Com. v. Cwienk, G. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEORGE CWIENK :
:
Appellant : No. 1719 EDA 2018
Appeal from the Judgment of Sentence June 4, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0009136-2016
BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 19, 2019
George Cwienk, III, appeals from the judgment of sentence imposed on
June 4, 2018, in the Court of Common Pleas of Montgomery County, after he
was convicted of Stalking, 18 Pa.C.S.A. § 2709.1(a)(2), and the summary
offense of Harassment, 18 Pa.C.S.A. § 2709(a)(3). After a three-day trial, the
jury found Cwienk guilty of the Stalking charge, and the trial judge found him
guilty of the summary charge. Cwienk received a sentence of three to 23
months' incarceration, work release eligible, with a consecutive sentence of
three years' probation.
In this timely appeal, he claims there was insufficient evidence to convict
him of Stalking. In his next two issues, he contends that the trial court
erroneously admitted (1) evidence of call logs and screen shots from his phone
and (2) evidence of a pattern of his prior bad acts, typically referred to as Rule
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404(b) evidence. After a thorough review of the submissions by the parties,
relevant law, and the certified record, we affirm on the issue of sufficiency of
evidence. The second two issues have not been properly preserved for
appellate review, and they are therefore waived.
The disturbing underlying facts of this matter, as developed at trial, are
taken from the trial court's November 15, 2018, Pa.R.A.P. 1925(a) opinion.
In August 2016, April Cwienk, Defendant's wife who
is the victim in this case separated from Defendant and
filed for divorce. Defendant, to whom Ms. Cwienk had been
married for 18 years, had been jealous and controlling of
her throughout the entire course of their relationship;
alienating her from her family and restricting any attempts
she made to see her friends. Defendant's conduct grew
increasing[ly] controlling and alarming in June 2016, when
he began suspecting her of having an affair. Despite
requiring his wife to call him several times from morning
to night throughout the day to keep him abreast of her
whereabouts during this period, he often interrogated her
in their garage in the evenings about her comings and
goings. In the terrifying episode which ultimately prompted
Ms. Cwienk to flee the marital home located in Montgomery
County, Pennsylvania, Defendant met her at a bank
parking lot, accused her of using an old cell phone found
while rummaging through her belongings earlier that day
while she was at work, to surreptitiously communicate with
her "boyfriends," as he would refer to them. Defendant
ignored his wife's explanation that the cell phone in
question was that of her 90 year-old grandmother for
whom she had helped set up the phone, and irately
demanded his wife turn over her cell phone to him for
inspection. As Defendant became increasingly angry, Ms.
Cwienk opted to flee the bank parking lot for her home.
Once home, Defendant continued his rampage, menacingly
wielding a boulder from the couples' driveway while
threatening to smash her car window if she refused to hand
over her cell phone. It was at that point that Ms. Cwienk
left the martial residence, and ultimately spent the week
in a hotel.
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Ms. Cwienk's absence, however, was short-lived as
she returned out of fear for her safety and concern that,
consistent with Defendant's relentless and terrifying
threats during her absence, she would lose her family.
Upon her return, she learned that Defendant had burned
her clothes and her yearbook. Defendant even went so far
as to compel her to take a lie detector test to substantiate
her assertion that she had never cheated on him. Ms.
Cwienk testified that upon her return, Defendant's conduct
was even more controlling, and now, in addition, he
seemed psychologically unstable and paranoid.
The last occasion in which Ms. Cwienk spoke to
Defendant occurred on or about August 22, 2016, when
she made the decision to leave the marital home
permanently. Then, during the period between September
21st and October 10th 2016, Defendant engaged in a
course [of] conduct which precipitated the underlying
charges. More specifically, he stalked Ms. Cwienk by
sending her harassing text messages and letters, calling
her (cell phone) at all hours of the night, leaving strange
and unnerving voicemail messages, and hacking into
several of her personal accounts. Terrified and exhausted
by the breadth of Defendant's relentless assault spanning
multiple mediums, rendering her vulnerable at all times of
day and night, Ms. Cwienk described this period as a
"nightmare," in which she lost hope that Defendant's
assault would ever stop.
Ms. Cwienk first reported Defendant's behavior to
the Upper Merion Police Department on September 25,
2016, when she went to the station and filed a police
report. Upon receipt of Ms. Cwienk's report, Detective
Constance Marinello ("Det. Marinello") began an
investigation. During the course of her investigation, and
after Ms. Cwienk's initial police report, Ms. Cwienk returned
to the police station approximately one week later, not only
feeling helpless and exasperated by Defendant's relentless
course of conduct, but afraid for her life.
Trial Court Opinion, 11/15/18, at 1-3.
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Cwienk first argues the evidence was insufficient to support his
conviction for stalking. When considering a challenge to the sufficiency of the
evidence, “we must view the evidence, and all reasonable inferences drawn
therefrom, in the light most favorable to the Commonwealth as verdict winner
and determine whether the jury could find every element of the crime beyond
a reasonable doubt.” Commonwealth v. Romero, 722 A.2d 1014, 1020 (Pa.
1999). Any question of doubt is for the factfinder, unless the evidence is so
weak and inconclusive that as a matter of law no probability of fact can be
drawn from the combined circumstances. Commonwealth v. Ketterer, 725
A.2d 801, 804 (Pa.Super. 1999). Additionally, this Court has observed that:
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 trial record must be
evaluated and all evidence actually received must be
considered. Finally, the trier 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. Foreman, 797 A.2d 1005, 1011 (Pa.Super. 2002),
quoting Commonwealth v. Dellavecchia, 725 A.2d 186, 188 (Pa.Super.
1998).
Cwienk claims that his stalking conviction cannot stand because there
was no proof that he was the one who actually texted and sent the distressing
materials to the victim. We find this assertion utterly baseless because, as the
trial court observed, Cwienk was the only person who had possession of these
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materials. See N.T., Jury Trial, 2/28/18, at 33, 35. Not coincidentally, these
messages were sent to the victim at the same time that he constantly
lamented the demise of their relationship, always blaming their breakup on
the victim’s infidelity. See id., at 26-29, 35. Moreover, the victim testified
that eventually she received similar messages from a number which she
recognized as one of Cwienk’s cellphone numbers, signed by either “Sincerely,
Ted Cwienk, III” or “With Love, Ted Cwienk, III.” See id., at 56-59. Therefore,
viewed in the light most favorable to the Commonwealth as verdict winner,
the evidence was sufficient to allow the fact-finder to conclude that Cwienk
was the person communicating with the victim. Cwienk’s first issue on appeal
merits no relief.
In his last two issues, Cwienk argues that the trial court erroneously
admitted evidence offered by the Commonwealth. However, our review of the
certified record reveals that not only did Cwienk not object to the admission
of this evidence, he actually stipulated to its admissibility, reserving only his
right to contest how the jury should weigh the stipulated evidence.
On the first day of trial, February 27, 2018, the Commonwealth was
represented by Assistant District Attorney Nicholas Beeson and Cwienk by
Attorney Laurence A. Narcist, III. Prior to the jury entering the courtroom, the
following colloquy took place:
MR. BEESON: Good morning, Judge. Nick Beeson on behalf
of the Commonwealth.
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This is the matter of the Commonwealth v. Cwienk,
docketed at 9136 of 2016. At this point, this is still going
to be a jury trial, Your Honor. Pretrial negotiations have
failed to this point, and the defendant would like to proceed
to a jury trial.
There are three pretrial matters that I believe we
need to discuss. There's a 404(b) motion that was filed by
my office, a Rule 600 motion which was filed by the
defense, and then also we have stipulations for you to
consider about the evidence in this case.
THE COURT: Okay.
MR. BEESON: Initially, Your Honor, the stipulation that
we've agreed to -- defense can correct me if any of this is
incorrect. There are essentially three batches of evidence
that the Commonwealth is going to put forward. It involves
text messages, it involves call detail records, and it
involves screen shots from the Credit Karma website, as
well as the T-Mobile website.
My understanding is that the defense is not objecting
to the admissibility of any of those, which will be contained
in a PowerPoint.
MR. NARCISI: Shall we do --
THE COURT: Yes.
MR. NARCISI: That is correct, Your Honor. There is no issue
as far as the admissibility. Obviously, weight will be left up
to the fact finder.
THE COURT: Okay.
MR. BEESON: Regarding the 404(b) motion, Your Honor,
we have an agreement that [the] parties will be permitted
to discuss the relationship between the victim and the
defendant, roughly between June of 2016 up until the
incident date. That will obviate the need to litigate the
404(b) motion, because both parties will be happy with
what they're able to address.
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THE COURT: Just so we're clear. The Commonwealth will
be permitted to introduce any – for lack of a better word -
- prior bad acts from June 2016 - to the time of the
incidents in question. Is that accurate?
MR. NARCISI: Except for the characterization, Your Honor.
Whatever course of conduct there was. Obviously, prior
bad acts would be for the purposes of [establishing] -- for
context, Judge, to essentially give the jury a fairer
understanding of the circumstances leading up to these
incidents.
THE COURT: Okay.
N.T., Jury Trial, 2/27/18, at 1-2. Therefore, there was a clear stipulation to
the admissibility of the evidence of which Cwienk now complains.
Furthermore, when April Cwienk was on the witness stand, there were
no objections to any testimony that could be even remotely considered “bad
acts” evidence. N.T., Jury Trial, 2/28/18, at 21-30. Finally, on February 28,
2018, after the Commonwealth had completed its direct examination of April
Cwienk, and the Commonwealth moved its exhibits into the record, the
following exchange occurred:
MR. BEESON: Your Honor, as I proceed forward with my
direct, I have Exhibits 1 through 50 of the Commonwealth,
that we stipulated to pretrial. I'd like to move them into
evidence. They are marked.
THE COURT: Any objection, Mr. Narcisi?
MR. NARCISI: No objection.
THE COURT: Ladies and gentlemen, by stipulation, what
you are to understand from that is that the defense has
agreed to the admissibility of these exhibits, so that we
need not go through moving for admission and determining
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admissibility. They’ve stipulated to them. So they are
admissible in evidence.
Id. at 30-31.
Upon review, we find that Cwienk’s last two issues have been waived
because he not only failed to raise a timely objection at trial, but actually
stipulated to the admissibility of this evidence. “The absence of a
contemporaneous objection below constitutes a waiver of the claim on
appeal.” Commonwealth v. Rodriguez, 174 A.3d 1130, 1145 (Pa. Super.
2017). Our Supreme Court has stated:
[I]t is axiomatic that issues are preserved when objections
are made timely to the error or
offense. See Commonwealth v. May, [ ] 584 Pa. 640,
887 A.2d 750, 761 ([Pa.] 2005) (holding that an “absence
of contemporaneous objections renders” an appellant's
claim waived); and Commonwealth v. Bruce, [ ] 207
Pa.Super. 4, 916 A.2d 657, 671 ([Pa. Super.]
2007), appeal denied, [ ] 593 Pa. 754, 932 A.2d 74 ([Pa.]
2007) (holding that a “failure to offer a timely and specific
objection results in waiver of” the claim). Therefore, we
shall consider any issue waived where Appellant failed to
assert a timely objection.
Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008).
Similarly, this Court has stated:
Our Pennsylvania Rules of Appellate Procedure and our
case law provide the well-established requirements for
preserving a claim for appellate review. It is axiomatic that
“[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a). “The absence of a contemporaneous objection
below constitutes a waiver” of the claim on
appeal. Commonwealth v. Powell, [ ] 598 Pa. 224, 956
A.2d 406, 423 ([Pa.] 2008); Tindall v. Friedman, 970
A.2d 1159, 1174 (Pa. Super. 2009) (“On appeal, we will
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not consider assignments of error that were not brought to
the tribunal's attention at a time at which the error could
have been corrected or the alleged prejudice could have
been mitigated.”) (citation omitted)).
Commonwealth v. Smith, 213 A.3d 307, 309 (Pa. Super. 2019) quoting
Rodriguez, 174 A.3d at 1144–45. We further note that where an appellant
includes an issue in his Pa.R.A.P. 1925(b) statement, such inclusion does not
“resurrect” a waived claim. Id. at 1145 n.6 (citing Steiner v. Markel, 600
Pa. 515, 968 A.2d 1253 (2009)).
In order to avoid the consequences of waiver, Cwienk contends that the
Supreme Court’s decision in Commonwealth v. Eichinger, 108 A.3d 821(Pa. 2014) requires us to review these two issues. In Eichinger, in the context
of post collateral relief proceedings, the Supreme Court held that if a
defendant enters into a stipulation of evidence which virtually assures his
conviction, the stipulation must be accompanied by a colloquy evidencing that
the defendant made a knowing and voluntary decision. See id., at 832. This
is because such a stipulation is functionally the same as a guilty plea. See id.
Here, Cwienk argues that the stipulated exhibits and the bad acts
evidence essentially assured his conviction, and as such, the trial court should
have conducted a colloquy to make sure that he understood the ramifications
of this evidence coming before the jury. “There is nothing on the record to
indicate that Mr. Cwienk knew or understood what Mr. Narcisi[] had done and
the consequences of the same.” Brief for Appellant, at 24.
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Initially, we note that both Eichinger and the earlier decision upon
which it was based, Commonwealth v. Davis, 322 A.2d 103 (Pa. 1974),
were post-conviction relief cases. Therefore, there is a serious challenge as
to whether this argument is properly before the Court at this time. On its
face, this could be considered a claim of ineffective assistance of counsel,
which must be deferred until collateral review. See Commonwealth v.
Holmes, 79 A.3d 562, 576 (Pa. 2013).
However, instantly, the stipulations entered on behalf of Cwienk were
made on the record in his presence. Cwienk was also present during the direct
examination of April Cwienk, and was present when counsel raised no
objection to the admission of the exhibits at the conclusion of April Cwienk’s
direct examination. An inference must be drawn that Cwienk’s silence during
these stages of the trial demonstrated his acquiescence in trial counsel’s
strategy.
Moreover, the stipulations were to admissibility only; Cwienk’s trial
counsel vigorously contested the relevance and weight of this evidence before
the jury. Counsel strenuously argued to the jury that Cwienk was not the one
who sent the troubling text messages or placed the cell calls. See N.T., Jury
Trial, 3/1/18, at 10-14. Great efforts were made on Cwienk’s behalf to
convince the jury that someone other than Cwienk was the culprit behind the
harassing test messages and calls.
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By no means did the stipulations virtually assure his conviction. The
verdict in this case rested upon the jury’s determination of credibility after
hearing vastly different versions of the underlying facts. Therefore, we find
Eichinger to be inapposite to the proceedings in this case.
Finding no error in the trial court’s handling of this case, we affirm. On
a final note, we commend the trial court for a well-written and comprehensive
opinion filed in accordance with Pa.R.A.P. 1925(a) on November 15, 2018.
Judgment of Sentence affirmed.
President Judge Emeritus Ford Elliott joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/19
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