s Rule 19 25(b) statement and was not raised in the trial court. However, challe nges to an illegal sentence

cannot be waived. Commonwealth v. Mears , 972 A.2d 1210, 1211 (Pa.Super. 2009).

The scope and standard of review applied to determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court’s application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.

Commonwealth v. Leverette , 911 A.2d 998, 1001-1002 (Pa.Super. 2006) (citations omitted). A challenge to the legality o f a sentence:

is essentially a claim that the trial court did not have jurisdiction to impose the sentence that it handed down . . . . A trial court ordinarily has jurisdic tion to impose any sentence which is within the range of punishments which the legislature has authorized fo r the defendant’s crimes. Commonwealth v. Cappellini , 690 A.2d 1220, 1226 (Pa.Super. 1997), quoting Commonwealth v. Catanch , 581 A.2d 226, 228 (Pa.Super. 1990). The Commonwealth concedes that appellant’s argumen ts are correct and we concur. The statutory maximum penalty for a third degree felony is seven years’ incarceration. 18 Pa.C.S.A. § 1103(3) . Thus, appellant’s

sentence on each count that involved both incarcera tion and probation is illegal as it exceeded seven years.J. A27002/14

- 6 -

Appellant is also correct, and the Commonwealth co ncurs, that the crimes of theft and receiving stolen property shoul d have merged. The

crimes arose from the same incident and involved th e same stolen item. Where there is but one single act, offenses do not merge unless one offense

is a lesser-included offense of the other. This co urt has previously stated that theft by receiving stolen property is a lesser -included offense of theft by unlawful taking. See Commonwealth v. Rippy , 732 A.2d 1216, 1224 (Pa.Super. 1999) (overruled on other grounds). The refore, we remand for re-sentencing. In his second issue, appellant alleges the trial c ourt relieved the Commonwealth of its burden of proof. Appellant arg ues the trial court

“demanded on numerous occasions” that defense couns el provide a reason why appellant was in the vehicle. (Appellant’s bri ef at 18-19.) We cannot

agree. “Issues not raised in the lower court are waived a nd cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). “When an event prejudicial to a defendant occurs at trial, he may either objec t, requesting curative instructions, or move for a mistrial.” Commonwealth v. Boring , 684 A.2d 561, 568 (Pa.Super. 1996), appeal denied , 689 A.2d 230 (Pa. 1997). An allegedly prejudicial event at a bench trial requir es a prompt objection from defense or a request for a mistrial to preserve the issue for appellate review.

Commonwealth v. Rhone , 619 A.2d 1080 (Pa.Super. 1993), appealJ. A27002/14

- 7 -

denied , 627 A.2d 731 (Pa. 1993). “When a case is tried t o the court rather than a jury, we will presume the court applied prop er legal standards.”

Commonwealth v. Hunter , 554 A.2d 550, 558 (Pa.Super. 1989), citing

Commonwealth v. Donofrio , 372 A.2d 859, 860 (Pa.Super. 1977) (stating, in non-jury trial, court “is imbued with the knowledge of the law that he would have given in a formal charge in a ju ry case. . .”). Appellant directs our attention to the following e xchange during closing argument: THE COURT: Do you want to make any closing

comments? MR. NESS: I would, your Honor. THE COURT: I am curious; I want to hear your argument. MR. NESS: Your Honor, I am not going to insult the Court and argue that Mr. Evans was not the individual that was ultimately recovered inside thi s vehicle. That would defy logic; obviously he was. THE COURT: Right. MR. NESS: The question today is whether or not -- primarily let’s start with did he steal the white Impala that morning? THE COURT: Let me tell you as the statute reads. The actor unlawfully took or exercised unlawful control over an automobile. You don’t have just take it, but if you exercise unlawful control over an automobile, 2007 Chevy Impala with Community Transportation Inc., written on it, with the intent to deprive the owner thereof , then you are guilty of theft.J. A27002/14

- 8 - It doesn’t mean you have to take it. If you exerci se unlawful control over it. Now, let me tell you the second charge. It is receiving stolen property. Actor intentionally received, retained or disposed of a vehicle, 2007 Chevrolet, belonging to Community Transit, knowing that it had been stolen or believed it had probably been stolen. Fleeing or attempting to elude police officers: Th e actor drove a motor vehicle[,] willfully failed or refused to bring the vehicle to a stop, or otherwis e fled or attempted to elude pursuing police officers , having been given visual or audible signals to brin g the vehicle to a stop. Now, you tell me what your argument is. MR. NESS: Even under unlawful control, theft by unlawful taking, your Honor, the Commonwealth has to prove my client did exercise unlawful control; there has been no testimony -- THE COURT: What is he doing in a Community Transportation vehicle at 4:30 in the morning, driving at 50 miles an hour, fleeing the police off icers with a light on? MR. NESS: They still haven’t demonstrated that he knew it was stolen, or otherwise potentially stolen

. It is to produce that he would have known that. THE COURT: Why he would be in a vehicle that belongs to Community Transportation, a white 2007 Chevy with Community Transportation written on both sides? What’s the reason for him being in it? MR. NESS: I don’t necessarily believe my client ha s to offer an explanation, your Honor. THE COURT: Okay.J. A27002/14

- 9 - MR. NESS: But I would pose to you, that there is - - all the other signs that an individual would usuall y have known that a car is stolen are absent in this case. The steering column is intact, the wiring is intact; the locking mechanism is intact. THE COURT: Why is he in the car? MR. NESS: I could draw any number of possibilities , your Honor. THE COURT: Give me one logical explanation why he is driving the Community Transportation vehicle, at four in the morning? MR. NESS: Why is he driving in the morning? Perhaps he needed to run to the convenience store. How did he get the vehicle? Perhaps someone else stole the vehicle and allowed him to use it. I cou ld throw out all kinds of different possibilities.

THE COURT: Give me one that makes sense.

MR. NESS: Someone -- another individual stole the car. We don’t know what time the -- time the crime occurred. In an effort to get rid of the vehicle, they passed it to Mr. Evans. Mr. Evans needed some type of other items, goes to the convenience store. And as a result the police officers -- Also, with regar ds to the fleeing and eluding, your Honor, they have to have a felony elevation of the statute. They have to prove that he was otherwise speeding. He was going fast. And there is no testimony offered regarding the exact speed or whether or not -- THE COURT: Well, what if he crashes into a wall? Does that mean he is going faster -- MR. NESS: Perhaps he it [sic] was driving recklessly, but not necessarily to the grading of a felony. THE COURT: Very well. Any other from the defense?J. A27002/14

- 10 - Mr. McKendry, what are your thoughts? You don’t need to make any argument, I am finding him guilty of all counts. Notes of testimony, 6/4/13 at 31-35. As the trial court notes, the record reflects coun sel did not promptly object to the court’s “pointed inquiries about his client’s unexplained possession of the car” and argue such was an improp er shift of the burden of proof to appellant. (Trial court opinion, 3/5/14 a t 9.) Nor did counsel move for a mistrial. Consequently, we could find appell ant failed to preserve this issue for appellate review. Nevertheless, we disagree with appellant’s asserti on that the trial

court’s comments evidenced that the court had shift ed the burden of proof following this non-jury trial. Sitting as fact-fin der, the trial court is presumed to have applied the proper legal standard regarding the burden of proof. See Hunter , supra ; Donofrio , supra . The court gave the testimony the weight it deemed appropriate and gaug ed the credibility of the

Commonwealth’s witnesses. See also Commonwealth v. McCall , 911 A.2d 992 (Pa.Super. 2006) (holding trial court did not shift burden of proof to defendant by commenting, just prior to reaching verdict in a bench trial,

that no evidence detracted from conclusion that def endant was a member of conspiracy; the court’s reflection on production of evidence was fair commentary, and presented no grounds for reversal). Even if properly preserved, we would decline to disturb the court’s verdict on this ground.J. A27002/14

- 11 -

The final issue presented challenges the sufficien cy of the evidence. (Appellant’s brief at 26.) We must first determine if this claim was preserved for review in appellant’s Rule 1925(b) st atement. Rule 1925(b)(4) provides, in pertinent part, as fol lows:

The Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge. Pa.R.A.P. 1925(b)(4)(ii). Pursuant to Rule 1925(b) (4)(vii), “Issues not included in the Statement and/or not raised in acco rdance with [Rule 1925(b)(4) ] are waived.” As our supreme cou rt recently reiterated:

Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appella nt to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule’s terms; the Rule’s provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule’s requirements.

Commonwealth v. Hill , 16 A.3d 484, 494 (Pa. 2011). In his Rule 1925(b) statement, appellant stated th e following pertaining to the instant issue:

a. The verdict of guilty on counts 1 and 2 was rendered contrary to the weight of the evidence presented at trial, as the “evidence presented” was so contrary to the verdict rendered that it shocks one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity toJ. A27002/14

- 12 - prevail.” Commonwealth v. Smith , 861 A.2d 892, 295 (Pa.Super. 2004). Count 1 required the Commonwealth to prove [appellant] either stole the vehicle or exercised unlawful control over it, and Count 2 required the Commonwealth to prove he knew or should have known the vehicle was stolen. The Commonwealth presented no evidence of when, how, or even if the vehicle in question was illegally taken from the premises. The Commonwealth presented no testimony by any witness with any firsthand knowledge of the alleged theft of the vehicle. Additionally, it “shocks one’s sense of justice that the Court convicted [appellant] based on the theory that possession of the vehicle alone equated to the unproved assumption that he stole, or otherwise knew it was stolen.

Docket #16. We agree with the trial court that appellant’s “as sertions sound like sufficiency challenges dressed in weight clothes. The mere genuflection to the correct legal standard does not transpose what is a sufficiency argument into a weight challenge.” (Trial court opinion, 3/ 5/14 at 3-4.) Appellant has

waived his claim that the evidence was insufficient to support his convictions of theft and receiving stolen property as he did no t present a sufficiency claim in his Rule 1925(b) statement; rather, his ch allenges to these convictions were styled as a weight of the evidence claim. Sufficiency of the evidence claims are distinct fr om weight of the evidence claims, as there are different standards o f review as well as separate remedies involved. Commonwealth v. Whiteman , 485 A.2d 459 (Pa.Super. 1984). Indeed, in making a claim that t he verdict was againstJ. A27002/14

- 13 -

the weight of the evidence, it is conceded that the re was sufficient evidence

to sustain the verdict. Commonwealth v. Murray , 597 A.2d 111, 113 (Pa.Super. 1991), appeal denied , 605 A.2d 333 (Pa. 1992), citing Commonwealth v. Taylor , 471 A.2d 1228 (Pa.Super. 1984). Thus, the claims presented in appellant’s brief are technical ly waived. However, the trial court addressed appellant’s arg ument and found the sufficiency claim to be meritless. Thus, we have c arefully reviewed the briefs, the relevant law, the record, and the well- reasoned opinion authored by the Honorable Joseph K. Williams, III. We find that Judge Williams’ opinion correctly disposes of the issues presented, and accordingly, we affirm the conviction based on the trial court’s op inion. (Trial court opinion, 3/5/14 at 4.)

Conviction affirmed. Case remanded for resentenci ng. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 1/21/2015Circulated 12/30/2014 12:07 PMCirculated 12/30/2014 12:07 PMCirculated 12/30/2014 12:07 PMCirculated 12/30/2014 12:07 PMCirculated 12/30/2014 12:07 PMCirculated 12/30/2014 12:07 PMCirculated 12/30/2014 12:07 PMCirculated 12/30/2014 12:07 PMCirculated 12/30/2014 12:07 PM