Com. v. Goodrick, T. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TODD PATRICK GOODRICK
Appellant No. 1521 MDA 2015
Appeal from the Judgment of Sentence April 29, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000686-2014
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED MAY 11, 2016
Appellant, Todd Patrick Goodrick, appeals from the April 29, 2015
aggregate judgment of sentence of 23 months’ probation (as well as costs,
fines, and restitution), imposed by the trial court after it convicted Appellant
of theft by unlawful taking and defiant trespass.1 After careful review, we
affirm.
The trial court recited the facts of record presented at Appellant’s
bench trial as follows.
On or about November 10, 2013, employees of
Klick Lewis (herein the Victim), located at 720 East
Main Street, Palmyra Borough, Lebanon County,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3921(a) and 3503(b), respectively.
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Pennsylvania, noticed that the dumpster used for
scrap metal had been partially emptied over
weekends and some evenings. The dumpster is
owned by [the Victim]. The dumpster contained
scrap metal which the Victim collects from its
business and sells to third parties by weight. There
were “No Trespassing” signs on the dumpster on the
dates in question. The signs were reflective so that
they could be seen at night as well as during the
day.
Specifically, Scott R[yan], an employee of the
[V]ictim, testified that when he arrived at work on
Monday morning, November 11, 2013, he noticed
that the dumpster was not as full as it was on
Saturday when he left the property at the close of
business. The dumpster was approximately half to
three quarters full on Saturday and was nearly
empty on Monday morning. [Ryan] testified that the
dumpster usually gets emptied about every two to
three months. The worth of the contents varies each
time the dumpster is emptied because the price is
based on weight.
The police were notified and Officer Timothy
Langle[2] (herein Offcr. Langle) of the Palmyra Police
Department suggested that a camera of some sort
be installed to monitor the dumpster. [Ryan] setup
[sic] a “trail” camera up in the trees near the
dumpster. The camera was motion activated, so
that when a person or anything moved within a
certain area near the camera, it would begin
recording and stop when activity ceased for a period
of time. The camera was set up to capture any
movement around the dumpster. [Ryan] printed the
photos from the camera and provided the SD card to
police on December 16, 2013, after items had been
removed from the dumpster.
____________________________________________
2
The parties’ briefs and the notes of testimony from the March 10, 2015
bench trial spell this individual’s surname “Lengle.”
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The pictures showed a car pulling up to the
dumpster. R[yan] testified that where the car pulled
up, the “No Trespassing” sign would have been
visible to someone inside the car. These pictures
show a male wearing a ballcap climbing into the
dumpster and removing items. Knowing that these
thefts were occurring with some frequency, Offcr.
Langle would go by the dumpster while he was on
patrol at night to check as well.
Offcr. Langle was on patrol from midnight until
eight a.m. on December 21, 2013. He pulled into
the Wells Fargo [B]ank parking lot and noticed a
vehicle parked near the dumpster at the Victim’s
business. He turned on the alley light on his patrol
vehicle, heard someone in the dumpster, and a
person emerged from the dumpster. Offcr. Langle
identified [Appellant] as the person who emerged
from the dumpster that night. [Appellant] got out of
the dumpster and told Offcr. Langle that he had not
seen the “No Trespassing” signs. [Appellant] stated
that he was dumpster diving and admitted to taking
scrap from the dumpster on previous occasions,
including December 16th.
Trial Court Opinion, 8/11/15, 2-4.
Appellant was charged with the above offenses and proceeded to a
bench trial on March 10, 2015, after which the trial court rendered its guilty
verdicts. Appellant immediately moved for judgment of acquittal, asserting
that the criminal information listed November 10, 2013 as the date of the
theft. N.T., 3/10/15, at 37. Appellant specifically averred that the
Commonwealth “had no specific evidence to tie [Appellant] to the date
charged in the information.” Id. at 38. Despite stating that it “had a
problem with November 10th because nobody tied that [theft] to
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[Appellant],” the trial court denied Appellant’s request for judgment of
acquittal. Id. at 39.
On April 29, 2015, the trial court sentenced Appellant to 23 months’
probation, as well as costs of prosecution, fines, and restitution. Appellant
filed a post-sentence motion on May 8, 2015, again raising his claim that the
verdict was against the weight of the evidence, as well as a sufficiency of the
evidence claim. The trial court convened a hearing on July 22, 2015, and
denied the post-sentence motion on August 11, 2015. Appellant filed a
notice of appeal on September 1, 2015.3
On appeal, Appellant presents two issues for our review.
I. Whether the [trial c]ourt’s verdict of guilty on the
Theft by Unlawful Taking was against the weight of
the evidence?
II. Whether the Commonwealth failed to present
sufficient evidence that [Appellant] committed the
theft of the scrap metal on November 10, 2013?
Appellant’s Brief at 4.
In his first claim, Appellant argues that the trial court’s “verdict of
guilty was against the weight of the evidence.”4 Appellant’s Brief at 9.
Specifically, Appellant asserts that he was wrongfully convicted of theft
____________________________________________
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
4
As indicated in our recitation of the procedural history, Appellant has
complied with Pennsylvania Rule of Criminal Procedure 607 governing his
challenge to the weight of the evidence.
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because the criminal information “addresses a theft on November 10, 2013,”
the evidence presented at trial “was solely about the theft on December 16th
and December 21st,” and “the Commonwealth did not amend the information
to reflect the proper date.” Id.
The Commonwealth counters that Appellant’s claim is without merit
because he “was provided with discovery which covered all the alleged
thefts. … [He] also asked questions referencing all dates” and “was clearly
aware that the Commonwealth would be presenting evidence of the
December thefts prior to trial and managed his trial strategy accordingly.”
Commonwealth’s Brief at 8.
Preliminarily, we note that Appellant’s counsel did not object at trial
when the Commonwealth began introducing testimony regarding the
December thefts. See, e.g., N.T., 3/10/15, at 20-21 (including, but not
limited to, Appellant’s counsel expressly stating “no objection” to the
Commonwealth’s introduction, through Mr. Ryan, of photographs taken
December 16, 2013 from the trail camera).
It is well settled that “a defendant’s failure to object to
allegedly improper testimony at the appropriate stage ...
constitutes waiver.” [Commonwealth v.] Molina[, 33
A.3d 51, []55 [(Pa. Super. 2011)], citing Commonwealth
v. Redel, 484 A.2d 171, 175 (Pa. Super. 1984). … See
also Commonwealth v. Baumhammers, 960 A.2d 59,
73 (Pa. 2008) (“it is axiomatic that issues are preserved
when objections are made timely to the error or offense”);
Commonwealth v. Powell, 956 A.2d 406, 423 (Pa.
2008) (absence of a contemporaneous objection below
constituted a waiver of appellant’s claim respecting the
prosecutor’s closing argument)[.]
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Commonwealth v. Adams, 39 A.3d 310, 319-20 (Pa. Super. 2012),
affirmed, 104 A.3d 511 (Pa. 2014).
Instantly, although Appellant moved for judgment of acquittal on the
basis of the November 10, 2013 date in the criminal information, he did not
do so until after all of the testimony had concluded and the trial court
rendered its verdicts. As such, Appellant has arguably waived his challenge
on appeal to the litigation of the December thefts, for having failed to object
to that testimony at the proper stage. Adams, supra.Nonetheless, with regard to the merits, we note that when reviewing a
weight claim we are bound by the following.
The weight of the evidence is exclusively for
the finder of fact who is free to believe all,
part, or none of the evidence and to determine
the credibility of the witnesses.
Commonwealth v. Johnson, 668 A.2d 97,
101 (1995), cert. denied, 117 S.Ct. 90 (1996).
An appellate court cannot substitute its
judgment for that of the finder of fact.
Commonwealth v. Pronkoskie, 445 A.2d
1203, 1206 (1982). Thus, we may only
reverse the lower court’s verdict if it is so
contrary to the evidence as to shock one’s
sense of justice. Commonwealth v.
Hawkins, 701 A.2d 492, 500 (1997), cert.
denied, 118 S.Ct. 1535 (1998).
Commonwealth v. Small, 741 A.2d 666, 672–73
(1999). Moreover, where the trial court has ruled on
the weight claim below, an appellate court’s role is
not to consider the underlying question of whether
the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the
trial court palpably abused its discretion in ruling on
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the weight claim. Commonwealth v. Tharp, 830
A.2d 519, 528 (Pa. 2003) (citations omitted).
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (parallel
citations omitted), cert. denied, 542 U.S. 939 (2004).
Here, the trial court explained its rationale for rejecting Appellant’s
weight claim as follows.
[Appellant] was provided with discovery prior
to trial which covered all three dates mentioned, not
only the date of November 10, 2013. Defense
counsel asked questions regarding the December 16
and 21, 2013 incidents, as well as the November 10,
2013 incident. While the date given in the
information is November 10, 2013, [Appellant] was
found in the dumpster by Officer Langle on
December 21, 2013 and admitted to being the
person shown on camera in the dumpster on
December 16, 2013. The Commonwealth presented
evidence that [Appellant] was the person who
unlawfully removed scrap metal from the Victim’s
dumpster on December 16 and 21 of 2013. The
date, while not amended by the Commonwealth, is a
formal defect in the information. It does not change
the offense or any element of the offense charged.
[Appellant] was aware that the Commonwealth
would be presenting evidence regarding the
December dates prior to trial. This [trial c]ourt finds
that the verdict was not against the weight of the
evidence presented because there was evidence
presented as to the December dates.
Trial Court Opinion, 8/11/15, at 6.
Our review of the certified record confirms that the criminal
information lists November 10, 2013 as the sole offense date. Criminal
Information, 5/5/14, at 1. In addition, November 10, 2013 was listed as an
offense date on the criminal complaint. Criminal Complaint, 3/10/14, at 1.
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However, the criminal complaint also lists December 21, 2013 as a date
when Appellant “on 12/21/13 … did unlawfully take, or exercise unlawful
control over, moveable property, scrap metal ….” Id. at 3. Furthermore,
the affidavit of probable cause signed by Officer Langle listed December 16,
2013 and December 21, 2013 as offense dates. Affidavit of Probable Cause,
3/11/14, at 1. The criminal complaint and affidavit of probable cause were
filed prior to the criminal information. Consequently, as the trial court
indicated, Appellant was aware that the Commonwealth would be presenting
evidence regarding the two December dates prior to trial.
Pennsylvania Rule of Criminal Procedure 560 provides as follows.
Rule 560. Information: Filing, Contents, Function
(A) After the defendant has been held for court following a
preliminary hearing or an indictment, the attorney for the
Commonwealth shall proceed by preparing an information
and filing it with the court of common pleas.
(B) The information shall be signed by the attorney for the
Commonwealth and shall be valid and sufficient in law if it
contains:
(1) a caption showing that the prosecution is carried on in
the name of and by the authority of the Commonwealth of
Pennsylvania;
(2) the name of the defendant, or if the defendant is
unknown, a description of the defendant as nearly as may
be;
(3) the date when the offense is alleged to have been
committed if the precise date is known, and the day
of the week if it is an essential element of the
offense charged, provided that if the precise date is
not known or if the offense is a continuing one, an
allegation that it was committed on or about any
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date within the period fixed by the statute of
limitations shall be sufficient;
(4) the county where the offense is alleged to have been
committed;
(5) a plain and concise statement of the essential elements
of the offense substantially the same as or cognate to the
offense alleged in the complaint; and
(6) a concluding statement that “all of which is against the
Act of Assembly and the peace and dignity of the
Commonwealth.”
(C) The information shall contain the official or customary
citation of the statute and section thereof, or other
provision of law that the defendant is alleged therein to
have violated; but the omission of or error in such citation
shall not affect the validity or sufficiency of the
information.
(D) In all court cases tried on an information, the issues at
trial shall be defined by such information.
Comment: The attorney for the Commonwealth may
electronically prepare, sign, and transmit the information
for filing.
…
When there is an omission or error of the type referred to
in paragraph (C), the information should be amended
pursuant to Rule 564.
Pa.R.Crim.P. 560 (emphasis added).
The text emphasized above in subsection (3), although not directly
applicable to the situation presented in this case, indicates that the
legislature contemplated continuing offenses and flexibility in an information.
In addition, the comment referencing amendment of an error in an
information permissively indicates that the information should be amended,
not that it must.
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We agree with Appellant that “a review of cases dealing with
information amendments could find no case on point.” Appellant’s Brief at
10. However, it is uncontroverted that “the purpose of a criminal
information is to notify the defendant of the charge he has to meet.”
Commonwealth v. McIntosh, 476 A.2d 1316, 1321 (Pa. Super. 1984),
citing Commonwealth v. Petrillo, 12 A.2d 317, 324 (Pa. 1940). “Although
the information is not to be read in an overly technical manner, we must
arrest judgment where an error in the information is one that could ‘mislead
the defendant or [that] involves an element of surprise prejudicial to the
defendant’s efforts to prepare his defense, or precludes the defendant from
anticipating the prosecution's proof, or impairs a substantial right.’” Id.quoting Commonwealth v. Pope, 317 A.2d 887, 890 (Pa. 1974).
We further find the recent commentary of our Court to be instructive.
We stated as follows.
It is the duty of the prosecution to “fix the date when
an alleged offense occurred with reasonable
certainty.” Commonwealth v. Jette, 818 A.2d
533, 535 (Pa. Super. 2003) (citation omitted). The
purpose of so advising a defendant of the date when
an offense is alleged to have been committed is to
provide him with sufficient notice to meet the
charges and prepare a defense. Commonwealth v.
Gibbons, 784 A.2d 776 (Pa. 2001).
However, “due process is not reducible to a
mathematical formula,” and the
Commonwealth does not always need to prove
a specific date of an alleged crime.
Commonwealth v. Devlin, 333 A.2d 888,
892 (Pa. 1975)…. Permissible leeway regarding
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the date provided varies with, inter alia, the
nature of the crime and the rights of the
accused. See Pa.R.Crim.P. 560(B)(3), stating
that it shall be sufficient for the
Commonwealth to provide in the information, if
the precise date of an offense is not known, an
allegation that the offense was committed on
or about any date within the period fixed by
the statute of limitations.
Commonwealth v. Koehler, 914 A.2d 427, 436
(Pa. Super. 2006).
Commonwealth v. Riggle, 119 A.3d 1058, 1069-70 (Pa. Super. 2015)
(parallel citations omitted). Instantly, the trial court referenced the policy
and rationale where “the purpose of so advising a defendant of the date
when an offense is alleged to have been committed is to provide him with
sufficient notice to meet the charges and prepare a defense.” Id. Our
review of the record confirms that Appellant had sufficient notice to meet the
charges and prepare a defense, which he in fact did present at the March 10,
2015 bench trial. We thus find no abuse of discretion by the trial court, and
reject Appellant’s weight claim.
In his second issue, Appellant assails the sufficiency of the evidence,
and repeats his argument concerning the November 10, 2013 date in the
information relative to the December 16 and 21, 2013 dates.
It is well-settled that when reviewing a sufficiency of the evidence
claim, this Court must review the evidence and all reasonable inferences in
the light most favorable to the Commonwealth as the verdict winner, and we
must determine if the evidence, thus viewed, is sufficient to enable the fact-
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finder to find every element of the offense beyond a reasonable doubt.
Commonwealth v. Goins, 867 A.2d 526, 527-528 (Pa. Super. 2004)
(citations omitted). “The fact-finder is free to believe all, part, or none of
the evidence presented[, t]his Court may not substitute its judgment for that
of the fact-finder, and if the record contains support for the verdict, we may
not disturb the verdict.” Id. (citations omitted). “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).
Movable property is defined as “[p]roperty the location of which can be
changed.” 18 Pa.C.S.A. § 3901.
Here, the trial court recognized that Appellant’s sufficiency argument
was “based on the date contained in the information.” Trial Court Opinion,
8/11/15, at 7. In rejecting Appellant’s claim, the trial court stated, “the
verdict was based on th[e] evidence and not the date contained in the
information.” Id. at 8. Given the facts of record and applicable standard of
review, we apply our analysis of Appellant’s weight claim to his sufficiency
claim, and find no abuse of discretion where there was sufficient evidence to
support the trial court’s verdict.
Accordingly, we decline to grant Appellant relief on his weight and
sufficiency claims, and affirm the April 29, 2015 judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2016
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