Com. v. Becker, B. ( 2021 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRAXTON ROBERT BECKER, :
:
Appellant : No. 1841 MDA 2019
Appeal from the Judgment of Sentence Entered August 21, 2019
in the Court of Common Pleas of Centre County
Criminal Division, at No(s): CP-14-CR-0001893-2018.
BEFORE: KUNSELMAN, J., McLAUGHLIN, J. and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 21, 2021
Braxton Robert Becker appeals from judgment of sentence1 imposed
after a jury found him guilty of hindering apprehension or prosecution.2 We
affirm.
We derive the following facts from the record. Becker’s charges stem
from the deletion of video footage from his fraternity house’s surveillance
system during a police investigation into the death of one of the fraternity’s
potential new members, Timothy Piazza.
1 We note that Becker purported to appeal from the October 8, 2019 order
denying his post-sentence motions. “In a criminal action, appeal properly
lies from the judgment of sentence made final by the denial of post-sentence
motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.
Super. 2001) (en banc) (citation omitted). We have corrected the caption
accordingly.
2
18 Pa.C.S.A. § 5105(a)(3).
*Retired Senior Judge assigned to the Superior Court.
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By way of background, Becker was a member of the Beta Theta Pi
fraternity on the campus of Pennsylvania State University in State College,
Pennsylvania.
In February 2017, Becker served on the fraternity’s executive board as
its house manager. In that role, he was responsible for the fraternity house’s
video surveillance system and was the only fraternity member who knew
how the system operated. The surveillance system was comprised of sixteen
cameras and two digital video recorder (DVR) boxes, DVR-1 and DVR-2.
Relevant to this appeal, the system included cameras in the house’s
basement.
On Thursday, February 2, 2017, the fraternity held a party at its house
for potential new members consisting of, inter alia, a drinking obstacle
course, where fraternity members directed potential new members to drink
excessive amounts of alcohol in short periods of time at different drinking
stations. During the party, Piazza, who was 19 years old, was a potential
new member, and participated in the drinking obstacle course, became
severely intoxicated. At approximately 11:20 p.m., Piazza fell down the
fraternity house’s basement stairs, sustaining serious injuries. The fraternity
house’s surveillance system recorded portions of the party.
The next morning, just before 11:00 a.m., on Friday, February 3,
2017, a State College police officer responded to a 911 call at the fraternity
house. The officer found Piazza unconscious on a couch. Fraternity members
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told the officer that Piazza had fallen down the basement stairs the previous
night. Piazza was transported by ambulance to a medical center.
At about 2:00 p.m. the same day, February 3, 2017, Detective Craig
Ripka and Lieutenant Keith Robb of the State College Police Department
visited the fraternity house to investigate Piazza’s injury. Fraternity
members told them about the party and Piazza’s fall. The officers
immediately observed video cameras in rooms of the house and asked for
assistance in acquiring video footage of Piazza’s fall. The fraternity’s
president, Brendan Young, directed the officers to Becker.
Becker agreed to obtain the video footage and said he would contact
them when he had it ready. After about two hours at the house, Detective
Ripka and Lieutenant Robb returned to the police station. Less than an hour
later, Becker notified them the video footage was ready and Detective Ripka
returned to pick it up. Becker provided him with two video clips on a thumb
drive. Upon viewing the clips at the police station that evening, Detective
Ripka discovered that neither video clip related to what police had
requested.
Both clips were from earlier in the day on Friday, February 3, 2017,
the first from 7:00 to 7:15 a.m., and the second from 9:29 to 9:35 a.m. In
both clips, the camera angles captured the upstairs areas of the house and
Piazza’s condition the morning after his fall, but they did not show the party
or Piazza’s fall. Before leaving work that evening, Detective Ripka contacted
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Becker to request additional video footage. Becker agreed and told Detective
Ripka to contact him on Monday, February 6, 2017, to arrange pickup of the
requested video on Monday afternoon.
Meanwhile, throughout the day on February 3, 2017, Becker
exchanged text messages with his fraternity members, expressing his
willingness to delete the fraternity house’s video surveillance footage and to
lie about its existence. At 12:42 p.m. on Friday, February 3, 2017, the
fraternity’s treasurer, Adam Mengden, sent Becker the following text
message, “Erasing the cameras could be the look as look [sic] as long as no
one found out[.]” N.T., 5/28/2019, at 247, Exh. 48. A few minutes later at
12:46 p.m., Becker responded, “I think the exact same thing[.]” Id. at 248,
Exh. 48.
Seconds later, Becker texted Mengden again. This time, he referenced
a service call for the video surveillance system he had arranged a few days
before the party. A technician had just serviced the surveillance equipment
at the house on January 30, 2017, and confirmed the system was
operational. Becker’s text to Mengden read, “The guy [service technician]
told me to check them in like a few days to make sure they were recording.
I could say I checked and they weren’t and just turned them on[.]” Id.
Around the same time, Becker discussed deleting the video footage in a
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Microsoft GroupMe3 messaging application he shared with the fraternity’s
executive board members. At 12:39 p.m. on February 3, 2017, Becker
stated to the group, “We just got the cameras fixed … so that’s not good if
they’re looking into what happened[.]” N.T., 5/28/2019, at 256, Exh. 49
(ellipsis in original). He added a few seconds later, “I could see if I could
erase last night and say they didn’t start recording till today. The entire
obstical [sic] course is recorded on there probably if the house board is
looking[.]” Id.
Later that same day, Becker and Daniel Casey, the fraternity’s
administrative vice president and pledge master, exchanged text messages
regarding the two video clips Becker had provided to police. At 5:31 p.m. on
February 3, 2017, Casey sent Becker the following text messages, “What
times did [police] take tape of[?]” and “Like is the obstacle course in it?”
N.T., 5/28/2019, at 225-27, Exh. 37 at 62-63. One minute later, Becker
responded, “Nah. They took tapes from 7 and 930 am[.]” Id. Casey quickly
replied, “Fuck yes[.]” Id. Seconds later, Appellant sent Casey two
messages: “We should be good” and “On that front at least[.]” Id.
The next day, Saturday, February 4, 2017, Piazza died from his
injuries.
3 “GroupMe is an Internet-based application that allows a user to create a
group and add other users. Each member of the group can then send text
communications to the entire group.” N.T., 5/28/2017, at 250-51.
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The morning of Monday, February 6, 2017, Detective Ripka and Officer
Adam Salyards, a community relations officer with the State College Police
Department, returned to the fraternity house to ask for additional video
footage. Becker agreed and took Detective Ripka and Officer Salyards to a
small audiovisual (AV) closet on the third floor of the house, which housed
the video surveillance equipment. At 10:29 a.m., Becker unlocked the closet
door using his key. Detective Ripka and Officer Salyards asked Becker to
provide video footage from all sixteen cameras in the house from 8:00 p.m.
on February 2, 2017, to 11:45 a.m. on February 3, 2017, which would
include the time from before Piazza’s fall to when he was transported to the
hospital.
Becker immediately sat at the console in the AV closet and began
downloading video footage from DVR-1 and DVR-2 using a remote control.
Becker had sole possession and control over the video surveillance
equipment and remote control for more than thirty minutes, from about
10:30 a.m. to just after 11:00 a.m. Detective Ripka noted that Becker had
“a very good understanding and working knowledge of the [video
surveillance] system,” did not need to consult an instruction manual, knew
how many days the recorded video footage is retained before being
overwritten, and knew the number of minutes of discrepancy between real
time and the time-stamp on the video footage. N.T. 5/28/19 Id. at 81.
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Shortly after 11:00 a.m., Lieutenant Robb arrived with an information
technology (IT) specialist from the Borough of State College to assist with
the download. After several hours of downloading, police realized it would
take several days to download the requested video footage; thus, the IT
specialist removed the equipment and police brought it to the police station
to finish the download. The IT department put a working copy of the
February 2-3, 2017 video footage on a terabyte hard drive for detectives to
use in their investigation since viewing footage directly from the video
equipment was too slow. The DVR boxes were placed in the evidence room.
At this time, police did not question why the February 2-3, 2017 video
footage did not contain anything from the basement because fraternity
members told them that the basement cameras were not working at the
time of the party.
However, several months later, in July 2017, as part of a separate
investigation by the State College Police Department involving a different
incident at the same fraternity, police discovered that the video surveillance
system captured video footage from the fraternity’s basement on dates
other than those relevant to the investigation into Piazza’s fall on February
2, 2017. At this point, police discovered that there was no video footage of
the basement prior to 10:39 a.m. on February 6, 2017, despite the
existence of basement video footage on other dates and times.
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Based on this discovery, the State College Police Department sent the
two DVR boxes to the Federal Bureau of Investigation (FBI) to be analyzed
forensically.
At trial, the Commonwealth presented the testimony of an expert in
digital forensic analysis, who had determined at the Philadelphia Regional
Computer Forensics Laboratory that the video footage captured prior to
Monday, February 6, 2017, had been deleted from DVR-2. According to DVR-
2’s system log, the deletion occurred at 10:39 a.m. on February 6, 2017,
which was during the time that only Becker was seated at the equipment
console purportedly downloading video footage for Detective Ripka and
Officer Salyards. While Becker was sitting at and operating the DVR boxes in
the AV closet, Detective Ripka and Officer Salyards testified they were not
watching him every second. They were standing either in the AV closet or its
vicinity while Becker was seated at the console in the closet, but Detective
Ripka and Officer Salyards were also tending to other tasks, such as
completing consent forms, talking with other fraternity members, and
making phone calls. DVR-2’s system log reflected that the user had selected
the “Clear All Data” event, deleting all of the video that had been recorded
on the hard drive. The expert was able to recover the deleted video footage
from DVR-2. However, due to physical damage to its hard drive, no video
footage could be recovered from DVR-1 at either the Philadelphia laboratory
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or the FBI laboratory in Quantico, Virginia, where it had been sent for further
analysis.
The Commonwealth also presented an expert in Speco Technologies
products, the manufacturer of the two DVR boxes, who testified regarding
the “Clear All Data” option. She explained the “Clear All Data” selection on
DVR-2 on February 6, 2017 was a manual deletion by someone using a
remote control or mouse while seated at the physical DVR machine. The
expert further testified that, while using the remote control, the “Clear All
Data” event could be completed in less than thirty seconds.
Based on the foregoing, Becker was charged with tampering with or
fabricating physical evidence (tampering); obstructing the administration of
law or other governmental function (obstructing); and hindering
apprehension or prosecution (hindering). After a three-day jury trial held
May 28-30, 2019, the jury found Becker guilty of hindering, and not guilty of
the two other aforesaid charges. On August 21, 2019, Becker was sentenced
to two years of probation, 100 hours of community service, and a $5,000
fine. Appellant timely filed three post-sentence motions for judgment of
acquittal, to vacate and/or reconsider the fine imposed, and for
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cquittal/arrest of judgment. The trial court denied the post-sentence motions
following a hearing. This timely-filed appeal followed.4
On appeal, Beckert presents two issues for our review.
I. Whether the trial court should have granted Appellant’s
motion for judgment of acquittal for obstruction of justice
when the jury found [Appellant] not guilty of tampering
with evidence, deleting a video, which is the basis of the
obstruction of justice charge.[5]
II. Whether the verdict is against the weight of the evidence.
Becker’s Brief at 5 (capitalization altered; suggested answers omitted).
In his first issue, Becker contends the trial court erred when it denied
his motion for judgment of acquittal of hindering. Appellant’s Brief at 11-16.
We consider this issue mindful of the following.
A motion for judgment of acquittal challenges the sufficiency of
the evidence to sustain a conviction on a particular charge, and
is granted only in cases in which the Commonwealth has failed
to carry its burden regarding that charge.
The standard of review for claims of insufficient evidence is well-
settled. With respect to such claims, we consider the evidence in
the light most favorable to the Commonwealth as verdict winner.
In that light, we decide if the evidence and all reasonable
inferences from that evidence are sufficient to establish the
elements of the offense beyond a reasonable doubt. We keep in
4 Becker complied with Pa.R.A.P. 1925(b). In lieu of a Pa.R.A.P. 1925(a)
opinion, the trial court referred us to its October 8, 2019 opinion and order
denying Becker’s post-sentence motions.
5 It appears Becker mistakenly worded this issue in both his statement of
questions and Rule 1925(b) statement. Becker was found guilty of hindering
and not guilty of obstructing. We presume Becker challenges his hindering
conviction, as that is what he argued in his post-sentence motion and the
argument section of his brief.
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mind that it was for the trier of fact to determine the weight of
the evidence and the credibility of witnesses. The jury was free
to believe all, part or none of the evidence. This Court may not
weigh the evidence or substitute its judgment for that of the
factfinder.
Commonwealth v. Devries, 112 A.3d 663, 667 (Pa. Super. 2015)
(citations omitted). “This standard is equally applicable to cases where the
evidence is circumstantial rather than direct so long as the combination of
the evidence links the accused to the crime beyond a reasonable doubt.”
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014).
The hindering statute provides in relevant part as follows.
(a) Offense defined.—A person commits an offense if, with
intent to hinder the apprehension, prosecution, conviction or
punishment of another for crime …, he:
(3) conceals or destroys evidence of the crime, or tampers
with a witness, informant, document or other source of
information, regardless of its admissibility in evidence[.]
18 Pa.C.S. § 5105(a)(3) (some emphasis added).
Becker argues his hindering conviction should be overturned because
the jury acquitted him of tampering.6 Becker’s Brief at 12. Becker maintains
6 The tampering statute provides in relevant part as follows.
A person commits a misdemeanor of the second degree if,
believing that an official proceeding or investigation is pending or
about to be instituted, he:
(1) alters, destroys, conceals or removes any record,
document or thing with intent to impair its verity or
availability in such proceeding or investigation[.]
(Footnote Continued Next Page)
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that because tampering is a statutory element of hindering, and he was
acquitted of tampering, he must also be acquitted of hindering. Id.
By its plain language, however, tampering is only one alternative
element of the hindering statute as evidenced by the use of the word “or” in
subsection (a)(3). Acquittal of tampering does not preclude the jury from
finding Becker concealed or destroyed evidence under the hindering statute.
As detailed above, the jury heard testimony from two detectives
assigned to the investigation, two police officers involved in the
investigation, an FBI expert in digital forensic analysis who recovered some
of the deleted video footage, a different expert who explained the “Clear All
Data” function, and the technician who serviced and confirmed the video
surveillance equipment was working properly days before Piazza’s fall.
In addition, the Commonwealth presented evidence of, inter alia, text
messages of Becker discussing deleting the video footage on the same day
he knew police were investigating Piazza’s fall; photographs of Becker
unlocking the AV closet and sitting at the equipment console with the DVR
remote in his hand just minutes before the deletion occurred; the system log
of DVR-2 showing the “Clear All Data” entry at 10:39 a.m. on February 6,
2017, a time when Becker was the only person seated at the console and
police were not continuously observing him; expert testimony that the
(Footnote Continued) _______________________
18 Pa.C.S. § 4910(1).
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manual deletion could take less than 30 seconds; and the deleted video
footage that was recovered by the FBI. This evidence was sufficient to allow
the jury to conclude that Becker wanted and was willing to delete the video
footage and lie about its existence, that Becker had the ability and
opportunity to do so, and that the video was actually deleted.
The combination of the evidence links Becker beyond a reasonable
doubt as the one who deleted surveillance video footage of the dates and
times requested by police in connection with their investigation into Piazza’s
injuries and death. Accordingly, we conclude the evidence and all reasonable
inferences therefrom, viewed in the light most favorable to the
Commonwealth, were sufficient to establish the elements of hindering
beyond a reasonable doubt.
Nonetheless, on appeal Becker relies on three cases to support his
argument that his acquittal of the tampering offense means he must also be
acquitted of the hindering offense: Commonwealth v. Reed, 9 A.3d 1138(Pa. 2010), Commonwealth v. Magliocco, 883 A.2d 479 (Pa. 2005), and
Commonwealth v. Baker-Myers, 210 A.3d 1093 (Pa. Super. 2019) (en
banc). Appellant’s Brief at 12-18. The trial court found Appellant’s reliance
on the cases misplaced. Opinion and Order on Defendant’s Post-Sentence
Motions, 10/8/2019, at 2.
Upon review, we agree that the cases upon which Becker relies are
inapposite. None of the cases involved the crimes herein. The plain language
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of the criminal statutes at issue in Reed, Magliocco, and Baker-Myers
each specifically stated that the grading or an element of the offense was
contingent upon the commission of an underlying predicate offense
specifically referenced within the Crimes Code, 18 Pa.C.S.A. §§ 101-9546. In
contrast, tampering is not a predicate offense of hindering. Moreover, the
hindering statute does not, by its express terms, contain any predicate
offense as an element of the crime.
Our Supreme Court has made clear that Magliocco “was grounded in
the delineation of the elements of ethnic intimidation set forth in the text of
that statute.” Commonwealth v. Miller, 35 A.3d 1206, 1212-13 (Pa. 2012)
(reaffirming “the long-standing and well-established principle that
consistency in a verdict is not required” and holding inconsistent jury
verdicts of guilt on second-degree murder charge but acquittal on the
predicate felony of robbery did not require vacatur of second-degree murder
conviction). As our Supreme Court noted, “Magliocco and Reed are
distinguished by the plain text of their particular governing statutes, which
controlled our disposition of those cases, but are not generally applicable to
other offenses.” Miller, 35 A.3d at 1213. The same holds true for the statute
at issue in Baker-Myers. Accordingly, we disagree with Becker that these
cases afford him relief.
Insofar as Becker argues that the trial court should have granted his
motion for judgment of acquittal based on inconsistent verdicts, “[i]t is well-
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settled that inconsistent verdicts are permissible in this Commonwealth.”
Commonwealth v. Barnes, 167 A.3d 110, 120 (Pa. Super. 2017) (en
banc) (citation omitted).
We note first that inconsistent verdicts, while often perplexing,
are not considered mistakes and do not constitute a basis for
reversal. Consistency in verdicts in criminal cases is not
necessary. When an acquittal on one count in an indictment is
inconsistent with a conviction on a second count, the court looks
upon the acquittal as no more than the jury’s assumption of a
power which they had no right to exercise, but to which they
were disposed through lenity. Thus, this Court will not disturb
guilty verdicts on the basis of apparent inconsistencies as long
as there is evidence to support the verdict. The rule that
inconsistent verdicts do not constitute reversible error applies
even where the acquitted offense is a lesser included offense of
the charge for which a defendant is found guilty.
Id. (quoting Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super.
2004)).
As our Supreme Court noted in Miller, “[w]hile recognizing that the
jury’s verdict appears to be inconsistent, we refuse to inquire into or
speculate upon the nature of the jury’s deliberations or the rationale behind
the jury’s decision. Whether the jury’s verdict was the result of mistake,
compromise, lenity, or any other fact is not a question” for this Court to
review. 35 A.3d at 1213 (citations omitted). Accordingly, having determined
there is sufficient evidence to support the verdict, we will not disturb
Becker’s hindering conviction on this basis.
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Turning to Becker’s challenge to the weight of the evidence, the trial
court must use the following standard in assessing a weight-of-the-evidence
claim.
A motion for a new trial based on a claim 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. 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. It has often been stated that a new trial should be
awarded 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. Izurieta, 171 A.3d 803, 809 (Pa. Super. 2017) (citation
omitted).
On appeal, we evaluate the trial court’s ruling with the following in
mind.
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Commonwealth v. Beatty, 227 A.3d 1277, 1285-86 (Pa. Super. 2020)
(citations omitted).
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Before we address the merits of Becker’s weight claim, we must
determine whether Becker has preserved it for our review. Commonwealth
v. Rivera, 238 A.3d 482, 495 (Pa. Super. 2020).
In his post-sentence motions, Becker’s entire weight-of-the-evidence
claim consisted of the following sentence: “The verdict is contrary to the
weight of the evidence in that the evidence preponderates sufficiently
against the verdicts to [sic] that a serious miscarriage of justice has resulted
with respect to the conviction.” Post-Sentence Motion, 9/3/2019, at ¶ 21. At
the October 3, 2019 hearing, Becker did not make any argument relating to
his weight claim. See generally, N.T., 10/3/2019. In his Rule 1925(b)
statement, Becker raised a combined, boilerplate sufficiency and weight
claim: “Whether the verdict is against the weight and sufficiency of the
evidence.” Rule 1925(b) Statement, 11/26/2019, at ¶ 3.
Improper preservation of a challenge to the weight of the evidence
before the trial court renders the challenge waived on appeal.
A weight of the evidence claim must be preserved either in a
post-sentence motion, by a written motion before sentencing, or
orally prior to sentencing. Pa.R.Crim.P. 607. Failure to properly
preserve the claim will result in waiver, even if the trial court
addresses the issue in its opinion.
A boilerplate motion, either that “the evidence was insufficient to
support the verdict,” or that “the verdict was against the weight
of the evidence,” is not a precise statement of issues and
grounds relied upon. Such assignments of error not only do not
foster but discourage alert and zealous advocacy, for anyone
may make them without giving thought to what the issues really
are.
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Rivera, 238 A.3d at 497 (some citations, quotation marks, and brackets
omitted; some capitalization altered). Thus,
a post-verdict motion, either that “the evidence was insufficient
to support the verdict,” or that “the verdict was against the
weight of the evidence,” will preserve no issue for appellate
review unless the motion goes on to specify in what respect the
evidence was insufficient, or why the verdict was against the
weight of the evidence.
Id. (citation omitted).
Instantly, we conclude the single, conclusory, and boilerplate sentence
in Becker’s post-sentence motion, which failed to specify why the verdict
was against the weight of the evidence, is inadequate to preserve Becker’s
weight claim on appeal. See id.
For the foregoing reasons, Becker is not entitled to relief on his claims
and we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/21/2021
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