Com. v. Tubbs, A. ( 2018 )

J-A32032-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANDREW THOMAS TUBBS, :
:
Appellant : No. 871 MDA 2017
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.: FILED FEBRUARY 20, 2018
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
*Retired Senior Judge assigned to the Superior Court.
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$4,0001 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.2
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.
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1This money was divided into four bundles of $1,000 each wrapped separately
with rubber bands.
2Initially, Warburton told police that Appellant stole $4,000 from Aloisio’s car,
which was money that Aloisio had saved to buy a new motorcycle. She later
changed her story.
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In addition, Probst testified that Appellant and Aloisio spoke on the phone and
Appellant told Aloisio that he was “burnt for that money.”3 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 Miranda4 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
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3According to Probst, that meant that Aloisio was “getting taken, and … not
getting [the money] back.” Id. at 51.
4 Miranda v. Arizona, 384 U.S. 436 (1966).
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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
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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.5
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
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5 These arguments consist of six separate issues in Appellant’s brief.
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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.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (some
citations and internal quotation marks omitted).
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.
Appellant’s Brief at 22 (emphasis in original; citations to notes of testimony
omitted) (challenging the sufficiency of the evidence to sustain conviction for
theft by unlawful taking);6 id. at 23 (challenging the sufficiency of the
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6Theft by unlawful taking is defined as follows: “A person is guilty of theft if
he unlawfully takes, or exercises unlawful control over, movable property of
another with intent to deprive him thereof.” 18 Pa.C.S. § 3921(a).
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evidence to sustain conviction for receiving stolen property); 7 id. at 24
(challenging the sufficiency of the evidence to sustain conviction for theft by
deception);8 id. at 25 (arguing conviction for theft by unlawful taking was
contrary to the weight of the evidence); id. at 26 (arguing conviction for
receiving stolen property was contrary to the weight of the evidence); id. at
26-27 (arguing conviction for theft by deception was contrary to the weight of
the evidence).
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
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7 Receiving stolen property is defined as follows: “A person is guilty of theft if
he intentionally receives, retains, or disposes of movable property of another
knowing that it has been stolen, or believing that it has probably been stolen,
unless the property is received, retained, or disposed with intent to restore it
to the owner.” 18 Pa.C.S. § 3925(a). In addition, “theft by receiving stolen
property is a lesser-included offense of theft by unlawful taking.”
Commonwealth v. Young, 35 A.3d 54, 63 (Pa. Super. 2011).
8 Theft by deception is defined as follows: “A person is guilty of theft if he
intentionally obtains or withholds property of another by deception. A person
deceives if he intentionally … creates or reinforces a false impression, including
false impressions as to law, value, intention or other state of mind; but
deception as to a person’s intention to perform a promise shall not be inferred
from the fact alone that he did not subsequently perform the promise.” 18
Pa.C.S. § 3922(a)(1).
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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.
***
[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.
Trial Court Opinion, 3/23/2017, at 10-11 (emphasis in original).
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”).
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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.
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This issue is governed by Pa.R.Crim.P. 564, which provided as follows
at the time of Appellant’s trial:9
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).
Commonwealth v. Williams, 166 A.3d 460, 463–64 (Pa. Super. 2017).
In addition, because this amendment involved theft-related crimes, 18
Pa.C.S. § 3902 provides additional guidance.
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9 A new version of Pa.R.Crim.P. 564 took effect on January 1, 2018.
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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.
Commonwealth v. Matty, 619 A.2d 1381, 1387 (Pa. Super. 1993) (citations
omitted).
Despite the last minute notice of the amendment,10 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.
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10 There is no question that Appellant was surprised by this amendment
occurring minutes prior to trial. When the trial court asked the Commonwealth
why the amendment was so late, the district attorney responded, “Because it
occurred to me when it occurred to me.” N.T., 10/27/2016, at 6.
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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,
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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.
Commonwealth v. Ahlborn, 657 A.2d 518, 520-21 (Pa. Super. 1995)
(internal citations omitted) (emphasis in original).
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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.
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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
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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.11 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.
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11 The parties shall attach a copy of the trial court’s March 23, 2017 opinion
to this memorandum in the event of further proceedings.
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Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014) (internal
citations and quotation marks omitted).
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….
***
(b) Other grades.--Theft not within subsection (a), (a.1) or
(a.2), constitutes a misdemeanor of the first degree….
18 Pa.C.S. § 3903.
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
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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).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
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).
Appellant’s Brief at 13 (verbatim).
In considering whether Appellant has raised a substantial question, we
observe the following.
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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.
Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)
(internal citations and quotation marks omitted) (emphasis added).
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 cites12 or the case he references13 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.
____________________________________________
Section 9781 of the sentencing code simply explains that an appellate court
12
may review the discretionary aspects of a sentence.
13 Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010)
(holding that in fashioning Downing’s sentence, “the trial court was permitted
to consider all reasonable inferences derived from the evidence presented at
trial” in concluding that Downing possessed a gun for criminal purposes).
- 19 -
J-A32032-17
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2018
- 20 -
/f J�o3J -17 .;
Circulated 01/31/2018 02:37 PM
IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA
COMMONWEALTH OFPENNSYLVANIA ......, r-
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ANDREW TUBBS, 1"'-'
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Defendant .::�.,,.. C) i.TI
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OPINION AND ORDER :"�
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Before the Court is Defendant's Post-Sentence Motion, filed January 20,
2017 .. Argument was heard February 16, 2017, following which the court
directed the preparation of a transcript of the trial and sentencing heating. Those
transcripts were completed on March 6, 2017.
Following a jury trial on October 27, 20.16, Defendant was convicted of
one count of theft byunlawful taking; one count of receiving stolen property and
one count of theft by deception based on allegations that on April 21, 2016 he
was providedwith $4000 cash to buy marijuana for someone but kept themoney
instead, On January 12, 201 The was sentenced to concurrent terms of one to fou
years' incarceration on the two theft charges; the receiving charge was
determined to merge for sentencing purposes.
In the instant motion, Defendant contends the court erred in ( 1) granting
the Commonwealth's pre-trial motion to amendthe information, (2) admitting
n�rendant' s. statements to police, and (3) admitting certain text messages, that the,
evidence was insufficient to support the convictions, that the convictions were
against the weight of the evidence, that the grading of the offenses was againstth ·
weight of the evidence, and finally, that the sentence was excessive. Each of
these issues will be addressed in turn.
Motion to Amend Information
In the Information, Defendant was charged with theftby unlawful taking
and receiving stolen property. Just before trial began, the Commonwealth moved
to amend the Information to include a charge of theft by deception. Defendant
objected on the basis that the charge contained an element not contained in the
charge of theft by unlawful taking, 'i.e. the element of deception;
Theft by unlawful taking is defined as "unlawfully tak[ing], or
exercisejing] unlawful control over, moveable property of another with intent to
deprive him thereof". 18 Pa;C.S. Section 3 921. The Comment explains that
"unlawfully" means that "the necessary mens rea must be present in order to I
constitute theft". Id. Theft by deception is defined as "intentionally obtainjing]
or withhold[ing] property of another by deception" and deception is defined as
"createling] or reinforcejing] a false impression, including false impressions as to \
1<1w, value, intention or other state of mind", 18 Pa.C.S. Section 3922. \
In the instant case, the victims alleged that they gave Defendant $4000 cas ·· ·Ii
based on Defendant's statements that he would use the money to purchase for I
them a pound and a half of marijuana, in accordance with their previous request \
I
that he do so, but that he kept the money and did not provide them with the I
marijuana. To prove the "necessary mens red' to show theft by unlawful taking
in these circumstances, the Commonwealth would have to show that Defendant
took the. money "with intent to deprive [the victims] thereof', that.is, with the
intent to keep it and not return anything of value for it .. To prove "deception" to
show theft by deception, the Commonwealth would have to show that Defendant
.took the money by creating a false impression as to his intention, that is, that he
took it Intending not to buy marijuana but to keep it. These two elements are so
2
similar that the court saw no prejudice to Defendant; although defense counsel
stated that he would need to prepare differently to meet the charge of "deception", .
the court cannot conceive of how the defense could have been any different, and
counsel did not elaborate on that point, either at trial or at argument on the
motion.'
Section 3902 of the Crimes Code allows for prosecution of one theft
l
offense even though a different theft offense has been charged in the information, ·
in the absence of prejudice to the defendant. Gornmonwealth v. Matty. 619 A.2d
1383 (Pa. Super. 1993:)(an accusation oftheft may be supported by evidence that I
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, ... as long as defendant has an opportunity to respond, and is not
prejudiced by lack of notice or surprise.) Having found no prejudice to
Defendant, the court allowed the amendment.
I
I
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Admission of Defendant's Statements to Police
At trial, the Commonwealth first introduced the testimony ofone of the
two alleged victims, Rachel Warburton. Ms. Warburton testified that on April 21
2016 at about 2:30 p.m. she and a friend, Nick Aloisia, went to "meet Andy to
I
buy weed"," that they met with Defendant and his friend, Jordan Probst," in Nick's
car at a pizza place on Lycoming Creek :Road,3 that Nick handed Defendant I
\
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Defendant's actual defense, introduced through stateraents he made to police following his arrest, waajhet he
ntt.empfed to. purchase the tnarijuana.bunhe person from whom he attempted the purchase actually took the money
from him and did not provide hJm with any marijuana. If believed; these facts would serve 'to negate findings of
eitli�t of.the mental states required to constitute either type of"the:ft. ·
2
N.T., October 27, 2016at. Page 26. · ·
3
at page 27.
fd.
I
I.
3
I
$4,000 (four "wads" of $1,000 each)," that Nick told Defendant he wanted him to
go get a pound and a half of weed for 'it and that Defendant said 1 can get you it", 11
5
that Defendant and Jordan got out of the car and walked off to behind the pizza ·
place, saying they would be right back but that they did not come back\thatth�y
tried to find Defendant but couldn't," and that Nick later received a text message
from Defendant which stated "sorry, bro, you might as well just go home. I'm
going to Florida."8 Ms. Warburton also testified that about half of the money was
·. 9
.h ers.
Next, Jordan Probst testified that on April 21, 2016 he and his girlfriend
went to pick tip Defendant at his request, that upon picking him up he stated that
he wanted to go !o Lycoming Greek Road to meet Nick Aloisio, that they did so ;
and that he and Defendant got into Nick's car and talked about getting marijuana
for Nick, that Nick handed Defendant money and then they got out of the car and
went back to his (Jordan's) girlfriend's car and then left and went back to his
(Jordan's) house." JordanProbst also. testified that Defendant stated that he was
going to go to Florida, 11 that they went to a gas station where Defendant's
"baby's mom" worked and Defendant gave her "a nice little chunk of money",
and then they went to the mall where they "purchased
. .
a whole bunch of.stuff,
shoes and outfits and hats.?"
4
Id.
5- ..
Id. at page 35;
6
Id. at page 28.
7ld.
g-
Id. at .page. 30.
.
9
. Id, at page 34.
tO lg, at page 39-40. .. .
11
Ir-appears this statement was made in a phone call to Mt. Aloisio, made from Mr. Probst's phone. lg. at page
50.
il !Q. at page 41.
4 I
!
The Commonwealth then called the investigating officer as a witness and,
anticipating that the officer would testify to statements made by Defendant,
defense counsel objected that admission of such statements would violate the
corpus delecti rule.
The corpus delecti rule requires that before an accused's statements in the
nature of a confession may be admitted, two elements must be shown; "the
occurrence of a specific kind of injury or loss; .... in larceny, property missing"
and "somebody's criminality." Commonwealth v. Amato, 24 A,2d 681, 682 (Pa.
1942).
In the instant case, Defendant argues that because Nick Aloisio; the person
who handed the money to Defendant, was not at trial to testify that he did not
receive any marijuana from Defendant in exchange for themoney, the theft itself
could not be established. This argument is without merit, Although Aloisie did II
.I
not testify at trial, Ms. Warburton's testimony that Defendant never returned· to II
their vehicle but instead sent Nick a text message saying he was going to Florida, l
which testimony was confirmed by Jordan Probst, as well as Jordan Probst' s
testimony that he went with Defendant after Defendant received the· money, that
II
I
1
Defendant gave some of themoney to his "baby's mom" and spent some ofit.at
the mall, is sufficient to support a finding of both "property missing" and
"someene'scrlminality". I
I
Admission of Text Messages
The Commonwealth presented the testimony of Police Officer Christopher II
Kriner, who interviewed Defendant in connection with his investigation of the
theft which is the subject of'this case. Officer Kriner testified that Defendant told'
5
him that Nick Aloisia had requestedhe get him apoundanda half of ntarijuana,.
that he met with Aloisio behind the pizza place on Lycoming Creek.Road where
Aloisio gave him $4,000 in cash (''four stacks) $1,000 in each stack"), that he
then walked over to an apartment complex behind the pizza place and made
eontact with a male there, that he gave the male the money "in the hopes of \
getting marijuana" but that the male took the money and didn't give him any \
marijuana. N.T., October 27, 2016 at page 69-10. When Officer Kriner asked lI .
Defendant for the name of the male, Defendant wasn 'twilling to provide any !
identifying information. Id. I
In response Jo Officer Kriner's question of Defendant whether he had any
communications with Aloisia after taking his money, Defendant told Officer
I
\
I
Kriner that "he had text messaged him or had communication with Mr. Aloisio
telling him that he burned him." Id. at page 71. When told that the officer would
like to corroborate his story, Defendant "stated that there would be
communication on his Facebook and in his cellphone, which he described as a·
black Logic. Brand cell phone that would corroborate what he was saying about
.getting marijuana for Aloisio." Id. He then told the officer where to find the
phone and provided a pass code and written consent to .search the phone. Id. at
page 71-72.
When the Commonwealth then attempted to introduce the content of
various text messages found in Defendant's phone, defense counsel objected on
the bases of failure to authenticate and hearsay. Counsel argued that unless
Aloisio testified that he had sent the. messages, they could not be authenticated.
I
l
l
6
He also argued that the messages themselves were hearsay since Aloisio was not
· in court to testify. 13
Pennsylvania Rule of'Evidenoe 901, "Authenticating or Identifying
Evidence," provides in relevant part:
(ajIn General. To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the
proponent claims it is.
(b), Examples, The following are examples only-not a complete 'list--
of evidence that satisfies the requirement:
****
(4) Distinctive Charaeteristics and the Like. The appearance,
contents, substance, internal patterns, or other distinctive .
characteristics of'the item, taken together with all the circumstances.
Pa1R.E._90l(a) & (b). Thus, evidence that cannot be authenticated.directly (by
testimony ofa witness with k:nowledg¢):may be authenticated by circumstantial
'evidence under subsection (4). In the context ofa communication such as a text
I
message, "subsection (4)'s 'distinctive characteristics' may include information
tending to specify an author-sender, reference to or correspondence with relevant
l
!
events that precede or follow the commurrication in question, or any other facts or II
aspects ofthe communication that signify it to be what its proponent claims."
Commonwealth v. Koch, 106 A.3d 705, 7.12-13 (Pa. 2014), citing I
Commonwealthv. Collins, 957 A.2d 237 (Pa. 2008). I
13
Based on this argument, the court believes Defendant has objected to only those messages which are l)tll'J)ort�d
to havebeen sent'by Aloisio. ·
7
Here; Officer Kriner testified that Defendant had told him that he had been ·
communicating with Aloisio on his phone and that messages on his phone would
corroborate his story. The messages show they were sentby ''Nick"14 and the
officer, who had been qualified as an expert in the field of narcotics investigation
with a specific emphasis on cellular phone communication, testified that the natne.
ofthe sender "would be a name that was put into the contacts of that.cell phone". · ·
Id. at page 77. It may reasonably be assumed the name "Nick" had been entered !
1
by Defendant.
Further, the content of the messages "correspondjs] with relevant events I
that precede or follow the communication in question":
II
1.
4/21/16 1:58 p.m. from "Blade" - "he wants 24 onions for four
G's" '
4/21/16 2:32p.m. from "Nick" - "almost to creek"
4/21/i6 3:00 p.m. from "Nick" - "you know how much
longer?"
4/21/16 3 :05 p.m, from "Nick" - "1'11 give you 1000 if you
give it back, man"
4/21/16 3: 11 p.m, from "Nick" - "come PH even give you
1500. Please bro, I thought
we were better than this,
dude"
4/21/16 4:03 p.m. from "JoJo'' "'.'"° "how did you do it - he just
I et you walk off with. his
money?"
4/21/16 4:16 p.m. from "Nick;' - "well, it's shitty, you took
$4000 from me but karma will
. get you?"
14
There were two messages sent· by other people, but Defendant objected to only "anything sent from Mr.
Aloisio's phone", RT. October 27, 2016 at page 73. ·
15
Ccmmonwealth's Exhibits 7-A through 7-G
8
Officer Kriner testified that Defendant had told him that on that date he was
staying with a male by the name of Blade Noltee and that Melissa Pratt and
Jordan Probst had picked him up from Mr. Noltee's place and taken him to the
pizza place on.Lycoming Creek Road to meet. with Nick Aloisio. Id. atpage.10.
This testimony; combined with the testimony from Rachel Warburton that Nick
Aloisio had asked Defendant to get him a pound and a half of marijuana for
$4000 andthat she andNick went to a pizza place on Lycoming CreekRoadto
meet Defendant for that purpose, supports a finding that the text from "Blade" is
text message from Blade Noltee relaying the request from Aloisio to Defendant
that Defendant get him the marijuana, and also a finding that the text from �'Nick''
at 2 :32 p.m, is a text message from Nick Aloisio telling Defendant he was on his
way to the meeting, The remaining text messages from ''Nick'' are authenticated ·
by J ordan Probst' s testimony that he heard Defendant say to Al oisio that "he was
I
heading to Florida" and "in the same conversation Nick was telling him to bring
the money back and that he would give him a thousand dollars if he brought the I
money back," Id. at page 50.16
The hearsay objection is also without merit; most of the statements were \
not offered for thetruth of the matter asserted. Although one statement arguably I
was offered for the truth of the matter ("well, it's shitty, you took .$4000 from me·
hut karma will get you"), its admission is deemed harmless error in light of the I I
other evidence establishing the matter.
\
I
16
The message from ..JoJo" was not explained, but Defendant did not raise an objection to this mess�ge.
9
I
Sufficiency of the Evidence
In addressing a challenge to the sufficiency of the evidence, the court is to
view all of the evidence admitted at trial in the light most favorable to the
. .
Commonwealth as verdict winner, and the verdict will be upheld if there is
sufficient evidence to enable the fact-finder to find every element ofthe crimes
charged beyond a reasonable doubt, Commonwealth v. Adarns, 882 A.2d 49'6 {P
Super. 2005).
I
Defendant argues that the evidence was insufficient to establish (I) a loss,
to support the charge of theft by unlawful taking, (2) that the money received was
stolen, to support the charge of receiving stolen property, and (3) deception, to I
•
support the charge of theft by deception. He bases all three arguments on the fact
that Nick Aloisio did not testify and without.his testimony, "there was no direct
testimony that Mr. Aloisia did not subsequently receive any goods or services." 1
Post-Sentence Motion at paragraphs 57, 67 and 77. l
While there may have been no direct testimony fromNick Aloisio, that Mr, t
I
Aloisio did not subsequently receive any goods or services was made abundantly 'l
clear from other evidence which wczs presented. For example, JordanProbst's
I
I
testimony that he and Defendant immediately left with the money-and did not I
purchase any marijuana, his testimony that Defendant told Aloisio that he was
going to Florida with the money, his testimony that Defendant and his
compatriots went shopping with the money, 17 his testimony that Defendant gave .
"nice little chunk of money" to his "baby's mom", and the evidence that I
Defendant had.$2000 in. cash (held together With a :rubber band) in his backpack I
I
17
Beside the testimony to that effect, the Commonwealth also introduced photos of a substantial amount of newly
'purchasedmerchandise in shopping bags found in the tru� of the vehicle in which Defendant and the others were
10 \.
when stopped by the police.18 This evidence was more than sufficient to enable
the fact-finder to find beyond a reasonable doubt that Defendanttook the money
and did not provide the marijuana, with the requisite intent to deprive Aloisia and
Warburton of the money.
Weight of the Evidence
A "weight ofthe evidence" claim contends the verdict is a product of
speculation or conjecture, and requires a new trial only when the verdict is so
.i1
contrary to the evidence as to shock one's sense of justice .. Commonwealth v.
Dougherty, 679 A.2d 779 (Pa. Super. 1996),
Defendant's argument in this regard is identical to his argument that the
evidence was insufficient to support the verdict. Defendant contends that because I
Mr. Aloisio did not testify there was no "direct" evidence that he did not receive \
·1
goods or services and thus, apparently, that Defendant acted with the requisite !
larcenous intent when he took the money. Again, even though the evidence did I
not come directly from Aloisia, the verdict was hardly a product ofspeculation or
conjecture. All the evidenc:e pointed to Defendant's guilt and the jury so found.
The court'ssense ofjustice was not at all shocked.
Grading of the Offenses
To the extent relevant here, the Crimes Code provides that theft constitutes
a felony of the third degree if the amount involved exceeds $2,000. 18 Pa,C.S.
Section 3 903 (a. I).
riding when stopped, and receipts for those items showing they had been paid for In cash, at about 4:30 p.m, on
April 21, 2016. . .
18
N.T., October 27, 2016 at pa$e 100.
u·
Defendant contends that grading the offenses here as felonies of the third
degree is against the weight of the evidence, again focusing on the lack of
testimony fromMr. Aloisio. Ms. Warburton testified that Aloisio gave Defendan
$4000, but on cross-examination she said that "a good . half of it" was her.
money. 19 Defendant argues that, if anything, only the amount stolen from Ms.
Warburton has been sufficiently proven and therefore the Commonwealth has
failed to show that more than $2000 was involved.
The court does not agree that only the amount stolen from Ms. Warburton
has been sufficiently proven. For the reasons stated in discussing. the su,f:fieiency .· ·
ofthe evidence, above, the court believes the weight of the evidence supports the
jury's findings that the amount involved was more than $2000.
Excessiveness of Sentence
Defendant contends the sentence imposed, one to four years' incarceration,
i� excessive· because one of the victims did not testify and the other victim stated
Ii
in her testimony that she ..did not want to be involved. Defendant argues that the I
court should consider the "impact on the life of the victim" to be reduced as a II
result. Considering, however, that the victims were attempting to purchase
marijuana, most likely for re-sale, the court cannot read too much into their l
I
I
I
reluctance. In any event, to adopt Defendant's position would be to sen? a !
message to the community thattheft among drug dealers is somehow considered
less offensive. This the court willnot do.
Furthermore, the, court considered other factors in fashioning the sentence,
such as Defendant's lengthy prior record and his apparent inability to respond to
19
Id, at page 34.
12
efforts at.rehabilitation." The pre-sentence investigation concluded that
Defendant had "exhausted the efforts of the programs afforded him and continues.
to demonstrate lack of judgment, disregard for himself and the community. ,;21
Considering allofthe factors, the cQU1t believes the sentence was not excessive.
ORDER
-?��ofMarch
· ANDNO\V, this 2017, for the foregoing reasons,
Defendant's Post-Sentence Motion is hereby DENIED.
BY THE COURT,
r-� .c.) \
...... 1 . ·t---
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Dudley N. Anderson, Judge
cc: DA
Robert Cronin, Esq.
Gary Weber,. Esq.
Hori. Dudley Anderson
'20 Indeed, Defendant was
21 N.T., January 12, 2017
on parole when he committed the instant offenses.
at page s.
I
13
IN THE .COURT OF COMMON PLl;AS· OF LYCOMING COUNTY,
PENNSYLVANIA
. COMMONWEALTH No. CR-8'2·9-20116
vs. CR-856-2016
ANDREW ilJSBS,
Defendant CONFLICTS
/
1 ANO NOW, this 111' day of.October 2016, in that Altom ey Robert
f I Cronin is no longer under contractas Lycoming
.
County conflict counsel, but is
I
I
i . . . .
. contlnulnqto representthe defendant in above-captioned case, effective
October 1, 2016, Attorney Cronin is to be compensated by the County at the
. · rate of $60.00 per hour and reimbursed forreasonable costs incurred.
l
lW The Court, I
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·.f. i
Marc.F, Lovecchio, Judge
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cc: .}<'obert Cronln, Esquire
� CA .
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