Com. v. Melton, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ARTHUR MELTON :
:
Appellant : No. 849 EDA 2018
Appeal from the Judgment of Sentence February 20, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011945-2014
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED APRIL 27, 2020
Appellant, Arthur Melton, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial conviction for tampering with records or identification.1 We affirm.
In its opinion, the trial court accurately set forth the relevant facts and
procedural history of this case as follows:
I. FACTUAL HISTORY
In 2005, Appellant became the principal of Bok Vocational
and Technical High School (“Bok High School”), previously
located on 1901 S. 9th Street, Philadelphia, Pennsylvania.
That same year, less than five percent of students at Bok
High School made grade-level proficiency on the
Pennsylvania System of School Assessment (“PSSA”)
administered that year.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 4104(a).
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The Data Recognition Corporation (“DRC”) created and
scored the PSSAs. It also compiled reports for the
Pennsylvania Department of Education on a variety of
measures that included school performance and test erasure
patterns. According to the DRC reports, Bok High School’s
PSSA scores increased from 2007 to 2010. Furthermore, in
2010 PSSA scores showed that 71.1 percent of the student
body was proficient or advanced in mathematics and 53.1
percent was proficient or advanced in reading.
Bok High School’s rapid rise in proficiency levels correlated
to an abnormally high number of wrong-to-right erasure
patterns on the PSSA student answer sheets. In 2012,
following an investigation by the Pennsylvania Office of
Inspector General, PSSA scores for Bok High School dropped
sharply and the number of wrong-to-right erasures dropped
to normal levels. Forensic data reports and expert
testimony concluded that, from at least 2009 to 2011, PSSA
scores from Bok High School were not authentic.
On March 6, 2012, Investigator Raymond Harper from the
Pennsylvania Office of Inspector General interviewed
Appellant in response to forensic data reports of fraudulent
PSSA scores. Present with Investigator Harper were three
members of his staff. During the interview, Appellant was
tense and evasive when questioned about test security
procedures and information showing the high number of
erasures on the PSSA answer sheets.
Less than two months later, on April 26, 2012, Philip
Roberts, Investigations Manager of the Office of Inspector
General, interviewed Appellant at the agency’s office in
Philadelphia, Pennsylvania. Attorneys Justin Weber and Ian
McCurdy also joined Investigator Roberts during the
interview of Appellant who was accompanied by his union
representative. In response to questions about the high
number of erasures on the tests, Appellant again became
nervous and agitated. During the interview, Appellant
confessed that he personally erased test answers from 2008
to 2011. At trial, Appellant said that he falsely confessed to
manipulating the answer sheets because he believed a
confession would end the ongoing investigation at Bok High
School.
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In 2012[,] the Pennsylvania Department of Education
brought disciplinary charges against Appellant. As a result
of these charges, Appellant surrendered his teaching
licenses for chemistry, biology, and other sciences, as well
as his superintendent certification, principal and secondary
[principal] certifications. Criminal charges subsequently
followed.
II. PROCEDURAL HISTORY
Appellant was arrested on September 25, 2014 and charged
with Tampering with Public Records or Information, Forgery,
and Tampering with Records or Identification. On
September 15, 2017, a jury returned a verdict of guilty on
the charge of Tampering with Records or Identification, and
not guilty on the charge of Tampering with Public Records
or Information. A judgment of acquittal was entered on the
charge of Forgery. On February 20, 2018, Appellant was
sentenced to twelve (12) months’ non-reporting probation.
Appellant then filed a timey appeal [on March 22, 2018].
(Trial Court Opinion, filed July 10, 2019, at 3-5) (internal citations omitted).2
Appellant raises the following issues for our review:
DID THE COURT ERR BELOW WHEN IT PROVIDED AN
INCORRECT JURY INSTRUCTION ON BURDEN OF PROOF
REQUIRED WHEN CONSIDERING THE RULE OF CORPUS
DELICTI?
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2 On March 23, 2018, the court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
filed two motions for extension of time, but there are no orders in the record
or notations in the docket granting Appellant’s request. Appellant filed a Rule
1925(b) statement on May 7, 2018. Even if Appellant’s Rule 1925(b)
statement was untimely, the trial court opinion addresses the issues raised,
so we can overlook any untimeliness. See Commonwealth v. Burton, 973
A.2d 428, 433 (Pa.Super. 2008) (en banc) (explaining this Court may address
merits of criminal appeal, where defendant files untimely Rule 1925(b)
statement, if trial court had adequate opportunity and chose to prepare
opinion addressing issue(s) raised on appeal).
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DID THE COURT ERR WHEN IT DENIED IN PART
[APPELLANT]’S MOTION FOR JUDGMENT OF ACQUITTAL ON
ALL CHARGES AT THE CLOSE OF THE COMMONWEALTH’S
CASE-IN-CHIEF?
DID THE COURT ERR BELOW WHEN IT DID NOT GRANT
[APPELLANT] A NEW TRIAL BECAUSE THE EVIDENCE
PRESENTED WAS INSUFFICIENT TO PROVE HIS GUILT OF
ANY CRIME?
DID THE COURT ERR BELOW WHEN IT DID NOT GRANT
[APPELLANT]’S ORAL REQUEST FOR A MISTRIAL MADE
DURING THE TESTIMONY OF COMMONWEALTH’S WITNESS
PHIL ROBERTS?
(Appellant’s Brief at 6-7).
In his first issue, Appellant argues that under the rule of corpus delicti,
the trial court must first determine that the prosecution has demonstrated by
a preponderance of the evidence that a crime actually occurred before allowing
a confession or admission of the accused into evidence. Appellant asserts this
rule is designed to guard against using an inculpatory statement against a
defendant when there is insufficient evidence for the jury to consider that a
crime had been committed at all. Once the trial court permits an inculpatory
statement to be used against the defendant, Appellant contends the second
part of the corpus delicti rule requires the trial court to instruct the jury that
the defendant’s inculpatory statement may be used against him only if the
jury first concludes beyond a reasonable doubt that a crime was
committed. Appellant concedes the trial court properly allowed Appellant’s
admission into evidence but challenges the court’s jury instruction regarding
his statement. Specifically, Appellant complains the trial court failed to
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instruct the jury that it could only use Appellant’s statement against him if it
first found beyond a reasonable doubt that a crime was committed.
Appellant stresses that the court omitted the words “beyond a reasonable
doubt” from its corpus deliciti instruction and instead informed the jury it could
consider Appellant’s admission against him once the jury found a crime “in
fact” had been committed. Appellant emphasizes that the court’s erroneous
instruction could not have been harmless error because the Commonwealth
presented no evidence linking Appellant to the crime, other than Appellant’s
statement. Appellant concludes the court’s failure to issue the proper jury
instruction warrants reversal of Appellant’s conviction and/or a new trial. We
disagree.
Preliminarily, “to preserve a claim that a jury instruction was
erroneously given, the [a]ppellant must have objected to the charge at trial.”
Commonwealth v. Parker, 104 A.3d 17, 29 (Pa.Super. 2014), appeal
denied, 632 Pa. 669, 117 A.3d 296 (2015). Our Supreme Court has explained:
The pertinent rules [of criminal procedure] require a specific
objection to the [jury] charge or an exception to the trial
court’s ruling on a proposed point to preserve an issue
involving a jury instruction. Although obligating counsel to
take this additional step where a specific point for charge
has been rejected may appear counterintuitive, as the
requested instruction can be viewed as alerting the trial
court to a defendant’s substantive legal position, it serves
the salutary purpose of affording the court an
opportunity to avoid or remediate potential error,
thereby eliminating the need for appellate review of
an otherwise correctable issue. This is particularly so
where a judge believes that the charge adequately covered
the proposed points.
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Commonwealth v. Pressley, 584 Pa. 624, 630-31, 887 A.2d 220, 224
(2005) (internal citations and footnotes omitted) (emphasis added). Further,
“to preserve a challenge to…a supplemental charge, defense counsel must
make a specific objection before the jury returns to its deliberations.”
Commonwealth v. Betz, 664 A.2d 600, 619 (Pa.Super. 1995), appeal
denied, 544 Pa. 600, 674 A.2d 1065 (1996) (emphasis in original). Failure to
do so results in waiver of the claim on appeal. Id.Instantly, the court issued the following charge to the jury, in relevant
part:
In this case the Commonwealth has introduced evidence of
a statement that it claims was made by the defendant.
Before you may consider the statement as evidence against
the defendant, you must find that a crime was in fact
committed, that the defendant in fact made the statement,
and that the statement was voluntary. Otherwise you must
disregard the statement. …
(N.T. 9/14/17, at 48). After the court finished its jury charge in its entirety,
Appellant made a series of objections. Appellant objected to the court’s failure
to define “beyond a reasonable doubt”; Appellant objected to the court’s
omission of “beyond a reasonable doubt” from the corpus delicti instruction;
Appellant objected to a portion of the charge regarding character evidence;
and Appellant objected to a portion of the charge regarding circumstantial
evidence. After hearing arguments from counsel, the court overruled
Appellant’s objection regarding the charge related to circumstantial evidence,
but the court agreed to issue a supplemental jury charge regarding the
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definition of “beyond a reasonable doubt,” the corpus delicti instruction, and
character evidence. Specifically, the court agreed to revise the corpus delicti
instruction to state: “you must find that a crime was in fact committed beyond
a reasonable doubt…” (Id. at 72). Nevertheless, when the court brought the
jury back in, the court issued only two supplemental instructions: a definition
of “beyond a reasonable doubt” and a revised character evidence instruction.
The court omitted any supplemental corpus delicti instruction. Appellant,
however, said nothing in response to the court’s supplemental instructions.
Under these circumstances, the record makes clear Appellant waived his
first issue on appeal. Although Appellant submitted a proposed point for
charge regarding the corpus delicti instruction and initially objected to the
court’s jury instructions, Appellant failed to object to the court’s supplemental
instructions. The record suggests the court’s omission of Appellant’s
requested supplemental instruction was merely inadvertent, as the court had
already agreed to give Appellant the instruction he sought. Appellant’s failure
to object to the court’s supplemental instruction deprived the court of an
opportunity to correct its error at the appropriate stage of the proceedings
and to alleviate an appellate issue. See Pressley, supra; Betz, supra.Thus, Appellant’s first issue is waived.
In his second and third issues, Appellant initially argues the court should
have granted his motion for judgment of acquittal on the tampering charges
when the court granted his motion for judgment of acquittal on the forgery
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charge. Appellant asserts the court granted his motion for judgment of
acquittal on the forgery charge because there was insufficient evidence that
Appellant “altered the writing of another without his authority.” Appellant
suggests the court correctly decided the PSSA answer sheets did not
constitute a “writing” sufficient for a forgery conviction. Appellant submits the
PSSA answer sheets also could not constitute a “record” for purposes of the
tampering charges. Appellant further emphasizes that the Commonwealth
presented no evidence that Appellant actually altered any particular answer
sheet. Appellant highlights that the Commonwealth did not produce any of
the allegedly altered answer sheets at trial or any witnesses who observed
Appellant change a student’s answer sheet. Appellant contends it was mere
speculation that Appellant was the person who altered the answer sheets.
Thus, Appellant maintains the court should not have permitted the jury to
deliberate on the tampering charges and should have granted his motion for
judgment of acquittal in its entirety. Appellant further avers there was not
one shred of evidence aside from his confession that tied him to the
commission of any crime. Appellant maintains the evidence was insufficient
to demonstrate a crime was committed at all. Appellant insists the testimony
did not support a finding beyond a reasonable doubt that the students
themselves did not alter the answer sheets. Appellant concludes the evidence
was insufficient to sustain his conviction, and this Court must reverse. We
disagree.
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When examining a challenge to the sufficiency of evidence, 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. Hutchinson, 947 A.2d 800, 805-06 (Pa.Super. 2008),
appeal denied, 602 Pa. 663, 980 A.2d 606 (2009) (quoting Commonwealth
v. Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006), appeal denied, 592
Pa. 778, 926 A.2d 972 (2007)) (emphasis omitted). “A motion for judgment
of acquittal challenges the sufficiency of the evidence to sustain a conviction
on a particular charge, and is granted only in cases in which the
Commonwealth has failed to carry its burden regarding that charge.”
Hutchinson, supra at 805.
The Crimes Code defines the offense of tampering with records or
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identification, in relevant part, as follows:
§ 4104. Tampering with records or identification
(a) Writings.—A person commits a misdemeanor of
the first degree if, knowing that he has no privilege to do
so, he falsifies, destroys, removes or conceals any writing
or record, or distinguishing mark or brand or other
identification with intent to deceive or injure anyone or to
conceal any wrongdoing.
18 Pa.C.S.A. § 4104(a).
Instantly, the trial court reasoned:
The evidence was sufficient for the jury to find Appellant
guilty of Tampering with Records or Identification. Expert
testimony and several witnesses indicated that from 2007
to 2011 a non-student had manipulated PSSA test answers
at Bok High School without authorization. Furthermore,
because the Commonwealth can meet its burden on
circumstantial evidence alone, it was not necessary to admit
the compromised answer sheets. The overwhelming
amount of circumstantial evidence presented against
Appellant was sufficient for the jury to make a conviction
regardless of whether the answer sheets were admitted or
not. Lastly, Appellant’s confession of having manipulated
the answer sheets from 2007 to 2011 allowed the jury to
identify the perpetrator of the crime. Viewing the evidence
in the light most favorable to the Commonwealth, the
evidence was sufficient for the jury to find Appellant guilty
of the charge of Tampering with Records or Identification.
(Trial Court Opinion at 7) (internal citations omitted). We agree with the trial
court’s analysis. See Hutchinson, supra. Additionally, the PSSA answer
sheets constitute a “writing or record” sufficient to sustain Appellant’s
conviction under Section 4104(a). See 18 Pa.C.S.A. § 4104(a). Further,
Appellant’s acquittal on the forgery charge does not entitle him to relief where
the Commonwealth presented sufficient evidence to convict Appellant under
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the tampering statute. See Commonwealth v. Magliocco, 584 Pa. 244,
266, 883 A.2d 479, 492 (2005) (explaining general rule that mere facial
inconsistency in verdicts is not valid basis upon which to upset conviction
which is otherwise proper, since consistency in verdicts is not required under
Pennsylvania law). Thus, Appellant’s second and third issues on appeal merit
no relief.
In his fourth issue, Appellant argues that during the Commonwealth’s
case-in-chief, Philip Roberts, an investigator in the Office of the Inspector
General, impermissibly testified that he had “success with getting admissions
or confessions from some of the administrators that were involved with these
testing abnormalities, or cheating, throughout the different parts of the state.”
Appellant asserts he immediately moved for a mistrial, arguing the extreme
prejudice inuring to Appellant from this testimony. Appellant contends the
trial court erred when it permitted the jury to consider evidence that improper
conduct had occurred at other schools and that this investigator had been
brought in to coax a confession out of Appellant. Appellant insists the fact
that similar conduct had occurred at other schools and that other
administrators in those schools confessed to wrongdoing is entirely irrelevant
to what allegedly occurred at Bok High School and who might have
perpetrated any misconduct. Appellant claims the Commonwealth should not
have been permitted to prove its case using evidence pertaining to conduct
that allegedly took place at other schools throughout Pennsylvania. Appellant
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concludes the trial court abused its discretion and erred as a matter of law
when it did not grant Appellant’s request for a mistrial, and this Court must
remand for a new trial. We disagree.
Our standard of review from the court’s denial of a motion for a mistrial
is as follows:
The trial court is in the best position to assess the effect of
an allegedly prejudicial statement on the jury, and as such,
the grant or denial of a mistrial will not be overturned absent
an abuse of discretion. A mistrial may be granted only
where the incident upon which the motion is based is of such
a nature that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from weighing
and rendering a true verdict.
Commonwealth v. Rega, 593 Pa. 659, 692, 933 A.2d 997, 1016 (2007),
cert. denied, 552 U.S. 1316, 128 S.Ct. 1879, 170 L.Ed.2d 755 (2008).
Instantly, the trial court addressed Appellant’s challenge as follows:
Appellant raised a motion for a mistrial because of the
following testimony by Mr. [Roberts]: “Prior I had success
with getting admissions or confessions from some of the
administrators that were involved with these testing
abnormalities, or cheating, throughout different parts of the
state.” Mr. [Roberts] served as the Investigations Manager
of the Pennsylvania Office of Inspector General for a series
of cheating scandals that had occurred throughout the state.
That Mr. [Roberts] had heard confessions from other
administrators did not prejudice Appellant. In addition, the
[t]rial [c]ourt restricted [examination] to Appellant’s
confession alone and Appellant himself had the opportunity
to recant his confession. The [t]rial [c]ourt therefore did
not abuse its discretion in denying the motion for a mistrial.
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(Trial Court Opinion at 15) (internal citations omitted).3 We see no abuse of
discretion concerning the court’s denial of Appellant’s motion for mistrial. See
Rega, supra.Additionally, in his opening statement to the jury, defense counsel
discussed how approximately 56 schools in the Commonwealth were under
investigation for unusual erasure patterns and that hundreds of teachers and
administrators in schools across the state had been interviewed. Evidence
regarding the unusual erasure patterns across other schools also came out
during various witnesses’ testimony, without objection from Appellant. At the
time Appellant moved for a mistrial, the court denied the motion because there
had been “ample testimony, evidence and questioning” regarding the
investigations at other schools. (N.T. 9/12/17, at 6-9). Further, during
closing arguments, defense counsel highlighted Mr. Roberts’ allegedly
improper testimony by stating Mr. Roberts interviewed Appellant because
“he’s good at getting confessions,” in an effort to make Appellant’s admission
appear involuntary. Defense counsel again discussed the 56 schools under
investigation in the Commonwealth during closing arguments. Under these
circumstances, Mr. Roberts’ single mention of confessions by other
administrators did not warrant a mistrial. See Rega, supra. Therefore,
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3In its opinion, the trial court mistakenly refers to Mr. Roberts as Mr. Raymond
Harper. Mr. Harper testified the day before Mr. Roberts and also interviewed
Appellant. Thus, we have substituted Mr. Roberts’ name for Mr. Harper’s
name in our recitation of the trial court’s discussion of this issue.
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Appellant’s fourth issue merits no relief. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/20
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