J-A30038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

IAN XAVIER MAUTE,

                            Appellant                        No. 563 EDA 2014


            Appeal from the Judgment of Sentence January 9, 2014
                in the Court of Common Pleas of Pike County
             Criminal Division at Nos.: CP-52-CR-0000032-2013;
                          CP-52-CR-0000508-2012;
                           CP-52-CR-0000518-2012


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                      FILED MARCH 05, 2015

        Appellant, Ian Xavier Maute, appeals from the judgment of sentence

imposed following a jury conviction of two counts of robbery, two counts of

theft by unlawful taking, two counts of possessing instruments of crime, two

counts of recklessly endangering another person, two counts of simple

assault, one count of criminal conspiracy to commit intimidation of witness

or victim, one count of criminal solicitation to commit intimidation of witness

or    victim,   one   count     of   criminal   conspiracy    to   commit   hindering

apprehension or prosecution, and one count of criminal solicitation to



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A30038-14



commit hindering apprehension or prosecution.1 These charges related to a

string of robberies on a small stretch of road just a few blocks from

Appellant’s home.        Appellant challenges the trial court’s rulings on his

motion to sever and hearsay objection, and the weight and sufficiency of the

evidence for all convictions.2         We affirm on the basis of the trial court

opinion.

        In its April 16, 2014 opinion, the trial court fully and correctly sets

forth the relevant facts and procedural history of this case. (See Trial Court

Opinion, 4/16/14, at 1-4). Therefore, we have no reason to restate them

here.

        Appellant raises the following issues for our review:

        1.    Whether the trial court erred when denying [Appellant’s]
        motion to sever criminal information 518-2012 from criminal
        information 32-2013?

        2.    Whether the trial court erred when overruling [Appellant’s]
        objection to hearsay testimony presented by the Commonwealth
        during the [omnibus] pre-trial hearing?

        3.    Whether the verdict was [contrary] to the weight of the
        evidence in that the evidence presented at trial was insufficient
____________________________________________


1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), 907(b), 2705, 2701(a)(3),
903(c), 901(a), 903(c), and 901(a), respectively.
2
  We note that, although the trial court addressed Appellant’s weight and
sufficiency of the evidence arguments, Appellant has impermissibly conflated
them into one issue.       (See Trial Court Opinion, 4/16/14, at 14-18;
Appellant’s Brief, at 31-37); see also Commonwealth v. Widmer, 744
A.2d 745, 751-52 (Pa. 2000) (differentiating weight and sufficiency
arguments).



                                           -2-
J-A30038-14


       to prove the elements of the offenses charged, beyond a
       reasonable doubt?

(Appellant’s Brief, at 10).3

       Preliminary we note that “[a] weight of the evidence claim must be

preserved either in a post-sentence motion, by a written motion before

sentencing, or orally prior to sentencing.           Failure to properly preserve the

claim will result in waiver, even if the trial court addresses the issue in its

opinion.” Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013,

appeal denied, 76 A.3d 538 (Pa. 2013) (citations omitted); see also

Pa.R.Crim.P. 607.

       Here, the docket indicates that Appellant did not file a pre-sentence

motion.    Furthermore, he did not raise his weight of the evidence claim

orally prior to sentencing or in his post-sentence motion.                 (See N.T.

Sentencing,      1/09/14,     at     4-9;      Post-Sentence   Motion,   1/21/14,   at

unnumbered pages 1-3).             Accordingly, this issue is waived.    See Griffin,

supra at 938; Pa.R.Crim.P. 607.

       It is well-settled that “[w]hether or not separate indictments should be

consolidated for trial is within the sole discretion of the trial court and such

discretion will be reversed only for a manifest abuse of discretion or

____________________________________________


3
  Appellant has abandoned his argument that his constitutional “rights were
violated when the [t]rial [c]ourt denied [his] [m]otion [t]o [e]xclude all
evidence after clearly inadmissible evidence was displayed to the [j]ury by
the Commonwealth.” (Concise Statement, 3/07/14, at unnumbered page
2).



                                            -3-
J-A30038-14



prejudice and clear injustice to the defendant.”          Commonwealth v.

Newman, 598 A.2d 275, 277 (Pa. 1991) (case citation omitted).

      Similarly, “[r]ulings on the admissibility of evidence . . . are within the

discretion of the trial judge, and such rulings will form no basis for appellate

relief absent an abuse of discretion.”    Commonwealth v. Johnson, 2014

WL 7392218, at *22 (Pa. filed Dec. 30, 2014). However,

      Because evidentiary sufficiency presents a question of law, our
      standard of review is de novo and our scope of review is plenary.

             In reviewing the sufficiency of the evidence, we must
      determine whether the evidence admitted at trial, and all
      reasonable inferences drawn from that evidence, when viewed in
      the light most favorable to the Commonwealth as verdict winner,
      was sufficient to enable the fact finder to conclude that the
      Commonwealth established all of the elements of the offense
      beyond a reasonable doubt

Id. at *8.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, we conclude

that there is no merit to Appellant’s issues. The trial court properly disposes

of all of the questions presented.       (See Trial Ct. Op., at 4-11, 14-18)

(finding that the trial court properly: (1) denied severance and determined

that (a) evidence in all three robberies would be admissible in separate

trials, (b) jury could separate evidence of each crime to avoid confusion, and

(c) consolidation did not prejudice Appellant; (2) overruled objection to

alleged hearsay statements not offered to prove truth of what they asserted;

and (3) rejected challenge to sufficiency of evidence where (a) victims and


                                      -4-
J-A30038-14



other Commonwealth witnesses were credible, and (b) existence of security

footage showed the robberies and recorded phone conversations identified

that Appellant conspired and solicited Paul Bertino to retrieve a pair of

sneakers).

      Accordingly, we find Appellant’s weight claim waived and reject all

other claims on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/2015




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                       IN THE COURT OF COMMON PLEAS OF
                           PIKE COUNTY, PENNSYLVANIA
                                CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA,
                                                             508-2012 CRIMINAL
        Plaintiff                                            518-2012 CRIMINA\g,
                                                                                                   n1- -D .
                                                             32-2013 CRIMINAL:r;::
                                                                            ..: . : ~'-)    ,.
                                                                                                   ~~~
v.                                                                          :.;,:~)
                                                                            , ': .,:;').
                                                                                            '\:1
                                                                                            :;.U
                                                                            c: ,'::::1
IAN XAVIER MAUTE,                                                            c:;   -~,

                                                                             c :.o                  n ~ i""'1.
                                                                              ~;~:: '~::J           CJ ~ O
                                                                              -" 1 ...,)            ,. ..• :;:-.> """'q
        Defendant                                                             ;;<   rT1             ~\~
-----------------------------,~ . ~~
                                   · .,-_.:-::;.:flnr__.....(;' ·,
                              . ~j.:J         0""1
                                  c;

       OPINI ON SUBMITTED PURSUANT TO PENNSYL VANIA RULE OF

                            .APPELJ;.,ATE PROCEDURE 1925

        AND NOW, this      -I-~d      day of April, 2014 after careful review of the record,

we continue to stand by our decision and respectfully request the Superior Court to

uphold our Orders of January 9 and January 22, 2014. This COUli would also like to add ,

pursuant to Pennsylvania Rule of Appellate Procedure 1925, the following :

I.      FACTUAL AND PROCEDURAL HISTORY

        The evidence at trial, viewed in the light most favorable to the Commonwealth as
              I




the verdict winner, establishes that on October 1, 2012, the Appellant, Ian Xavier Maute,

committed the crime of Robbery at the store Smoker' s Paradise. That Appellant entered

the store with his head and face obscured by a hooded jacket and mask and while waiving

a large knife at the cashier demanded she provide him with the cash in her register.

        The Jury also found that the Appellant committed these acts again on October 19,

2012. This time, however, the Appellant targeted the store Karen' s Flea Market, but

otherwise repeated his previous actions in committing an armed assault against the

cashier in order to rob the store.


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        Appellant was subsequently apprehended and arrested by the police department

and charged with three counts of robbery, three counts of unlawful taking or disposition,

two counts of possessing an instrument of crime, three counts of recklessly endangering

another person and three counts of simple assault. While being held on these charges,

Appellant placed calls to one Paul Bertino and entered into a criminal conspiracy to

intimidate witnesses and a conspiracy to hinder apprehension or prosecution. These
             I

charges were consolidated and made a part of the trial on the previous charges.

        On August 19, 2012, Appellant's counsel filed an Amended Omnibus Pre-Trial

Motion requesting the suppression of items found pursuant to a search warrant, the

suppression of witness Lindsey Bloomer's identification of the Appellant, a motion to

compel witness identification and contact information and a motion for severance of the

criminal informations.

       On August 27, 2013, this COUli granted the Omnibus Motion with respect to the

motion to compel, the Appellant withdrew the request for suppression of items found

pursuant to the search warrant and this Court denied the motions to suppress the witness

identification and for severance.

       A jury was impaneled on November 1, 2013. The trial was held on November 12

and 13, 2013.    A verdict was rendered on November 14, 2013 . The Appellant was

sentenced on January 9, 2014. Appellant filed a Post-Sentence Motion on January 21,

2014, asserting that the evidence was insufficient to sustain the verdict guilty, requesting

a new trial and requesting a reconsideration of the Appellant's sentence. This Court

denied all of the Appellant's motions on January 22, 2014.

       On February 19, 2014, Appellant filed a Notice of Appeal to the Superior Court.




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This COUli ordered a Concise Statement on February 20, 2014. The Appellant filed a

Concise Statement of Matters Complained on Appeal on March 7, 2014 . In his Concise

Statement, Appellant lists the following issues as matters complained of on appeal:

       1.   l    pp ellant is entitled to a new Trial because his Pa. Constitution AIiicle 1 §9

            and U.S. Constitution AIl1endment XIV Due Process Rights, as well as his

            i on Constitutional Pa. R. Crim. P. 582 rights were violated when the

            Commonwealth was improperly permitted to consolidate, into one trial, the

            offenses contained in Criminal Information 518-2012 and 32-2013. Appellant

            was entitled to a separate Trial on each of the Criminal Informations.

      "2:· "Appellant is entitled to a new Trial because his Pa. Constitution Aliicle .1 §9

            l d U.S. Constitution Amendment XIV Due Process Rights, as well as his

            Non Constitutional Pa. R. Evid. 402, 611 and 802 rights to present relative

            evidence, to duly cross exanl witnesses and rights against hearsay testimony
             I



            were violated when the Trial COUli allowed the Police Officer to testify, at the

            J re-Trial Hearing, regarding the statements made by an out of Court witness

            as to the witness' out of Court alleged identification of the Appellant. The

            Trial Court, in overruling the Appellant's objections to hearsay prevented the

            Appellant from presenting relative evidence and fully cross examining the

            witness regarding her identification and statements.

       3. vhe Appellant is entitled to a new Trial because his Pa. Constitutional Article

            1 §9 and U.S. Constitution Amendment XIV Due Process Rights, as well as

            his Non Constitutional Pa. R. Evid. 103 rights were violated when the Trial

            Gourt denied Appellants Motion to Exclude all evidence after clearly




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            inadmissible evidence was displayed to the Jury by the Commonwealth. The

            display of this evidence to the Jury was improper and prejudicial in as much

            al it suggested to the Jury that the Appellant was the owner of shoes identified

            by one of the witnesses.

        4. , hat the verdict was contrary to the weight of the evidence, in that the

            T idence and testimony presented at Trial was insufficient to prove the

            elements of the offenses charged, beyond a reasonable doubt.

II.
               I
        DIS<CUSSION

      A. The   I Appellant's  Pennsylvania Constitution Article 1 §9 and U.S.
          Con~titution
               I -
                       Amendment XIV rights and Rule of Criminal Procedure 582
                            .    '        . ... .
          rights were not violated when this Court allowed the consolidation o-f
        . sepa~ate criminal informations.
               I



        PelIDsylvania's Rules of Criminal Procedure provide that:
             I
        "Offenses charged in separate indictments or informations may be tried together
        if: I                                                                         .
        (a) the evidence of each of the offenses would be admissible in a separate trial for
        the 0lther and is capable of separation by the jury so that there is no danger of
        cOnTI+sion; or
        (b) the offenses charged are based on the same act or transaction".
               I

Pa. R. Crim. P. 582(A)(1); See also Pa. R. Crim. P. 583 (noting that a court may order
               1

separate trials if it appears that any party may be prejudiced by offenses or defendants

being tried together).
               1

        This rule has been elaborated on by both the Superior and Supreme Courts as
               I
               I
explained in the case of Commonwealthv. Kunkle:
               I
        "Offenses charged in separate informations may be tried together if they are
        'base~ on the same act or transaction' or if 'the evidence of each of the offenses
        would be admissible in a separate trial for the other and is capable of separation
        by thl~ jury so that there is no danger or confusion' . The court has discretion to
        order separate trials if 'it appears that any paIiy may be prejudiced' by
        consolidating the charges' .


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        Our Supreme COUli has established a tln'ee part test, incorporating these two rules
        for deciding the issue of joinder versus severance of offenses from different
        informations. The court must determine whether the evidence of each of the
        offenses would be admissible in a separate trial for the other; 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, whether the defendant
        will be unduly prejudiced by the consolidation of offenses".

Commonwealth v. Kunkle , 79 A.3d             1173, 1190 (Pa. Super. 2013) (quoting

Commonwealth v. Thomas, 879 A.2d 246 (Pa. Super. 2005) and Commonwealth v. Lark,

518 Pa. 290, 302 (1988) ) (other and internal citations omitted); See Commonwealth v.

Robinson, 581 Pa. 154 (2004) cert denied, 546 U.S. 983 (2005); See also Commonwealth

v. Carson, 590 Pa. 501, 568 (2006).

       In this case, the Appellant was alleged to have conducted three robberies. across

two locations.    Criminal Information 32-2013 covers two of these incidents, those

relating to Smoker' s Paradise while Criminal Information 508-2012 covers the incident at

Karen' s Flea Market. If the Appellant's argument is similar to the one contained in his

Post-Sentence Motion, then it appears that counsel will argue that the merger of these two

Informations violates both subsections (a) and (b) Rule 582. This COUli would submit,

however, it was proper to merge these two Informations under both subsections (a) and

(b) in accordance with the test developed by our Supreme Court and provided supra.

       The first issue a court must detelmine is whether the evidence of each of the

offenses would be admissible in a separate trial for the other. Id. In this case, they would

be. While PelIDsylvania Rule of Evidence 404 would appear to prohibit the introduction

of such evidence on its face, this Court found the evidence to fall Ullder one of the

exceptions for permitted uses. See Pa. R. Evid. 404(b)(1-2).

       Specifically, the evidence for all three robberies was admissible in order to show




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plan, identity and preparation on the part of the Defendant.       Similar to the case of

Commonwealth v. Dozzo, "the robberies were closely linked temporally and

geographically, and showed the like manner in which Appellant conunitted the

robberies".   Commonwealth v. Dozzo, 991 A.2d 898, 903 (Pa. Super. 2010) (citing

Commonwealth v. Taylor, 671 A.2d 235 (Pa. Super. 1996) appeal denied, 54 Pa. 642

(1996)). In Dozzo, the Superior Court held that such connecting evidence was sufficient

to show a criminal defendant's common scheme, plan, design and identity for a spree of

robberies and would have been admissible in separate trials. Id.

       Notably, the evidence cited in Dozzo is related to similarities in how the robberies

were conducted, the descriptions of the perpetrator' s accent and victims identification of

the Defendant as a robber. Id. Further, the fact that the defendant had assistance from

co-defendants for some, but not all, of the robberies was not enough to alter "the

fundamental similarities in the methods and goals of the robberies". Id.

       The case sub judice bears a resemblance to these circumstances. All of the

robberies Appellant was accused of occurred in the Matamoras borough along the same

stretch ofroadway. See Criminal Information filed to 518-2012 and 32-2013 (noting that

the crimes also occurred during a two-month time period); See also Transcript o/Trial 0/

Ian Maute, held on November 12, 2013 (noting the testimony of both Lindsey Bloomer

and Karen Menter). All of them were done by a white male in a hooded-jacket who

covered his face with a mask and wielded a knife. Transcript o/Trial Ian Maute, held on

November 12, 2013, pgs. 43-44, 52 and 129, lines 21-23 , then 8-9 then 11-18 finally 8-

11. In two instances, during the second Smoker's Paradise robbery and the robbery of

Karen's Flea Market Store, witnesses described it as being a very large knife. Id at pgs.




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53 and 129, lines 12-15 then 15-19.

       Thus, there were many similarities binding these events together, much as

Dazzo' s were joined by the Defendant's Jamaican or African accent, the fact that all the

robberies occurred within a one-month period near the same geographical location and

threatened ' them with a gun. Commonwealth v. Dazzo, 991 A.2d 898, 903 (Pa. Super.

2010). For the Appellant here, the Appellant committed all of the robberies within a two-

month period, near the same geographical location and threatened the victims with a

knife. This Court therefore believed that the probative value of the evidence outweighed

any prejudicial effect and would have been admissible in separate trials.

       Furthermore, as an alternative, if the evidence was not admissible as an exception

under 404(b )(2), it was also admissible as res gestae. Where evidence is "part of the

chain or sequence of events which became part of the history of the case and formed part

of the natural development of the facts" it can be admissible at trial. Commonwealth v.

Lark, 518 Pa. 290, 497 (1988); Accord Commonwealth v. A1iles, 545 Pa. 500, 518-9

(1996); Commonwealth v. Paddy, 569 Pa. 47, 69-70 (2002); Commonwealth v. Murphy,

540 Pa. 318, 328 (1995); Commonwealth v. Nolen, 535 Pa. 77, 88-9 (1993);

Commonwealth v. Sam, 535 Pa. 350, 359-60 (1993).            Due to the proximity of the

robberies to one another, their close geographical location and the similarities of the

perpetrator involved, this Court believed that they were all part of one chain or sequence

and were part of the history of how the case formed.         This was supported by the

testimony of Corporal McCormick at the pre-trial hearing. See Transcript of Pre-Trial

Omnibus Hearing, held on August 23,2013, pg. 39, lines 4-22.

       The second issue this Court had to determine is whether the jury could separate




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the evidence of the crimes so as to avoid the danger of confusion. See Commonwealth v.

Kunkle, 79 A.3d 1173, 1190 (Pa. Super. 2013).         This Court determined they could.

SpeCifically, the robberies of Smoker's Paradise and Karen' s Flea Market Store featured

different witnesses. These witnesses, Ms. Lindsey Bloomer and Ms. Karen Menter, did

not offer overlapping or confusing testimony, but would speak to two differ~nt events at

two separate locations. The witnesses were also presented in a clear, logical order when

giving testimony. Further, only one surveillance recording for each location were being

offered as evidence; one for the second Smoker's Paradise robbery and one for the

robbery of Karen's Flea Market Store. Thus, the risk that the jury would confuse the

-issues was minimal. Indeed,. the jury did successfully separate the charges as it fmmd the -

Appellant not guilty of the first robbery of Smoker's Paradise.

       Finally, the third issue this Court had to detennine whether the Appellant would

have been unduly prejudiced by the consolidation of the offenses. Id. Based upon the

determinations discussed supra, this Court believed he would not be.

       In addition, this Court did not violate the Appellant's fundamental right to due

process in reaching this determination. On August 23, 2013, when argument was held on

the Appellant's motion to sever the criminal informations, his counsel was present to give

and respond to argument and freely cross-examined witnesses. At no time was the

Appellant denied access to materials nor was he prohibited from being present for this

hearing. In none of the Appellant's previous filings nor at any time during oral argument

did he argue that he was being denied any of these rights. Finally, all proper notices and

discovery were provided to the Appellant in a timely fashion. Consequently, this Court

can determine no basis for the Appellant to allege a violation of his due process rights.




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    B. The Appellant's Pennsylvania Constitution Article 1 §9 and U.S.
       Constitution Amendment XIV rights and Rules of Evidence 402, 611 and 802
       were not violated when a police officer was allowed to testify to out of court
       statements during the preliminary hearing.

        This Court submits that the evidence presented by the police officer was both

relevant and not hearsay. "Evidence is relevant if it logically tends to establish a material

fact in the case, tends to make a fact at issue more or less probable or supports a

reasonable inference or presumption regarding a material fact" .          Commonwealth v.

Bullock, 948 A.2d 818, 827 (Pa. Super. 2008).            TIns is subject to the caveat that

" [eJvidence, even if relevant, may be excluded if its probative value is outweighed by the

potential prejudice". COlnmonwealth v.   PC?g~,   96?, A.2d 1212,.1220 .CPa. Super. 2009).

       In this case, the witness in question was Corporal Matthew McCormack, who

testified at the OlIDlibus Pretrial Hearing as to what the victim told him the description of

the perpetrator was. Transcript of Omnibus Pretrial Hearing, held on August 23, 2013,

pgs. 12-15, lines 15-26, 11-16, 14-27 then 1-2. Specifically, Corporal McCormack's

testimony was that the victim described the perpetrator as a thin built man, with brown

hair, brown eyes, six feet and two inches tall with a distinguishable voice that she

recognized. Id. The victim also identified his attire and that he wielded a knife. Id.

       This evidence is highly probative, but not just for the truth of the statements being

offered by Corporal McCormack. The reason the COllli110nwealth sought to admit this

testimony was to reinforce the reliability of a line-up that OCCUlTed later where Ms.

Bloomer identified the Appellant. The prior consistency of Ms. Bloomer's description

coupled with her selection mutually reinforce her credibility. This was relevant because

the Appellant at this Pretrial Hearing was trying to suppress his identification by Ms.

Bloomer. See Amended Omnibus Pre-Trial Motion, filed August 19,2013 at pg. 3.


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       Moreover, this Court would note once again that this evidence was offered at an

Omnibus Pretrial Hearing and not at the Appellant's actual trial. This testimony was not

used to determine the Appellant's actual guilt or innocence, but was instead offered to

explain Ms. Bloomer's description of the perpetrator and her subsequent identification of

the Appellant in a subsequent police lineup. Id at pgs. 11-12, lines 17-25 then 1-11. Any

prejudicial effect on the Appellant was thus even further minimized.

       With regards to the alleged violation of Rule of Evidence 611, this COUli cannot

find a basis for the Appellant's complaint. Rule 611 is not at issue with any of the

content of what Corporal McCormack testified to. See Pa. R. Evid. 611 (noting the

sections of the rule are "Control by the Court; PUl-poses", "Scope of Cross-Examination"

and "Leading Questions").

       This Court can only guess that the Appellant is alleging some violation of 611(b),

relating to the scope of cross-examination, but at the Omnibus Pretrial Hearing

Appellant's counsel was permitted to freely cross-examine Corporal McCormack. See

Transcript of Omnibus Pretrial Hearing, held on August 23, 2013, pgs. 13-20. The

Commonwealth did not object to any of the Appellant's cross-examination questions nor

did this Court hinder the examination in any way.

       FUliher, the Appellant's Concise Statement elaborates that this Court's ovelTuling

of the hearsay objections raised to Corporal McCormack's testimony prevented him from

fully cross-examining Ms. Bloomer. This is a non-issue. If the Appellant wished to

question Ms. Bloomer directly, he had the ability to call her as a hostile witness of his

own. The fact that the Commonwealth did not call her and instead relied upon the

testimony of Corporal McCormack does not represent a due process violation for the




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Appellant.

        Finally, the third alleged violation centers on admission of what the Appellant

believes to be inadmissible hearsay. Hearsay is defined as an oral or vvritten assertion or

nonverbal conduct if it is intended as an assertion made by a declarant while not

testifying at the current trial or hearing but which is offered to prove the truth of the

matter asselied in the statement. See Pa. R. Evid. 801(a-c). This Court found, as the

COlmnonwealth argued when the Appellant made the initial objection to the Corporal's

testimony, that his statements were not hearsay because they were not being offered to

prove the truth of what they asserted. See Transcript of Omnibus Pretrial Hearing, held

on August 23, 2013, pg. 11, lines 18-23.

       Specifically, the Commonwealth represented that it was eliciting the testimony

not to prove that the perpetrator "did have X, Y, Z characteristics but rather that Miss

Bloomer gave the description and that then leads to the reliability of the line-up that

occurs later". Id. "A statement is hearsay only if it is offered to prove the truth of the

matter asserted in the statement". Pa. R. Evid. 801 (official note) (emphasis added). In

this case, the statements all related to the perpetrator's appearance or clothing, which the

Commonwealth was not attempting to prove at that time. See Transcript of Omnibus

Pretrial Hearing, held on August 23,2013, pgs. 11-16. The Commonwealth instead was

trying to show the consistency between the statements describing the perpetrator and Ms.

Bloomer's selection of the Appellant at a subsequent line-up. The statements testified to

by Corporal McCormack are therefore not hearsay by · definition.         See Pa. R. Evid.

801(c)(2).

   C. The Appellant's Pennsylvania Constitution Article 1 §9 and U.S.
      Constitution Amendment XIV rights and Rule of Evidence l03(d) were not



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        violated when this Court denied the Appellant's Motion to Exclude All
        Evidence.

        Pennsylvania's Rules of Evidence provide that:

        "Preventing the Jury from Hearing Inadmissible Evidence. To the extent
        practicable, the court must conduct a jury trial so that inadmissible evidence is not
        suggested to t4e jury by any means".

Pa. R. Evid. 103(d).

        This Court could find no case law directing addressing the application of this rule

to the situation that confronted us in this case.        Here, the item giving rise to the

Appellant's Motion to Exclude All Evidence was specifically not admitted into evidence

at any time. At issue is the item marked as Commonwealth's Exhibit 22, which was

marked by the Commonwealth on the first day of trial. Transcript of Trial of Ian Maute,

held on November 12, 2013, pg. 255, lines 1-2 then 12-17. At this time, all the jury knew

is that they were a pair of white and black sneakers that the witness claimed were found

in the Appellant's bedroom. Id.

        The Appellant's attorney objected to the moving of Exhibit 22 into evidence and

tIus Court instructed the pmiies to move on for now. Id at pg. 256 lines 3-12. The issue

did not return again until the second day of trial when Appellant' s attorney made his

Motion to Exclude All Evidence. Transcript of Trial of Ian Maute , held on November

13, 2013, pg. 4 lines 3-18. At this point, the jury had received no additional exposure,

however. The basis of Appellant's Motion was that Exhibit 22 was not in any way

related to tlus case. Id at pgs. 4-5, lines 20-25 then 1-15.

       So far as this Court was informed, Exhibit 22 was a pair of black and white

sneakers that were found in the residence of one Dmliel Ortiz. Id. Mr. Ortiz had no

relation to this case or these crimes whatsoever. The witness testified that Exhibit 22 had


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only even made it to trial due to a mistaken handoff between himself and another

Evidence Officer outside the evidence locker.            Id at pg. 35, lines 3-13 .       The

Commonwealth did not controvert these facts and did not object to the exclusion of

Exhibit 22.

        Despite the minimal exposure the jury had to Exhibit 22 at this time, this COUli

granted the Appellant permission to delve into the witness's mistake on cross-

examination. Id at pg. 6 lines 1-5. Appellant' s counsel then proceeded to do so in detail,

specifically querying the witness regarding his mistake in handling the evidence. Id at

pgs. 20-24 (entire pages).     Both the Commonwealth and the Appellant continued to

question the witness about Exhibit 22 and the police deplliiment's methods of storing

evidence on Re-Direct and Re-Cross-Exllinination. Id at pgs. 31-36.

        This Court submits that none of this violated Rule 103 (d). The Rule begins with

the limitation that it operates "[t]o the extent practicable ... ". Pa. R. Evid. 103(d). Given

the mistaken and surprise nature of Exhibit's 22 entry into the Commonwealth' s

perspective evidence pool, there was no reasonable way for this Court to know it was not

part of the evidence for this case before it was brought up in trial. Once Exhibit 22 was

brought up, however, this Court did not allow it into evidence and did not allow further

mention of it until the issue could be investigated further.

       Furthermore, tIllS Court allowed the Appellant to control the extent Exhibit 22

was subsequently exposed to the jury by allowing him to inquire into the matter on cross-

examination at his discretion. The Commonwealth was thus also bound by the limits of

the Appellant's cross-examination. This COUli acted to the fullest extent practicable in

keeping inadmissible evidence from being suggested to the jury and in remedying the




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 situation once they had been exposed.

         The Appellant's Motion to Exclude All Evidence, by contrast, would not have

 done that.   The original exposure of the jury to Exhibit 22 would not be undone by

 removing the rest of the Commonwealth's lawfully presented evidence. Neither would

 the Appellant have been given a chance to attack the credibility of the witness for

 mistakenly sUbmitting evidence. Tilis COUli is also not certain that the jury could have

 actually disregarded all of the evidence they had previously seen admitted. The effect of

 Appellant's Motion might have been to declare a mistrial in that case. Due to the limited

 nature of the jury' s initial exposure to Exllibit 22, however, a mistrial did not seem

 warranted.

        This COUli therefore submits that it followed an appropriate course under Pa. R.

 Evid. 103(d) to minimize and correct any prejudice done to the Appellant. FUliher, since

 this Court acted witllin the confines of Rule 103 (d) and granted to the Appellant control

 over the scope of his cross-examination into Exhibit 22, this COUli does not believe his

 Constitutional rights were violated.

     D. The Jury's verdict was not contrary to the weight of the evidence.

        "The test for evaluating claims based on the sufficiency of the evidence            IS


 whether, viewing the evidence in the light most favorable to the [verdict winner], and

- drawing all reasonable inferences favorable to the [verdict winter], there is sufficient

 evidence to find every element of the crime beyond a reasonable doubt". Commonwealth

 v. Mongiovi, 521 A.2d 429, 592-3 (Pa. Super. 1987) (quoting Commonwealth v.

 Griscavage , 485 A.2d 470, 472 CPa. Super. 1984)). "Before a court will award a new

 trial on the ground that the verdict was against the weight of the evidence, it must appear




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from the record that the jury's verdict was so contrary to the evidence as to shock one's

sense of justice and to make the award of a new trial imperative, so that right may be

given another opportunity to prevail". Commonwealth v. Barnhart 434 A.2d 191, 192

(Pa. Super. 1981) (citing Lupi v. Keenan, 396 Pa. 6, 8 (1959)).

       In this case, the Appellant was convicted of two counts of robbery, two counts of

theft by unlawful taking, two counts of possessing instruments of crime, two counts of

recklessly endangering another person, two counts of simple assault, one count of

criminal conspiracy to commit intimidation of witness or victim, one count of criminal

solicitation to commit intimidation of witness or victim, one count of criminal conspiracy

to commit hindering apprehension or prosecution and one count of criminal solicitation to

commit hindering apprehension or prosecution. See Verdict, filed November 14,2013.

       Based upon all of the evidence discussed supra, such as the Appellant being

identified by name and recognized by Ms. Bloomer, the fact that the clothing described

by Ms. Menter as being worn by the perpetrator was found in the Appellant's home, the

Appellant being caught on video on two occasions committing the criminal acts, it can

hardly be said that it shocks the conscience for a jury to find him guilty of robbery. It is

readily apparent that the perpetrator threatened both Ms. Bloomer and Ms. Menter with

serious bodily injury by brandishing that large knife and that he did so while committing

a theft and robbing both stores of their lawfully earned money.

       Further, the crime of theft by unlawful taking or disposition is also apparent from

this evidence. Both witnesses testified that an amount in excess of $200 had been stolen

from their stores, that the money was lawful property of their stores, that they did not

give the Appellant permission to take the money and the Appellant fled with the money.




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He did not return it of his own volition at any point. The Appellant taking the money and

fleeing the scene was also recorded by the security cameras which were played for the

Jury.

          The weight of the evidence also supported the Appellant's convictions for

possessing an instrument of crime for similar reasons. He was clearly identified while

holding and brandishing the knife at Ms. Bloomer in order to cOlmnit robbery. While

Ms. Menter did not know who he was, she also saw the knife under his direct control as

he used it to rob her store as well. Finally, these instances were also recorded by the

security cameras and played for the jury.

        . Recklessly endangering another person reqmres that a defendant consciously

ignores a great and unjustifiable risk that what he is doing places or may place a victim in

danger of death or serious bodily injury. In this case, the jury found that the Appellant

did place both Ms. Bloomer and Ms. Menter in such danger. Once again, the evidence

provided at trial was that the Appellant brandished a large knife and waived it at the

victims in order to demand their compliance. Such behavior, with a very lethal object,

can reasonably be considered a gross deviation from the standard of conduct that a

reasonable person would have followed and sustain a conviction of recklessly

endangering another person.

         Moreover, this also provides the basis for the Appellant's conviction of simple

assault. A defendant is guilty of simple assault if he intentionally places a victim in fear

of imminent serious bodily injury through use of physical menace.          The perpetrator

caught on the security recordings and identified by Ms. Bloomer and Ms. Menter

threatened both of them with a large knife which could certainly constitute physical




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menace. The acts were also celiainly intentional as the witnesses describe the Appellant

gesturing with the knife in order to demand their money. A large lmife would also be

more than capable of inflicting serious bodily injury on a person and could reasonably

create fear of an impairment of physical condition that would create a substantial risk of

death, disfigurement or protracted loss.

       Finally, all four of the Appellants convictions for conspiracy and solicitation to

intimidate witnesses and conspiracy and solicitation to hinder apprehension are sustained

by the same facts.     Evidence was presented at the trial through recordings of the

Appellant's phone calls made from the jail that Appellant collaborated with one Paul

Bertino and · asked him to speak to Damon Ficken about Mr. Ficken's statement to the

police and recover a pair of sneakers from the Appellant's home. Transcript of Trial of

Ian Maute, held on November 13, 2013, Exhibit 33, 34 and 35. The recordings also

establish that Mr. Bertino then acted on these conversations by speaking to Mr. Ficken

and scouring the Appellant's home for his sneakers. Id.

       If the jury interpreted these recorded statements as true, which this Court will

presume they did as the Commonwealth was the verdict winner, then it does not shock

the conscience for the jury to have found the Appellant guilty on these counts. An

agreement to both intimidate Mr. Ficken and conceal the sneakers was made between the

Appellant and Mr. Bertino, who then took a substantial step to bring about each

agreement. These actions were solicited from Mr. Bertino by the Appellant as Appellant

was the one who proposed and formulated the plan according to the recorded phone

conversations.   This Court believes that such evidence adequately fulfills all of the

criteria necessary to sustain the conviction for these four charges.




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       Ultimately, because of the clear testimony of two eye witnesses, the presence of

two separate security camera records and the recorded phone conversations, this case

revolved around an issue of identity. The actions of the perpetrator in assaulting and

robbing both Smoker's Paradise and Karen's Flea Market were not largely in dispute

since they had been caught on video. The question was whether it was the Appellant

behind the mask committing these acts. Ms. Bloomer identified him on the stand as

being the one responsible. Ms. Menter provided substantial evidence to indicate that the

individual who robbed her store looked and acted the same as the one who robbed

Smoker's Paradise. All the evidence presented provided a reasonable basis for the jury to

find beyond a reasonable that that the perpetrator was the Appellant.

III.   CONCLUSION

       Accordingly, we respectfully request the Superior Court to affirm our Order of

January 9 and January 22,2014.




cc:    James Baron, Esq.
       Pike County District Attorney's Office
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