Com. v. Weaver, S. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT ALAN WEAVER :
:
Appellant : No. 371 MDA 2022
Appeal from the Judgment of Sentence Entered September 2, 2021
In the Court of Common Pleas of Perry County Criminal Division at
No(s): CP-50-CR-0000209-2019
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED AUGUST 11, 2023
Scott Alan Weaver appeals from his judgment of sentence of an
aggregate term of five to eighteen months of incarceration plus two years of
probation imposed after a jury convicted him of several crimes in connection
with the misuse of his power as manager of Marysville Borough. We affirm.
Between 2015 and 2018, Appellant ordered on behalf of and for the
Borough nearly $30,000 in maintenance supplies that were overpriced and/or
unnecessary from two companies in Florida.1 In turn, the companies sent gift
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* Former Justice specially assigned to the Superior Court.
1 For example, Appellant ordered cases of wasp and hornet spray at $25 per
can when it could have been purchased at a retail store for $6 to $8 per can.
See Commonwealth’s Exhibit 1; N.T. Trial, 4/22/21, at 54-55. Also, from
January to May 2016, Appellant spent $4,280 on what amounted to a twenty-
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cards to Appellant at his Borough office for amounts ranging from $40 to $125.
Appellant gave some of the cards away as gifts and redeemed $520 worth for
himself in October 2018.
On May 24, 2019, Appellant was charged by criminal complaint with
violating § 1103(a) and (c) of the Public Official and Employee Ethic Act, 2 theft
by unlawful taking, and commercial bribery. Appellant pled guilty to one count
of theft by unlawful taking and eight counts of commercial bribery on January
14, 2020, but successfully moved to withdraw his plea prior to sentencing. He
proceeded to a jury trial and was convicted of all four counts in the original
complaint.
Following a pre-sentence investigation, Appellant, represented by new
counsel, was sentenced as indicated above on September 2, 2021. His post-
sentence motion was denied by order of February 3, 2022. This timely appeal
followed, and both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our consideration:
[1.] Did the trial court err in denying [Appellant’s] post-sentence
motion when the jury instruction in [Appellant]’s case
resulted in a verdict that incorporated irreconcilable and
necessarily erroneous conclusions of law and fact – that the
same property was both the property of [Appellant],
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four-year supply of Diesel Clean. See Commonwealth’s Exhibit 1 (evincing
the purchase of forty-eight five-gallon buckets of Diesel Clean); N.T. Trial,
4/22/21, at 74 (testimony that it took approximately six months to deplete
one bucket of the product).
2 That statute, 65 Pa.C.S. § 1103, is discussed more fully infra.
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received as a kickback, and the property of Marysville
Borough stolen by [Appellant] – and is [Appellant] entitled
to a new trial because of this clear and fundamental error?
[2.] Did the trial court abuse its discretion in concluding that the
jury’s verdict was not against the weight of the evidence
when the verdict was necessarily founded on irreconcilable
and erroneous conclusions of law and fact?
[3.] Did the trial court err in denying [Appellant]’s [claim
pursuant to Brady v. Maryland, 373 U.S. 83 (1963),] when
the court found that the first element of a Brady claim
requires that the evidence in question be exculpatory, and
further found that the evidence at issue in [Appellant]’s case
was exculpatory, but nevertheless ruled that the claim did
not warrant further consideration, and should this Court
remand [Appellant]’s case for further proceedings regarding
the Brady claim if it declines to grant relief on his other
claims on appeal?
Appellant’s brief at 5 (cleaned up).
Appellant’s first issue concerns the trial court’s instructions to the jury.
Accordingly, the following principles guide our review:
When reviewing a challenge to a jury instruction, we review the
charge as a whole to determine if it is fair and complete. The trial
court commits an abuse of discretion only when there is an
inaccurate statement of the law. A charge is considered adequate
unless the jury was palpably misled by what the trial judge said
or there is an omission which is tantamount to fundamental error.
Commonwealth v. Lake, 281 A.3d 341, 347 (Pa.Super. 2022) (cleaned up).
Critically, in order to preserve an appellate challenge to jury instructions, the
objections must be made at trial before the jury begins deliberations. See
Pa.R.Crim.P. 647(C) (“No portions of the charge nor omissions from the
charge may be assigned as error, unless specific objections are made thereto
before the jury retires to deliberate.”); Pa.R.A.P. 302(b) (providing that, to
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preserve an exception to the jury charge for appeal, “[s]pecific exception shall
be taken to the language or omission complained of”).
Here, Appellant argues that the jury instructions were fundamentally
erroneous insofar as they advised the jury that it could conclude both (1) that
Appellant owned the gift cards because he received them as a kickback, and
(2) that Appellant stole gift cards that were owned by the Borough. See
Appellant’s brief at 15. However, as Appellant acknowledged in his post-
sentence motion, his “trial counsel failed to object to the [c]ourt’s jury
instruction and otherwise failed to address this error at trial[.]” Post-Sentence
Motion, 9/13/21, at 15. See also N.T. Trial, 4/22/21, at 178 (Appellant’s trial
counsel responding in the negative when the trial court asked whether the
parties had “any additions or corrections or requests as far as the jury
instructions”). Therefore, the claim of error is waived.3 See Commonwealth
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3 Appellant argued in his post-sentence motion that, if the trial court deemed
the issue waived, “then counsel was ineffective in failing to object to the
[c]ourt’s instruction and/or in failing to raise the issue and facilitating the error
in question.” Post-Sentence Motion, 9/13/21, at 15. In this Court, he asserts
that, because the trial court addressed the merits of the claim rather than
considering the ineffectiveness claim pursuant to Commonwealth v.
Holmes, 79 A.3d 562, 563 (Pa. 2013) (permitting review of claims of
ineffective assistance of counsel on direct appeal in some circumstances), the
claim is properly addressed on appeal. See Appellant’s reply brief at 6. The
fact that the trial court considered the issue after it had lost the ability to
timely correct any perceived error does not entitle Appellant to appellate
review of the claim. See Commonwealth v. Matt, 375 A.2d 777, 779
(Pa.Super. 1977) (holding challenge to jury instruction was waived where
counsel initially indicated that it had no objections to the charge , but
attempted to raise objections while the jury was deliberating). Appellant is
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v. Hamilton, 329 A.2d 212, 213 (Pa. 1974) (holding that even “basic and
fundamental” error in a jury charge cannot serve as a basis for appellate relief
“where no exception or only a general exception was taken to the charge, or
on a ground not raised in or by the court below”); Commonwealth v.
Messersmith, 860 A.2d 1078, 1087 (Pa.Super. 2004) (same).
Appellant next asserts that the trial court abused its discretion in holding
that the jury’s verdict was not against the weight of the evidence. The
following law applies to our review of Appellant’s weight claim:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. 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.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court. Appellate review of a weight claim is a
review of the exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the evidence.
Commonwealth v. Arias, 286 A.3d 341, 352 (Pa.Super. 2022) (cleaned up).
Consequently, our task is to determine whether the trial court, in rejecting
Appellant’s weight challenge, “abused its discretion by reaching a manifestly
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free to raise his claim of counsel’s ineffectiveness in a timely petition pursuant
to the Post Conviction Relied Act (“PCRA”). See, e.g., Commonwealth v.
Wesley, 860 A.2d 585, 590–91 (Pa.Super. 2004) (deferring claim that
counsel was ineffective for failing to object to the jury instructions to collateral
review).
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unreasonable judgment, misapplying the law, or basing its decision on
partiality, prejudice, bias, or ill-will.” Commonwealth v. Clay, 64 A.3d 1049,
1056 (Pa. 2013) (cleaned up).
Appellant’s weight claim rests upon the same foundation as his waived
challenge to the jury instructions, namely that he could not have both
personally accepted the gift cards as an improper influence upon his
purchasing power as Borough Manager and also have stolen them from the
Borough. See Appellant’s brief at 25. He maintains that reaching the
conclusion that the Borough was the rightful owner of the gift cards and that
they were paid to Appellant as a kickback was a result “premised upon
necessarily irreconcilable and erroneous findings of law and fact[.]” Id. at 30.
Appellant argues it was therefore manifestly unreasonable for the trial court
to deny his weight claim and grant him a new trial. Id. at 30-31.
In Pennsylvania, jury verdicts are presumed to be consistent “unless
there is no reasonable theory to support the jury’s verdict.” McDermott v.
Biddle, 674 A.2d 665, 667 (Pa. 1996). Nonetheless, “even where two
verdicts are logically inconsistent, such inconsistency alone cannot be grounds
for a new trial or for reversal.” Commonwealth v. Miller, 35 A.3d 1206,
1213 (Pa. 2012). “[C]onsistency in a verdict in a criminal case is not
necessary or required if there is evidence to support each verdict.”
Commonwealth v. Barkman, 295 A.3d 721 (Pa.Super. 2023).
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Appellant does not assert that the evidence was insufficient to sustain
each verdict. Instead, he contends that the result is not supported by any
reasonable theory. We consider Appellant’s argument mindful of the elements
of the crimes of which he was convicted. The provisions of the Public Official
and Employee Ethic Act at issue are as follows:
(a) Conflict of interest.--No public official or public employee
shall engage in conduct that constitutes a conflict of interest.
....
(c) Accepting improper influence.--No public official, public
employee or nominee or candidate for public office shall solicit or
accept anything of monetary value, including a gift, loan, political
contribution, reward or promise of future employment, based on
any understanding of that public official, public employee or
nominee that the vote, official action or judgment of the public
official or public employee or nominee or candidate for public
office would be influenced thereby.
65 Pa.C.S. § 1103. Appellant’s commercial bribery conviction was based upon
the following statute:
An employee, agent or fiduciary commits a misdemeanor of the
second degree when, without the consent of his employer or
principal, he solicits, accepts, or agrees to accept any benefit from
another person upon agreement or understanding that such
benefit will influence his conduct in relation to the affairs of his
employer or principal.
18 Pa.C.S. § 4108(a). Finally, a person is guilty of theft by unlawful taking “if
he unlawfully takes, or exercises unlawful control over, movable property of
another with intent to deprive him thereof.” 18 Pa.C.S. § 3921(a).
The Commonwealth has proffered a theory to support the jury’s guilty
verdicts as to all four of these crimes as consistent. Specifically, it contends
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that Appellant’s position “goes astray in his concept of ownership[.]”
Commonwealth’s brief at 4. The Commonwealth explains:
The fact that the gift cards were in Appellant’s name did not
establish ownership in him. It is incontestable that he had no right
to them – he did not pay for them, and they resulted solely from
purchases made in his official capacity; he converted them to his
use. He was not the owner, the Borough was. Pennsylvania State
Police Trooper [Trisha] Campbell succinctly testified to her
rationale behind the theft charge: “I considered the gift cards
Borough property, as the reason that Appellant got the cards were
purchases used from Borough funds. So, any cards coming back
would be the property of the [B]orough, not property of
Appellant.”
Id. (cleaned up).
This theory is eminently reasonable. It was not in any way inconsistent
or irreconcilable for the jury to find that (1) the Borough owned the gift cards
that Appellant unlawfully exercised control over by virtue of the Borough
paying for the companies’ supplies, and (2) Appellant was influenced to do
business with the companies in question because they would send the
Borough’s gift cards to him directly, enabling him to personally reap the
benefit.
Moreover, even if there were an inconsistency, it is not of the type that
Pennsylvania law will not tolerate. Compare Commonwealth v. Magliocco,
883 A.2d 479 (Pa. 2005) (holding conviction could not stand where the jury
acquitted the defendant of a predicate offense that was an element of the
crime); with Commonwealth v. Rose, 960 A.2d 149, 159 (Pa.Super. 2008)
(holding no relief was warranted although the verdicts were premised upon
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findings that the defendant both did and did not have a particular intent).
Therefore, the trial court’s conclusion that the any inconsistency in the jury’s
findings did not warrant disturbing the verdicts was not manifestly
unreasonable or the product of legal error.
Finally, Appellant avers that the trial court erred in rejecting his claim
that the Commonwealth committed a violation of Brady v. Maryland, 397
U.S. 742 (1969). “This issue presents a question of law, for which our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Bagnall, 235 A.3d 1075, 1084 (Pa. 2020). A Brady
claim has three elements: “(1) the evidence at issue was favorable to the
accused, either because it is exculpatory or because it impeaches; (2) the
prosecution has suppressed the evidence, either willfully or inadvertently; and
(3) the evidence was material, meaning that prejudice must have ensued.”
Id. at 1086. The burden of proof to establish all three prongs of the Brady
claim rests upon the defendant. Commonwealth v. Murray, 174 A.3d 1147,
1152 (Pa.Super. 2017). Concerning the second prong, “[t]he obligation to
turn over exculpatory evidence is limited to that information in the possession
of the same government agency bringing the prosecution.” Commonwealth
v. Puksar, 951 A.2d 267, 283 (Pa. 2008). “[N]o Brady violation occurs where
the parties had equal access to the information or if the defendant knew or
could have uncovered such evidence with reasonable diligence.” Bagnall,
supra at 1091.
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The evidence in question in the instant case was obtained through a
post-trial investigation which was undertaken by Appellant through his new
attorney. Appellant asserted in his post-sentence motion that the newly-
obtained information showed that the Florida companies which had sent
Appellant the gift cards were “scam companies engaged in exploitative
business practices,” such as sending invoices for products that were not
ordered and not delivered. See Post-Sentence Motion, 9/13/21, at 27-29.
Appellant utilized this information to assert an after-discovered evidence
claim, as well as a claim that trial counsel was ineffective in failing to conduct
such an investigation. Appellant asserted:
Had counsel engaged in a basic investigation of the companies or
hired an investigator on his client’s behalf with the capacity to do
so – as any competent attorney would have done – he would have
confirmed that they were, in fact, corrupt enterprises engaged in
the type of manipulative sales practices [Appellant] fell prey to.
Id. at 28. Since the evidence was so readily found when a basic investigation
was conducted, Appellant posited that Trooper Campbell surely would have
obtained it herself if she had performed an internet search of the companies
as she testified at trial to having done. See N.T. Trial, 4/22/21, at 84.
However, in his post-sentence motion, Appellant tacitly admitted that
he had no proof that a Brady violation occurred. See Post-Sentence Motion,
9/13/21, at 34 (“At this stage, [Appellant] is without sufficient information to
fully address whether a Brady violation may have occurred.”). Rather,
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Appellant requested permission “to explore the issue at an evidentiary
hearing[.]” Id.
The above makes it plain that Appellant failed to even allege facts to
warrant a hearing on his Brady claim. Not only did he admittedly lack
evidence that the Commonwealth suppressed evidence that it had within its
possession, but his ineffectiveness argument served to establish that
Appellant had equal access to the information and would have discovered it
with reasonable diligence.4 Therefore, the trial court properly denied his
Brady claim.
In sum, no issue properly before us in this appeal establishes that
Appellant’s convictions and sentence are unsound. If Appellant is entitled to
relief based upon the alleged ineffectiveness of his trial counsel, that relief will
come through the PCRA.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/11/2023
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4 Indeed, Appellant’s obvious ability to have discovered the evidence upon the
exercise of due diligence was the basis for the trial court’s denial of his after-
discovered evidence claim. See Trial Court Opinion, 2/3/22, at unnumbered
8. Appellant did not challenge that ruling on appeal.
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