Com. v. Maute, I. ( 2015 )

J-A30038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
IAN XAVIER MAUTE,
Appellant No. 563 EDA 2014
Appeal from the Judgment of Sentence January 9, 2014
in the Court of Common Pleas of Pike County
Criminal Division at Nos.: CP-52-CR-0000032-2013;
CP-52-CR-0000508-2012;
CP-52-CR-0000518-2012
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 05, 2015
Appellant, Ian Xavier Maute, appeals from the judgment of sentence
imposed following a jury conviction of two counts of robbery, two counts of
theft by unlawful taking, two counts of possessing instruments of crime, two
counts of recklessly endangering another person, two counts of simple
assault, one count of criminal conspiracy to commit intimidation of witness
or victim, one count of criminal solicitation to commit intimidation of witness
or victim, one count of criminal conspiracy to commit hindering
apprehension or prosecution, and one count of criminal solicitation to
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A30038-14
commit hindering apprehension or prosecution.1 These charges related to a
string of robberies on a small stretch of road just a few blocks from
Appellant’s home. Appellant challenges the trial court’s rulings on his
motion to sever and hearsay objection, and the weight and sufficiency of the
evidence for all convictions.2 We affirm on the basis of the trial court
opinion.
In its April 16, 2014 opinion, the trial court fully and correctly sets
forth the relevant facts and procedural history of this case. (See Trial Court
Opinion, 4/16/14, at 1-4). Therefore, we have no reason to restate them
here.
Appellant raises the following issues for our review:
1. Whether the trial court erred when denying [Appellant’s]
motion to sever criminal information 518-2012 from criminal
information 32-2013?
2. Whether the trial court erred when overruling [Appellant’s]
objection to hearsay testimony presented by the Commonwealth
during the [omnibus] pre-trial hearing?
3. Whether the verdict was [contrary] to the weight of the
evidence in that the evidence presented at trial was insufficient
____________________________________________
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), 907(b), 2705, 2701(a)(3),
903(c), 901(a), 903(c), and 901(a), respectively.
2
We note that, although the trial court addressed Appellant’s weight and
sufficiency of the evidence arguments, Appellant has impermissibly conflated
them into one issue. (See Trial Court Opinion, 4/16/14, at 14-18;
Appellant’s Brief, at 31-37); see also Commonwealth v. Widmer, 744
A.2d 745, 751-52 (Pa. 2000) (differentiating weight and sufficiency
arguments).
-2-
J-A30038-14
to prove the elements of the offenses charged, beyond a
reasonable doubt?
(Appellant’s Brief, at 10).3
Preliminary we note that “[a] weight of the evidence claim must be
preserved either in a post-sentence motion, by a written motion before
sentencing, or orally prior to sentencing. Failure to properly preserve the
claim will result in waiver, even if the trial court addresses the issue in its
opinion.” Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013,
appeal denied, 76 A.3d 538 (Pa. 2013) (citations omitted); see also
Pa.R.Crim.P. 607.
Here, the docket indicates that Appellant did not file a pre-sentence
motion. Furthermore, he did not raise his weight of the evidence claim
orally prior to sentencing or in his post-sentence motion. (See N.T.
Sentencing, 1/09/14, at 4-9; Post-Sentence Motion, 1/21/14, at
unnumbered pages 1-3). Accordingly, this issue is waived. See Griffin,
supra at 938; Pa.R.Crim.P. 607.
It is well-settled that “[w]hether or not separate indictments should be
consolidated for trial is within the sole discretion of the trial court and such
discretion will be reversed only for a manifest abuse of discretion or
____________________________________________
3
Appellant has abandoned his argument that his constitutional “rights were
violated when the [t]rial [c]ourt denied [his] [m]otion [t]o [e]xclude all
evidence after clearly inadmissible evidence was displayed to the [j]ury by
the Commonwealth.” (Concise Statement, 3/07/14, at unnumbered page
2).
-3-
J-A30038-14
prejudice and clear injustice to the defendant.” Commonwealth v.
Newman, 598 A.2d 275, 277 (Pa. 1991) (case citation omitted).
Similarly, “[r]ulings on the admissibility of evidence . . . are within the
discretion of the trial judge, and such rulings will form no basis for appellate
relief absent an abuse of discretion.” Commonwealth v. Johnson, 2014
WL 7392218, at *22 (Pa. filed Dec. 30, 2014). However,
Because evidentiary sufficiency presents a question of law, our
standard of review is de novo and our scope of review is plenary.
In reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial, and all
reasonable inferences drawn from that evidence, when viewed in
the light most favorable to the Commonwealth as verdict winner,
was sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt
Id. at *8.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court, we conclude
that there is no merit to Appellant’s issues. The trial court properly disposes
of all of the questions presented. (See Trial Ct. Op., at 4-11, 14-18)
(finding that the trial court properly: (1) denied severance and determined
that (a) evidence in all three robberies would be admissible in separate
trials, (b) jury could separate evidence of each crime to avoid confusion, and
(c) consolidation did not prejudice Appellant; (2) overruled objection to
alleged hearsay statements not offered to prove truth of what they asserted;
and (3) rejected challenge to sufficiency of evidence where (a) victims and
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J-A30038-14
other Commonwealth witnesses were credible, and (b) existence of security
footage showed the robberies and recorded phone conversations identified
that Appellant conspired and solicited Paul Bertino to retrieve a pair of
sneakers).
Accordingly, we find Appellant’s weight claim waived and reject all
other claims on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/2015
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IN THE COURT OF COMMON PLEAS OF
PIKE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
508-2012 CRIMINAL
Plaintiff 518-2012 CRIMINA\g,
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32-2013 CRIMINAL:r;::
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OPINI ON SUBMITTED PURSUANT TO PENNSYL VANIA RULE OF
.APPELJ;.,ATE PROCEDURE 1925
AND NOW, this -I-~d day of April, 2014 after careful review of the record,
we continue to stand by our decision and respectfully request the Superior Court to
uphold our Orders of January 9 and January 22, 2014. This COUli would also like to add ,
pursuant to Pennsylvania Rule of Appellate Procedure 1925, the following :
I. FACTUAL AND PROCEDURAL HISTORY
The evidence at trial, viewed in the light most favorable to the Commonwealth as
I
the verdict winner, establishes that on October 1, 2012, the Appellant, Ian Xavier Maute,
committed the crime of Robbery at the store Smoker' s Paradise. That Appellant entered
the store with his head and face obscured by a hooded jacket and mask and while waiving
a large knife at the cashier demanded she provide him with the cash in her register.
The Jury also found that the Appellant committed these acts again on October 19,
2012. This time, however, the Appellant targeted the store Karen' s Flea Market, but
otherwise repeated his previous actions in committing an armed assault against the
cashier in order to rob the store.
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Appellant was subsequently apprehended and arrested by the police department
and charged with three counts of robbery, three counts of unlawful taking or disposition,
two counts of possessing an instrument of crime, three counts of recklessly endangering
another person and three counts of simple assault. While being held on these charges,
Appellant placed calls to one Paul Bertino and entered into a criminal conspiracy to
intimidate witnesses and a conspiracy to hinder apprehension or prosecution. These
I
charges were consolidated and made a part of the trial on the previous charges.
On August 19, 2012, Appellant's counsel filed an Amended Omnibus Pre-Trial
Motion requesting the suppression of items found pursuant to a search warrant, the
suppression of witness Lindsey Bloomer's identification of the Appellant, a motion to
compel witness identification and contact information and a motion for severance of the
criminal informations.
On August 27, 2013, this COUli granted the Omnibus Motion with respect to the
motion to compel, the Appellant withdrew the request for suppression of items found
pursuant to the search warrant and this Court denied the motions to suppress the witness
identification and for severance.
A jury was impaneled on November 1, 2013. The trial was held on November 12
and 13, 2013. A verdict was rendered on November 14, 2013 . The Appellant was
sentenced on January 9, 2014. Appellant filed a Post-Sentence Motion on January 21,
2014, asserting that the evidence was insufficient to sustain the verdict guilty, requesting
a new trial and requesting a reconsideration of the Appellant's sentence. This Court
denied all of the Appellant's motions on January 22, 2014.
On February 19, 2014, Appellant filed a Notice of Appeal to the Superior Court.
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This COUli ordered a Concise Statement on February 20, 2014. The Appellant filed a
Concise Statement of Matters Complained on Appeal on March 7, 2014 . In his Concise
Statement, Appellant lists the following issues as matters complained of on appeal:
1. l pp ellant is entitled to a new Trial because his Pa. Constitution AIiicle 1 §9
and U.S. Constitution AIl1endment XIV Due Process Rights, as well as his
i on Constitutional Pa. R. Crim. P. 582 rights were violated when the
Commonwealth was improperly permitted to consolidate, into one trial, the
offenses contained in Criminal Information 518-2012 and 32-2013. Appellant
was entitled to a separate Trial on each of the Criminal Informations.
"2:· "Appellant is entitled to a new Trial because his Pa. Constitution Aliicle .1 §9
l d U.S. Constitution Amendment XIV Due Process Rights, as well as his
Non Constitutional Pa. R. Evid. 402, 611 and 802 rights to present relative
evidence, to duly cross exanl witnesses and rights against hearsay testimony
I
were violated when the Trial COUli allowed the Police Officer to testify, at the
J re-Trial Hearing, regarding the statements made by an out of Court witness
as to the witness' out of Court alleged identification of the Appellant. The
Trial Court, in overruling the Appellant's objections to hearsay prevented the
Appellant from presenting relative evidence and fully cross examining the
witness regarding her identification and statements.
3. vhe Appellant is entitled to a new Trial because his Pa. Constitutional Article
1 §9 and U.S. Constitution Amendment XIV Due Process Rights, as well as
his Non Constitutional Pa. R. Evid. 103 rights were violated when the Trial
Gourt denied Appellants Motion to Exclude all evidence after clearly
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inadmissible evidence was displayed to the Jury by the Commonwealth. The
display of this evidence to the Jury was improper and prejudicial in as much
al it suggested to the Jury that the Appellant was the owner of shoes identified
by one of the witnesses.
4. , hat the verdict was contrary to the weight of the evidence, in that the
T idence and testimony presented at Trial was insufficient to prove the
elements of the offenses charged, beyond a reasonable doubt.
II.
I
DIS79 A.3d 1173, 1190 (Pa. Super. 2013) (quoting
Commonwealth v. Thomas, 879 A.2d 246 (Pa. Super. 2005) and Commonwealth v. Lark,
518 Pa. 290, 302 (1988) ) (other and internal citations omitted); See Commonwealth v.
Robinson, 581 Pa. 154 (2004) cert denied, 546 U.S. 983 (2005); See also Commonwealth
v. Carson, 590 Pa. 501, 568 (2006).
In this case, the Appellant was alleged to have conducted three robberies. across
two locations. Criminal Information 32-2013 covers two of these incidents, those
relating to Smoker' s Paradise while Criminal Information 508-2012 covers the incident at
Karen' s Flea Market. If the Appellant's argument is similar to the one contained in his
Post-Sentence Motion, then it appears that counsel will argue that the merger of these two
Informations violates both subsections (a) and (b) Rule 582. This COUli would submit,
however, it was proper to merge these two Informations under both subsections (a) and
(b) in accordance with the test developed by our Supreme Court and provided supra.
The first issue a court must detelmine is whether the evidence of each of the
offenses would be admissible in a separate trial for the other. Id. In this case, they would
be. While PelIDsylvania Rule of Evidence 404 would appear to prohibit the introduction
of such evidence on its face, this Court found the evidence to fall Ullder one of the
exceptions for permitted uses. See Pa. R. Evid. 404(b)(1-2).
Specifically, the evidence for all three robberies was admissible in order to show
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plan, identity and preparation on the part of the Defendant. Similar to the case of
Commonwealth v. Dozzo, "the robberies were closely linked temporally and
geographically, and showed the like manner in which Appellant conunitted the
robberies". Commonwealth v. Dozzo, 991 A.2d 898, 903 (Pa. Super. 2010) (citing
Commonwealth v. Taylor, 671 A.2d 235 (Pa. Super. 1996) appeal denied, 54 Pa. 642(1996)). In Dozzo, the Superior Court held that such connecting evidence was sufficient
to show a criminal defendant's common scheme, plan, design and identity for a spree of
robberies and would have been admissible in separate trials. Id.Notably, the evidence cited in Dozzo is related to similarities in how the robberies
were conducted, the descriptions of the perpetrator' s accent and victims identification of
the Defendant as a robber. Id. Further, the fact that the defendant had assistance from
co-defendants for some, but not all, of the robberies was not enough to alter "the
fundamental similarities in the methods and goals of the robberies". Id.The case sub judice bears a resemblance to these circumstances. All of the
robberies Appellant was accused of occurred in the Matamoras borough along the same
stretch ofroadway. See Criminal Information filed to 518-2012 and 32-2013 (noting that
the crimes also occurred during a two-month time period); See also Transcript o/Trial 0/
Ian Maute, held on November 12, 2013 (noting the testimony of both Lindsey Bloomer
and Karen Menter). All of them were done by a white male in a hooded-jacket who
covered his face with a mask and wielded a knife. Transcript o/Trial Ian Maute, held on
November 12, 2013, pgs. 43-44, 52 and 129, lines 21-23 , then 8-9 then 11-18 finally 8-
11. In two instances, during the second Smoker's Paradise robbery and the robbery of
Karen's Flea Market Store, witnesses described it as being a very large knife. Id at pgs.
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53 and 129, lines 12-15 then 15-19.
Thus, there were many similarities binding these events together, much as
Dazzo' s were joined by the Defendant's Jamaican or African accent, the fact that all the
robberies occurred within a one-month period near the same geographical location and
threatened ' them with a gun. Commonwealth v. Dazzo, 991 A.2d 898, 903 (Pa. Super.
2010). For the Appellant here, the Appellant committed all of the robberies within a two-
month period, near the same geographical location and threatened the victims with a
knife. This Court therefore believed that the probative value of the evidence outweighed
any prejudicial effect and would have been admissible in separate trials.
Furthermore, as an alternative, if the evidence was not admissible as an exception
under 404(b )(2), it was also admissible as res gestae. Where evidence is "part of the
chain or sequence of events which became part of the history of the case and formed part
of the natural development of the facts" it can be admissible at trial. Commonwealth v.
Lark, 518 Pa. 290, 497 (1988); Accord Commonwealth v. A1iles, 545 Pa. 500, 518-9
(1996); Commonwealth v. Paddy, 569 Pa. 47, 69-70 (2002); Commonwealth v. Murphy,
540 Pa. 318, 328 (1995); Commonwealth v. Nolen, 535 Pa. 77, 88-9 (1993);
Commonwealth v. Sam, 535 Pa. 350, 359-60 (1993). Due to the proximity of the
robberies to one another, their close geographical location and the similarities of the
perpetrator involved, this Court believed that they were all part of one chain or sequence
and were part of the history of how the case formed. This was supported by the
testimony of Corporal McCormick at the pre-trial hearing. See Transcript of Pre-Trial
Omnibus Hearing, held on August 23,2013, pg. 39, lines 4-22.
The second issue this Court had to determine is whether the jury could separate
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the evidence of the crimes so as to avoid the danger of confusion. See Commonwealth v.
Kunkle, 79 A.3d 1173, 1190 (Pa. Super. 2013). This Court determined they could.
SpeCifically, the robberies of Smoker's Paradise and Karen' s Flea Market Store featured
different witnesses. These witnesses, Ms. Lindsey Bloomer and Ms. Karen Menter, did
not offer overlapping or confusing testimony, but would speak to two differ~nt events at
two separate locations. The witnesses were also presented in a clear, logical order when
giving testimony. Further, only one surveillance recording for each location were being
offered as evidence; one for the second Smoker's Paradise robbery and one for the
robbery of Karen's Flea Market Store. Thus, the risk that the jury would confuse the
-issues was minimal. Indeed,. the jury did successfully separate the charges as it fmmd the -
Appellant not guilty of the first robbery of Smoker's Paradise.
Finally, the third issue this Court had to detennine whether the Appellant would
have been unduly prejudiced by the consolidation of the offenses. Id. Based upon the
determinations discussed supra, this Court believed he would not be.
In addition, this Court did not violate the Appellant's fundamental right to due
process in reaching this determination. On August 23, 2013, when argument was held on
the Appellant's motion to sever the criminal informations, his counsel was present to give
and respond to argument and freely cross-examined witnesses. At no time was the
Appellant denied access to materials nor was he prohibited from being present for this
hearing. In none of the Appellant's previous filings nor at any time during oral argument
did he argue that he was being denied any of these rights. Finally, all proper notices and
discovery were provided to the Appellant in a timely fashion. Consequently, this Court
can determine no basis for the Appellant to allege a violation of his due process rights.
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B. The Appellant's Pennsylvania Constitution Article 1 §9 and U.S.
Constitution Amendment XIV rights and Rules of Evidence 402, 611 and 802
were not violated when a police officer was allowed to testify to out of court
statements during the preliminary hearing.
This Court submits that the evidence presented by the police officer was both
relevant and not hearsay. "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 supports a
reasonable inference or presumption regarding a material fact" . Commonwealth v.
Bullock, 948 A.2d 818, 827 (Pa. Super. 2008). TIns is subject to the caveat that
" [eJvidence, even if relevant, may be excluded if its probative value is outweighed by the
potential prejudice". COlnmonwealth v. PC?g~, 96?, A.2d 1212,.1220 .CPa. Super. 2009).
In this case, the witness in question was Corporal Matthew McCormack, who
testified at the OlIDlibus Pretrial Hearing as to what the victim told him the description of
the perpetrator was. Transcript of Omnibus Pretrial Hearing, held on August 23, 2013,
pgs. 12-15, lines 15-26, 11-16, 14-27 then 1-2. Specifically, Corporal McCormack's
testimony was that the victim described the perpetrator as a thin built man, with brown
hair, brown eyes, six feet and two inches tall with a distinguishable voice that she
recognized. Id. The victim also identified his attire and that he wielded a knife. Id.This evidence is highly probative, but not just for the truth of the statements being
offered by Corporal McCormack. The reason the COllli110nwealth sought to admit this
testimony was to reinforce the reliability of a line-up that OCCUlTed later where Ms.
Bloomer identified the Appellant. The prior consistency of Ms. Bloomer's description
coupled with her selection mutually reinforce her credibility. This was relevant because
the Appellant at this Pretrial Hearing was trying to suppress his identification by Ms.
Bloomer. See Amended Omnibus Pre-Trial Motion, filed August 19,2013 at pg. 3.
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Moreover, this Court would note once again that this evidence was offered at an
Omnibus Pretrial Hearing and not at the Appellant's actual trial. This testimony was not
used to determine the Appellant's actual guilt or innocence, but was instead offered to
explain Ms. Bloomer's description of the perpetrator and her subsequent identification of
the Appellant in a subsequent police lineup. Id at pgs. 11-12, lines 17-25 then 1-11. Any
prejudicial effect on the Appellant was thus even further minimized.
With regards to the alleged violation of Rule of Evidence 611, this COUli cannot
find a basis for the Appellant's complaint. Rule 611 is not at issue with any of the
content of what Corporal McCormack testified to. See Pa. R. Evid. 611 (noting the
sections of the rule are "Control by the Court; PUl-poses", "Scope of Cross-Examination"
and "Leading Questions").
This Court can only guess that the Appellant is alleging some violation of 611(b),
relating to the scope of cross-examination, but at the Omnibus Pretrial Hearing
Appellant's counsel was permitted to freely cross-examine Corporal McCormack. See
Transcript of Omnibus Pretrial Hearing, held on August 23, 2013, pgs. 13-20. The
Commonwealth did not object to any of the Appellant's cross-examination questions nor
did this Court hinder the examination in any way.
FUliher, the Appellant's Concise Statement elaborates that this Court's ovelTuling
of the hearsay objections raised to Corporal McCormack's testimony prevented him from
fully cross-examining Ms. Bloomer. This is a non-issue. If the Appellant wished to
question Ms. Bloomer directly, he had the ability to call her as a hostile witness of his
own. The fact that the Commonwealth did not call her and instead relied upon the
testimony of Corporal McCormack does not represent a due process violation for the
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Appellant.
Finally, the third alleged violation centers on admission of what the Appellant
believes to be inadmissible hearsay. Hearsay is defined as an oral or vvritten assertion or
nonverbal conduct if it is intended as an assertion made by a declarant while not
testifying at the current trial or hearing but which is offered to prove the truth of the
matter asselied in the statement. See Pa. R. Evid. 801(a-c). This Court found, as the
COlmnonwealth argued when the Appellant made the initial objection to the Corporal's
testimony, that his statements were not hearsay because they were not being offered to
prove the truth of what they asserted. See Transcript of Omnibus Pretrial Hearing, held
on August 23, 2013, pg. 11, lines 18-23.
Specifically, the Commonwealth represented that it was eliciting the testimony
not to prove that the perpetrator "did have X, Y, Z characteristics but rather that Miss
Bloomer gave the description and that then leads to the reliability of the line-up that
occurs later". Id. "A statement is hearsay only if it is offered to prove the truth of the
matter asserted in the statement". Pa. R. Evid. 801 (official note) (emphasis added). In
this case, the statements all related to the perpetrator's appearance or clothing, which the
Commonwealth was not attempting to prove at that time. See Transcript of Omnibus
Pretrial Hearing, held on August 23,2013, pgs. 11-16. The Commonwealth instead was
trying to show the consistency between the statements describing the perpetrator and Ms.
Bloomer's selection of the Appellant at a subsequent line-up. The statements testified to
by Corporal McCormack are therefore not hearsay by · definition. See Pa. R. Evid.
801(c)(2).
C. The Appellant's Pennsylvania Constitution Article 1 §9 and U.S.
Constitution Amendment XIV rights and Rule of Evidence l03(d) were not
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violated when this Court denied the Appellant's Motion to Exclude All
Evidence.
Pennsylvania's Rules of Evidence provide that:
"Preventing the Jury from Hearing Inadmissible Evidence. To the extent
practicable, the court must conduct a jury trial so that inadmissible evidence is not
suggested to t4e jury by any means".
Pa. R. Evid. 103(d).
This Court could find no case law directing addressing the application of this rule
to the situation that confronted us in this case. Here, the item giving rise to the
Appellant's Motion to Exclude All Evidence was specifically not admitted into evidence
at any time. At issue is the item marked as Commonwealth's Exhibit 22, which was
marked by the Commonwealth on the first day of trial. Transcript of Trial of Ian Maute,
held on November 12, 2013, pg. 255, lines 1-2 then 12-17. At this time, all the jury knew
is that they were a pair of white and black sneakers that the witness claimed were found
in the Appellant's bedroom. Id.
The Appellant's attorney objected to the moving of Exhibit 22 into evidence and
tIus Court instructed the pmiies to move on for now. Id at pg. 256 lines 3-12. The issue
did not return again until the second day of trial when Appellant' s attorney made his
Motion to Exclude All Evidence. Transcript of Trial of Ian Maute , held on November
13, 2013, pg. 4 lines 3-18. At this point, the jury had received no additional exposure,
however. The basis of Appellant's Motion was that Exhibit 22 was not in any way
related to tlus case. Id at pgs. 4-5, lines 20-25 then 1-15.
So far as this Court was informed, Exhibit 22 was a pair of black and white
sneakers that were found in the residence of one Dmliel Ortiz. Id. Mr. Ortiz had no
relation to this case or these crimes whatsoever. The witness testified that Exhibit 22 had
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only even made it to trial due to a mistaken handoff between himself and another
Evidence Officer outside the evidence locker. Id at pg. 35, lines 3-13 . The
Commonwealth did not controvert these facts and did not object to the exclusion of
Exhibit 22.
Despite the minimal exposure the jury had to Exhibit 22 at this time, this COUli
granted the Appellant permission to delve into the witness's mistake on cross-
examination. Id at pg. 6 lines 1-5. Appellant' s counsel then proceeded to do so in detail,
specifically querying the witness regarding his mistake in handling the evidence. Id at
pgs. 20-24 (entire pages). Both the Commonwealth and the Appellant continued to
question the witness about Exhibit 22 and the police deplliiment's methods of storing
evidence on Re-Direct and Re-Cross-Exllinination. Id at pgs. 31-36.
This Court submits that none of this violated Rule 103 (d). The Rule begins with
the limitation that it operates "[t]o the extent practicable ... ". Pa. R. Evid. 103(d). Given
the mistaken and surprise nature of Exhibit's 22 entry into the Commonwealth' s
perspective evidence pool, there was no reasonable way for this Court to know it was not
part of the evidence for this case before it was brought up in trial. Once Exhibit 22 was
brought up, however, this Court did not allow it into evidence and did not allow further
mention of it until the issue could be investigated further.
Furthermore, tIllS Court allowed the Appellant to control the extent Exhibit 22
was subsequently exposed to the jury by allowing him to inquire into the matter on cross-
examination at his discretion. The Commonwealth was thus also bound by the limits of
the Appellant's cross-examination. This COUli acted to the fullest extent practicable in
keeping inadmissible evidence from being suggested to the jury and in remedying the
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situation once they had been exposed.
The Appellant's Motion to Exclude All Evidence, by contrast, would not have
done that. The original exposure of the jury to Exhibit 22 would not be undone by
removing the rest of the Commonwealth's lawfully presented evidence. Neither would
the Appellant have been given a chance to attack the credibility of the witness for
mistakenly sUbmitting evidence. Tilis COUli is also not certain that the jury could have
actually disregarded all of the evidence they had previously seen admitted. The effect of
Appellant's Motion might have been to declare a mistrial in that case. Due to the limited
nature of the jury' s initial exposure to Exllibit 22, however, a mistrial did not seem
warranted.
This COUli therefore submits that it followed an appropriate course under Pa. R.
Evid. 103(d) to minimize and correct any prejudice done to the Appellant. FUliher, since
this Court acted witllin the confines of Rule 103 (d) and granted to the Appellant control
over the scope of his cross-examination into Exhibit 22, this COUli does not believe his
Constitutional rights were violated.
D. The Jury's verdict was not contrary to the weight of the evidence.
"The test for evaluating claims based on the sufficiency of the evidence IS
whether, viewing the evidence in the light most favorable to the [verdict winner], and
- drawing all reasonable inferences favorable to the [verdict winter], there is sufficient
evidence to find every element of the crime beyond a reasonable doubt". Commonwealth
v. Mongiovi, 521 A.2d 429, 592-3 (Pa. Super. 1987) (quoting Commonwealth v.
Griscavage , 485 A.2d 470, 472 CPa. Super. 1984)). "Before a court will award a new
trial on the ground that the verdict was against the weight of the evidence, it must appear
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from the record that the jury's verdict was so contrary to the evidence as to shock one's
sense of justice and to make the award of a new trial imperative, so that right may be
given another opportunity to prevail". Commonwealth v. Barnhart 434 A.2d 191, 192
(Pa. Super. 1981) (citing Lupi v. Keenan, 396 Pa. 6, 8 (1959)).
In this case, the Appellant was convicted of two counts of robbery, two counts of
theft by unlawful taking, two counts of possessing instruments of crime, two counts of
recklessly endangering another person, two counts of simple assault, one count of
criminal conspiracy to commit intimidation of witness or victim, one count of criminal
solicitation to commit intimidation of witness or victim, one count of criminal conspiracy
to commit hindering apprehension or prosecution and one count of criminal solicitation to
commit hindering apprehension or prosecution. See Verdict, filed November 14,2013.
Based upon all of the evidence discussed supra, such as the Appellant being
identified by name and recognized by Ms. Bloomer, the fact that the clothing described
by Ms. Menter as being worn by the perpetrator was found in the Appellant's home, the
Appellant being caught on video on two occasions committing the criminal acts, it can
hardly be said that it shocks the conscience for a jury to find him guilty of robbery. It is
readily apparent that the perpetrator threatened both Ms. Bloomer and Ms. Menter with
serious bodily injury by brandishing that large knife and that he did so while committing
a theft and robbing both stores of their lawfully earned money.
Further, the crime of theft by unlawful taking or disposition is also apparent from
this evidence. Both witnesses testified that an amount in excess of $200 had been stolen
from their stores, that the money was lawful property of their stores, that they did not
give the Appellant permission to take the money and the Appellant fled with the money.
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He did not return it of his own volition at any point. The Appellant taking the money and
fleeing the scene was also recorded by the security cameras which were played for the
Jury.
The weight of the evidence also supported the Appellant's convictions for
possessing an instrument of crime for similar reasons. He was clearly identified while
holding and brandishing the knife at Ms. Bloomer in order to cOlmnit robbery. While
Ms. Menter did not know who he was, she also saw the knife under his direct control as
he used it to rob her store as well. Finally, these instances were also recorded by the
security cameras and played for the jury.
. Recklessly endangering another person reqmres that a defendant consciously
ignores a great and unjustifiable risk that what he is doing places or may place a victim in
danger of death or serious bodily injury. In this case, the jury found that the Appellant
did place both Ms. Bloomer and Ms. Menter in such danger. Once again, the evidence
provided at trial was that the Appellant brandished a large knife and waived it at the
victims in order to demand their compliance. Such behavior, with a very lethal object,
can reasonably be considered a gross deviation from the standard of conduct that a
reasonable person would have followed and sustain a conviction of recklessly
endangering another person.
Moreover, this also provides the basis for the Appellant's conviction of simple
assault. A defendant is guilty of simple assault if he intentionally places a victim in fear
of imminent serious bodily injury through use of physical menace. The perpetrator
caught on the security recordings and identified by Ms. Bloomer and Ms. Menter
threatened both of them with a large knife which could certainly constitute physical
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menace. The acts were also celiainly intentional as the witnesses describe the Appellant
gesturing with the knife in order to demand their money. A large lmife would also be
more than capable of inflicting serious bodily injury on a person and could reasonably
create fear of an impairment of physical condition that would create a substantial risk of
death, disfigurement or protracted loss.
Finally, all four of the Appellants convictions for conspiracy and solicitation to
intimidate witnesses and conspiracy and solicitation to hinder apprehension are sustained
by the same facts. Evidence was presented at the trial through recordings of the
Appellant's phone calls made from the jail that Appellant collaborated with one Paul
Bertino and · asked him to speak to Damon Ficken about Mr. Ficken's statement to the
police and recover a pair of sneakers from the Appellant's home. Transcript of Trial of
Ian Maute, held on November 13, 2013, Exhibit 33, 34 and 35. The recordings also
establish that Mr. Bertino then acted on these conversations by speaking to Mr. Ficken
and scouring the Appellant's home for his sneakers. Id.
If the jury interpreted these recorded statements as true, which this Court will
presume they did as the Commonwealth was the verdict winner, then it does not shock
the conscience for the jury to have found the Appellant guilty on these counts. An
agreement to both intimidate Mr. Ficken and conceal the sneakers was made between the
Appellant and Mr. Bertino, who then took a substantial step to bring about each
agreement. These actions were solicited from Mr. Bertino by the Appellant as Appellant
was the one who proposed and formulated the plan according to the recorded phone
conversations. This Court believes that such evidence adequately fulfills all of the
criteria necessary to sustain the conviction for these four charges.
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Ultimately, because of the clear testimony of two eye witnesses, the presence of
two separate security camera records and the recorded phone conversations, this case
revolved around an issue of identity. The actions of the perpetrator in assaulting and
robbing both Smoker's Paradise and Karen's Flea Market were not largely in dispute
since they had been caught on video. The question was whether it was the Appellant
behind the mask committing these acts. Ms. Bloomer identified him on the stand as
being the one responsible. Ms. Menter provided substantial evidence to indicate that the
individual who robbed her store looked and acted the same as the one who robbed
Smoker's Paradise. All the evidence presented provided a reasonable basis for the jury to
find beyond a reasonable that that the perpetrator was the Appellant.
III. CONCLUSION
Accordingly, we respectfully request the Superior Court to affirm our Order of
January 9 and January 22,2014.
cc: James Baron, Esq.
Pike County District Attorney's Office
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