NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No. 258 MDA 2013

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. RONALD ALAN RUEL Appellant No. 258 MDA 2013 Appeal from the Judgment of Sentence January 8, 2013 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR BEFORE: LAZARUS, J., OTT, J., and JENKINS, J. MEMORANDUM BY OTT, J.: FILED MAY 28, 2014 Ronald Alan Ruel appeals from the judgment of sentence imposed on January 8, 2013, in the Court of Common Pleas of Cumberland County. On December 6, 2012, a jury convicted Ruel of retail theft and terroristic threats. 1 The court imposed a sentence of six to 23 months imprisonment, to be followed by two years of probation. On appeal, he raises sufficiency of the evidence arguments with respect to both convictions. Based upon the following, we affirm. The trial court set forth the factual history as follows: On November 19, 2011, Melissa Trinh, a Boscov s loss prevention detective at the Boscov s in Camp Hill was alerted by 1 18 Pa.C.S. 3929(a)(1) and 2706(a)(1), respectively.

2 a co-worker of suspicious activity in the store. Ms. Trinh began watching the sales floor on video surveillance from the Boscov s camera room. She observed [Ruel] pick up a fragrance gift set, hide it, take it to an adjacent department within the store, take out a Boscov s bag from inside his coat, and then place the fragrance gift set in the bag. [Ruel] also placed another item in the bag that had been hidden on a shelf. [Ruel] balled up the bag and began walking towards the exit. Ms. Trinh went to the sales floor and followed [Ruel] outside Boscov s where she asked [him] to stop. [Ruel], who was standing two-to-three yards away, turned and faced Ms. Trinh for a few seconds and she observed his face. She observed that [Ruel] had short hair, a distinctive mouth and jaw, very little facial hair, and was wearing wire frame glasses, sweat pants, a sweat shirt, and a jacket. [Ruel] started to run with the bag in hand. Ms. Trinh called out, and [Ruel] said, please, stop chasing me, here is your stuff back and threw the bag into the bushes. [Ruel] kept running and Ms. Trinh lost sight of him. She recovered the bag which contained two fragrance gift sets with a value of $ One of the fragrance gift sets was the same as the one she had observed [Ruel] place in the bag on the video surveillance. Officer Todd Harrer of the Camp Hill Borough Police Department responded to the scene, reviewed video surveillance footage and was provided with a still photo of the shoplifter. Several weeks later Officer Harrer determined [Ruel] s identity and went to [his] residence to speak with him about the incident. Officer Harrer informed [Ruel] that he was investigating a theft and showed him the still photo from the video surveillance. [Ruel] denied that the photo was of him. Officer Harrer testified that he believed the still photo was of [Ruel]. Officer Harrer asked [Ruel] for permission to take his photo for identification purposes. Officer Harrer left [Ruel] s residence and sent the photo he had taken of [Ruel] to Ms. Trinh. Ms. Trinh confirmed that the photo was of the same individual she had confronted outside of Boscov s. Officer Harrer arrested [Ruel] and transported him to the police station where Ms. Trinh identified [Ruel] in person as the same individual she had confronted outside of Boscov s. Ms. Trinh unequivocally identified [Ruel] in court as the same person she had confronted outside of Boscov s

3 An hour after [Ruel] s initial arrest, Officer Harrer transported [him] to court for arraignment and to the Cumberland County Prison for commitment. During this transport, [Ruel] became extremely agitated, very angry and loud, called Officer Harrer a Nazi, and threatened him with statements such as: (1) you better wear your vest because when I get out of here it s going to be bad; (2) statements that Mark Spotz, known by Officer Harrer to be a local convicted murderer, will have nothing compared to what I m going to do, that is going to seem small, compared to what I m going to do; and (3) he referenced a movie about mass killing. [Ruel] also hit the Plexigas divider that separated Officer Harrer from [Ruel] with his hands causing minor lacerations to his hands. Officer Harrer further testified that [Ruel] s anger and threats were different than the normal agitated people he deals with on arrests. He testified that [Ruel] made the threats personal to Officer Harrer. Trial Court Opinion, 4/18/2013, at 2-4 (footnotes omitted). The matter proceeded to trial. On December 16, 2012, a jury found Ruel guilty of retail theft and terroristic threats. On January 8, 2013, the court sentenced him to a term of six to 23 months of county imprisonment for the theft offense and a consecutive term of two years probation for the terrorist threats conviction. Ruel did not file post-sentence motions, but did file this appeal. 2 Because both claims involve the sufficiency of the evidence, we begin with our well-settled standard of review: 2 On February 11, 2013, the trial court ordered Ruel to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Ruel filed a concise statement on March 4, The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on April 18,

4 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. Brooks, 7 A.3d 852, (Pa. Super. 2010) (citation omitted), appeal denied, 21 A.3d 1189 (Pa. 2011). In Ruel s first argument, he complains there was insufficient evidence to support his retail theft conviction based on the store s surveillance videotape that captured the theft. Ruel s Brief at 9. Specifically, Ruel states the Commonwealth presented the video to the jury, which depicted a white man, with dark hair, a receding hairline, and was wearing glasses and sweatpants. Ruel contends that [w]hen a closer look is given to the video, the man is shorter than [him] and heavier than [him.] Id. at Ruel concludes that the video shows a man, but not a person who fits his physical description

5 We find that Ruel s argument goes to the weight, not the sufficiency of the evidence, and the jury was free to view the evidence and make a determination that Ruel was, indeed, the perpetrator in the video. Commonwealth v. Johnson, 42 A.3d 1017, 1026 (Pa. 2012), cert. denied, 133 S. Ct (U.S. 2013). Moreover, as the trial court properly noted: The evidence presented at trial, when viewed in the light most favorable to the Commonwealth, was sufficient to support the jury s finding that all elements of the offense of retail theft had been proven beyond a reasonable doubt. A person is guilty of a retail theft, under the Pennsylvania Crimes Code, if he: takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof 18 Pa.C.S.A. 3929(a)(1). The Commonwealth introduced the testimony of an eye witness to the theft, Ms. Trinh, who testified that [Ruel] committed the theft. She watched him take fragrance gift sets that had been offered for sale, conceal them in a bag, and walk out of the store without paying for the items. She immediately went outside of the store, saw the same man that she had seen inside stealing items, confronted him, asked him to stop, and gave chase to him. [Ruel] threw the items down saying stop chasing me, here is your stuff back, and kept running. Ms. Trinh identified [Ruel] as the shoplifter. She was consistent in her identification of [Ruel]. Video surveillance from the store showing [Ruel] stealing items corroborated Ms. Trinh s testimony. The still photo from the video surveillance entered into evidence depicting [Ruel] further corroborated Ms. Trinh s testimony and identification. The jury observed the physical characteristics of [Ruel] in court and could have deduced that he was the shoplifter. [Ruel] chose not to testify on his own behalf. The jury as the finder of fact weighed the evidence, assessed the credibility of the - 5 -

6 Commonwealth s witnesses, and found [Ruel] guilty of retail theft. Sufficient evidence was presented for the jury to find that [Ruel] took the items without paying with the intention to deprive Boscov s. Trial Court Opinion, 4/18/2013, at 5-6 (footnote omitted). Accordingly, we conclude that Ruel s first argument fails. In his second argument, Ruel contends there was insufficient evidence to support his terroristic threats conviction. Ruel s Brief at 11. He asserts the statements he made to Officer Harrer were spur-of-the-moment statements made in anger, not with the intent to terrorize. Id. Furthermore, he argues the criminal statute for terroristic threats was not meant to penalize the nature of the statements he made to the officer. Id. at Keeping our standard of review in mind, we note that the crime of terroristic threats is defined as follows: A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to: (1) commit any crime of violence with intent to terrorize another[.] 18 Pa.C.S. 2706(a)(1). Based on this definition, to obtain a conviction for making a terroristic threat, the Commonwealth must prove that (1) the defendant made a threat to commit a crime of violence; and (2) such threat was communicated with the intent of terrorizing another or with reckless disregard for the risk of causing terror. Commonwealth v. Kelley, 444 Pa. Super. 377, 664 A.2d 123, 127 (Pa. Super. 1995). A direct communication between the defendant and the victim is not required to establish the crime of terroristic threats. Id

7 In re L.A., 853 A.2d 388, (Pa. Super. 2004). Here, the court found the following: The Commonwealth introduced the testimony of Officer Harrer. He testified that [Ruel] communicated directly to him a multitude of threats to commit crimes of violence, including that [O]fficer Harrer should wear his police vest to protect against what [Ruel] would do to him and that he would commit worse acts to Officer Harrer than what convicted murderers had done to their victims. Certainly murder would be within the fair import of the phrase crimes of violence. Commonwealth v. Ferrer, 423 A.2d 423, 424 (Pa. Super. Ct. 1980). These threats to murder Officer Harrer clearly satisfy the statute s requirement that the threats must be to commit a crime of violence. [Ruel] contends, however, that his threats do not satisfy the statute s requirement that they be made with the intent to terrorize. [Ruel] argues they were spur-of-the-moment threats resulting from anger. Being angry does not render a person incapable of forming the intent to terrorize. Commonwealth v. Fenton, 750 A.2d 863, 865 (Pa. Super. Ct. 2000). Even a single verbal threat might be made in such terms or circumstances as to support the inference that the actor intended to terrorize. Commonwealth v. Ferrer, 423 A.2d 423, 424 (Pa. Super. Ct. 1980). In Ferrer[,] the defendant made a single threat during trial to a police detective who testified against him. Id. at 425. The defendant shouted that the police detective s testimony would cost him one of his kids. Id. This statement established the defendant s settled purpose to terrorize and was sufficient to support [a] conviction for terroristic threats beyond a reasonable doubt. Id. at 425. In Commonwealth v. Ashford, 407 A.2d 1328 (Pa. Super. Ct. 1979), the Pennsylvania Superior Court found ample evidence to support the jury s conclusion that [the defendant] made threats with the requisite intent to terrorize, and that his threats were more than spur-of-the-moment threats which resulted(ed) from anger. Id. at The facts in Ashford are very similar to the case presently before this Court. The defendant in Ashford was arrested for an outstanding warrant for disorderly conduct, handcuffed, and placed in a police car. Id. at During the trip to the police station, the - 7 -

8 defendant made repeated threats on the lives of the officers. Id. at The defendant expressed an intent to hunt the officers down and kill their families. Id. at The Court noted in Ashford that the defendant was not intoxicated. Id. at 1329; compare with Commonwealth v. Kidd, 442 A.2d 826 (Pa. Super. Ct. 1982) (holding that threats to kill the police made in a hospital by an intoxicated defendant who was arrested for public drunkenness was not sufficient to establish the intent to terrorize another). In the present case, [Ruel] s threats were designed to terrorize Officer Harrer by threatening to kill him when he got out of jail. [Ruel] made multiple threats to that effect, communicated them in a very angry, loud manner, and became physically aggressive with Officer Harrer. [Ruel] was not intoxicated, but rather was clear of mind when he made the threats. [Ruel] s threats were specific as to the acts of violence he would like to carry out on Officer Harrer. These specific threats combined with [Ruel] s physical aggression exhibited an intention to place Officer Harrer in a state of fear. The circumstances of the present case support an inference that [Ruel] intended to terrorize Officer Harrer. The evidence is sufficient to sustain a conviction for terroristic threats. Trial Court Opinion, 4/18/2013, at 7-8. Viewing this evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, we agree with the trial court s determination. Based on our thorough review of the record and the relevant case law, we conclude the multiple threats made by Ruel were not spur-of-the moment, which resulted from anger, and therefore, his statements to Officer Harrer amount to terrorist threats, which did fall within the parameters of Section 2706(a)(1). Accordingly, Ruel s second sufficiency claim is also unavailing. Judgment of sentence affirmed

9 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/28/