J-A06017-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                        Appellee               :
                                               :
                  v.                           :
                                               :
    ARTHUR MELTON                              :
                                               :
                        Appellant              :       No. 849 EDA 2018

           Appeal from the Judgment of Sentence February 20, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011945-2014


BEFORE:         STABILE, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.:                                  FILED APRIL 27, 2020

        Appellant, Arthur Melton, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial conviction for tampering with records or identification.1 We affirm.

        In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case as follows:

           I.          FACTUAL HISTORY

           In 2005, Appellant became the principal of Bok Vocational
           and Technical High School (“Bok High School”), previously
           located on 1901 S. 9th Street, Philadelphia, Pennsylvania.
           That same year, less than five percent of students at Bok
           High School made grade-level proficiency on the
           Pennsylvania System of School Assessment (“PSSA”)
           administered that year.
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. § 4104(a).
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       The Data Recognition Corporation (“DRC”) created and
       scored the PSSAs.       It also compiled reports for the
       Pennsylvania Department of Education on a variety of
       measures that included school performance and test erasure
       patterns. According to the DRC reports, Bok High School’s
       PSSA scores increased from 2007 to 2010. Furthermore, in
       2010 PSSA scores showed that 71.1 percent of the student
       body was proficient or advanced in mathematics and 53.1
       percent was proficient or advanced in reading.

       Bok High School’s rapid rise in proficiency levels correlated
       to an abnormally high number of wrong-to-right erasure
       patterns on the PSSA student answer sheets. In 2012,
       following an investigation by the Pennsylvania Office of
       Inspector General, PSSA scores for Bok High School dropped
       sharply and the number of wrong-to-right erasures dropped
       to normal levels.     Forensic data reports and expert
       testimony concluded that, from at least 2009 to 2011, PSSA
       scores from Bok High School were not authentic.

       On March 6, 2012, Investigator Raymond Harper from the
       Pennsylvania Office of Inspector General interviewed
       Appellant in response to forensic data reports of fraudulent
       PSSA scores. Present with Investigator Harper were three
       members of his staff. During the interview, Appellant was
       tense and evasive when questioned about test security
       procedures and information showing the high number of
       erasures on the PSSA answer sheets.

       Less than two months later, on April 26, 2012, Philip
       Roberts, Investigations Manager of the Office of Inspector
       General, interviewed Appellant at the agency’s office in
       Philadelphia, Pennsylvania. Attorneys Justin Weber and Ian
       McCurdy also joined Investigator Roberts during the
       interview of Appellant who was accompanied by his union
       representative. In response to questions about the high
       number of erasures on the tests, Appellant again became
       nervous and agitated. During the interview, Appellant
       confessed that he personally erased test answers from 2008
       to 2011. At trial, Appellant said that he falsely confessed to
       manipulating the answer sheets because he believed a
       confession would end the ongoing investigation at Bok High
       School.

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          In 2012[,] the Pennsylvania Department of Education
          brought disciplinary charges against Appellant. As a result
          of these charges, Appellant surrendered his teaching
          licenses for chemistry, biology, and other sciences, as well
          as his superintendent certification, principal and secondary
          [principal] certifications. Criminal charges subsequently
          followed.

          II.        PROCEDURAL HISTORY

          Appellant was arrested on September 25, 2014 and charged
          with Tampering with Public Records or Information, Forgery,
          and Tampering with Records or Identification.            On
          September 15, 2017, a jury returned a verdict of guilty on
          the charge of Tampering with Records or Identification, and
          not guilty on the charge of Tampering with Public Records
          or Information. A judgment of acquittal was entered on the
          charge of Forgery. On February 20, 2018, Appellant was
          sentenced to twelve (12) months’ non-reporting probation.
          Appellant then filed a timey appeal [on March 22, 2018].

(Trial Court Opinion, filed July 10, 2019, at 3-5) (internal citations omitted).2

       Appellant raises the following issues for our review:

          DID THE COURT ERR BELOW WHEN IT PROVIDED AN
          INCORRECT JURY INSTRUCTION ON BURDEN OF PROOF
          REQUIRED WHEN CONSIDERING THE RULE OF CORPUS
          DELICTI?


____________________________________________


2  On March 23, 2018, the court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
filed two motions for extension of time, but there are no orders in the record
or notations in the docket granting Appellant’s request. Appellant filed a Rule
1925(b) statement on May 7, 2018. Even if Appellant’s Rule 1925(b)
statement was untimely, the trial court opinion addresses the issues raised,
so we can overlook any untimeliness. See Commonwealth v. Burton, 973
A.2d 428, 433 (Pa.Super. 2008) (en banc) (explaining this Court may address
merits of criminal appeal, where defendant files untimely Rule 1925(b)
statement, if trial court had adequate opportunity and chose to prepare
opinion addressing issue(s) raised on appeal).

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         DID THE COURT ERR WHEN IT DENIED IN PART
         [APPELLANT]’S MOTION FOR JUDGMENT OF ACQUITTAL ON
         ALL CHARGES AT THE CLOSE OF THE COMMONWEALTH’S
         CASE-IN-CHIEF?

         DID THE COURT ERR BELOW WHEN IT DID NOT GRANT
         [APPELLANT] A NEW TRIAL BECAUSE THE EVIDENCE
         PRESENTED WAS INSUFFICIENT TO PROVE HIS GUILT OF
         ANY CRIME?

         DID THE COURT ERR BELOW WHEN IT DID NOT GRANT
         [APPELLANT]’S ORAL REQUEST FOR A MISTRIAL MADE
         DURING THE TESTIMONY OF COMMONWEALTH’S WITNESS
         PHIL ROBERTS?

(Appellant’s Brief at 6-7).

      In his first issue, Appellant argues that under the rule of corpus delicti,

the trial court must first determine that the prosecution has demonstrated by

a preponderance of the evidence that a crime actually occurred before allowing

a confession or admission of the accused into evidence. Appellant asserts this

rule is designed to guard against using an inculpatory statement against a

defendant when there is insufficient evidence for the jury to consider that a

crime had been committed at all. Once the trial court permits an inculpatory

statement to be used against the defendant, Appellant contends the second

part of the corpus delicti rule requires the trial court to instruct the jury that

the defendant’s inculpatory statement may be used against him only if the

jury first concludes beyond a reasonable doubt that a crime was

committed. Appellant concedes the trial court properly allowed Appellant’s

admission into evidence but challenges the court’s jury instruction regarding

his statement.    Specifically, Appellant complains the trial court failed to

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instruct the jury that it could only use Appellant’s statement against him if it

first found beyond a reasonable doubt that a crime was committed.

Appellant stresses that the court omitted the words “beyond a reasonable

doubt” from its corpus deliciti instruction and instead informed the jury it could

consider Appellant’s admission against him once the jury found a crime “in

fact” had been committed. Appellant emphasizes that the court’s erroneous

instruction could not have been harmless error because the Commonwealth

presented no evidence linking Appellant to the crime, other than Appellant’s

statement. Appellant concludes the court’s failure to issue the proper jury

instruction warrants reversal of Appellant’s conviction and/or a new trial. We

disagree.

      Preliminarily, “to preserve a claim that a jury instruction was

erroneously given, the [a]ppellant must have objected to the charge at trial.”

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa.Super. 2014), appeal

denied, 632 Pa. 669, 117 A.3d 296 (2015). Our Supreme Court has explained:

         The pertinent rules [of criminal procedure] require a specific
         objection to the [jury] charge or an exception to the trial
         court’s ruling on a proposed point to preserve an issue
         involving a jury instruction. Although obligating counsel to
         take this additional step where a specific point for charge
         has been rejected may appear counterintuitive, as the
         requested instruction can be viewed as alerting the trial
         court to a defendant’s substantive legal position, it serves
         the salutary purpose of affording the court an
         opportunity to avoid or remediate potential error,
         thereby eliminating the need for appellate review of
         an otherwise correctable issue. This is particularly so
         where a judge believes that the charge adequately covered
         the proposed points.

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Commonwealth v. Pressley, 584 Pa. 624, 630-31, 887 A.2d 220, 224

(2005) (internal citations and footnotes omitted) (emphasis added). Further,

“to preserve a challenge to…a supplemental charge, defense counsel must

make a specific objection before the jury returns to its deliberations.”

Commonwealth v. Betz, 664 A.2d 600, 619 (Pa.Super. 1995), appeal

denied, 544 Pa. 600, 674 A.2d 1065 (1996) (emphasis in original). Failure to

do so results in waiver of the claim on appeal. Id.

        Instantly, the court issued the following charge to the jury, in relevant

part:

           In this case the Commonwealth has introduced evidence of
           a statement that it claims was made by the defendant.
           Before you may consider the statement as evidence against
           the defendant, you must find that a crime was in fact
           committed, that the defendant in fact made the statement,
           and that the statement was voluntary. Otherwise you must
           disregard the statement. …

(N.T. 9/14/17, at 48). After the court finished its jury charge in its entirety,

Appellant made a series of objections. Appellant objected to the court’s failure

to define “beyond a reasonable doubt”; Appellant objected to the court’s

omission of “beyond a reasonable doubt” from the corpus delicti instruction;

Appellant objected to a portion of the charge regarding character evidence;

and Appellant objected to a portion of the charge regarding circumstantial

evidence.     After hearing arguments from counsel, the court overruled

Appellant’s objection regarding the charge related to circumstantial evidence,

but the court agreed to issue a supplemental jury charge regarding the

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definition of “beyond a reasonable doubt,” the corpus delicti instruction, and

character evidence. Specifically, the court agreed to revise the corpus delicti

instruction to state: “you must find that a crime was in fact committed beyond

a reasonable doubt…” (Id. at 72). Nevertheless, when the court brought the

jury back in, the court issued only two supplemental instructions: a definition

of “beyond a reasonable doubt” and a revised character evidence instruction.

The court omitted any supplemental corpus delicti instruction.        Appellant,

however, said nothing in response to the court’s supplemental instructions.

      Under these circumstances, the record makes clear Appellant waived his

first issue on appeal.   Although Appellant submitted a proposed point for

charge regarding the corpus delicti instruction and initially objected to the

court’s jury instructions, Appellant failed to object to the court’s supplemental

instructions.   The record suggests the court’s omission of Appellant’s

requested supplemental instruction was merely inadvertent, as the court had

already agreed to give Appellant the instruction he sought. Appellant’s failure

to object to the court’s supplemental instruction deprived the court of an

opportunity to correct its error at the appropriate stage of the proceedings

and to alleviate an appellate issue.       See Pressley, supra; Betz, supra.

Thus, Appellant’s first issue is waived.

      In his second and third issues, Appellant initially argues the court should

have granted his motion for judgment of acquittal on the tampering charges

when the court granted his motion for judgment of acquittal on the forgery


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charge.     Appellant asserts the court granted his motion for judgment of

acquittal on the forgery charge because there was insufficient evidence that

Appellant “altered the writing of another without his authority.”      Appellant

suggests the court correctly decided the PSSA answer sheets did not

constitute a “writing” sufficient for a forgery conviction. Appellant submits the

PSSA answer sheets also could not constitute a “record” for purposes of the

tampering charges.    Appellant further emphasizes that the Commonwealth

presented no evidence that Appellant actually altered any particular answer

sheet. Appellant highlights that the Commonwealth did not produce any of

the allegedly altered answer sheets at trial or any witnesses who observed

Appellant change a student’s answer sheet. Appellant contends it was mere

speculation that Appellant was the person who altered the answer sheets.

Thus, Appellant maintains the court should not have permitted the jury to

deliberate on the tampering charges and should have granted his motion for

judgment of acquittal in its entirety. Appellant further avers there was not

one shred of evidence aside from his confession that tied him to the

commission of any crime. Appellant maintains the evidence was insufficient

to demonstrate a crime was committed at all. Appellant insists the testimony

did not support a finding beyond a reasonable doubt that the students

themselves did not alter the answer sheets. Appellant concludes the evidence

was insufficient to sustain his conviction, and this Court must reverse. We

disagree.


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      When examining a challenge to the sufficiency of evidence, our standard

of review is as follows:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying the above test, we may not weigh the evidence and
         substitute our judgment for the fact-finder. In addition, we
         note that the facts and circumstances established by the
         Commonwealth need not preclude every possibility of
         innocence. Any doubts regarding a defendant’s guilt may
         be resolved by the fact-finder unless the evidence is so weak
         and inconclusive that as a matter of law no probability of
         fact may be drawn from the combined circumstances. The
         Commonwealth may sustain its burden of proving every
         element of the crime beyond a reasonable doubt by means
         of wholly circumstantial evidence. Moreover, in applying the
         above test, the entire record must be evaluated and all
         evidence actually received must be considered. Finally, the
         [finder] of fact while passing upon the credibility of
         witnesses and the weight of the evidence produced, is free
         to believe all, part or none of the evidence.

Commonwealth v. Hutchinson, 947 A.2d 800, 805-06 (Pa.Super. 2008),

appeal denied, 602 Pa. 663, 980 A.2d 606 (2009) (quoting Commonwealth

v. Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006), appeal denied, 592

Pa. 778, 926 A.2d 972 (2007)) (emphasis omitted). “A motion for judgment

of acquittal challenges the sufficiency of the evidence to sustain a conviction

on a particular charge, and is granted only in cases in which the

Commonwealth has failed to carry its burden regarding that charge.”

Hutchinson, supra at 805.

      The Crimes Code defines the offense of tampering with records or


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identification, in relevant part, as follows:

         § 4104. Tampering with records or identification

            (a) Writings.—A person commits a misdemeanor of
         the first degree if, knowing that he has no privilege to do
         so, he falsifies, destroys, removes or conceals any writing
         or record, or distinguishing mark or brand or other
         identification with intent to deceive or injure anyone or to
         conceal any wrongdoing.

18 Pa.C.S.A. § 4104(a).

      Instantly, the trial court reasoned:

         The evidence was sufficient for the jury to find Appellant
         guilty of Tampering with Records or Identification. Expert
         testimony and several witnesses indicated that from 2007
         to 2011 a non-student had manipulated PSSA test answers
         at Bok High School without authorization. Furthermore,
         because the Commonwealth can meet its burden on
         circumstantial evidence alone, it was not necessary to admit
         the compromised answer sheets.           The overwhelming
         amount of circumstantial evidence presented against
         Appellant was sufficient for the jury to make a conviction
         regardless of whether the answer sheets were admitted or
         not. Lastly, Appellant’s confession of having manipulated
         the answer sheets from 2007 to 2011 allowed the jury to
         identify the perpetrator of the crime. Viewing the evidence
         in the light most favorable to the Commonwealth, the
         evidence was sufficient for the jury to find Appellant guilty
         of the charge of Tampering with Records or Identification.

(Trial Court Opinion at 7) (internal citations omitted). We agree with the trial

court’s analysis. See Hutchinson, supra. Additionally, the PSSA answer

sheets constitute a “writing or record” sufficient to sustain Appellant’s

conviction under Section 4104(a).       See 18 Pa.C.S.A. § 4104(a).      Further,

Appellant’s acquittal on the forgery charge does not entitle him to relief where

the Commonwealth presented sufficient evidence to convict Appellant under

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the tampering statute. See Commonwealth v. Magliocco, 584 Pa. 244,

266, 883 A.2d 479, 492 (2005) (explaining general rule that mere facial

inconsistency in verdicts is not valid basis upon which to upset conviction

which is otherwise proper, since consistency in verdicts is not required under

Pennsylvania law). Thus, Appellant’s second and third issues on appeal merit

no relief.

      In his fourth issue, Appellant argues that during the Commonwealth’s

case-in-chief, Philip Roberts, an investigator in the Office of the Inspector

General, impermissibly testified that he had “success with getting admissions

or confessions from some of the administrators that were involved with these

testing abnormalities, or cheating, throughout the different parts of the state.”

Appellant asserts he immediately moved for a mistrial, arguing the extreme

prejudice inuring to Appellant from this testimony. Appellant contends the

trial court erred when it permitted the jury to consider evidence that improper

conduct had occurred at other schools and that this investigator had been

brought in to coax a confession out of Appellant. Appellant insists the fact

that similar conduct had occurred at other schools and that other

administrators in those schools confessed to wrongdoing is entirely irrelevant

to what allegedly occurred at Bok High School and who might have

perpetrated any misconduct. Appellant claims the Commonwealth should not

have been permitted to prove its case using evidence pertaining to conduct

that allegedly took place at other schools throughout Pennsylvania. Appellant


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concludes the trial court abused its discretion and erred as a matter of law

when it did not grant Appellant’s request for a mistrial, and this Court must

remand for a new trial. We disagree.

      Our standard of review from the court’s denial of a motion for a mistrial

is as follows:

         The trial court is in the best position to assess the effect of
         an allegedly prejudicial statement on the jury, and as such,
         the grant or denial of a mistrial will not be overturned absent
         an abuse of discretion. A mistrial may be granted only
         where the incident upon which the motion is based is of such
         a nature that its unavoidable effect is to deprive the
         defendant of a fair trial by preventing the jury from weighing
         and rendering a true verdict.

Commonwealth v. Rega, 593 Pa. 659, 692, 933 A.2d 997, 1016 (2007),

cert. denied, 552 U.S. 1316, 128 S.Ct. 1879, 170 L.Ed.2d 755 (2008).

      Instantly, the trial court addressed Appellant’s challenge as follows:

         Appellant raised a motion for a mistrial because of the
         following testimony by Mr. [Roberts]: “Prior I had success
         with getting admissions or confessions from some of the
         administrators that were involved with these testing
         abnormalities, or cheating, throughout different parts of the
         state.” Mr. [Roberts] served as the Investigations Manager
         of the Pennsylvania Office of Inspector General for a series
         of cheating scandals that had occurred throughout the state.
         That Mr. [Roberts] had heard confessions from other
         administrators did not prejudice Appellant. In addition, the
         [t]rial [c]ourt restricted [examination] to Appellant’s
         confession alone and Appellant himself had the opportunity
         to recant his confession. The [t]rial [c]ourt therefore did
         not abuse its discretion in denying the motion for a mistrial.




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(Trial Court Opinion at 15) (internal citations omitted).3 We see no abuse of

discretion concerning the court’s denial of Appellant’s motion for mistrial. See

Rega, supra.

       Additionally, in his opening statement to the jury, defense counsel

discussed how approximately 56 schools in the Commonwealth were under

investigation for unusual erasure patterns and that hundreds of teachers and

administrators in schools across the state had been interviewed. Evidence

regarding the unusual erasure patterns across other schools also came out

during various witnesses’ testimony, without objection from Appellant. At the

time Appellant moved for a mistrial, the court denied the motion because there

had been “ample testimony, evidence and questioning” regarding the

investigations at other schools.         (N.T. 9/12/17, at 6-9).     Further, during

closing arguments, defense counsel highlighted Mr. Roberts’ allegedly

improper testimony by stating Mr. Roberts interviewed Appellant because

“he’s good at getting confessions,” in an effort to make Appellant’s admission

appear involuntary. Defense counsel again discussed the 56 schools under

investigation in the Commonwealth during closing arguments. Under these

circumstances,      Mr.   Roberts’    single   mention   of   confessions   by   other

administrators did not warrant a mistrial.         See Rega, supra.         Therefore,


____________________________________________


3In its opinion, the trial court mistakenly refers to Mr. Roberts as Mr. Raymond
Harper. Mr. Harper testified the day before Mr. Roberts and also interviewed
Appellant. Thus, we have substituted Mr. Roberts’ name for Mr. Harper’s
name in our recitation of the trial court’s discussion of this issue.

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Appellant’s fourth issue merits no relief. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/20




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