MEMORANDUM BY STRASSBURGER, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence January 12, 2017 in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000829-2016 BEFORE: OTT, DUBOW, and STRASSBURGER, J. MEMORANDUM BY STRASSBURGER, J.:

Andrew Thomas Tubbs (Appellant) appeals from the January 12, 2017 judgment of sentence of an aggregate term of one to four years of incarceration after a jury found him guilty of one count each of receiving stolen property, theft by deception, and theft by unlawful taking. Upon review, we affirm.

The testimony at trial established the following. On April 21, 2016, Rachel Warburton's boyfriend, Nick Aloisio, picked her up from work, and the two went to Pudgie's Pizza in Lycoming County for the purpose of meeting Appellant to purchase marijuana from him. When they arrived at Pudgie's, Appellant and his friend, Jordan Probst, got into the car. Aloisio gave Appellant $4,000 to purchase 24 ounces of marijuana. Appellant and Probst left the car, indicating "they would be right back." N.T., 10/27/2016, at 28. Appellant never returned to the car with the marijuana. Warburton testified that Aloisio later received a text message from Appellant, saying "Sorry, bro; you might as well just go home. I'm going to Florida." Id. at 30. The attempts of Warburton and Aloisio to find Appellant were unsuccessful, and later that day Warburton called police to report the stolen money.

Probst testified that on April 21, 2016, he received a call from Appellant asking Probst and his girlfriend to pick up Appellant so Appellant could meet with Aloisio. Probst testified that when they arrived at Pudgie's, he and Appellant got into Aloisio's car; there was talk of buying drugs; and Aloisio gave Appellant four separate stacks of money. Probst testified that he and Appellant then went to Sunoco where Probst purchased heroin and Appellant gave his "baby's mom" a "nice little chunk of money." Id . at 41. The two then went to Foot Locker at the mall and "purchased a whole bunch of stuff." Id. In addition, Probst testified that Appellant and Aloisio spoke on the phone and Appellant told Aloisio that he was "burnt for that money." Id. at 50.

Later that evening, Detective Joshua Bell observed a suspicious vehicle, and initiated a traffic stop of the vehicle in which both Probst and Appellant were riding. Upon stopping the vehicle, Detective Bell noticed "the odor of marijuana emanating from within the car." Id. at 96. Upon searching Appellant, Detective Bell recovered "what appeared to be a large amount of U.S. currency rolled up and rubber banded." Id. at 97. Detective Bell's partner, Detective Bathgate, learned that these individuals may have been recently "involved in anther crime" and it was requested that they "detain everybody." Id. Lycoming police arrived at the scene and took possession of the cash, which amounted to $2,000. Recovered from the trunk of the car were items purchased from Foot Locker, along with receipts for those items.

Lycoming police officer, Matthew McCormick, interviewed Appellant the following day. Appellant was read his Miranda warnings, and explained to Officer McCormick that he met with Aloisio at Pudgie's where Aloisio provided Appellant with $4,000 so that Appellant "could purchase a pound and a half of marijuana for [] Aloisio." Id. at 60. Appellant then told Officer McCormick that he went to an apartment building near Pudgie's where he met a "white male" who "took the money from him" and then informed Appellant that he would not be "getting the drugs." Id. at 62. In other words, Appellant told police that this white male whom he could not identify stole the $4,000.

Three days later, on April 25, 2016, Officer Chris Kriner interviewed Appellant. Once again, Appellant waived his Miranda rights. Appellant told Officer Kriner "that he had been in communication with [] Aloisio and that [] Aloisio wanted him to get a pound and a half of marijuana for him. ... [H]e met up with [] Aloisio and took money from him, $4,000[] in cash." N.T., 10/27/2016, at 69. Appellant then told Officer Kriner that he went to the Chatham Park apartments, gave Aloisio's $4,000 to a white male "in the hopes of getting marijuana, and that that male had burned him, meaning he took his money and didn't give him any drugs." Id .

Based on the foregoing, Appellant was charged with theft by unlawful taking, conspiracy to commit theft by unlawful taking, and receiving stolen property. A jury trial was held on October 27, 2016. Immediately prior to trial, the Commonwealth made an oral motion to amend the criminal information to add the charge of theft by deception. Appellant objected, and the trial court permitted the amendment. Appellant was found guilty of theft by unlawful taking, receiving stolen property, and theft by deception.

On January 12, 2017, Appellant was sentenced to an aggregate term of one to four years of incarceration. Appellant timely filed a post-sentence motion, which was denied. Appellant timely filed a notice of appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents numerous questions for our review. We begin with Appellant's challenges to the sufficiency of the evidence to sustain all three convictions, as well as his claims that the verdict was contrary to the weight of the evidence for all three convictions.

In order to address [these claims] we find it necessary to delineate the distinctions between a claim challenging the sufficiency of the evidence and a claim that challenges the weight of the evidence. The distinction between these two challenges is critical. A claim challenging the sufficiency of the evidence, if granted, would preclude retrial under the double jeopardy provisions of the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the Pennsylvania Constitution, Tibbs v. Florida , 457 U.S. 31 [] (1982)[], whereas a claim challenging the weight of the evidence if granted would permit a second trial. Id.

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is

against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.

With respect to the six issues Appellant presents challenging the weight and sufficiency of the evidence, he sets forth essentially the same argument:

In the instant matter, the Commonwealth attempted to show injury or loss through the testimony of [] Warburton. However, [] Warburton testified that she did not entrust Appellant with any money, but that [] Aloisio did. [] Aloisio, who[m] Appellant avers is the alleged victim, did not testify at trial. Without [] Aloisio's testimony, the Commonwealth did not have any evidence indicating that Appellant failed to provide [] Aloisio with goods or services, thus completing the sale of [m]arijuana.

The trial court responded to Appellant's arguments as follows.

While there may have been no direct testimony from [] Aloisio[, the fact that he] did not subsequently receive any goods or services was made abundantly clear from the evidence which was presented. For example, Jordan Probst's testimony that he and [Appellant] immediately left with the money and did not purchase any marijuana, his testimony that [Appellant] told Aloisio that he was going to Florida with the money, his testimony that [Appellant] and his compatriots went shopping with the money, his testimony that [Appellant] gave a "nice little chunk of money" to his "baby's mom," and the evidence that [Appellant] had $2,000 in cash (held together with a rubber band) in his

backpack when stopped by police. This evidence was more than sufficient to enable the fact-finder to find beyond a reasonable doubt that [Appellant] took the money and did not provide the marijuana, with the requisite intent to deprive Aloisio and Warburton of the money.


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[Appellant] contends that because [] Aloisio did not testify, there was no "direct" evidence that he did not receive goods or services and thus, apparently, that [Appellant] acted with the requisite larcenous intent when he took the money. Again, even though the evidence did not come directly from Aloisio, the verdict was hardly a product of speculation or conjecture. All the evidence pointed to [Appellant's] guilt and the jury so found. The court's sense of justice was not at all shocked.

First, to the extent Appellant is arguing that the Commonwealth did not present the testimony of a victim, he is incorrect. Warburton testified that half of the money stolen was her money. See N.T., 10/27/2016, at 34. Moreover, Warburton testified that she was in the car when Aloisio handed their money to Appellant. She also testified that earlier in the day, she heard Aloisio tell Appellant "that he wanted him to get a pound and a half of weed for him." Id. at 35. Warburton testified Aloisio received a text message from Appellant indicating that he would not be delivering the marijuana. Id. at 30. This testimony, if believed by the jury, is sufficient to establish the elements of the crimes for which Appellant was convicted. See Commonwealth v. Steele , 559 A.2d 904, 909 (Pa. 1989) (stating "circumstantial evidence is sufficient to sustain a conviction so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt").

Accordingly, we agree with the trial court that the evidence was sufficient to sustain these convictions. Moreover, we discern no abuse of discretion in the trial court's conclusion that the verdict did not shock its sense of justice. Appellant's convictions were based largely upon consistent testimony of Warburton and Probst, which was corroborated by physical evidence. "The fact-finder bears the responsibility to resolve questions of credibility, and, absent extraordinary circumstances, an appellate court will not substitute its judgment for that of the factfinder." Commonwealth v. Blackham , 909 A.2d 315, 319 (Pa. Super. 2006) (internal quotation marks omitted). Based on the foregoing, Appellant is not entitled to relief on his claims challenging either the sufficiency or the weight of the evidence.

We now turn to Appellant's argument that the trial court erred in granting the Commonwealth's motion to amend its information immediately prior to trial. Specifically, Appellant argues that the trial court should not have permitted the Commonwealth to amend the information to add a charge for theft by deception because the new charge "included a new element of deception" and "he could not properly prepare for the new allegations." Appellant's Brief at 17. Thus, Appellant argues that the trial court should have permitted Appellant to continue the case.

This issue is governed by Pa.R.Crim.P. 564, which provided as follows at the time of Appellant's trial:

The court may allow an information to be amended when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

Pa.R.Crim.P. 564. When the trial court exercises its discretionary power to allow amendment of the information, the defendant can obtain relief if the amendment prejudices him. See Commonwealth v. Mentzer , 18 A.3d 1200, 1203 (Pa. Super. 2011) (citation omitted). Factors for a court to consider in determining the existence of prejudice include:

(1) whether the amendment changes the factual scenario supporting the charges; (2) whether the amendment adds new facts previously unknown to the defendant; (3) whether the entire factual scenario was developed during a preliminary hearing; (4) whether the description of the charges changed with the amendment; (5) whether a change in defense strategy was necessitated by the amendment; and (6) whether the timing of the Commonwealth's request for amendment allowed for ample notice and preparation.

Id. (citation omitted).

In addition, because this amendment involved theft-related crimes, 18 Pa.C.S. § 3902 provides additional guidance.

Section 3902 of the Crimes Code consolidates the various theft offenses defined in Chapter [3]9 into a unitary theft offense. Section 3902 provides:

Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under the chapter notwithstanding the specification of a different manner in the complaint or indictment, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of notice or surprise.

18 Pa.C.S.[] § 3902. The purpose of § 3902 is to reduce the opportunity for technical defenses based upon legal distinctions between thefts of various kinds. Thus, an accusation of theft may be supported by evidence that it was committed in any manner that would be theft under the Crimes Code, notwithstanding the specification of a different manner in the complaint or indictment. This is true as long as defendant has an opportunity to respond, and is not prejudiced by lack of notice or surprise.

Despite the last minute notice of the amendment, the trial court concluded that the elements to prove theft by unlawful taking and theft by deception are substantially the same. Moreover, when asked, Appellant could not point to any differences in the defense he would have presented at trial. Accordingly, the trial court granted the motion.

On appeal, Appellant still does not point to any witnesses he would have called, differences in defense strategy, or other questions he would have asked based on this charge had he had more time to prepare for trial. The elements of theft by unlawful taking and theft by deception are substantially similar and the charges stemmed from the same incident. Thus, Appellant has not convinced us he was prejudiced by this amendment. Accordingly, we conclude the trial court did not err or abuse its discretion in permitting the Commonwealth to amend the information immediately prior to trial.

Appellant's next argument concerns the admission of statements made by Appellant to police. Specifically, Appellant argues that the trial court erred in admitting these statements in violation of the corpus delicti rule. Appellant's Brief at 18-20.

At trial, after the testimony of Warburton and Probst, the Commonwealth called Officer McCormick to testify. Prior to this testimony, Appellant argued that the statements Appellant made to Officer McCormick were inadmissible because Aloisio, not Warburton, "handed [Appellant] the money and [] told [Appellant] what the money was intended for." N.T., 10/27/2016, at 55. The trial court denied that motion, concluding that 1) Warburton was also a victim, and 2) that "a person who witnesses someone being victimized can testify to said victimization." Id. at 56.

The corpus delicti rule begins with the proposition that a criminal conviction may not be based upon the extra-judicial confession of the accused unless it is corroborated by independent evidence establishing the corpus delicti. The corpus delicti,

literally "the body of the crime," is defined as a wrong committed by criminal means, and consists of the occurrence of a loss or injury, and some person's criminal conduct as the source of that loss or injury. The criminal responsibility of a particular, identifiable person, e.g. the accused, is not a requirement of the rule. The purpose of the rule is to prevent the use of hasty and unguarded confessions to convict an individual when no crime has been committed.

Under Pennsylvania law, the application of the corpus delicti rule occurs in two distinct phases. The first phase involves the court's application of a rule of evidence governing the threshold question of the admissibility of the confession. In this first phase of the rule's application, the court must determine whether the Commonwealth has proven the corpus delicti of the crimes charged by a mere preponderance of the evidence. If the court is satisfied that, on the evidence presented, it is more likely than not that a wrong has occurred through criminal agency, then the confession and/or admissions of the defendant are admissible.

The second phase of the rule's application occurs after a confession has already been admitted into evidence. After the court has made its initial determination that the Commonwealth has proved the corpus delicti by a preponderance of the evidence and has ruled the confession to be admissible, the corpus delicti rule additionally requires that the Commonwealth prove to the jury's satisfaction beyond a reasonable doubt, the corpus delicti of the crimes charged. We note that the dual level of proof the corpus delicti rule requires is not without its critics. We additionally note that other jurisdictions do not require a two-tiered, dual level of proof application of the rule.

Nevertheless, the law of Pennsylvania continues to require that the Commonwealth prove the existence of the corpus delicti beyond a reasonable doubt before the jury may consider the defendant's confession. A jury instruction to that effect is, therefore, crucial, since the confession may be admitted into evidence upon a presentation of the corpus delicti by a mere preponderance.

Here, Appellant argues Warburton's testimony did not establish an "injury or loss." Appellant's Brief at 19. Appellant once again argues that because Aloisio is the victim, and he did not testify at trial, "the Commonwealth did not have any evidence." Id.

With respect to the first requirement of the corpus delicti rule, we observe that the corpus delicti may be established by circumstantial evidence. Commonwealth v. Reyes , 681 A.2d 724, 727 (Pa. 1996). In this case, prior to Officer McCormick's testimony, Warburton testified that Aloisio gave Appellant money that belonged to her and Aloisio, and Appellant neither delivered the marijuana nor returned the money. Based on the foregoing, we agree with the trial court's conclusion that this testimony established an injury or loss, consistent with a crime, beyond a preponderance of the evidence.

With respect to the second part of the corpus delecti rule, that the "Commonwealth prove to the jury's satisfaction beyond a reasonable doubt, the corpus delicti of the crimes charged," Ahlborn , 657 A.2d at 521 (emphasis in original), Appellant has not set forth any argument. Moreover, the jury instructions in this case were not transcribed, see N.T., 10/27/2016, at 132, and the verdict slip does not contain a specific question in this regard, see Verdict Slip, 10/27/2016. Thus, to the extent Appellant is challenging the second requirement of the corpus delicti test, that claim is waived. Based on the foregoing, we conclude that Appellant is not entitled to relief on his corpus delecti issue.

Appellant next argues that the trial court erred in admitting certain text messages found on Appellant's phone at the time of his arrest. Appellant's Brief at 20-21. Appellant argues that these were inadmissible based upon lack of authentication and hearsay.

By way of background, during his April 25, 2016 interview with Appellant, Officer Kriner asked Appellant if he had anything that could corroborate his story. Appellant indicated to Officer Kriner that there would be information available on his cell phone, which had been located in the car that Detective Bell had stopped and was now in police custody. Appellant provided his passcode.

Officer Kriner discovered eight text messages between Appellant and Aloisio on that phone. At trial, counsel for Appellant objected to the admission of these messages, arguing that they were inadmissible because 1) the messages were not authenticated, and 2) the messages contained hearsay. The trial court overruled both objections. The text messages corroborated Warburton's version of events, that Aloisio asked Appellant to purchase 24 ounces of marijuana for $4,000; provided Appellant $4,000 for that purpose, and that Aloisio believed that Appellant "took $4,000 from" him. N.T., 10/27/2016, at 85.

Following a review of the certified record and the briefs for the parties, we conclude that pages 5 through 9 of the opinion of the Honorable Dudley N. Anderson thoroughly address these issues and arguments and apply the correct law to findings of fact that are supported by the record. We discern no abuse of discretion. Therefore, we adopt pages 5 through 9 of the trial court's opinion of March 23, 2017 as our own based upon the reasons stated therein. See Trial Court Opinion, 3/23/2017, at 5-9 (explaining, inter alia, that the text messages were authenticated properly and that the text messages were either not hearsay or harmless error).

Finally, Appellant sets forth two arguments about his sentence. We consider first Appellant's argument that he should have been sentenced for theft as a first-degree misdemeanor rather than a third-degree felony based upon the amount of money stolen. Appellant's Brief at 27-28.

Although Appellant contends that this issue challenges the discretionary aspects of his sentence, "the proper grading of an offense pertains to the legality of the sentence." Commonwealth v. Coto , 932 A.2d 933, 935 (Pa. Super. 2007).

A challenge to the legality of a sentence ... may be entertained as long as the reviewing court has jurisdiction. It is also well-established that [i]f no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. Issues relating to the legality of a sentence are questions of law[.] ... Our standard of review over such questions is de novo and our scope of review is plenary.

The grading of theft offenses is governed by 18 Pa.C.S. § 3903, which provides the following in relevant part.

(a.1) Felony of the third degree.--Except as provided in subsection (a) or (a.2), theft constitutes a felony of the third degree if the amount involved exceeds $2,000....


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(b) Other grades.--Theft not within subsection (a), (a.1) or (a.2), constitutes a misdemeanor of the first degree....

Here, Appellant contends that the trial court erred in sentencing him under subsection 3903(a.1) where the Commonwealth failed to prove Appellant stole more than $2,000. Specifically, Appellant claims, once again, that because Aloisio did not testify, the Commonwealth did not establish that Appellant stole $4,000. Instantly, the jury found that Appellant stole more than $2,000. See Verdict Slip, 10/27/2016. Moreover, we have already concluded that the evidence was sufficient to sustain Appellant's convictions. Therefore, we conclude that Appellant's offenses were graded properly as third-degree felonies, and he is not entitled to relief on this basis.

We now turn to Appellant's other sentencing issue, where he claims that his sentence is excessive because neither Aloisio nor Warburton testified at sentencing to the impact of this crime. Appellant's Brief at 27. This is a challenge to the discretionary aspects of his sentence, which we consider mindful of the following.

Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his [or her] sentence must invoke this Court's jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Here, Appellant filed timely a post-sentence motion and a notice of appeal. Moreover, Appellant has included a statement pursuant to Rule 2119(f) in his brief. Appellant's section 2119(f) statement, in its entirety, provides the following.

Appellant avers that the trial court abused its discretion when imposing sentence. The Court imposed an aggregate sentence of 1 year to 4 years in a SCI. Appellant avers that this Honorable Court should review the sentencing determination because the Court's sentence is in direct conflict with applicable statutes and caselaw. See 42 Pa.C.S. § 9781, See also Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. Ct. 2010).

In considering whether Appellant has raised a substantial question, we observe the following.

A substantial question exists where an appellant advances a colorable argument that the trial court's actions were inconsistent with a specific provision of the sentencing code, or contrary to the fundamental norms underlying the sentencing process. In determining whether a substantial question exists, [o]ur inquiry must focus on the reasons for which the appeal is sought in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits. Additionally, we cannot look beyond the statement of questions presented and the prefatory 2119(f) statement to determine whether a substantial question exists.

Instantly, Appellant's 2119(f) statement does not specify how the trial court erred in fashioning Appellant's sentence. He does not explain how either the statute he cites or the case he references bears any relationship to the sentence Appellant received. Appellant has simply set forth a bald claim of error, stating no specifics as to why Appellant seeks to challenge his sentence. Accordingly, we conclude that Appellant has not raised a substantial question. Therefore, Appellant's discretionary-aspects-of-sentencing claim fails.

Appellant having presented no issue on appeal entitling him to relief, we affirm Appellant's judgment of sentence.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/20/2018

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