Com. v. Snyder, B. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON ROSS SNYDER :
:
Appellant : No. 2097 MDA 2018
Appeal from the Judgment of Sentence Entered November 27, 2018
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001171-2017
BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 09, 2019
Brandon Ross Snyder appeals from his judgment of sentence, entered
in the Court of Common Pleas of Schuylkill County, after a jury found him
guilty of one count of access device fraud.1 After careful review, we affirm.
In December 2016, a loss prevention employee from Lowe’s Home
Improvement Center (Lowe’s) contacted Schuylkill County Child
Development, Inc. (the Agency) regarding suspicious activity on the Agency’s
credit card. The Agency had issued the credit card to its employee, Robert
Ditzler, to use only after he had an approved purchase order. On December
6, 2016, the Agency fired Ditzler, but Ditzler never returned the credit card to
the employer.
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1 18 Pa.C.S.A. § 4106(a)(1)(ii).
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Almost two weeks later, from December 18-20, 2016, Snyder made
purchases totaling $3,546.29 at Lowe’s using the Agency credit card. For each
purchase, Snyder signed his name as Robert Ditzler. On December 22, 2016,
Snyder again attempted to use the credit card at Lowe’s. When questioned
by the cashier, Snyder presented his Pennsylvania driver’s license, which
identified him as Brandon Snyder. A Lowe’s employee confronted Snyder
regarding his authorization to use the credit card under Ditzler’s name, at
which point Snyder left the store, leaving the credit card and merchandise
behind.
After a two-day jury trial, Snyder was convicted of access device fraud
on October 25, 2018. On November 27, 2018, the trial court sentenced
Snyder to eighteen to thirty-six months’ incarceration in a state correctional
facility. Snyder’s counsel filed this timely appeal on December 27, 2018.2
On appeal, Snyder raises the following issues for our review:
(1) Was the evidence presented at trial sufficient to sustain a
verdict of guilty as to [a]ccess [d]evice [f]raud?
Specifically, did the Commonwealth prove that [] Snyder
had sufficient knowledge he was not authorized to use the
credit card beyond a reasonable doubt?
(2) Did the trial court abuse its discretion and/or commit an
error of law by identifying [] Snyder by name and in
person to a Commonwealth witness whose sole purpose
for testifying was to identify [] Snyder as the alleged
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2 Snyder filed pro se motions for post-conviction collateral relief on December
7, 2018, and January 21, 2019, however, both were premature and were
dismissed on March 7, 2019. See Post Conviction Relief Act 42 Pa.C.S. §§
9541-9546.
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perpetrator of fraud, in his preliminary instructions to that
witness?
(3) Did the trial court abuse its discretion and/or commit an
error of law by admitting photographic evidence,
documentary evidence, and testimony proffered by the
Commonwealth concerning transactions occurring on
December 22, 2016, which were outside those
transactions charged in the [i]nformation?
Appellant’s Brief at 5.
Our standard of review of a sufficiency claim is well-settled:
Our standard for evaluating sufficiency of the evidence is whether
the evidence, viewed in the light most favorable to the
Commonwealth [as verdict winner], is sufficient to enable a
reasonable [factfinder] to find every element of the crime beyond
a reasonable doubt. [T]he entire trial record must be evaluated
and all evidence actually received must be considered, whether or
not the trial court’s rulings thereon were correct. Moreover, [t]he
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Finally, the trier of fact, while passing
upon the credibility of witnesses and the weight to be afforded the
evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Shull, 148 A.3d 820, 844 (Pa. Super. 2016) (citation
omitted).
An individual commits access device fraud if “he uses an access device
to obtain or in an attempt to obtain property or services with knowledge that
the access device was issued to another person who has not authorized its
use.” 18 Pa.C.S.A. § 4106(a)(1)(ii). An access device is defined as “[a]ny
card, including, but not limited to, a credit card . . . that can be used . . . to
obtain money, goods, services or anything else of value or that can used to
transfer funds.” Id. at § 4106(d).
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Initially, we note that Snyder entirely bases his argument on a
hypothetical scenario which does not apply to the instant evidence, and views
the facts in the light most favorable to himself—which is the incorrect
standard. See Shull, 148 A.3d at 844; Appellant’s Brief, at 9-10. Viewing
the evidence in the light most favorable to the Commonwealth, as we must,
See Shull, supra, we find the evidence sufficient to find Snyder guilty of
access device fraud.
Snyder purchased $3,546.29 of goods using the Agency’s credit card,
thus satisfying the use element. 18 Pa.C.S.A. § 4106(a)(1)(ii). To show
Snyder knew he was not authorized to use the credit card, the Commonwealth
introduced evidence that the Agency did not authorize Snyder to use the credit
card. See N.T. Trial, 10/24/18, at 68-69. Furthermore, Snyder’s actions of
signing another’s name and fleeing the store when confronted about the credit
card is evidence that Snyder was aware the Agency did not authorize him to
use the credit card. See Commonwealth v. Johnson, 838 A.2d 663, 681
(Pa. 2003) (finder of fact may infer consciousness of guilt from flight and
surrounding circumstances). Thus, there was sufficient evidence to sustain
Snyder’s conviction for access device fraud under section 4106(a)(1)(ii).
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Next, Snyder argues that the trial court committed reversible error when
the judge, in open court and in front of the jury, identified Snyder as the
defendant.3
Shortly after the judge identified Snyder as the defendant, Susan
Carroll, a Lowe’s cashier, identified Snyder as the person who attempted to
make purchases using the Agency’s credit card. Snyder argues that the in
court identification was inadmissible because the circumstances of the
identification were highly suggestive.
Our Supreme Court has stated that:
[T]he suggestiveness of a challenged confrontation is only one
factor to be considered in determining the admissibility of
identification testimony. Suggestiveness alone does not warrant
exclusion. Instead it is the likelihood of misidentification which
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3 The Honorable Charles M. Miller told Susan Carroll, a Lowe’s cashier
testifying for the Commonwealth:
Okay. So there’s a couple rules that I tell witnesses []. And first
of all, that microphone is only used -- there is a microphone there.
There’s one here, but we don’t use those. They’re only used in
rare occasions. The public address system doesn’t work
So what you want to do is, pull forward because Attorney Reedy
and Mr. Snyder over there, who is the Defendant, Attorney Reedy
represents him. Of course you know Attorney Stine and the
prosecuting officer, Officer McGrath.
So it’s important to keep your voice up. We don’t have the air
conditioning on. And at times in the back, its difficult to hear. So
speak up.
N.T. Trial, 10/24/18, at 56-57.
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violates a defendant’s right to due process, and it is this which is
the basis of the exclusion of evidence.
The reliability of a challenged identification is to be judged under
a test employing the totality of the circumstances. The factors
relevant to determining the reliability of the identification are:
[T]he opportunity of the witness to view the criminal
at the time of the crime, the witness’ degree of
attention, the accuracy of [her] prior description of the
criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and
the confrontation. Against these factors is to be
weighed the corrupting effect of the suggestive
identification itself.
Commonwealth v. Ransome, 402 A.2d 1379, 1382 (Pa. 1979) (quotation
marks and citation omitted).
Even if we were to accept Snyder’s contention that Carroll’s
identification occurred under suggestive circumstances, we reject his claim
that the identification was unreliable. Carroll directly interacted with Snyder
when he attempted to purchase items at Carroll’s checkout line on December
22, 2016, during which time she also inspected Snyder’s Pennsylvania driver’s
license. Moreover, on cross-examination, Carroll stated she would have
identified Snyder even without the judge’s comment. See N.T. Trial,
10/24/18, at 65. Furthermore, photographic evidence depicting Snyder on
December 22, 2016, taken from a cell phone and surveillance video,
corroborated the identification. Accordingly, under the totality of the
circumstances, the trial court did not abuse its discretion when it identified
Snyder. See Ransome, 402 A.2d at 1382.
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Snyder’s last claim is that the trial court improperly admitted evidence
from the December 22, 2016 attempted purchase, claiming it was irrelevant.
Initially, we note that:
[t]he 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. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quotation
marks and citations omitted).
The general threshold for admissibility of evidence is relevance.
Evidence is relevant if it has any tendency to make a fact more or less probable
than it would be without the evidence and the fact is of consequence to
determining the action. Pa.R.E. 401. However, even relevant evidence will
be excluded when the probative value of the evidence is outweighed by the
danger of unfair prejudice, confusion of the issues, misleading the jury, undue
delay, pointlessness of presentation, or unnecessary presentation of
cumulative evidence. Pa.R.E. 403. “Unfair prejudice” means a tendency to
suggest a decision on an improper basis or to divert the jury’s attention away
from its duty of weighing the evidence impartially. Pa.R.E. 403, comment.
Evidence will not be prohibited merely because it is harmful to the defendant.
Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007).
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Here, the court admitted evidence from the December 22, 2016
encounter, even though all the charged crimes occurred prior to that date.
However, the testimony and photographic evidence presented from December
22, 2016, is relevant to identify Snyder and to show his consciousness of guilt
when he fled. Evidence that Snyder fled on December 22, 2016, makes it
more likely that he knew he was not authorized to use the card on the previous
occasions. Furthermore, witnesses testified that the same person used the
credit card on December 18, 19, 20, and 22, 2016. Thus, the testimony and
photographic evidence from December 22, 2016, was highly relevant and the
trial court did not err by admitting it at trial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2019
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