Com. v. DeGeorge, S. ( 2015 )

J-S47041-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHANNON DEGEORGE, :
:
Appellant : No. 2054 MDA 2014
Appeal from the Judgment of Sentence Entered July 2, 2014,
in the Court of Common Pleas of Lebanon County,
Criminal Division, at No(s): CP-38-CR-0000655-2013
BEFORE: ALLEN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 14, 2015
Shannon DeGeorge (Appellant) appeals from the judgment of sentence
imposed following his conviction for robbery. We affirm.
On February 13, 2013, Appellant was charged with the February 11,
2013 robbery of the Metro Bank in Lebanon, Pennsylvania. This robbery was
believed to be connected to two earlier robberies, perpetrated by the same
individual, that occurred in Berks County on February 6 and 8, 2013.
Appellant pled guilty to the Berks County cases on September 18, 2013, and
was sentenced to three and a half to seven years’ incarceration.
Trial in the instant case was scheduled for May 5, 2014. On April 29,
2014, the Commonwealth filed notice pursuant to Pa.R.E. 404(b), indicating
its intent to introduce evidence of certain prior bad acts during its case-in-
chief. Prior to trial, the court heard argument with respect to the
*Retired Senior Judge assigned to the Superior Court.
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Commonwealth’s motion. At that time, the trial court granted the
Commonwealth’s motion in part, ruling that the factual details of the Berks
County robberies were admissible, but indicating that the jury would not be
told of Appellant’s guilty pleas to those offenses unless he opened the door
to the issue during his testimony. N.T., 5/5/2014, at 1-6.
On May 8, 2014, following a jury trial, Appellant was convicted of the
aforementioned offense. On July 2, 2014, Appellant was sentenced to a
term of three to ten years’ incarceration. The sentence was directed to run
consecutively to all other sentences Appellant was then serving. Appellant
filed timely post-sentence motions, which were denied on October 30, 2014.
This timely appeal followed. Both Appellant and the trial court complied with
the mandates of Pa.R.A.P. 1925.
Appellant raises four issues for our review.
I. Did the Commonwealth fail to present sufficient evidence at
trial to prove beyond a reasonable doubt that Appellant was the
person who robbed the Metro Bank on February 11, 2014?
II. Did the jury place too great a weight on the identification
testimony of [Ms.] Aponte and [Ms.] Hartz that Appellant was
the person [who] robbed the Metro Bank on February 11, 2014?
III. Did the [trial court] err in granting the Commonwealth’s
404(b) Motion to introduce testimony at trial that Appellant was
a suspect in two (2) different bank robberies on February 6,
2014 and February 8, 2014 and the underlying facts of those
robberies?
IV. Did the [sentencing court] commit a manifest abuse of
discretion by sentencing Appellant in the aggravated range, and
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running Appellant’s sentence consecutive to any other sentence
Appellant was serving at the time?
Appellant’s Brief at 4 (suggested answers omitted).
We begin by addressing Appellant’s argument that the evidence was
insufficient to support his conviction for robbery under 18 Pa.C.S.
§ 3701(a)(1)(vi). Our standard of review is as follows:
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. Harden, 103 A.3d 107, 111 (Pa. Super. 2014)
(citations and quotations omitted).
The statute under which Appellant was convicted provides, in relevant
part, that “[a] person is guilty of robbery if, in the course of committing a
theft, he … takes or removes the money of a financial institution without the
permission of the financial institution by making a demand of an employee
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of the financial institution orally or in writing with the intent to deprive the
financial institution thereof[.]” 18 Pa.C.S. § 3701(a)(1)(vi). A “financial
institution” is defined as a “bank, trust company, savings trust, credit union
or similar institution.” Id. at (a)(3).
Appellant contends that his conviction should be reversed because
… the Commonwealth failed to present any physical evidence in
the form of fingerprints, clothing, or money that [Appellant]
committed the robbery, and of the four Commonwealth
witnesses who testified at trial only two identified [Appellant],
and those two witnesses acknowledged they only interacted with
the robber for a short period of time and portions of the
robber[‘]s facial features were not visible.
Appellant’s Brief at 12.
The Commonwealth presented the following evidence at trial.
Kaitlin Aponte (hereinafter “Ms. Aponte”) was employed as
a bank teller at the Metro Bank on East Cumberland on February
11, 2013. On that date, a man was standing at the check writing
station “for a little — for a while.” As soon as the man turned
around and walked to the teller line, Ms. Aponte said “I can
assist you here.” The man handed Ms. Aponte a deposit ticket,
and she looked behind the ticket and it had a note on it telling
her to give [him] all the money. The note stated, “No dye pack,
tracking chips. All [$$], start with big bills on desk, nobody
hurt.” She asked the man if he was serious, and “He told me,
yes, just give me all your money.” Ms. Aponte gave him all of
her strapped money, and asked him if that was all, to which he
responded “yes.” The man left the bank, and ran off in the
street. Ms. Aponte described the man’s voice as soft and deep
toned. Ms. Aponte identified [Appellant] as the individual. It was
ultimately determined that Ms. Aponte’s drawer was short
$2,637.57. [The man Ms. Aponte observed on] the date of the
robbery[] was wearing a dark sweatshirt and gloves. The man
had a beanie right above his eyebrows. The man had a dark
brown, full beard that went up a little bit on his cheeks, and he
had a little bit of a mustache. After the robbery, a photo lineup
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was shown to Ms. Aponte where she was able to select
[Appellant] out of the lineup. She was not 100% sure, but she
was “pretty sure” that he was the man. When she was finished,
she did not tell anybody else in the bank who[m] she had
selected. When asked if it was difficult to make out all the facial
features of the person that committed the robbery, Ms. Aponte
responded, “I remember his face. His face was out.”
Amber Hevel (hereinafter “Ms. Hevel”) was also employed
at the same branch on the same day. Ms. Hevel remembered the
man wearing boots, jeans, a sweatshirt, gloves, and a beanie.
The man went to the check writing station, then went up to Ms.
Aponte. Ms. Hevel only remembered Ms. Aponte saying “all of
it.” She then heard the man mumble “hurry.” Ms. Hevel never
looked at the man’s face. Ms. Hevel thought the man was about
6 foot tall and 200 pounds. The man appeared to be light
skinned. Ms. Hevel also looked at the photo lineup, but she was
not able to identify anyone.
Erika Perez (hereinafter “Ms. Perez”) was employed at the
same branch on the same date as a customer service
representative. Ms. Perez saw a man come in, go to the check
writing station, then go up to where the tellers were. The man
appeared to be nervous and was looking over his shoulder. The
man asked a co-worker what the date was. The man was
wearing a dark hoodie with the hood up, and he also had dark
pants. Ms. Perez did not recall if the man was wearing gloves.
She thought he was 6 foot and 200 pounds. The man looked
about 30. He was light skinned. Ms. Perez did not recall any
facial hair. Ms. Perez could not identify anyone in the photo
lineup.
Lachan Hartz (hereinafter “Ms. Hartz”) is a teller who was
working at the bank on February 11, 2013. Ms. Hartz was
outside of the bank when the robbery took place. Prior to leaving
the bank for lunch, Ms. Hartz noticed a male at the check
cashing station that asked her what the date was. Ms. Hartz was
provided the photo lineup and identified [Appellant]. At trial, Ms.
Hartz identified [Appellant] as that individual.
Christopher Mayer (hereinafter “Mr. Mayer”), a Criminal
Investigator for the City of Reading Police Department, testified
to two bank robberies that occurred on February 6, 2013 and
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February 8, 2013 at the Citizens Bank in Reading. Photographs
were obtained from the video surveillance from these robberies.
Mr. Mayer testified that [Appellant] was the individual that was
ultimately determined to be the individual in the surveillance
video.
Sergeant Johnathan Hess (hereinafter “Sergeant Hess”)
was in charge of the investigation of the robbery on February 11,
2013. A daily report is circulated throughout various law
enforcement agencies in the state, and Sergeant Hess learned
about the robberies in Reading in this report. Sergeant Hess
contacted Mr. Mayer, and Mr. Mayer provided the name of
[Appellant]. Based off this information, the photo lineup was
compiled. The [women present during the Metro Bank robbery]
were taken into a private room one at a time at the bank [to
look] at the photo lineup. Sergeant Hess testified that only Ms.
Aponte and Ms. Hartz identified [Appellant] when he showed
them the photo lineup. The identification made by Ms. Hartz was
“relatively quick and she identified him with a hundred percent
certainty.’’ None of the [women] identified another individual
other than [Appellant]. [Sergeant] Hess noticed when Ms.
Aponte exited the conference room, Ms. Hartz entered the room,
and they did not have any time to speak to each other.
[Appellant] testified that he did not commit the robbery at
the Metro Bank on February 11, 2013, but he was at home at his
residence in Reading all day. [Appellant] also testified that he did
not commit the robberies in Reading, and the only reason he
pled guilty to [those] robberies was to receive a lower sentence
pursuant to a plea deal. He testified, “... [I]t was an easy choice,
not have to do anymore time and plead guilty, and/or fight it
and risk getting two and a half to ten years extra.”
Trial Court Opinion, 10/30/2014, at 1-4 (citations omitted).
When this evidence is viewed in the light most favorable to the
Commonwealth as the verdict winner, we cannot agree that it is unreliable
and speculative as claimed by Appellant. Two eyewitnesses who had the
opportunity to observe the robber closely identified Appellant. Such
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testimony, if believed by the jury, was sufficient to identify Appellant as the
perpetrator. See, e.g., Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa.
Super. 2006). Thus, we agree with the trial court that the evidence
presented was sufficient for the jury to conclude beyond a reasonable doubt
that Appellant, “in the course of committing a theft, took money from Metro
Bank without the bank’s permission by making a demand of Ms. Aponte, a
bank employee, both orally and in writing with the intent to deprive the bank
of the money.” Trial Court Opinion, 10/30/2014, at 7. Accordingly,
Appellant’s first issue is without merit.
Appellant next challenges the weight of the evidence. Appellant’s Brief
at 12-13.
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of whether
the verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against
the weight of the evidence. One of the least assailable reasons
for granting or denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the interest of
justice.
However, the exercise of discretion by the trial court in
granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is not unfettered. The
propriety of the exercise of discretion in such an instance may be
assessed by the appellate process when it is apparent that there
was an abuse of that discretion.
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Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal
citations omitted).
Appellant argues that the jury placed improper weight on the
testimony of Ms. Hartz and Ms. Aponte, emphasizing the limited timeframe
in which the women had to observe the robber and Ms. Aponte’s uncertainty
during the photo lineup. Appellant’s Brief at 13. “When, [as here], the
challenge to the weight of the evidence is predicated on the credibility of …
testimony, our review of the trial court’s decision is extremely limited.”
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009). Generally,
unless the evidence is so unreliable or contradictory as to make any
adjudication based thereon pure conjecture, these types of claims are
meritless on appeal. Id.
The jury, sitting as the finder of fact in the present case, was free to
evaluate and weigh all the testimony presented, especially related to the
credibility of the witnesses. While Appellant offered a conflicting version of
events from that testified to by the eyewitnesses at the bank, the jury found
the testimony of the Commonwealth’s witnesses with respect to the
identification of Appellant to be credible. The jury is “free to believe all,
part, or none of the evidence and to determine the credibility of the
witnesses.” Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super.
2003). Moreover, the trial court did not find that verdict was so contrary to
the evidence as to shock one’s sense of justice. Trial Court Opinion,
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10/30/2014, at 9. Accordingly, we conclude that the trial court did not
abuse its discretion.
Appellant next claims that the trial court erred in granting the
Commonwealth’s Rule 404(b) motion because the Commonwealth failed to
provide reasonable notice prior to trial, as required by the Rule. Appellant’s
Brief at 13-14.1 Appellant failed to preserve this issue by objecting to the
alleged lack of notice at the pre-trial hearing. Moreover, Appellant failed to
raise this issue in his 1925(b) statement. Accordingly this claim is waived.
Pa.R.A.P. 302(a) (providing that issues which were not raised before the trial
court are waived and may not be raised for the first time on appeal).
Appellant’s final claim challenges the discretionary aspects of his
sentence. It is well-established that a criminal defendant does not have an
absolute right to challenge the discretionary aspects of his sentence on
appeal. See Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super.
2003). Before we may reach the merits of a challenge to the discretionary
aspects of sentencing, we must be satisfied that: (1) the appeal is timely
filed; (2) the appellant has preserved his issues; and (3) the appellant has
included in his brief a Pa.R.A.P. 2119(f) concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
1
Appellant’s argument on this point is confined to the lack of reasonable
notice. He does not challenge the propriety of the trial court’s ruling on the
substance of the motion, accordingly we will not address that ruling on
appeal.
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of sentence. Furthermore, the concise statement must raise a substantial
question that the sentence is inappropriate under the sentencing code. See
Commonwealth v. Corley, 31 A.3d 293, 295-96 (Pa. Super. 2011).
The instant appeal was timely filed. Additionally, Appellant has
preserved his claim in a timely filed post-sentence motion, and he has
included in his brief a Rule 2119(f) statement. Accordingly, we must
determine whether Appellant has raised a substantial question for our
review.
“The determination of whether a substantial question exists must be
determined on a case-by-case basis.” Commonwealth v. Hartman, 908
A.2d 316, 320 (Pa. Super. 2006) (citation omitted). “A substantial question
exists where an appellant advances a colorable argument that the
sentencing judge’s actions [were] either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Id. (quoting Commonwealth v.
Koren, 646 A.2d 1205, 1208-1209 (Pa. Super. 1994)).
Appellant contends that the sentencing court failed to place on the
record sufficient reasons to warrant the imposition of an “aggravated range”
sentence, and contends that the court committed an abuse of discretion by
imposing the instant sentence consecutive to any he was already serving.
Appellant’s Brief at 9. “The imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
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extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.”
Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa. Super. 2012) (en
banc) (citation omitted)(emphasis added). Further, this Court has held that
claims that the sentencing court imposed a sentence outside the standard
guidelines without stating adequate reasons on the record presents a
substantial question. See Commonwealth v. Robinson, 931 A.2d 15, 26
(Pa. Super. 2007).
Instantly, contrary to Appellant’s argument, the sentence imposed falls
at the bottom of the standard guideline range. Trial Court Opinion,
10/30/2014, at 14-15. Moreover, given the trial court’s consideration of the
serious nature of the crimes committed in this case, of Appellant’s prior
record as a repeat offender, and of the pre-sentence investigation report2
prepared in this matter, we do not believe Appellant’s consecutive sentence
appears, on its face, manifestly excessive. Accordingly, we find that
Appellant has failed to raise a substantial question for our review, and we
affirm his judgment of sentence.
2
“Where the sentencing court had the benefit of a presentence investigation
report, we can assume the sentencing court was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (internal quotes and citations
omitted).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2015
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