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J-S17001-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. DAVID JAPENGA, Appellant No. 225 WDA 2011 IN THE SUPERIOR COURT OF PENNSYLVANIA

Appeal from the Judgment of Sentence Entered November 23, 2010 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0014818-2009 BEFORE: BENDER, J., MUNDY, J., and STRASSBURGER, J.* MEMORANDUM BY BENDER, J. Filed: April 15, 2013

Appellant, David Japenga, appeals from the judgment of sentence of an aggregate term of six to eighteen months' incarceration, followed by five years' probation, as well as $13,445 in restitution, imposed after a jury found him guilty of three counts of criminal mischief, one count of possessing an instrument of crime, and one count of providing false identification to law enforcement. Appellant solely challenges the sufficiency of the evidence to sustain his convictions. After careful review, we affirm. In its Pa.R.A.P. 1925(a) opinion, the trial court summarizes the facts of Appellant's case as follows:

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Retired Senior Judge assigned to the Superior Court.

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On September 24, 2009, Trooper [] Wass was working in an undercover capacity with the Pennsylvania State police at the G-20 economic summit in the City of Pittsburgh, Allegheny County. At approximately 10:30 p.m. Trooper Wass observed a crowd of approximately one hundred fifty people forming on Fifth Avenue near the intersection of DeSoto Street in the Oakland section of the city. Members of the crowd were dressed in dark clothing. At approximately 11:00 p.m. the group left the area of DeSoto Street and Fifth Avenue and proceeded towards downtown on Atwood Street, eventually turning left on Forbes Avenue away from downtown. At this point, the majority of the group had obscured their facial features with bandanas and ski masks. Trooper Wass joined the crowd and walked with them along this route. As soon as the crowd turned onto Atwood Street, Trooper Wass observed a few people break windows and light a dumpster on fire. He called for back-up due to the escalating violence of the crowd. It was Trooper Wass's duty [] to observe distinctive features of the actor(s), rather than to intervene or make arrests in the singular undercover capacity he was in at that time. As the crowd moved along Atwood Street they approached a large contingency of uniformed police officers on Forbes Avenue. The group began to disperse and thin out, but approximately fifty (50) people, including Trooper Wass, remained together and ran back up Fifth Avenue toward South Craig Street. At the corner of Fifth Avenue and South Craig Street Trooper Wass noticed an individual (later identified as Appellant) break the window of a Citizens Bank branch with a gray and orange U-shaped bicycle lock. Appellant's face was partially obscured by a black and white paisley bandana. Trooper Wass noticed that Appellant had distinctive white Adidas brand stripes on his shoes which was unique compared to the other protestors. He also noticed that Appellant was approximately 5' 7", with an athletic build. Appellant ran was a distinctive gait, described as a "shuffling walk", and he had a bulge underneath his hooded sweatshirt that was consistent with concealment of a backpack. Trooper Wass observed Appellant break approximately seven (7) windows at the bank, and he followed him around the corner of the bank. Trooper Wass continued to observe Appellant breaking windows of the bank, and he attempted to get closer to Appellant. From approximately ten feet away, Trooper Wass observed Appellant break one window -2-

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at the Irish Design Center, cross the street again and break two windows at a Quiznos restaurant, all with the same distinctive bicycle lock. As uniformed police approached the group of protestors, the group began to break up. Trooper Wass followed a smaller group of individuals; which included Appellant. The group went down an unlit alley and continued to break into even smaller groups. Trooper Wass momentarily lost sight of [] Appellant, while the protestors were running through a wooded area, attempting to regroup. As the group continued to run from the police, Trooper Wass observed many of the protestors removing their dark clothing and masks. Trooper Wass regained sight of Appellant on Fifth Avenue. Moments later Trooper Wass observed that Appellant was wearing the same unique Adidas shoes. Trooper Wass did not approach Appellant based on his belief that Appellant and others around him were armed. The Trooper kept Appellant in his sight from approximately twenty (20) yards away and called the command center to have [] Appellant detained. Approximately ten minutes later the City of Pittsburgh Police arrived and Trooper Wass was approached by Detective Daniel Sullivan of the City of Pittsburgh Police Department. Trooper Wass described the physical characteristics of Appellant and pointed him out to Detective Sullivan. Detective Sullivan approached Appellant and placed him under arrest for the acts of vandalism described hereinabove. At the time of Appellant's arrest, Detective Sullivan did a brief inventory search of Appellant's backpack for weapons. The backpack contained the distinctive bicycle lock with an orange handle that Trooper Wass identified earlier. Upon completing a full inventory of Appellant's backpack, Detective Sullivan discovered a nylon tie, a hooded jacket covered in glass shards, a bicycle lock, the same [U]shaped bicycle lock described above, a set of keys, the black bandana with white paisley that Appellant had been wearing earlier, and a dark-colored pair of gloves. When Appellant was arrested by Detective Sullivan he gave the name "Eric Blair" and produced a medical identification card imprinted with the name "Eric Blair." At his arraignment Appellant gave an address as 336 Ladson Street. A search warrant was executed at this address. Police gained entry to the property by unlocking a padlock on the front door by using one -3-

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of the keys recovered from Appellant's backpack. Amongst the evidence recovered from this location was a poster that read, "We want to riot, not work, GPAC attack." Appellant was later correctly identified to be "David Japenga" and was formally arrested and charged as noted herinabove. Trial Court Opinion (T.C.O.), 6/22/12, at 4-7 (citations to the record omitted). Appellant proceeded to a two-day long jury trial, after which he was convicted of the above-stated offenses. On November 23, 2010, he was

sentenced to the aggregate term of imprisonment and probation, as well as restitution, set forth supra. Appellant filed a timely post-sentence motion, which was denied. He then filed a timely notice of appeal and concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he presents one issue for our review: Did the trial court err when it denied Defendant's Motion for Judgment of Acquittal where the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] was the individual who committed acts of vandalism on the three properties at issue where [Appellant's] identity was based on observations of his "gait" and where [Appellant], when arrested, was not dressed like the individual who damaged the properties? Appellant's Brief at 4. Initially, we note our standard of review of a challenge to the sufficiency of the evidence: In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact -4-

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finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136. Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011). Here, Appellant challenges his convictions for criminal mischief and possessing an instrument of crime. Those offenses are defined, respectively, as follows: (a) Offense defined.--A person is guilty of criminal mischief if he: ... (5) intentionally damages real or personal property of another; [] 18 Pa.C.S.

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