Com. v. Normand, T. ( 2015 )

J-S10042-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TASHAUN NORMAND
Appellant No. 2133 EDA 2014
Appeal from the Judgment of Sentence January 14, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002847-2011
BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 18, 2015
Appellant, Tashaun Normand, appeals from the judgment of sentence
entered in the Monroe County Court of Common Pleas, following his jury trial
convictions of forgery, four counts of access device fraud, unlawful use of a
computer, criminal use of a communication facility, and identity theft. 1 We
affirm.
The trial court’s Rule 1925(a) opinion sets forth the relevant facts and
procedural history of this case as follows:
In September of 2011, [Appellant] was charged with the
crimes for which he was convicted, all of which stemmed
directly or indirectly from the unauthorized use of credit
____________________________________________
1
18 Pa.C.S.A. §§ 4101(a)(2), 4106(a)(1)(ii), 7611(a)(1), 7512(a), and
4120(a), respectively.
_________________________
*Retired Senior Judge assigned to the Superior Court.
J-S10042-15
cards and credit card information. Prior to trial,
[Appellant] filed an omnibus pre-trial motion seeking
dismissal of this case based on the Commonwealth’s
alleged violation of his right to a speedy trial, preclusion of
testimony regarding what a witness observed on a Lowe’s
surveillance video, and habeas corpus relief. …
On October 23, 2013, following a three-day jury trial,
[Appellant] was convicted of [forgery, four counts of
access device fraud, unlawful use of a computer, criminal
use of a communication facility, and identity theft]. He
was acquitted of an additional count of [access device
fraud].
On January 14, 2014, [the court] sentenced [Appellant],
who had a substantial prior record, to an aggregate period
of incarceration in a State Correctional Institution of not
less than 5 years nor more than 10 years. [Appellant] was
deemed ineligible for the RRRI program due to a prior
conviction for battery.
On January 24, 2014, through his trial counsel, [Appellant]
timely filed a post-sentence motion. New counsel was
then appointed due to a conflict that arose when trial
counsel joined the Monroe County Public Defenders’ Office.
A hearing on the motion was scheduled far enough out to
allow [Appellant’s] new attorney to become familiar with
the case. The hearing was then continued [twice] at the
request of new counsel to give him more time to prepare.
(Rule 1925(a) Opinion, filed September 29, 2014, at 1-2) (internal citations
omitted). On July 16, 2014, the court conducted a hearing on Appellant’s
post-sentence motion, which the court denied that same day. Appellant
timely filed a notice of appeal on July 17, 2014.2 On July 22, 2014, the
____________________________________________
2
“A direct appeal in a criminal proceeding lies from the judgment of
sentence.” Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super.
(Footnote Continued Next Page)
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court ordered Appellant to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on
July 23, 2014.
Appellant raises the following issues for our review:
WHETHER THE [TRIAL] COURT ERRED IN FAILING TO
DISMISS THE CASE AGAINST APPELLANT PURSUANT TO
PA.R.CRIM.P. 600.
_______________________
(Footnote Continued)
2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). If a defendant in
a criminal case files a timely post-sentence motion, the notice of appeal shall
be filed within 30 days of the entry of the order deciding the motion.
Pa.R.Crim.P. 720(A)(2)(a). The denial of a timely post-sentence motion
becomes the triggering event for filing a notice of appeal. Pa.R.Crim.P.
720(A)(2). Generally, where a defendant timely files a post-sentence
motion, the court shall decide the motion within 120 days of the filing;
otherwise, the motion shall be deemed denied by operation of law. See
Pa.R.Crim.P. 720(B)(3)(a). A clerk of courts’ failure to enter an order
stating a post-sentence motion has been denied by operation of law and to
furnish the parties with a copy of the order, however, constitutes a
breakdown in the court system. Commonwealth v. Braykovich, 664 A.2d
133, 138 (Pa.Super. 1995). Such a breakdown warrants extension of the
appeal period or the grant of an appeal nunc pro tunc. Id. Instantly, the
record makes clear Appellant timely filed his post-sentence motion on
January 24, 2014. Nevertheless, the court did not hold a hearing until July
16, 2014, which was outside 120 days of the filing of Appellant’s motion (no
extension was requested). Thus, the post-sentence motion was deemed
denied by operation of law. Moreover, the clerk of courts failed to enter a
Rule 720(B)(3)(c) order on behalf of the court, which constitutes a
breakdown in the court system. See id. The court eventually denied the
post-sentence motion after the hearing on July 16, 2014. Therefore, we will
treat the July 16, 2014 order as a Rule 720(B)(3)(c) order solely for
purposes of the date on which this appeal period began to run. Appellant
timely filed his notice of appeal on July 17, 2014, within the 30-day appeal
period, so we have no impediment to appellate jurisdiction. See Patterson,
supra (stating appellate court can raise issue of jurisdiction sua sponte).
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WHETHER THE [TRIAL] COURT ERRED BY ALLOWING A
WITNESS TO TESTIFY AT TRIAL REGARDING HIS
RECOLLECTION OF WHAT HE HAD SEEN ON A VIDEOTAPE,
DESPITE THE FACT THAT THE TAPE WAS NOT
INTRODUCED AS EVIDENCE, IN VIOLATION OF THE BEST
EVIDENCE RULE.
(Appellant’s Brief at 7).
In his first issue, Appellant argues his case should have been
dismissed pursuant to Pa.R.Crim.P. 600.3 Appellant claims the
Commonwealth failed to take any action to bring Appellant’s case to trial
within the time requirements of Rule 600. Specifically, Appellant alleges the
Commonwealth filed a criminal complaint against Appellant on September
20, 2011, and more than one year passed before Appellant entered his guilty
plea on October 22, 2012. Appellant contends the Commonwealth failed to
provide any evidence to explain why approximately thirteen months passed
without prosecution. Appellant also asserts the Commonwealth’s decision to
enter into a plea agreement and then refuse to abide by the terms of that
agreement with regards to sentencing forced Appellant to withdraw his guilty
plea. Appellant maintains his Rule 600 waiver is not relevant to the
____________________________________________
3
Appellant also argues the Commonwealth’s failure to bring his case to trial
within a timely fashion violates Appellant’s constitutional right to a speedy
trial. Nevertheless, Appellant failed to raise a constitutional claim in his Rule
1925(b) statement. Therefore, it is waived. See Commonwealth v.
Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (stating: “[a]ny
issues not raised in a [Rule] 1925(b) statement will be deemed waived”);
Commonwealth v. Berryman, 649 A.2d 961, 973 (Pa.Super. 1994)
(holding “[c]onstitutional issues…can be waived”).
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calculation of time from the date the Commonwealth filed the complaint
because Appellant executed the waiver after he withdrew his guilty plea
when the Rule 600 time had already expired. Appellant concludes this Court
should vacate his judgment of sentence and dismiss Appellant’s convictions.
We disagree.
“In evaluating Rule 600 issues, our standard of review of a trial court’s
decision is whether the trial court abused its discretion.” Commonwealth
v. Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004) (en banc), appeal denied,
583 Pa. 659, 875 A.2d 1073 (2005).
The proper scope of review…is limited to the evidence on
the record of the Rule 600 evidentiary hearing, and the
findings of the trial court. An appellate court must view
the facts in the light most favorable to the prevailing party.
Additionally, when considering the trial court’s ruling,
this Court is not permitted to ignore the dual
purpose behind Rule 600. Rule 600 serves two
equally important functions: (1) the protection of the
accused’s speedy trial rights, and (2) the protection
of society. In determining whether an accused’s
right to a speedy trial has been violated,
consideration must be given to society’s right to
effective prosecution of criminal cases, both to
restrain those guilty of crime and to deter those
contemplating it. However, the administrative
mandate of Rule 600 was not designed to insulate
the criminally accused from good faith prosecution
delayed through no fault of the Commonwealth.
* * *
So long as there has been no misconduct on the part
of the Commonwealth in an effort to evade the
fundamental speedy trial rights of an accused, Rule
600 must be construed in a manner consistent with
society’s right to punish and deter crime.
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Id. at 1238-39 (internal citations and quotation marks omitted).
The version of Rule 600 in effect at the relevant time of Appellant’s
case provided, in pertinent part:
Rule 600. Prompt Trial
* * *
(D)(1) When a trial court has granted a new trial and
no appeal has been perfected, the new trial shall
commence within 120 days after the date of the order
granting a new trial, if the defendant is incarcerated on
that case. If the defendant has been released on bail, trial
shall commence within 365 days of the trial court’s order.
Pa.R.Crim.P. 600(D)(1) (prior version).4 An order permitting an appellant to
withdraw his guilty plea “effectively grant[s] a new trial and commence[s]
an entirely new speedy trial date pursuant to Rule [600].” Commonwealth
v. Betz, 664 A.2d 600, 613-14 (Pa.Super. 1995) (citation omitted). To
obtain relief, however, a defendant must have a valid Rule 600 claim at the
time he files his motion for relief. Hunt, supra at 1243.
Instantly, the trial court’s omnibus opinion discussed Appellant’s Rule
600 claim as follows:
[T]he Commonwealth argues that, on its face, Rule 600
was restarted when [Appellant] was granted a new “trial”
on November 6, 2012, i.e. when [Appellant] was allowed
to withdraw his guilty plea. Thus, the grant of a new trial
extended the trial commencement period.
____________________________________________
4
A new version of Rule 600 went into effect on July 1, 2013, after the trial
court disposed of Appellant’s Rule 600 motion.
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In arguing that Rule 600 has been violated, [Appellant]
relies on both the timeframe before and after the
[withdrawal] of his guilty plea. [Appellant] counters that
he withdrew his guilty plea because of the
Commonwealth’s violation of their plea agreement. Thus,
says [Appellant], the Commonwealth should not be
allowed to benefit from its improper conduct. However,
[Appellant] asserts a violation of the plea agreement but
provides no evidence. The Commonwealth is required to
prove it acted with due diligence, not that it did not breach
any plea agreement. We cannot confirm or deny
[Appellant’s] allegation of a breach and we disregard his
argument insofar as it relies on that basis. As such, based
on the clear wording of Rule 600, the mechanical run date
restarted on November [6], 2012. …
Here, considering the extension of the rundate, the record
indicates [Appellant] executed a Rule 600 Waiver of the
time periods between January 3, 2013 and March 1, 2013.
[Appellant] also filed an Omnibus Motion on February 8,
2013; any time after this period is tolled for purposes of
Rule 600. On its face, the rundate has not yet elapsed.
(Omnibus Opinion, filed June 28, 2013, at 5-6) (internal footnotes omitted).
We accept the court’s conclusion. Appellant’s trial run date after the
withdrawal of his guilty plea was March 6, 2013. See Pa.R.Crim.P.
600(D)(1) (prior version); Betz, supra. Appellant filed his Rule 600
omnibus pretrial motion on February 8, 2013. Therefore, Appellant’s Rule
600 motion was premature when filed. See Hunt, supra at 1243 (stating
that to obtain relief, defendant must have viable Rule 600 claim when he
files his motion for relief). Accordingly, Appellant’s first issue merits no
relief.
In his second issue, Appellant argues Officer Dan Jones’ testimony
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about what he saw on the Lowe’s videotape violated the best evidence rule
because the video was not introduced at trial. Appellant contends Officer
Jones’ testimony was inadmissible secondary evidence, as Officer Jones did
not personally observe Appellant commit the crimes. Appellant alleges the
original videotape should have been produced but was stored in a manner
that resulted in the wrong video being turned over to the police. Appellant
maintains that allowing Officer Jones to testify on the content of the
videotape violates the best evidence rule because the video captured
Appellant committing the crimes, which was evidence material to the
Commonwealth’s case. Appellant concludes this Court should vacate and
remand for a new trial. We disagree.
An error at trial does not automatically entitle an appellant to a new
trial. Commonwealth v. Reese, 31 A.3d 708, 719 (Pa.Super. 2011) (en
banc). “[T]he harmless error doctrine, as adopted in Pennsylvania, reflects
the reality that the accused is entitled to a fair trial, not a perfect trial….”
Id. (quoting Commonwealth v. West, 834 A.2d 625, 634 (Pa.Super.
2003), appeal denied, 586 Pa. 712, 889 A.2d 1216 (2005)).
An error will be deemed harmless where the appellate
court concludes beyond a reasonable doubt that the error
could not have contributed to the verdict. If there is a
reasonable possibility that the error may have contributed
to the verdict, it is not harmless. In reaching that
conclusion, the reviewing court will find an error harmless
where the uncontradicted evidence of guilt is
overwhelming, so that by comparison the error is
insignificant.
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Commonwealth v. Mitchell, 576 Pa. 258, 280, 839 A.2d 202, 214-15
(2003).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Jonathan
Mark, we conclude Appellant’s second issue does not merit relief. The
court’s Rule 1925(a) opinion comprehensively discusses and properly
disposes of the question presented. (See Rule 1925(a) Opinion at 7)
(finding: Lowe’s loss prevention manager testified videotape was lost
through no fault of Commonwealth, and Lowe’s sent wrong footage to police
and recycled correct footage pursuant to Lowe’s standard thirty-day period
policy; when police discovered mistake it was too late because security
footage had been recycled; there was more evidence than just testimony
about what Officer Jones had seen on videotape, including signed document
from Lowe’s with Appellant’s signature of fictitious name, photograph from
camera showing Appellant at Lowe’s, and cardboard box at Appellant’s
residence related to Lowe’s transaction; this evidence was properly
admitted). The record supports the court’s decision; therefore, we see no
reason to disturb it. Moreover, the court properly determined any error that
resulted from the admission of testimony regarding the videotape was
harmless. Accordingly, we affirm Appellant’s second issue on the basis of
the court’s Rule 1925(a) opinion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2015
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COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEAL TH OF PENNSYLVANIA
Commonwealth of Pennsylvania 2847 Criminal 2011
v.
Tashaun Normand APPEAL NO. 2133 EDA 2014
OPINION IN SUPPORT OF ORDER PURUSANT TO PA. RAP 1925(a)
Defendant Tashaun Normand ("Normand") filed a timely appeal from the
Judgment of Sentence entered on January 14, 2014, following his jury trial
convictions for Forgery, four counts of Access Device Fraud, Unlawful Use of a
Computer, Criminal Use of a Communication Facility, and Identity Theft. After the
appeal was filed, we issued an order directing Normand to file a concise statement of
errors complained of on appeal pursuant to Pa. R.AP. 1925(b). Normand complied,
and we now file this opinion in accordance with Pa. RAP. 1925(a).
In September of 2011, Normand was charged with the crimes for which he
was convicted, all of which stemmed directly or indirectly from the unauthorized use
of credit cards and credit card information. Prior to trial, Normand filed an omnibus
pre-trial motion seeking dismissal of this case based on the Commonwealth's alleged
violation of his right to a speedy trial, preclusion of testimony regarding what a
witness observed on a Lowe's surveillance video, and habeas corpus relief. By
opinion and order dated June 28, 2013 (the "Prior Opinion"), the Honorable Stephen
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M. Higgins denied Normand's motion. We incorporate Judge Higgins' opinion into this
opinion by reference.
On October 23, 2013, following a three-day jury trial, Normand was convicted
of the crimes referenced above. He was acquitted of an additional count of Access
device Fraud.
On January 14, 2014, we sentenced Normand, who had a substantial prior
record, to an aggregate period of incarceration in a State Correctional Institution of
not less than 5 years nor more than 10 years. Normand was deemed ineligible for the
RRRI program due to a prior conviction for battery.
On January 24, 2014, through his trial counsel, Normand timely filed a post-
sentence motion. New counsel was then appointed due to a conflict that arose when
trial counsel joined the Monroe County Public Defenders' Office.
A hearing on the motion was scheduled far enough out to allow Normand's
new attorney to become familiar with the case. The hearing was then continued at
the request of new counsel to give him more time to prepare.
Subsequently, counsel for Normand filed a second motion for continuance.
He then asked for a conference with the Court and the assigned assistant district
attorney. During the conference, counsel for Normand requested that the hearing be
continued for several months in order to allow Normand the opportunity to cooperate
with authorities on other matters. The Commonwealth concurred. The Court pointed
out that, while Normand could ask for one 30-day extension of the deemed denial
provisions of Pa. R.Crim.P. 720, granting the lengthy extension he requested could
result in a deemed denial of Normand's post-sentence motion and might even impact
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Normand's ability to appeal. See Pa. R.Crim.P. 720. Counsel indicated that he and
Normand were aware of the applicable time considerations, but Normand
nonetheless wanted to pursue the cooperation option.
The hearing was continued until July 16, 2014. During the period between the
conference and the hearing, Normand did not file a motion seeking a 30-day
extension of the deemed denial period. See Pa. R.Crim. P. (B)(3){b). For unknown
reasons, the Clerk of this Court did not enter an order of denial pursuant to Pa. R.
Crim. P. (B)(3){c) at either the 120 or 150 day marks.
On July 16, 2014 - 173 days after the post-sentence motion was filed - the
hearing on the motion was convened as scheduled. Counsel for both parties stated
their positions on procedural and substantive matters. We spent substantial time
summarizing the procedural history of the case and analyzing the deemed denial
provisions of Rule 720 and interpretative case law. In the end, we determined that
under the unique circumstances of this case Normand's motion was deemed denied
by operation of law after 150 days, rather than after 120 days, and that because of
the deemed denial we were accordingly without power or authority to decide the
motion. (N.T., 7/16/2014, pp. 16-23). (See Commonwealth v. Bentley, 831 A.2d 668,
672 (Pa. Super 2003) ("If the judge fails to decide the motion within the applicable
time, then [Rule 720] provides, in mandatory terms, 'the motion shall be deemed
denied by operation of law.' Any action the judge takes thereafter is a nullity")
(internal citations omitted)). In then alternative, and in case our analysis was later
deemed erroneous, we summarized the reasons why we believed that the motion
was without merit. Further, we expressed the belief that Normand still had time to
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appeal because: 1) measured from the 150 day deemed denial date, the 30-day
appeal period had not yet expired; and 2) our Clerk had not entered a denial order.
(See Commonwealth v. Khalil, 806 A.2d 415, 419-20 (Pa. Super. 2002) (The
defendant's appeal of denial by operation of law of his post-sentence motion was
reviewable despite defendant's failure to file appeal within 30 days following denial by
operation of law, as required by rule of criminal procedure, where failure of clerk of
courts to issue order on date that defendant's post-sentence motions were deemed
denied was breakdown of processes of trial court, thereby depriving defendant of
notice of direct appeal rights)). Alternatively, in the event our analyses were not
accepted, we granted Normand's oral motion for permission to appeal nunc pro tune.
(N.T., 7/16/2014, pp. 16-23). At the end of the hearing, we issued an order distilling
our determinations and commemorating our findings. (Order dated July 16 and
entered July 18, 2014). We incorporate the order and our on-record statements and
analyses into this opinion by reference.
On July 17, 2014, the next day, Normand filed this appeal. On appeal, he ·
contends that:
1. [We] ... erred by denying Normand's pre-trial
Motion to Dismiss based upon a violation of Rule 600 of
the Pennsylvania Rules of Criminal Procedure;
2. [We) ... erred by allowing a witness to testify at
trial regarding his recollection of what he had seen on a
videotape in violation of both the Best Evidence Rule and
the rule against hearsay; and
3. ... The verdict(s) in this case were against the
weight and sufficiency of the evidence presented at trial.
(Normand's Rule 1925(b) Statement, filed July 23, 2014, Paragraph 4(a)(c)).
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DISCUSSION
Before substantively addressing Normand's assignments of error, we note that
there may be an issue regarding the timeliness of this appeal. For the reasons stated
on the record during the July 16, 2014 hearing as well as those summarized above,
we believe the 150 day deemed denial is the operative denial and that this appeal is
timely filed. However, since Normand was aware of the risks of continuing the
hearing on his post-sentence motion for several months and did not request the one-
time 30-day extension of the deemed denial period, it may also be argued that
Normand's motion was deemed denied on the izo" day after it was filed and, as a
result, that this appeal filed 54 days later is untimely. As indicated, we do not find this
to be the case. Further, we believe that our alternative decision to allow Normand to
appeal nunc pro tune is sound. We flag this potential issue only because has
jurisdictional implications.
Assuming that this appeal will be heard on the merits, we address Normand's
assignments of error as follows:
Pre-trial Rule 600 Motion
In his first assignment of error, Normand contends that we erred in denying his
pre-trial motion based upon violation of Rule 600 of the Pennsylvania Rules of
Criminal Procedure. Our reasons for denying the motion are explained in detail in the
Prior Opinion. The Rule 600 issue raised by Normand on appeal is adequately,
properly, and fully addressed in the Prior Opinion.
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Best Evidence and Hearsay Evidentiary Challenge
In his second assignment of error, Normand contends that we erred by
allowing a witness to testify at trial regarding what the witness had seen on a
videotape in violation of both the Best Evidence Rule and the rule against hearsay,
an issue he first raised in his omnibus pre-trial motion. Our reasons for denying the
motion and allowing the testimony are explained in detail in the Prior Opinion. The
Prior Opinion adequately and properly addresses this issue.
To what we stated in the Prior Opinion, we add only that we further believe the
allowance of this testimony was proper under Commonwealth v. Dent, 837 A.2d 571,
574 (Pa. Super. 2003). In Dent, a shoplifter was arrested and convicted of shoplifting.
As part of her appeal, the defendant argued that her attorney was ineffective
because he failed to argue that testimony based off a surveillance tape did not meet
the Best Evidence Rule. Id. at 588. Specifically in that case, the store manager
testified that the original tape had been destroyed due to the surveillance system's
need for a new hard drive shortly after the incident of shoplifting. Id. at 575. The
Court originally refused to allow any testimony relating to the content of the
surveillance tape, but, after the testimony of the store manager regarding its
destruction, both the store manager and a police officer who viewed the security
footage before its destruction were allowed to testify about what they had seen on
the tape. Id.While we recognize that Dent also noted that the testimony regarding the lost
footage was allowed because it was not used to prove any element of an offense
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charged, but instead was used to prove presence and identity, we believe the holding
and rationale are still applicable, especially in light of the Dent court's discussion of
Commonwealth v. Lewis, the case on which Normand chiefly relies. See id. at 590.
As Dent explains, in Lewis,
[the] officer's testimony at trial .as to appellant's
alleged act of retail theft was based solely upon police
officer's review of surveillance videotape, and explanation
concerning unavailability of videotape was unsatisfactory;
and police officer's testimony was not harmless error,
because other properly admitted evidence was not so
overwhelming, police officer's testimony was not
cumulative, and his testimony was not tangential or de
minimus."
Dent, 837 A.2d 590 (citations omitted).
Here, unlike in Lewis, there is a satisfactory explanation for the unavailability
of the videotape. Specifically, Lowe's loss prevention manager explained that the
videotape was lost through no fault of the Commonwealth. Instead, it was Lowe's that
sent the wrong footage and then recycled the correct footage after the standard 30-
day period set forth in store policy. By the time the mistake was discovered, it was
already too late to fix as the security footage had been recycled. Also, in this case
there was evidence over and above the testimony about what was seen on the
videotape, including a signed document from Lowe's with a signature made by
Normand in a fictitious name, a still photo from the camera showing Normand at
Lowe's, and a cardboard box related to the transaction at Normand's residence. For
these reasons, we believe this evidence was properly allowed.1
I
For the same reasons, we also believe that any error in allowing the testimony constituted "harmless error."
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Sufficiency and Weight of the Evidence
Finally, Normand alleges that the verdict was against both the weight and the
sufficiency of the evidence. Given the evidence presented at trial, this assignment of
2
error is clearly without merit.
Initially, we believe that this assignment of error has not been preserved, or at
least not fully preserved, for appellate review. In this regard, "a post-verdict motion,
either that 'the evidence was insufficient to support the verdict,' or that 'the verdict
was against the weight of the evidence,' will preserve no issue for appellate review
unless the motion goes on to specify in what respect the evidence was insufficient, or
why the verdict was against the weight of the evidence." Commonwealth v. Holmes,
461 A.2d 1268, 1270 (Pa. Super. 1983). In Holmes, the Superior Court gave this
example of a sufficiently specific motion: 'that the identification testimony was so
vague, and the alibi testimony so powerful, that the verdict shocks the conscience."'
Commonwealth v. MacSherry, 537 A.2d 871, 873 (Pa. Super. 1988) (citations
omitted).
In this case, the operative portions of Normand's post-sentence motion did not
specify why the verdict was against the weight of the evidence. This is especially true
regarding the Identity Theft and Criminal Use of a Communication Facility charges
since they were not even mentioned. Instead, the motion, ignoring the applicable
standards, conclusorily reiterated Normand's arguments and theory of the case, both
of which were rejected by the jury. Nothing is alleged that would lead to the
2
In addition to the reasons stated in this opinion, Normand's weight and sufficiency challenges are meritless for
the reasons we articulated during the hearing on Normand's post-sentence motion. (N.T., 7/16/2014, pp. 20-21).
We reiterate and incorporate our on-record statements into this opinion.
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conclusion that the verdict shocks the conscience or that justice was denied.
Accordingly, we believe that Normand has failed to preserve his weight claim. At
minimum, he has waived any weight challenge to the convictions for Identity Theft
and Criminal Use of a Communications facility.
Along similar lines, Normand failed to preserve his challenge to the sufficiency
of the evidence. "If [an] Appellant wants to preserve a claim that the evidence was
insufficient, then the 1925(b) statement needs to specify the element or elements
upon which the evidence was insufficient." Commonwealth v. Manley, 985 A.2d 256,
262 (Pa. Super. 2009). Here, Normand's Rule 1925(b) statement recites only the
standard, boilerplate contention that the "verdict(s) in this case were against the
weight and sufficiency of the evidence presented at trial." This general claim clearly
does not state the element or elements of which there was insufficient evidence.
The generality of this boilerplate is not remedied by the fact that Normand's
post-sentence motion contained additional verbiage. Again, neither Identity Theft nor
Criminal Use of a Communication Facility is mentioned in the motion. As to Forgery,
Normand does baldly aver that there "was no evidence of forgery." However, under
the applicable standards, that assertion is fallacious and in any event not supported
by the facts.3 Further, as discussed, the challenge to the remaining charges merely
reiterates Normand's beliefs and characterization of the evidence which were not
3 Normand's post-sentence motion does contend that, without the Lowes' video testimony we ruled admissible,
the Forgery conviction cannot stand. However, as discussed infra, when reviewing a sufficiency challenge all
evidence admitted at trial must be considered. In addition, for the reasons stated, our evidentiary ruling
regarding the video was correct. Finally, there was, in fact, other evidence, direct and circumstantial, that
supported the jury's verdict. ·
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accepted by the jury. Simply, Normand did not preserve his challenge to the
sufficiency of the evidence.
In the alternative, even a quick review of the record demonstrates that there
was ample evidence to support the jury's verdict. Accordingly, Normand's weight and
sufficiency challenges do not hold water.
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.... 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.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations omitted). All
evidence admitted at trial is considered when reviewing a sufficiency of evidence
claim. See Commonwealth v. Williams, 650 A.2d 420, 424 (Pa. 1994), and
Commonwealth v. Distefano, 782 A.2d 574, 582 (Pa. Super. 2001), appeal denied,
806 A.2d 858 (Pa. 2002). The established facts and circumstances,
do not have to be absolutely incompatible with the
accused's innocence, but any doubt is for the factfinder
unless the evidence is so weak and inconclusive that no
probability of fact can be drawn from the totality of the
circumstances as a matter of law....
Existence of inconsistencies in the testimony of a witness
does not alone render evidence insufficient to support a
verdict. ...
Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (internal citations and
quotation marks omitted), appeal denied, 879 A.2d 782 (Pa. 2004). The trier of fact,
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while passing upon the credibility of witnesses, is free to believe all, part, or none of
the evidence. Commonwealth v. Dupre, 866 A.2d 1089 (Pa. Super. 2005).
Here, after a three-day trial, Normand was convicted of Forgery, four counts of
Access Device Fraud, Identity Theft, Unlawful Use of a Computer, and Criminal Use
of a Communication Facility. With respect to these crimes:
Forgery is defined in Section 4101 of the Pennsylvania Criminal Code as
follows:
(a) Offense defined.--A person is guilty of forgery if, with
intent to defraud or injure anyone, or with knowledge that
he is facilitating a fraud or injury to be perpetrated by
anyone, the actor:
(1) alters any writing of another without his authority;
(2) makes, completes, executes, authenticates, issues or
transfers any writing so that it purports to be the act of
another who did not authorize that act, or to have been
executed at a time or place or in a numbered sequence
other than was in fact the case, or to be a copy of an
original when no such original existed; or
(3) utters any writing which he knows to be forged in a
manner specified in paragraphs ( 1) or (2) of this
subsection.
18 Pa.C.S.A. § 4101(a). '"Writing' includes printing or any other method of recording
information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks,
electronic signatures and other symbols of value, right, privilege, or identification." §
4101(b). To sustain a conviction for the crime of Forgery, the Commonwealth must
prove beyond a reasonable doubt the following three elements: "(1) the false making
of some instrument in writing, (2) the instrument must be apparently capable of
effecting a fraud and working an injury to another and (3) there must be a fraudulent
intent." Commonwealth v. DiPiero, 208 A.2d 912, 914 (Pa. Super. 1965).
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In this case, the trial evidence, both direct and circumstantial, established
beyond a reasonable doubt the elements of Forgery. The Forgery charge stemmed
from a transaction at Lowes where Normand picked up bar stools that he fraudulently
purchased using the credit card number of the primary victim, Michelle Bickford. The
evidence showed that, to pick up the bar stools, defendant signed the name ''Tyrelle
Boynton" on a loading ticket. The Commonwealth presented the slip and a blow up of
the signature on the slip. The writing appeared to be Normand's. In addition, in the
challenged testimony regarding the security video, Officer Dan Jones, the
investigating detective from the Pocono Mountain Regional Police Department,
testified that the video depicted Normand at Lowe's at the time the slip was signed
and the bar stools were picked up and also showed him leaving the store with them.
Similarly, a still image taken from the video places Normand at Lowe's when the
stools were picked up. In addition, a cardboard box related to the transaction was
found at Normand's residence. Further, as discussed below, there was ample
evidence that Normand illegally acquired and fraudulently used Ms. Bickford's credit
card information to purchase several items other than the bar stools, and the name
''Tyrelle Boynton" was found on various shipping labels at Normand's residence. This
evidence was sufficient to support the Forgery conviction.
The remaining crimes may be discussed together. A person commits the
offense of Access Device Fraud if he:
(1) uses an access device to obtain or in an attempt to
obtain property or services with knowledge that:
(i) the access device is counterfeit, altered or
incomplete;
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(ii) the access device was issued to another person
who has not authorized its use;
(iii) the access device has been revoked or
canceled; or
(iv) for any other reason his use of the access
device is unauthorized by the issuer or the device holder[.]
18 PA.C.S.A. § 4120(a)(1). "Access Device" includes credit card within its definition.
§4120(d).
A person commits the offense of Identity Theft "of another person if he
possesses or uses, through any means, identifying information of another person
without the consent of that other person to further any unlawful purpose. 18
PA.C.S.A. § 4120(a). Identifying information includes credit card numbers. See
Commonwealth v. Newton, 994 A.2d 1127, 1135 (Pa. Super. 2010) (discussing how
the use of credits cards would have met the element of identifying information).
A person commits the offense of unlawful use of a computer if:
[H]e accesses or exceeds authorization to access, alters,
damages or destroys any computer, computer system,
computer network, computer software, computer program,
computer database, World Wide Web site or
telecommunication device or any part thereof with the
intent to interrupt the normal functioning of a person or to
devise or execute any scheme or artifice to defraud or
deceive or control property or services by means of false
or fraudulent pretenses, representations or promises.
18 Pa.C.S.A. § 7611(a)(1).
Criminal Use of a Communication Facility occurs when a person "uses a
communication facility to commit, cause or facilitate the commission or the attempt
thereof of any crime which constitutes a felony." 18 Pa.C.S.A. § 7512(a).
"'Communication facility' means a public or private instrumentality used or useful in
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the transmission of signs, signals, writing, images, sounds, data or intelligence of any
nature transmitted in whole or in part, including, but not limited to, telephone[s]. .. " §
7512(c). "The Commonwealth must prove beyond a reasonable doubt that: (1)
Appellants knowingly and intentionally used a communication facility; (2) Appellants
knowingly, intentionally or recklessly facilitated an underlying felony; and (3) the
underlying felony occurred." Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super.
2004).
In this case, all charges stemmed from Normand's unlawful acquisition and
unauthorized use of Ms. Bickford's personal credit card information. Ms. Bickford is a
resident of North Carolina. She unequivocally testified that she never stayed or used
her credit card in Pennsylvania, that she did not know Normand, that she did not give
Normand or anyone else permission to access or use her credit card information, and
that she neither made nor authorized anyone else to use her credit card to make the
purchases that form the basis of the instant charges.
The evidence presented by the Commonwealth demonstrated that personal
identifying information and access device numbers for credit cards belonging to
others, including Ms. Bickford, were found in Normand's notebooks and cell phone.
The evidence also showed that Normand used his cell phone, a computer, an
Internet Protocol (IP) address, a Wi-Fi network, and the Internet to make a variety of
purchases from several stores with Ms. Bickford's credit card information. In this
regard, Normand ordered items including music recording equipment and barstools
from Amazon.com and Lowes.com using Ms. Bickford's credit card. The IP address,
phone number, and e-mail address used to purchase items from these websites
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traced back and belonged to Normand. Additionally, on multiple occasions Normand
used a phone to buy pizza from Pizza Hut with Ms. Bickford's credit card information.
Further, as discussed, Normand was caught on tape at Lowe's picking up bar stools
he ordered on the Internet with Ms. Bickford's credit card and a box corresponding to
this transaction was found in his home. Finally, items Normand bought with Ms.
Bickford's credit card as well as shipping labels corresponding with some of the
purchases he made with the card were found in Normand's home. Even this brief
summary of some of the relevant facts established by the Commonwealth is enough
to demonstrate that the evidence was more than sufficient to sustain the jury's
verdict.
In addition to challenging the sufficiency of the evidence, Normand contends
that the verdict was against the weight of the evidence. A challenge to the weight of
the evidence, in contrast to a challenge to the sufficiency 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 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.
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Widmer, 744 A.2d at 751-752 (internal citations, footnote, and quotation marks
omitted). Accordingly, trial courts possess only narrow authority to reverse a jury
verdict on a weight of the evidence challenge.
The general rule in this Commonwealth is that a weight of
the evidence claim is primarily addressed to the discretion
of the judge who actually presided at trial. There is, of
course, some tension between the power of trial courts to
overturn jury verdicts premised upon weight claims, and
the bedrock principle that questions of credibility are
exclusively for the fact-finder. Accordingly, the authority
for the trial judge to upset a verdict premised upon a
weight claim is narrowly circumscribed. A trial judge
cannot grant a new trial because of a mere conflict in
testimony or because the trial judge on the same facts
would have arrived at a different conclusion. Instead, a
new trial should be granted only in truly extraordinary
circumstances, i.e., when the jury's verdict is so contrary
to the evidence as to shock one's sense of justice and the
awarcj of a new trial is imperative so that right may be
given another opportunity to prevail.
Armbruster v. Horowitz, 813 A.2d 698, 702-703 (Pa. 2002) (internal citations and
quotation marks omitted; emphasis in original).
The appellate standard of review on a claim that the verdict or adjudication
was against the weight of the evidence,
is very narrow. The determination of whether to grant a
new trial because the verdict is against the weight of the
evidence rests within the discretion of the trial court, and
we will not disturb that decision absent an abuse of
discretion. Where issues of credibility and weight of the
evidence are concerned, it is not the function of the
appellate court to substitute its judgment based on a cold
record for that of the trial court. The weight to be accorded
conflicting evidence is exclusively for the fact finder,
whose findings will not be disturbed on appeal if they are
supported by the record. A claim that the evidence
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presented at trial was contradictory and unable to support
the verdict requires the grant of a new trial only when the
verdict is so contrary to the evidence as to shock one's
sense of justice.
Com. v. Lyons, 833 A.2d at 259 (quoting Com. v. Griffin, 453 Pa. Super. 657. 684
A.2d 589, 596 (1996) (internal citations omitted)).
Under these standards, Normand's weight of the evidence challenge admits
the sufficiency of the evidence and, to be successful, must be based on extraordinary
circumstances, such as when the jury's verdict is so contrary to the evidence as to
shock one's sense of justice and the award of a new trial is imperative so that right
may be given another opportunity to prevail. Against the background of this case
and when all facts are considered, it is clear that the verdict is not contrary to the
weight of the evidence.
The evidence presented by the Commonwealth is discussed above. As noted,
the evidence was unquestionably sufficient to support the verdict. To be sure, at trial,
Normand disputed the evidence, denied committing the offenses, and attempted to
persuade the jury that all of the illegal acts were not committed by him, but were
instead perpetrated by a Tyrone Deloatch, a former member of the household. In
furtherance of this defense, Normand called witnesses and testified himself
proclaiming his innocence. A jury of his peers heard but rejected Normand's evidence
and arguments. Doing so was squarely within the jury's province. Under the facts and
circumstances of this case, the verdict does not shock the conscience and there is
not even a hint that justice has been denied. Normand's weight claim simply does not
hold water.
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For these reasons, as well as those stated on the record during the hearing on
Normand's post-sentence motion, we believe that the judgment of sentence should
be affirmed.
BY THE COURT:
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