HomeMy WebLinkAboutCP-21-CR-0003574-2011
COMMONWEALTH : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CP-21-CR-3574-2011
:
: CHARGES: (1) RETAIL THEFT
: (2) TERRORISTIC THREATS
RONALD ALAN RUEL :
OTN: T 122848-5 : AFFIANT: OFC. TODD HARRER
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Peck, J., April 18, 2013.
On December 6, 2012, a jury found Ronald Alan Ruel (“the Defendant”) guilty of
1
Retail Theft and Terroristic Threats. On January 8, 2013, the Defendant was sentenced
on the Retail Theft charge to undergo imprisonment in the Cumberland County Prison for
not less than six months nor more than twenty-three months, and pay the costs of
2
prosecution and a $100.00 fine. The Defendant was sentenced on the Terroristic Threats
charge to undergo a two year period of supervised probation to run consecutively to the
3
jail sentence, and pay the costs of prosecution, and a $100.00 fine. The Defendant
4
timely appealed. In accordance with Pennsylvania Rule of Appellate Procedure 1925(b),
the Defendant has filed the following concise statements of matters complained of on
appeal:
1.The evidence presented at trial was not sufficient to sustain convictions
for Retail Theft and Terroristic Threats.
a.The evidence did not establish that [the Defendant] committed a
retail theft at the Boscov’s store. The store video showed a man
who was shorter and heavier than [the Defendant] concealing
store merchandise.
b.The evidence did not establish that [the Defendant] threatened to
commit a crime of violence with the intent to terrorize another.
1
In Re: Def. Found Guilty, Order of Ct., Dec. 12, 2012.
2
In Re: Sentence, Order of Ct., Jan. 17, 2013.
3
In Re: Sentence, Order of Ct., Jan. 17, 2013.
4
Notice of Appeal, Feb. 7, 2013.
The statements made by [the Defendant] to the police were spur-
of-the-moment threats resulting from anger. When questioned by
police, [the Defendant] repeatedly told them that he did not steal
anything from Boscov’s and was repeatedly told by the police
that they did not believe him and then he was arrested. These
types of statements were not what the statute was intended to
5
cover.
This Court’s opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
On November 19, 2011, Melissa Trinh, a Boscov’s loss prevention detective at the
6
Boscov’s in Camp Hill was alerted by a co-worker of suspicious activity in the store.
Ms. Trinh began watching the sales floor on video surveillance from the Boscov’s camera
7
room. She observed the Defendant 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
8
then place the fragrance gift set in the bag. The Defendant also placed another item in
9
the bag that had been hidden on a shelf. The Defendant balled up the bag and began
10
walking towards the exit. Ms. Trinh went to the sales floor and followed the Defendant
11
outside Boscov’s where she asked the Defendant to stop. The Defendant, who was
standing two-to-three yards away, turned and faced Ms. Trinh for a few seconds and she
12
observed his face. She observed that the Defendant had short hair, a distinctive mouth
5
Concise Stmt. of the Errors Compl. of on App., ¶¶ 1(a)-1(b), Mar. 4, 2013.
6
Notes of Test., Dec. 5-6, 2012, p. 13-15, (hereinafter “N.T. at ___.”).
7
N.T. at 15-16; Com. Ex. 1.
8
N.T. at 15.
9
N.T. at 16.
10
N.T. at 16.
11
N.T. at 16, 18-19.
12
N.T. at 19-20.
2
and jaw, very little facial hair, and was wearing wire frame glasses, sweat pants, a sweat
13
shirt, and a jacket.
14
The Defendant started to run with the bag in hand. Ms. Trinh called out, and
the Defendant said, “please, stop chasing me, here is your stuff back” and threw the bag
1516
into the bushes. The Defendant kept running and Ms. Trinh lost sight of him. She
17
recovered the bag which contained two fragrance gift sets with a value of $127.50. One
of the fragrance gift sets was the same as the one she had observed the Defendant place in
18
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
19
provided with a still photo of the shoplifter.
Several weeks later Officer Harrer determined the Defendant’s identity and went
20
to the Defendant’s residence to speak with him about the incident. Officer Harrer
informed the Defendant that he was investigating a theft and showed him the still photo
2122
from the video surveillance. The Defendant denied that the photo was of him. Officer
23
Harrer testified that he believed the still photo was of the Defendant. Officer Harrer
24
asked the Defendant for permission to take his photo for identification purposes.
Officer Harrer left the Defendant’s residence and sent the photo he had taken of the
13
N.T. at 20.
14
N.T. at 22.
15
N.T. at 22.
16
N.T. at 22.
17
N.T. at 22-23; Com. Ex. 2.
18
N.T. at 23.
19
N.T. at 23-24, 34; Com. Ex. 3.
20
N.T. at 35.
21
N.T. at 35-36.
22
N.T. at 36-38
23
N.T. at 36.
24
N.T. at 36-37; Com. Ex. 4.
3
25
Defendant to Ms. Trinh. Ms. Trinh confirmed that the photo was of the same individual
26
she had confronted outside of Boscov’s. Officer Harrer arrested the Defendant and
transported him to the police station where Ms. Trinh identified the Defendant in person
27
as the same individual she had confronted outside of Boscov’s. Ms. Trinh
unequivocally identified the Defendant in court as the same person she had confronted
28
outside of Boscov’s.
An hour after the Defendant’s initial arrest, Officer Harrer transported the
Defendant to court for arraignment and to the Cumberland County Prison for
29
commitment. During this transport, the Defendant 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,
30
compared to what I’m going to do;” and (3) he referenced a movie about mass killing.
The Defendant also hit the Plexiglas divider that separated Officer Harrer from the
31
Defendant with his hands causing minor lacerations to his hands. Officer Harrer further
testified that the Defendant’s anger and threats were different than the normal agitated
32
people he deals with on arrests. He testified that the Defendant made the threats
33
personal to Officer Harrer.
25
N.T. at 37; Com. Ex. 4.
26
N.T. at 37.
27
N.T. at 38-39.
28
N.T. at 29.
29
N.T. at 39, 41.
30
N.T. at 41-42.
31
N.T. at 41.
32
N.T. at 43.
33
N.T. at 43.
4
DISCUSSION
The Defendant now challenges the sufficiency of the evidence adduced at trial,
contending that the Commonwealth presented insufficient evidence to sustain his
convictions for retail theft, under 18 Pa.C.S.A. § 3929 (a)(1), and for terroristic threats,
under 18 Pa.C.S.A. § 2706 (a)(1). This Court disagrees.
Sufficiency of the Evidence Standard of Review
“The standard of reviewing the sufficiency of the evidence is whether the evidence
admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light
most favorable to the Commonwealth as the verdict winner, is sufficient to support all the
elements of the offense beyond a reasonable doubt.” Commonwealth v. Strouse, 909
A.2d 368, 368-369 (Pa. Super. Ct. 2006). “The Commonwealth need not preclude every
possibility of innocence or establish the Defendant's guilt to a mathematical certainty.”
Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa. Super. Ct. 2005). “The finder of
fact—here, the jury—exclusively weighs the evidence, assesses the credibility of
witnesses, and may choose to believe all, part, or none of the evidence.” Commonwealth
v. Sanchez, 36 A.3d 24, 39 (Pa. 2011)(internal citations omitted). “Issues of witness
credibility include questions of inconsistent testimony and improper motive.” Id.
Sufficient evidence was presented to sustain a conviction for retail theft
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 the Defendant committed the theft.
5
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. The Defendant threw the
items down saying, “stop chasing me, here is your stuff back,” and kept running. Ms.
Trinh identified the Defendant as the shoplifter. She was consistent in her identification
of the Defendant.
Video surveillance from the store showing the Defendant stealing items
34
corroborated Ms. Trinh’s testimony. The still photo from the video surveillance
entered into evidence depicting the Defendant further corroborated Ms. Trinh’s
testimony and identification. The jury observed the physical characteristics of the
Defendant in court and could have deduced that he was the shoplifter. The Defendant
chose not to testify on his own behalf. The jury as the finder of fact weighed the
evidence, assessed the credibility of the Commonwealth’s witnesses, and found the
Defendant guilty of retail theft. Sufficient evidence was presented for the jury to find
that the Defendant took the items without paying with the intention to deprive Boscov’s.
Sufficient evidence was presented to sustain a conviction for terroristic threats
This Court holds 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 terroristic threats had been proven beyond a reasonable doubt.
A person commits the crime of terroristic threats, under the Pennsylvania Crimes Code, if
the person “communicates, either directly or indirectly, a threat to … commit any crime
of violence with intent to terrorize another…” 18 Pa.C.S.A. § 2706 (a)(1).
“Neither the ability to carry out the threat nor a belief by the person
threatened that it will be carried out is an essential element of the crime.
Rather, the harm sought to be prevented by the statute is the psychological
distress that follows from an invasion of another's sense of personal
security.”
34
N.T. at 16-17; Com. Ex. 1.
6
Commonwealth v. Fenton, 750 A.2d 863, 865 (Pa. Super. Ct. 2000)(internal citations
omitted).
The Commonwealth introduced the testimony of Officer Harrer. He testified that
the Defendant communicated directly to him a multitude of threats to commit crimes of
violence, including that officer Harrer should wear his police vest to protect against what
the Defendant 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 ‘crime 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.
The Defendant contends, however, that his threats do not satisfy the statute’s
requirement that they be made with the intent to terrorize. The Defendant 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 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 ‘mere spur-of-the-moment threats which result(ed) from anger.’” Id. at
1329. The facts in Ashford are very similar to the case presently before this Court. The
defendant in Ashford was arrested for on an outstanding warrant for disorderly conduct,
handcuffed, and placed in a police car. Id. at 1328-29. During the trip to the police
7
station, the defendant made repeated threats on the lives of the officers. Id. at 1230. The
defendant expressed an intent to hunt the officers down and kill their families. Id. at
1329. 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, the Defendant’s threats were designed to terrorize Officer
Harrer by threatening to kill him when he got out of jail. The Defendant made multiple
threats to that effect, communicated them in a very angry, loud manner, and became
physically aggressive with Officer Harrer. Defendant was not intoxicated, but rather was
clear of mind when he made the threats. The Defendant’s threats were specific as to the
acts of violence he would like to carry out on Officer Harrer. These specific threats
combined with the Defendant’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 the Defendant intended to terrorize Officer Harrer. The evidence is
sufficient to sustain a conviction for terroristic threats.
CONCLUSION
This Court concludes that the evidence admitted at trial by the Commonwealth
was sufficient to support the jury finding, beyond a reasonable doubt, that Defendant was
guilty of retail theft and terroristic threats. The issues raised by Defendant on appeal,
therefore, are without merit. This Court respectfully requests that the Superior Court of
Pennsylvania affirm this Court’s decision.
BY THE COURT,
______________________
Christylee L. Peck, J.
8
Charles J. Volkert, Esq.
Assistant District Attorney
Arla M. Waller, Esq.
Deputy Public Defender
9