J-A20020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

EDWARD STEPHEN DELGROS

                        Appellant                  No. 1472 WDA 2015


       Appeal from the Judgment of Sentence entered June 23, 2015
              In the Court of Common Pleas of Mercer County
            Criminal Division at No: CP-43-CR-0001496-2014


BEFORE: BOWES, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                     FILED DECEMBER 13, 2016

      Appellant, Edward Stephen Delgros, appeals from the judgment of

sentence the Court of Common Pleas of Mercer County entered June 23,

2015. Upon review, we affirm.

      The trial court summarized the factual and procedural background as

follows:

      In June of 2001, Robert Croyle was hired to install a doublewide
      for [Appellant]. Croyle used two I-beams to move the
      doublewide into position. The I-beams were described as being
      lightweight magnesium, 20 plus feet long and had been
      purchased for $1,400 a piece.

      [Appellant] was not satisfied with the job. Croyle left the beams
      and other materials behind with the plan to pick them up later.

      Croyle returned a week or so later to retrieve the I-beams and
      other materials. The items were not at the site. When Croyle
      questioned [Appellant] as to their whereabouts, [Appellant]
      indicated he did not know.
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     Croyle reported the I-beams were missing to the Hermitage
     Police Department.

     Deputy Chief Eric Jewel of the Hermitage Police Department
     went to [Appellant]’s residence. [Appellant] told him he did not
     know what happened to the I-beams and gave Jewell permission
     to look for them. Deputy Chief Jewell was unable to find them.
     As a result, no charges were filed.

     Several months later, [Appellant] asked his father to help him
     hide the I-beams in the woods. [Appellant] identified the I-
     beams as the ones Croyle had left.

     Five to seven years later, [Appellant]’s father helped [Appellant]
     retrieve the I-beams. [Appellant] used them to build a porch on
     his house.

     In April 2014, Danielle Hackett told the Hermitage Police that the
     I-beams were on the property and they might be visible from a
     certain vantage point. Deputy Chief Jewell went to the site, but
     was unable to see them.

     Shortly thereafter, [Appellant]’s father told Deputy Chief Jewell
     [Appellant] had used them to build his porch.

     Deputy Chief Jewell went to the residence and saw I-beams in
     the porch roof in plain view. He obtained a search warrant.
     Pursuant to the warrant, photographs were taken and a sample
     of the beams [was] taken.

     The sample was tested and showed that the beams to be made
     of aluminum.

     When confronted with the fact the I-beams were aluminum,
     Croyle indicated he thought they were magnesium, but they
     could have been aluminum. Croyle did, however, identify the I-
     beams in the photo taken by Deputy Chief Jewell as the I-beams
     that went missing in 2001, based on the holes in them.

     A criminal complaint was filed against [Appellant] on August 20,
     2014, charging him with Receiving Stolen Property, F-3.




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      A jury trial in this matter commenced on April 16, 2015. A
      verdict of guilty on the sole count was returned on April 17,
      2015.

      ...

      [Appellant] was sentence on June 23, 2015, to pay restitution in
      the sum of $2,800.00 and to pay a fine of $15,000.00.

Trial Court Opinion, 9/2/15, at 1-3 (citations to record omitted).

      On appeal, Appellant raises the following issues:

      I.     Whether the lower court erred by failing to dismiss the
             criminal charge as the applicable statute of limitations for
             the offense of receiving stolen property as a felony of the
             third degree, expired prior to the Hermitage Police
             Department [] securing the arrest warrant dated August
             20, 2014[.]

      II.    Whether the evidence presented by the Commonwealth
             was insufficient to sustain the verdict for receiving stolen
             property as a felony of the third degree[.]

      III.   Whether, in evaluating the weight of the evidence
             challenge, the lower court committed an abuse of
             discretion by failing to engage in a meaningful analysis of
             the physical evidence as it contradicted the testimony
             presented in support of the verdict[.]

      IV.    Whether the lower court committed legal error by
             concluding that the ineffective assistance of counsel claims
             raised in the post-sentence motion were by nature
             collateral claims and Appellant was ineligible for review[.]

Appellant’s Brief at viii-ix.




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       In his first claim, Appellant argues the trial court erred in not finding

that the statute of limitations barred the instant prosecution.1            Appellant

acknowledges that receiving stolen property “can, and frequently is, a

continuing offense.”      Appellant’s Brief at 11.      According to Appellant, the

continuing    offense     rationale    is   designed   to   prevent   criminals   from

“benefit[ing] from hiding a crime so well that no one knows they committed

it.” Id. However, he adds that, under the circumstances of the case, the

rationale above described is not present because the instant crime was a

complete offense when the police learned that the property was stolen and

who stole it. Id. According to Appellant, the investigators’ failure to pursue

the investigation does not operate to extend the five-year statute of

limitations. Id. Similarly, Appellant argues that his “alleged concealment of

the property at issue” does not extend the statute of limitations.           Id. We

disagree.

       It is well-established that receiving stolen property is an ongoing

offense, which continues as long as the perpetrator retains possession of the

stolen property. See, e.g., Commonwealth v. Farrar, 413 A.2d 1094,

1098 (Pa. Super. 1979) (the language of the statute defining the crime of


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1
  A question regarding the application of the statute of limitations is a
question of law. See Commonwealth v. Russell, 938 A.2d 1082, 1087
(Pa. Super. 2007). “Where the petitioner raises questions of law, our
standard of review is de novo and our scope of review plenary.”
Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa. Super. 2013).



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receiving stolen property makes the offense an ongoing or continuing one);

see also Commonwealth v. Hawkins, 439 A.2d 748, 752 (Pa. Super.

1982) (retention of stolen property is a “continuing” offense which does not

terminate until the stolen property is taken from the accused). At the time

of the filing of charges against Appellant, he continued to have possession of

the stolen I-beams. Accordingly, the statute of limitations does not bar the

instant prosecution.

      Regarding the police officers’ alleged knowledge of the identity of the

culprit, the trial court noted: “The fact officers of the Hermitage Police

Department suspected [Appellant] of stealing the I-beams in 2001 and

investigated the alleged theft is irrelevant for purposes of the Statute of

Limitations in this case. The I-beams were not located and the officers did

not have a legal basis to charge him.”     Trial Court Opinion, 9/2/15, at 4

(emphasis added). We agree.

      Next, Appellant’s reliance on Sections 5552(b)(1) and/or 5552(c) of

the Judicial Code to suggest that the statute of limitations bars the instant

prosecution is misplaced.     See 42 Pa.C.S.A. §§ 5552(b)(1), 5552(c)

(relating to statute of limitations for offenses other than those listed in

Section 5551). Indeed, neither section directly addresses the issue raised

here. Interestingly, however, Appellant fails to mention that under Section

5552(d), which specifically deals with continuing offenses: “An offense is

committed when every element occurs, or, if a legislative purpose to prohibit




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a continuing course of conduct plainly appears, at the time when the course

of conduct . . . is terminated.” 42 Pa.C.S.A. § 5552(d) (emphasis added).

       Finally, Appellant’s reliance on Commonwealth v. Cardonick, 292

A.2d 402 (Pa. 1972) for the general proposition that the statute of

limitations must be construed liberally in favor of the accused is also

misplaced. Cardonick dealt with the tolling of the statute of limitations in

connection with invalid indictments. There is no issue of tolling here. The

only issue here is when the offense of receiving stolen property was

committed. As noted, Section 5552(d) specifically provides that continuing

offenses, such as receiving stolen property, are completed when the conduct

constituting the crime is terminated.

       Next, Appellant argues the evidence was insufficient to prove he

committed the crime of receiving stolen property.2    Specifically, Appellant

argues the Commonwealth failed to prove the property at issue was stolen

because the physical description of the stolen property provided by the
____________________________________________


2
 In Commonwealth v. Mattison, 82 A.3d 386 (Pa. 2013), our Supreme
Court reiterated:

       In reviewing the sufficiency of the evidence, we examine
       whether the evidence admitted at trial, and all reasonable
       inferences drawn therefrom, viewed in the light most favorable
       to the Commonwealth as verdict winner, support the jury’s
       finding of all the elements of the offense beyond a reasonable
       doubt. The Commonwealth may sustain its burden by means of
       wholly circumstantial evidence.

Id. at 392 (citation omitted).



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witness did not match the property recovered from Appellant. The argument

is specious.

       As correctly noted by the trial court, the mere fact that victim was

wrong about what the I-beams were made of, and the fact of how long they

were, does not negate the crime of receiving stolen property. If anything,

the discrepancy may affect the weight of the evidence, not the sufficiency.

At any rate, the record is sufficient to prove that the property was in fact

stolen. “In the case at hand, the evidence established that [Appellant] stole

[victim]’s I-beams in 2001, based on his admission to his father.

[Appellant] had the [I-beams] and then used them to build a porch onto his

residence.” Trial Court Opinion, 9/2/15, at 5.

       Next, Appellant argues the Commonwealth failed to provide sufficient

evidence of the value of the stolen property.       Specifically, according to

Appellant, the Commonwealth failed to produce evidence of the fair market

value3 of the property at the time and place it was stolen. Appellant’s Brief

at 19. Additionally, Appellant argues that “under no circumstances should

the value be based upon the amount of money [victim] paid for the

[property].” Id. at 20.




____________________________________________


3
 “Market value has been defined as the price which a purchaser, willing but
not obligated to buy, would pay an owner, willing but not obligated to sell[.]”
Commonwealth v. Hanes, 522 A.2d 622, 625 (Pa. Super. 2007).



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       Appellant fails to recognize that “[t]estimony of the owner . . . is

admissible to establish the market value of the stolen property.”     Hanes,

522 A.2d at 625. Here, the victim testified he paid $2,800 for the property.4

The evidence, therefore, is sufficient to prove that the value of the stolen

property exceeded $2,000.00. As such, the crime was properly graded as a

felony of the third degree. See 18 Pa.C.S.A. 3903(a.1).

       Next, Appellant argues the conviction is against the weight of the

evidence. Essentially, Appellant argues the trial court abused its discretion

in not weighing in his favor the inconsistencies between the physical

description of the property as provided by the victim and the actual

characteristics of property recovered from Appellant.

       It is not our role to determine whether the conviction is against the

weight of the evidence. On appeal, we determine whether the trial court

abused its discretion in denying his challenge.           Commonwealth v.

Widmer, 744 A2d 745, 753 (Pa. 2000).             Based on the evidence in the

record, and the trial court’s explanation of the denial, we conclude the trial




____________________________________________


4
  Appellant argues that the amount paid by victim to acquire the property is
not a proper measure of the value because victim mistakenly believed he
purchased magnesium beams as opposed to aluminum beams. Nowhere
does Appellant explain how this error by victim affected the price he paid for
the property, which is a proper method for determining the value of the
stolen property. Additionally, as articulated, the challenge goes to the
weight of evidence, not the sufficiency.



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court did not abuse its discretion in denying Appellant’s weight of the

evidence challenge.

       Finally, Appellant argues that the trial court erred in not entertaining

his ineffective assistance of counsel (IAC) claims.      Specifically, Appellant

argues that under Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013)

said claims were reviewable. The trial court rejected Appellant’s request on

the basis that he was not eligible for collateral relief because he was

sentenced to a fine.

       The Holmes Court reiterated the general rule that claims focusing on

counsel’s performance presumptively should await collateral review, with

two exceptions:


       First, we appreciate that there may be extraordinary
       circumstances where a discrete claim (or claims) of trial counsel
       ineffectiveness is apparent from the record and meritorious to
       the extent that immediate consideration best serves the
       interests of justice; and we hold that trial courts retain their
       discretion to entertain such claims.

       ....

       Second, with respect to other cases and claims, including cases
       such as Bomar[5] and the matter sub judice, where the
       defendant seeks to litigate multiple or prolix claims of counsel
       ineffectiveness, including non-record-based claims, on post-
       verdict motions and direct appeal, we repose discretion in the
       trial courts to entertain such claims, but only if (1) there is good
       cause shown, and (2) the unitary review so indulged is preceded
       by the defendant’s knowing and express waiver of his
____________________________________________


5
    Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003).



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     entitlement to seek PCRA review from his conviction and
     sentence, including an express recognition that the waiver
     subjects further collateral review to the time and serial petition
     restrictions of the PCRA. In other words, we adopt a paradigm
     whereby unitary review may be available in such cases only to
     the extent that it advances (and exhausts) PCRA review in time;
     unlike the so-called Bomar exception, unitary review would not
     be made available as an accelerated, extra round of collateral
     attack as of right. . . . This exception follows from the
     suggestions of prior Court majorities respecting review of prolix
     claims, if accompanied by a waiver of PCRA review.

Holmes, 79 A.3d at 563-64 (footnotes omitted).

     Thus, under Holmes, claims of ineffective assistance of counsel may

be reviewed by a trial court if (i) the ineffectiveness is apparent from the

record and meritorious such that immediate consideration best serves the

interests of justice or (ii) if (1) there is good cause shown, and (2) the

unitary review so indulged is preceded by the defendant’s knowing and

express waiver of his entitlement to seek PCRA review from his conviction

and sentence.

     Appellant claims, without much explanation, that he would be entitled

to a review of his IAC claims under either test. Appellant’s Brief at 26. We

disagree.

     Regarding the first test under Holmes, Appellant suggests that trial

counsel should have challenged the underlying search warrant and the

Commonwealth’s determination of the stolen property’s value.       Appellant

claims these “errors” are apparent from the record.      N.T. Post-Sentence

Motions Hearing, 8/3/15, at 17-18.   However, the record is devoid of any




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evidence of ineffectiveness, unless allegations of ineffectiveness amount to

evidence of ineffectiveness. Id. Of course, they do not.

       Regarding the second test under Holmes, Appellant fails to recognize

that the test presumes that Appellant is entitled to PCRA review of his

conviction and sentence.          As also acknowledged by Appellant, however,

Appellant is not entitled to PCRA relief.6 Accordingly, Appellant did not meet

the second test.

       Finally, Appellant argues that, absent the opportunity to challenge his

trial counsel ineffectiveness at this stage, he would be denied his right to

assert his constitutional right to competent representation, which constitutes

a denial of his procedural due process. Appellant’s Brief at 26-28.

       The right to challenge counsel’s effectiveness is not absolute. Indeed,

it is well-established that there is no due process right to non-custodial

collateral reviews. Commonwealth v. Turner, 80 A.3d 754, 764-67 (Pa.

2013).7 Appellant was sentenced to pay a fine, which makes him not eligible

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6
   See Commonwealth v. Reigel, 75 A.3d 1284, 1288-1289 (Pa. Super.
2013) (appellant, who was sentenced to pay fine and costs only, not eligible
to obtain PCRA relief); Commonwealth v. Fisher, 703 A.2d 714 (Pa.
Super. 1997) (PCRA precludes relief for petitioners whose only sentence is a
fine).
7
  Relying on Holmes, Appellant argues he is entitled to a hearing on trial
counsel’s ineffectiveness, regardless of the PCRA eligibility requirements.
Appellant’s Brief at 26. Appellant misreads Holmes. Holmes did not create
an additional exception to the general rule under Grant, nor did it modify
the PCRA eligibility requirements.



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for collateral relief on his ineffective assistance of counsel claim.   See

Reigel, supra; Fisher, supra.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




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