Com. v. Etka, Z. ( 2017 )

J-S91044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZACHARY CHANCE ETKA :
:
Appellant : No. 1919 MDA 2015
Appeal from the Judgment of Sentence March 5, 2015
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000431-2014
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 10, 2017
Appellant, Zachary Chance Etka, appeals pro se1 from the judgment of
sentence entered in the Court of Common Pleas of Bradford County following
his conviction by a jury on three counts of robbery, three counts of
____________________________________________
1
Appellant was represented by court-appointed counsel throughout the
proceedings in the trial court, including the filing of a counseled notice of
appeal to this Court. However, thereafter, Appellant filed a motion in the
trial court requesting permission to proceed pro se on appeal, and in
response, counsel filed in this Court an application for remand for a Grazier
hearing. Accordingly, by order filed on May 24, 2016, we remanded this
matter for a hearing, and on July 11, 2016, the trial court filed an order
indicating it held a Grazier hearing and determined Appellant has
knowingly, intelligently, and voluntarily waived his right to counsel on
appeal. Appellant subsequently filed in this Court a pro se brief, which we
shall consider.
* Former Justice specially assigned to the Superior Court.
J-S91044-16
conspiracy, two counts of terroristic threats, and one count of receiving
stolen property.2 After a careful review, we affirm.
Following Appellant’s arrest in connection with the robbery of a bank,
Appellant, who was represented by counsel, proceeded to a jury trial on
November 20, 2014. The trial court has aptly summarized the testimony
and evidence presented during the trial as follows:
On May 15, 2014[,] at approximately 1:00 p.m.,
[Appellant] and [his co-conspirator,] Chaz Talada parked in the
parking lot in front of Citizens and Northern Bank located in East
Smithfield, Bradford County, Pennsylvania. A bank teller on duty
noticed the vehicle and [that] the individuals inside seemed to
be looking around. [N.T. 11/20/14 at 20.] A male exited the
vehicle wearing a white baseball cap, sunglasses, and a heavy
winter coat, which [seemed] unusual [to the teller] because it
was not cold that day. [Id.] The individual was carrying a
backpack. [Id.] The individual entered the bank, approached a
teller window, showed a hand gun, passed over the bag[,] and
demanded money. [Id. at 22.] The teller placed the money
from her drawer and the next teller[’s] drawer into the bag. [Id.
at 23.] Included in the money was “bait money,” [for] which the
serial numbers ha[d] been recorded. [Id.] [The teller] handed
the bag back to the individual[,] and he left the building. [Id. at
24.] The teller then hit the bank alarm and went to the window
to get the license plate number of the vehicle, but there was no
plate on the car. [Id.] The second teller identified the vehicle
as a green Subaru with a black gas tank cover. [Id. at 28.]
New York State Trooper Mary Carsen, upon learning of the
robbery over a radio transmission and the direction the vehicle
was heading, drove to the town of Wellsburg, New York in hopes
of locating the vehicle. She did locate a green Subaru[, which
was] pulled up against the back of a minimart. [Id. at 36.]
[Prior to Trooper Carsen’s arrival upon the scene,] [Appellant]
____________________________________________
2
18 Pa.C.S.A. §§ 3701(a)(1)(vi), (ii), and (iv); 903; 2706(a)(1); and 3825,
respectively.
-2-
J-S91044-16
had entered the minimart and purchased a pack of cigarettes.
This was shown on the video surveillance from the minimart.
[Subsequently,] [a] Pennsylvania State Trooper[, Michael
Adams,] [also] arrived at the scene[,] and [Appellant and
Talada] exited their vehicle. [Id. at 37.]
[After frisking the two men for weapons, the troopers
placed the men in separate vehicles. Trooper Adams questioned
Talada and then, after reading him his Miranda rights,
questioned Appellant. Id. at 55-56.] [Trooper Adams] testified
that [Appellant told him] the vehicle belonged [to him.] [Id. at
56.] [Appellant] said he did nothing wrong. [Id.] [Appellant]
told [the] trooper that when [Talada] went into [the] bank, he
couldn’t drive away because he did not have a driver[’s] license;
that he didn’t walk away because [Talada] was his friend; and
that he did not attempt to call [the] police or anyone [else].
[Id.] [Appellant] did tell [the] trooper that he and [Talada] had
planned the robbery earlier that day[,] and that upon arriving at
the bank, he told [Talada] not to commit the robbery. [Id. at
62.]
[Pennsylvania State Corporal Douglas Smith testified that
the vehicle was impounded and he searched it pursuant to a
search warrant. Id. at 64.] [He] testified that a backpack was
in the vehicle on the floorboard of the driver’s side and the cash
from the bank was inside [of] the backpack[. Id. at 65.] [The
backpack also contained] a pistol pellet gun ... a jacket with a
hood on it, ... and a white baseball cap. [Id. at 65-87.] The
cash totaled $3,342.00[, which] was the amount reported stolen.
[Id. at 71, 76, 89.] Also in the vehicle were improvised smoking
devices and marijuana. [Id. at 75.]
[Pennsylvania State Corporal Norman Strauss, III, testified
that after Appellant’s arrest he gave him his Miranda rights and
transported him to the police station. Id. at 77-78.] [Appellant]
[ ] told him that he thought about robbing the bank two days
prior; it was his idea; he planted the seed in his friend’s
(Talada’s) head; and he did a 30 second Google research on the
topic of successful bank robberies. [Id. at 79, 83.] Further, [he
told the corporal] that he waited in the vehicle while [Talada]
entered [the] bank and then traveled to the minimart where
they were picked up by [the] state police. [Id. at 80.] Also,
there were times when [Appellant] [told the corporal that] the
conversation about the robbery with [Talada] was a joke. [Id.
-3-
J-S91044-16
at 83.] Finally, [ ] [Appellant] [told Corporal Strauss that he]
wouldn’t commit the robbery but [Talada] had his mind set on it.
Annetta Lewis testified that she was an employee of the
minimart where [Appellant] was [apprehended]. When she left
work [on] the day of the robbery, she noticed two men in a
vehicle with cash in their hands. [Id. at 92.] The passenger was
the only one she could see and he had a lot of cash in his hand.
[Id. at 91-92.]
***
[Pennsylvania State Trooper Nathan Lewis] testified that
he [advised Appellant of his Miranda rights and] interviewed
him at the police barracks. [Id. at 96-97.] [Appellant] indicated
that he and [Talada] had been together for two days and had
been using mind altering substances. [Id. at 97.] He told
Trooper [Lewis] that they discussed a bank robbery and that the
original plan was for him to go into the bank. [Id.] [Appellant]
stated that they proceeded to the bank and along the way
stopped to remove the license plate from a vehicle. [Id.]
[Appellant indicated] they parked near the bank[,] discussed the
robbery for approximately fifteen minutes[,] and [Appellant]
tried to talk [Talada] out of the robbery. [Id. at 98.] They then
drove to the bank. [Appellant stated] he then advised [Talada]
that he did not want to go into the bank. [Id.] [Talada] entered
[the] bank and came out[,] and they [then] fled [in the vehicle.]
[Id.] [Appellant told the trooper] that while he and [Talada]
were talking about [the robbery,] it was a joke. [Id. at 105.]
Trooper Lewis also testified that he determined that [Appellant]
did not have a valid driver[’s] license. [Id. at 109.]
[The] [d]efense presented the testimony of [Talada, who]
admitted to the robbery of the bank.3 He admitted that he drove
to the bank and he went into the bank wearing a coat, gloves[,]
and sunglasses,[ which were] all his. [Id. at 115-16.] He also
admitted that he was wearing a backpack that belonged to
[Appellant, and it was Appellant’s idea to use the backpack
during the robbery. Id. at 116, 130.] [Talada testified
____________________________________________
3
Prior to Appellant’s jury trial, Talada entered a guilty plea in connection
with the robbery.
-4-
J-S91044-16
Appellant] gave him the backpack when they went to the bank.
[Id. at 130.] [He testified the] pellet gun was not loaded [but
he] pointed the gun at the tellers. [Id. at 116.] [Talada
testified that, prior to robbing the bank, he and Appellant sat in
the car near the bank and talked about the robbery. Id. at
117.] [Appellant] told him he did not want to do it and
suggested that he should do it. [Id.] They had conversations
about robbing the bank [in the days leading up to the robbery,
including] the day before[, at which time] they had been
smoking marijuana. [Id. at 117-18.] He had also been taking
Percocet and heroin. [After being apprehended, Talada] told the
state troopers that he needed money for rent and to get his car
repaired. [Id. at 124.] He testified that he [was] addicted to
heroin and needed money to purchase more. [Id. at 123.]
[Talada] testified that [Appellant] was too scared to commit the
robbery and wanted [Talada] to do so. [Prior to the robbery,
Appellant] took the license plate off the car. [Id. at 131.]
[Talada testified that, when they left the house to commit the
robbery, Appellant knew the robbery was going to happen. Id.]
[At this time, Appellant] was wearing gloves ... and [a] jacket[.]
[Id.] [After Appellant decided not to go into the bank, the men
discussed Appellant getting a portion of the money. Id. at 132.]
[Appellant] was going to use the money towards his business.
[Talada] testified that [Appellant] did not tell him to not go in
the bank. [Id. at 135.] [After the robbery, the men] began
counting the money at the minimart[, and Talada gave Appellant
a “handful.”] [Id.] After [Talada] came out of [the] bank, he
handed all the “stuff”—clothing, etc., to [Appellant] because he
removed it as he was driving[,] and [Appellant] put it in the
back[, as well as] hid the gun. [Id. at 136.]
[Appellant] testified as follows: That he and [Talada] were
watching a movie, smoking marijuana[,] and talking about the
robbery hypothetically. [Id. at 145.] The day of the robbery,
there were a lot of clothes and items in his car, so he did not
notice anything out of the ordinary. [Id. at 149.] [He and
Talada] drove around. Periodically, they would stop and
[Talada] would get some marijuana out of the trunk of the car.
[Id. at 150.] [Talada was driving Appellant’s car on the day of
the robbery. Id. at 149.] [Appellant testified that he] never
knew [Talada] was going to rob the bank. [Id. at 151.] [When
the men got close to the bank, Talada brought up robbing the
bank[,] and [Appellant] [tried to] talk[] him out of it. [Id. at
152.] [Talada] agreed to go home, but he pulled into the bank[.
-5-
J-S91044-16
Id.] [Talada] went into the bank and was out in twenty some
seconds, so [Appellant] did not jump to conclusions. [Id. at
152-53.] [Talada] put [the] bag by his leg on [the] driver[’s]
side. Upon arriving at the minimart, [Talada had] money in his
hand and that was the first time [Appellant] realized that
[Talada] had robbed the bank. [Id. at 154.] [Appellant took]
$5.00 from [Talada] and went inside the minimart to buy
cigarettes. [Id.] If the police had not [arrived,] he would have
called them. He was not aware that [the] license plate [had
been] removed. [Id. at 157.]
The pellet gun was not processed for fingerprints or other
trace evidence. [Id. at 88.] [T]here was no evidence from
[Appellant’s] cellphone regarding a Google search. [Id.]
Trial Court Opinion, filed 3/11/16, at 2-5 (footnote added).
At the conclusion of all evidence, the jury convicted Appellant of the
offenses indicated supra, and he was sentenced to an aggregate of forty-six
months to ninety-six months in jail. Appellant filed a timely, counseled post-
sentence motion, which was denied by operation of law on October 19,
2015. On October 29, 2015, counsel simultaneously filed on behalf of
Appellant a notice of appeal and a Concise Statement pursuant to Pa.R.A.P.
1925(b). Thereafter, on March 11, 2016, the trial court entered its Pa.R.A.P.
1925(a) order.
Subsequently, as indicated supra, following a Grazier hearing,
Appellant was granted permission to proceed pro se on appeal. Appellant
filed a petition seeking permission to amend his Pa.R.A.P. 1925(b)
statement, which had been filed by counsel, and this Court directed the trial
court to rule on the motion. On August 22, 2016, the trial court granted
Appellant permission to file an amended Pa.R.A.P. 1925(b) statement, and
-6-
J-S91044-16
on August 31, 2016, Appellant filed an amended pro se Pa.R.A.P. 1925(b)
statement. The trial court filed a supplemental opinion on September 21,
2016.
In his first claim, Appellant contends the evidence was insufficient to
sustain his convictions.4 Specifically, Appellant contends that he could not
be convicted of the crimes since the evidence proves Appellant was merely
present in the vehicle while Talada committed the robbery. Appellant argues
“there is no evidence supported by the record of an unlawful agreement, [ ]
of Appellant’s participation in the criminal act, [ ] of specific intent that
Appellant intended for [the robbery] to happen ... [or of] Appellant[’s]
participat[ion] in any of [Talada’s] misdeeds.” Appellant’s Brief at 19-20.
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
____________________________________________
4
Intertwined within Appellant’s sufficiency claim are various challenges to
the credibility of testimony from various witnesses. Such challenges are
more appropriately addressed as weight of the evidence claims, and thus,
we shall address these claims with Appellant’s additional weight of the
evidence claims infra. Commonwealth v. Wilson, 825 A.2d 710, 713–14
(Pa.Super. 2003) (holding that review of the sufficiency of the evidence does
not include an assessment of the credibility of testimony; such a claim goes
to the weight of the evidence).
-7-
J-S91044-16
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.
Further, in viewing the evidence in the light most favorable
to the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)
(quotation marks and quotations omitted).
Here, there is no dispute that Talada was the person who actually
entered and robbed the bank at issue and that Appellant remained outside in
the vehicle during the robbery. However, Appellant’s guilt as to the crimes
was premised upon conspiratorial liability.
To convict a defendant of conspiracy, the trier of fact must
find that: (1) the defendant intended to commit or aid in the
commission of the criminal act; (2) the defendant entered into
an agreement with another (a “co-conspirator”) to engage in the
crime; and (3) the defendant or one or more of the other co-
conspirators committed an overt act in furtherance of the agreed
upon crime. 18 Pa.C.S.[A.] § 903. The essence of a criminal
conspiracy, which is what distinguishes this crime from
accomplice liability, is the agreement made between the co-
conspirators.
“[M]ere association with the perpetrators, mere presence
at the scene, or mere knowledge of the crime is insufficient” to
establish that a defendant was part of a conspiratorial
agreement to commit the crime. There needs to be some
additional proof that the defendant intended to commit the crime
along with his co-conspirator. Direct evidence of the defendant's
criminal intent or the conspiratorial agreement, however, is
-8-
J-S91044-16
rarely available. Consequently, the defendant's intent as well as
the agreement is almost always proven through circumstantial
evidence, such as by “the relations, conduct or circumstances of
the parties or overt acts on the part of the co-conspirators.”
Once the trier of fact finds that there was an agreement and the
defendant intentionally entered into the agreement, that
defendant may be liable for the overt acts committed in
furtherance of the conspiracy regardless of which co-conspirator
committed the act.
Commonwealth v. Murphy, 577 Pa. 275, 292, 844 A.2d 1228, 1238
(2004) (citations and quotations omitted).
Here, viewing the evidence in the light most favorable to the
Commonwealth, as verdict winner, the evidence is sufficient to establish that
Appellant was not merely associated with Talada, was not merely present at
the scene, and did not have mere knowledge of the crime. Rather, the
evidence sufficiently establishes that Appellant conspired with Talada to rob
the bank and, accordingly, he is liable for all overt acts committed in
furtherance of the conspiracy. See Murphy, supra.For instance, Talada testified that, for a few days prior to the robbery,
he and Appellant discussed robbing a bank. He indicated that Appellant
gave him the backpack to use during the robbery, and on the day of the
robbery, they left the house with both men wearing jackets and gloves,
despite the fact it was a warm day in May. Talada drove Appellant’s vehicle,
in which Appellant was a passenger. Talada testified that, prior to the
robbery, Appellant removed the license plate from the vehicle and, as they
arrived at the bank, Appellant expressed fear, indicating he would remain in
-9-
J-S91044-16
the vehicle. Talada further testified that, after the robbery, as the men
drove away from the bank, Talada handed his clothing and the pellet gun to
Appellant, who put the items in the back of the vehicle. Later that same
day, the men began to split the stolen money while parked at a minimart,
but they were interrupted when they were apprehended by the police.
Furthermore, three state troopers testified Appellant admitted to them
that, in the days preceding the robbery, he and Talada had discussed
robbing a bank. Trooper Strauss, who transported Appellant to the police
station, specifically testified Appellant admitted that he thought about
robbing the bank and had “planted the seed in Talada’s head.” N.T.
11/20/14 at 79. Additionally, Trooper Lewis, who interviewed Appellant at
the police station, testified Appellant admitted to him that the original plan
involved Appellant entering the bank, along with Talada; however, just
before the robbery, Appellant decided to wait in the car. Id. at 97-100.
Accordingly, based on the aforementioned, we conclude the evidence
was sufficient to establish the necessary elements for conspiracy under
Section 903, thus rendering Appellant liable for all of the overt acts
committed in furtherance of the conspiracy. Thus, we find no merit to his
first claim.
In his second claim, Appellant contends the jury’s verdict was against
the weight of the evidence. Specifically, he alleges that a new trial is
warranted since (1) the Commonwealth’s case included testimony and
- 10 -
J-S91044-16
evidence consistent with Appellant’s trial testimony that he was joking when
he told Talada he wanted to rob a bank; (2) the evidence reveals Appellant
was unaware that Talada was addicted to heroin such that he could not
possibly have been aware that Talada was serious about robbing a bank; (3)
the state troopers’ testimony was “full of perjury and false evidence;” and
(4) the credible evidence establishes Appellant abandoned any plan to rob a
bank prior to Talada robbing the bank.5
In reviewing a challenge to the weight of the evidence, we are mindful
of the following:
[A] new trial can only be granted on a claim that the verdict was
against the weight of the evidence in the extraordinary situation
where the jury's verdict is so contrary to the evidence that it
shocks one's sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail. An appellate court cannot substitute its judgment for
that of the finder of fact.
Commonwealth v. Drumheller, 570 Pa. 117, 143, 808 A.2d 893, 908
(2002) (quotation marks and quotations omitted). “[T]he 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. Askins, 761 A.2d 601, 603 (Pa.Super. 2000) (quoting
Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992)).
Furthermore:
____________________________________________
5
Appellant sufficiently preserved his weight of the evidence claim in his
timely post-sentence motion. See Pa.R.Crim.P. 607.
- 11 -
J-S91044-16
[Where] ... the judge who presided at trial 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 the
weight claim.
Commonwealth v. Tharp, 574 Pa. 202, 217–18, 830 A.2d 519, 528 (2003)
(citations omitted).
In its Pa.R.A.P. 1925(a) opinion, the trial court addressed Appellant’s
weight of the evidence claims and concluded they lack merit. With regard to
Appellant’s allegation that there was ample, credible evidence, including
from the Commonwealth’s own witnesses, that he was joking about
committing a robbery, the trial court indicated the jury was free to weigh
this testimony along with the other evidence. Trial Court Opinion, filed
3/11/16, at 9. While state troopers testified that, upon questioning,
Appellant told them that he had been joking with Talada when they
discussed the robbery and in the moments before the robbery he told Talada
not to do it, the jury was free to conclude Appellant made the statements to
the police for self-serving reasons.
With regard to Appellant’s allegations that he was unaware that Talada
was addicted to heroin such that he could not possibly have been aware that
Talada was serious about robbing a bank, the state troopers’ testimony was
“full of perjury and false evidence,” and the evidence establishes Appellant
abandoned any plan to rob a bank prior to Talada robbing the bank,
Appellant asks us to reweigh the evidence in his favor. As the trial court
- 12 -
J-S91044-16
indicated, the jury was in the best position to view the demeanor of the
witnesses, assess each witness’ credibility, and resolve any inconsistencies
in their testimony in the Commonwealth’s favor. Commonwealth v.
Olsen, 82 A.3d 1041, 1049 (Pa.Super. 2013). Based on the facts elicited at
trial and believed by the jury, the trial court determined that the verdict was
not against the weight of the evidence. Appellant has not demonstrated that
the trial court committed a palpable abuse of discretion by rejecting his
request for a new trial based on the weight of the evidence, and thus, we
find no abuse of discretion. Tharp, supra.
In his third claim, Appellant argues the trial court erred in denying
Appellant’s motion for a new trial based on the Commonwealth’s late
disclosure of an eyewitness, Annetta Lewis.6 We find this issue to be
waived.
Appellant’s entire appellate argument regarding this issue, which we
set forth verbatim, is as follows:
The Trial court erred in denying a Motion for New Trial based on
Late Disclosure of Eye-witness. At trial the Commonwealth
presented the testimony of Anetta [sic] Lewis, Dandy Mini-Mart
worker, who was discovered due to her family relationship with
an employee of the courthouse who was discussing the case with
her. The Defense was notified of this witness at 4:30 pm the
eve of trial, after jury had been selected. The defense objected
to the introduction of this evidence as the Commonwealth had
____________________________________________
6
As the trial court indicates in its supplemental Rule 1925(a) opinion, the
Commonwealth notified Appellant of the witness the day before trial, after
the jury was selected. Trial Court Opinion, filed 9/21/16, at 2.
- 13 -
J-S91044-16
not previously indicated that it would seek to present this
testimony. The Appellant was prejudiced in this late disclosure
of eye-witness and in not being able to adequately investigate
this witness and her ability to perceive and recall the events in
question before trial. Wherefore, Appellant requests a New trial
based on the denial of the Motion for New Trial on Late
Disclosure of Eye-Witness.
Appellant’s Brief at 22.
Appellant has not adequately developed his argument on appeal. For
instance, as is evident, Appellant neither provided this Court with any
relevant citations supporting his assertion nor set forth that place in the
record where he objected to Ms. Lewis testifying on this basis. 7 See
Pa.R.A.P. 2119(b), (e). Moreover, Appellant’s bald assertion of error and
prejudice is insufficient to permit meaningful review in this case. 8 See
Pa.R.A.P. 2119.
While we acknowledge Appellant is proceeding pro se in this appeal,
his pro se status does not entitle him to any advantage due to his lack of
____________________________________________
7
It is noteworthy that, in its opinion, the trial court concluded Appellant has
waived the issue since there was no objection placed on the record to Ms.
Lewis testifying. See Trial Court Opinion, filed 9/21/16, at 2-3.
8
In any event, the trial court noted any error was harmless since the
evidence against Appellant was overwhelming. Trial Court Opinion, filed
9/21/16, at 3. Further, the trial court noted:
The witness had little to offer other than stating she saw two
men in a vehicle when she left work at the Dandy Mini Mart
where [Appellant and Talada] were found and the man in the
passenger seat had cash in his hands—not a large amount to
cause alarm, but more than a little.
Id. (citation to record omitted).
- 14 -
J-S91044-16
legal training. See Commonwealth v. Ray, 134 A.3d 1109 (Pa.Super.
2016). Rather, as a pro se litigant, Appellant must still abide by the Rules of
Appellate Procedure and his decision to represent himself requires him to “a
reasonable extent assume[ ] the risk that his legal training will place him at
a disadvantage.” Id. at 1114-115 (citation omitted).
In his fourth claim, Appellant alleges the prosecutor engaged in
misconduct by permitting three state troopers to perjure themselves on the
stand. He also alleges the prosecutor improperly informed the jury during
closing arguments that Talada “has no reason to lie, he has no interest in
this case.” N.T. 11/20/14 at 173-74.
Initially, we note that Appellant has waived these claims. With regard
to the alleged perjured testimony given by three state troopers, Appellant
has failed to indicate precisely which portions of the testimony he is
challenging. Rather, he baldly asserts:
[T]he District Attorney lead [sic] three State Troopers—
Trooper Adams, Trooper Strauss[,] and Trooper Lewis—to
perjure themselves on the stand,--[to] lie in front of the jury
about what is on record—to prejudice, harass[,] and attack the
Appellant[’]s credibility by the use of false evidence and false
testimony, known to be by him, and allowed to go uncorrected
as it appeared[.]
Appellant’s Brief at 22-23. Such vague assertions do not permit meaningful
review. See Pa.R.A.P. 2119.
Moreover, with regard to the prosecutor’s statement, which he made
during closing arguments to the jury, Appellant failed to object to the
- 15 -
J-S91044-16
prosecutor’s statements at trial. Accordingly, he has waived any challenge
thereto. See Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282 (2010)
(stating failure to raise objection to prosecutor's comment at trial waives
claim of error arising from comment).
Notwithstanding Appellant’s waiver of the claim, a new trial is not
warranted.
Our standard of review for a claim of prosecutorial
misconduct is limited to whether the trial court abused its
discretion. In considering this claim, our attention is focused on
whether the defendant was deprived of a fair trial, not a perfect
one. Not every inappropriate remark by a prosecutor constitutes
reversible error. A prosecutor's statements to a jury do not
occur in a vacuum, and we must view them in context. Even if
the prosecutor's arguments are improper, they generally will not
form the basis for a new trial unless the comments unavoidably
prejudiced the jury and prevented a true verdict.
Commonwealth v. Bedford, 50 A.3d 707, 715–16 (Pa.Super. 2012) (en
banc) (citations, quotation marks, and quotations omitted).
With regard to the prosecutor presenting the testimony of the three
state troopers, the trial court indicated:
[Appellant] first claims that the District Attorney knowingly led
three state troopers to lie and allowed perjury. [Appellant] does
not point to a specific portion of the record to support his claim.
Although [Appellant’s] testimony was in conflict with that of the
state troopers, there is nothing upon review of the record to
indicate that a state trooper gave false testimony or that false
evidence was presented. Defense counsel thoroughly cross-
examined each witness. [Appellant] is arguing that his testimony
should be believed over that of three Pennsylvania state troopers
who testified. In weighing the credibility of a witness, including
the defendant, the jury is free to weigh and reject the questions
trial counsel raised. The jury obviously found the state troopers’
- 16 -
J-S91044-16
testimony more credible than [Appellant’s testimony]. This is
not prosecutorial misconduct.
Trial Court Opinion, filed 9/21/16, at 4-5. We find no abuse of discretion in
this regard.
Additionally, with regard to the prosecutor’s statements during closing
argument, the trial court indicated, in relevant part:
[The challenged statements] can hardly be characterized as
prosecutorial misconduct. The prosecutor is drawing inferences
on the evidence that was presented. Further, the [prosecutor’s]
remarks [were a fair] response to defense counsel’s attack on
[Talada] arguing he was lying. See [N.T. 11/20/14 at] 164, 166
(wherein defense counsel [argued during closing] that [Talada]
was lying).
Trial Court Opinion, filed 9/21/16, at 6. We find no abuse of discretion in
this regard. Commonwealth v. Judy, 978 A.2d 1015 (Pa.Super. 2009)
(holding the prosecutor may fairly respond to comments made by defense
counsel during closing and may draw fair inferences from the evidence
presented).
In his fifth claim, Appellant alleges the trial court erred in denying his
pre-trial motion in limine seeking to disqualify the district attorney, Daniel J.
Barrett, Esquire, from prosecuting this case. Appellant initially avers
disqualification was necessary under the Rules of Professional Conduct since
the district attorney and Talada’s counsel, Patrick Barrett, are brothers.
Appellant additionally suggests disqualification was necessary since the
district attorney had a conflict of interest in that he utilized Talada to present
false testimony against Appellant so that the district attorney could convict
- 17 -
J-S91044-16
Appellant, and in return, the district attorney gave his brother’s client
(Talada) favorable treatment
We note that “[w]e review the trial court's decisions on disqualification
and conflict of interest for an abuse of discretion.” Commonwealth v.
Sims, 799 A.2d 853, 856 (Pa.Super. 2002).
In his pre-trial motion, Appellant sought disqualification of the district
attorney under Pennsylvania Rule of Professional Conduct 1.7, which
provides the following:
Rule 1.7. Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not
represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse
to another client; or
(2) there is a significant risk that the representation of one
or more clients will be materially limited by the lawyer's
responsibilities to another client, a former client or a third person
or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of
interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be
able to provide competent and diligent representation to each
affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a
claim by one client against another client represented by the
lawyer in the same litigation or other proceeding before a
tribunal; and
(4) each affected client gives informed consent.
Pa. R. Prof. Conduct, Rule 1.7.
In the case sub judice, we conclude the district attorney was not
required to be disqualified under Rule 1.7. By its plain terms, Rule 1.7
- 18 -
J-S91044-16
relates to a client’s interest as it relates to his attorney. Appellant is not the
client of either Daniel J. or Patrick Barrett. Simply put, Appellant has not
explained how Rule 1.7 is applicable to his circumstance.
Furthermore, we find meritless Appellant’s suggestion the district
attorney had a conflict of interest in that he utilized Talada to present false
testimony against Appellant so that the district attorney could convict
Appellant, and in return, the district attorney gave his brother’s client
(Talada) favorable treatment. The record reveals that Appellant, and not
the district attorney, called Talada as a witness during trial. Moreover, aside
from vague, bald assertions, Appellant has not explained what false
testimony was suborned by the district attorney. Accordingly, the trial court
did not abuse its discretion in denying Appellant’s pre-trial motion seeking
disqualification of the district attorney. See Sims, supra.In his final claim, Appellant alleges the trial court erred in permitting
the Commonwealth to amend the Information in violation of Pennsylvania
Rule of Criminal Procedure 564. Specifically, he avers the trial court
improperly permitted the Commonwealth to amend the original Information
to add new, additional charges resulting in prejudice to him.
Our rules of criminal procedure allow a trial court to grant a motion to
amend a criminal information “when there is a defect in form, the
description of the offense(s), the description of any person or any property,
or the date charged, provided the information as amended does not charge
- 19 -
J-S91044-16
an additional or different offense.” Pa.R.Crim.P. 564. After allowing such an
amendment, “the court may grant such postponement of trial or other relief
as is necessary in the interests of justice.” Id.Our courts have applied amendment rules “with an eye toward [their]
underlying purposes and with a commitment to do justice rather than be
bound by a literal or narrow reading of procedural rules.” Commonwealth
v. Grekis, 601 A.2d 1284, 1289 (Pa.Super. 1992). This Court has observed
that “[t]he purpose of Rule 564 is to ensure that a defendant is fully
apprised of the charges, and to avoid prejudice by prohibiting the last
minute addition of alleged criminal acts of which the defendant is
uninformed.” Commonwealth v. Mentzer, 18 A.3d 1200, 1202 (Pa.Super.
2011) (quotation marks and quotation omitted). Thus, our case law “sets
forth a broader test for propriety of amendments than the plain language of
the rule suggests.” Commonwealth v. Mosley, 585 A.2d 1057, 1060
(Pa.Super. 1991) (en banc) (citation omitted).
In reviewing a challenge to the propriety of an amendment, this Court:
will look to whether the appellant was fully apprised of the
factual scenario which supports the charges against him. Where
the crimes specified in the original information involved the same
basic elements and arose out of the same factual situation as the
crime added by the amendment, the appellant is deemed to
have been placed on notice regarding his alleged criminal
conduct and no prejudice to defendant results.
- 20 -
J-S91044-16
Commonwealth v. Sinclair, 897 A.2d 1218, 1222 (Pa.Super. 2006)
(citations omitted). Relief is proper only where the amendment prejudices a
defendant. Id.Further, the factors which the trial court must consider in determining
whether an amendment is prejudicial are:
(1) whether the amendment changes the factual scenario
supporting the charges; (2) whether the amendment adds new
facts previously unknown to the defendant; (3) whether the
entire factual scenario was developed during a preliminary
hearing; (4) whether the description of the charges changed
with the amendment; (5) whether a change in defense strategy
was necessitated by the amendment; and (6) whether the timing
of the Commonwealth's request for amendment allowed for
ample notice and preparation.
Id. (citation omitted). Most importantly, we emphasize that “the mere
possibility amendment of information may result in a more severe penalty ...
is not, of itself, prejudice.” Commonwealth v. Mentzer, 18 A.3d 1200,
1203 (Pa.Super. 2011) (quotation and quotation marks omitted).
Here, in explaining the reasons it granted the Commonwealth’s motion
to amend the original Information, the trial court relevantly explained as
follows:
The original [I]nformation charged Criminal Conspiracy—
Robbery—demand money from financial institution, F2, 18
Pa.C.S.A. § 903(a)(1) and § 3701(a)(1)(vi) and Robbery—
demand money from financial institution, F2, 18 Pa.C.S.A. §
3701(a)(1)(vi). The Commonwealth filed a Motion to Amend
Information on September 26, 2014, to include: Robbery, F1, 18
Pa.C.S.A. § 3701(a)(1)(ii); Robbery, F2, 18 Pa.C.S.A. §
3701(a)(1)(iv), and two counts of Conspiracy to Commit
Robbery, 18 Pa.C.S.A. § 903(a)(1), and § 3701(a)(1)(iv) and §
- 21 -
J-S91044-16
3701(a)(1)(ii). The relevant portions of the robbery statute are
as follows:
(a) Offense defined.-
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
***
(ii) threatens with or intentionally puts him in
fear of immediate serious injury;
***
(iv) inflicts bodily injury upon another or
threatens another with or intentionally puts him in
fear of immediate bodily injury;
***
(vi) takes or removes the money of a financial
institution without permission of the financial
institution by making a demand of an employee of
the financial institution orally or in writing with the
intent to deprive the financial institution thereof.
[18 Pa.C.S.A. § 3701(a)(1)(ii), (iv), and (vi).]
The Commonwealth argued [that] the additional counts
are cognate offenses of the original charges, are supported by
the Affidavit of Probable Cause, [allege] no additional elements
or conduct ... and there is no unfair surprise [to Appellant.]
[Appellant] argue[d] that the amendments include additional
elements and conduct which were not alleged in the original
[I]nformation and complaint[.] [For instance, Appellant alleged
the following additional elements and conduct were included in
the amended Information which were not included in the original
Information and complaint]:
(a) threatening or putting another in fear of
immediate serious bodily injury and threatening
or putting another in fear of bodily injury;
***
(c) committing the over act “did enter Citizens
and Northern Bank” and approach Karen Hall and
state “This is a robbery, put all the money in the
bag” and brandished a handgun putting her in
fear of immediate serious bodily injury.
Defense Answer to Commonwealth’s Motion to Amend, [filed
9/30/14.] The Amendment to Information was permitted by
- 22 -
J-S91044-16
Order of October 23, 2014. Trial took place on November 20,
2014.
***
[Here, the trial court considered the following factors in]
permitting the amendment to the [I]nformation:
(1) The amendments did not change the factual scenario
supporting the charges. The Affidavit of Probable Cause
set forth the factual scenario: that two occupants were in a
Subaru vehicle parked in the parking lot; one occupant
exited the vehicle wearing a white ball cap, black gloves,
large sunglasses[,] and a dark winter coat while carrying a
backpack; he entered the bank building and walked to a
teller station and stated “This is a robbery, put all the
money in the bag;” he pulled a handgun out with his right
hand. [See] Affidavit of Probable Cause.
(2) The amendment does not add new facts that were not
known to [Appellant]. As set forth in (1) above, the facts
were set forth in the Affidavit of Probable Cause. Further,
numerous charges in the original [I]nformation allege the
brandishing of a handgun and/or threatening or putting
another in fear of immediate serious bodily injury. See
[Original] Information Count 1 Criminal Conspiracy—
Robbery, Counts 2 and 3, Criminal Conspiracy—Terroristic
Threats; Counts 5 and 6, Criminal Conspiracy—Unlawful
Restraint, Counts 7 and 8 Simple Assault; Counts 9 and
10; and Criminal Conspiracy—Recklessly Endangering
Another Person.
(3) [Appellant] waived his preliminary hearing. [Appellant]
argues that he had a right to a preliminary hearing on
these additional charges. However, again, [Appellant] was
aware of the factual scenario. Further, [Appellant]
executed a plea agreement at the time of the preliminary
hearing wherein term #4 stated “If the Defendant does not
comply with this agreement, the Commonwealth may
amend or add to the charges or take other prosecutorial
options.” See Commonwealth Brief, Exhibit A—Agreement
at Preliminary Hearing.
(4) The description of the charges did not change with the
amendment. The amended charges were based on
Robbery.
- 23 -
J-S91044-16
(5) [Appellant] did not argue that [his] defense strategy was
required to change after the amendment. The only
[reasonable] defenses available for any of the charges
would be that [Appellant] did not commit the acts or
agreement, that he was unaware of [Talada’s] actions, or
that he abandoned any conspiracy. [Thus, there was no]
change of defense strategy as a result of the amendment.
(6) The request for amendment allowed for ample notice and
preparation time. The Motion to Amend was filed on
September 26, 2014. The Amendment was permitted by
Order of October 23, 2014. Trial took place on November
20, 2014. [Appellant] did not request a continuance of the
trial.
***
Here, although the elements of “threatens or intentionally
puts another in fear of bodily injury or serious bodily injury” are
separate elements, they are not additional facts. [Appellant]
does not cite any prejudice as a result of the amendment.
[Appellant] makes only a bald assertion of prejudice in his
Response [as follows]: “The amendment at this time causes
unfair surprise and prejudices the defendant in that had the
more serious allegations been alleged in the complaint, the
defendant may have opted to challenge a prima facie case of
guilt on those issues.” However, the serious allegations of
brandishing a gun and placing another in fear of serious bodily
injury are set forth in the Affidavit of Probable Cause, the
complaint, and the original Information. [Thus,] there was no
prejudice to [Appellant] and no error in permitting the
amendment to the Information.
Trial Court Opinion, filed 3/11/16, at 12-18.
In the case sub judice, based upon our review of the certified record, it
is evident that the trial court fully considered the mandates of Pa.R.Crim.P.
564 and its accompanying case law prior to granting the Commonwealth's
motion to amend the criminal Information. We find no abuse of discretion
- 24 -
J-S91044-16
and conclude the trial court acted well within the boundaries of its role in
granting the Commonwealth’s motion for amendment.
For all of the foregoing reasons, we affirm the judgment of sentence.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2017
- 25 -