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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                                :
                                                  :
                                                  :
    BRANDON ROSS SNYDER                           :
                                                  :
                       Appellant                  :   No. 2097 MDA 2018

      Appeal from the Judgment of Sentence Entered November 27, 2018
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                       No(s): CP-54-CR-0001171-2017


BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                             FILED SEPTEMBER 09, 2019

        Brandon Ross Snyder appeals from his judgment of sentence, entered

in the Court of Common Pleas of Schuylkill County, after a jury found him

guilty of one count of access device fraud.1 After careful review, we affirm.

        In December 2016, a loss prevention employee from Lowe’s Home

Improvement          Center   (Lowe’s)         contacted   Schuylkill   County   Child

Development, Inc. (the Agency) regarding suspicious activity on the Agency’s

credit card. The Agency had issued the credit card to its employee, Robert

Ditzler, to use only after he had an approved purchase order. On December

6, 2016, the Agency fired Ditzler, but Ditzler never returned the credit card to

the employer.


____________________________________________


1   18 Pa.C.S.A. § 4106(a)(1)(ii).
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       Almost two weeks later, from December 18-20, 2016, Snyder made

purchases totaling $3,546.29 at Lowe’s using the Agency credit card. For each

purchase, Snyder signed his name as Robert Ditzler. On December 22, 2016,

Snyder again attempted to use the credit card at Lowe’s. When questioned

by the cashier, Snyder presented his Pennsylvania driver’s license, which

identified him as Brandon Snyder.              A Lowe’s employee confronted Snyder

regarding his authorization to use the credit card under Ditzler’s name, at

which point Snyder left the store, leaving the credit card and merchandise

behind.

       After a two-day jury trial, Snyder was convicted of access device fraud

on October 25, 2018.         On November 27, 2018, the trial court sentenced

Snyder to eighteen to thirty-six months’ incarceration in a state correctional

facility. Snyder’s counsel filed this timely appeal on December 27, 2018.2

       On appeal, Snyder raises the following issues for our review:

       (1)      Was the evidence presented at trial sufficient to sustain a
                verdict of guilty as to [a]ccess [d]evice [f]raud?
                Specifically, did the Commonwealth prove that [] Snyder
                had sufficient knowledge he was not authorized to use the
                credit card beyond a reasonable doubt?

       (2)      Did the trial court abuse its discretion and/or commit an
                error of law by identifying [] Snyder by name and in
                person to a Commonwealth witness whose sole purpose
                for testifying was to identify [] Snyder as the alleged
____________________________________________


2 Snyder filed pro se motions for post-conviction collateral relief on December
7, 2018, and January 21, 2019, however, both were premature and were
dismissed on March 7, 2019. See Post Conviction Relief Act 42 Pa.C.S. §§
9541-9546.

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               perpetrator of fraud, in his preliminary instructions to that
               witness?

      (3)      Did the trial court abuse its discretion and/or commit an
               error of law by admitting photographic evidence,
               documentary evidence, and testimony proffered by the
               Commonwealth concerning transactions occurring on
               December 22, 2016, which were outside those
               transactions charged in the [i]nformation?

Appellant’s Brief at 5.

      Our standard of review of a sufficiency claim is well-settled:

      Our standard for evaluating sufficiency of the evidence is whether
      the evidence, viewed in the light most favorable to the
      Commonwealth [as verdict winner], is sufficient to enable a
      reasonable [factfinder] to find every element of the crime beyond
      a reasonable doubt. [T]he entire trial record must be evaluated
      and all evidence actually received must be considered, whether or
      not the trial court’s rulings thereon were correct. Moreover, [t]he
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Finally, the trier of fact, while passing
      upon the credibility of witnesses and the weight to be afforded the
      evidence produced, is free to believe all, part or none of the
      evidence.

Commonwealth v. Shull, 148 A.3d 820, 844 (Pa. Super. 2016) (citation

omitted).

      An individual commits access device fraud if “he uses an access device

to obtain or in an attempt to obtain property or services with knowledge that

the access device was issued to another person who has not authorized its

use.” 18 Pa.C.S.A. § 4106(a)(1)(ii). An access device is defined as “[a]ny

card, including, but not limited to, a credit card . . . that can be used . . . to

obtain money, goods, services or anything else of value or that can used to

transfer funds.” Id. at § 4106(d).


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     Initially, we note that Snyder entirely bases his argument on a

hypothetical scenario which does not apply to the instant evidence, and views

the facts in the light most favorable to himself—which is the incorrect

standard. See Shull, 148 A.3d at 844; Appellant’s Brief, at 9-10. Viewing

the evidence in the light most favorable to the Commonwealth, as we must,

See Shull, supra, we find the evidence sufficient to find Snyder guilty of

access device fraud.

     Snyder purchased $3,546.29 of goods using the Agency’s credit card,

thus satisfying the use element.   18 Pa.C.S.A. § 4106(a)(1)(ii).    To show

Snyder knew he was not authorized to use the credit card, the Commonwealth

introduced evidence that the Agency did not authorize Snyder to use the credit

card. See N.T. Trial, 10/24/18, at 68-69. Furthermore, Snyder’s actions of

signing another’s name and fleeing the store when confronted about the credit

card is evidence that Snyder was aware the Agency did not authorize him to

use the credit card. See Commonwealth v. Johnson, 838 A.2d 663, 681

(Pa. 2003) (finder of fact may infer consciousness of guilt from flight and

surrounding circumstances). Thus, there was sufficient evidence to sustain

Snyder’s conviction for access device fraud under section 4106(a)(1)(ii).




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       Next, Snyder argues that the trial court committed reversible error when

the judge, in open court and in front of the jury, identified Snyder as the

defendant.3

       Shortly after the judge identified Snyder as the defendant, Susan

Carroll, a Lowe’s cashier, identified Snyder as the person who attempted to

make purchases using the Agency’s credit card. Snyder argues that the in

court identification was inadmissible because the circumstances of the

identification were highly suggestive.

       Our Supreme Court has stated that:

       [T]he suggestiveness of a challenged confrontation is only one
       factor to be considered in determining the admissibility of
       identification testimony. Suggestiveness alone does not warrant
       exclusion. Instead it is the likelihood of misidentification which


____________________________________________


3 The Honorable Charles M. Miller told Susan Carroll, a Lowe’s cashier
testifying for the Commonwealth:

       Okay. So there’s a couple rules that I tell witnesses []. And first
       of all, that microphone is only used -- there is a microphone there.
       There’s one here, but we don’t use those. They’re only used in
       rare occasions. The public address system doesn’t work

       So what you want to do is, pull forward because Attorney Reedy
       and Mr. Snyder over there, who is the Defendant, Attorney Reedy
       represents him. Of course you know Attorney Stine and the
       prosecuting officer, Officer McGrath.

       So it’s important to keep your voice up. We don’t have the air
       conditioning on. And at times in the back, its difficult to hear. So
       speak up.

N.T. Trial, 10/24/18, at 56-57.


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      violates a defendant’s right to due process, and it is this which is
      the basis of the exclusion of evidence.

      The reliability of a challenged identification is to be judged under
      a test employing the totality of the circumstances. The factors
      relevant to determining the reliability of the identification are:

             [T]he opportunity of the witness to view the criminal
             at the time of the crime, the witness’ degree of
             attention, the accuracy of [her] prior description of the
             criminal, the level of certainty demonstrated at the
             confrontation, and the time between the crime and
             the confrontation. Against these factors is to be
             weighed the corrupting effect of the suggestive
             identification itself.

Commonwealth v. Ransome, 402 A.2d 1379, 1382 (Pa. 1979) (quotation

marks and citation omitted).

      Even   if   we   were   to   accept   Snyder’s   contention   that   Carroll’s

identification occurred under suggestive circumstances, we reject his claim

that the identification was unreliable. Carroll directly interacted with Snyder

when he attempted to purchase items at Carroll’s checkout line on December

22, 2016, during which time she also inspected Snyder’s Pennsylvania driver’s

license.   Moreover, on cross-examination, Carroll stated she would have

identified Snyder even without the judge’s comment.              See N.T. Trial,

10/24/18, at 65. Furthermore, photographic evidence depicting Snyder on

December 22, 2016, taken from a cell phone and surveillance video,

corroborated the identification.       Accordingly, under the totality of the

circumstances, the trial court did not abuse its discretion when it identified

Snyder. See Ransome, 402 A.2d at 1382.


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      Snyder’s last claim is that the trial court improperly admitted evidence

from the December 22, 2016 attempted purchase, claiming it was irrelevant.

Initially, we note that:

      [t]he admission of evidence is solely within the discretion of the
      trial court, and a trial court’s evidentiary rulings will be reversed
      on appeal only upon an abuse of that discretion. An abuse of
      discretion will not be found based on a mere error of judgment,
      but rather occurs where the court has reached a conclusion that
      overrides or misapplies the law, or where the judgment exercised
      is manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quotation

marks and citations omitted).

      The general threshold for admissibility of evidence is relevance.

Evidence is relevant if it has any tendency to make a fact more or less probable

than it would be without the evidence and the fact is of consequence to

determining the action. Pa.R.E. 401. However, even relevant evidence will

be excluded when the probative value of the evidence is outweighed by the

danger of unfair prejudice, confusion of the issues, misleading the jury, undue

delay,   pointlessness     of   presentation,   or   unnecessary   presentation   of

cumulative evidence. Pa.R.E. 403. “Unfair prejudice” means a tendency to

suggest a decision on an improper basis or to divert the jury’s attention away

from its duty of weighing the evidence impartially. Pa.R.E. 403, comment.

Evidence will not be prohibited merely because it is harmful to the defendant.

Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007).




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      Here, the court admitted evidence from the December 22, 2016

encounter, even though all the charged crimes occurred prior to that date.

However, the testimony and photographic evidence presented from December

22, 2016, is relevant to identify Snyder and to show his consciousness of guilt

when he fled. Evidence that Snyder fled on December 22, 2016, makes it

more likely that he knew he was not authorized to use the card on the previous

occasions. Furthermore, witnesses testified that the same person used the

credit card on December 18, 19, 20, and 22, 2016. Thus, the testimony and

photographic evidence from December 22, 2016, was highly relevant and the

trial court did not err by admitting it at trial.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2019




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