Com. v. Kover, T.

Superior Court of Pennsylvania

Com. v. Kover, T.

DecidedApril 14, 2020

Docket689 WDA 2019

StatusUnpublished

This text of Com. v. Kover, T. (Com. v. Kover, T.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Kover, T., (Pa. Ct. App. 2020).

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Opinion

J-A09020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRY LEE KOVER : : Appellant : No. 689 WDA 2019

Appeal from the Judgment of Sentence Entered April 4, 2019 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0000444-2018

BEFORE: SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY MURRAY, J.: FILED APRIL 14, 2020

Terry Lee Kover (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of theft by unlawful taking, receiving stolen

property, and criminal trespass.1 Appellant challenges the sufficiency of the

evidence supporting his convictions and the sufficiency of the evidence to

support the grading of the theft related offenses as third-degree felonies.

After careful review, we affirm.

On November 6, 2017, John Steiminger observed Appellant “taking a

washing machine out of his father’s yard” and placing it into a white SUV.

N.T., 1/8/19, at 31. Mr. Steiminger indicated that his attention was drawn to

the SUV due to the volume of noise the vehicle was making. Id. at 33. The

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3921(a), 3925(a) and 3503(a)(1)(ii). J-A09020-20

next day, November 7, 2017, Mr. Steiminger observed the same washing

machine in the driveway of the home of John Collier, Mr. Steiminger’s

neighbor. Id. at 34. In order to observe Appellant from a better vantage

point, Mr. Steiminger proceeded from his residence to a greenhouse located

on his property. Id. at 43. Mr. Steiminger did this because he “suspected

something was going on with [Appellant], because why else would he have

went down around there and down in the alley with that vehicle and that

washing machine was in [Mr. Collier’s] parking place.” Id. at 44.

From inside his greenhouse, Mr. Steiminger observed Appellant “taking

some long [metal] things outside [Mr. Collier’s] shed.” Id. at 45. He indicated

there was “a stack of them . . . piled up” outside of the shed. Id. at 45-46.

Mr. Steiminger testified, “I seen him take one and put it in his vehicle, at least

one. He might have had a couple of them together, I’m not sure.” Id. at 47.

Mr. Steiminger then observed Appellant enter the shed and remove a “goofy

looking” metal object. Id. at 49. Mr. Steiminger recalled Appellant also

placing this item in his SUV. Id. He stated:

I seen him go from the long things outside to there and then I seen him go inside and take things and put it in [the SUV]. And by then, I guess he figured he had enough to make one load to whatever he was going to do with it and closed the shed door up.

Id. at 50. Mr. Steiminger indicated that “the whole pile was gone at the end.”

Id. at 47. He further testified that he had never observed Mr. Collier’s shed

open “until this day when the stuff was being taken.” Id. at 50.

The trial court recounted Mr. Collier’s testimony:

-2- J-A09020-20

Mr. Collier stated that he has owned [his residence] since 2003. However, he stated that his father had a stroke in 2015, and since then, he has been living with his parents to help take care of his father. He indicated that he would return to the [ ] residence “at least once a month just to grab up all [his] mail and that he would often return in the summertime and fall to manage the property and mow the lawn. Mr. Collier indicated that he “built the shed” on his property “probably seven years ago.” He stated that “[t]here is a latch with a lock, Master padlock” on the door of the shed and that he has a key to the lock. Mr. Collier explained that his shed was “completely filled with tools” because he excavates “in-ground swimming pools in the summertime.” Mr. Collier indicated that he went to his shed whenever he “needed tools.” Regarding the alleyway located behind his residence, Mr. Collier confirmed Mr. Steiminger’s earlier testimony and indicated that he would travel on the alleyway whenever he made his monthly visit to the nearby post office. Furthermore, Mr. Collier stated: “nobody drives up and down that alley.”

On December 1 or 2, 2017, Mr. Collier stated he went to the shed to retrieve an “auger attachment” for purposes of “[b]oring holes in the ground” for fence posts on his parents’ property. When he arrived, he noticed that the door was “blown wide open” and that the lock was “smashed.” Regarding the lock’s location, Mr. Collier stated that “part of it was dangling like on the building itself, not on the door.” A number of items were missing from inside and around the shed.

Trial Court Opinion, 6/27/19, at 7-8.

Following trial on January 8, 2019, the jury convicted Appellant of the

aforementioned crimes. The jury also found the value of the stolen property

to be more than $2,000 but less than $100,000. Id. at 2. On April 4, 2019,

the trial court sentenced Appellant to an aggregate term of two to four years

of prison, plus four years of probation. This appeal followed. Both the trial

court and Appellant have complied with Rule of Appellate Procedure 1925.

Appellant raises two issues for our review:

-3- J-A09020-20

1. Was there sufficient evidence to convict the Appellant of Theft by Unlawful Taking, Receiving Stolen Property, and Criminal Trespass?

2. Was there sufficient evidence as to [the] value of items claimed to be stolen?

Appellant’s Brief at 9.

Appellant’s first issue challenges the sufficiency of the evidence

supporting his three convictions. Our standard of review is well settled:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, 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 resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact 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 circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Reed, 216 A.3d 1114, 1119 (Pa. Super. 2019) (quoting

Commonwealth v. Brown, 186 A.3d 985, 990-91 (Pa. Super. 2018)).

With regard to criminal trespass and unlawful taking, Appellant avers

the evidence was insufficient to prove that he committed the crimes. In this

vein, he asserts that the only evidence the Commonwealth presented “that

could possibly link the Appellant to the crimes of theft and criminal trespass

-4- J-A09020-20

is testimony by Mr. Steiminger that he saw the Appellant on November 7,

2017 with an SUV parked in his father’s driveway, neighboring Mr. Collier’s

property.” Appellant’s Brief at 16. Appellant contends that this type of

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