Com. v. Dietrich, S. ( 2021 )

J-S47044-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SEAN A. DIETRICH :
:
Appellant : No. 229 MDA 2020
Appeal from the Judgment of Sentence Entered September 18, 2019
in the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0001196-2018
BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED JULY 01, 2021
Appellant, Sean A. Dietrich, appeals from his September 18, 2019
judgment of sentence for sale or transfer of firearms and unsworn
falsification to authorities.1 We affirm.
The basic facts of the case are as follows. Carol Brazinski, from C&D
Coin and Gun Shop, sells firearms at gun shows. N.T., 6/12/19, at 8. When
a person is interested in purchasing a gun, Brazinski presents the person
with federal and state forms for their completion before proceeding with the
sale. Id. at 10-18. On June 10, 2017, Brazinski provided such forms to
Appellant at a gun show at the Leesport Farmers Market in Berks County,
Pennsylvania, in response to his request to buy a Smith & Wesson nine-
millimeter pistol. Id. at 9, 20, 28. On the forms, Appellant responded
1 18 Pa.C.S.A. § 6111(g)(4)(ii) and § 4904(b), respectively.
*Retired Senior Judge assigned to the Superior Court.
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affirmatively to a question asking if he had a criminal background, then
changed his answer to no and initialed the change. Id. at 27. Based on
Appellant’s answers, Brazinski proceeded to the next step in the sale, which
was comparing the appearance of the person before her with the photograph
in the driver’s license presented to her. Id. at 35. Because Appellant’s
appearance and photograph matched, she then handwrote his driver’s
license number on the forms and checked his background. Id. at 21-29, 35.
The background check revealed Appellant had a disqualifying criminal
history, so Brazinski did not sell the firearm to Appellant and handwrote a
note indicating that she denied his application. Id. at 30.
Appellant’s application was referred to the Pennsylvania State Police,
and later, to the Berks County police department. Based upon the false
answer he provided on the application, Appellant was charged with sale or
transfer of firearms and unsworn falsification to authorities. Following a
bench trial on June 14, 2019, the trial court found Appellant guilty of the
charged crimes and sentenced Appellant on September 18, 2019, to three to
seven years of incarceration. Appellant timely filed a post-sentence motion
raising challenges to the sufficiency and weight of the evidence. Following
denial of the post-sentence motion, Appellant timely filed a notice of appeal.
Both Appellant and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.
On appeal, Appellant raises the following issues.
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[1.] Was the evidence at trial legally insufficient to sustain a
conviction of:
[a.] Sale or transfer of firearms, as Appellant was
only alleged to have attempted to purchase a
firearm, but no purchase actually took place; the
statute does not include mere “attempts” to
purchase firearms, and Appellant was never charged
with criminal attempt?
[b.] Both charges as evidence produced at trial was
insufficient to convict Appellant of either offense as
the forms giving rise to the offenses were never even
admitted as evidence at trial, would have been
inadmissible as not properly-authenticated had the
Commonwealth bothered to move for their
admission, and without authenticated, admitted
forms, the Appellant’s alleged inculpatory statements
were inadmissible pursuant to the corpus delicti rule?
[2.] Did the verdict go against the weight of the evidence, as no
substantially inculpatory evidence remains after the proper
exclusion of the alleged form and recording?
Appellant’s Brief at 8 (some capitalization altered; trial court and suggested
answers omitted).
We begin with Appellant’s challenges to the sufficiency of the evidence.
In reviewing a challenge to the sufficiency of the evidence, the standard we
apply
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 [this] 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
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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 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. Burton, 234 A.3d 824, 829 (Pa. Super. 2020) (citations
omitted); see also Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.
Super. 2016) (“Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope of review is
plenary.”). “This standard is equally applicable to cases where the evidence
is circumstantial rather than direct so long as the combination of the
evidence links the accused to the crime beyond a reasonable doubt.”
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014).
However, “a conviction must be based on more than mere suspicion or
conjecture.” Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super.
2018) (citation and quotation marks omitted).
Appellant’s first issue also requires us to interpret the Criminal Code.
Because statutory interpretation is a question of law, we use a de novo
standard and plenary scope of review. Commonwealth v. Ballard, 244
A.3d 815, 819-20 (Pa. Super. 2020). Further,
[i]n all matters involving statutory interpretation, we apply the
Statutory Construction Act, 1 Pa.C.S.[A.] §[§] 1501[-1991],
which provides that the object of interpretation and construction
of statutes is to ascertain and effectuate the intention of the
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General Assembly. Generally, a statute’s plain language
provides the best indication of legislative intent. We will only
look beyond the plain language of the statute when words are
unclear or ambiguous, or the plain meaning would lead to a
result that is absurd, impossible of execution or unreasonable. 1
Pa.C.S.[A.] § 1922(1). Therefore, when ascertaining the
meaning of a statute, if the language is clear, we give the words
their plain and ordinary meaning.
Commonwealth v. Torres-Kuilan, 156 A.3d 1229, 1231 (Pa. Super. 2017)
(citation omitted).
In the first part of Appellant’s challenge to the sufficiency of the
evidence, he argues the Commonwealth failed to establish the crime of sale
or transfer of firearms because there was never a sale of a firearm.
Appellant’s Brief at 14-20. Appellant focuses on the language “in connection
with the purchase … of a firearm” used in 18 Pa.C.S.A. § 6111(g)(4)(ii). He
argues that the Commonwealth failed to prove that he made false
statements in connection with a purchase because Brazinski did not sell him
a firearm at the market and the statute does not apply to attempted
purchases. Id. Appellant contends the plain language of the statute
supports his interpretation, or, alternatively, that the statute is ambiguous.
Id. at 19. In his view, if the legislature intended to cover attempted
purchases of firearms, it would have added words such as “purchase or
attempted purchase” to the statute. Id. at 14. He also emphasizes that the
Commonwealth could have charged him with criminal attempt under 18
Pa.C.S.A. § 901(a). Id. In support of his position, he cites to an
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unpublished memorandum of this Court,2 as well as other unrelated statutes
where the legislature used the phrase “in connection with the purchase”
alongside specific language about an attempted purchase. Id. at 15-18.
The subsection under which Appellant was convicted for the sale or
transfer of firearms provides that
[a]ny person, purchaser or transferee commits a felony of
the third degree if, in connection with the purchase,
delivery or transfer of a firearm under this chapter, he
knowingly and intentionally … makes any materially false written
statement, including a statement on any form promulgated by
Federal or State agencies[.]
18 Pa.C.S.A. § 6111(g)(4)(ii) (emphasis added).
The flaw in Appellant’s interpretation of the statute is that it zeroes in
on the phrase “in connection with the purchase … of a firearm” and ignores
the opening clause referring to “[a]ny person, purchaser or transferee.” Id.
“Every statute shall be construed, if possible, to give effect to all its
provisions.” 1 Pa.C.S.A. § 1921(a). “Any person” is plainly broader than a
“purchaser” or “transferee.” The legislature’s use of a term broader than
purchaser or transferee is significant, particularly when considered with the
phrase “in connection with the purchase, delivery or transfer of a firearm.”
The common and approved usage of the phrase “in connection with,” which
2 The unpublished memorandum decision to which Appellant cites was issued
prior to May 2, 2019. Pursuant to this Court’s Operating Procedures, neither
this Court nor a party in any action or proceeding may rely upon or cite to
such decisions except in circumstances not present here. 210 Pa. Code
§ 65.37. Additionally, because unpublished memorandum decisions are not
precedential, this Court is not bound to follow them. Liberty Mut. Ins. Co.
v. Domtar Paper Co., 77 A.3d 1282, 1286 (Pa. Super. 2013).
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we are obligated to employ, see 1 Pa.C.S.A. § 1903(a), does not suggest it
is a limiting term such that a violation only is deemed to occur when a
purchase, delivery, or transfer is actually completed. The term “in
connection with” connotes activity that is in relation to a purchase, delivery,
or transfer of a firearm. See Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/in%20connection%20with,
accessed 5/27/21. Providing materially false information in connection with
the attempt to purchase a firearm is precisely activity conducted in relation
to the purchase of a firearm. Any other interpretation would lead to the
absurd result that the General Assembly meant to criminalize a false written
statement on an application when a purchase is completed, but not when a
background check catches the falsehood before the purchase is concluded.
See 1 Pa.C.S.A. § 1922(1) (in ascertaining legislative intent it is presumed
the General Assembly did not intend an absurd result).
Despite Appellant’s insistence that an actual purchase must take place
for a sale to apply, the plain language of the statute indicates that it applies
to any person (i.e., someone other than a purchaser or transferee) who
provides false information in connection with (i.e., in relation to) a purchase
of a firearm. There is no requirement in the statute that the purchase be
completed for a violation to occur. Accordingly, subsection 6111(g)(4)(ii)’s
use of the terms “any person” and “in connection with” encompasses
persons, like Appellant, who are charged with and convicted of making a
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materially false statement in connection with an attempted purchase of a
firearm. Accord Commonwealth v. Baxter, 956 A.2d 465, 474 (Pa. Super
2008) (en banc), appeal denied, 968 A.2d 1280 (Pa. 2009) (“[T]he plain
language of [subs]ection 6111(g)(4), when taken in proper context of the
statute as a whole, clearly places prospective purchasers on notice that they
will be subject to prosecution for a third[-]degree felony if they make any
oral or written materially false statement in connection with that attempted
purchase of a firearm.”); Commonwealth v. Emmil, 866 A.2d 420 (Pa.
Super. 2004) (affirming conviction of defendant who made false statements
to authorities in connection with an attempted firearm purchase).
We turn now to the second part of Appellant’s sufficiency argument,
which he raises with respect to both of his convictions. Appellant argues
that the Commonwealth failed to introduce sufficient evidence that a form
bearing false information was submitted and that Appellant was the one who
submitted it. Appellant’s Brief at 21. Specifically, Appellant observes that
the Commonwealth marked the forms he allegedly submitted as
Commonwealth Exhibit 2, but never moved Exhibit 2 into evidence. Id.Without admission of these forms, Appellant contends insufficient evidence
exists proving that he submitted false written statements. Id. at 22.
Appellant insists that had the Commonwealth sought to admit the forms, he
would have made an authentication objection that the court would have
sustained. Id. at 22-24. He argues there was no handwriting comparison
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performed of his signature and the forms could have been filled out by
someone else who presented his information. Id.
Further, because the Commonwealth did not admit the forms as
evidence, Appellant contends there was no corpus delicti showing a crime
had been committed. Id. at 26. Without a corpus, Appellant argues it was
error to admit inculpatory statements captured in recordings of calls he
made from jail. Id. at 26. Without the forms and the recordings of the jail
calls, Appellant concludes there was insufficient evidence proving he
committed the crimes or that any crime had occurred at all. Id.
We note at the outset that Appellant’s argument intermingles
challenges to the sufficiency of the evidence presented to prove the
elements of the crimes and challenges to the admissibility of evidence
introduced at trial. “It is important to maintain the distinction between
sufficiency review and rulings on evidence.” D'Alessandro v.
Pennsylvania State Police, 937 A.2d 404, 409-10 (Pa. 2007). As our
Supreme Court has observed, the “distinction is not academic.”
Commonwealth v. Conklin, 897 A.2d 1168, 1175 n.6 (Pa. 2006). A
“successful sufficiency challenge can lead to an outright grant of relief …
while a successful evidentiary challenge presumably would result in a
remand for another hearing at which the challenged evidence would not be
admissible.” Id. Moreover, when conducting a sufficiency review, “we
accept the record of the case as actually litigated” and view it in a light most
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favorable to the verdict-winner, instead of looking at the record “as
diminished by evidence deemed, after the fact, to have been wrongly
admitted.” Id. In other words, on a sufficiency review, we review the record
as it is, not as Appellant thinks it should be. Thus, we will first consider
Appellant’s sufficiency argument based on all of the evidence in the record.
Because Appellant preserved a corpus deliciti evidentiary challenge at trial
and in his concise statement, we will then consider whether the trial court
erred by admitting the recording of the jail calls.
Regarding his sufficiency challenge, Appellant is correct that the
applicable subsections of sale or transfer of firearms and unsworn
falsification to authorities both require a false written statement. See 18
Pa.C.S.A. § 6111(g)(4)(ii) (“Any person … commits a felony of the third
degree if, in connection with the purchase … of a firearm under this chapter,
he knowingly and intentionally … makes any materially false written
statement, including a statement on any form promulgated by Federal or
State agencies[.]”) (emphasis added); id. at § 4904(b) (“A person commits
a misdemeanor of the third degree if he makes a written false statement
which he does not believe to be true, on or pursuant to a form bearing
notice, authorized by law, to the effect that false statements made therein
are punishable.”) (emphasis added).
Furthermore, “[i]n addition to proving the statutory elements of the
crimes charged beyond a reasonable doubt, the Commonwealth must also
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establish the identity of the defendant as the perpetrator of the crimes.”
Commonwealth v. Smyser, 195 A.3d 912, 915 (Pa. Super. 2018).
“Evidence of identification need not be positive and certain to sustain a
conviction.” Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011)
(en banc). “[E]ven if the Commonwealth presented only circumstantial
evidence and offered no positive identification of the [perpetrator], we may
not weigh the evidence and substitute our judgment for the fact-finder as
long as the evidence was sufficient to prove Appellant’s guilt.”
Commonwealth v. Robertson, 874 A.2d 1200, 1206 (Pa. Super. 2005)
(citation omitted). “The fact that the evidence establishing a defendant’s
participation in a crime is circumstantial does not preclude a conviction
where the evidence coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence.” Commonwealth v. Lovette,
450 A.2d 975, 977 (Pa. 1982).
The record indicates the following evidence presented by the
Commonwealth. The Commonwealth’s first witness at trial was Brazinski,
who described the forms she received from Appellant at the gun show.
Because she encounters so many people in her line of work, Brazinski did
not recall Appellant’s attempted transaction specifically and could not
identify him in court, but she testified as to her usual procedure and the
forms she received. N.T., 6/12/19, at 10-17. The Commonwealth
introduced, without objection, the state and federal forms required by law to
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purchase a firearm as Commonwealth Exhibit 1. Id. at 17-18. Brazinski
identified Commonwealth Exhibit 1 as the forms she requires customers to
complete before she will sell them a firearm. Id. at 11, 16.
The Commonwealth then marked another set of forms as
Commonwealth Exhibit 2, but never sought their admission. Id. at 19.
After reviewing Commonwealth Exhibit 2, Brazinski testified Exhibit 2 was
the same forms entered as Exhibit 1 with the addition of Appellant’s
handwritten answers he provided in front of her at the gun show. Id. at 29.
Although Brazinski did not remember the specific transaction and could not
identify Appellant, she testified the person who filled out the forms with
Appellant’s name and information was the same person who handed her a
driver’s license matching the license number she wrote on the form and who
resembled the photograph on the license. Id. at 23-24, 32-35. Brazinski
identified her handwriting on Exhibit 2, including the handwritten driver’s
license number and notation that she denied the transaction. Id. at 19, 21,
23.
According to Brazinski’s testimony and Commonwealth Exhibit 1,
Question 32 on the Pennsylvania State Police Application/Record of Sale asks
in pertinent part, “Are you now charged with, or have you ever been
convicted of a crime punishable by imprisonment for a term exceeding one
year?” N.T., 6/12/20, at 69; Commonwealth Exhibit 1 at 7 (capitalization
altered). The form also contains a verification and warns that answers need
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to be true and correct subject to penalty of law, including 18 Pa.C.S.A.
§ 4904 and the Uniform Firearms Act. Id. After initially answering yes to
the question, Appellant changed his answer to no and initialed the change.
N.T., 6/12/2019, at 17.
Following Brazinski’s testimony, the Commonwealth called Vincent
Caruso, an assistant inmate telephone system administrator at the Berks
County Jail. Through Caruso’s testimony, the Commonwealth entered
Exhibit 3, which was a DVD containing recordings of telephone calls made
from Appellant’s inmate number at the Berks County Jail. N.T., 6/12/2019,
at 41-46, 51-52. Before the Commonwealth played the jail calls for the trial
court, Appellant objected on corpus delicti grounds. The trial court overruled
the objection and permitted the Commonwealth to play the calls. Id. at 48.
On a call made on April 4, 2018, Appellant spoke to someone named
Ray. Appellant told Ray that he was upset with his brother Paul for not
taking his calls because he was in jail due to “shit with him.”
Commonwealth Exhibit 3. Appellant said he was a long way from home way
out in Berks County because his brother brought him “to that damn gun
show.” Id. He also said, “I’m in here cause I tried to get something for
him” and was facing prosecution because of “something about I tried to
purchase a 9 millimeter.” Id. On a call made on May 18, 2018, Appellant
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told someone named Autumn3 that he was upset his brother was not taking
his calls because he was “in here because of your father” and “we went to go
get a fucking gun for him.” Id.
After the Commonwealth played the recordings from the jail calls, the
Commonwealth presented its final witness, Detective Sergeant Robert Wood
from the Northern Berks Regional Police Department. Detective Sergeant
Wood received information from the Pennsylvania State Police regarding
Appellant’s attempt to purchase a firearm. Detective Sergeant Wood
reviewed the forms from the attempted firearm purchase and ran the
driver’s license number on the form to determine whether the attempted
purchaser had a criminal history. N.T., 6/12/2019, at 60-62. Detective
Sergeant Wood testified that the forms he reviewed were the forms marked
as Commonwealth Exhibit 2. Id. at 62. Through his investigation, Detective
Sergeant Wood obtained a phone number for Appellant and left a message.
Id. at 64-65. After Detective Sergeant Wood filed charges against
Appellant, he then received a message that Appellant had called him at the
police station. Id. at 66. Detective Sergeant Wood returned the call by
using the provided number, which matched the number Detective Sergeant
Wood originally called. Id. at 72. He spoke to a person who identified
3
Appellant’s relation to Autumn was not made part of the record. From the
context of the call, Autumn seems to be Appellant’s niece and his brother
Paul’s daughter.
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himself as Appellant. Id. at 67. Detective Sergeant Wood recognized the
voice on the jail calls as the same voice he spoke to on the telephone. Id.
On the call, Detective Sergeant Wood attempted to obtain Appellant’s
side of the story and to convince him to turn himself in due to the active
warrant against him. Id. at 68. Appellant told Detective Sergeant Wood
that Appellant “was with his brother and that he was completing a form and
that … there was an error made on the form.” Id. Detective Sergeant Wood
believed Appellant’s comment referred to question 32 on the state form in
Exhibit 2 where Appellant had crossed out his answer and initialed a change.
Id. at 68.
Finally, the parties stipulated that Appellant had multiple felony
convictions that prohibited him from owning a firearm in Pennsylvania.
Commonwealth Exhibit 4.
Appellant is correct that the Commonwealth never sought to move
Exhibit 2 into the record. There is no question that with Exhibit 2 in
evidence, the case would have been more straightforward. Nevertheless,
the trial court determined its absence was not fatal for sufficiency purposes.
See Trial Court Opinion, 7/2/2020, at 5. We agree.4
Through Brazinski’s testimony, the Commonwealth established
Brazinski’s records indicated she received a form from Appellant at the gun
4 We address the absence of the forms from a sufficiency standpoint only,
and do not decide whether the absence of the forms could have been subject
to evidentiary objections not preserved by the parties.
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show; the questions asked of Appellant on the forms; a description of the
answers Appellant provided while filling out the forms in front of Brazinski,
including the answer that turned out to be false; the process Brazinski used
to ensure the identity of the person appearing before her was the same
person who filled out the form; and the outcome of the background check of
the license number he provided to her. Through Detective Sergeant Wood’s
testimony, the Commonwealth confirmed the license number matched
Appellant’s and Appellant was indeed prohibited from owning a firearm due
to his criminal background. He also described how, when asked to provide
his side of the story, Appellant referenced making an error on the form when
he was with his brother. Finally, through the two calls Appellant made from
jail, the Commonwealth established that Appellant made two statements
implicating himself as the person who provided false information in an
attempt to purchase a firearm.
Our review of the entire record, with due consideration of all evidence
presented in the light most favorable to the Commonwealth as verdict
winner, confirms there was sufficient circumstantial evidence to establish
Appellant’s identity and sustain Appellant’s convictions. Reasonable doubt
does not require preclusion of every possibility of innocence. Burton, 234
A.3d at 829. Through Commonwealth Exhibits 1 and 3 and the testimony of
Brazinski and Detective Sergeant Woods, the Commonwealth proved the
existence of a false written statement and produced circumstantial evidence
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of Appellant’s identity as the person who made the statement. Accordingly,
we conclude the circumstantial evidence produced by the Commonwealth
was enough to overcome the presumption of innocence. See Lovette, 450
A.2d at 977.
We turn now to Appellant’s evidentiary argument regarding corpus
delicti.
The corpus delicti rule begins with the proposition that a criminal
conviction may not be based upon the extra-judicial confession
of the accused unless it is corroborated by independent evidence
establishing the corpus delicti. The corpus delicti, literally “the
body of the crime,” is defined as a wrong committed by criminal
means, and consists of the occurrence of a loss or injury, and
some person’s criminal conduct as the source of that loss or
injury. The criminal responsibility of a particular, identifiable
person, e.g. the accused, is not a requirement of the rule.
Commonwealth v. Elder, 451 A.2d 236, 237 (Pa. Super.
1982). The purpose of the rule is to prevent the use of hasty and
unguarded confessions to convict an individual when no crime
has been committed.
Commonwealth v. Cuevas, 61 A.3d 292, 295–96 (Pa. Super. 2013) (some
citations omitted or altered).
The corpus delicti rule is an evidentiary rule. As such, we use the
following standard in our review.
The admissibility of evidence is solely within the discretion of the
trial court and will be reversed only if the trial court has abused
its discretion. 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.
Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012).
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“The corpus delicti rule places the burden on the prosecution to
establish that a crime has actually occurred before a confession or admission
of the accused connecting him to the crime can be admitted.” Id.Establishing the corpus delicti in Pennsylvania is a two-step
process. The first step concerns the trial judge’s admission of the
accused’s statements and the second step concerns the fact
finder’s consideration of those statements. In order for the
statement to be admitted, the Commonwealth must prove the
corpus delicti by a preponderance of the evidence. In order for
the statement to be considered by the fact finder, the
Commonwealth must establish the corpus delicti beyond a
reasonable doubt.
Id. at 410-11.
Appellant’s argument focuses on the first step, i.e., the admission.
Appellant claims the Commonwealth did not “establish by a preponderance
of the evidence that any crime at all was committed as there is only a crime
if … Appellant executed documents with false information.” Appellant’s Brief
at 25. The trial court determined Brazinski’s “testimony alone established
the criminal actions of the attempted purchaser.” Trial Court Opinion,
7/2/2020, at 3. We agree.
Brazinski testified that the attempted purchaser responded that he had
no criminal background when filling out the form, causing her to proceed
with the sale. N.T., 6/12/2019, at 26-29. However, when she checked his
criminal background through the Pennsylvania Instant Check System, the
sale was denied based on that background. Id. at 29-30. Based on this
information, it is more likely than not that the attempted purchaser
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knowingly and intentionally made a false statement when completing the
form. See Commonwealth v. Murray, 174 A.3d 1147, 1154 (Pa. Super.
2017) (“The Commonwealth need not prove the existence of a crime beyond
a reasonable doubt as an element in establishing the corpus delicti of a
crime, but the evidence must be more consistent with a crime than with an
accident.”) (citation omitted). Accordingly, we discern no abuse of discretion
in the trial court’s decision to admit Appellant’s inculpatory statements as
captured by the recordings of the jail calls.
Appellant’s final issue challenges the weight of the evidence against
him. Appellant’s argument largely rehashes the argument he made
regarding his second sufficiency challenge. Appellant’s Brief at 28. In
Appellant’s view, without the jail calls and the form he purportedly filled out,
the court was left with Detective Sergeant Wood’s testimony, which was “too
vague and insignificant” to prove that he made false statements on the
forms at the gun show. Id.Our Supreme Court has instructed as follows:
A motion for a new trial based on a claim 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. 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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Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations and
quotation marks omitted). This Court does not step into the shoes of the
trial court to revisit whether the verdict was against the evidence. Rather,
our task is to “analyze whether the trial court abused its discretion by
reaching a manifestly unreasonable judgment, misapplying the law, or
basing its decision on partiality, prejudice, bias, or ill-will.” Id. at 1056. A
new trial should only be awarded “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.” Id.
at 1055.; see Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa.
Super. 2016) (applying same standard to a bench trial).
The trial court offered the following analysis of Appellant’s weight
challenge.
In this case, this court was the finder of fact, as it was a bench
trial. Having heard the arguments made at trial by counsel, the
verdict is not a shock to the conscience. The verdict was based
solidly upon its interpretation of the evidence presented, viewing
the documents, making credibility determinations, and finally
considering the statements of [Appellant] both to police and on
the phone from the Berks County Jail System.
Trial Court Opinion, 7/2/2020, at 7.
Upon review, we discern no abuse of discretion on the part of the trial
court in concluding the verdict was not against the weight of the evidence.
Appellant’s argument largely focuses on his assertions regarding the
admissibility of evidence instead of assessing its credibility or persuasive
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nature, which implicate the weight of the evidence. Admissibility and weight
are distinct issues. The trial court was within its discretion to weigh the
entire body of evidence produced as it did. Accordingly, Appellant’s
challenge to the weight of the evidence merits no relief.
Based on the forgoing, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/01/2021
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