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HomeMy WebLinkAboutCP-21-CR-0003001-2011 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-3001-2011 V. : : CHARGE: 1. CRIMINAL ATTEMPT - : RECEIVING STOLEN PROPERTY; : 2. CRIMINAL CONSPIRACY – : RECEIVING STOLEN PROPERTY; : 3. RECEIVING STOLEN PROPERTY ROGER LEE HOOPER : OTN: L659807-1 : AFFIANT: PTL. JOSEPH CAPERS IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 (a) Ebert, J., May 6, 2013 – In this criminal case, Defendant was found guilty following a jury trial held on December 3, 5, and 6, 2012, of Count 1, Criminal Attempt - Receiving Stolen Property and Count 2, Criminal Conspiracy - Receiving Stolen Property. Defendant was found 1 not guilty of Count 3, Receiving Stolen Property. 2 Defendant appeals the jury verdict and resulting sentence based on the following: 1. Whether the trial court erred in denying the Appellant’s Motion for Post- Sentence Relief where the evidence at trial was insufficient to sustain a verdict for Criminal Attempt Receiving Stolen Property because the Commonwealth failed to establish that the Appellant made any effort to receive a stolen handgun. Specifically, the testimony at trial revealed that the Commonwealth’s witness, Todd Hunsicker, informed the Appellant that the gun was in fact his own property. This fact was corroborated by another Commonwealth witness, George Hunsicker, who testified that Todd Hunsicker owned guns on his own; and 2. Whether the trial court erred in denying the Appellant’s Motion for Post- Sentence Relief where the verdict was against the weight of the evidence because the Commonwealth failed to establish that the Appellant made any effort to receive a stolen handgun. Specifically, the testimony at trial revealed that the Commonwealth’s witness, Todd Hunsicker, informed the Appellant that the gun was in fact his own property. This fact was 1 Notes of Testimony, Dec. 3,5, and 6, 2012, 347-48 (hereinafter “N.T. __”) 2 Statement of Matters Complained of on Appeal, filed March 7, 2013. corroborated by another Commonwealth witness, George Hunsicker, who testified that Todd Hunsicker owned guns of his own. Further, the testimony and evidence presented at trial demonstrated that the facts and circumstances surrounding the “controlled buy” of the firearm was so riddled with errors as to call in to questions (sic) whether there was proof beyond a reasonable doubt to justify the verdict. Procedural History Defendant was found guilty following a jury trial held on December 3, 5, and 6, 2012, of Count 1, Criminal Attempt - Receiving Stolen Property and Count 2, Criminal Conspiracy - Receiving Stolen Property. The jury additionally found Defendant to be in the business of buying or selling stolen property. Defendant was found not guilty of 3 Count 3, Receiving Stolen Property. Defendant was sentenced on January 8, 2013, to pay the costs of prosecution, a fine of $10,000.00, and incarceration for a period of 27 4 months to 20 years. On January 17, 2013, Defendant filed a Motion for Post-Sentence Relief where he sought a Judgment of Acquittal and/or New Trial and requested that the 5 sentence imposed be a RRRI sentence. This Motion was denied in part and granted in part. Specifically, the Motion for Judgment of Acquittal and/or a New Trial was denied 6 and the Motion requesting a RRRI sentence was granted. The Defendant was given a 7 RRRI sentence of 20 months and 7 days. Defendant filed a Notice of Appeal on February 14, 2013, and a Statement of Matters Complained of on Appeal on March 7, 2013. 3 N.T. 347-48 4 In Re: Sentence, Order of Court, Ebert, J., filed Jan. 15, 2013. 5 Motion for Post-Sentence Relief Filed by the Defendant, Roger Lee Hooper, filed Jan. 17, 2013. 6 In Re: Defendant’s Motion for Post Sentence Relief, Order of Court, Ebert, J., filed Jan. 18, 2013. 7 Id. 2 Statement of Facts The Defendant, Roger Hooper, is an auctioneer who owns his own business, 8 Roger L. Hooper Auctions. Defendant also frequently works at Lemoyne Coin and Collectibles (hereinafter “Lemoyne Coin”), located at 305 Hummel Avenue, Lemoyne, 9 Cumberland County, Pennsylvania, to help out his son Christopher Hooper. Defendant has prior convictions from October 2, 2010, of two counts of Deceptive Business Practices, one count of Theft by Deception, and one count of Dealing in Proceeds of 10 Unlawful Activities. The facts of this case require some background information involving the interactions between Defendant and the Commonwealth’s principal witness, Todd Hunsicker (hereinafter “Todd”). Sometime in August of 2011, Todd was working with 11 his father, George Hunsicker (hereinafter “George”), on a job installing carpet. While at the job site, Todd stole rings from the homeowner and sold them to Defendant at 12 Lemoyne Coin. After George learned about the rings, he informed Defendant that he needed the rings back because otherwise the owner of the rings would get the police 13 involved. George went to Lemoyne Coin where, after the rings were found, George 14 paid Defendant for their return and returned them to the owner. While dealing with the ring situation, George informed Defendant that Todd had a 15 drug problem and stole the rings to support that habit. George told Defendant that 8 N.T. 249 9 N.T. 124, 129, 229 10 N.T. 250 11 N.T. 8, 14 12 N.T. 9, 25, 251 13 N.T. 9, 253 14 N.T. 9, 254, 257-58 15 N.T. 10, 256 3 Todd had been stealing from him for years and that he was afraid Todd would steal 16 guns from him. George gave Defendant his contact information and asked Defendant to call him if Todd ever brought more items to the store because he didn’t have anything 17 to sell and any items he had would most likely be stolen. Defendant agreed to call if 18 Todd came back to Lemoyne Coin. On September 5, 2011, George noticed that four of his guns were missing and 19 notified police. Two of the missing guns were old pistols left to George by his 20 grandfather. The other two missing guns, a .357 Taurus and a .22, were modern 2122 handguns. George suspected that Todd took the guns and questioned him. Todd informed his father that he did take the guns and sold them to Defendant at Lemoyne 2324 Coin. These guns were never recovered. In fact around the time George’s guns were stolen, Todd had been stealing a lot. In October 2011, Todd was charged with Burglary in East Pennsboro, Cumberland 25 County. This case was still pending at the time of Defendant’s trial. On November 3, 2011, he was charged with Theft in Marysville, Perry County, and had already been 26 sentenced by the time of Defendant’s trial. Also in November 2011, Todd was charged with Receiving Stolen Property and Theft by Unlawful Taking of Movable Property in York County. Again, he had been sentenced on these charges prior to 16 N.T. 10, 256 17 N.T. 10-11, 257 18 N.T. 11 19 N.T. 11, 14 20 N.T. 12 21 N.T. 12 22 N.T. 12 23 N.T. 12, 25-26 24 N.T. 12 25 N.T. 22 26 N.T. 23 4 27 Defendant’s trial. Todd was additionally charged in December 2011 with Burglary and four counts of Theft from East Pennsboro, Cumberland County. These charges were 28 still pending at the time of Defendant’s trial. While Todd admitted he wanted leniency in exchange for testifying, he was not promised anything prior to testifying at 29 Defendant’s trial. Todd was first contacted by police regarding certain unsolved thefts in mid- September 2011, when Detective Adam Shope of the East Pennsboro Township Police Department suspected Todd was involved in boat thefts occurring in the West Fairview 30 area. Detective Shope decided to interview Todd about the boat thefts on September 31 22, 2011. Prior to conducting the non-custodial interview, Detective Shope learned 32 that George had filed a report about missing firearms. He was also aware that Todd 33 was a potential suspect in a July 2011 theft of a shotgun in Marysville. During the interview, Todd confessed to stealing the boats, his father’s four 34 firearms, and the shotgun from his aunt in Marysville. Todd informed Detective Shope that he sold all the guns to Defendant at Lemoyne Coin except for one that was used to 35 pay a drug debt. Todd would typically be paid $75.00 in cash for each handgun he 36 sold at Lemoyne Coin. The sale would typically take place in the back office and 37 Defendant would either pay Todd with money from his pocket or from the back office. 27 N.T. 23-24 28 N.T. 23 29 N.T. 23-24 30 N.T. 121-22 31 N.T. 122 32 N.T. 123, 126 33 N.T. 123-24 34 N.T. 124 35 N.T. 124 36 N.T. 26, 28 37 N.T. 26, 28 5 Detective Shope was concerned about this practice because the private sale of 38 handguns can only take place at a registered gun dealer’s store. Lemoyne Coin is not 39 a registered gun dealer and has no license to purchase modern handguns. In an effort to recover the guns, a plan was formulated to conduct a controlled sale of a handgun to Defendant at Lemoyne Coin and then conduct a search of the 40 store after the gun was sold. Todd was informed of the plan and agreed to assist the 41 police by acting as an undercover informant in selling a handgun to Defendant. Todd 42 was released after his interview and told someone would be in contact with him. Todd 43 was not given money or anything else for his cooperation. Detective Shope wanted the controlled sale to take place the day after the interview, September 23, 2011, so that 44 Todd’s involvement would not become known in the community. There was a considerable amount of planning and coordination between the East Pennsboro Police, the West Shore Regional Police, and the Cumberland County District Attorney’s Office in order to conduct the controlled sale. First, Lieutenant Mark Green of 45 the East Pennsboro Police Department became involved. Lieutenant Green decided to use his own department issued handgun, a Glock .40 caliber model 23, for the 46 controlled sale. As a safety precaution, Lieutenant Green had the firing pin ground 47 down so that if the trigger was pulled, the weapon would not fire. An anticipatory 38 N.T. 72-73 39 132, 190 40 N.T. 125 41 N.T. 30 42 N.T. 126, 128 43 N.T. 127-28 44 N.T. 128 45 N.T. 128 46 N.T. 71; Commonwealth’s Ex. 2 47 N.T. 74 6 search warrant was obtained for Lemoyne Coin for the date of the controlled sale, ready 48 to be served if Todd sold the gun to the Defendant. Detective Joseph Capers with the West Shore Regional Police Department was contacted about assisting in the operation because Lemoyne Coin is located in his 49 jurisdiction. On the morning of September 23, 2011, he picked up Todd around 11:00 50 and took him to the police station. Detective Capers searched Todd and did not find 51 any contraband on him. He then gave Todd a department issued cell phone to call 52 Lemoyne Coin and make sure Defendant was there. On the phone, Todd said he had 53 something personal to sell and asked if he could come down to the shop. After he hung up, Todd informed Detective Capers that Defendant was present and the 54 operation could continue. Detective Jeffrey Mohn with the Cumberland County District Attorney’s Office received a call the morning of September 23, 2011, to work in an undercover capacity in 55 this operation. Detective Mohn was given the handgun which had been placed in a Redskins NFL bag which was provided by Detective Shane Cohick of the East 56 Pennsboro Township Police Department. Detective Mohn transported Todd to 57 Lemoyne Coin to conduct the sale. He parked his car approximately 50 to 75 feet 48 N.T. 77; Commonwealth’s Ex. 7 49 N.T. 189-90 50 N.T. 190-91 51 N.T. 192 52 N.T. 192 53 N.T. 32, 193 54 N.T. 193 55 N.T. 90 56 N.T. 94, 118-19; Commonwealth Ex. 2; Commonwealth Ex. 3 57 N.T. 94 7 from Lemoyne Coin on the opposite side of the street, gave Todd the bag with the 58 handgun, and watched Todd enter Lemoyne Coin. Todd entered Lemoyne Coin where Defendant and another customer, a man 59 wearing a blazer, were present. Todd and Defendant provided different versions of what occurred inside Lemoyne Coin during the controlled sale. According to Todd, he showed Defendant what was in the bag and once the other customer left, they went into 60 the back office. They agreed on the price of $130.00 for the handgun and Defendant 61 gave Todd money from a desk in the back office. Todd stated that Defendant warned 62 him not to tell anyone where he takes these handguns. In Defendant’s version of events, he stated he noticed Todd come into the store while he was helping the other customer and thought that if he ignored Todd, he would 63 leave. When Todd did not leave, Defendant asked him what’s up and Todd 64 proceeded to pull a handgun out of the bag. Defendant stated he was seething and 65 told Todd to “get that shit out of here”. After the customer left, Todd told the Defendant the gun was his own property and not his father’s; however, the Defendant 66 admitted that he had a strong suspicion the gun was not Todd’s. Defendant testified he tried to tell Todd other places he could sell the gun legally, but Todd still would not 67 leave. Defendant walked into the back room where Todd followed him, pulled the gun 58 N.T. 94 59 N.T. 32-33, 259 60 N.T. 33 61 N.T. 33-34 62 N.T. 33 63 N.T. 260 64 N.T. 261 65 N.T. 261 66 N.T. 264, 294 67 N.T. 264-65 8 6869 out, and said he needed money now. Todd requested $150.00 in small bills. 70 Defendant stated he obliged and gave him the money because he was scared. Defendant then watched Todd bend down, place some of the money in his sock, leave 71 the gun on the ground, and then exit the store. Defendant did not feel that he was robbed by Todd and admitted that he was in possession of the gun inside Lemoyne 72 Coin. The Defendant testified that after Todd left his store, he did in fact pick up the 73 handgun, wrap it in a towel and then place it in a filing cabinet drawer. Most telling, even though the Defendant stated that he was very “shaken up” by the incident and 74 “probably breathing pretty heavy” having just witnessed what he thought was clear criminal activity, he made no effort to immediately call 911 or the police department. Todd left Lemoyne Coin after about five or six minutes and got back into 75 Detective Mohn’s vehicle. Todd lied and informed Detective Mohn that the Defendant 76 had purchased the gun for only $80.00. Detective Mohn searched Todd; however, the 77 detective missed finding the money Todd stuffed into his sock. After the controlled sale, the anticipatory search warrant was served on Lemoyne 78 Coin. Defendant was placed into custody and Detective Capers escorted him to his 79 patrol car. Before Detective Capers could ask Defendant any questions, Defendant blurted out that he knew the gun was stolen, that George had told him that Todd had a 68 N.T. 266 69 N.T. 266-67 70 N.T. 267, 271 71 N.T. 267 72 N.T. 298-300 73 N.T. 298-299 74 N.T. 297 75 N.T. 94 76 N.T. 94 77 N.T. 95 78 N.T. 136 79 N.T. 195 9 80 drug problem and had stolen weapons, and he bought the gun to get it off the street. During the search of Lemoyne Coin, the gun Todd sold was recovered from the filing 81 cabinet. No evidence of any paperwork was found or presented regarding the transfer 82 of the handgun. No other handguns or ammunition were found in the store. Two other search warrants were prepared by Detective Capers and served after 83 the initial anticipatory search warrant. There was another search warrant for Lemoyne 84 Coin to look for any information regarding off-site storage facilities. No information 85 about any other storage facilities was found. On September 25, 2011, a search warrant was also issued for the Defendant’s residence, located at 1541 Thompson Lane, Mechanicsburg, Cumberland County, 86 Pennsylvania. The house, vehicles, and specifically the two storage facilities on the 87 property were searched. These storage facilities were used as storage for Lemoyne 88 Coin as well as personal storage for the family. During the search of the property, 89 nineteen shotguns were recovered from one of the storage facilities. The serial numbers of the shotguns were run through a database to determine if any were stolen. Out of the nineteen shotguns one, an Ithaca model 37, 12 gauge, came back as 90 stolen. This was not the shotgun Todd stole from his aunt in Marysville, but belonged 80 N.T. 197 81 N.T. 77-79 82 N.T. 87, 138 83 N.T. 198 84 N.T. 198-99; Commonwealth Ex. 21 85 N.T. 203 86 N.T. 198; Commonwealth Ex. 20 87 N.T. 200 88 N.T. 235 89 N.T. 171, 203 90 N.T. 171-72; Commonwealth Ex. 6 10 91 to Thomas Beck’s mother, whose home was burglarized on May 4, 2011. Thomas 92 Beck was able to identify the shotgun as one stolen from his mother. During trial, Defendant’s son, Christopher, testified he had purchased this shotgun at Williams Grove (known locally to conduct a weekly flea market) but did not know it was stolen at 9394 the time. Defendant maintained that he had never purchased this shotgun. Unquestionably, this testimony was accepted by the jury and led to the not guilty verdict at Count 3: Receiving Stolen Property (Ithaca Shotgun). Discussion I. Sufficiency of the Evidence Defendant contends that there was insufficient evidence presented at trial to sustain a conviction for Criminal Attempt - Receiving Stolen Property. This Court disagrees. A. Legal Standard “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, 368-69 (Pa. Super. 2006). This standard applies equally to cases based on either direct or circumstantial evidence, as long as “the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004), quoting 91 N.T. 66 92 N.T. 68 93 N.T. 232 94 N.T. 270 11 Commonwealth v. Coon, 695 A.2d 794, 797 (Pa. Super. 1997)(citations omitted). In proving its case, the Commonwealth “need not establish guilt to a mathematical certainty”. Id. at 750. The jury, as the trier of fact, has “the responsibility of assessing the credibility of the witnesses and weighing the evidence presented”. Commonwealth v. Newton, 994 A.2d 1127,1131 (Pa. Super. 2010), quoting Commonwealth v. Pruitt, 951 A.2d 307, 313 (Pa. 2008)(citations omitted). The jury is “free to believe all, part or none of the evidence”. Id. Therefore, the reviewing court “may not substitute its judgment for that of the [jury]; if the record contains support for the convictions they may not be disturbed.” Parker, 847 A.2d at 750. In his first matter complained of, Defendant only contends that there was insufficient evidence to support the conviction for Criminal Attempt - Receiving Stolen 95 Property. This section will, therefore, only focus on whether there was sufficient evidence to sustain a conviction for Criminal Attempt - Receiving Stolen Property. B. Elements Criminal attempt is set forth in 18 Pa.C.S.A. § 901(a). In order to prove attempt in this case the Commonwealth must show that Defendant (1) did a certain act; (2) with intent to commit the crime of receiving stolen property; and (3) that the act was a substantial step toward commission of receiving stolen property. 18 Pa.C.S.A. § 901(a). The crime of Receiving Stolen Property is set forth in 18 Pa.C.S.A. § 3925(a). In order to convict Defendant of Criminal Attempt - Receiving Stolen Property, the Commonwealth, in addition to the above elements of attempt, must prove: (1) Defendant was in possession of the property; and (2) Defendant knew or had reason to 95 See Statement of Matters Complained of on Appeal, filed March 7, 2013 12 believe the property was stolen. 18 Pa.C.S.A. § 3925(a); Parker, 847 A.2d at 751. Here, since Defendant’s conviction is for an attempt, the Commonwealth need not prove that the property was in fact stolen. It is not a defense “that because of a misapprehension of the circumstances it would have been impossible for [Defendant] to commit the crime attempted”. 18 Pa.C.S.A. § 901(b). Commonwealth v. Henley, 459 A.2d 365 (Pa.Super. 1983) C. Analysis When reviewing evidence, the jury may infer Defendant had guilty knowledge that property was stolen based on certain circumstances including: the defendant’s conduct at arrest, his conduct while in possession of the property, and the relationship with the victim of the theft, if any. Newton, 994 A.2d at 1133. The jury may also consider additional evidence to prove guilt such as “the nature of the goods, the quantity of the goods involved, the lapse of time between possession and theft, and the ease with which the goods can be assimilated into trade channels”. Parker, 847 A.2d at 751. Defendant points to his claim that Todd told him the handgun was his own property and George testified at trial that Todd did own guns as evidence that the Defendant did not know or believe the handgun was stolen. However, there was more than sufficient evidence presented at trial for the jury to infer that Defendant knew or had reason to believe the handgun was stolen. Perhaps most important was Defendant’s own testimony concerning the ownership of the gun. Defendant stated that Todd had no credibility with him and he thought the gun belonged to George, Todd’s 96 father. Defendant also “had a strong suspicion that Todd Hunsicker wasn’t the owner 96 N.T. 294 13 97 of that gun”. Furthermore, after he was arrested Defendant, prior to any questioning, 98 blurted out to Detective Capers that he knew the gun was stolen. Defendant knew from speaking with George that he should not buy anything from 99 Todd because it was probably stolen. While at trial, as Defendant points out, George did indicate that Todd owned his own guns, however, there was no evidence that 100 George ever told that information to Defendant. While Todd was not the victim of theft in this case, his relationship with Defendant is instructive. Defendant knew from 101 prior experience that Todd had sold stolen items to him at Lemoyne Coin. Todd 102 indicated that in addition to the stolen rings, he also sold guns he stole to Defendant. The jury could also infer that Defendant knew or had reason to believe the handgun was stolen and that Defendant intended to receive stolen property, based on the fact that the transaction with Todd took place in the back office of Lemoyne Coin 103 rather than in the main show room. Defendant informed Todd not to tell anyone 104 where he takes these handguns. Additionally, after receiving possession of the handgun, Defendant wrapped it in a towel and placed it in the back of a filing cabinet, 105 from which the jury could infer he desired to hide the fact that he purchased this gun. There was also sufficient evidence to establish the remaining elements of the offense. Defendant performed a substantial step to receiving stolen property by giving 97 N.T. 294 98 N.T. 197 99 N.T. 9-11; 257; 281-82 100 N.T. 9 101 N.T. 253 102 N.T. 25-26 103 N.T. 33 104 N.T. 33 105 N.T. 269 14 106 Todd money and physically placing the handgun in a filing cabinet. During trial, Defendant admitted that he was in possession of the handgun while inside Lemoyne 107 Coin. The Defendant’s whole claim of error is premised on the following few lines from the entire trial transcript: Assistant District Attorney: Did he have anything of value in the house? George: He (Todd) had a bow and an arrow and, you know, some odds and ends. He had a couple guns that belonged to me 108 that I gave him. But I kept them in a gun safe. **************************************************************************************** Defendant: I said listen, just do yourself a favor and take your damn gun home before you get yourself into trouble. He says, no, this isn’t my dad’s gun. This is my gun, honest to God. I said I don’t care, I really don’t care, 109 I am not interested in it. He said no, this is a good gun. **************************************************************************************** Assistant District Attorney: And Todd told you that it was his gun? Defendant: Yes, over and over again. Assistant District Attorney: And you didn’t believe him? 110 Defendant: He had no credibility with me. Unfortunately for the Defendant, the jury was free to believe or disbelieve these statements. Defendant makes much of the fact that Todd Hunsicker was a dishonest, drug addicted criminal. What the Defendant glosses over is the fact that he did do 106 N.T. 34, 266-69 107 N.T. 299 108 N.T. 9 109 N.T. 264 110 N.T. 294 15 business with this dishonest criminal. Additionally, the jury heard that the Defendant himself had been convicted of two counts of Deceptive Business Practices, one count of 111 Theft by Deception and one count of Dealing in Proceeds of Unlawful Activities. The jury was charged that they could consider the evidence of these convictions in judging the Defendant’s credibility. Again, the jury was free to believe all, part, or none of any of the testimony. Here, the old proverb that “birds of a feather flock together” clearly defines the illegal business relationship between Todd Hunsicker and the Defendant. One must remember that when the jury answered the special interrogatory on the jury slip, they found beyond a reasonable doubt that the Defendant was in the business of buying and selling stolen property. This evidence was more than sufficient for the jury to conclude that Defendant knew or had reason to believe the handgun was stolen regardless of what Todd or George may have told the Defendant. There was sufficient evidence to convict the Defendant of Criminal Attempt - Receiving Stolen Property beyond a reasonable doubt. II. Weight of the Evidence Defendant also contends that the jury’s verdict, finding him guilty of both Criminal Attempt - Receiving Stolen Property and Criminal Conspiracy – To Commit Receiving Stolen Property, was against the weight of the evidence. This Court disagrees. A. Legal Standard The Pennsylvania Supreme Court has stated, [a] challenge to the weight of the evidence is directed to the discretion of the trial judge, who heard the same evidence and who possesses only narrow authority to upset a jury verdict. The trial judge may not grant relief based merely on some conflict in testimony or because the judge would reach 111 N.T. 250 16 a different conclusion on the same facts. Relief on a weight of the evidence claim is reserved for extraordinary circumstances, when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011)(internal citations omitted). A verdict may only be overturned on the basis that it is against the weight of the evidence where the “evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture.” Commonwealth v. Harrison, 434 A.2d 808, 812 (Pa. Super. 1981)(internal citations omitted). B. Analysis of the Attempt to Receive Stolen Property Conviction Defendant maintains that the verdict was against the weight of the evidence because there was no evidence establishing that Defendant made any effort to receive a stolen handgun. Defendant again points to the fact that Todd informed Defendant the handgun was his own property and George testified that Todd owned his own guns. Defendant further argues that the verdict was against the weight of the evidence because the controlled buy was so riddled with errors as to call into question whether there was proof beyond a reasonable doubt to justify the verdict. There was ample evidence supporting the controlled sale of the handgun to Defendant in this case. The Commonwealth presented testimony from six law enforcement officers concerning the preparation and execution of the controlled sale. Detective Mohn explained the typical way the police conduct a controlled buy and how 112 the controlled sale in this case was similar in nature. Detective Shope provided 113 sufficient reasons for why no undercover officer was used during the controlled sale. 112 N.T. 90-93 113 N.T. 130 17 The controlled sale was executed according to the plan. Todd, as the informant, was 114 searched for contraband prior to the sale. Todd was provided with a handgun to sell by the police and went into Lemoyne Coin where he received money in exchange for 115 the handgun. Upon exiting the shop, Todd was searched again and provided police 116 with a written statement of what happened. The handgun was found inside the shop 117 in Defendant’s filing cabinet. The fact that Todd concealed extra money from law enforcement does not change the evidence that Defendant gave Todd money in exchange for a handgun. There was nothing to suggest that the Commonwealth’s evidence regarding the controlled sale was unreliable, contradictory, or that the sale was riddled with errors. All of the additional evidence supporting the jury’s guilty verdict has been discussed in detail in Section I. C. of this opinion. The jury’s verdict finding Defendant guilty of Criminal Attempt - Receiving Stolen Property does not shock this Court’s sense of justice and is not against the weight of the evidence. C. Analysis of Conspiracy to Commit Receiving Stolen Property Conviction Defendant also contends that his conviction for Criminal Conspiracy -To Commit Receiving Stolen Property is against the weight of the evidence for the same reasons as 118 stated supra. The elements of conspiracy are found in 18 Pa.C.S.A. § 903. A defendant is guilty of conspiracy if he: (1) agrees with another person or persons that they will act together to commit a crime or crimes; and (2) either the defendant or a fellow 114 N.T. 192 115 N.T. 34, 94 116 N.T. 35-36, 95 117 N.T. 78 118 See Section II, B 18 conspirator does an overt act in furtherance of the conspiracy. 18 Pa.C.S.A. § 903(a); Commonwealth v. Reed, 419 A.2d 552, 554-55 (Pa. Super. 1980). In this case Defendant must agree with another to commit theft by receiving stolen property, the 119 elements of which were detailed supra. In proving conspiracy, the Commonwealth is not required to prove a formal or explicit agreement. Reed, 419 A.2d at 554. “A conspiracy may be proved by circumstantial evidence”. Id. at 554-55. While only circumstantial, there was enough evidence presented at trial to support the jury’s verdict. Todd testified that he had sold stolen handguns to Defendant 120 prior to the controlled sale. Defendant gave Todd money in exchange for a handgun 121 during the controlled sale, the reliability of which was discussed supra. Defendant told Todd not to tell anyone where he brings these handguns, from which the jury could infer that an agreement had been entered into where Defendant would purchase stolen 122 handguns from Todd. The specific fact that the Defendant maintains that Todd informed him during the controlled sale that the handgun was his own property and 123 George testified Todd owned guns has been discussed at length, supra. After reviewing the evidence, the jury’s verdict finding Defendant guilty of Criminal Conspiracy to Commit Receiving Stolen Property does not shock this Court’s sense of justice and is not against the weight of the evidence. The Defendant took the stand and testified in his own behalf. This Court had the opportunity to observe his tone, demeanor and level of candor. Not surprisingly, the Defendant simply did not help himself with his testimony. In listening to him, one got the distinct impression that he 119 See Section I, B 120 N.T. 25-26 121 N.T. 34; See Section II, B 122 N.T. 33 123 See Section I, C 19 was a consummate con man who believes he can talk his way out of anything. Thus, with regard to the verdict in the case, the Defendant reaped what he had sowed. III. Conclusion A jury properly found Defendant guilty of Count 1, Criminal Attempt - Receiving Stolen Property and Count 2, Criminal Conspiracy - To Commit Receiving Stolen Property based on sufficient evidence presented at trial. The jury was able to weigh the testimony and make credibility determinations. The jury determined that Defendant knew or had reason to believe the handgun he purchased was stolen, even though there was testimony that Todd Hunsicker told Defendant it was his own property. Additionally, the Commonwealth presented reliable evidence detailing the controlled sale of the handgun. The jury’s verdict was not against the weight of the evidence and does not shock this Court’s sense of justice. By the Court, _____________________ M. L. Ebert, Jr., J. District Attorney’s Office Norris E. Gelman, Esquire Attorney for Defendant 20