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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
HEATH I. HIBSHMAN,                        :        No. 1203 MDA 2015
                                          :
                         Appellant        :


           Appeal from the Judgment of Sentence, January 28, 2015,
               in the Court of Common Pleas of Lebanon County
               Criminal Division at No. CP-38-CR-0000049-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MARCH 15, 2016

        Heath I. Hibshman (“Appellant”) appeals the judgment of sentence of

the Court of Common Pleas of Lebanon County that sentenced him to a term

of 4 to 23 months in the Lebanon County Correctional Facility, fined him

$100, and ordered him to make restitution to Jeffrey Kalina (“Kalina”) in the

amount of $220 for theft by unlawful taking or disposition.1

        Appellant worked at a rooming house known as the 9 th Street Personal

Care Facility (“Facility”).   Timothy Schaeffer (“Schaeffer”) and Kalina gave

money to Appellant to store for them for safekeeping.          Schaeffer gave

Appellant $85, and Kalina gave him $320.       Although Appellant returned a




* Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3921(a).
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portion of the money, he did not return all of it. When Kalina asked for the

money, it was not returned to him. David Sanders (“Sanders”), the owner

of the Facility, investigated.    Appellant admitted to him that he had taken

the money and asked for time to pay it back. When Appellant did not return

the money, Sanders contacted the Lebanon City Police Department.

Patrolman First Class Officer Patrick John McKinney, Jr. (“Officer McKinney”)

investigated. Appellant was charged with theft by unlawful taking.

         On December 4, 2014, the trial court conducted a trial in the matter.

Kalina testified that he gave Appellant $320, which was the proceeds of a

social security rent rebate check, for safekeeping to put in a locked cabinet

at the Facility.      (Notes of testimony, 12/4/14 at 5-6.)   On four separate

occasions, Kalina requested and received $20 from the $320. When he did

so, he observed Appellant take the money out of the locked cabinet. In the

beginning of September 2013, Kalina asked Appellant for $20 but was told

he would have to go to the York Street Personal Care Facility (“York”) to get

it.   (Id. at 6-7.)    Kalina called York and inquired whether his money was

there. Adrian Lancer, an employee of York, told him that it was not. (Id. at

7-8.)2

         Sanders testified that he operated both the Facility and York. (Id. at

16.) Sanders explained that Appellant essentially managed the Facility, that


2
  The parties stipulated that Schaeffer gave money to Hibshman to put in the
locked cabinet at the Facility. They did not stipulate as to the amount. (Id.
at 15-16.)


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Schaeffer had “severe mental retardation,” and that Kalina had mental and

physical issues. (Id. at 17-18.) Kalina contacted him in September 2013

and asked if Sanders had any of his money in a safe at York. When Sanders

investigated at the Facility, he found two empty envelopes inside the locked

medicine cabinet.      One envelope had Kalina’s name on it and one had

Schaeffer’s.     Amounts were deducted on the outside of the envelopes.

According to Sanders, the amount listed on one envelope was $240 and the

amount listed on the other was $85.          (Id. at 18-19.)   When Sanders

confronted Appellant about the missing funds, Appellant replied, “I’ll pay it

back.” (Id. at 22.) According to Sanders, Appellant acknowledged taking

the money and volunteered to pay it back in a week. (Id. at 23.) When

questioned as to why he allowed Appellant time to pay the money back,

Sanders answered, “Well he just got out of jail.” (Id.)

      At that point, Appellant’s counsel moved for a mistrial because of the

testimony concerning Appellant’s prior jail time.         The Commonwealth’s

attorney informed the trial court that she had specifically instructed Sanders

not to mention Appellant’s incarceration when he testified. (Id. at 24.) The

trial court denied the motion for a mistrial. (Id. at 26.)

      When the jury returned to the courtroom, the trial court issued this

instruction:

               Ladies and gentlemen, immediately before the recess
               the witness was asked a question about why he did
               something. And not in response to that question, he
               referenced something about the fact that [Appellant]


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          may have been incarcerated previously. That was
          improper. And as I understand it, the prosecutor
          advised the witness not to make any such
          statements and the witness did so anyway. I think
          he forgot about the prosecutor’s admonition.

                It is not relevant whether a Defendant has any
          type of prior criminal record. The reality is he is
          charged today with Theft. The reality is that you
          must make a decision today about whether he
          committed that Theft.       Whether or not he did
          something in the past is not any evidence of whether
          he committed this Theft, it’s not. And I don’t think
          any of us would like to have our present conduct
          judged based upon something that may have
          happened years ago.         Especially since in this
          particular case we don’t know what it was. It could
          have been an unpaid parking ticket for all we know.

                 It was improper for you to hear that
          [Appellant] was in prison previously. You cannot
          consider that. It is not any evidence at all in this
          case.    It is not anything you can consider with
          respect to [Appellant’s] believability.      It is not
          something that is anyway part of this case. And I
          am instructing you to ignore what was blurted out. I
          am instructing you to forget about it. And I am
          specifically instructing you not to consider it and not
          to allow your fellow jurors to even mention it in your
          deliberations.     If any one of your fellow jurors
          mentions it during deliberations, report it to me. I’m
          instructing each of you not to mention it or not to
          think about it or not even to consider it.

                Here’s the reality, I’ll say it again. [Appellant]
          is charged with Theft as a result of something that
          occurred in September of 2013. You took an oath to
          decide whether [Appellant] is guilty or not guilty of
          that Theft. And the decision that you have to make
          must be based upon the facts and circumstances
          that occurred in September of 2013 at or near the
          time the alleged Theft occurred. That’s what your
          oath requires you to do. I’m going to be holding you
          to that oath.


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Id. at 28-29.

      Sanders testified that Appellant did not pay the money back as

promised. Sanders did not authorize Appellant to take the money. Further,

neither Kalina nor Schaeffer did either.    (Id. at 32.)   Sanders paid Kalina

and Schaeffer the amounts taken by Appellant. (Id. at 53.)

      Officer McKinney testified that he responded to a report of a theft and

met with Sanders at the Facility on September 30, 2013. Officer McKinney

contacted Appellant who admitted to taking the money and said he would

pay it back.    Officer McKinney waited to charge Appellant with theft by

unlawful taking until November 2013, in order to give Appellant a chance to

pay the money back. (Id. at 65-68.)

      The jury returned a guilty verdict.    When the trial court questioned

whether the jurors considered the fact that Appellant had previously been in

jail during their deliberations, no juror raised his or her hand to say they

had. (Id. at 85.) The trial court sentenced Appellant to pay the costs of

prosecution, pay a fine of $100, pay restitution to Kalina in the amount of

$220, and to serve 4 to 23 months3 in the Lebanon County Correctional

Facility.

      In his post-sentence motions, Appellant moved for acquittal on the

basis that the Commonwealth failed to present sufficient evidence to prove


3
 The trial court granted Hibshman’s application for parole on May 14, 2015.
Hibshman was to be paroled on May 28, 2015.


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beyond a reasonable doubt that he was guilty. Appellant also moved for a

new trial on the bases that the trial court erred when it denied his motion for

a   mistrial,    because   of   Sanders’    testimony   that   he   was   previously

incarcerated, and that the jury’s verdict of guilty was against the weight of

the evidence, because the jury placed too great a weight on the testimony of

the Commonwealth’s witnesses.

      On June 1, 2015, the trial court denied the post-trial motions.           The

trial court explained with respect to the weight and sufficiency of the

evidence:

                In this case, the evidence linking [Appellant] to the
                theft of money from Timothy Schaeffer and
                Jeffrey Kalina was extensive. [Appellant] had access
                to the funds that ended up missing.               The
                Commonwealth       also    established   that   when
                [Appellant’s] boss confronted [Appellant] with the
                fact that money was missing[,] [Appellant] admitted
                that he had taken the money and stated, “I will pay
                it back.”    (N.T. 23, 30, 31).      Moreover, when
                Officer McKinney investigated the theft and spoke
                with [Appellant], [Appellant] admitted that he had
                taken the money. (N.T. 67). Given the above, we
                have a hard time perceiving how [Appellant] can
                even claim that the jury’s verdict was not founded on
                sufficient evidence or that it was against the weight
                of the evidence.

Trial court opinion, 6/16/15 at 10.

      With respect to the mistrial issue, the trial court stated:

                       In this case, witness Sanders’ reference to
                [Appellant’s] incarceration was not intentionally
                elicited by the Commonwealth. It was fleeting. The
                Commonwealth did not attempt to exploit the
                information.    No details about [Appellant’s] prior


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             crime were communicated to the jury.           Almost
             immediately thereafter, the Court instructed the jury
             that they could not consider that incarceration in any
             way. Given the totality of the situation, this Court
             did not err by denying [Appellant’s] Motion for
             Mistrial.

Id. at 14.

      Appellant raises the following issues for this Court’s review:

             I.     Did the Commonwealth fail to prove beyond a
                    reasonable doubt that [Appellant] was the
                    person who took the money, or alternatively
                    that [Appellant] did not have authorization to
                    use the money?

             II.    Did the jury place too great a weight on the
                    testimony presented by the Commonwealth’s
                    witnesses that [Appellant] took the money
                    and/or did not have authorization to use the
                    money?

             III.   Did the Trial Court err by denying [Appellant’s]
                    motion for a mistrial because the testimony of
                    David Sanders that he allowed [Appellant] time
                    to pay the money back because [Appellant]
                    just got out of jail was highly prejudicial and
                    the limiting instruction provided by the Trial
                    Court did not adequately eliminate the
                    prejudice caused by David Sander’s [sic]
                    testimony?

Appellant’s brief at 4.

      Initially, Appellant contends that the Commonwealth failed to present

sufficient evidence to prove beyond a reasonable doubt that Appellant was

the person who took the money and/or that Appellant did not have

authorization to use the money.




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           A claim challenging the sufficiency of the evidence is
           a question of law. Commonwealth v. Widmer,
           560 Pa. 308, 319, 744 A.2d 745, 751 (2000). In
           that case, our Supreme Court set forth the
           sufficiency of the evidence standard:

                 Evidence will be deemed sufficient to
                 support the verdict when it establishes
                 each material element of the crime
                 charged and the commission thereof by
                 the accused, beyond a reasonable doubt.
                 Commonwealth v. Karkaria, 533 Pa.
                 412, 625 A.2d 1167 (1993). Where the
                 evidence offered to support the verdict is
                 in contradiction to the physical facts, in
                 contravention to human experience and
                 the laws of nature, then the evidence is
                 insufficient as a matter of law.
                 Commonwealth v. Santana, 460 Pa.
                 482, 333 A.2d 876 (1975).           When
                 reviewing a sufficiency claim the court is
                 required to view the evidence in the light
                 most favorable to the verdict winner
                 giving the prosecution the benefit of all
                 reasonable inferences to be drawn from
                 the evidence.       Commonwealth v.
                 Chambers, 528 Pa. 558, 599 A.2d 630
                 (1991).

           Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

     A person is guilty of theft by unlawful taking or disposition if “he

unlawfully takes, or exercises control over movable property of another with

the intent to deprive him thereof.” 18 Pa.C.S.A. § 3921(a).

     Appellant argues that the Commonwealth failed to present sufficient

evidence that he stole the money because Sanders also had access to the

locked cabinet where the money was kept, so Sanders could have taken the


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money.    Also, Appellant argues that he had authority to use the money

because it was common practice to use the residents’ money to purchase

household necessities for the boarding house.

      Appellant ignores the fact that while Sanders may have had access to

the money, Sanders testified that Appellant admitted to Sanders that he

took the money when Sanders confronted him about it. Similarly, Appellant

admitted to Officer McKinney that he took the money when Officer McKinney

questioned him. With respect to whether Appellant was authorized to use

the money to buy household items, Sanders testified that he did not have

authorization.

      The testimony of Sanders and Officer McKinney, that Appellant told

them that he took the money, coupled with the testimony of Sanders, that

Appellant was not authorized to do so, provided sufficient evidence for the

conviction.

      Appellant next contends that the jury placed too great a weight on the

Commonwealth’s witnesses, such that he is entitled to a new trial.

                 [T]he weight of the evidence is
                 exclusively for the finder of fact who is
                 free to believe all, part, or none of the
                 evidence and to determine the credibility
                 of the witnesses.       An appellate court
                 cannot substitute its judgment for that of
                 the finder of fact . . . thus, we may only
                 reverse the lower court’s verdict if it is so
                 contrary to the evidence as to shock
                 one’s sense of justice. Moreover, where
                 the trial court has ruled on the weight
                 claim below, an appellate court’s role is


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                    not to consider the underlying question
                    of whether the verdict is against the
                    weight of the evidence, . . . rather,
                    appellate review is limited to whether the
                    trial court palpably abused its discretion
                    in ruling on the weight claim.

               Commonwealth v. Kim, 888 A.2d 847, 851
               (Pa.Super. 2005) (citations and quotations omitted).
               A motion for a new trial based on a challenge to the
               weight of the evidence concedes the evidence was
               sufficient to support the verdict. Commonwealth v.
               Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

       Appellant argues that the jury placed too much weight on the

testimony of Sanders given that Sanders had access to the locked cabinet

and did not report to the police that the money was missing for three weeks.

       We agree with the trial court that the jury’s decision does not shock

the conscience. Kalina testified that he gave the money to Appellant to hold

for him and that Appellant failed to return it when asked.       Sanders and

Officer McKinney both testified that Appellant admitted that he took the

money. The jury found Kalina, Sanders, and Officer McKinney credible. The

trial court did not err when it determined Appellant was not entitled to a new

trial because the jury’s verdict was against the weight of the evidence.

       Appellant next contends that the trial court abused its discretion when

it denied his motion for a mistrial when Sanders testified that he allowed

Appellant time to pay the money back because Appellant had recently gotten

out of jail.



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          The standard governing our review of a trial court’s
          refusal to grant a request for a mistrial has been
          previously well summarized by this Court:

               The decision to declare a mistrial is
               within the sound discretion of the court
               and will not be reversed absent a
               “flagrant     abuse      of     discretion.”
               Commonwealth          v.    Cottam,     420
               Pa.Super. 311, 616 A.2d 988, 997
               (1992); Commonwealth v. Gonzales,
               415 Pa.Super. 564, 570, 609 A.2d 1368,
               1370-71 (1992).         A mistrial is an
               “extreme remedy . . . [that] . . . must
               be granted only when an incident is of
               such a nature that its unavoidable effect
               is to deprive defendant of a fair trial.”
               Commonwealth v. Vazquez, 421
               Pa.Super. 184, 617 A.2d 786, 787-88
               (1992) (citing Commonwealth v.
               Chestnut, 511 Pa. 169, 512 A.2d 603
               (1986),     and    Commonwealth           v.
               Brinkley, 505 Pa. 442, 480 A.2d 980
               (1984)). A trial court may remove taint
               caused by improper testimony through
               curative instructions. Commonwealth
               v. Savage, 529 Pa. 108, 602 A.2d 309,
               312-13;         Commonwealth              v.
               Richardson, 496 Pa. 521, 437 A.2d
               1162 (1981). Courts must consider all
               surrounding      circumstances       before
               finding that curative instructions were
               insufficient and the extreme remedy of a
               mistrial is required. Richardson, 496
               Pa. at 526-527, 437 A.2d at 1165. The
               circumstances which the court must
               consider include whether the improper
               remark was intentionally elicited by the
               Commonwealth, whether the answer
               was responsive to the question posed,
               whether the Commonwealth exploited
               the reference, and whether the curative
               instruction was appropriate. Id.



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            Commonwealth v. Stilley, 455 Pa.Super. 543, 689
            A.2d 242, 250 (1997).

Commonwealth v. Bracey, 831 A.2d 678, 682-683 (Pa.Super. 2003),

appeal denied, 844 A.2d 551 (Pa. 2004).

      Appellant asserts that Sanders’ testimony, that he allowed Appellant

time to pay the money back because Appellant “just got out of jail,”

warranted a new trial. (Notes of testimony, 12/4/14 at 23.) Although the

trial court gave a curative instruction to the jury, Appellant argues that this

instruction was insufficient to cure the taint of the testimony.

      The prosecutor told the trial court that when she asked Sanders the

same question during pre-trial preparation, he did not mention anything

about Appellant’s incarceration and that she instructed Sanders not to

mention anything concerning the incarceration. The trial court gave the jury

a lengthy instruction that informed it that whether or not Appellant

committed a crime in the past was not evidence as to whether he committed

the theft for which he was on trial. The trial court emphatically told the jury

that it was not permitted to consider that testimony. After the jury returned

the verdict, the trial court checked to make sure whether anyone mentioned

Appellant’s prior incarceration during the jury’s deliberations. No one had.

We are satisfied that the trial court correctly determined that the

Commonwealth did not intentionally elicit this testimony and that the trial

court’s curative instruction cured any possible taint. The trial court did not

abuse its discretion.


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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/2016




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