Com. v. Gadaleta, P. ( 2015 )

J-S75016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PATRICIA E. GADALETA
Appellant No. 49 EDA 2014
Appeal from the Judgment of Sentence November 22, 2013
In the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000746-2010
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 16, 2015
Patricia E. Gadaleta appeals from her judgment of sentence, imposed
by the Court of Common Pleas of Carbon County, following Gadaleta’s
convictions for theft by deception,1 receiving stolen property,2 and two
counts of issuing a bad check.3 Upon review, we affirm Gadaleta’s judgment
of sentence based on the opinion of the Honorable Joseph J. Matika.
In July 2010, Gadaleta contacted Cheri Conway, a dog breeder, to
inquire about purchasing a dog. Using the pseudonym Meg Kippler,
____________________________________________
1
18 Pa.C.S. § 3922(a)(1).
2
18 Pa.C.S. § 3925(a).
3
18 Pa.C.S. § 4105(a)(1).
J-S75016-14
Gadaleta negotiated the purchase of two Labrador retrievers4 from Conway
for the price of $5,018.00.5 Gadaleta signed the agreement of sale as Meg
Kippler and returned it to Conway. After Conway received two bad checks
from Gadaleta, she notified her local police, who in turn contacted the
Pennsylvania State Police in Leighton. On September 23, 2010,
Pennsylvania State Trooper Nicolas De La Iglesia obtained and executed a
search warrant at Gadaleta’s residence.
While searching Gadaleta’s home, Trooper De La Iglesia found the two
dogs and their shipping crates as well as the agreement of sale signed by
“Meg Kippler.” The Trooper also found FedEx shipment slips with the name
“Kippler” on them in addition to email correspondences between “Kippler”
and Conway.
On September 9, 2013, the jury convicted Gadaleta of the
aforementioned offenses. On November 22, 2013, the court sentenced
Gadaleta to 12 to 24 months’ incarceration, followed by one year of
probation. This timely appeal followed.
On appeal, Gadaleta presents the following issues for our review:
1. Did the court err in allowing testimony over objection
concerning the contents of the cell phones received from
____________________________________________
4
Gadaleta agreed to purchase Romeo, a yellow Labrador retriever, and
Winston, a chocolate Labrador retriever. Both dogs were micro-chipped.
5
This price included the two dogs, airfare to ship the dogs from Sacramento
to Philadelphia, two new shipping crates, and health certificates.
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Anthony Gadaleta months after the search of the
residence?
2. Is the verdict contrary to the law in that there was no
evidence connecting the person known to the victim as
Meg Kippler with Patricia Gadaleta?
3. Is the verdict contrary to the law in that there is absolutely
no evidence the party that issued the checks with
insufficient funds was Patricia Gadaleta?
4. Is the verdict contrary to the law in that there is absolutely
no evidence the email address referenced in the
communications between seller and buyer was that of
Patricia Gadaleta?
Brief of Appellant, at 7.
Gadaleta’s first issue on appeal implicates the admissibility of
evidence. Our standard of review is as follows:
The admissibility of evidence is solely within the discretion of the
trial court and will be reversed only if the trial court has abused
its discretion. An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the
law, or the exercise of judgment that is manifestly unreasonable,
or the result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record.
Commonwealth v. Dent, 837 A.2d 571, 577 (Pa. Super. 2003) (citations
and quotations omitted).
Gadaleta’s remaining issues challenge the sufficiency of the evidence
sustaining her convictions. Our standard of review for sufficiency of the
evidence claims is well settled:
We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
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J-S75016-14
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth’s
burden may be met by wholly circumstantial evidence and any
doubt about the defendant’s guilt is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citations
omitted).
We have reviewed the record on appeal and the relevant law, and find
that the well-reasoned opinion of Judge Matika thoroughly, comprehensively
and correctly disposes of the issues Gadaleta raises on appeal. Specifically,
the trial court did not abuse its discretion when it admitted testimony
regarding the contents of Gadaleta’s cell phones because the evidence of
calls placed to Conway was relevant to establishing who placed the calls to
Conway. See Pa.R.E. 401. Additionally, the evidence connecting Gadaleta
to the identity of “Meg Kippler” was overwhelming. Accordingly, we affirm
based on Judge Matika’s opinion. Counsel is directed to attach a copy of the
trial court opinion in the event of further proceedings in this matter.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
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COURT OF
COMMONWEALTH OF PENNSYLVANIA
vs. No. 746 CR 2010
PATRICIA E. GADALErA, :
Defendant/Appellant
Jean A. Bngler, Esquire Counsel for Commonwealth
Assistant District Attorney
Kent D. Watkins, Esquire Counsel for Defendant
MEMORANDUM OPINION
Matika, J. - March 13 , 2014
On September 10, 2013, a jury found the Defendant, Patricia
E. Gadaleta, guilty of one count of theft by deception,1 one
count of receiving stolen property,2 and two counts of issuing a
3
bad check. After a pre-sentence investigation was prepared,
this Court imposed a total sentence upon the Defendant of not
less than twelve month~ nor more than twenty-four months in a
state correctional institution, followed by one year of state
probation. The Defendant did receive one hundred sixty-nine
days credit against her sentence for time already served.
Subsequently, Defendant appealed the jury verdict. This
memorandum opinion is submitted in accordance with Pennsylvania
1 1B Pa.C.S.A. § 3922(a)(1).
118 Pa.C .S.A. § 3925(a).
APPENDIX B
l 18 Pa.C.S.A. § 4105{a) (1).
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Rule of Appe l late Procedure 1925 (a) . For the reasons stated
be l ow t this Court requests the Honorable Superior Court to
affirm the judgment of sentence .
FACTUAL AND PROCEDURAL BACKGROUND
On September 10 1 2013, Defendant was found guilty of
intentionally obtaining the · property of Kevin and Cheri Conway,
more specifically two male Labrador dogs and two shipping
crates, by intentional ly creating the false impression that she
was an individual by the name of Meg Kippler. Defendant was
also found guilty of two counts of issuing a bad check in the
amounts of five thousand forty dollars ($5,040.00) and five
thousand one hundred ninety dol lars ($5,190.00), respectively.
The evidenced proffered at trial establish that Cheri
Conway, (hereinafter "Conway"), owned ·a nd operated a kennel from
which she breed and Bold dogs. (N.T. 9/9/13 at 86-87). In July
of 2010, Conway was contac~ed, via telephone, by an individual
identifying herself as Meg Kippler in regards to purchasing a
Labrador retriever. 4 This individual, Meg Rippler, informed
Conway that her and her husband Ron wanted a family pet that was
already housebroken and about a year old. rd. at 88 - 89. After
various phone calls and email correspondences between the
parties , Defendant, th:rough the use of the identity of Meg
4 At all times relevant to this matter, the Defendant communicated with Conway
under the false perception that she, the Defendant, ~a6 ao individual by the
name of Meg Xippler.
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Kippler, agreed to purchase from Conway a male chocolate
Labrador retriever named Winston and a yellow male Labrador
retriever named Romeo for the price of two thousand dollars per
retriever. Id. at 91, 94.
Upon reaching an oral agreement, Conway prepared and
emailed the Defendant the agreement of sale. The agreement of
sale was between Conway and "Meg and/or Ron Kippler" with an
email address of 1265chase®gmail.com. Add! tionally, the sales
contract included the purchase price for the two dogs of five
thousand eighteen dollars ($5 , 018.00),5 along with a description
of the dogs, and their respective micro - chip numbers.
Conway testified that . her standard practice in breeding
dogs was to place a micro-chip under the skin of the dog's
shoulder. Id. at 92. This micro-chip is permanently imbedded
in the dog and it operates similarly to a scanner at a
supermarket. Id. Each micro-chip is assigned a certain number
that on ly correlates with that micro-chip. Id. at 93.
Moreover, Conway stated. that she placed a micro-chip in each of
the subject dogs involved in this litigation with the yellow
Labrador retriever having a micro-chip number of 012769333. and
the male chocolate Labrador ret.riever having a micro-chip number
S Conway arrived at a total amount of five thousand eighteen dollars baaed
upon the cost of each dog, the coat of airfare, two new Shipping crates, and
health certificates. (N".T. 9/9/13 at 97).
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of 045259601. Id~ at 96-97.6"
After receiving the agreement of sale, Defendant signed
said agreement ae "Meg Kippler", Bcanned it I and emailed the
agreement back to Conway. Per the terms of the agreement of
sale, Defendant was required to tender payment, by way of a
cashier's or certified check, before Conway would ship the dogs
and crates. (N. T . 9/9/13 at 99). However , Conway stated that
she never rece i ved said payment. Id. at 101. As a result,
Conway contacted Defendant to arrange an alternative method of
payment as it was already orchestrated that the two Labrador
retrievers would be shipped, via air I from Sacramento to
Philadelphi a in two "days. Id. at 102 . A day later, Conway
received a personal check from Defendant . 7 The check was made
payable to Conway in the amount of five thousand forty dollars
($5,040 . 00) •
The Commonwealth proffered a copy of the $5 . 040 . 00 check at
trial. In the upper left-hand corner of the check was a sticker
that read: ~Kipple r , Waterford, New Jer8ey.~
, conway test ified chat the micro-chip number is also referred to as an ~ AVID
number".
7 Conway received this check late Saturday afternoon after her bank, Sterling
Bank was closed for the day . Since Conway' B drive to Sacramento Airport
wou l d take her five hou rs, Dbe had to leave early Monday morning before her
bank would open, thus Conway test i f i ed she did not have a chance to deposit
tbe check before shipping the two dogs in the Shipping crates. (N.T. 9/9/13
at 101).
I At tbe trial, Conway was perplexed 88 to why this check was written out for
five r.housand · forty dollars when t.he agreed purchase price was for t:lve
thousand eighteen dollars.
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Upon returning home from Sacramento, Conway tried to
deposit the check but was informed by her bank, Sterling Bank,
that there were insufficient funds in the account to cover ,t he
check. Id. at 104. Conway thereafter contacted Defendant who
agreed to send a cashier's check, by way of FedEx, overnight;
however, Conway never received said check . Id. at 106.
Accordingly, Conway contacted Defendant again who aSBured Conway
that she would send a personal check via FedEx. This check was
sent to and received by Conway' a bank, however it was sent to
her bank's branch in Spokane, Washington. 9 The check was made
payable to Conway in the amount of five thousand one hundred
ninety dollars ($5,190.00) . Like the previous check tendered by
Defendant, this aecond check was also not honored based upon
insufficient funds in the account. Id. at 108.
Thereafter, the Bank sent this second check to Conway.
This check was admitted into evidence by the Commonwealth as
"Commonweal th' s Exhibi t 6." The printed writing in the upper
left-hand corner of the check was covered with yellow "whi te-
out." Conway testified that upon receipt of the check, she held
the check up to a window with a bright light shining through and
was able to read the printed writing .covered up by the "white-
out." She deciphered the printed writing to say: "Anthony
9 Conway testified that her "home" bank branch was located in Or egon . (N. T.
9/9/13 at 108).
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Gadaleta, Pohopoco Drive, Lehighton, pennsylvania."lo
Subsequently , Conway went to her local police department
who in turn contacted the Pennsylvania State Police in
Lehighton, and more specifically, Pennsylvania State Trooper
Nicolas De La Iglesia. After receiving the information supplied
to him by Conway, Trooper De La Igle~ia, (hereafter "Trooper"),
obtained a search warrant and executed this warrant at
Defendant' 9 residence on September 23, 2010 . (N.T . 9/9/13 at
136) . The Trooper brought a micr.o -chip scanner to Defendant' s
residence, located at 974 Pohopoco Drive, Franklin Township, for
the purpose of trying to find the two Labrador retrievers. Id.
at 137.
When the Trooper executed the search warrant I 11 the only
person present at the residence, besides the police, was the
Defendant. The Trooper accordingly approached the Defendant and
informed her that he h ad a search warrant and is looking for two
dogs from Oregon . Id . at 139 . Despite t h e Defendant inSisting
that the dogs were not at her property, the Trooper began
scanning all the dogs located on the property. The Trooper
began his search for the dogs in t he kennels located outside of
10 Conway did seate ehat she never received payment for the ewo Labrador
retrievers and two shipping crates. (N.T . 9/9/13 at 112).
11 The Trooper testified that he was not alone when be executed the searcb
warrant as Corporal Gross, Trooper Patrick Finn, Corporal Kathleen Tamerantz,
and the Chief Police of Franklin Township Thomas Beltz were also present::. at
Defendant's residence. (N.T. 9/9/13 at 137).
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the residence. Eventually. the Trooper found a chocolate
Labrador retriever inside the building and ran the micro-chip
scanner over the back shoulder area of the dog. Id. at 140 .
The micro-chip number of this chocolate ·L abrador matched the
number Conway provided the Trooper for the chocolate Labrador
Conway sent to Defendant, that being 045259601. Id. at 141.12
After finding the chocolate Labrador, the Trooper walked
outside with the dog and informed the other officers that he
found one of the dogs. Id. at 141-42. Upon hearing this, the
Defendant led the Trooper to the yellow Labrador, which the
Trooper confirmed through a positiv~ micro-chip match as the
other Labrador in question. 1 ]
Thereafter, Defendant informed the Trooper that the call
name for the chocolate Labrador was Winston, and Romeo for the
yellow Labrador retriever. (N . T. 9/9/13 at 146). Further, the
Defendant directed the Trooper to the shipping crates for each
dog.
The Trooper testified that subsequent to finding the dogs
and shipping crates. he entered Defendant's reSidence and went
to her office in the den. Id . at 148 . In the top drawer of the
12 The Trooper also took a picture of the micro-chip scanner depicting the
micro-chip number. This picture was admitted into evidence as Commonwealth's
Exhibit 9 .
II As the Trooper did with the chocolat~ Labrador, the Troop~r took a picture
of the micro - chip scanner that showed that the micra-Chip number matched the
number Conway provided the Trooper for the yellow Labrador . (See,
Commonwealth's Exh. 10).
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desk inside the office, the :rrooper found FedEx shipment slips
with the name "Kippler" inscribed on them. U Moreover , the
Trooper discovered email correspondences from the Defendant,
under the pretense of Meg Kippler, addressed to Conway herself,ls
Further, the Trooper found a deposit slip for an account in the
name of Defendant' s hus~and, Anthony Gadaleta. Id. at 153. The
account number of the deposit slip matched the account number of
the two personal checks Conway received from Defendant as
payment for the dogs.
Lastly, the Trooper stated he found the sales contract
between Conway and Defendant in Defendant's desk, along with
U The Trooper found three FedEx shipment air bills dated August 6, 2010,
Au']Ust 18, 2010, and August 24, 2010, respectively. The shipment bills had
the sender' a name as "Meg Kippler" or "Kippler" and Conway as the recipient
for two of the packages and Sterling Savings Bank in spokane, Washington as
the recipient of the third package. (N.T. 9/9/13 at 155-56).
U Commonwealth's exhibit 15 is an email dated July 30, 2010, from Conway sent
to the email addreas ' of 1265chase@gm;J.il.com. This email address of
l265chasecigmaiLcom is the email addreSS listed for "Meg Kippler n in the
agreement of sale . See, Common.....ealth's EXb. 4. The email is titled: "Guess
you and Ron have decided yes???" . The email was verified as being sent by
Conway herself as the email address of the sender was forlabs@centurytel.net,
which is Conway's email address. (N .T . 9/9/13 at 90). In this email,
addressed to KMeg~, conway setG forth all the relevant information the
Defendant would need in order eo retrieve the two Labrador dogs at
Philadelphia . Airport. Additionally, this email reiterates the total cost of
the dogs and how payment must be made. Lastly, the email ends with "Best,
Cheri" and Conway's phone number.
The Commonwealth a160 admitted into evidence another email found in
Defendant's desk, labeled Conunonwealth's exhibit 20 . This email, dated
August 24, 2010, is from Conway, a9 evidenced by the email address of
forlabs®Centurytel.net, and the ceClplent is "apple N with a corresponding
email address of 1265chase@mail.com. The contents of this email are in
regards to Conway not receiving the payment sent via FedEx. The email
contains a FedEx tracking number, 848489106264, which is the tracking number
for the Fedex shipment bill found on Defendant'G desk, labeled Commonwealth's
exhibit 18.
Below this email is the original message from "apple N , with an email
addreL'lS of 1265chase~ail. com, to Conway regarding the FedEx shipment of.
payment. Said email is signed "Ron.-
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documents relating to the dogs themselves, namely their pedigree
and medical records. Ld. at 158.
At trial, the Commonwealth also called Defendant's ex-
husband, Anthony Gadaleta who testified that only he and the
Defendant resided in the residence during the timeframe at issue
in this case. (N. T. 9/10/13 at 24)." Moreover, Anthony
Gadaleta asserted that he had no involvement with Defendant's
breeding business, and where the Trooper found the FedEx
shipment bills and email correspondences was Defendant's private
office, an office he never used. Id. at 25-26. Further,
Anthony Gadaleta avowed that he never entered into a sales
contract with Conway I nor ever heard of her before this criminal
case.
Further I Mr. Gadaleta acknowledged that the deposit slip
found in Defendant's desk was a deposit slip from a bank account
he had with First Commonweal th Bank: and the account number of
this deposit slip corresponded to the account number on the two
personal checks Conway received as payment for the two dogs and
shipping crates, However, Anthony Gadaleta asserted that he
never authored these checks nor authorized anyone to issue these
checks on his behalf. Id. at 29-30.17 In addition, the
!6 During the timeframe at issue in this case Defendant and Anthony Gadaleta
were married; however, subsequently their marriage dissolved.
17 Anthony Oadaleta also stilted that Defendant's sister lives in Waterford.
New Jersey. (N.T. 9/10/13 at 40). The sticker placed in the upper left-hand
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signature on the two checks at issue are not the signatures of
Anthony Gadaleta as stated by him and supported by
Commonwealth's exhibit 25, which ~B a copy of Anthony's Gadaleta
driver's license depicting his true signature.
Lastly, Anthony Gadaleta stated that subsequent to
Defendant's arrest in this matter he found six cell phones
around Defendant's desk~ When Anthony Gadaleta met with Trooper
De La .Iglesia on March 17, 2011, he turned over these cell
phones to the Trooper. Thereafter , the Trooper applied for and
received a search warrant to examine the contents of the phones.
On one of the cell phones t~e Trooper discovered a phone number,
labeled as an outgoing call, made to a phone number belonging to
Conway.
As a result of the investigation conducted by the
Commonwealth, a criminal complaint was filed against the
Defendant on August 24, 2010. The Defendant was charged with
one count of theft by ~eceptlon, one count of receiving stolen
property, and two counts of issuing a bad check. A jury trial
began on September 9, 2013, and after hearing the above stated
evidence, a jury found the Defendant guilty on all charges.
Thereafter, a pre-sentence investigation report was
ordered. Upon completion of this report, the Court sentenced
of the first check Conway received from Defendant, the check in the amount of
$5,040 . 00, listed Meg Kippler's address Waterford, New Jersey.
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Defendant on November 22, 2013, to a total sentence of not less
than twelve months nor more than twenty-four months in a state
correctional institution, followed by one year of probation.
Subsequently, on December 16, 2013, Defendant appealed her
judgment of sentence with her Concise Statement of Matters
Complained of on Appea l being filed on January 6, 2014 . In her
Concise Statement, Defendan"t raises four issues. These issues
are:
1) That the court erred in allowing testimony over
objection concerning the contents of the cell phones
received from Anthony Gadaleta months after the
search of the residence;
2) That the verdict is contrary to law in that there
was no evidence" connecting the person known to the
victim as Meg Kipler (sic) with Patricia Gadaleta;
3) That the verdict is contrary to law in that there is
absolute no evidence the party that iesued the
checks with insufficient funds was Patricia
Gada l etai and
4) That the verdict is contrary to the law in that
there is absolutely no evidence the email address
referenced in the communications between seller and
buyer was that of the defendant Patricia Gadaleta.
The party with that email address was never
identified.
The Court will address these issues according l y.
DISCUSSION
In evaluating Defendant's issues raised on appeal, three of
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the four issues presented are of the same legal issue, that
being challenges to the sufficiency of the evidence presented by
the Commonwealth. Accordingly, the Court will address these
three issues together after first undertaking the merits, or
lack thereof, of Defendant's first issue raised on appeal.
I . ADMI SSION OF TES'rIMONY
Defendant's first issue raised on appeal contends that the
Court erred in allowing testimony, over Defendant ' s obj ection,
regarding the contents of certain cell phones received by the
Trooper from Anthony Gadaleta months after executing the search
warrant . Anthony Gadaleta testified that on March 17/ 2011, he
met with Trooper De La Iglesia at his and Defendant's residence.
At this meeting, Anthony Gadaleta handed the Trooper six cell
phones that he found around Defendant's desk. Moreover, Anthony
Gadaleta asserted that none of these cell phones belonged to
him .
The Trooper , upon receiving the cell phones I placed them
into a sealed envelope. Thereafter he applied for and obtained
a search warrant in an effort to ascertain certain information
that may be on the phones. In examining the dialed calls of one
of the phones the Trooper found a call was placed to Conway.
Defendant'S Concise Statement informs the Court that
Defendant is challenging the admissibility of the testimony
regarding the cell phones . In evaluating this iSBue, the Court
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finds itself speculating as to the specific nature of
Defendant's appeal . The Court is unsure if Defendant's
objection to the testimony of the cell phone is founded upon a
chain of custody issue, foundation or lack thereof a~ument, or
if Defendant is claiming that the testimony about the cell phone
was irrelevant and thus should have been prohibited.
The courts have previously addressed the effect of a "too
general" concise statement. ~When the trial court has to guess
what issues an appellant is appealing, that is not enough for
meaningful review. " Commonwealth v. Butler, 756 A.2d 55, 57
(Pa. Super. Ct. 2000) (brackets and quotation marks omitted).
"When an appellant fails adequately to identify in a concise
manner the issues sought to be pursued on appeal, the trial
court is impeded in its preparation of a legal analysis which is
pertinent to those issues." In re Estate of Daubert, 757 A.2d
962, 963 (Pa. Super. Ct. 2000) In other words, a concise
statement which is too vague to allow the court to identify the
issue raised on appeal is the functional equivalent of no
concise statement at all.
Since Defendant has appealed the testimony in general as it
relates to the ce ll phones, this Court is left conjecturing as
to the specific· nature of the exact issue Defendant is raising
on appeal. Consequently, this Court finds that Defendant's
fi rst issued raised in her Concise Statement too vague and
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therefore should be deemed waived.
Notwithstanding such, and if the Honorabl e Superior Court
finds Defendant was specific enough in her Concise Statement,
the Appellate Court should still dismiss Defendant's first issue
raised based upon a lack of merit . During the trial, the Court
conducted sidebar conversations with the Assistant District
Attorney and Defense Counsel in regards to the cell phones. For
purposes of this appeal, the Court surmises that Defendant is
appealing the admission of the cell phones based upon three
legal principles : relevancy, foundation, and chain of custody.
The Court will address each issue accordingly .
The standard of review on the challenge of the
admissibility of evidence is as follows:
Admission of evidence is within the sound discretion
of the trial court ano. will be reversed only upon a
showing that the trial court clearly abused its
discretion. Admissibility depends on relevance and
probative value. Bvidence is relevant if it logically
tends to establish a material fact in the case, tends
to make a fact at issue more or less probable or
supports a reasonable inference or presumption
regarding a material fact .
Commonwealth v. Levanduski, 907 A. 2d 3, 13-14 (pa . Super. Ct.
2006) (quoting Commonweal t h v. Drumheller , 570 Pa. 117, 808 A.2d
893, 904 ( 2002), certi o rari denied, 539 U.S. 919, 123 S.ct.
2284. 156 L . Ed.2d 137 (2003».
Defendant's relevancy and foundation objections at trial
were grounded upon the same argument, that being the
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Commonwealth cannot establish that the cell phones found by
Anthony Gadaleta belonged to the Defendant. Moreover, Defense
Counsel argued to the Court that the Commonwealth cannot prove
that Defendant made any of the dialed calls.
Pennsylvania Rule of Evidence 901 mandates that
authentication is required prior to the admission of evidence.
Pa.R.E. 901. The proponent of the evidence must introduce
sufficient evidence that the matter is what it purports to be.
In re F.P., B78 A.2d 91 (Pa. Super. Ct. 2005). Pennsylvania
Rule of Evidence 901 also states that the foundational
requirement of authentication or identification is satisfied by
evidence sufficient to support a finding that the matter in
question is what its proponent claims. Pa.R.E. 901(a). When a
party offers evidence contending either expressly or impliedly
that the evidence is connected with a person, place, thing, or
event, the party must provided evidence sufficient to support a
finding of the contended connection. Commonwealth v. Hudson,
414 A.2d 1381 (Pa. 1980). Evidence can be authenticated by
circumstantial evidence. Commonwealth v. Collins, 957 A.2d 237(Pa. 200B).
In matters of authentication, if the court finds enough
support in the record to cause a reasonable person to believe
that the evidence is what it purports to be, Pennsylvania Rule
of Evidence 901 is satisfied and the weight to be given to the
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evidence is left to the jury. Commonwealth v. Nally, 138 A. 836(Pa. 1927); Commonwealth v. Pollock, 606 A.2d sao (Pa. Super.
Ct. 1992).
The Commonwealth, in establishing a foundation that the
cel l phones were those of the Defendant, proffered the testimony
of Anthony Gadaleta. Mr. ' Gadaleta testified that after the
Defendant was arrested he found the cell phones in Defendant' s
office and more specifically around Defendant's desk area.
Moreover, Anthony Gadaleta asserted that none of the ce l l phones
were his nor did he ever use any of these phones. 18
Additionally, it was stated by Anthony Gadaleta that the only
persons to have access' to Defendant's off ice was the De fendant
and himself, although he never used that office . Based upon
such test imony , the Court found a proper foundation was
established by the Commonwealth.
Consequently, the Court disagreed wi th Defendant's argument
that such testimony regarding the cell phones was irrelevant
because the jury could only speculate as to who placed such
calls. By establishing that the cell phones belonged to the
Defendant and that only oefendant had access to said phones, it
was within the jury's province to infer that Defendant placed
those calls. The fact . that the Commonwealth could not present
11 Anthony Gadalcta statcd hc only had onc cell phone, which was L:i~d to h i s
employment.
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direct evidence demonst:!:'ating that Defendant placed the call to
Conway or the fact that the cell phones were turned over to the
Trooper months after the police executed the search warrant go
to the weight of the testimony, not its admissibility .
After f i nding that the Commonwealth established a proper
foundation to authenticate and identify the cell phones, the
Court also ruled that the testimony regarding these cell phones
was relevant. Evidence is relevant if it logically t ends to
establish a material fact i n the case , tends to make a fact at
issue more or less probable, or supports a reasonable inference
or presumption regarding a material fact. Pa.R . E . 401;
Commonwealth v. Lesko, 15 A·.3d 345 CPa . 2011). The crux of the
Commonwealth' 8 case was establishing that Meg Kippler was in
reality the Defendant. A phone call made to Conway herself f r om
a cell phone found in Defendant's personal office that only her
and Anthony Gadaleta had access to, along with Mr. Gadaleta
asserting that he never used t h at cell phone f are facts that
assists the Commonwealth in establishing, albeit
circumstantially, that the Defendant portrayed herself to Conway
a8 Meg Kippler.
Notwithstanding that evidence might be relevant, evidence
can be inadmis9ible if such evidence is unfairly prejudicial .
Pennsylvania Rule of Evidence 403 states that relevant evidence
may be excluded "if its probative value is outweighed by .
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unfair prejudice . " Pa.R.E. 403(a}. Defendant argued at
trial that permitting the testimony about the cell phones would
be unfairly prejudicial due to the speculative nature of the
testimony. As just stated above, this Court did not find the
testimony regarding the cell phones to be speculative; the
phones were found in Defendant's "personal office where only she
and Anthony Gadaleta had access. Additionaily, Anthony Gadaleta
avowed that he never us"e d the cell phones he found at
Defendant's desk. Although this Court does not disagree with
Defendant's claim that such testimony may be prejudicial, as the
Court would presume any evidence offered by the Commonwealth
would be prej udicial to a defendant, the Court does not concur
with Defendant's assertion that the testimony was unfairly
prejudicial such that t 'he probative value was outweighed by the
prejudicial nature of the testimony. Consequently, the Court
ruled that such testimony was relevant and perm4tted.
Defendant's other objection at trial to the testimony
regarding the cell phones "being permitted was founded upon a
chain of custody objection. The "chain of custody" rule comes
from the principle that real evidence must be authenticated
prior to its admission into evidence. UGI Utilities, Inc. v.
Unemployment Compensation Board of Review, 851 A.2d 240 (Pa.
Cmwlth . Ct. 2004). The rationale for this threshold requirement
is the need to establish that the item to be introduced is what
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it purports to be. The ultimate . question is whether the
authenticat i on testimony is sufficiently complete so as co
persuade the court that it is improbable that the original item
has been exchanged with another or altered in any material
aspect. See, In re D.Y., 34 A. 3d 177 (Pa . Super. Ct.
20 1 1) (chain of custody refers to the manner in which evidence
was maintained from the time it was collected to its submission
at trial).
While the offering party bears the burden of demonstrating
some reasonable connection between the proffered exhibit and t he
true evidence, it need not establish the sanctity of its exhibit
beyond a moral certaint y . Commonwealth v. Cugnini, 452 A.2d
1064 (Pa. Supe r . Ct . 1982). A complete chain of custody is not
required sa long as the evidence, direct and circumstantial,
establishes a reasonable inference that the identity and
condition of the exhibit has remained the same from the time it
was first obtained until the time of trial. Hudson, 4 1 4 A.2d at
1387. Any gaps in testimony regarding the chain of custody go
to the weight to be given to the testimony, not to its
admissibility . Commonwealth v. Bolden, 406 A.2d 333 (pa. 1979).
In the case at bar, Anthony Gadaleta testified that upon
finding the cell phones around Defendant's desk he turned them
over to Trooper De La Iglesia on March 17, 2011 . The Trooper,
upon receiving these phones, placed them in an envelope and
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sealed the envelope. The Trooper thereafter obtained a search
warrant and examined the contents of the phones. From his
examination of the cell phones, the Trooper found that a phone
call was made to a number later determined to be Conway's phone
number. Accordingly, the Commonwealth set forth a proper chain
of custody to permit the Trooper to testify r egarding the
contents of the phones. Thus Defendant· s first issue raised on
appeal should be dismissed. 1 '
II. SUFFICIENCY OF THE EVIDENCE
Defendant's second, third, and fourth issues raised on
appeal are all challenges to the sufficiency of the evidence.
The standard of review to a challenge of the sufficiency of the
evidence is well-settled:
l' If the Appellate Court does determine that such evidence regarding the cell
phones shOUld have been prohibited, this court seee such error as harmless
error . In Commonwealth v. Moore, ~37 A. 2d 1062 (Pa . 2007), the Supreme Court
of chis Commonwealth reaffirmed that an error may be considered harmless only
when the Commonwealth proves beyoml a reasonable doubt that the er.ror could
not have contributed to the verdict. Whenever there is a reasonable
possibility that an error could have contributed to the verdict. the error is
not barml.ess. Commonwealch v. Passmore, 857 A. 2d 697, 711 (Pa. Super. Ct.
2004) . An error may be deemed harmless. incer alia, where the properly
admitted and uncontradicted evidence of guilty was so overwhelming and the
prejudicial effect of the error was insignificant by comparison t:hat: t:he
error could not have contributed · t o the verdict. Moore, 937 A.2d at 1073.
Harmless error exists when the error did not prejudice the defendant, the
prejudice was de mi nimis, or the erroneously admitted evidence was merely
cumulative of other untainted evidence, which was substantially similar to
the erroneously admitted evidence. Passmore. 857 A.2d at 711.
As set forth below in Defendant's second, third, and fourth issues raised
on appeal, the evidence presented by the Commonwealth was of such an
overwhelming nature that if the Appellate court were to rule that the
admission of the testimony regarding the cell· phones was an error such error
was only de minimis. In examining the record as a whole, the testimony about
the cell phone was merely cumulative in the Commomlealth' B pursuit in proving
that Defendant falsely portrayed herself to Conway as an individual named Meg
Kippler. There.fore, Defendant'S tirQt issue raised on appe3.1 should be
dismissed.
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A claim challenging the sufficiency of the evidence is
a question of law. Evidence will be deemed sufficient
to support the verdict when ' it establ ishes each
materi al element o f the crime charged and the
commission t hereof by t he accused, beyond a reasonable
doubt. Where t he evidence offered to support t he
verdict is in contradiction to the physical facts, i n
contravention to humah experience and the laws of
nature, then the evidence is insufficient as a matter
of law . When reviewing a suf ficiency claim the court
is required to view the evidence in the light most
favorable to the verdict wi nner giving the prosecution
the benefit of a ll reasonable in"ferences to be drawn
from the evidence.
Commonweal th v. Widmer , 744 A.2d 745 . 751-52 (Pa . 2000)
(internal c itations, foot notes, and quotat i on marks omitted ).
Given the standard the ,Court must apply to a sufficiency of the
evidence challenge, the Court will now address each issue raised
by Defendant .
a ) Lack of evidence connectin g t:he pers on known to the
victim as M8g ~p'pl er with Pa tricia Ga daleta
Defendant's first challenge to the suffic i ency of the
evidence argues that the Commonwealth failed to present any
evidence establishing t hat t he person known to Conway as Meg
Kippler was in fact the Defendant hersel f . In essence,
Defendant's chal lenge goes to the core of the Commonwealth's
case : that the Defendant intentionally and fa l sely dece i ved
Conway into believing that she, the Defendant, was an individual
named Meg Kippl er. Notwithstanding Defendant ' s contention, the
Commonwealth presented overwhelming evidence to establish that
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the person Conway though t was Meg Kippler was in reality the
Defendant.
In evaluating the testimony proffered by the Commonwealth,
in conjunction with the evidenced submitted, it was established
that in July of 2010 Conway spoke to an individual who
identified herself as Meg Kippler about the purchase of a
Labrador retriever. After several conversations, Conway and
this individual, identifying herself as Meg Kippler, reached an
agreement whereby Conway would sell one male chocolate Labrador
retriever named Winston and one yellow male Labrador retriever
named Romeo to this individual purporting to be Meg Kippler.
Conway stated that her customary practice in breeding and then
selling dogs was to place a micro-chip under the skin of the
dog's shoulder, which .she did with both dogs. The micro-chip
has a specific identification number that only correlates with
that micro-chip. The yellow Labrador retri ever had a micro -chi p
number of 012769333, and the male chocolat e Labrador retriever
had a micro-chip number of 045259601.
Trooper De La Iglesia testified that in executing a search
warrant upon Defendant's residence on the report that two stolen
Labrador r etrievers were located at Defendant's home, he located
a chocolate Labrador retriever with a micro-chip number matching
the number Conway provided him for the chocolate Labrador she
sold to the individual claiming to be Meg Kippler. Thereafter,
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the Defendant lead the Trooper to the yellow Labrador and the
Trooper subsequently confirmed that this was the other Labrador
in question after scanning the dog with the micro -chip scanner.
Furthermore, after finding both Labrador dogs the Defendant
told the Trooper that the call name for the chocolate Labrador
is Winston, and Romeo is the call name for the yellow Labrador
retriever.
The Commonwealth , in supporting its case that the
individual identifying herself to Conway as Meg Kippler was in
fact the Defendant herself, introduced into evidence the sales
agreement between the parties. Conway testified that she
emailed the person she thought was Meg Kippler a copy of the
sales agreement. conway verified that the copy of the sale
agreement found in Defendant's desk was in fact the agreement
she sent "Meg Kippler." Moreover, the agreement of sale sets
forth a description of the " two dogs including their micro-chip
numbers, and was signed by "Meg Kippler."
In addition, the Commonwealth presented both checks that
Conway received as purported payment for the two dogs and
shipping crates in an attempt to prove that f'.1eg Kippler was in
fact the Defendant Patricia Gadaleta. The firs t check Conway
received as payment had " a sticker in the upper left -hand corner
that read: "Kippler, Waterford , New Jersey." As testified by
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Anthony Gadaleta, Defendant's sister resides in Waterford, New
Jersey. Moreover, this check was made payable to Conway.
The second check the Commonwealth introduced into evidence
was the check received by Conway's bank branch in Spokane,
Washington. In the upper left-hand corner of this check, a
check also made payable to Conway, was yellow white-out. Per
Conway' 8 testimony, upon receiving this check from her bank
branch, she held it up to a bright light and was able to read
the printed writing underneath the whi.te-out. Conway deciphered
the printed writing to say: "Anthony Gadaleta, Pohopoco Drive,
Lehighton, Pennsylvania. n
Anthony Gadaleta testified that only he and the Defendant
resided in the residence during the timeframe at issue in this
case. More importantly, upon acknowledging that the checks
received by Conway were checks written from his Dank account
with First commonwealth Bank, Anthony Gadaleta declared he never
authored the checks received by Conway, nor did he authorize
anyone to issue such checks on his behalf. Further. Anthony
Gadaleta asserted that the signature on both checks at issue is
not his signature. I n support of Anthony Gadaleta' s assertion
that the signature on the two checks was not his signature, the
Commonwealth introduced a copy of Anthony Gadaleta's driver's
li cense depicting his correct signature.
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Further evidence in support of the Commonwealth's
contention that Meg Kippler was in reality the Defendant was
established by the Trooper testifying that he found three FedEx
shipment bills inside the top drawer of Defendant' B desk. The
name scribed as the sender for all three shipment bills is
\\Kippler" with Conway being the designated recipient on two ' of
the bills and Conway's bank in Spokane, Washington the recipient
of the third package. Moreover, the date of the first check
Conway received as payment for the dogs corresponds wi th the
date of the first FedEx shipment bill, a bill that lists Conway
as the recipient. Conway testified that ahe did in fact receive
this check.
Similarly, the thi·rd FedEx shipment bill was dated August
24, 2010, which matches the date on the second check in this
case. Additionally, as just stated, the recipient on this FedEx
shipment bill was Sterling savings Bank in Spokane, Washington.
Conway testified that the second check was received by her bank,
Sterling Savings Bank in Spokane, Washington.
Lastly, the Trooper stated he found in Defendant's desk
documents relating to the dogs themselves, more specifically the
pedigree of the dogs and their corresponding medical records.
The jury, upon listening to the testimony of Conway and
Anthony Gadaleta found their testimony to be credible. The
determinacion of credibility of a witness is within the
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exclusive province of the jury . Commonwealth v. Seese, 517 A.2d
920. 923 (Pa. 1986).
Defendant's argument that the Commonwealth has failed to
establish that the Defendant portrayed herself t o Conway as Meg
Kippler intimates that the Court should examine the testimony
and evidence presented by these two witnesses mutually exclusive
of each other. Although Defendant sought of the jury. and now
seeks on - appeal to have the Appellate Court evaluate each piece
of evidence in a vacuum, the jigsaw puzzle the Commonwealth
presented in establishing its case was not complete until all
evidence and testimony was presented and the jury was able to
review such evidence in concert with one another. In other
words, a j igsa,:" puzzle is -complete once all the pieces are in
place and the puzzle depicts the picture on the box. Here, once
all the pieces of evidence were presented by the Commonwealth,
the jigsaw puzzle, as a whole, depicts the Defendant falsely
portraying- herself to Conway as an individual named M.e g Kippler.
b) No Evidence that the De£endant was the party t1:zat issued
the checks wi th insufficient £unds
Conway testified that throughout her various modes of
corresponding with the Defendant, she, Conway, believed she was
communicating with a woman named Meg Kippler and her husband
Ron. Such testimony is supported by the agreement of sale
between Conway and the Kipplers where in the agreement of sale
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the Kipplers' address is listed as 1613 Conrad Avenue,
Waterford, New Jersey 08089; in addition, the agreement of sale
sets forth the contract price for the two Labrador dogs,
shipping crates, and other expenses necessary to ship the dogs
from Sacramento to Philadelphia. This agreement of sale was
admitted into evidence .
At the trial, the Commonwealth presented both checks Conway
received as payment for the two Labrador dogs and shipping
crates. The firs t check, issued to Conway, had a sticker in the
upper left -hand corner that contained the name "Kippler" and a
Waterford, New Jersey address. As stated by Anthony Gadaleta,
Defendant's sister resides in Waterford. New Jersey.
The second check proffered by the Conunonwealth,
Commonwealth's exhibit six, was also made out to Conway ~.D-d .. hac;i
yellow white-out covering the printed writing in the uppe r left-
hand corner . Per Conway's testimony, upon receiving the second
check from her bank's branch in Spokane, Washington r she was
able to hold it up to a bright light and read the printed
writing the white-out was covering. Said printed writing under
the white-out stated: Anthony Gadaleta, 97~ Pohopoco Drive,
Lehighton, PA 18235.
In proving that the Defendant issued these two checks, the
commonwealth offered the testimony of Anthony Gadaleta , who was
Defendant: s husband during the timeframe in question.
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Gadaleta testified that he did not issue either of the checks
nor did he authorize anyone to issue such checks on his behalf.
Moreover, Anthony Gadaleta stated that the signature on both
checks was not his; such testimony was supported by a copy of
Anthony Gadaleta' s driver's license depicting his actual
signature. Further, the jury in finding Anthony Gadaleta
credible, accepted his test imony as true insofar as he never
entered into a contract with Conway for the purchase of two
Labrador dogs and shipping crates.
Additionally, Anthony Gadaleta asserted that where the
Trooper found a deposit slip from his bank account with Fi rst
Commonwealth Bank, that being in Defendant's desk, only the
Defendant and he had access to this area of the home.
Lastly, Trooper De La Iglesia testified that he found three
FedEx shipment bills located in Defendant' B desk. The listed
recipient on Commonwealth's exhibit seventeen is Conway herself,
with the shipment bill being dated August 8 I 2010. The first
check at issue in this case is date August a, 2010, a check that
Conway herself received.
Commonwealth's exhibit nineteen, another FedEx shipment
bill dated August 24, 2010, indicated that the recipient was
Sterling Savings Bank located in Spokane, washington. The
second check the Defendant sent Conway is dated August 24, 2010,
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with said check being received by Conway 's bank, Sterling
Savings Bank., in Spokane, Washington. :10
For these reasons stated, this Court finds there is
voluminous evidence to support the jury's finding that the
Defendant i ssued the two checks without insuffic ient funds to
cover them.
0) Lack of evidence that the email address referenced in the
cODIIIZUIlications between sel~&r and buyer was tbat o~ the
Defendant
Defendant's final issue raised on appeal suggests that
there was insufficient evidence to establish that the email
address referenced in the communications between Conway and who
she believed was Meg Kippler belonged to the Defendant herself.
Upon examining the evidence proffered by the Commonwealth, in
conjunction wi th the testimony, the Court finds this issue
meritleSB.
The · Court first notes that the correspondences Defendant is
referring to are t he emaila the Trooper found in Defendant's
desk. Anthony Gadaleta testified that this desk was located in
Defendant's office . Moreover, he never did work i n Defendant's
20 Although both checks were not written for the exact contract price, such
checks were only written for an amount slightly greater than the original
contract price . This Court £indo the two issued checks to be within such a
price range to al low the jury to conclude that both checks were written by
the Defendant for payment of the two dogs, shipping cr~tee, and other
expenses associated wich shipping the dogs.
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office and no one besides the Defendant or him had access to
t hi s room.
Further, the two email addresses reflected on these
correspondences are: forlabs@centurytel.net, and
1265chase®gmail.com. Conway testified that her email address is
forlabs @centurytel.net. The agreement of sale lists the buyer's
email address for an individual named Meg Kippler as
1265chase®gmail.com. The testimony proffered established tha t
/
Conway sent the agreement of sale to Defendant by way of an
email thinking she, Conway, was sending the agreement to Meg
Kippler. Defendant, upon receiving the agreement of sale signed
the agreement as Meg Kippler, scanned it, and emailed the
agreement back to Conway. A copy of the agreement of sale was
found by the Trooper in Defendant's desk.
Lastly, the contents of the correBpondences led the jury to
conclude that the email address of 126Schase®gmail.com was the
email address Defendant used in communicated wi th Conway. The
first email admitted into evidence by the Commonwealth, .,.- . -
Commonwealth's exhibit 15, is from Conway. In this email,
addressed to "Meg" , Conway sets forth all the relevant
information the Defendant would need in order to retrieve the
two Labrador dogs from ' the Philadelphia Airport. Further, the
price listed in this email mirrored the total cost for the dogs
and shipping crates as stated in the agreement of sale.
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The Commonwealth also .admitted into evidence another email
found in Defendant's desk, labeled Commonwealth's exhibit
twenty. This email, dated August 24, 2010 I is from conway as
evidenced by the sender's email address of
forlabs@centurytel .net. The recipient of this email was :"apple"
with a corresponding email address of 1265chase®mail.com. The
contents of this email . are in regards to Conway not receiving
the payment that was supposed to be delivered by FedEx. The
email contains a FedEx tracking number, 848489106264, which is
the tracking number for the FedEx shipment bill labeled
Commonwealth's exhibit eighteen. Said FedEx shipment bill was
also found on Defendant's desk.
Taking into consideration the standard the Court must
apply, that being examining. the evidence in the light most
favorable to the Commonwealth, and in consideration cif the
totality of the evidence presented by the Commonwealth in
establishing that Defendant used the email address of
1265chase®gmail.com in communicating with Conway, Defendant's
issue is meritless and should be dismi~sed.
CONCLUSION
Based upon the foregoing, this Court respectfully asks that
Defendant's issues raised on appeal be dismissed as being
fabricated from whole cloth and meritless. Accordingly, this
. _... .. .
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Court respec tfully recommends that the jury verdict be allowed
to stand and that this order of Court dated November 22, 2013,
imposing upon Defendant a period of incarceration in a state
correction al institution of not less than twelve months nor more
than twenty - four months, followed by one year of state
probation, with the Defendant receiving one hundred sixty-nine
days credit against her B~ntence for time a lready served, be
affirmed.
BY THE COURT:
J~
" ,'
. ' ,
'"
w
w
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