Com. v. Krupp D.

J-A14031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONNA MARIE KRUPP,
Appellant No. 2892 EDA 2016
Appeal from the Judgment of Sentence April 14, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000407-2015
BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: Filed August 4, 2017
Appellant, Donna Marie Krupp, appeals from the judgment of sentence
entered on April 14, 2016, in the Montgomery County Court of Common
Pleas. We affirm.
The relevant facts and procedural history of this matter were set forth
by the trial court as follows:
[Appellant] intentionally set fire to the home of her next
door neighbors, the Morris family, in the early morning hours of
December 4, 2014, by using a lighter with an extended wand
and newspaper to ignite Christmas decorations on the front
porch of the home. The fire destroyed the home, which was
located at 71 Commons Drive in Pottstown, Montgomery County.
The Morris family – Limerick Township Police Detective
Ernie Morris, his wife and their two minor daughters – were on
vacation in Florida at the time of the fire. The family’s cat
perished in the blaze.
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[Appellant] set the fire after learning on December 2,
2014, that her son would not be released from jail that day. Her
son had been incarcerated since June 2014, following his
apprehension on an active arrest warrant for fleeing from police
and consequent detention for allegedly violating his existing
probation. [Appellant] blamed Detective Morris, and law
enforcement in general, for her son’s ongoing contacts with the
criminal justice system. She had a well-known disdain for law
enforcement officials and believed a tip from Detective Morris
was the reason her son had been located and arrested on the
active warrant.2
2
When police arrived at [Appellant’s] house to
apprehend her son following the tip from Detective
Morris, she initially refused them entry. Her son
eventually was found hiding under her bed. (N.T.,
11/18/15, p. 43)
Prior to the fire, and because of an on-going pattern of
harassing behavior by [Appellant] toward the Morris family due
to Detective Morris’ status as a police officer, the family had a
video surveillance system installed around the perimeter of their
home. The system became operational shortly before the Morris
family left in late November 2014 for a two-week trip to Disney
World.
Surveillance video from the time of the fire captured a
person matching [Appellant’s] physical characteristics
approaching the Morris home from the direction of [Appellant’s]
house. The person set the fire and left the scene, going back in
the direction of [Appellant’s] house.
Later on the same day as the fire, law enforcement
personnel who had watched the surveillance footage came to
believe the person seen in the video matched [Appellant], whom
they had observed outside her house at various times during the
course of the fire investigation. [Appellant] agreed to speak with
police and, after being driven to the station by her husband,
gave a statement in which she denied any ill-feelings toward the
Morrises and any responsibility for the fire. (N.T., 11/19/15, pp.
42-51; Exh. C-32)
A search of [Appellant’s] house, conducted pursuant to a
warrant, revealed, inter alia, two extended wand lighters and
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clothing, including a grey XXL hooded sweatshirt, that appeared
to match items worn by the person seen in the surveillance
video. Analysis of particles found on the sweatshirt tested
positive for the presence of amorphous carbon, also known as
soot or ash, which generally is consistent with a material that
has been subjected to high heat. (N.T. 11/18/15, pp. 174; 179-
180)
[Appellant] was arrested on December 5, 2014, and later
charged in an Information with four counts of arson-related
offenses,3 one count of causing a catastrophe,4 one count of
reckless burning or exploding,5 three counts of criminal
mischief,6 one count of failure to control or report a dangerous
fire,7 one count of possession of an instrument of crime,8 two
counts of recklessly endangering another person9 and one count
of cruelty to animals.10
3
18 Pa.C.S. §§ 3301(a)(1)(i); 3301(c)(2);
3301(d)(2); 3301(a)(1)(ii).
4
18 Pa.C.S. § 3302(a).
5
18 Pa.C.S. § 3301(d)(1).
6
18 Pa.C.S. §§ 3304(a)(1); 3304(a)(2); 3304(a)(5).
7
18 Pa.C.S. § 3301(e)(2).
8
18 Pa.C.S. § 907(a).
9
18 Pa.C.S. § 2705.
10
18 Pa.C.S. § 5511(a)(2.1)(i)(a).
After a trial, at which [Appellant] testified, the jury found
her guilty of all charges.11 This court later sentenced her to serve
5 to 10 years in prison for the arson offense charged under
Section 3301(a)(1)(i), a consecutive term of 5 to 10 years in
prison for the causing a catastrophe offense and 5 years of
consecutive probation for the cruelty to animals offense.12
[Appellant] also was ordered to pay restitution and to have no
contact with the Morris family.
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11
The Commonwealth withdrew at trial one of the
charges of recklessly endangering another person.
12
This court imposed no penalty on the possession
of an instrument of crime offense and all of the other
offenses merged for purposes of sentencing.
[Appellant], through trial counsel, filed a timely post-
sentence motion. This court subsequently granted trial counsel’s
petition to withdraw and appointed new counsel to represent
[Appellant]. Appointed counsel filed two amended post-sentence
motions. This court denied all of the post-sentence motions13
and [Appellant] filed a notice of appeal. She subsequently
complied, through counsel, with this court’s directive that she
produce a concise statement of errors in accordance with
Pennsylvania Rule of Appellate Procedure 1925(b).
13
During the pendency of the post-sentence
motions, the Commonwealth informed this court of
an error with regard to the sentence imposed for the
cruelty to animals offense. This court, as part of the
order denying [Appellant’s] post-sentence motions,
corrected the sentence for that offense from 5 years
of consecutive probation to 2 years of consecutive
probation.
Trial Court Opinion, 11/2/16, at 1-4 (footnote one omitted).
On appeal, Appellant presents the following issue for this Court’s
consideration:
Whether the trial court abused its discretion/or commited [sic]
an error of law in allowing testimony from various witnesses of
approximately 24 instances of “bad acts” or “motive” testimony
in violaton [sic] of Pa. Rule of Evidence 404 when such
testimony is allowed “only if the probative value of the evidence
outweighs its potential for unfair prejudice.”
Appellant’s Brief at 5 (full capitalization omitted).
Appellant’s issue challenges the admissibility of evidence. Our
standard of review is as follows:
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The admission of evidence is solely within the discretion of the
trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion. An abuse of
discretion will not be found based on a mere error of judgment,
but rather occurs where the court has reached a conclusion that
overrides or misapplies the law, or where the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Witmayer, 144 A.3d 939, 949 (Pa. Super. 2016)
(citation omitted).
Pennsylvania Rule of Evidence 404(b) prohibits evidence of a
defendant’s prior bad acts to prove her character or demonstrate that on a
particular occasion she acted in accordance with the character. Pa.R.E.
404(b)(1). Nevertheless, the Rule further provides that prior bad acts
evidence “may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case, this evidence is admissible
only if the probative value of the evidence outweighs its potential for unfair
prejudice.” Pa.R.E. 404(b)(2).
Appellant avers that on twenty-four separate occasions during trial,
the Commonwealth elicited testimony of prior bad acts in violation of Pa.R.E.
404(b). Appellant’s Brief at 17. However, as the trial court pointed out,
Appellant failed to specify which testimony constituted the alleged twenty-
four instances in her Pa.R.A.P. 1925(b) statement. Trial Court Opinion,
11/2/16, at 11. Indeed, the relevant portion of Appellant’s Pa.R.A.P.
1925(b) statement provides only as follows:
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Whether this Honorable Court committed an error of law and/or
abused its discretion in allowing, over [Appellant’s] objection,
testimony from various witnesses of approximately 24 instances
of “bad acts” or “motive” testimony in violation of Pennsylvania
Rule of Evidence 404 when such testimony is allowed “only if the
probative value of the evidence outweighs its potential of unfair
prejudice.”
Pa.R.A.P. 1925(b) Statement, 9/2/16, at ¶3. The trial court opined that
Appellant’s Pa.R.A.P. 1925(b) statement was deficient and that the trial
court should not be required to guess what issues an appellant is raising.
Trial Court Opinion, 11/2/16, at 11. We agree with the trial court.
It is well settled that:
any issues not raised in a Rule 1925(b) Statement will be
deemed waived. Commonwealth v. Castillo, 585 Pa. 395, 888
A.2d 775, 780 (2005) (citation and quotation omitted). See
also Pa.R.A.P. 1925(b)(4)(ii) (The 1925(b) Statement shall
concisely identify each ruling or error that the appellant intends
to challenge with sufficient detail to identify all pertinent issues
for the judge).
Commonwealth v. Wanner, 158 A.3d 714, 717 (Pa. Super. 2017)
(internal quotation marks omitted). Because Appellant failed to include her
issues on appeal in her Pa.R.A.P. 1925(b) statement, we conclude that
Appellant failed to preserve her issues on appeal, and her challenges to the
admissibility of prior bad-acts-testimony are waived.1
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1
Appellant admits that while she did not raise her claims of error in her
Pa.R.A.P. 1925(b) statement, she presented her challenges to the twenty-
four instances of prior bad acts testimony by raising them in her Amended
Post Sentence Appeal and Motion in Arrest of Judgment, filed on August 9,
2016. Appellant’s Brief at 20. Appellant argues that had she included the
(Footnote Continued Next Page)
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Assuming for the sake of argument that Appellant had properly
preserved her claims of error, we note that in its opinion, the trial court
provided an alternative rationale for concluding that Appellant was entitled
to no relief. The trial court explained:
In any event, the Commonwealth presented testimony
from certain witnesses regarding [Appellant’s] animus toward
Detective Morris based on his position as a police officer and his
conduct as it related to [Appellant’s] son. Pennsylvania Rule of
Evidence 404(b)(1) generally prohibits the Commonwealth from
offering evidence of a defendant’s “prior crime, wrong or other
act to prove her character in order to show that on a particular
occasion she acted in accordance with the character.” Id. An
exception to the general rule permits the admission of such
evidence, however, to prove, inter alia, motive and intent, so
long as the probative value of the evidence outweighs its
potential for unfair prejudice to the defendant. Pa.R.Evid.
404(b)(2).
The challenged evidence presented by the Commonwealth
was highly relevant to [Appellant’s] motive and intent, and that
relevance substantially outweighed any potential prejudice.
Moreover, this court gave a limiting instruction during its closing
charge, directing the jury that the evidence was offered only for
the purpose of tending to show motive or intent and that it could
not be considered for any other purpose. (N.T., 11/20/15, p. 76)
_______________________
(Footnote Continued)
specific instances of prior bad acts in her Pa.R.A.P. 1925(b) statement, it
would not have been a “concise” statement. Appellant’s Brief at 20.
Further, she asserts that a review of all the pleadings in this matter “would
have revealed a sufficiently clear and detailed statement of what … Appellant
… was complaining of.” Id. Appellant, however, cites no caselaw to
support her position, and we are aware of no authority that requires a trial
court to scour the record and look beyond the Pa.R.A.P. 1925(b) statement
in order to find and address issues that an appellant might wish to raise on
appeal. Accordingly, there is no merit to Appellant’s argument that she was
somehow absolved of the requirements of Pa.R.A.P. 1925(b) because, in her
estimation, it may have been lengthy or her issues were raised elsewhere in
the record.
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“It is well established that a jury is presumed to follow a court’s
instructions.” See, e.g., Commonwealth v. Travaglia, 28 A.3d
868, 882 (Pa. 2011). [Appellant], therefore, cannot succeed on
her claim related to certain witnesses being permitted to testify
about an approximate number of bad acts and motive.
Trial Court Opinion, 11/2/16, at 11-12.
We agree with this analysis as an alternate basis upon which to affirm
Appellant’s judgment of sentence. Had Appellant properly preserved her
issues on appeal, we would have concluded that the challenged prior-bad-
acts testimony was more probative than prejudicial and properly admitted as
an exception to Pa.R.E. 404 as evidence of Appellant’s motive.
Finally, we are constrained to point out another item concerning issue
preservation. As noted above, Appellant’s judgment of sentence was
entered on April 14, 2016. Appellant’s trial counsel filed a timely post-
sentence motion on April 20, 2016; however, this motion made no mention
of prior bad acts under Pa.R.E. 404(b). Trial counsel subsequently moved to
withdraw. Motion, 4/27/16. In an order filed on May 4, 2016, the trial court
scheduled a hearing for May 31, 2016, to consider the motion to withdraw.
On May 31, 2016, the trial court granted the motion to withdraw, and it
appointed the Public Defender to represent Appellant. On June 4, 2016, the
Public Defender was permitted to withdraw due to a conflict, and the trial
court appointed current counsel, Attorney Colin Hannings, to represent
Appellant in her pending post-sentence motion and on appeal.
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On August 9, 2016, Attorney Hannings filed an amended post-
sentence motion for reconsideration of sentence. The record does not reflect
that Appellant sought, nor did the trial court grant, leave to file this
amended post-sentence motion; thus, this motion appears facially untimely
as post-sentence motions were due on or before April 24, 2016.2
Pa.R.Crim.P. 720(A).
On August 9, 2016, Attorney Hannings also filed a document entitled,
“Amended Post Sentence Appeal and Motion in Arrest of Judgment.” In this
additional post-sentence motion, Appellant refers to more than thirty
instances where prior bad acts testimony was allegedly admitted. Amended
Post Sentence Appeal and Motion in Arrest of Judgment, 8/9/16, at ¶¶ 10-
22. Again, there is no order in the record revealing that the trial court
permitted this “amended” filing. However, even if we assume that the trial
court accepted these amended post-sentence motions, we note that
Appellant’s trial counsel did not object to any testimony on the basis that it
was improper evidence of prior bad acts. While Appellant references thirty-
seven pages where alleged prior bad acts testimony was admitted, after
review of those pages, we discovered only two objections. Notably, in those
____________________________________________
2
The record reflects that the trial court scheduled a hearing for May 31,
2016, regarding trial counsel’s motion to withdraw. Order, 5/4/16. Indeed,
it is possible that at that hearing the trial court permitted newly appointed
counsel to file amended post-sentence motions. However, the notes of
testimony from that hearing are not in the record certified to this Court on
appeal.
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objections, which appear at N.T., 11/17/15, at 180 and 208, counsel did not
challenge the witnesses’ testimony on the basis of prior bad acts. Thus,
even if the amended post-sentence motions were accepted as timely, and if
these issues were properly preserved in a Pa.R.A.P. 1925(b) statement, we
would deem the issues waived due to Appellant’s failure to preserve the
alleged errors at trial by failing to raise timely and specific objections. See
Commonwealth v. Sauers, 159 A.3d 1, 9 (Pa. Super. 2017) (stating that
the failure to offer a timely and specific objection results in waiver of the
claim).
For the reasons set forth above, we conclude that Appellant has failed
to preserve her challenges to the alleged prior-bad-acts testimony.
Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2017
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