Com. v. Abuomar, S. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHADI M. ABUOMAR
Appellant No. 1627 MDA 2014
Appeal from the Judgment of Sentence dated June 13, 2014
In the Court of Common Pleas of the 41st Judicial District,
Juniata County Branch
Criminal Division at No: CP-34-CR-0000120-2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 28, 2015
Appellant Shadi M. Abuomar appeals from the June 13, 2014 judgment
of sentence1 entered in the Court of Common Pleas of the 41st Judicial
District, Juniata County Branch (trial court), following a jury trial that
resulted in Appellant being found guilty of theft by unlawful taking of
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1
Appellant purports to appeal from the trial court’s order denying his post-
sentence motion. Appellant’s Brief at 2. It is well-settled, however, that an
appeal lies from the judgment of sentence, not the denial of the post-
sentence motion. See, e.g., Commonwealth v. Pratt, 930 A.2d 561, 562
n.1 (Pa. Super. 2007), appeal denied, 946 A.2d 686 (Pa. 2008);
Commonwealth v. Shamberger, 788 A.2d 408 (Pa. Super. 2001), appeal
denied, 800 A.2d 932 (Pa. 2002). Accordingly, we have corrected the
caption to reflect the June 13, 2014 judgment of sentence. See
Commonwealth v. Dreves, 839 A.2d 1122, 1125 n. 1 (Pa. Super. 2003)
(en banc).
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movable property (firearms) under Section 3921(a) of the Crimes Code, 18
Pa.C.S.A. § 3921(a). Upon review, we affirm.
The facts and procedural history underlying this case are undisputed.
Briefly, on June 24, 2013, Appellant was charged with theft by unlawful
taking of firearms. The affidavit of probable cause accompanying the
complaint reveals in part that Richard Lombardo was relocating from New
York to Mifflintown, Pennsylvania. The company moving Lombardo’s
belongings from New York to Pennsylvania hired, among others, Appellant
and Appellant’s friend, Frank Mideaugh, for the day to assist with the move
by transporting boxes from the moving truck to Lombardo’s residence. At
some point, Lombardo noticed that three handguns were removed from a
gun box. When Lombardo confronted the movers, Appellant and Mideaugh
got into Appellant’s vehicle and fled the scene.
The case proceeded to a jury trial, at which both parties presented
testimony. Wade Demanche first testified on behalf of the Commonwealth.
He testified that he “ran” Liberty Moving and Storage (Liberty Moving) and
was in Mifflintown because he was moving a family, later identified as the
Lombardos, from New York. N.T. Trial, 3/27/14, at 24-25. Demanche
testified that he had to deliver the Lombardos’ furniture. Id. at 25.
Specifically, he testified, “I had loaded [the furniture] in Long Island on
Friday and I came out here for Saturday morning to deliver their furniture to
their home.” Id. Demanche further testified, ”When I got here, there was
no moving companies open to hire labor for the day, so I put an ad on
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Craigslist to try and get help.” Id. He explained that the Craigslist ad he
posted specified that he “was looking for experienced movers to help unload
a truck.” Id. at 26. Demanche testified that he eventually hired three men,
and promised to pay each of them $100 if they helped him unload the truck.
Id. at 27-28. Demanche identified two of the hired men as Appellant and
Mideaugh. Id. at 27-29.
Demanche testified that he and the three men eventually reached the
Lombardos’ house to unload the truck. Id. at 29. Describing the move,
Demanche testified:
We started unloading furniture into the house. Everybody
seemed to be fine. It went on for a few hours and then
[Appellant] and [Mideaugh], after a couple of hours, got really
antsy and wanted to leave. Their demeanor seemed to change.
....
Well, we were about halfway through and they said they put in
enough hours. They were ready to leave, which wasn’t the deal.
The deal was a flat rate of a hundred rate [sic] to unload the
truck. We were only about halfway done. It had only been a
few hours. At that time [Appellant], you know, said he wanted
to go to his car to get some gum. I didn’t think nothing of it. He
did that on three separate occasions.
Id. at 29-30. The first time Appellant went to his car, Demanche was in the
truck from which he observed Appellant “[m]essing around with stuff under
his seat.” Id. at 30-31. Demanche testified that Appellant did the same
thing minutes later when he returned to his car to retrieve cigarettes. Id. at
31. Twenty minutes later, according to Demanche, Appellant went to his car
for the third time for reasons unknown to Demanche. Id.
Demanche testified:
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The customer [(Lombardo)] came out of the house, approached
me, and said I am missing three firearms; and I was like what
do you mean? Because I didn’t have any firearms in the truck.
He had brought them in his own personal vehicle, and I didn’t
know they were in the house. And he said, “Listen. I just want
them back, no police involvement.” That’s when he approached
the rest of the crew that was there, and—
....
[The crew was] all down by the back of the truck by the rail; and
he said whoever has got my guns, just give them back and leave
with no police involvement. At that time [Appellant] turned his
back to everybody[.]
Id. Demanche then testified that “the gentleman that was with [Appellant]
stated on three separate occasions just give him back the guns, and let’s gut
[sic] out of here that time.” Id. at 31-32. Appellant’s counsel objected
based on hearsay and the trial court sustained the objection, directing the
jury that it may not consider the statement. Id. at 32. Shortly thereafter,
Demanche once again testified that “the crew was like, hey, give back the
guns.” Id. Appellant’s counsel once again raised a hearsay objection, which
the trial court sustained. Id. at 32-33.
Demanche testified that, when the crew was approached by Lombardo,
Appellant “looked like he was trying to make a decision,” because Appellant
“stood there for a moment and then reached into his back pocket, grabbed
his keys, and headed towards his vehicle.” Id. at 33.
Describing what transpired next, Demanche testified:
Me and [Lombardo] both followed [Appellant] over towards his
vehicle. [Lombardo] went to put his hands on the door to keep
him from closing it. [Appellant] ripped the door out of
[Lombardo’s] hand. I went—the window was down. I went over
to the car and I was going to try and stop him. [Appellant]
started reaching for something under the seat. I didn’t exactly
see what it was. But with the mention of guns, I decided it was
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best for me to back away. I took pictures of the car and of the
gentlemen that [Appellant] was with.
Id. at 34. Demanche also testified that, before Appellant and Mideaugh left,
they did not ask for payment for the work performed. Id. at 35. They were
not paid. Id. Demanche testified that Appellant and Mideaugh left “in a real
hurry.” Id.
The Commonwealth next offered the testimony of Richard Lombardo,
who testified that he and his wife were relocating to Mifflintown from Long
Island, New York to retire. N.T. Trial, 3/27/14, at 48-49. To facilitate the
relocation, Lombardo testified that he hired Liberty Moving, a subsidiary of
United Van Lines. Id. at 50. Lombardo further testified that Liberty Moving
was “supposed to load everything from New York into a truck and then bring
it here and unload it and put it in the various rooms.” Id. On June 22,
2013, Liberty Moving transported Lombardo’s belongings to Lombardo’s new
residence in Mifflintown. Id. at 53. At the residence, Lombardo met
Demanche and three workers who had been hired through Craigslist in
Pennsylvania. Id. Lombardo testified he “was very upset to find out that
they were hired off of Craigslist that morning.” Id. Lombardo also testified
that one of the workers hired through Craigslist was Appellant. Id. at 53-
54.
Lombardo testified that Appellant introduced himself as “Michael.” Id.
at 54. Lombardo explained that his interaction with the workers principally
consisted of directing them where in the house to unload the moved
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belongings. Id. at 55. Lombardo testified that he was not satisfied with the
way the move was going because he felt “uneasy with the actions of”
Appellant and Mideaugh. Id. Lombardo explained: “It seemed like every
time I walked into the garage one of them would start talking very very
loud. If I went downstairs, [Appellant] would, you know, act a little – got
very quiet and all of a sudden he would run up the stairs, so . . . .” Id. at
56.
Alarmed by Appellant and Mideaugh’s behavior, Lombardo testified
that he checked up on his wife and their belongings to make sure they were
all right. Id. at 57. Lombardo testified that, in so doing, he noticed some
open gun cases. Id. Lombardo testified that he “had three pistols. Two of
the cases, gun cases, were open. Camera cases were open. A duffle bag
was open and I noticed that the three handguns were missing.” Id. With
respect to the missing handguns, Lombardo testified that they were in the
same hard case. Id. at 58. Describing the handguns, Lombardo testified
that two were revolvers and the third “a nine millimeter automatic.” Id. at
59.
Explaining why the handguns were inside the residence, Lombardo
testified:
They were in the back of my car in the trunk. And because the
[moving] truck was right near my driveway of the new house, I
didn’t want to put [my] car in the way of the people moving my
household goods. I had parked [my car] like a house away on
the road, and I felt comfortable – uncomfortable that they were
there, because they were supposed to be in my charge.
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And I did a stupid thing. After an hour or so, I went to the trunk
of my car and I took them out and I brought them inside the
house, because I thought they would be more secure there than
out in the road.
....
I put them downstairs in the basement behind the stairs in a
corner, and I covered them with a – you know I put other things
around them so that they wouldn’t look like they were gun
cases. So that’s why I put my camera case there and other
things.
Id. at 59-60. Lombardo testified that when he brought the guns inside the
house, he verified that they were in the case. Id. at 60.
Upon noticing that the guns were missing, Lombardo testified that he
approached Demanche, stating, “I have some personal items missing and I
want to talk to you and the three men that were there.” Id. at 62.
Lombardo testified that he then “went to the end of the driveway,” where
the workers were standing, to inform them that he was missing some items.
Id. In response, Lombardo explained that Appellant and Mideaugh “were
looking at each other and the other guy was saying something to
[Appellant]. I didn’t catch what he was saying and [Appellant] turned his
back, put his hands in his pocket, got his keys out, and headed for his car.”
Id. at 63.
Lombardo testified that when Appellant got into his car, Lombardo
dialed 911 and went after Appellant. Id.
I tried—[Appellant] had already gotten in the car and was
closing his door. I tried to keep the door open, but I couldn’t. I
was in the wrong position. I don’t know why, but I don’t know
why. But he slammed the door shut. The other guy ran to the
car and said, “He’s my ride. I have to go.” He jumped in the car
and [Appellant] was reaching towards like between the driver’s
seat and the passenger seat, and he put the car in gear and the
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car was already in gear. They had already done that.
[Appellant] just sped out and took off.
Id. at 63-64. Lombardo testified that he had not given permission to
anyone that day to use the handguns.
On cross-examination, Lombardo acknowledged that he never saw
Appellant handle one of the missing guns. Id. at 86. Lombardo also
acknowledged that he was unsure whether anyone observed him moving the
guns from his car to the house. Id. at 87. Lastly, Lombardo acknowledged
that he suspected Appellant stole the handguns because Appellant ran away.
Id. at 92-93.
Following testimony by Demanche and Lombardo, Appellant’s counsel
moved for a mistrial because of Demanche’s hearsay statements that
someone told Appellant to return the guns to Lombardo. Id. at 70.
Appellant’s counsel argued that “the cumulative effect of [the statements]
on the jury is such that it will bias them to an extent that a cautionary
instruction is inadequate[.]” Id. The trial court denied the motion for
mistrial.
The Commonwealth thereafter presented the testimony of Trooper
Stanley E. Sims, Jr. Trooper Sims testified that, on June 22, 2013, he
responded to a report of stolen firearms and interviewed Lombardo and
Demanche at the scene. Id. at 101-104. Trooper Sims testified that
Lombardo gave him a license plate number, based on which Appellant was
identified “as the guy that was driving” the vehicle. Id. at 105.
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On cross-examination Appellant’s counsel asked Trooper Sims whether
“at [any time] that anybody said, give them back the guns, give them back
the guns[.]” Id. at 108. Trooper Sims responded, “They might have. I
don’t recall.” Id.
Eve Ellen Marie Brown, head custodian at Loyalsock Township School
District, testified that, on August 23, 2013, she heard some loud shots while
working in a classroom. Id. at 137-38. Ms. Brown testified that she
observed an individual tossing “something over towards the tree,” and then
getting into a vehicle and driving off. Id. at 138-39. She testified that upon
examining the area around the tree, she discovered a handgun. Id. at 139.
Trooper Tyson Havens, with the Pennsylvania State Police, testified he
examined a recovered firearm and confirmed it was reported stolen and
registered to Lombardo. Id. at 142-43. Trooper Havens testified that,
although DNA evidence was retrieved from the handgun, it was not linked to
Appellant. Id. at 143.
In response, Appellant presented the testimony of Mideaugh, who
testified that, three hours into unloading the truck, Lombardo “just came out
of the garage and said there’s guns missing from his basement.” Id. at 170.
Mideaugh testified that no one responded to Lombardo’s comment because
everyone was “shocked.” Id. He further testified that Lombardo’s wife
“started pointing a finger at” Appellant. Id. Mideaugh explained that
Lombardo’s wife blamed Appellant for the missing guns. Id. at 171.
Describing what ensued, Mideaugh testified:
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Well, [Lombardo] started yelling at [Appellant] and, you know,
the wife’s yelling at him. So [Appellant] started going over to
his car, you know, and I was like I didn’t know what the hell to
do, so I followed them over. He went to get in his car and
[Lombardo] wouldn’t let him. [Appellant] closed the door. I
was, that’s my ride I’m getting in too. I was scared and
confused and we just left.
Id.
On cross-examination, Mideaugh acknowledged that they did not get
paid for the work that day. Id. at 175-76.
Next, Appellant testified on his own behalf. Appellant testified that,
during the move, he did not observe any gun cases at the Lombardo
residence. Id. at 194. Appellant testified that, three-fourth of the way into
the move, Lombardo approached Demanche, as the movers were all
standing by the truck, to tell Demanche that Lombardo was missing some
items. Id. at 198. Appellant testified that eventually Lombardo’s wife
started to point a finger at him and Lombardo began to accuse him of taking
the items. Id. at 199-200. Specifically, Appellant testified:
Lombardo turned to me and started pointing at me and saying,
basically, you did it. I know you did and I want my stuff back.
....
At this point, I didn’t know what he was talking about. He
was just saying I have some items missing, some stuff; and then
at some point, he said that when he was talking about calling the
police. He said that it was some pistols, I believe, he used.
....
I just turned and, you know, I was just not really paying
the situation any mind, because I didn’t have anything to do with
anything. I was standing there and [Lombardo] kept saying he
was going to call the police. And I was, like, I don’t mind,
because—and then after a while, he just, when his wife started
pointing at me, he started getting closer to me and started
pointing his fingers and raising his voice.
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And I started to get a little agitated, because somebody
was accusing me and I just said, “Look, I don’t know what the
hell you’re talking about. I don’t have anything, you know.” I
had a tight shirt on. I don’t—like you can see I don’t have
nothing. I said, “There’s nothing in my car.” And he kept
insisting that he wanted to call the authorities and he kept
getting closer and closer to me, raising his voice and more
gesturing with his hands. At that point I just said, you know, I
had enough and turned around and left.
....
[Lombardo] tried to grab the [car] door handle and when
he grabbed the door handle his hand must have slipped away or
whatever and I closed the door and that was it.
Id. at 199-201.
On cross-examination, Appellant denied that he ever introduced
himself to Lombardo as either Michael or Mike. Id. at 205-206.
Following trial, Appellant was found guilty of theft by unlawful taking.
On June 13, 2014, the trial court sentenced Appellant to 21 to 60 months’
imprisonment. Following the trial court’s disposition of Appellant’s post-
sentence motions, Appellant timely appealed to this Court.
On appeal,2 Appellant essentially raises two arguments for our review.
First, Appellant argues that the Commonwealth did not present sufficient
evidence to sustain his conviction for theft by unlawful taking of firearms.
Second, Appellant argues that the trial court erred in denying his motion for
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2
To the extent Appellant argues the Commonwealth failed to establish a
prima facie case, we reject such argument as meritless. Appellant here was
convicted in a jury trial. See Commonwealth v. McCullough, 461 A.2d
1229, 1231 (Pa. 1983) (concluding the fact that the Commonwealth did not
establish a prima facie case of robbery at the defendant’s preliminary
hearing was immaterial where the Commonwealth met its burden of proving
the underlying offense at trial beyond a reasonable doubt).
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mistrial because of the prejudicial hearsay statement made by Demanche in
the presence of the jury.
We first address Appellant’s contention that the evidence was
insufficient to sustain a conviction for theft by unlawful taking. In support of
his argument, Appellant points out that the Commonwealth failed to offer
any evidence linking Appellant to the theft. Appellant’s Brief at 15.
Appellant thus argues that his conviction for theft hinges only on the
Commonwealth’s evidence that Appellant was present at the Lombardo
residence and fled upon being informed of the missing personal items. Id.
“A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)
(emphasis added), appeal denied, 95 A.3d 275 (Pa. 2014). “This standard is
equally applicable to cases where the evidence is circumstantial rather than
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direct so long as the combination of the evidence links the accused to the
crime beyond a reasonable doubt.” Antidormi, 84 A.3d at 756 (citation
omitted). “Although a conviction must be based on more than mere
suspicion or conjecture, the Commonwealth need not establish guilt to a
mathematical certainty.” Id. (citation omitted). To reiterate, credibility and
weight of the evidence are both matters that are in the sole purview of the
jury. Specifically, when considering whether or not the evidence was
sufficient to prove each element of each charge beyond a reasonable doubt,
we cannot assume the task of weighing evidence and making independent
conclusions of fact. Commonwealth v. Lewis, 911 A.2d 558, 563 (Pa.
Super. 2006) (citations omitted).
Section 3921(a) of the Crimes Code, relating to theft by unlawful
taking of movable property, provides that “[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.A. § 3921(a).
We consistently have held that evidence of a defendant’s presence at
the scene of a crime and the defendant’s subsequent flight therefrom,
“standing alone, does not establish guilty beyond a reasonable doubt.”
Commonwealth v. Goodman, 350 A.2d 810, 811 (Pa. 1976) (citing
Commonwealth v. Roscioli, 309 A.2d 396 (Pa. 1973)); see also
Commonwealth v. Hargrave, 745 A.2d 20, 23-24 (Pa. Super. 2000)
(concluding that evidence was insufficient to prove burglary where the
evidence consisted of defendant’s presence at the scene of crime along with
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his flight after arrest), appeal denied, 760 A.2d 851 (Pa. 2000). In
Hargrave, this Court explained “[f]light does indicate consciousness of guilt,
and a trial court may consider this as evidence, ‘along with other proof,
from which guilt may be inferred.’” Hargrave, 745 A.2d at 23 (emphasis
added). We, however, cautioned that “this only holds true in cases in which
the other evidence of guilt consists of more than mere presence at the
scene.” Id. (emphasis added). Indeed, “mere presence on the scene both
immediately prior to and subsequent to the commission of a crime and flight
therefrom is not sufficient evidence to prove involvement in the crime.” Id.
at 23-24 (citation omitted); see also Commonwealth v. Stores, 463 A.2d
1108 (Pa. Super. 1983) (evidence of something more than mere presence at
or near the scene of a crime is required to justify the conclusion that the
defendant committed or participated in a crime). Thus, “[t]he additional
element of flight, which is as consistent with fear as with guilt, does not
convert presence into proof of guilt.” Goodman, 350 A.2d at 811 (citation
omitted).
In Goodman, a police officer observed the defendant emerge from a
doorway that accessed both the rear door of a grocery store and a stairway
to an apartment above the grocery store. The officer ordered the defendant
to stand against the wall next to another individual, whom the officer had
caught emerging from the rear door of the grocery store carrying a box of
frozen meat. When the other man threw the box of meat at the police
officer and fled, the defendant fled in the opposite direction. The defendant
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subsequently was caught, and no inculpatory evidence was found after a
search of his person. Our Supreme Court found the evidence was
insufficient to support a conviction for burglary and larceny because the
defendant could have come from the apartment and he was not linked to the
man carrying the box. Goodman, 350 A.2d at 811. Thus, in reversing this
Court’s decision, the Court concluded that “the evidence is as consistent with
the inference that [the defendant] innocently happened upon the scene and
fled out of fear as it is with the inference that [the defendant] was a
participant in the burglary.” Id. at 812.
In Commonwealth v. Keller, 378 A.2d 347 (Pa. Super. 1977), the
Commonwealth presented evidence that at 7:10 a.m., a witness observed
the appellant and two other young men standing around a vacuum cleaner
at a car wash. Keller, 378 A.2d at 349. When the witness approached the
men, the appellant jumped into a car and left the scene. Id. When the
witness examined the vacuum cleaner, he noticed that the coin box to one
vacuum cleaner was damaged and that another coin box was missing. Id.
The witness contacted the police and the appellant was arrested three days
later. Id. In reviewing whether the evidence was sufficient to affirm the
appellant’s conviction for theft, we explained that “[t]he mere presence of an
individual at the scene of a crime is not a sufficient circumstance upon which
guilt may be predicated. Moreover, the additional element of flight, which is
as consistent with fear as with guilt, does not convert presence into proof of
guilt.” Id. (citations omitted). We noted that the Commonwealth failed to
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introduce evidence tending to show that the appellant had tempered with
the coin boxes or taken anything from them. Id. Thus, based on the
evidence in that case, we concluded that the evidence of the appellant’s
presence at the scene and his flight therefrom was insufficient to support the
theft conviction. Id. at 349-50.
In Commonwealth v. Johnson, 415 A.2d 1246 (Pa. Super. 1979),
police observed two brothers standing in front of a store entrance at 11:15
p.m. Johnson, 415 A.2d at 1247. One brother was facing the door while
the other brother, the appellant, looked toward the street. Id. As the police
approached the two brothers, they began to walk away. Id. The police then
noticed a screwdriver wedged into the door jam and immediately arrested
the brothers. Id. “Further investigation revealed fresh jimmy marks around
the door jam.” Id. Subsequently, following a bench trial, the appellant was
convicted of, inter alia, attempted burglary based on the foregoing facts.
Id. On appeal, however, we determined that the evidence was insufficient
to support the conviction. In so doing, we explained:
There was no direct evidence that either man had committed a
criminal act. The police did not see appellant touch the door,
use the screwdriver, or perform any motions indicating usage.
No fingerprints were found at the scene. Neither man was
carrying burglary tools. Although guilt can be proved entirely by
circumstantial evidence, the only circumstances here were
presence at the scene of an attempted crime during late night
hours and flight following arrival of the police.
Id. (citation omitted).
Our review of the record here reveals that, unlike in Goodman,
Keller, and Johnson, Appellant’s conviction for theft by unlawful taking of
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firearms was not anchored solely in the fact that he was merely present and,
subsequently, left the scene of the incident. As the trial court found:
Appellant and [Mideaugh] had been hired off of Craigslist by a
moving company to help move [Lombardo] into the new house.
Appellant gave [Lombardo] and [Demanche] a fake name,
“Michael.” Appellant and [Mideaugh] were often moving items
into the basement of the new house. [Lombardo] became
nervous about the conduct of Appellant, and testified that
whenever he would enter the basement Appellant would become
quiet and would suddenly run back upstairs. Due to his
suspicions about Appellant, [Lombardo] began to keep an eye on
[Appellant]. While [Lombardo] was looking around the new
house, he noticed that his gun case was open and three
handguns were missing.
[Lombardo] then approached Appellant, [Demanche], and
the other men working to unload the moving truck and informed
them that he was missing personal items from inside the new
house. [Lombardo] testified that following these remarks,
Appellant “put his head down,” “turned his back, put his hands in
his pocket, got his keys out, and headed for his car.”
[Lombardo] tried to prevent Appellant from leaving, but was
unsuccessful and Appellant “sped out and took off.” [Lombardo]
then called 911 to report the situation as it unfolded. . . .
Moreover, in Appellant’s case, [Demanche] testified that
after a few hours of work Appellant started to get “really antsy
and wanted to leave. . .,” and that Appellant’s demeanor seemed
to change. Appellant walked to this car on three separate
occasions to get gum or cigarettes, and was “[m]essing with
stuff in his car.” [Demanche] further testified that Appellant did
not ask to be paid for the work he performed before he left in a
“real hurry,” and has never requested to be paid since in the
incident.
Trial Court Opinion, 1/26/15, at 3-4 (record citation omitted). The trial
court’s foregoing findings emphasize that Appellant here was more than
simply present at the scene. He was hired to help Lombardo move into the
new residence. While at the residence, Appellant frequently had been going
to the basement where the handguns were stored. Appellant’s behavior at
the residence was described as antsy. When approached about the missing
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items, Appellant left in a real hurry without getting paid for the work he had
performed. Thus, contrary to Goodman, Keller, and Johnson, in the
instant case, after reviewing the evidence presented, cast in the light most
favorable to the Commonwealth as verdict winner, we find the evidence
indeed is sufficient to warrant the jury’s conviction for theft by unlawful
taking of firearms.
We next consider Appellant’s argument that the trial court erred in
denying his motion for a mistrial based on the hearsay statements made by
Demanche in the presence of the jury. We, however, need not address
Appellant’s second argument, because he has failed to preserve it for
appeal. See Pa.R.A.P. 302(a).
As we explained in Commonwealth v. Szakal, 50 A.3d 210 (Pa.
Super. 2012):
[T]he decision to declare a mistrial is within the sound discretion
of the trial court and will not be reversed absent a flagrant abuse
of discretion. A mistrial is an extreme remedy that must be
granted only when an incident is of such a nature that its
unavoidable effect is to deprive defendant of a fair trial.
Id. at 218 (citation and quotation marks omitted). Under Pennsylvania Rule
of Criminal Procedure 605, relating to mistrials, “[w]hen an event prejudicial
to the defendant occurs during trial only the defendant may move for a
mistrial; the motion shall be made when the event is disclosed.
Otherwise, the trial judge may declare a mistrial only for reasons of manifest
necessity.” Pa.R.Crim.P. 605(B) (emphasis added); see also Szakal, 50
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J-A18017-15
A.3d at 219 (noting that the appellant’s claim was waived because the
appellant waited a substantial period before moving for mistrial).
Instantly, as noted above, Appellant failed to timely move for a
mistrial based on Demanche’s statements about Appellant being told to
return the missing guns to Lombardo. In other words, Appellant waited a
substantial period before requesting mistrial. As the trial transcript reflects,
Appellant moved for mistrial well after Demanche had presented his
testimony. Thus, because Appellant did not timely move for a mistrial, we
reject his second argument as waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2015
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