Com. v. Reyes, C. ( 2021 )

J-S47028-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CESAR ANTONIO REYES :
:
Appellant : No. 175 MDA 2020
Appeal from the Judgment of Sentence Entered December 17, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002342-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CESAR ANTONIO REYES :
:
Appellant : No. 176 MDA 2020
Appeal from the Judgment of Sentence Entered December 17, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004974-2019
BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED MARCH 26, 2021
Appellant Cesar Antonio Reyes appeals from the judgment of sentence
imposed following his convictions for theft by unlawful taking, receiving stolen
property (RSP), stalking, and two counts of witness intimidation.1 Appellant
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3921(a), 3925(a), 2709.1 (a)(2), 4952 (a)(3), and (a)(2),
respectively.
J-S47028-20
raises several claims related to the trial court’s evidentiary rulings, severance,
the weight and sufficiency of the evidence, and his sentence. We affirm.
The trial court summarized the facts and procedural history of this
matter as follows:
On January 7, 2019, Pablo Ramos asked [Appellant] for a ride to
the Queen of Angels Apartments in Muhlenberg Township, Berks
County. The men were part of the same social circle and attended
the same treatment clinic. Ramos had received a letter about an
available apartment he applied for, but Ramos did not drive.
[Appellant] agreed to drive Ramos. [Appellant] parked outside
Queen of Angels and went inside with Ramos.
At the same time[,] Queen of Angels Apartment Manager,
Jeannine English, was busy processing tenants’ payments in her
office on the ground floor of the building around 10:30 a.m.
English was startled to see [Appellant] standing directly over her
desk, having entered without knocking. English quickly tried to
collect herself and conceal private tenant information. She placed
the checks and money orders into an envelope and placed the
envelope on the left side of her desk.
Ramos stayed in the hallway, leaving [Appellant] alone in the
office with English. English and [Appellant] talked about whether
he might qualify for a room, including whether he fell below
income cap. [Appellant] was elusive and gave inconsistent
answers.
English explained to [Appellant] that she had a guide that, “would
be really beneficial to him and would help him get organized and
he really needed to get a handle on what his gross income number
was, whether that was his income alone or whether income
included his girlfriend.” As a courtesy, English decided to give
[Appellant] a housing brochure/guide that details low income
housing options. To make the copy[,] English had to walk across
her office and turn her back to [Appellant] and her desk. It took
her one or two minutes to copy the double-sided document. As
soon as English handed him the copy, [Appellant] said goodbye
and left without any further discussion.
Ramos then stepped into the office doorway for a moment, said
he forgot his letter and application information, and left the
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building with [Appellant]. On the drive back home, [Appellant]
showed Ramos an envelope and admitted taking it from on top of
English’s desk.
English realized the payments were missing shortly after
[Appellant] left the building. After an exhaustive search of the
entire office—including filing cabinets she knew she had not
opened and the trash bins—English called the Muhlenberg
Township police. The payments, totaling $11,334, were never
redeemed, cashed, or recovered. Surveillance video from the
Queen of Angels lobby shows [Appellant] entering and leaving
English’s office.
On February 28, 2019, a criminal complaint was filed, charging
[Appellant] with theft by unlawful taking and [RSP]. On May 20,
2019, the charges against [Appellant] were waived for court. On
October 7, 2019, the court entered an order[ ] scheduling the case
for a jury trial on November 13, 2019, with a back-up date of
December 9, 2019. The Commonwealth called a different case on
November 13, 2019, thereby rescheduling [Appellant’s] trial for
December 9, 2019.
[Appellant] ran into Ramos outside the courthouse after trial was
continued. [Appellant] approached Ramos and displayed a photo
on his phone of the sworn statement Ramos gave to Officer Ramon
Caraballo. [Appellant] asked Ramos to retract his statement and
say, “that I had [made this statement] because [Appellant] kicked
my lady out of the house and that I was not thinking straight.
On November 15, 2019, Ramos contacted the affiant in the theft
action, Officer Caraballo, and told him that for each of the past
three days (beginning November 13, the original trial date)
[Appellant] approached him and tried to intimidate him into
changing his testimony or not showing for trial. A witness
corroborated Ramos’ allegation, and Officer Caraballo watched
video of [Appellant] approaching Ramos inside the clinic and
talking on November 15th.
The same day, November 15, 2019, Officer Caraballo filed a
criminal complaint charging [Appellant] with stalking and
intimidation of a witness. The Information covers [Appellant’s]
conduct over a three-day period (November 13-15). [Appellant]
was arrested November 19, 2019. He waived his preliminary
hearing on November 25, 2019 and the charges were held for
court.
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On Wednesday, December 4, 2019, the Commonwealth filed a
notice to consolidate the theft and intimidation of witness dockets.
Trial in the theft case was scheduled to take place the following
Monday[, on December 9, 2019.] [Appellant] filed a motion to
sever the dockets on December 5, 2019. The [c]ourt heard and
denied [Appellant’s] motion to sever on December 9, 2019, and
the cases proceeded to a consolidated jury trial.
Following a two-day jury trial[,] [Appellant] was found guilty on
all counts, and on December 17, 2019 the court sentenced
[Appellant] to an aggregate prison term of 21 to 60 months.[2]
Trial Ct. Op., 6/26/20, 1-8 (some formatting altered).
Appellant filed a post-sentence motion, which the trial court denied.
Appellant subsequently filed a timely notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) statement at each trial court docket number. The trial court
issued a Rule 1925(a) opinion briefly addressing the sufficiency of the
evidence, but noting that Appellant waived his sufficiency claims by failing to
comply with Pa.R.A.P. 1925(b)(4)(ii).
On appeal, Appellant raises the following issues, which we have
reordered as follows:
1. Whether the Commonwealth presented sufficient evidence to
the alleged offenses beyond a reasonable doubt, pertaining to
the charges of theft by unlawful taking, receiving stolen
property as well as stalking and intimidation of witnesses.
2. Whether the trial court abused its discretion when it permitted
guilty verdicts that were against the weight of the evidence,
____________________________________________
2 Specifically, the trial court sentenced Appellant to twelve to thirty-six
months’ incarceration for theft and nine to twenty-four months’ incarceration
for stalking, to be served consecutively. The trial court also imposed a
concurrent term of twelve to twenty-four months’ incarceration for witness
intimidation. All three sentences were within the standard guideline range for
the offenses.
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particularly verdicts that were wholly reliant on circumstantial,
inconsistent, and vacuous evidence.
3. Whether the trial court abused its discretion when it permitted
the Commonwealth to consolidate its cases against Appellant
for trial, when additional evidence proved substantially
prejudicial against Appellant and not based on the same
incident or conspiracy.
4. Whether the trial court misapplied the law when it permitted
evidence not relevant to the proceeding—notably testimony
about the businesses’ elderly and disabled clientele—and that
evidence was not harmless error.
5. Whether the trial court entered an illegal sentence when it
sentenced Appellant on a felony-three theft, and ran another
offense consecutive, when the evidence supported a lesser-
graded offense.
6. Whether the trial court’s sentence of twelve (12) to thirty six
(36) months[‘] incarceration and order to pay two-thousand
eighty-two U.S. dollars ($2,782.00) in restitution, which was
followed by nine (9) months to twenty four (24) months in a
state correctional institution was manifestly unjust and
unreasonable, considering Appellant suffers from life-
threatening immunosuppressant disease and was sole
caretaker for his long-term girlfriend and elderly mother; as
well as the court’s use of an improper offense gravity score that
resulted in a compromise of the sentencing process.
Appellant’s Brief at 19-21 (some formatting altered).
Sufficiency of the Evidence
Initially, we note that Appellant included a sufficiency claim in both of
his Rule 1925(b) statements. In the theft case, Appellant claimed that there
was insufficient evidence because the Commonwealth “failed to show that [he]
unlawfully took or exercised unlawful control over the rental payments with
intent to permanently deprive Queen of Angels Apartment.” See Rule 1925(b)
Statement (Theft Case), 1/24/20, at 2. In the stalking case, Appellant also
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claimed that there was insufficient evidence for stalking because (1) the
Commonwealth failed to prove a course of conduct; and (2) the
Commonwealth did not show intent. See Rule 1925(b) Statement (Stalking
Case), 1/24/20, at 2. Appellant also challenged the sufficiency of the evidence
for witness intimidation, claiming that (1) the Commonwealth failed to
establish intent, (2) the Commonwealth failed to prove that Appellant
intimidated or attempted to intimidate Ramos into providing misleading
information or testimony; and (3) the Commonwealth failed to prove that
Appellant intimidated or attempted to intimidate Ramos into withholding
testimony. See id. at 2.
The trial court initially noted that Appellant failed to comply with the
specificity requirements of Rule 1925(b) by challenging the sufficiency of the
evidence “without any reference to specific testimony or other evidence from
trial to support his claim.” See Trial Ct. Op. at 14; Pa.R.A.P. 1925(b)(4)(ii)
(noting that an appellant “shall concisely identify each error that the appellant
intends to assert with sufficient detail to identify the issue to be raised for the
judge,” but “[t]he judge shall not require the citation to authorities or the
record . . .”). Nevertheless, the trial court addressed the sufficiency of the
evidence supporting Appellant’s convictions in its Rule 1925(a) opinion. In
any event, because it appears that Appellant’s Rule 1925(b) statement
adequately preserved his instant claims, we will briefly address them.
Theft Case
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Appellant first challenges the sufficiency of the evidence supporting his
theft convictions. Appellant contends that “no person witnessed Appellant
take the envelope” containing the rent checks and “[a]t no time was Appellant
apprehended in possession of the rental payments nor did evidence exist
showing he attempted to cash them or benefit to the tune of $11,344.00.”3
Id. at 67. Further, Appellant contends that there were equally plausible
explanations for the missing checks, including “(1) Ms. English simply losing
the envelope herself and benefiting from the proceeds herself; (2) someone
else took it; and (3) Mr. Ramos took it and lied for some other reason about
having seen the envelope in Appellant’s possession.” Id. Appellant argues
that “[s]ince the testimony presented by the Commonwealth to establish
Appellant’s guilt is at least equally consistent with Appellant’s innocence, there
is insufficient evidence to sustain [his] conviction[s].” Id. at 58.
The Commonwealth responds that “[d]espite Appellant’s assertions,
there was clear evidence that Appellant stole the envelope of checks off Ms.
English’s desk, tucked it into a sweatshirt, and walked out of the building.”
Commonwealth’s Brief at 21. Specifically, the Commonwealth refers to
testimony from Ms. English, video surveillance footage, and testimony from
Ramos, who stated that Appellant “showed him the envelope” containing the
stolen checks after Appellant and Ramos were back in the car. Id. at 22. The
____________________________________________
3 Appellant’s sufficiency claim is based, in part, on the trial court’s valuation
of the theft under 18 Pa.C.S. § 3903(c)(2)(i), which increased the grading of
the offense to a felony. However, because we address that argument below,
we do not discuss it here.
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Commonwealth also asserts that the “jury could reasonably infer that
Appellant intended to permanently deprive Queen of Angels of their rent
checks based on the secretive circumstances of their taking.” Id. Further,
the Commonwealth adds that “there is simply no evidence to support any
inference that Appellant would have returned them.” Id. Therefore, the
Commonwealth asserts that “even before considering the intimidation as
consciousness of guilt, or the inconsistencies in Appellant’s own testimony
about the events at the Queen of Angels, [the evidence] is more than sufficient
for a jury to convict Appellant” of theft. Id.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
Because a determination of 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 therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the
factfinder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation
omitted).
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Here, the trial court concluded that there was sufficient evidence to
support Appellant’s theft convictions based on the testimony from Ramos and
Ms. English. See Trial Ct. Op. at 13. We agree. Therefore, we affirm on the
basis of the trial court’s conclusion on this issue. We add that, to the extent
Appellant asserts that there were alternative explanations for the missing
rental checks, that claim does not warrant relief. See id. (reiterating that the
Commonwealth’s case “need not preclude every possibility of innocence”).
Stalking/Witness Intimidation Case
Appellant also challenges the sufficiency of the evidence supporting his
convictions for stalking and witness intimidation. With respect to stalking,
Appellant contends that his conversations with Ramos “individually or
collectively do not rise to the level of causing harassment or causing
substantial emotional distress,” nor was there any testimony from Ramos that
he suffered “great concern or alarm.” Appellant’s Brief at 78. As to witness
intimidation, Appellant contends that there was no testimony that “Appellant
asked [Ramos] to change or withhold testimony in this case.” Id. at 80.
Therefore, Appellant concludes that the evidence was insufficient to establish
his convictions for either offense. Id.
Here, following our review of the record, the parties’ briefs, and the well-
reasoned conclusion of the trial court, we affirm on the basis of the trial court’s
analysis of this issue. See Trial Ct. Op. at 13 (noting that Ramos testified that
he was in fear of Appellant, who approached him multiple times and attempted
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to prevent him from participating in the Commonwealth’s case). Therefore,
Appellant is not entitled to relief on this claim.
Weight of the Evidence
Appellant also argues that his convictions were against the weight of the
evidence.
With respect to the theft convictions, Appellant asserts:
There are numerous inconsistencies with the different versions of
events as told by Ms. English, Mr. Ramos, and Det. Caraballo. Ms.
English provided additional details not supported by Det.
Caraballo’s testimony or Mr. Ramos’s. Mr. Ramos’s testimony also
is not supported by the testimony of other Commonwealth
witnesses with respect to material details. Notably, Mr. Ramos’s
testimony is the least credible of all the Commonwealth’s
witnesses, and he’s directly contradicted by Appellant’s version of
events and insistent denial of taking anything from Queen of
Angels.
Appellant’s Brief at 88. As to stalking and witness intimidation, Appellant
argues that “Ramos’s allegations were not corroborated by any testimony or
additional evidence. His credibility throughout the proceeding was
contradicted by Commonwealth and Appellants’ witnesses.” Id. at 89.
Therefore, Appellant concludes that “[t]he testimony presented by Mr. Ramos
and Ms. English should so offend this Court’s sensibilities that it should reverse
and remand for a new trial.” Id.
The Commonwealth responds that the trial court properly denied
Appellant’s challenge to the weight of the evidence, as it was the jury’s
prerogative to weigh the credibility of the witnesses’ testimony.
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Commonwealth’s Brief at 35. Therefore, the Commonwealth argues that
Appellant is not entitled to relief. Id.
“The weight of the evidence is exclusively for the finder of fact, who is
free to believe all, none or some the evidence and to determine the credibility
of the witnesses.” Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa.
Super. 2019) (citation omitted).
Further, we have explained that
[a] new trial is not warranted because of a mere conflict in the
testimony and must have a stronger foundation than a
reassessment of the credibility of witnesses. Rather, the 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.
On appeal, our purview is extremely limited and is confined to
whether the trial court abused its discretion in finding that the jury
verdict did not shock its conscience. Thus, appellate review of a
weight claim consists of a review of the trial court’s exercise of
discretion, not a review of the underlying question of whether the
verdict is against the weight of the evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)
(quotation marks and citations omitted).
Finally, we note that when a weight claim “is predicated on the credibility
of trial testimony, our review of the trial court’s decision is extremely limited.
Generally, unless the evidence is so unreliable and/or contradictory as to make
any verdict based thereon pure conjecture, these types of claims are not
cognizable on appellate review.” Commonwealth v. Gibbs, 981 A.2d 274,
282 (Pa. Super. 2009) (citation omitted).
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Here, Appellant filed a post-sentence motion preserving his challenge to
the weight of the evidence, which the trial court rejected. In it’s Rule 1925(a)
opinion, the trial court noted that “[t]he jury obviously believed the
Commonwealth’s witnesses, and the verdicts are not so contrary to the
evidence as to shock one’s sense of justice.” See Trial Ct. Op. at 15.
Our review of the record confirms that, other than challenging the
credibility of the witnesses based on alleged “inconsistencies” in their trial
testimony, Appellant did not specify how the witness testimony was so vague
or tenuous that the verdict shocks one’s sense of justice or the conscience of
the court. As noted by the trial court, the jury was free to assess the credibility
of the Commonwealth’s witnesses in rendering its verdict, and we will not
disturb that credibility determination on appeal. See Gonzalez, 109 A.3d at
723; see also Gibbs, 981 A.2d at 282. Therefore, we discern no abuse of
discretion by the trial court in denying Appellant’s claim. See Gonzalez, 109
A.3d at 723. Further, to the extent Appellant invites this Court to re-weigh
the evidence presented at trial, that is not the role of our appellate review.
See Gibbs, 981 A.2d at 282. Accordingly, Appellant is not entitled to relief.
Motion to Sever
Appellant next argues that the trial court erred in denying his motion to
sever the stalking and witness intimidation charges from the original charges
of theft and RSP. Appellant’s Brief at 49. Specifically, Appellant claims that
the evidence of the stalking and witness intimidation charges would not have
been not admissible in a separate trial for the theft charges, as “the evidence
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of stalking/intimidation was so far removed in time from the theft offense that
it failed to show state of mind or intent of [A]ppellant at the commission of
the crime being tried.” Id. at 50. Appellant contends that “[w]ith a nearly
11-month gap, the [trial c]ourt and jurors are left confounded or even worse
left speculating as to Appellant’s state of mind at the time of the alleged theft.”
Id. Further, Appellant contends that the cases had different victims, as the
theft case involved Queen of Angels, a housing complex, while the
stalking/intimidation case involved Ramos, and that “[t]he two cases also do
not share any issues of law or similar facts.” Id. Appellant also claims that
“[a]s a result of this consolidation, the jury heard additional evidence of
Appellant’s bad acts and found him guilty on all counts” and therefore suffered
undue prejudice. Id. at 50-51.
The Commonwealth responds that the trial court properly denied
Appellant’s motion to sever, as “[t]he two incidents were easily distinguishable
by the jury, and the evidence presented was not so prejudicial that it was
likely to result in a guilty verdict based on something other than proper
consideration of the evidence.” Commonwealth’s Brief at 39. The
Commonwealth further asserts that the evidence of each offense would have
been admissible at the trial on the other offenses and that, had the trial court
granted the severance motion, “each trial would have ended up looking
remarkably similar, as the same incidents would have been talked about in
both trials.” Id. Finally, with respect to prejudice, the Commonwealth asserts
that “although evidence of the fact that [Appellant] attempted to intimidate a
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witness against him into changing his story or not showing at all is ‘bad’ for
Appellant, there is no prejudice of the type necessary” to demonstrate that
the trial court abused its discretion. Id.
“Joinder and severance of separate indictments for trial is a
discretionary function of the trial court; consequently, the trial court’s decision
is subject to review for abuse of that discretion.” Commonwealth v.
Brookins, 10 A.3d 1251, 1255 (Pa. Super. 2010). “The critical consideration
is whether the appellant was prejudiced by the trial court’s decision not to
sever. The appellant bears the burden of establishing such prejudice.”
Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010) (citation
omitted and some formatting altered).
Where the defendant moves to sever offenses not based on
the same act or transaction . . . the court must . . .
determine: [1] whether the evidence of each of the offenses
would be admissible in a separate trial for the other; [2]
whether such evidence is capable of separation by the jury
so as to avoid danger of confusion; and, if the answers to
these inquiries are in the affirmative, [3] whether the
defendant will be unduly prejudiced by the consolidation of
offenses.
* * *
“Evidence of crimes other than the one in question is not
admissible solely to show the defendant’s bad character or
propensity to commit crime.” See Pa.R.E. 404(b)(1) . . . .
Nevertheless:
[E]vidence of other crimes is admissible to demonstrate (1)
motive; (2) intent; (3) absence of mistake or accident; (4)
a common scheme, plan or design embracing the
commission of two or more crimes so related to each other
that proof of one tends to prove the others; or (5) the
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identity of the person charged with the commission of the
crime on trial. Additionally, evidence of other crimes may
be admitted where such evidence is part of the history of
the case and forms part of the natural development of the
facts.
Brookins, 10 A.3d at 1256 (some citations omitted).
Here, at the pretrial hearing, the trial court explained its reasons for
denying Appellant’s motion to sever as follows:
Under the law, there is no doubt that [the evidence in each case]
would be admissible during the course of [trial in the] other
because you have to have testimony that the only reason that
[Appellant] intimidated this gentleman is because there was a
pending matter. It seems to me that 12 reasonable people could
discern one case from the other, so I don’t really think that it
would be so complicated that it would confuse the jury. I mean,
[Appellant is] charged with telling someone not to testify in [the
theft] case, although it is months and months later. . . . And I also
don’t think that he would be prejudiced by this because it’s going
to come out in the trial anyway.
N.T. Trial, 12/9/19, at 10.
Based on our review of the record, we discern no abuse of discretion by
the trial court. See Brookins, 10 A.3d at 1255-56; Dozzo, 991 A.2d at 901.
As discussed previously, the stalking and witness intimidation charges arose
from Appellant’s efforts to prevent Ramos from testifying in the theft case. As
such, the evidence in each case would be admissible at a separate trial for the
other. See Brookins, 10 A.3d at 1255-56. Further, given that the matters
are easily separable by the jury, there was no danger of confusion. See id.Finally, Appellant failed to demonstrate the potential for undue prejudice
based on the joint trial. See id. Therefore, the trial court properly denied
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Appellant’s motion to sever. See Pa.R.Crim.P. 582(A)(2), 583; see also
Brookins, 10 A.3d at 1255-56. Accordingly, Appellant is not entitled to relief.
Ms. English’s Testimony
Appellant next claims that the trial court erred in allowing Ms. English
to testify about the type of housing offered at Queen of Angels, as it was “not
only irrelevant to the underlying allegations but also extremely prejudicial.”
Appellant’s Brief at 32. Specifically, Appellant refers to Ms. English’s
testimony that the property caters to “elders that are 62 and above who meet
the criteria for low income housing, which means they qualify for rent subsidy
. . . and that certain complexes are designed predominantly for seniors and
younger adults with handicapped disabilities.” Id. at 54-55. Appellant argues
that the “details elicited by the Commonwealth suggested to the jury that
Appellant was someone who preyed upon the elderly and disabled, who are
some of the most vulnerable members of the community.” Id. at 55.
Appellant concludes that “the prejudicial impact of the irrelevant testimony
was fatally prejudicial.” Id. at 56.
The Commonwealth responds that Ms. English’s testimony “was relevant
because it explains the nature of her interaction with Appellant and it tells the
complete story of the theft.” Commonwealth’s Brief at 41. Further, the
Commonwealth contends that although the residents are “vulnerable
members of the community, there is no requirement that the judge sanitize
unpleasant facts for the jury.” Id. In any event, the Commonwealth asserts
that any potential error in the trial court’s ruling was harmless, as there was
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overwhelming evidence to establish Appellant’s guilt for the charged offenses.
Id. at 42. Therefore, even if the trial court erred in allowing Ms. English to
testify about the type of residents at Queen of Angels, the Commonwealth
concludes that “it could not possibly have contributed to the verdict.” Id.
In reviewing a challenge to the admissibility of evidence, our standard
of review is as follows:
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, 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. If 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) (citations
omitted and formatting altered).
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc)
(citation omitted).
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.
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Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super. 2019) (citation
and quotation marks omitted), appeal denied, 219 A.3d 597 (Pa. 2019).
However, our Supreme Court has emphasized that “[e]vidence will not
be prohibited merely because it is harmful to the defendant.”
Commonwealth v. Dillon, 925 A.2d 131, 138–39 (Pa. 2007). “[E]xclusion
is limited to evidence so prejudicial that it would inflame the jury to make a
decision based upon something other than the legal propositions relevant to
the case.” Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009)
(citation omitted).
Here, the trial court addressed Appellant’s claim as follows:
Residency at Queen of Angels is generally restricted to very low-
income persons who are at least 62 years old or have a qualifying
disability. The Commonwealth alleged that [Appellant] took an
envelope containing thirty-eight uncashed rental checks from on
top of [Ms.] English’s desk. English is the Queen of Angels
Apartment Manager, and she maintains an office on the first floor.
English testified that she was entering the monthly payments into
the apartment’s records when [Appellant] entered her office
without knocking. English and [Appellant] engaged in a
conversation about whether he qualified for housing at Queen of
Angels. [Appellant] told English that he was under 62 but had a
disability. [Appellant] could not provide enough financial
information to determine whether he qualified, so English made
him a copy of a guide that, “detail[s] low income housing options.”
The Commonwealth argued to the jury that [Appellant] took the
envelope while English was across the office copying the housing
guide, with her back to the [Appellant] and her desk.
The entire discussion between the two, and the reason English left
her desk and turned her back to [Appellant], centered on figuring
out whether [Appellant] was a qualifying “low-income” person.
The fact that Queen of Angels provides housing for low-income
persons tends to make English’s testimony about copying a low
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income housing guide more probable than it would be without
knowing that.
Trial Ct. Op. at 8-9.
Based on our review of the record, we discern no abuse of discretion or
error of law in the trial court’s ruling. See Belknap, 105 A.3d at 9-10. As
noted by the trial court, Ms. English’s testimony was relevant to establish the
facts surrounding the theft. Further, there is no indication that Ms. English’s
testimony was “so prejudicial that it would inflame the jury to make a decision
based upon something other than the legal propositions relevant to the case.”
See Page, 965 A.2d at 1220. Therefore, Appellant is not entitled to relief.
Grading of Theft Offense
Appellant next claims that the trial court erred in grading the theft
conviction as a third-degree felony, rather than a third-degree misdemeanor.
Appellant’s Brief at 83. Appellant contends that although the checks and
money orders had a face value of $11,344, they were made out to Queen’s
Angels and, therefore, they “had no value to him.” Id. at 33. Appellant
continues that, because he did not have the ability to cash the checks, they
were worth “no more than the paper on which they were printed[,] and the
Commonwealth did not introduce any evidence to the contrary.” Id. Further,
although Appellant acknowledges that the jury found specifically found that
the value of the stolen checks exceeded $2,000, he asserts that “there was
legally insufficient evidence, specifically no evidence at all, to support the
jury’s finding that the purloined rental payments were worth anything at all,
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let alone [more than] $2,000.” Id. at 62-63. As such, Appellant concludes
that the theft offense should have been graded as a misdemeanor. Id. at 34.
The Commonwealth responds that it presented sufficient evidence to
establish the felony grading based on testimony from Ms. English and an
exhibit that listed the value of each check. Commonwealth’s Brief at 24.
Based on that evidence, the Commonwealth asserts that “it was legally
appropriate for the jury to use the amount written on the checks and money
orders to find the value of the theft.” Id. at 23 (relying on 18 Pa.C.S. § 3903
(c)(2)(i)). Further, the Commonwealth adds that Appellant’s ability to cash
the checks, “and thereby receive the cash value of the various instruments, is
not an element of the crime.” Id. at 24. Therefore, the Commonwealth
argues that Appellant is not entitled to relief.
An error in the grading of an offense implicates the legality of a
sentence. Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa. Super.
2004). “[T]he determination as to whether the trial court imposed an illegal
sentence is a question of law; our standard of review in cases dealing with
questions of law is plenary.” Commonwealth v. Williams, 868 A.2d 529,
532 (Pa. Super. 2005) (citation omitted).
Section 3903 of the Crimes Code governs the grading of theft offenses
and provides, in relevant part, as follows:
(a.1) Felony of the third degree.—Except as provided in
subsection (a) or (a.2), theft constitutes a felony of the third
degree if the amount involved exceeds $2,000, or if the property
stolen is an automobile, airplane, motorcycle, motorboat or other
motor-propelled vehicle, or in the case of theft by receiving stolen
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property, if the receiver is in the business of buying or selling
stolen property.
* * *
(b) Other grades.—Theft not within subsection (a), (a.1) or
(a.2), constitutes a misdemeanor of the first degree, except that
if the property was not taken from the person or by threat, or in
breach of fiduciary obligation, and:
(1) the amount involved was $50 or more but less than $200
the offense constitutes a misdemeanor of the second
degree; or
(2) the amount involved was less than $50 the offense
constitutes a misdemeanor of the third degree.
(c) Valuation.—The amount involved in a theft shall be
ascertained as follows:
* * *
(2) Whether or not they have been issued or delivered,
certain written instruments, not including those having a
readily ascertainable market value such as some public and
corporate bonds and securities, shall be evaluated as
follows:
(i) The value of an instrument constituting an evidence
of debt, such as a check, draft or promissory note, shall
be deemed the amount due or collectible thereon or
thereby, such figure ordinarily being the face amount of
the indebtedness less any portion thereof which has been
satisfied.
* * *
(3) When the value of property cannot be satisfactorily
ascertained pursuant to the standards set forth in
paragraphs (1) and (2) of this subsection its value shall be
deemed to be an amount less than $50.
18 Pa.C.S. § 3903(a.1), (b), (c).
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Further, this Court has held that in order to increase the grading of a
theft offense, the Commonwealth must “present the jury with the essential
questions necessary” from which they can determine the dollar amount of the
theft beyond a reasonable doubt. Commonwealth v. Nellom, 234 A.3d 695,
704 (Pa. Super. 2020) (discussing Apprendi v. New Jersey, 530 U.S. 466,
(2000)).
Here, the trial court addressed Appellant’s claim as follows:
The Commonwealth presented evidence that the sum of the thirty-
eight rent payments was $11,334. The jury made a specific
finding regarding the amount of the stolen property, and it
indicated on the verdict sheet that it “found beyond a reasonable
doubt” that the amount was $11,334. [Appellant’s] conviction for
[RSP] merged with theft by unlawful taking at sentencing and was
dismissed.
[Appellant’s] focus upon the fact that the checks and money
orders had not yet been cashed when he took them from English’s
desk is misplaced. . . . [Appellant’s] suggestion that an uncashed
check or money order is of no value cannot be squared with the
language of subsection 3903(c)(2), which specifically addresses
checks and other written instruments . . . .
Thus, the jury could properly find that the value of the stolen
checks and money orders was $11,334, and the court did not err
in grading [Appellant’s] theft by unlawful taking as a felony of the
third degree at sentencing.
Trial Ct. Op. at 10-11.
Based on our review of the record, we agree with the trial court that
there was sufficient evidence to establish that the value of the stolen property
exceeded $2,000 for purposes of grading Appellant’s theft conviction as a
third-degree felony. See Nellom, 234 A.3d at 695. Further, the fact that
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Appellant did not attempt to cash the checks does not affect the valuation of
the theft. See 18 Pa.C.S. § 3903(c)(2)(i); see also Commonwealth v. Lee,
434 A.2d 1182, 1184 (Pa. 1981) (rejecting an appellant’s claim that “a forged
check is not a legal claim to money and, hence, of no value” and concluding
that the “argument cannot be squared with the language of the statute
controlling the grading of thefts, which specifically addresses checks and other
written instruments”). Therefore, Appellant’s claim is meritless.
Discretionary Aspects of Sentence
In his final claim, Appellant argues that the trial court imposed an
excessive sentence and failed to consider mitigating factors. Appellant’s Brief
at 92. Specifically, Appellant contends that the trial court failed to “adequately
consider Appellant’s mental health, dire health concerns, current family
situation, or future plans.” Id. at 39. Further, he asserts that “he should have
been given a chance at electronic monitoring or in the alternative then
confinement and supervision at a county level.” Id. Under these
circumstances, Appellant asks this Court to vacate his sentence and remand
for resentencing.4 Id.
The Commonwealth responds that the trial court properly considered
the relevant sentencing factors when fashioning Appellant’s sentence.
____________________________________________
4 Appellant also reiterates his earlier claim that the trial court imposed an
illegal sentence because there was insufficient evidence to establish that his
theft conviction was a third-degree felony. Id. However, as noted previously,
Appellant is not entitled to relief on this issue.
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Commonwealth’s Brief at 50. In addition to reviewing a PSI report, the
Commonwealth notes that counsel provided extensive background
information about Appellant and also presented testimony from Appellant’s
girlfriend. Id. at 51. The Commonwealth contends that “[g]iven the extensive
information provided from multiple sources describing the factors Appellant
feels justify mitigation . . . there is no legitimate basis to believe that the trial
court did not weigh those factors[.]” Id. at 52. Therefore, the Commonwealth
argues that “the trial court did not manifestly abuse its discretion in imposing
standard range sentences.” Id. at 52-53.
“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits
of such claims, we must determine:
(1) whether the appeal is timely; (2) whether [the
a]ppellant preserved his issues; (3) whether [the
a]ppellant’s brief includes a concise statement of the
reasons relied upon for allowance of appeal with respect to
the discretionary aspects of sentence; and (4) whether the
concise statement raises a substantial question that the
sentence is inappropriate under the [S]entencing [C]ode.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation
omitted).
“To preserve an attack on the discretionary aspects of sentence, an
appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
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for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question
exists only when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Grays, 167 A.3d
793, 816 (Pa. Super. 2017) (citation omitted).
Here, Appellant filed a timely notice of appeal, preserved his issue in a
post-sentence motion, and included a concise statement of the reasons relied
upon for allowance of appeal in his brief. See Corley, 31 A.3d at 296;
Malovich, 903 A.2d at 1251. Further, Appellant’s claim raises a substantial
question for our review. See Commonwealth v. Caldwell, 117 A.3d 763,
770 (Pa. Super. 2015) (holding that an excessive sentence claim, together
with an assertion that the court failed to consider mitigating factors, presents
a substantial question). Therefore, we will address Appellant’s claim.
Our well-settled standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
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judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted).
“A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the offender.”
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010) (citation
omitted). Further, where a PSI exists, “we shall . . . presume that the
sentencing judge was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018)
(citation omitted), appeal denied, 206 A.3d 1029 (Pa. 2019).
Where a sentence is imposed within the guidelines, we may only reverse
the trial court if we find that the circumstances of the case rendered the
application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).
Our review of the reasonableness is based upon the factors contained in 42
Pa.C.S. § 9781(d), and the trial court’s consideration of the general sentencing
standards contained in 42 Pa.C.S. § 9721(b). See Commonwealth v.
Baker, 72 A.3d 652, 663 (Pa. Super. 2013). However, “[w]e cannot re-weigh
the sentencing factors and impose our judgment in the place of the sentencing
court.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009)
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(citation omitted). Further, it is well settled that “Pennsylvania law affords
the sentencing court discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the same time or to
sentences already imposed.” Commonwealth v. Austin, 66 A.3d 798, 808
(Pa. Super. 2013) (citation omitted).
Here, at sentencing, the trial court indicated that it had reviewed
Appellant’s PSI report “several times” prior to the hearing. N.T. Sentencing
Hr’g, 12/17/19, at 7. The trial court also heard additional background
information about Appellant from counsel, as well as testimony from
Appellant’s girlfriend. See id. Nonetheless, the trial court noted that it was
particularly concerned with Appellant’s attempts to intimidate Ramos and
prevent him from testifying at trial. Id. at 15-16. Under these circumstances,
where the record reflects the trial court’s due consideration of the appropriate
sentencing factors, Appellant is not entitled to relief. See Macias, 968 A.2d
at 778.
Judgment of sentence affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/26/2021
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