Com. v. Smith, H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
HARRY ALBERT SMITH :
:
Appellant : No. 73 WDA 2020
Appeal from the Judgment of Sentence Entered November 22, 2019
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0000287-2019
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED AUGUST 21, 2020
Appellant, Harry Albert Smith, appeals from the judgment of sentence
entered in the Mercer County Court of Common Pleas, following his bench trial
convictions for burglary, criminal trespass, and criminal mischief.1 We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant befriended Carolyn Gayle Pierre (“Victim”), an elderly woman with
medical issues, and he completed certain tasks around her house. Victim lived
alone at a residence in Farrell, Pennsylvania. A breezeway with a sliding glass
door connects Victim’s house to her garage. Victim always locked her side
door, a wooden door with glass panels, which led from the breezeway to her
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3502(a)(1)(ii), 3503(a)(1)(ii), and 3304(a)(5), respectively.
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house.
On January 20, 2019, Appellant went to Victim’s house and shoveled
snow in the driveway. At some point, Appellant stopped shoveling and entered
Victim’s house. The trial court summarized the ensuing events as follows:
Upon leaving her bathroom, [Victim] discovered Appellant
standing in her house attempting to conceal her purse,
which contained her checkbook, under his jacket. [Victim]
testified she did not invite Appellant over to her house or
give Appellant permission to come into her house.
Moreover, [Victim] testified the glass window panel in her
side door nearest to the doorknob was broken and she had
locked the side door prior to Appellant appearing uninvited
in her home. [Victim] testified [that] after she confronted
Appellant, Appellant threw the purse down and abruptly left
her home.
Appellant testified [that] he showed up to [Victim’s] home
to shovel her driveway because a snowstorm had occurred
the day before and there were several inches of snow on the
ground. While shoveling [Victim’s] driveway, Appellant
stated his hands got cold so he thought he would ask
[Victim] for a pair of gloves. Appellant then said he opened
a sliding breezeway door and proceeded to knock on the
glass window panel in [Victim’s] side door to get her
attention.
After two knocks, Appellant testified the glass window panel
suddenly shattered and [Victim] invited him inside her home
to get warm. Appellant then testified he left [Victim’s] home
and told her he would return to finish shoveling her driveway
once he went to get gloves and something to eat.
[Victim’s] neighbor, Tracy Graham-Hughes, testified she
saw Appellant pretending to shovel [Victim’s] driveway the
day of the incident. Concerned, Ms. Graham-Hughes called
[Victim] and asked her, “[D]id you ask him to come over to
do your driveway? She said, no.” Ms. Graham-Hughes also
testified [Victim] was afraid of Appellant. Ms. Graham-
Hughes further testified she observed Appellant leaving
[Victim’s] property. Worried about Victim, Ms. Graham-
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Hughes ran over to check up on [Victim].
Once Ms. Graham-Hughes arrived, she observed the glass
window panel in [Victim’s] side door nearest the doorknob
was broken. Describing the extent of the broken window
panel, Ms. Graham-Hughes testified: “[T]he part in the
bottom left was broken out where you can reach in and
unlock the door.” Ms. Graham-Hughes further testified the
broken window panel was within an arm’s reach of the
doorknob. Concluding her testimony, Ms. Graham-Hughes
testified:
And I said, “Oh my God,” I said, “He was in here. He
broke in your house.” [Victim] said, “[Y]eah.”
[Victim] said she was in the bathroom and she didn’t
know he was in the house. And when she came out it
startled her, because she said, “What are you doing
here?” He was in her house.
Ms. Graham-Hughes also testified she observed Appellant in
the past peeking into [Victim’s] windows like [a] peeping
tom. Ms. Graham-Hughes believed Appellant was
attempting to see if [Victim] was in her home.
David Rhodes, another neighbor of [Victim], testified [he]
arrived at [Victim’s] house after his wife called 911 to report
the burglary. Upon arriving at [Victim’s] house, Mr. Rhodes
testified he observed the glass window panel in [Victim’s]
side door nearest to the doorknob was broken and it looked
as if someone broke the glass panel from the outside.
(Trial Court Opinion, filed March 11, 2020, at 2-5) (internal record citations
omitted).
The Commonwealth charged Appellant with burglary, criminal trespass,
criminal mischief, and theft by unlawful taking. On July 5, 2019, the
Commonwealth filed notice of its intent to present evidence of prior bad acts,
pursuant to Pa.R.E. 404(b). Specifically, the Commonwealth intended to
introduce evidence that Appellant had befriended another elderly woman in
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2017, gained access to her credit card, and made unauthorized withdrawals
in the amount of $2,812.75. On July 12, 2019, Appellant filed a motion in
limine, arguing the prior bad acts evidence was inadmissible. The court denied
Appellant’s motion in limine on August 19, 2019.
Appellant proceeded to a bench trial, and the court found Appellant
guilty of burglary, criminal trespass, and criminal mischief. The court also
acquitted Appellant of the theft charge. On November 22, 2019, the court
sentenced Appellant to an aggregate term of thirty (30) to sixty (60) months’
incarceration. Appellant timely filed post-sentence motions on December 2,
2019. Among other things, Appellant argued Victim’s trial testimony “was of
such poor and ambiguous quality that it lacked sufficient reliability and
trustworthiness.” (Post-Sentence Motions, filed 12/2/19, at 1). On December
11, 2019, the court denied Appellant’s post-sentence motions.
Appellant timely filed a notice of appeal on January 10, 2020. That same
day, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement
of errors complained of on appeal. Appellant timely filed his Rule 1925(b)
statement on January 27, 2020.
Appellant now raises two issues on appeal:
Was not the evidence at trial insufficient as a matter of law
to sustain the convictions of burglary and criminal trespass
because the trial testimony of [Victim] was so vague,
uncertain, contradictory and internally inconsistent that it
was insufficiently reliable and trustworthy to establish a
credible basis for a determination that the crimes of burglary
and criminal trespass had been committed beyond a
reasonable doubt?
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Did not reversible error occur when the trial court permitted
the Commonwealth under [Pa.R.E.] 404(b)(2), to offer as
evidence at trial Appellant’s prior acts of befriending an
elderly woman and then fraudulently obtaining unauthorized
possession of the elderly woman’s credit cards and obtaining
cash from the unauthorized use of the credit cards?
(Appellant’s Brief at 3).
In his first issue, Appellant argues the trial court “did not find [Victim]
fully credible because of her age and medical issues,” but it did credit Victim
“on the limited claim that she saw … Appellant attempting to hide [Victim’s]
purse under his jacket.” (Id. at 19). Appellant insists the court erred in
making this credibility determination, because Victim “testified at trial as to
two inconsistent versions of what occurred when she came out of the
bathroom.” (Id.) Specifically, Appellant emphasizes Victim’s cross-
examination testimony that, at some point, Appellant actually asked to enter
the house because he needed gloves.
Appellant further argues that Victim first mentioned Appellant’s hiding
of the purse after speaking with her neighbor, Ms. Graham-Hughes. Appellant
contends Ms. Graham-Hughes does not like him, and “[a] reasonable inference
is that Ms. Graham-Hughes or someone else may have influenced [Victim’s]
observations and recollections of events….” (Id. at 21). Under these
circumstances, Appellant maintains Victim’s testimony “was so vague,
uncertain, [and] inconsistent … that the Commonwealth’s evidence from
[Victim] lacked sufficient reliability….” (Id.) Appellant concludes the evidence
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was insufficient to support his burglary and trespass convictions, and this
Court must reverse. We disagree.
Preliminarily, the distinction between a claim challenging sufficiency of
the evidence and a claim challenging the weight of the evidence is critical.
Commonwealth v. Widmer, 560 Pa. 308, 318, 744 A.2d 745, 751 (2000).
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to
support the verdict when it establishes each material
element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Where the
evidence offered to support the verdict is in contradiction to
the physical facts, in contravention to human experience
and the laws of nature, then the evidence is insufficient as
a matter of law.
* * *
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there
is sufficient evidence to sustain the verdict. Thus, the trial
court is under no obligation to view the evidence in the light
most favorable to the verdict winner. An allegation 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.
* * *
[T]he 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.
Id. at 319-20, 744 A.2d at 751-52 (internal citations, quotation marks, and
footnote omitted). See also Commonwealth v. Wilson, 825 A.2d 710
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(Pa.Super. 2003) (explaining sufficiency of evidence review does not include
assessment of credibility, which is more properly characterized as challenge
to weight of evidence).
Our standard of review for a challenge to the weight of the evidence is
as follows:
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of
the witnesses. As an appellate court, we cannot substitute
our judgment for that of the finder of fact. Therefore, we
will reverse a jury’s verdict and grant a new trial only where
the verdict is so contrary to the evidence as to shock one’s
sense of justice. Our appellate courts have repeatedly
emphasized that one of the least assailable reasons for
granting or denying a new trial is the [trial] court’s
conviction that the verdict was or was not against the weight
of the evidence.
Commonwealth v. Rabold, 920 A.2d 857, 860 (Pa.Super. 2007), aff'd, 597
Pa. 344, 951 A.2d 329 (2008) (internal citations and quotation marks
omitted).
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S. Ct. 2906, 159 L. Ed. 2d 816 (2004).
Instantly, Appellant’s post-sentence motions claimed the
Commonwealth presented insufficient evidence where the trial court
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improperly credited Victim’s testimony. Notwithstanding Appellant’s attempt
to raise a challenge to the sufficiency of the evidence, Appellant blurred the
concepts of weight and sufficiency. See Widmer, supra. Essentially,
Appellant contests Victim’s credibility, which is a challenge to the weight of
the evidence. See Wilson, supra.
Nevertheless, Appellant properly preserved the weight issue, and the
trial court expressly addressed the claim as follows:
The trial judge determined [Victim] was not fully credible
due to her age and health issues. However, the trial judge
found [Victim] was credible when she testified about her
narration of the burglary. The trial judge found the
testimony that Appellant appeared uninvited [in Victim’s]
home and was concealing [Victim’s] purse under his jacket
credible.3
3 The trial judge held: “[Victim] was very clear
[regarding] the color of the purse, the cloth of the
purse, I think, or at least the pattern of the purse.
And she gave that same description to the police
before. So she was very consistent the day of, and
even today on that point.”
(Trial Court Opinion at 15-16) (internal record citations omitted).
We see no reason to disturb the trial court’s conclusions and emphasize
that the finder of fact is exclusively responsible for weight determinations.
See Rabold, supra. Here, the trial court credited Victim’s testimony that
Appellant attempted to conceal her “green and tapestry type” purse “under
his jacket,” and Appellant “threw it” on the floor when confronted. (N.T. Trial,
9/16/19, at 35, 36). The responding officer, Sergeant Monica Rose, confirmed
that on the day of the incident, Victim claimed to see Appellant hide the purse
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under his jacket and subsequently throw it to the floor. (See id. at 111).
Additionally, Victim’s testimony that Appellant entered her house without
permission was supported by Ms. Graham-Hughes. (Id. at 87). Although
Victim may have offered conflicting testimony about the precise sequence of
events on the date of the burglary, the trial court was free to believe her
testimony in part. See Rabold, supra. On this record, the trial court did not
palpably abuse its discretion in ruling on the weight claim, and Appellant is
not entitled to relief on this basis. See Champney, supra.
In his second issue, Appellant argues his “prior acts of unauthorized use
of another’s access device proves nothing about” whether he committed the
offenses at issue. (Appellant’s Brief at 26). Appellant acknowledges the prior
bad acts evidence “may show a character trait of [Appellant] preying on
elderly women to steal from them[.]” (Id. at 27). Appellant insists, however,
the underlying facts of the two incidents are so different “that the evidence of
the prior [bad] acts serve only to show Appellant’s … propensity to commit
nonviolent theft and has no probative value on the commission of the present
charges….” (Id.) Appellant concludes the court improperly admitted the prior
bad acts evidence, and he is entitled to a new trial on this basis. We disagree.
This Court’s standard of review for issues regarding the admissibility of
evidence is well settled:
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.
An abuse of discretion is not merely an error of judgment,
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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. [I]f 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. Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014), appeal
denied, 632 Pa. 667, 117 A.3d 294 (2015) (internal citations and quotation
marks omitted).
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) (en banc),
appeal denied, 633 Pa. 787, 128 A.3d 220 (2015).
Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue more
or less probable, or tends to support a reasonable inference
or proposition regarding a material fact. Relevant evidence
may nevertheless be excluded if its probative value is
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.
Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa.Super. 2019), appeal
denied, ___ Pa. ___, 219 A.3d 597 (2019) (internal quotation marks omitted).
“Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person
acted in accordance with the character.” Pa.R.E. 404(b)(1). However,
evidence of a crime, wrong, or another act “may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
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knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E.
404(b)(2). “In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.” Id.
“Evidence of prior bad acts may [also] be admitted to establish the
existence of a common scheme, [establish] an individual’s motive, intent, or
plan, or [identify] a criminal defendant as the perpetrator of the offense
charged.” Commonwealth v. Ivy, 146 A.3d 241, 253 (Pa.Super. 2016)
(internal quotation marks omitted). “Two conditions must be satisfied to
admit prior-crimes evidence to establish a common scheme: (1) the probative
value of the evidence must outweigh its potential for prejudice against the
defendant and (2) a comparison of the crimes must establish a logical
connection between them.” Id. (internal quotation marks omitted).
Instantly, the Commonwealth sought to introduce evidence of the
circumstances surrounding Appellant’s 2017 charges. The trial court noted
the similarities between the prior bad acts and the current offenses as follows:
Addressing the logical connection between the two acts, the
manner in which the two acts were committed was identical.
Appellant inserted himself into the lives of both elderly
women in [an] attempt to swindle them out of their money.
Appellant preys on elderly women.
The prior bad act involved an elderly woman named Ms.
Marenchin. Ms. Marenchin was Appellant’s neighbor.
Appellant befriended her and then once he gained her trust,
he stole $2,813.00 through ATM cash withdrawals.
Similarly, Appellant introduced himself to [Victim] and
offered to help with tasks around her house. Instead of
helping [Victim], Appellant was simply casing her home.
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* * *
Applying the remaining factors used to establish a logical
connection, both bad acts involved no weapons but
Appellant’s sly tongue to gain his victim’s trust. The purpose
of both bad acts was to swindle elderly women out of their
money. Even though the location of the crimes were
different, the type of victims in both bad acts were identical.
Both were elderly women. After an examination of all the
factors, it is clear a logical connection exists between the
two bad acts.
(Trial Court Opinion at 9-10).
Contrary to Appellant’s assertions, the prior bad acts evidence
established a common scheme that Appellant implemented on at least two
occasions. Both the prior bad acts and current charges have a logical
connection, arising from Appellant’s attempts to befriend elderly women. See
Ivy, supra. Moreover, we cannot say that the potential for prejudice
outweighed the probative value of the prior bad acts evidence. Id. Therefore,
the trial court did not abuse its discretion by admitting the evidence of prior
bad acts. See Belknap, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2020
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