Com. v. Leonard, A. ( 2015 )


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  • J. A26031/15
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    v.                   :
    :
    ANN MARIE LEONARD,                       :         No. 350 MDA 2015
    :
    Appellant     :
    Appeal from the Judgment of Sentence, January 21, 2015,
    in the Court of Common Pleas of Franklin County
    Criminal Division at No. CP-28-CR-0000245-2014
    BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 19, 2015
    Ann Marie Leonard appeals from the judgment of sentence of
    January 21, 2015, following her conviction of one count of retail theft. 1 We
    affirm.
    The facts in this case are as follows: on November 6, 2013, appellant
    and her friend, Margaret Alvarez (“Alvarez”), decided to go grocery shopping
    at Walmart in Chambersburg, Pennsylvania, in preparation for the upcoming
    holidays. (Notes of testimony, 12/18/14 at 58.) Upon arriving at Walmart,
    appellant and Alvarez decided to share a shopping cart, keeping their items
    separate so they could each pay for their own items.      (Id. at 61.)   After
    * Retired Senior Judge assigned to the Superior Court.
    1
    18 Pa.C.S.A. § 3929.
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    filling their initial cart, Alvarez went to get another cart while appellant
    remained in the store’s grocery section. (Id. at 22-23, 62.) After reuniting,
    appellant and Alvarez separated again so that appellant could visit a friend
    working at the bank located within the store.     (Id. at 62-63.)   Appellant
    thought that she saw Alvarez leaving the store from the bank, and in what
    appellant testified was an effort to attempt to prevent Alvarez from leaving
    the store without her, appellant walked into the vestibule between the inside
    and outside doors of the store with the cart and was confronted by a
    Walmart asset protection associate, Cody Davis (“Davis”).       (Id.)    Davis
    allowed appellant to call Alvarez, who met them in the vestibule.       (Id. at
    50.) Upon Alvarez’s arrival to the vestibule, Davis “told her what was going
    on.” (Id. at 52.) Davis also testified that Alvarez told him that she believed
    that appellant intended to steal the items in the cart. (Id. at 84.) During
    the course of her conversation with Davis, Alvarez testified that she
    “probably did apologize” for the incident, but she did not recall making any
    statements as to appellant’s intention to leave Walmart without paying for
    her items. (Id. at 76.)
    The trial court has set forth the procedural history of this matter as
    follows:
    This case began with the filing of a Criminal
    Police Complaint by the Pennsylvania State Police on
    November 26, 2013 charging [appellant] with one
    count of Retail Theft graded as a misdemeanor of the
    first degree.       [Appellant] appeared for her
    preliminary hearing with counsel on January 28,
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    2014; [appellant] waived her right to a preliminary
    hearing   and   was   scheduled    for  mandatory
    arraignment in the Court of Common Pleas on
    March 12, 2014.
    On March 7, 2014, the Commonwealth filed an
    Information charging [appellant] with one count of
    Retail Theft graded as a misdemeanor of the first
    degree.     [Appellant] appeared for mandatory
    arraignment on March 12, 2014 and entered a plea
    of not guilty on the Information.      After several
    continuances of the case, [appellant] appeared
    before the trial court for a pretrial conference on
    October 31, 2014.        Trial was scheduled for
    December 18, 2014.
    Trial convened as scheduled and [appellant]
    was convicted as charged. The trial court entered an
    order at the conclusion of trial directing the Franklin
    County Adult Probation Department to prepare a
    mini pre-sentence report and set sentencing for
    January 21, 2015 before [Hon. Jeremiah D. Zook.]
    [Appellant] appeared for sentencing as scheduled;
    the Court sentenced [appellant] to serve a period of
    probation of 60 months on various conditions. On
    February 2, 2015, [appellant] filed a timely
    Post-Sentence         Motion         Pursuant        to
    Pa.R.Crim.P. 720(B).     [Appellant] challenged this
    Court’s imposition of 60 months of probation and the
    condition of 400 hours of community service;
    [appellant] requested that the length of probation be
    shortened to 24 months and the community service
    hours be reduced to 250. On February 4, 2015, this
    Court denied [appellant’s] motion without hearing.
    On February 23, 2015, [appellant] filed her
    Notice of Appeal of this Court’s judgment of
    sentence, dated January 21, 2015 denying
    [appellant’s] motion. This Court issued an order on
    the same date directing [appellant] to file a
    statement of errors complained of on appeal
    pursuant to Pa.R.A.P. 1925. On March 16, 2015,
    [appellant] complied with this Court’s February 23,
    2015 directive.
    -3-
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    Trial court opinion, 4/16/15 at 2-4.
    Appellant has raised the following issues for this court’s review
    challenging the admissibility of evidence at trial and the discretionary
    aspects of her sentence:
    I.     Whether the Trial Court abused its discretion
    when it allowed the Commonwealth to present
    evidence of a defense witness’s prior
    inconsistent statement when, in fact, the
    defense witness’s testimony at trial was not
    inconsistent with her previous statement?
    II.    Whether the Trial Court abused its discretion in
    denying Appellant’s Post-Sentence Motion for
    Modification of Sentence after the Court
    sentenced Appellant to 60 months probation
    and to complete 400 community service hours?
    Appellant’s brief at 6.
    The first issue for our review is whether the trial court abused its
    discretion when it permitted the Commonwealth to introduce extrinsic
    evidence of a defense witness’ alleged prior inconsistent statement.
    In reviewing a trial court’s ruling on the admissibility
    of evidence, our standard of review is one of
    deference. Questions concerning the admissibility of
    evidence are “within the sound discretion of the trial
    court . . . [and] we will not reverse a trial court’s
    decision concerning admissibility of evidence absent
    an    abuse    of   the    trial   court’s  discretion.”
    Commonwealth v. Brown, 
    52 A.3d 1139
    , 1197
    (Pa. 2012) (citation omitted).           “An abuse of
    discretion is not merely an error of judgment, but is
    rather the overriding or misapplication of the law, or
    the exercise of judgment that is manifestly
    unreasonable, or the result of bias, prejudice, ill-will,
    or partiality, as shown by the evidence of record.”
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    Commonwealth v. Mendez, 
    74 A.3d 256
    , 260 (Pa.
    Super. 2013), appeal denied, 
    87 A.3d 319
     (Pa.
    2013). “If in reaching a conclusion the trial court
    overrides or misapplies the law, discretion is then
    abused and it is the duty of the appellate court to
    correct the error. Commonwealth v. Weakley,
    
    972 A.2d 1182
    , 1188 (Pa. Super. 2009), appeal
    denied, 
    986 A.2d 150
     (Pa. 2009).
    Commonwealth v. Belknap, 
    105 A.3d 7
    , 9-10 (Pa. Super. 2014).
    The Pennsylvania Rules of Evidence allow the introduction of a witness’
    prior inconsistent statement for the purposes of impeaching the witness.
    Pa.R.E. 613(a). Extrinsic evidence for the purposes of impeachment may be
    introduced under the following three conditions:       (1) the contents of the
    statement are disclosed to the witness; (2) the witness is given an
    opportunity to explain or deny the making of the statement; and (3) an
    adverse   party   is   given   an   opportunity   to   question   the    witness.
    Pa.R.E. 613(b);   Commonwealth        v.   Charleston,   
    16 A.3d 505
    ,   527
    (Pa.Super. 2011). In order to impeach a witness’ credibility, the impeaching
    party must establish that the witness actually made the inconsistent
    statement.     Commonwealth v. Woods, 
    710 A.2d 626
    , 630 (Pa.Super.
    1998).    This court further stated that “a summary of the [witness’]
    statement cannot be used for impeachment purposes absent adoption of the
    statement by the witness as his/her own.” 
    Id.
    We find that Charleston is most analogous to the facts of the instant
    appeal and therefore controls here.        In Charleston, the Commonwealth
    attempted to obtain testimony from Nashua Sanders (“Sanders”), a friend of
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    both the defendant and the victim, and Clara Stanton (“Stanton”), the
    victim’s mother, regarding a conversation in which Sanders allegedly told
    Stanton that “[the defendant] had told Sanders, one week before the
    murder, of his intent to rob the victim.” Charleston, 
    16 A.3d at 509, 526
    .
    At trial, Sanders denied that such a conversation ever took place.     
    Id. at 526
    .   For the purposes of impeaching Sanders, the Commonwealth called
    Stanton to testify about the alleged conversation that she had with Sanders.
    
    Id. at 527
    . This court held that the trial court did not abuse its discretion
    when the trial court permitted Stanton to testify regarding her conversation
    with Sanders, stating that Stanton’s testimony is considered extrinsic
    evidence of a prior inconsistent statement as is permitted by Rule 613(b).
    
    Id.
    In the instant case, the Commonwealth complied with all three
    requirements under Rule 613(b).         First, the Commonwealth confronted
    Alvarez by asking her if she recalled having a conversation with Davis
    regarding   appellant’s   intent   to    steal   the   items   in   question.2
    2
    Davis’s account of his conversation with Alvarez, to which he testified on
    rebuttal, is as follows:
    She [Alvarez] said I’m sorry, I can’t believe this
    happened in that manner, and I [Davis] just simply
    asked her I said, well, do you believe she did it or
    no, and she goes, well, yeah, I do. She’s been
    through a lot and I’m still in shock but yeah, I do.
    Notes of testimony, 12/18/14 at 84.
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    Pa.R.E. 613(b)(1); notes of testimony, 12/18/14 at 76.           Second, the
    Commonwealth, during its cross-examination of Alvarez, provided Alvarez
    with the opportunity to deny or explain her statements. Pa.R.E. 613(b)(2);
    notes of testimony, 12/18/14 at 76. Specifically, during cross-examination,
    Alvarez indicated that she could not recall making such a statement to
    Davis, and that she did not think that she could have made that statement:
    Q:    Do you recall you said you believe that you
    probably apologized, it sounds like something
    you would do, correct?
    A:    Yes.
    Q:    I asked you do you recall telling Mr. Davis that
    you believe Ms. Leonard stole those items?
    A:    I can’t recall, sir.
    Q:    You don’t recall saying that or you don’t recall
    that you—you don’t recall it at all?
    A:    I don’t recall it all, I’m sorry.
    Q:    Do you believe you could have made that
    statement?
    A:    I don’t know. I don’t think so
    Q:    You don’t think so?
    A:    No.
    
    Id.
       Finally, the adverse party had an opportunity to question the witness
    when defense counsel re-examined Alvarez on re-direct. Pa.R.E. 613(b)(3);
    notes of testimony, 12/18/14 at 76-77. During re-direct, Alvarez reiterated
    that while she “probably did apologize” to Walmart asset protection
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    associates for the incident, she did not have any memory of making any
    statements relating to whether or not appellant intended to steal the items
    in question. (Notes of testimony, 12/18/14 at 76.)
    Therefore, we find that the trial court did not abuse its discretion by
    permitting the Commonwealth to introduce extrinsic evidence regarding
    Alvarez’s prior inconsistent statements, and that the Commonwealth
    complied with all three elements of Rule 613(b).
    The second issue before this court is whether the trial court abused its
    discretion in regards to discretionary aspects of appellant’s sentence.
    A challenge to the discretionary aspects of
    sentencing is not automatically reviewable as a
    matter of right. Commonwealth v. Hunter, 
    768 A.2d 1136
     (Pa. Super. 2001)[,] appeal denied, 
    796 A.2d 979
     (Pa. 2001).         When challenging the
    discretionary aspects of a sentence, an appellant
    must invoke the appellate court’s jurisdiction by
    including in his brief a separate concise statement
    demonstrating that there is a substantial question as
    to the appropriateness of the sentence under the
    Sentencing Code. Commonwealth v. Mouzon, 
    812 A.2d 617
        (Pa.   2002);   Commonwealth v.
    Tuladziecki, 
    522 A.2d 17
     (Pa. 1987); 42 Pa. C.S.A.
    § 9781(b); Pa.R.A.P. 2119(f). “The requirement that
    an appellant separately set forth the reasons relied
    upon for allowance of appeal ‘furthers the purpose
    evident in the Sentencing Code as a whole of limiting
    any challenges to the trial court’s evaluation of the
    multitude of factors impinging on the sentencing
    decision to exceptional cases.’” Commonwealth
    v. Williams, 
    562 A.2d 1385
    , 1387 (Pa. Super. 1987)
    (en banc) (emphasis in original).
    Commonwealth v. McNear, 
    852 A.2d 401
    , 407-408 (Pa. Super. 2004).
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    Appellant failed to include a Rule 2119(f) statement in her brief, and
    the Commonwealth has likewise failed to object to the lack of a Rule 2119(f)
    statement. Since the requirement of such a statement is procedural and not
    jurisdictional, “the Commonwealth’s failure to object or otherwise assert the
    defect in the form of Appellant’s brief has resulted in a waiver of defect.”
    Commonwealth v. Titus, 
    816 A.2d 251
    , 255 (Pa.Super. 2003) (citations
    omitted); see also Commonwealth v. Brougher, 
    978 A.2d 373
    , 375
    (Pa.Super. 2009) (failure of the appellant to comply with Rule 2119(f),
    where the Commonwealth does not object to statement’s absence, does not
    compel waiver).       Therefore, we must determine whether there is a
    substantial question requiring us to review the discretionary aspects of the
    sentence imposed by the trial court. Whether an issue raises a substantial
    question    is   a    determination   made   on    a   case-by-case    basis.
    Commonwealth v. McAfee, 849, A.2d 270, 274 (Pa.Super. 2004) (citation
    omitted).
    A substantial question is raised when an appellant “advances a
    colorable argument that the sentencing judge’s actions were either:
    (1) inconsistent with a specific provision of the Sentencing Code; or
    (2) contrary to the fundamental norms which underlie the sentencing
    process.”   Commonwealth v. Prisk, 
    13 A.3d 526
    , 533 (Pa.Super. 2011)
    (citation omitted).
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    In the instant appeal, appellant is unable to meet either of the
    requirements for a substantial question. First, as appellant concedes in her
    brief, the sentencing judge’s actions were not inconsistent with a specific
    provision of the Sentencing Code.      A sentencing judge is permitted to
    impose a sentence of probation for a maximum length equivalent to the
    maximum length in which a defendant may be incarcerated.3 42 Pa.C.S.A.
    § 9754(a).   Specifically, appellant states that she was sentenced by the
    sentencing   court   to   the   “maximum     term   of   probation   permissible.”
    (Appellant’s brief at 22 (emphasis added).) While the sentencing court did
    set appellant’s probation for the statutory maximum of 60 months, it did so
    within the sentencing guidelines, which suggest a penalty ranging from
    restorative sanctions to one month of confinement.
    Second, appellant has failed to demonstrate how her sentence is
    “contrary to the fundamental norms which underlie the sentencing process,”
    as contemplated by this court in Prisk.             Here, the sentencing court
    sentenced appellant to 60 months’ probation, 400 hours of community
    service, and restitution. (Sentencing order, 1/21/15.) The sentencing court
    also added a provision that gave appellant the opportunity to have her
    supervision terminated if she complied with all other terms of her probation
    3
    Appellant was convicted of a first-degree misdemeanor, which carries a
    statutory maximum sentence of five years’ imprisonment. 18 Pa.C.S.A.
    § 1104(1).
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    after 36 months,4 and had all costs and restitution paid in full.        (Id.)   By
    imposing such a sentence, the sentencing court acted fully within its
    discretion under the sentencing guidelines and therefore imposed a sentence
    that was in full compliance with the fundamental norms that underlie the
    sentencing process.
    Therefore, we find that appellant has failed to raise a substantial
    question   as   to   the   discretionary   aspects   of   the   sentencing   court’s
    January 21, 2015 judgment of sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/19/2015
    4
    As noted by the trial court, in order for appellant to qualify to have her
    supervision terminated after 36 months, appellant would be required to
    perform approximately 11 hours per month of community service. (Trial
    court opinion, 4/16/15 at 13.)
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