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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 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

June 4, 2013, in the Court of Common Pleas of Allegheny 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 resentencing and affirm on all 

other bases. 

 On October 25, 2012, at approximately 5:20 a.m., Officer Robert J. 

Stipetich was dispatched to the 3600 block of Mt. Troy 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 him in the 2600 block of 
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Mt. Troy Road. (Id.) The vehicle had the lettering “ComTransit” on its 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 the officer followed for a 

few blocks until the vehicle crashed into a wall. (Id. at 23.) At the scene, 

Officer Stipetich found appellant unconscious. Once 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 column was intact and the keys 

were in the ignition. 

 Richard J. McCrosby, a safety supervisor for Communities 

Transportation, Inc., testified that while heading to work on October 25, 

2012, at approximately 4:50 a.m., he was informed that 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 equipped with 

surveillance equipment on the date of the incident, it did not record the theft 

of the vehicle. He also testified that the vehicles are equipped with a GPS 

tracking device and a “drive cam device” which measures “any quick stop 

. . . or lateral G force [motion] from side to side.” (Id. at 7, 11-12.) 
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McCrosby viewed a number of videos taken from a camera 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 vehicle when it was 

recovered by the police; he stated it was “totaled.” (Id. at 12.) On 

cross-examination, McCrosby noted the ignition wiring 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 manipulation 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 also sentenced to an 

additional seven years of probation on each of the three counts to run 

consecutively to the incarceration and to each other. (Id. at 37.) Appellant 

filed a timely post-sentence motion, which was denied by operation of law 

pursuant to Pa.R.Crim.P. 720(B)(3)(b). A timely notice of appeal was filed, 

and appellant complied with the trial court’s order to file a concise statement 
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of errors complained of on appeal; the trial court has filed a Rule 1925(a) 

opinion. 

 The following issues have been presented for our review: 

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 illegal and we must remand 

for resentencing. Appellant claims that the trial court was limited to 

imposing a sentence not to exceed seven years’ on each count. Appellant 

also contends that theft and receiving stolen property convictions merge for 

the purposes of sentencing. 
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 This issue was not included in appellant’s Rule 1925(b) statement and 

was not raised in the trial court. However, challenges 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 of 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 jurisdiction to 

impose any sentence which is within the range of 

punishments which the legislature has authorized for 

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 arguments 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 incarceration and probation is 

illegal as it exceeded seven years. 
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 Appellant is also correct, and the Commonwealth concurs, that the 

crimes of theft and receiving stolen property should have merged. The 

crimes arose from the same incident and involved the 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 court 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). Therefore, we remand for 

re-sentencing. 

 In his second issue, appellant alleges the trial court relieved the 

Commonwealth of its burden of proof. Appellant argues the trial court 

“demanded on numerous occasions” that defense counsel provide a reason 

why appellant was in the vehicle. (Appellant’s brief at 18-19.) We cannot 

agree. 

 “Issues not raised in the lower court are waived and 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 object, 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 requires 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), appeal 
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denied, 627 A.2d 731 (Pa. 1993). “When a case is tried to the court rather 

than a jury, we will presume the court applied proper 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 jury case. . .”). 

 Appellant directs our attention to the following exchange 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 this 

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. 
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It doesn’t mean you have to take it. If you exercise 

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: The 

actor drove a motor vehicle[,] willfully failed or 

refused to bring the vehicle to a stop, or otherwise 

fled or attempted to elude pursuing police officers, 

having been given visual or audible signals to bring 

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 officers 

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 has 

to offer an explanation, your Honor. 

THE COURT: Okay. 
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MR. NESS: But I would pose to you, that there is -- 

all the other signs that an individual would usually 

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 could 

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 regards 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? 
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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 counsel did not promptly 

object to the court’s “pointed inquiries about his client’s unexplained 

possession of the car” and argue such was an improper shift of the burden of 

proof to appellant. (Trial court opinion, 3/5/14 at 9.) Nor did counsel move 

for a mistrial. Consequently, we could find appellant failed to preserve this 

issue for appellate review. 

 Nevertheless, we disagree with appellant’s assertion that the trial 

court’s comments evidenced that the court had shifted the burden of proof 

following this non-jury trial. Sitting as fact-finder, 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 gauged 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 defendant 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. 
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 The final issue presented challenges the sufficiency 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) statement. 

Rule 1925(b)(4) provides, in pertinent part, as follows: 

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 accordance with 

[Rule 1925(b)(4) ] are waived.” As our supreme court 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 appellant 

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 the 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 to 
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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 “assertions 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 not present a sufficiency 

claim in his Rule 1925(b) statement; rather, his challenges to these 

convictions were styled as a weight of the evidence claim. 

 Sufficiency of the evidence claims are distinct from weight of the 

evidence claims, as there are different standards of review as well as 

separate remedies involved. Commonwealth v. Whiteman, 485 A.2d 459 

(Pa.Super. 1984). Indeed, in making a claim that the verdict was against 
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the weight of the evidence, it is conceded that there 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 technically waived. 

 However, the trial court addressed appellant’s argument and found the 

sufficiency claim to be meritless. Thus, we have carefully 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 opinion. (Trial court opinion, 

3/5/14 at 4.) 

 Conviction affirmed. Case remanded for resentencing. Jurisdiction 

relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

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