J   -S80023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

                 v.


    DMITRY KUPERSCHMIDT

                      Appellant           :   No. 3295 EDA 2016

             Appeal from the Judgment of Sentence October 7, 2016
     In the Court of Common Pleas of Pike County Criminal Division at No(s):
                            CP-52-CR-0000423-2014

BEFORE:     BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 07, 2018

        Dmitry Kuperschmidt ("Appellant") appeals from the judgment of

sentence imposed by the Court of Common Pleas of Pike County after      a   jury
found him guilty of multiple offenses related to an attempted election fraud.

We reverse the conviction on criminal use of communication facility, vacate

the judgment of sentence, and remand for resentencing.1

        This case arises out of Appellant's fraudulent voting scheme in the

2014 Wild Acres Community Association election.         Appellant and his co -




1  Appellant filed an untimely Request for Permission to File a Post -
submission Communication in the Form of a Reply Brief on December 19,
2017. Said request is hereby denied.
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defendant, Myron Cowher,        11,2   planned to cast ballots for historically non-

voting property owners of the Wild Acres Community in order to influence

the election results.     Appellant went to trial in May of 2016 on 217 counts,

including forgery, identity theft, criminal use of communication facility,

tampering with records or identification, criminal attempt, and criminal

conspiracy.3 The jury convicted Appellant on 190 counts.

        On   August     11,   2016,    the    trial   court sentenced   Appellant to

incarceration for an aggregate term of twelve to twenty-nine months.

Appellant filed   a   post -sentence motion for reconsideration.         Following   a


hearing, the trial court entered an amended sentencing order, which

reflected its intent not to impose        a   sentence on multiple counts.    Order,

10/7/16.4 This appeal followed. Appellant and the trial court complied with

Pa.R.A.P. 1925.



2 Myron Cowher, II appealed his judgment of sentence at 3297 EDA 2016.
We addressed his claims of error in a separate memorandum.

3    18 Pa.C.S. §§    4101(a)(2), 4120(a), 7512(a), 4104(a), 901, and 903,
respectively.

4  The jury convicted Appellant on multiple counts of criminal attempt and
criminal conspiracy related to the substantive offenses of forgery, identity
theft, and tampering with records or identification. However, "[a] person
may not be convicted of more than one of the inchoate crimes of criminal
attempt, criminal solicitation or criminal conspiracy for conduct designed to
commit or to culminate in the commission of the same crime." 18 Pa.C.S.
§ 906.    Thus, the trial court "decline[d] to enter a Sentence on [the
conspiracy convictions] in accordance with 18 Pa.C.S.A. §906." Order,
10/7/16, at 2-3 (emphasis omitted).


                                             -2
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      On appeal, Appellant states the following issues   for our consideration:

      1. Did  the lower court err when it denied [Appellant's] motion to
         suppress the recorded phone call of May 8, 2014 because the
         wiretap application did not recite reasonable grounds for the
         interception of that call since the averments therein only
         showed that [Appellant] may have had knowledge that a
         future crime would be committed?

      2. Did the lower court  err by violating [Appellant's] right to
         confrontation and procedural due process when it
         consolidated [Appellant's] trial with Cowher's and denied
         [Appellant's] request for a severance which allowed the
         Commonwealth to introduce Cowher's hearsay against
         [Appellant]?

      3. Did the lower court err when it refused togrant a mistrial
         after the prosecutor twice commented on [Appellant's] right
         to remain silent?

      4. Was   the evidence insufficient      to   support   [Appellant's]
         convictions for attempt?

      5. Was  the evidence insufficient to commit criminal use of a
         communication facility through the use of the mail; where
         there was no evidence that [Appellant] attempted to take a
         substantial step toward using the mail?

Appellant's Brief at 4-5.5

      Appellant first challenges the denial of his motion to suppress the

consensual wiretap of   a    May 8, 2014 telephone call between Appellant and

Robert   Depaolis ("Depaolis"),     the Wild Acres Community Director of

Operations.    Pennsylvania State Police Trooper Frank Orlando recorded the


5  Although Appellant presented eight issues for the trial court's review, he
only presents five issues on appeal to this Court. Thus, we consider the
other three issues waived. Commonwealth v. Yocolano, 169 A.3d 47, 53
n.7 (Pa. Super. 2017).


                                       -3
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telephone call pursuant to the Pennsylvania Wiretapping and Electronic

Surveillance Control Act ("Wiretap Act"), 18 Pa.C.S. §§ 5701-5782.

        Our standard of review in addressing a challenge to a trial
        court's denial of a suppression motion is limited to determining
        whether the factual findings are supported by the record and
        whether the legal conclusions drawn from those facts are
        correct.

        We may consider only the evidence of the prosecution and so
        much of the evidence for the defense as remains uncontradicted
        when read in the context of the record as a whole. Where the
        record supports the findings of the suppression court, we are
        bound by those facts and may reverse only if the court erred in
        reaching its legal conclusions based upon the facts.

        Moreover, it is within the lower court's province to pass on the
        credibility of witnesses and determine the weight to be given to
        their testimony.

Commonwealth v. McCoy, 154 A.3d 813, 815-816                (Pa. Super. 2017)

(quoting Commonwealth v. Roberts, 133 A.3d 759, 771 (Pa. Super.

2016), appeal denied, 636    Pa.   675,145 A.3d 725 (2016)) (internal citations
omitted). "Furthermore, our Supreme Court in       In the Interest of L.1.,   79

A.3d 1073, 1085 (Pa. 2013), clarified that the scope of review of orders

granting or denying motions to suppress is limited to the evidence presented

at the suppression hearing." McCoy, 154 A.3d at 816.

        Appellant complains that Trooper Orlando's memorandum in support of

the wiretap application did not establish reasonable grounds for the wiretap;

rather, it established that the trooper "could only, at best, show that




                                       -4
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[Appellant] may have had knowledge of Cowher's plan." Appellant's Brief at

10.6    In response, the Commonwealth argues that reasonable grounds for

the wiretap consist of the following facts:         Cowher told DePaolis that

Appellant was aware of the plan; Appellant was the Wild Acres Community

Chairman of the Board at the time; and Appellant had already confronted

DePaolis about the plan by asking if DePaolis had taken care of "something"

yet. Commonwealth's Brief at 18-19.

        We have discussed Pennsylvania's Wiretap Act as follows:

               Pennsylvania's Wiretapping and Surveillance Control
               Act, is a pervasive scheme of legislation which
               suspends an individual's constitutional rights to
               privacy only for the limited purpose of permitting law
               enforcement officials, upon a showing of probable
               cause, to gather evidence necessary to bring about a
               criminal prosecution and conviction. The statute sets
               forth clearly and unambiguously by whom and under
               what circumstances these otherwise illegal practices
               and their derivative fruits may be used.

           However, the Wiretap Act contains an exception allowing law
        enforcement to utilize wiretaps without obtaining prior judicial
        approval when one of the parties to the conversation consents to
        the interception:

           §5704. Exceptions to prohibition of interception and
          disclosure of communications



6 We consider this argument to be fairly subsumed in the third issue, first
subpart of Appellant's statement of errors complained of on appeal: "The
District Attorney's application for authorization to conduct the wiretap was
not supported by reasonable suspicion and/or probable cause[.]" Pa.R.A.P.
1925(b) Statement, 11/23/16, at 3a.  '11




                                           -5
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           It shall not
                      be unlawful and no prior court approval shall be
           required under this chapter for:
                                      *    *      *


              (2) Any investigative or law enforcement officer or
              any person acting at the direction or request of an
              investigative or law enforcement officer to intercept
              a wire, electronic or oral communication involving
              suspected criminal activities, including, but not
              limited to, the crimes enumerated in section 5708
              (relating to order authorizing interception of wire,
              electronic or oral communications), where:
                                      *    *      *


              (ii) one of the parties to the communication has
              given prior consent to such interception. However,
              no interception under this paragraph shall be made
              unless the Attorney General or a deputy attorney
              general designated in writing by the Attorney
              General, or the district attorney, or an assistant
              district attorney designated in writing by the district
              attorney, of the county wherein the interception is to
              be made, has reviewed the facts and is satisfied that
              the consent is voluntary and has given prior approval
              for the interception ...

           18 Pa.C.S.A. § 5704 (emphasis added).

               In determining whether the approval of a consensual
        wiretap was proper, this Court has determined that police
        officers must articulate "reasonable grounds" for the monitoring
        and the Attorney General or the district attorney must verify that
        that [sic] these reasonable grounds exist.

Commonwealth v. McMillan,         13 A.3d 521, 525 (Pa. Super. 2011) (internal

citations omitted).

        The trial court disposed of Appellant's suppression motion as follows:

        On March 2, 2015,   [Appellant] filed   a second Omnibus Pre -Trial
        Motion seeking to suppress    a    recorded telephone conversation

                                          - 6 -
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     involving [Appellant] on May 8, 2014. A hearing on [Appellant's]
     Motions was held on April 14, 2015..   .




           The relevant facts for determination of [Appellant's]
     Omnibus Pre -Trial Motion are as follows[:] In late March 2014,
     Robert Depaolis, the director of operations of the Wild Acres
     Community Association, received a telephone call from Myron M.
     Cowher, II who was the secretary of the Association's board of
     directors. Cowher advised DePaolis that he and [Appellant], the
     chairman of the board of directors, wanted to speak to him
     about a matter. Several weeks thereafter, Cowher came to the
     Association's office and requested Depaolis to provide him with a
     list of members in good standing who own lots in the
     community's "SOS" area. The "SOS" area consists of lots that
     are not buildable.

            DePaolis stated that Cowher intended to use the ballots of
     the SOS members to vote in the upcoming board of directors
     election scheduled in June 2014. Shortly after receiving this
     information, DePaolis contacted the Pennsylvania State Police
     ("PSP") and the Pike County District Attorney's office. DePaolis
     was concerned that Cowher's stated intentions may constitute a
     crime. After consultation with the PSP, DePaolis arranged a
     meeting with Cowher for May 8, 2014 at the Association's office.

            On the day before the scheduled meeting, to wit, May 7,
     2014, Trooper Frank Orlando of the PSP requested approval from
     the District Attorney to intercept a telephone call between
     DePaolis and [Appellant].        The District Attorney approved
     Trooper Orlando's request in accordance with 18 Pa. C.S.A.
     5704. During this telephone call which occurred on May 8, 2014
     at 9:29 a.m., [Appellant] told DePaolis that he and Cowher have
     already agreed and that DePaolis has nothing to worry about.
     DePaolis advised [Appellant] that Cowher was coming to the
     office to fill out ballots. [Appellant] told DePaolis that he should
     relax, that no one knowns anything and that "nobody's got any
     proof of what happened,              when     it  happened." See
     Commonwealth's Exhibit No. 2. Further, [Appellant] instructed
     DePaolis to shut off the video cameras at the office prior to
     Cowher arriving.

           On May 8, 2014 at 11:18 a.m., Cowher arrived at the
     Association's office to meet with DePaolis. This meeting was
     recorded electronically and orally in accord with Section 5704.

                                    - 7 -
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        During this meeting, DePaolis provided numerous election ballots
        to Cowher for the upcoming June 2014 board of directors'
        election. The ballots, which totaled seventy-one (71), were
        those intended for the SOS members. Cowher completed nine
        (9) of the ballots during his meeting with DePaolis. Cowher did
        so by placing an "X" over the name of the selected candidate or
        circling the candidate's name. At the conclusion of the meeting,
        Cowher took the nine (9) completed ballots and the remaining
        sixty-two (62) uncompleted ballots with him. As Cowher left the
        office, the PSP arrested him.
                                      *    *   *


              [Appellant] challenges the admissibility of the recorded
        conversation on the basis that the state police failed to articulate
        reasonable grounds for suspected criminal activity by [Appellant]
        as required by appellate case law interpreting §5704.

                                      *    *   *


              The [c]ourt finds that Trooper Orlando's affidavit seeking
        approval of the district attorney for the interception sets forth
        reasonable grounds for the request.          See Commonwealth's
        Exhibit No. 4. The affidavit sets forth details as to Cowher's
        alleged activities in attempting to fix the upcoming Wild Acres
        board election. It further alleges that [Appellant] knew what
        Cowher "wanted to do for the upcoming election." Id. The
        affidavit further alleged that [Appellant] asked DePaolis if he had
        taken care of "something" yet. Id. When read in its entirety,
        Trooper Orlando's affidavit sets forth reasonable grounds to
        suspect that [Appellant] knew of and was a participant in the
        attempt to fix the upcoming board election.          Accordingly,
        [Appellant's] request to suppress the recorded telephone
        conversation is DENIED.

Trial Court Order, 7/15/15, at unnumbered          1-3,5,6.   See also Trial Court

Opinion, 1/3/17, at unnumbered 9 ("This [c]ourt determined that the

affidavit, when read in its entirety, provided reasonable grounds for the

wiretap.").



                                          -8
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        Upon our review of the statutory language, relevant case law, and the

record in this case, we agree with the trial court that Trooper Orlando

provided reasonable grounds for believing that Appellant would discuss the

fraudulent election scheme with DePaolis during an intercepted telephone

call.   Prior to monitoring the May 8, 2014 telephone conversation between

DePaolis and Appellant, DePaolis provided Trooper Orlando with information

about DePaolis' conversations with Cowher and Appellant regarding the

fraudulent     election   scheme.        N.T.,      10/13/15,   at     26-31,      60-62;

Commonwealth Exhibits       1   and 4.     Moreover, an assistant district attorney

verified that reasonable grounds for the monitoring existed.              Id. at   27, 28,

36; Commonwealth Exhibits        3   and 6.      Because the trial court's findings are

supported by the record and its legal conclusions are sound, we discern no

abuse of its discretion in admitting the consensual telephone interception of

Depaolis' conversation with Appellant.

        Next, Appellant complains that the trial court erred in denying his

motion to sever the joint trial of Appellant and Cowher. In challenging the

denial of his motion for severance, Appellant presents          a    two-part argument:

the joint trial violated his right to confrontation, and the joint trial violated

his     right to   procedural   due      process.      In   Appellant's   words:     "The

Commonwealth introduced          a    statement made by Cowher about what

[Appellant] allegedly said to him, which implicated [Appellant] by showing

that he knew about Cowher's scheme. [Appellant] had no way to rebut this


                                           -9
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hearsay-Cowher did not testify and was therefore not subjected to

confrontation." Appellant's Brief at 13-14 (footnote omitted).

        In support of his confrontation argument, Appellant relies on Bruton

v.    United States, 391          U.S.   123 (1968).        Therein, the United States

Supreme Court held that admission at                a    joint trial of    a   co-defendant's

confession, which implicates the defendant, violates the defendant's Sixth

Amendment right to confront witnesses against him.                         Id. at    125.    In

response, the Commonwealth counters that Cowher's statement does not

present       a   confrontation issue. Commonwealth's Brief at 20.              In support of

its position, the Commonwealth relies on                Crawford    v.    Washington, 541
U.S. 36 (2004).            Therein, the United States Supreme Court held that the

Sixth Amendment bars the admission at trial of an out -of -court statement,

which    is   testimonial in nature, unless the declarant          is    unavailable and the

defendant had          a   prior opportunity to cross examine the declarant.                The

Commonwealth argues that Cowher's statement was non -testimonial in

nature and, therefore, not subject to the Bruton rule.                      Commonwealth's

Brief at 21.

        In support of his due process argument, Appellant argues that he "was

not afforded an opportunity to defend himself against Cowher's hearsay

statement to Depaolis that relayed what [Appellant] allegedly told Cowher."

Appellant's Brief at 16 (citing Commonwealth v. Ceja, 427 A.2d 631, 642

(Pa.    1981) ("Due process principles no doubt require that                     a   party be


                                           - 10 -
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afforded        a   reasonable opportunity to challenge the reliability of adverse

hearsay evidence.")).7 In response, the Commonwealth asserts that the trial

court properly admitted Cowher's statements implicating Appellant under the

hearsay exception of Pa.R.E. 803(25)(E).8

        The following principles guide our review of this issue:

        Where ... the crimes charged against each defendant arise out of
        the same facts and virtually all of the same evidence is
        applicable to both defendants, this Court, as well as the United
        States Supreme Court, have indicated a preference to encourage


    We distinguish Ceja, wherein the Pennsylvania Supreme Court "granted
allocator to consider the appropriateness of the [Walker v. Unemployment
Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976)]
guidelines for evaluating hearsay evidence in administrative hearings."
Ceja, 427 A.2d 631, 633 (Pa. 1981). This appeal does not stem from an
administrative hearing.

8   That rule provides:

        The following are not excluded by the rule against hearsay,
        regardless of whether the declarant is available as a witness:
                                          *   *   *


        (25) An Opposing Party's Statement. The statement                  is
        offered against an opposing party and:
                                          *   *   *


               (E) was made by the party's coconspirator during and in
        furtherance of the conspiracy.

        The statement may be considered but does not by itself establish
        .   .the existence of the conspiracy or participation in it under
                .


        (E).

Pa.R.E. 803(25)(E).
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        joint trials to conserve resources, promote judicial economy, and
        enhance fairness to the defendants:

            It would impair both the efficiency   and the fairness of the
            criminal justice system to require ... that prosecutors bring
            separate proceedings, presenting the same evidence again
            and again, requiring victims and witnesses to repeat the
            inconvenience (and sometimes trauma) of testifying, and
            randomly favoring the last tried defendants who have the
            advantage of knowing the prosecution's case beforehand.
            Joint trials generally serve the interests of justice by
            avoiding inconsistent verdicts and enabling more accurate
            assessment of relative culpability.

               Given this preference, the burden is on defendants to show
        a  real potential for prejudice rather than mere speculation.
        Separate trials of co-defendants should be granted only where
        the defenses of each are antagonistic to the point where such
        individual differences are irreconcilable and a joint trial would
        result in prejudice. Although antagonistic defenses are a factor
        for a trial court to consider in determining whether to grant a
        motion to sever, the fact that defendants have conflicting
        versions of what took place, or the extent to which they
        participated in it, is a reason for rather than against a joint trial
        because the truth may be more easily determined if all are tried
        together.

Commonwealth v. Rainey, 928 A.2d 215, 231-232                (Pa. 2007) (internal

quotation marks and citations omitted). We have further explained:

        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.
        Judicial discretion requires action in conformity with law, upon
        facts and circumstances judicially before the court, after hearing
        and due consideration. Consequently, an abuse of discretion
        consists not merely of errors in judgment by the trial court, but
        instead contemplates action unsupported by the evidence, at
        odds with governing law, or arising from improper motives
        personal to the judge.




                                        - 12 -
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Commonwealth v. Brookins,              10 A.3d      1251, 1255 (Pa. Super. 2010)

(internal quotations marks and citations omitted).

        Moreover,     our rules of criminal        procedure provide: "Defendants

charged in separate indictments or informations may be tried together if

they are alleged to have participated in the same act or transaction or in the

same series of acts or transactions constituting an offense or offenses."

Pa.R.Crim.P. 582(A)(2).        Conversely, the rules permit severance of charges

of defendants already joined when it appears that             a   defendant may be

prejudiced by     a   joint trial. Pa.R.Crim.P. 583. Reading these rules together,
our Supreme Court established the following test for severance matters:

        Where the defendant moves to sever offenses not based on the
        same act or transaction ... the court must therefore 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.

Commonwealth v. Collins, 703 A.2d 418, 422               (Pa. 1997).   The prejudice

must be greater than the general prejudice any defendant suffers when the

Commonwealth's evidence links him to         a    crime. Commonwealth v. Lauro,

819 A.2d 100, 107 (Pa. Super. 2003).

        Additionally, we note that Appellant and Cowher were charged with

conspiracy.      In Pennsylvania, "joint trials are preferred where conspiracy is

charged." Commonwealth v. Housman, 986 A.2d 822, 834 (Pa. 2009).



                                         - 13 -
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In fact, the statute defining conspiracy specifically addresses the issue of

joinder:

        (d) Joinder and venue in conspiracy prosecutions.-
           (1) Subject to the provisions of paragraph (2) of this
           subsection, two or more persons charged with criminal
           conspiracy may be prosecuted jointly if:

                (i) they are             charged    with conspiring         with one
                another;  .    .   .




18 Pa.C.S. §     903(d)(1)(i).

        Here,    the   trial           court concluded            that joinder was appropriate,

addressing Appellant's confrontation and due process arguments together.

Specifically, the trial court acknowledged the constraints of Bruton, but it

"found that the audio recordings and statements made by Cowher fell under

[Pa.R.E. 803(25)(E)] and therefore Burton [sic] was not applicable to the

use of these statements at the                joint trial." Trial Court Opinion, 1/3/17, at
unnumbered 4. The trial court explained its position as follows:

              In requesting severance, [Appellant] asserts that he would
        be denied his federal constitutional right of confrontation (Sixth
        Amendment) under the ruling of Bruton v. United States, 391
        U.S. 123(1968) and its progeny.               .   .   .




                The  Pennsylvania Supreme Court has determined,
        however, that Bruton is not applicable where the admission of
        the disputed co-defendant testimony is authorized by a
        recognized exception to the hearsay rule. Commonwealth v.
        Coccioletti, 493 Pa. 103, 425 A. 2d 387 (1981); Commonwealth
        v. Gribble, 580 Pa. 647, 863 A. 2d 455 (2004). In addition, our
        Supreme Court noted that "the out -of -court declarations of one
        co-conspirator can be admitted against another co-conspirator
        provided that the declarations were made during the conspiracy
        and in furtherance of the common design." Coccioletti, 493 Pa.

                                                   - 14 -
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        at 113; 425 A. 2d at 392 referring to Commonwealth v. Evans,
        489 Pa. 85,413 A. 2d 1025(1980).

               The Gribble Court subsequently recognized that Pa. R. E.
        803(25)(E) serves as a recognized exception to the hearsay rule.
        Rule 803(25)(E) allows a hearsay statement to be admitted
        where it is made by a defendant's co-conspirator "during and in
        furtherance of the conspiracy." The Gribble Court further noted
        that "the U.S. Supreme Court and this Court had recognized that
        statements admitted under the co-conspirator exception to the
        hearsay rule do not violate the Sixth Amendment." Gribble, 580
        Pa. at 664,863 A.2d at 465; see also United States v. Bourjaily,
        483 U.S. 171, 183-184, 107 S. Ct. 2775, 2783, 97 L. Ed. 144
        (1987). Accordingly, the Sixth Amendment protections originally
        explained in Bruton were not applicable in Gribble as a result of
        the available co-conspirator hearsay exception provided in Pa. R.
        E. 803(25).


              We     similarly conclude herein that the out -of -court
        statements of the co-defendant Cowher are admissible in a joint
        trial of the two (2) defendants pursuant to Pa. R. E. 803(25)(E).
        The out -of -court statements in question were made prior to
        completion of the alleged conspiratorial act, i.e., election fraud.
        The statements were also made in furtherance of the alleged
        common design of the conspiracy, i.e., to commit election fraud
        in the Wild Acres community general election in May 2014. In
        accordance with our Supreme Court's interpretation of Bruton
        and its progeny as set forth above and the applicability of Pa. R.
        E. 803(25)(E) herein, as well as in exercising this [c]ourt's
        discretion to effectuate judicial economy, a joint trial of
        [Appellant] and his co-defendant is proper.            Accordingly,
        [Appellant's] Motion for Severance is hereby DENIED.

Trial Court Opinion and Order, 3/7/16, at unnumbered 4-6.

        Upon review, we agree with the trial court.      Appellant has failed to

establish that severance was necessary because of constitutional infractions.

First, the evidence regarding charges against Appellant and Cowher related

to their roles in the fraudulent election scheme; as such, evidence of the

offenses would be admissible in separate trials for each other. Collins, 703

                                      - 15 -
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A.2d at 422.        Indeed, the Commonwealth proved the existence of                    a


conspiracy.      See Commonwealth v. Pinkins, 525 A.2d 1189, 1191 (Pa.

1987) ("[A]conspiracy, for purposes of the co-conspirator exception, may be

inferentially established by showing the relation, conduct or circumstances of

the parties."). Thus, because Cowher's statements about Appellant occurred

during and in furtherance of the conspiracy, they were admissible under

Pa.R.E. 803(25)(E).     Second, evidence presented at trial explained the role

each co-defendant played in the scheme; thus, separation of the evidence

by the   jury was possible,   and the likelihood of        jury confusion was minimal.
Collins, 703 A.2d at 422.

        As to the third element for severance, Appellant has failed to establish

that he suffered such prejudice as to require          a   separate trial.   Collins, 703

A.2d at 422. The evidence presented at trial established that Appellant and

Cowher conspired with one another to commit election fraud.                   18 Pa.C.S.

§   903(d)(1)(i).   Furthermore, the fact that Appellant and Cowher had

conflicting versions of the extent to which they each participated in the

fraudulent election scheme       is   not    a   sufficient basis on which to sever.

Rainey, 928 A.2d at 231-232. Thus, we conclude that the trial court did

not abuse its discretion in denying Appellant's motion to sever.

        In his third issue, Appellant challenges the trial court's refusal to grant

a    mistrial when, in his closing argument, the prosecutor twice referred to

Appellant's decision not to testify.          Appellant's Brief at 16-17.       Appellant


                                            - 16 -
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contends that the prosecutor's comments violated his federal and state

constitutional right against self-incrimination.                   Appellant's at 17. According

to Appellant, "the prosecutor's comment here [was]                         a   bell that was not un-

rung by the court's cautionary instruction. To make matters worse,                               .   .   .   [the

prosecutor's]     .   .   .   disingenuous feigning of obedience to the [trial court's]

instruction only once again placed in the mind of the jurors that [Appellant]

chose not to testify."             Id. at   19.

        Relying on the analogous case of                 Commonwealth v. Hess, 548 A.2d
582 (Pa. Super. 1988), the Commonwealth argues that the prosecutor's first

comment during his closing argument was fair response to defense counsel's

opening statement that Appellant would testify and what he would say,

when, in fact, Appellant did not testify.                       Commonwealth's Brief at 26-27

(citing N.T., 5/18/16, at 87-88; N.T., 5/23/16, at 77).                            Additionally, the

Commonwealth points out that the prosecutor's comment was "precisely in

accord with the [trial c]ourt's instructions, that he was 'allowed to comment

as Prosecutor on what was told to the                   jury    in the opening    statement did not

happen in trial.'             See N.T. 5/23/16 at        13-14." Id. at 28.           Regarding the

prosecutor's second reference to Appellant not testifying, the Commonwealth

characterizes it as            a   "reaffirmation to the jury of the validity of the [trial

c]ourt's cautionary instructions." Id. at 29.

        Our standard of review for the denial of                      a   motion for       a   mistrial        is

limited   to     assessing           whether      the   trial    court abused        its       discretion.


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Commonwealth v. Scott, 146 A.3d 775, 778               (Pa. Super. 2016), appeal

denied, 166 A.3d 1232 (Pa. 2017).

        More specifically, this Court has provided the following standards
        for reviewing a claim of prosecutorial misconduct in a closing
        statement:

            it is well settled that any challenged prosecutorial
           comment must not be viewed in isolation, but rather must
           be considered in the context in which it was offered. Our
           review of a prosecutor's comment and an allegation of
           prosecutorial misconduct requires us to evaluate whether a
           defendant received a fair trial, not a perfect trial. Thus, it
           is well settled that statements made by the prosecutor to
           the jury during closing argument will not form the basis for
           granting a new trial unless the unavoidable effect of such
           comments would be to prejudice the jury, forming in their
           minds fixed bias and hostility toward the defendant so they
           could not weigh the evidence objectively and render a true
           verdict. The appellate courts have recognized that not
           every unwise remark by an attorney amounts to
           misconduct or warrants the grant of a new trial.
           Additionally, like the defense, the prosecution is accorded
           reasonable latitude, may employ oratorical flair in arguing
           its version of the case to the jury, and may advance
           arguments supported by the evidence or use inferences
           that can reasonably be derived therefrom. Moreover, the
           prosecutor is permitted to fairly respond to points made in
           the defense's closing, and therefore, a proper examination
           of a prosecutor's comments in closing requires review of
           the arguments advanced by the defense in summation.

Scott, 146 A.3d at 778-779 (internal quotation marks and citations
omitted).

        Here, the trial court explained its refusal to grant   a   mistrial as follows:

                 During    closing argument [the] Assistant District
                                his
        Attorney    .  reminded the Jury that it is their duty to make
                        .   .


        decisions based on the evidence presented at trial and that the
        statements made by attorneys are not evidence. N.T. 5/23/16
        at [76-77]. [The prosecutor] referred to Appellant's Attorney['s]

                                       - 18 -
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        .   .opening statement in which [defense counsel] stated that
                .


        his client would testify.  Id. at 77. The relevant part of [the
        prosecutor's] statement is as follows:

                    I want to emphasize to you that when it comes to those
                wires that is evidence. It is absolutely evidence; those two
                recordings. I will tell you what is not evidence though.
                The Judge will give you instruction that what lawyers say is
                not evidence. This is important. You sit as far away from
                that witness stand as I do.         Do you recall [defense
                counsel] talking about how my client is going to testify?
                How he is going to testify? How he said that in his opening
                statement? Do you remember that? Gave some long
                story about Moldova or something along those lines; did
                you seem him testify to that? I didn't. Id. at 76-[7]7.

               Following this statement [defense counsel] objected and at
        sidebar moved for a mistrial. Id. at 77. This [c]ourt denied the
        motion, but informed [the prosecutor] that he would "have to
        move on." Id. The [c]ourt also addressed the jury with a
        cautionary instruction regarding [Appellant's] right to remain
        silent. The jury was instructed that it was "not to draw any
        adverse inference whatsoever" from [Appellant's] choice not to
        testify. Id. at 79. After the cautionary instruction was given,
        [the prosecutor] continued as follows:

                Yes Your Honor.     That is absolutely the case; you do not
                consider the fact that [Appellant] didn't testify against him.
                This is absolutely the case. No doubt about it. What the
                Judge said is right. Id.

           At this point, [defense counsel] once again objected and
        moved for a mistrial at side bar. Id. at 79-80. This [c]ourt
        again denied the motion and told [the prosecutor] to "move on."
        Id. at 80.

              This [c]ourt respectfully submits that it properly addressed
        both references made by the prosecutor to [Appellant's] failure
        to testify. The first reference appeared to be an attempt by [the
        prosecutor] to rebut defense counsel's remarks in his opening
        statement that [Appellant] would testify in the case. Obviously,
        [Appellant] did not testify. Although the prosecutor's attempt to
        rebut defense counsel's opening statement remarks in his closing
        argument was fraught with the potential of prejudicial

                                            - 19 -
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      implications, the [c]ourt did not discern the attempt as a direct
      attack on [Appellant's] constitutional right to not testify.
      Accordingly, instead of granting a mistrial, the [c]ourt gave an
      immediate and appropriate cautionary instruction advising the
      jury that it was [Appellant's] absolute right to remain silent and
      the jury should not draw any adverse inference whatsoever from
      [Appellant's] decision not to testify.

             After the initial cautionary instruction, the prosecutor
      attempted to confirm to the jury the appropriateness of the
      [c]ourt's cautionary instruction as to [Appellant's] right to
      remain silent and his agreement therewith.          While these
      additional statements may have been unnecessary, given the
      [c]ourt's cautionary instruction, they did not warrant the
      declaration of a mistrial.      If anything, these comments
      reaffirmed to the jury the validity of the [c]ourt's cautionary
      instruction.    As indicated, the [c]ourt then appropriately
      instructed [the prosecutor] to "move on" with his closing
      argument.

Trial Court Opinion, 1/3/17, at unnumbered 14-16.

      Our review of the record reveals that the prosecutor did not violate

Appellant's right to remain silent. The prosecutor's first comment was         a   fair

response to defense counsel's opening statement as to Appellant testifying

and what he would say.       Thus, it was proper for the trial court to give the

prosecutor latitude in advancing an argument that was supported by the

record.   Consequently, we conclude the prosecutor's first comment did not

amount to misconduct. Moreover, the trial court promptly gave      a   cautionary

instruction to the jury. N.T., 5/23/16, at 79.

      As for the prosecutor's second reference, we agree with the trial

court's assessment that,       although   ill-advised,   the comment     did       not

necessitate    a   mistrial; it merely reinforced the trial court's cautionary


                                      - 20 -
J   -S80023-17


instruction.      Furthermore, after closing arguments, the trial court gave the

jury   a    thorough instruction, emphasizing that the Commonwealth had the

burden to prove Appellant's guilt beyond                    a   reasonable doubt and that

Appellant was not required to produce any evidence. Id. at 129, 134-135,

137-139. Juries are presumed to follow the trial court's instructions. Scott,

146 A.3d at 780 (citation omitted).                      We agree with the trial court's

conclusion that the prosecutor's comments did not warrant                a   mistrial.

        Appellant's fourth issue   is a   challenge to the sufficiency of the evidence

supporting his convictions of criminal attempt to commit forgery, identity

theft, and tampering with records or identification. Appellant's Brief at 20-

23. According to Appellant, the Commonwealth's evidence:

           directly rebuts any notion that [Appellant] was involved                      in
           Cowher's alleged scheme. He did not know specifics; issued no
           instructions on how to complete the crimes; and in fact did not
           even know what was going on.      .   .   .




               Even taking the most favorable inference in favor of the
        Commonwealth, the one comment [Appellant] made about
        "turning the cameras off" could only possibly lead to an inference
        of his limited knowledge that Cowher and De[P]aolis were
           planning something.

Id. at 24-25.
           In reviewing the sufficiency of the evidence, we consider:

           [w]hether[,] viewing all the evidence admitted at trial     light in the
        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

                                           - 21 -
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             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 trier 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. Fortson, 165 A.3d 10, 14-15                                       (Pa.   Super. 2017)

(quoting Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011))

(original internal brackets omitted). "A person commits an attempt when,

with the intent to commit                  a   specific crime, he does any act which constitutes

a    substantial step towards the commission of that crime."                                   18 Pa.C.S.

§   901(a).

             Furthermore, "[a] person                  is   guilty of an offense if it    is   committed

by   .   .   .   the       conduct        of       another      person   for   which     he    is   legally

accountable.           .   .   .   A person is legally accountable         for the conduct of another

person when            .   .   .   he is an accomplice of such other person in the commission

of the offense." 18 Pa.C.S.                    §   306(a), (b)(3). "An individual      is an   accomplice

if, with intent to promote or facilitate the commission of the offense, he

solicits, aids, agrees, or attempts to aid another person in planning or

committing the offense." Commonwealth v. Treiber, 121 A.3d 435, 459

(Pa. 2015) (citing 18 Pa.C.S. §                      306(c)(1)).



                                                            - 22 -
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        Relying on accomplice liability, the trial court disposed of Appellant's

sufficiency challenge to the attempt convictions with the following analysis:

               Here, [Appellant] was convicted on numerous Counts of
        Criminal Attempt to Commit Forgery (F-3) under 18 Pa.C.S.
        § 4101(2), numerous Counts of Criminal Attempt to Commit
        Identify Theft (F-3) under 18 Pa. C. S. § 4120(a), and numerous
        Counts of Criminal Attempt to Commit Tampering with Records
        or Identification (M-1) under 18 Pa.C.S. § 4104(a).[9]
        [Appellant's] convictions rested on his liability as an accomplice
        to his co -Defendant, Cowher.

               At trial, the Commonwealth presented the PSP recording in
        which [Appellant] was informed by DePaolis over the phone that
        Cowher was coming into the office "to take care [of] the ballots"
        and that DePaolis was "a little nervous about it."           See
        Commonwealth Exhibit 1.      [Appellant] responded by saying,
        "Don't be nervous about it." I didn't know nothing about it. Me
        and Myron already agreed." Id.       [Appellant] went on to tell
        DePaolis to "relax" and assured him they were "still gonna win
        no matter what." Id. In addition, [Appellant] suggested that
        DePaolis turn off the cameras on the office while Cowher was
        filing out the ballots. Id.

              The PSP recording clearly shows that [Appellant] was fully
        aware and supportive of Cowher's intention to fill out all of the
        S.O.S. ballots and commit fraud.          Specifically, [Appellant's]
        suggestion that DePaolis should turn off the cameras shows his
        intent to promote and aid or agree in Cowher's attempt to
        fraudulently file [sic] out the S.O.S. ballots. Given this evidence,
        a reasonable fact -finder could conclude that the verdicts on all
        the attempt charges were correct and that there was sufficient
        evidence to support the jury's conclusions of fact.

Trial Court Opinion, 1/3/17, at unnumbered 17-18.              Notably, Appellant

makes no mention of, let alone argument against, his liability as Cowher's


9 We note that Appellant incorrectly identifies this offense as a violation of
18 Pa.C.S. § 4911 (Tampering with public records or information).
Appellant's Brief at 21.


                                       - 23 -
J -S80023-17



accomplice.     Appellant's Brief at 20-26.            Additionally, viewing all of the

evidence in the light most favorable to the Commonwealth, we discern no

basis on which to disturb the trial court's findings, which are supported by

the record, or its legal conclusion, which        is   supported by statutory and case

law.

       Finally, Appellant argues that the evidence was insufficient to support

his conviction of criminal use of communication facility.                            According to

Appellant:

       Here, there was no evidence that Cowher actually              used the mail.
       Moreover, there is no evidence to support the                inference that
       Cowher took a substantial step toward using the               mail.       As
                                                                                 .    .   .


       Cowher did not attempt to use the mail, then                 it follows that
       [Appellant] could not be convicted of being an                accomplice to
       same.

Appellant's Brief at 27.

       "A person commits    a   felony of the third degree if that person uses                     a


communication facility to commit, cause or facilitate the commission or the

attempt thereof of any crime which constitutes              a   felony   .   .   ."       18 Pa.C.S.

§   7512(a).   The term 'communication facility' means               a       public or private

instrumentality used or useful     in   the transmission of signs, signals, writing,

images, sounds, data or intelligence of any nature transmitted in whole or in

part, including, but not limited to, telephone, wire, radio, electromagnetic,

photoelectronic or photo -optical systems or the mail." Id. at 7512(c).

       The trial court disposed of this challenge with the following analysis:



                                         - 24 -
J   -S80023-17


               [Appellant's] conviction under [section 7512] of the code
        rests again on his accomplice liability for Cowher's actions.  .   .   .


        [Appellant] was aware and supportive of Cowher's plan to fill out
        the S.O.S. ballots. In addition, as a then member of the Wild
        Acres Board of Directors, [Appellant] would have been fully
        aware of the election process as DePaolis described it at trial.
        DePaolis testified that each year ballots were printed up in the
        community's administrative office and mailed out to lot owners.
        N.T., 05/19/16 at 92-[9]4. He further testified that instead of
        mailing the S.O.S. ballots he brought them to Cowher during a
        meeting with Cowher in his office. Id. at 94. DePaolis brought
        the ballots to Cowher upon Cowher's instruction to do so. Id.
        Finally, DePaolis testified that following the meeting Cowher left
        the office with nine (9) filled out ballots and approximately
        twenty-one (21) other ballots that Cowher intended to fill out
        and mail. Id. at 111-[11]2.

               Based    on    Cowher's   intentions   and     [Appellant's]
        understanding of both Cowher's intentions and understanding of
        the election process in Wild Acres, a reasonable fact -finder could
        infer that [Appellant] knew Cowher was going to use the U.S.
        Postal Service in furtherance of his attempt to commit Forgery,
        Identity Theft, and Tampering with Records or Identification.
        This inference allowed the jury to reasonably determine that
        there was sufficient evidence to convict Appellant [of criminal
        use of communication facility].

Trial Court Opinion, 1/3/17, at unnumbered 18-19.

        Viewing   all   of the evidence in the light most favorable to the

Commonwealth, we disagree with the trial court's conclusion that there was

sufficient evidence to convict Appellant of criminal use of communication

facility. The basis for this charge was Appellant's use of:

        the United States Postal Service   .  ., to wit, in that he caused
                                               .


        numerous election ballots not to be mailed to property owners
        within the Private Community of Wild Acres with the intention of
        completing and mailing back same in order to cast votes in favor
        of specific individuals in an upcoming Election of the Wild Acres
        Lakes property Owners Association.


                                      - 25 -
J   -S80023-17


Information, 10/27/14, at Count 19. We note that the statute requires "use"

of   a   communication facility.   18 Pa.C.S. § 7512(a).        The record reveals,

however, that Cowher did not mail the ballots because DePaolis secured the

ballots in his office, turned them over to Cowher on May 8, 2014, and then

Cowher was arrested upon leaving the Wild Acres administration building.

N.T., 5/19/16, at 94, 111-112; N.T., 5/20/16, at 53.             Therefore, despite

their intentions, neither Cowher nor Appellant as an accomplice used the

United States Postal Service "to commit, cause or facilitate the commission

or the attempt thereof of any crime which constitutes       a   felony." 18 Pa.C.S.

§    7512(a). Finding the evidence sufficient would be wholly inconsistent with

the language and purpose of section 7512(a). Accordingly, we reverse the

conviction for criminal use of communication facility.

         Because we reverse the conviction for criminal use of communication

facility, we have upset the trial court's sentencing scheme.           Consequently,

we must remand the case for resentencing.            Commonwealth v. Phillips,
946 A.2d 103,115 (Pa. Super. 2008).

         Conviction   for criminal use of communication           facility reversed.

Judgment       of   sentence   vacated.       Case   remanded    for   resentencing.

Jurisdiction relinquished.




                                          - 26 -
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Judgment Entered.




J   seph D. Seletyn,
Prothonotary



Date: 2/7/18




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