Com. v. Brown, W., Jr. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WALTER BROWN JR.
Appellant No. 29 MDA 2021
Appeal from the Judgment of Sentence Entered November 18, 2020
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0002487-2019
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 05, 2021
Appellant Walter Brown Jr. appeals from the November 18, 2020,
judgment of sentence entered in the Court of Common Pleas of Berks County
(“trial court”), following his jury convictions for burglary, criminal trespass,
and theft by unlawful taking or disposition.1 Upon review, we affirm.
The facts and procedural history of this case are undisputed. As
recounted by the trial court:
On June 4, 2018, employees of Distribution Services
Company (“DSC”) discovered that some power tools batteries and
a charger were missing from a building on the property. Upon this
discovery, the employees checked recorded video footage from
security cameras that were installed on the property and found
that an individual unlawfully entered the building and stole the
battery packs and charger, as well as a pair of work gloves. The
employees then contacted a nearby police officer who reviewed
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3502(a)(4), 3503(a)(1)(ii), and 3921(a), respectively.
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the security footage with the employees. The officer recognized
the individual on the video recording as Appellant, with whom the
officer had prior contact. The officer notified the affiant [(another
officer)] in this matter, who compared screenshots from the
security footage with Appellant’s driver’s license photograph, and
determined that Appellant was the perpetrator. Appellant was
thereafter charged with [the above-mentioned crimes].
At trial, the Commonwealth first called George Dronick
(“Dronick”), the owner of DSC, located at 1601 North Sixth Street
in Reading, Pennsylvania (“the Property”), as a witness. Dronick
testified that DSC provides distribution of rock salt for American
Rock Salt Company and described the Property as a large paved
area of several acres upon which is located a scale house (“the
Scale House”), a garage, and several other ancillary buildings.
On June 3, 2018, Dronick indicated that the Scale House
was locked, and that video surveillance was installed, including
approximately eight security cameras, two of which were located
inside the Scale House. Dronick continued that the security
cameras were all connected to a central recording unit and that,
on June 3, 2018, the cameras and central unit were in proper
operating condition and recording.
The Commonwealth presented portions of the surveillance
recording from June 3, 2018, during Dronick’s testimony. The
First clip from the video footage was from just outside the Scale
House and depicted an individual dressed in a hooded sweatshirt
and jeans approach the single entrance to the Scale House, which
was locked. The next video excerpt was time-stamped
approximately fifteen minutes later, and the same individual was
seen leaving the Scale House with a bag containing something.
Dronick testified that he did not know the individual shown in the
video, nor did he give the perpetrator permission to enter the
Scale House or take anything from inside. The Commonwealth
then presented video surveillance footage from inside the Scale
House in which the intruder is seen walking through the Scale
House.
Dronick was notified by several of his employees that a
burglary had occurred and that items from inside the Scale House
were missing. Upon his inspection of the Scale House, Dronick
noticed evidence that the door to the Scale House had been pried
open. When he reviewed the surveillance video, Dronick took an
inventory of items inside the Scale House and found that several
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cordless power tool batteries and charger, valued in excess of
$500.00, were missing, as well as some beer from the
refrigerator.
On cross-examination, Dronick acknowledged that he did
not know the individual seen on the surveillance video burglarizing
the Property. Likewise, Dronick admitted that he did not know
Appellant.
Brandon Weaver (“Weaver”), an employee of DSC, testified
that on June 4, 2018, he arrived at the Property with his brother-
in-law, Jordan Miranda (“Miranda”), but did not immediately
notice anything unusual. Weaver stated that he went to look for
the batteries and found that they were missing. After looking
around the Scale House, Weaver checked the security cameras
and discovered that the batteries had been stolen. Weaver did
not recognize the person seen in the surveillance video
burglarizing the Scale House. Weaver and Miranda then flagged
down a Reading Police Officer, who then viewed the security
camera footage.
Officer Christian Morar (“Officer Morar”), a police officer with
the Reading Police Department, testified that on June 4, 2018, he
was on regular patrol when he was waved down by two employees
of DSC. Upon arriving at the Property, Officer Morar spoke with
the employees, and then briefly viewed some of the surveillance
footage. Officer Morar immediately recognized the individual
depicted on the surveillance footage as Appellant with whom
Officer Morar had dealt with approximately two weeks prior to the
burglary. Officer Morar then contacted Officer Adam Babbitt.
On cross-examination, when asked whether there were any
distinguishing features of Appellant’s appearance that he could
remember, Officer Morar responded that he recognized
Appellant’s gray beard. Officer Morar then continued that he
recalled no other distinguishing features of Appellant from his
previous encounter.
Officer Adam Babbitt (“Officer Babbitt”). of the Reading
Police Department, testified that he reviewed the surveillance
video during his investigation of the case and spoke with Officer
Morar about his observations. Officer Babbitt then returned to the
station and pulled Appellant’s driver’s license photograph from the
N.C.I.C. database and compared it with the video images he
reviewed from the security cameras. The Commonwealth
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introduced Appellant’s PennDOT driver’s license photograph into
evidence at trial, and it was published to the jury. Officer Babbitt
observed that the photograph from Appellant’s driver’s license
was taken more than a year prior to the burglary. However, when
comparing Appellant’s driver’s license photograph with some
screenshots from the surveillance video footage, Officer Babbitt
identified Appellant as the individual in both.
Officer Babbitt admitted on cross-examination that
Appellant, in his driver’s license photograph, had a substantially
shorter beard than the individual represented on the security
camera footage. Officer Babbitt also acknowledged that he did
not request that any DNA evidence collected, and no fingerprints
were taken from the scene. Officer Babbitt explained that the
perpetrator wore gloves during the burglary, but did acknowledge
that, based on the video footage, the burglar did not have gloves
on the entire time.
At the conclusion of the trial, the jury found Appellant guilty
of all charges. The same day, November 18, 2020, this court
sentenced Appellant on the burglary conviction to a period of
incarceration of three to six years in a state correctional facility.
The remaining charges merged for sentencing purposes.
On November 25, 2020, Appellant, through trial counsel,
filed post-sentence motions challenging the weight and sufficiency
of the evidence as to all charges and modification of sentence.
Th[e trial] court denied Appellant’s post-sentence motions by
order dated December 1, 2020.
Trial Court Opinion, 2/9/21, at 1-4 (record citations, footnotes and
unnecessary capitalizations omitted). Appellant timely appealed. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises two issues for our review.
[I.] Whether the evidence was insufficient to support the
conviction of burglary, criminal trespass, and theft by unlawful
taking as there was insufficient evidence that Appellant was the
perpetrator?
[II.] Whether the verdicts of guilt went against the weight of the
evidence?
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Appellant’s Brief at 6.
At the core, Appellant’s issues are interrelated as they both challenge
his identification as the perpetrator.2 In this regard, he first contends that the
officers’ trial testimony was unreliable and incredible, as it revealed only
“general physical characteristics of a beard” for purposes of identifying
Appellant. Id. at 12. We treat this contention as challenging the weight and
credibility determination of the fact-finder.
As we have explained:
On this issue, our role is not to consider the underlying question
of whether the verdict was against the weight of the evidence.
Rather, we are to decide if the trial court palpably abused its
discretion when ruling on the weight claim. When doing so, we
keep in mind that the initial determination regarding the weight
of the evidence was for the factfinder. The factfinder was free to
believe all, some or none of the evidence. Additionally, a court
must not reverse a verdict based on a weight claim unless that
verdict was so contrary to the evidence as to shock one’s sense of
justice.
Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007)
(internal citations omitted), appeal denied, 954 A.2d 575 (Pa. 2008). “[A]
trial court’s denial of a post-sentence motion ‘based on a weight of the
evidence claim is the least assailable of its rulings.’” Commonwealth v.
Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting Commonwealth v.
Diggs, 949 A.2d 873, 880 (Pa. 2008)).
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2 Although he couched his first issue as one implicating the sufficiency of the
evidence, Appellant does not identify any element of any crime upon which
the Commonwealth’s evidence was insufficient.
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Instantly, Appellant essentially attacks the jury’s weight and credibility
determinations, and invites us to accept his version of events. We decline the
invitation. It is settled that we may not substitute our judgment for that of
the factfinder—whether a jury or the trial court—because it is the province of
the factfinder to assess the credibility of the witnesses and evidence. See
Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004);
Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) (“an appellate
court is barred from substituting its judgment for that of the finder of fact.”);
Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa. Super. 2005) (stating
that “[t]he weight of the evidence is exclusively for the finder of fact[,] who
is free to believe all, part, or none of the evidence and to determine the
credibility of witnesses. An appellate court cannot substitute its judgment for
that for the finder of fact.”). As the jury was free to believe all, part or none
of the Commonwealth’s evidence, Appellant’s claim lacks merit.
Next, Appellant challenges his in-court identification by Officer Morar.
We, however, decline to address this issue because Appellant failed to
preserve it for our consideration. As we have often stated, with respect to
preserving a challenge to the admission or exclusion of evidence, Rule 103 of
the Pennsylvania Rule of Evidence provides in pertinent part:
(a) Preserving a Claim of Error. A party may claim error in a
ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or
motion in limine; and
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(B) states the specific ground, unless it was apparent
from the context[.]
Pa.R.E. 103(a)(1). In Pennsylvania, it is well-settled that a party must make
a timely and specific objection at trial in order to preserve an issue for
appellate review. See Pa.R.A.P. 302(a); see also Commonwealth v.
Montalvo, 641 A.2d 1176, 1185 (Pa. Super. 1994) (citation omitted) (“In
order to preserve an issue for review, a party must make a timely and specific
objection at trial.”). Failure to do so results in waiver of that issue on appeal.
See Pa.R.A.P. 302(a); see also Commonwealth v. Schoff, 911 A.2d 147,
158 (Pa. Super. 2006).
Instantly, the trial transcript reveals that Appellant’s counsel failed to
object to Appellant’s in-court identification by Officer Morar.
Q. So you knew this person prior to June 3rd of 2018?
A. Yes.
Q. Did you know his name at the time, at the time you watched
the video, did you know his name?
A. I did.
Q. And what was his name?
A. Walter Brown.
Q. How – how far before June 3rd of 2018 did you have prior
dealings with –
A. I would say maybe two weeks.
Q. Two weeks before?
A. Yeah.
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Q. Okay. Officer, I’m going to ask you to look around the room
today and if you see – if you see Walter Brown in the courtroom?
A. I do.
Q. You do?
A. Yes.
Q. Could you point to him? You can stand up and point to him and
describe what he’s wearing right now.
A. He is wearing an off-white buttoned-collar shirt (indicating).
[Assistant District Attorney]: I’ll ask that the record reflect that
the witness has identified [Appellant], Walter Brown.
[The trial court]: It shall.
Q. Even though the person you identified right now has a face
mask on, does that impair your ability to have the identification
without any doubt?
A. Yes, it doesn’t impair. I’m sorry. It doesn’t, no.
Q. Is that him? Do you have any doubt that that is the person in
the video?
A. No.
Q. Even with the face mask on today?
A. Yeah.
N.T. Trial, 11/18/20, at 35-36. Accordingly, we conclude that Appellant’s
evidentiary challenge to his in-court identification by Officer Morar is waived.
See Commonwealth v. Ballard, 80 A.3d 380, 400 (Pa. 2013), (holding
appellant’s arguments were waived because appellant failed to object at trial),
cert. denied, 134 S. Ct. 2842 (2014); see also Pa.R.E. 103(a).
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In sum, Appellant neither obtains relief on his weight claim that the
officers’ trial testimony was unreliable and incredible, nor on his evidentiary
challenge to the in-court identification by Officer Morar.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/05/2021
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