Com. v. Brown, D. ( 2016 )

J-S79012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD M. BROWN
Appellant No. 1071 EDA 2016
Appeal from the Judgment of Sentence June 15, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000544-2015
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 02, 2016
Appellant, Donald M. Brown, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his jury
trial conviction for retail theft.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On December 29, 2014, Appellant and an accomplice, Mr. Williams, entered
a Home Depot in Marple Township through a service door labeled
“Contractors.” Mr. Williams was pushing a flat cart with a cardboard window
box on top. Appellant and Mr. Williams loaded a French door refrigerator on
the cart and proceeded to the customer service desk. Mr. Williams showed
the store clerk a receipt for the window and asked about the store’s return
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18 Pa.C.S.A. § 3929(a)(1).
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policy. Mr. Williams claimed he purchased both the window and the
refrigerator at a different Home Depot store. While Mr. Williams spoke with
the clerk, Appellant stood nearby. After the clerk informed Mr. Williams that
he would have to return the items where they were purchased, Appellant
and Mr. Williams took the flat cart from the store without paying for the
refrigerator. As Appellant and Mr. Williams loaded the refrigerator into a U-
Haul truck outside of the store, Cesar Evangelista, a loss prevention officer
for Home Depot, recognized Mr. Williams from a prior retail theft. Mr.
Evangelista became suspicious when he saw the refrigerator was a special
order item that the store would typically ship to a purchaser’s home. Mr.
Evangelista called the police, who stopped Appellant and Mr. Williams in the
U-Haul near the store. Mr. Williams told officers that he and Appellant had
attempted to return the refrigerator, while Appellant stated he had
accompanied Mr. Williams to Home Depot to help him pick up a refrigerator.
The police arrested both Appellant and Mr. Williams. The Commonwealth
charged Appellant with retail theft, receiving stolen property, and two counts
of conspiracy.
Appellant proceeded to a jury trial on April 23, 2015. Mr. Williams,
who had previously pled guilty to charges stemming from the Home Depot
incident, testified on Appellant’s behalf at trial. Mr. Williams stated Appellant
was a friend, with whom he attended religious prayers, and Appellant knew
of Mr. Williams’ criminal history. Mr. Williams claimed he told Appellant the
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refrigerator had already been paid for, in order to dupe Appellant into
renting the U-Haul and unknowingly assisting in the retail theft. Mr.
Williams also testified Appellant was aware that Mr. Williams did not have a
credit card. After prosecution had an opportunity for cross-examination, the
court asked Mr. Williams several clarifying questions. In addition, the court
asked Mr. Williams, “Did you ever tell [Appellant] that ‘I’m going to steal this
refrigerator, you’re going to help me, but if we get caught I’ll take the fall’?”
(N.T. Trial, 4/23/15, at 120). Mr. Williams denied he and Appellant had any
agreement that Mr. Williams would take responsibility if they were caught
and insisted he alone had planned the theft from Home Depot. At the
conclusion of all testimony, the court gave the jury the following cautionary
instruction:
During the trial of the case, I did ask questions of Mr.
Williams. I don’t think I did any other witness, but the fact
that I asked these questions as opposed to [the
Commonwealth] or [Appellant’s attorney] doesn’t matter.
My questions have no greater weight, or relevance, or
anything else because I asked them. They’re simply
questions that I thought were necessary to clarify the
witness’ testimony and you should accept that. Don’t say
“well, that must be more important than the other
evidence because the judge asked the questions.” That is
not the case. They are no different from the questions
that either counsel asked during the trial.
(Id. at 146).
On April 24, 2015, the jury convicted Appellant of retail theft. The
court ordered a pre-sentence investigation (“PSI”) report. On June 15,
2015, the court sentenced Appellant to twelve and one-half (12½) to
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twenty-five (25) months’ imprisonment, plus three (3) years’ probation.
Appellant timely filed a post-sentence motion on June 24, 2015. The court
denied Appellant’s motion on September 8, 2015. Appellant did not file a
direct appeal.
On November 17, 2015, Appellant timely filed a pro se PCRA petition
seeking reinstatement of his direct appeal rights nunc pro tunc. The court
appointed counsel on November 20, 2015, and Appellant’s counsel filed an
amended PCRA petition on March 4, 2016. The court granted Appellant’s
petition and reinstated Appellant’s direct appeal rights nunc pro tunc on
March 18, 2016. On April 8, 2016, Appellant filed a notice of appeal. The
court ordered Appellant on April 19, 2016, to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
timely complied on May 6, 2016.
Appellant raises a single issue for our review:
WHETHER IT IS REASONABLY POSSIBLE THAT THE TRIAL
COURT’S PROTRACTED INTERROGATION OF THE ONLY
DEFENSE WITNESS DEPRIVED [APPELLANT] OF A FAIR
AND IMPARTIAL TRIAL WHEN THE COURT (I) ADVOCATED
ON BEHALF OF THE COMMONWEALTH, DRASTICALLY
SHIFTING THE MOMENTUM OF THE TRIAL; (II) POSED
TWENTY-FIVE QUESTIONS THAT DID NOT SERVE THE
PURPOSE OF CLARIFYING AN IMPORTANT ISSUE; (III)
REPEATEDLY AND STRONGLY IMPUGNED THE CREDIBILITY
AND CHARACTER OF THE DEFENSE’S ONLY WITNESS; AND
(IV) REACTED NEGATIVELY AND EXPRESSED INCREDULITY
REGARDING THE PLAUSIBILITY OF THE DEFENSE.
(Appellant’s Brief at 7).
After a thorough review of the record, the briefs of the parties, the
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applicable law, and the well-reasoned opinion of the Honorable James P.
Bradley, we conclude Appellant’s issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed June 7, 2016, at 8-10) (finding:
Mr. Williams testified in manner that was confusing and contradictory at
times; Mr. Williams claimed to enjoy “honest” six-year friendship and
religious connection with Appellant, and at same time testified that he twice
duped Appellant into unknowingly committing thefts; court expressed no
opinion regarding Mr. Williams’ credibility; court simply reviewed Mr.
Williams’ earlier testimony and ultimately asked Mr. Williams if he had
agreement with Appellant that, in event theft led to arrest, Mr. Williams
would take full responsibility; Mr. Williams denied any such agreement
existed; court did not act as advocate for prosecution; court did not engage
in pervasive pattern of questioning that by method or in content deprived
Appellant of fair and impartial trial; Appellant was not deprived of fair trial as
result of court’s limited inquiry).2 Accordingly, we affirm on the basis of the
trial court opinion.
Judgment of sentence affirmed.
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2
Moreover, the court gave the jury a cautionary instruction. The court
advised the jury not to give undue or additional weight to the questions the
court asked of Mr. Williams. “[T]he law presumes that the jury will follow
the instructions of the court.” Commonwealth v. Rega, 593 Pa. 659, 692,
933 A.2d 997, 1016 (2007), cert. denied, 552 U.S. 1316, 128 S.Ct. 1879,
170 L.Ed.2d 755 (2008).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2016
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Circulated "i0/18/2016 1 0:01 AM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : CP- 23 -CR- 544 -2015
vs.
DONALD BROWN
A. Sheldon Kovach, Esquire, on behalf of the Commonwealth
Michael J. Harper, Esquire, on behalf of the Defendant
OPINION
Bradley, J. FILED:
Defendant Donald Brown was found guilty of retail thefts after a jury trial. The incident
that gave rise to his conviction took place on December 29, 2014 when Defendant and a co-
conspirator, Eugene Williams, entered a Home Depot in Marple Township, Delaware County
and removed a large refrigerator that was on display. After creating a diversion the two men
left the store and loaded the refrigerator into a U -Haul rental truck bearing Arizona license
plates. The U -Haul was stopped within minutes of leaving the Hope Depot parking lot. The
men's actions in the store were caught on video tape and a loss prevention officer
immediately identified the two men and their vehicle at the location of the stop.
On June 15, 2015 a sentence of twelve and one -half to twenty -five months of
incarceration to be followed by three years of probation was imposed. Post -sentence motions
1 18 Pa.C.S.A. 3929(a)(1)
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were denied on September 8, 2015. Defendant did not appeal from judgment of sentence.
On November 17, 2015 Defendant filed a Post Conviction Relief Act petition alleging inter
aiia, that trial counsel provided ineffective assistance by failing to file a timely notice of
appeal on his behalf. After an amended counseled PCRA petition was filed, the
Commonwealth agreed that relief in the form of a direct appeal nunc pro tunc was
warranted. Relief was granted on March 18, 2016.
A Notice of Appeal was filed by newly appointed counsel. In a "Statement of Errors
Complained of on Appeal," filed on May 6, 2016 Defendant has identified a single issue:
The Trial Court abused its discretion when it examined, reacted and commented
on the testimony of witness Eugene Williams in a prejudicial manner depriving
Appellant of due process of law. See Commonwealth v. Hammer, 508 Pa. 88,
494 A.2d 1054 (Pa. 1985).
Statement of Errors Complained of on Appeal.
At trial the Commonwealth offered the testimony of Cesar Evangelista, Home
Depot Loss Prevention Associate, in the Marple store where the theft occurred and
Officer Nick Coffin and Detective Barry Williams of the Marple Township Police
Department. Mr. Evangelista testified that on December 29, 2014 at about 11:45 a.m.
he saw two men, the Defendant and Eugene Williams, in the parking lot rapidly loading
a "French door" refrigerator into a U -Haul van. N.T. 4/23/15 p. 26, 42. He immediately
recognized Williams from retail thefts that had taken place at Home Depots in Upper
Darby and Plymouth Meeting earlier in the week and he recognized the Defendant from
the theft reported at the Upper Darby store. Id. at 27 -28, 41. Mr. Evangelista knew
that refrigerators were "special order" items that were ordered in -store and then
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delivered directly to the purchaser's home. He immediately called the Marple Police
Department and reported the suspected theft. He was able to provide police with a
description of Mr. Williams and reported the facts that the U -Haul was bearing an
Arizona license plate and was heading south on Sproul Road. Id. at 29, 52. This
information was broadcast throughout Delaware County via the 911 call center. Id at
67. After calling the police Mr. Evangelista went into the store and viewed video tape'
that captured images of the Defendant and Williams in the store. This video was viewed
by the jury.
The video showed Defendant and Williams entering the store through the
"contractor" exit. Defendant pushed a cart with a large brown box on it. It was later
determined that the box contained a broken window. The two men went to the back of
the store and are next seen returning to the front with a French door refrigerator on the
cart along with the window. Next, Defendant hands Williams a receipt and Williams is
shown holding up a receipt and speaking to a customer service employee. Id. at 30 -31,
35. Mr. Williams and Defendant then leave the store by the main exit with both the
refrigerator and the window. Id. The men passed all points of sale without paying for
the refrigerator. Id. at 34.
Officer Nick Coffin responded to Mr. Evangelista's call. Id. at 52. He received
information almost immediately following the dispatch that a Springfield patrol officer
had intercepted and stopped the U -Haul. Id. at 52. Officer Coffin went to the location of
the stop and made contact with the driver, Eugene Williams. He explained the purpose
of the stop and his investigation and asked Williams for a receipt for the refrigerator. Id.
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at 54. Williams did not have a receipt and offered by way of explanation, a story that he
was attempting to return a refrigerator that he purchased from another store. Id. at
36 -38, 55, 68. Mr. Brown told officers that he and Williams had gone to the Home
Depot to pick up the refrigerator. M. at 56. Both men were arrested. Id. at 39.
Within minutes of the 911 call Detective Barry Williams of the Marple Township
Police Department arrived at the store, picked up Mr. Evangelista and drove him to the
location of the stop. Id. at 36. The stolen refrigerator and a broken window were in the
truck's cargo area. Id. at 69. Mr. Evangelista immediately identified Defendant and
Williams as the men he had seen loading the refrigerator into the van. Id. at 36 -38, 68.
Detective Williams described Williams as "uncooperative" and testified that Defendant
looked nervous and "talk[ed] a lot. Id. at 84.
Defendant did not testify at trial. He did however offer the testimony of Eugene
Williams. See id. at 87 -122. Williams pled guilty to theft in connection with this incident
before Defendant's trial. He testified that Defendant knew nothing about the theft and
that he (Williams) "was taking the case." His statements at the location of the stop bore
no resemblance to his testimony at trial where he stated that he "duped" the Defendant
into both renting a U -Haul truck and removing the refrigerator from the Home Depot by
telling him that he had to pick up a "special order" that was already paid for. See id. at
91, 103 -06. Williams is a serial thief with convictions for three retail thefts in New
Jersey, several different theft convictions in Pennsylvania and larceny, theft and robbery
convictions in Virginia. Id. at 98. He and the Defendant knew each other for about six
years and the Defendant knew that Williams was incarcerated "upstate" before this
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incident. Id. at 115. Williams claimed that he was "honest" with Defendant about his
criminal past because he "liked" him and they prayed together but nevertheless he
purposefully duped Defendant into renting a truck and unknowingly assisting him in this
theft. Also, Williams duped the Defendant not once but twice. A week earlier Brown
helped Williams commit a retail theft at a Home Depot in Upper Darby, PA. Id. at 104.
When the prosecutor inquired regarding the earlier theft, Williams explained that each
time he compensated the Defendant for renting a truck and helping him. Defendant
knew that Williams did not have a credit card. Id. at 105. At the same time Williams
testified that he told Defendant that he placed special orders in advance for the
merchandise and that he had receipts for the items he intended to steal. Williams
described a scam in which he routinely went into a store displaying a "bogus" receipt,
feigned an attempt to return certain merchandise and then left the store with additional
items that were not paid for. See id. at 106.
At the conclusion of Williams's testimony the Court briefly reviewed several areas
of his testimony. The facts that Williams knew Defendant for six years, that they were
friends and attended masjid together, that Defendant drove Williams on occasion, that
Defendant knew that Williams had a criminal history and had spent time "upstate, " and
that Defendant was paid for his assistance were reiterated. Williams again testified both
that he was "honest" with the Defendant and that he "duped" him. Williams recounted
his entry, exit and activities in the store where Defendant was never more than six feet
away. Each of these areas was explored in Williams's earlier testimony or was depicted
in the video that the jury viewed more than once. Once again Williams described his
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credibility but merely asked the witness to reiterate his testimony in areas that were
previously explored. As could be expected from a person of his ilk, Williams testified in
a manner was at times confusing and contradictory. He claimed to enjoy an "honest"
six -year friendship and religious connection with Defendant and at the same time
testified without reservation that twice he paid the Defendant for his services and
duped him into unknowingly assisting in committing a theft. The trial court simply
reviewed Williams's earlier testimony and asked a final clarifying question which was
the crux of Williams's testimony: whether Williams had ever assured Defendant that if
the theft led to an arrest and prosecution Williams would take full responsibility.
In Commonwealth v. Manuel, 844 Aid 1, 9 (Pa. Super. 2004) the appellant
claimed that he was unduly prejudiced after the trial court made inquiries during an
expert witness's testimony and at its conclusion queried whether the expert's answers
in cross -examination in any way changed, altered or modified the opinions that he had
rendered. On appeal the Superior Court found that this single question was not "of
such nature or substance or delivered in such a manner that it may reasonably be said
to have deprived the defendant of a fair and impartial trial." Id. at 9. Similarly, in
Commonwealth v. Hodge, supra, where an alibi witness's testimony was "hazy and
inconsistent," the trial judge questioned the witness in an attempt to clarify his
responses. In an effort to rehabilitate his own testimony the witness made statements
that revealed the appellant's efforts to avoid arrest and thus raised flight as
consciousness of guilt. As in the current case, the record showed no evidence of bias,
hostility, or unfairness in the court's questions and on appeal the Superior Court
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concluded that there was no merit to the claim that the appellant was denied the right
to a fair and impartial trial because the trial court acted as an advocate for the
prosecution. Rather, the court appropriately exercised its inherent right to question
witnesses "to clarify existing facts and to elicit new information." Id. at 179. So too, in
this case the Defendant suffered no undue prejudice and was not deprived of a fair
trial as a result of the trial court's limited clarifying inquiry.
In light of the foregoing it is respectfully submitted that judgment of sentence
should be affirmed.
BY THE COURT:
es P. Bradley,
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