J-S08001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL ANTHONY LAPAGLIA

                            Appellant                 No. 104 WDA 2016


       Appeal from the Judgment of Sentence dated September 21, 2015
               In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0010922-2014

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                              FILED APRIL 13, 2017

        Appellant, Michael Anthony Lapaglia, appeals from the judgment of

sentence of life imprisonment without parole imposed after a jury convicted

him of murder of the first degree, robbery – inflict serious bodily injury, and

burglary of a structure adapted for overnight accommodation while a person

is present.1 We affirm.

        Every Labor Day weekend, the Victim, Jack Parkes, and his fiancée,

Carol Lapaglia, held a party at their home in Kennedy Township, Allegheny

County, and invited all of their relatives, including Appellant, who is Ms.

Lapaglia’s nephew.       N.T. Trial, 6/9/15, at 154-55; N.T. Trial, 6/10/15, at

264-67; Trial Ct. Op., 8/2/16, at 4. At the party held in September 2013,

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1
    18 Pa.C.S. §§ 2502(a), 3701(a)(1)(i), and 3502(a)(1), respectively.
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numerous pieces of jewelry were taken from their home, and they

immediately suspected Appellant, who had been seen in their bedroom

during the party.    Ms. Lapaglia called her sister-in-law and Appellant’s

mother, Marie Lapaglia (“Mother”), and told her about the theft, and Mother

answered that Appellant had also stolen jewelry from her.          None of Ms.

Lapaglia’s jewelry was ever recovered, and Appellant was never arrested or

charged with the theft.

      After Appellant graduated from high school, he enrolled in the military

but was dishonorably discharged after being found in possession of synthetic

marijuana.    Trial Ct. Op., 8/2/16, at 4.      The trial court then reports the

following events prior to the crime at issue:

         Following his discharge, [Appellant] maintained that he
         suffered from post-traumatic stress disorder and he began
         to self-medicate and to experiment with other drugs to the
         point that he became addicted to heroin. On June 7, 2014,
         [Appellant] obtained employment as a teller for Dollar
         Bank and following his training, was given an office where
         he was to work. During an unannounced audit, it was
         determined that on July 1, 2014, [Appellant]’s cash drawer
         was short by nine hundred twenty-five dollars. A second
         audit was done on July 9, 2014, and it was determined
         that his cash drawer was short by eighteen hundred
         dollars. In light of the two unexplained shortages in such
         a very short period of time, a decision was made to
         terminate [Appellant] from his job.

Id.; see also N.T. Trial, 6/10/15, 218-22.

      On July 21, 2014, Ms. Lapaglia went to work at approximately 5:40

A.M., leaving the Victim at home alone.      N.T. Trial, 6/9/15, at 92, 95-97,

109. Ms. Lapaglia left work at approximately 2:30 P.M. and arrived home

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about a half-hour later. When she entered her home, she saw the Victim

lying on the floor between a coffee table and a couch, with a single gunshot

wound to the head, and she called 911. Id. at 100-01; N.T. Trial, 6/10/15,

at 338, 340. The Victim was pronounced dead at the scene. The next day,

Ms. Lapaglia discovered that jewelry had been taken from her house. N.T.

Trial, 6/9/15, at 107-08, 110-11, 117-18, 177.

      On the same day as the murder, a white male and a white female

entered a pawn shop known as Cash for Collectibles owned by Theodore

Hazlett; they were carrying a large amount of gold jewelry in a pouch and

seeking to sell it. N.T. Trial, 6/9/15, at 163-71; Trial Ct. Op., 8/2/16, at 6.

Mr. Hazlett told the couple that he did not have enough money with him that

day to buy all of the jewelry and asked them to return the next day at 11:00

A.M., but they did not.    Shortly after the pair left, Mr. Hazlett called the

Sharpsburg Police Department and told the chief of police that he thought

someone was trying to sell him stolen jewelry. Mr. Hazlett later identified

Appellant as the male seller. N.T. Trial, 6/9/15, at 168, 171.

      “On August 5, 2014, Appellant was taken into custody by the

Allegheny County Police and advised that he was being charged with the

crime of criminal homicide” in connection with Victim’s death. Trial Ct. Op.,

8/2/16, at 7.   At first, Appellant “maintained that he had no involvement

with the death and knew nothing about that homicide.”            Id.   Then, he

claimed that an individual known as “Big Black Bro” had given him the bag


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full of jewelry to pawn. Id. After police confronted Appellant with records

that showed his cellular telephone “pinging”2 off the cellular tower that was

closest to the Victim’s home at 10:07 A.M. on the day of the homicide,

Appellant told them that he had waited in the car while a drug dealer named

“Stink” burglarized the Victim’s home and that Stink had shot the Victim

when “things did not go well.” Id. at 8.

       Appellant then “asked for a bathroom break and when he came back

from that break, he told the police that he wanted to talk to them.” Trial Ct.

Op., 8/2/16, at 8. Appellant admitted to stealing jewelry from the Victim’s

home but claimed that he shot the Victim in self-defense, after the Victim

had attacked him and put him in a headlock. Id. at 8-9. He added that he

saw the Victim fall to the floor and that he “panicked” and grabbed jewelry

from the house. N.T. Trial, 6/10/15, at 299. He further explained that his

girlfriend had waited in his automobile while he committed the burglary and

that they had then attempted to pawn the jewelry in Sharpsburg. Trial Ct.

Op., 8/2/16, at 8-9. He also disclosed that he gave the firearm to Big Black

Bro in exchange for heroin and $40. N.T. Trial, 6/10/15, at 304-05.




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2
  A “ping” determines “the real time location of [a] cell phone by looking at
the cell signal between the phone and the closest cell tower and finding the
last known address where the cell phone transmitted a signal requesting
service.” Commonwealth v. Rushing, 71 A.3d 939, 946 (Pa. Super.
2013), rev’d on other grounds, 99 A.3d 416 (Pa. 2014).



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        On May 15, 2015, and June 5, 2015, the Commonwealth provided

notice of its intention to present evidence at Appellant’s trial of other crimes,

wrongs, or acts allegedly committed by Appellant, pursuant to Pa. R. Evid.

404(b).3 Specifically, the Commonwealth intended to introduce evidence of

Appellant’s termination from his employment with Dollar Savings Bank and

of the prior theft from the Victim’s home. The Commonwealth alleged that

these prior bad acts established the motive, plan, and opportunity that

Appellant had to commit the crimes for which he would be on trial.          N.T.

Trial, 6/8/15, at 9.


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3
    Rule 404(b) states:

           (b) Crimes, Wrongs or Other Acts.

           (1) Prohibited Uses. Evidence of a crime, wrong, or other
           act is not admissible to prove a person's character in order
           to show that on a particular occasion the person acted in
           accordance with the character.

           (2) Permitted Uses. This evidence may be admissible for
           another purpose, such as proving motive, opportunity,
           intent, preparation, plan, knowledge, identity, absence of
           mistake, or lack of accident. In a criminal case this
           evidence is admissible only if the probative value of the
           evidence outweighs its potential for unfair prejudice.

           (3) Notice in a Criminal Case. In a criminal case the
           prosecutor must provide reasonable notice in advance of
           trial, or during trial if the court excuses pretrial notice on
           good cause shown, of the general nature of any such
           evidence the prosecutor intends to introduce at trial.

Pa. R. Evid. 404(b) (bolding and italics in original).



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      Appellant was tried from June 8 to 11, 2015. In the course of the trial,

over Appellant’s objection, the court admitted as evidence the materials

identified in its Rule 404(b) notice. In a later opinion, the court explained its

decision:

      [Appellant] has suggested that this Court erred in allowing
      evidence of prior bad acts with respect to his termination from
      employment at Dollar Savings Bank and a prior theft from
      Parkes' residence. The Commonwealth presented evidence that
      [Appellant] was employed as a teller by Dollar Savings Bank and
      over a very short period of time had two shortfalls in his cash
      drawer. They also provided the testimony from Carol Lapaglia
      that at a Labor Day party a year prior to [the Victim’s] death,
      that a number of pieces of [the Victim’s] jewelry and her jewelry
      were stolen and that [Appellant] had committed those thefts.
      The Commonwealth filed a motion to produce evidence pursuant
      to Pennsylvania Rule of Evidence 404.b of prior bad acts in order
      to establish the motive, plan and opportunity that [Appellant]
      had to commit the crimes for which he was on trial.             In
      particular, the Commonwealth wanted to show the fact that he
      had been fired from his job at Dollar Savings Bank for theft
      because of his need for money to support his drug habit and that
      he knew that the victim had a considerable amount of jewelry
      and coins which could easily be pawned. . . . The evidence
      presented by the Commonwealth of [Appellant]’s bad acts was
      designed to prove motive, intent and common plan. It was
      offered for the purpose of showing [Appellant]’s need for money
      to support his heroin addiction and the fact that he would
      commit criminal activity to support that addiction. As with all of
      his other claims of error, this claim is also without merit.

Trial Ct. Op., 8/2/16, at 18-19.

      In an opinion issued on August 2, 2016, the trial court set forth the

remaining procedural history of this case, as follows:

            On June 11, 2015, following a jury trial, [Appellant] was
            found guilty of first degree murder, robbery and burglary.
            A presentence report was ordered in aid of sentencing and
            on December 9, 2015, [Appellant] was sentenced to the

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         mandatory sentence of life without the possibility of parole
         for his conviction of first degree murder, and a consecutive
         sentence of ten to twenty years for his conviction of the
         crime of robbery. No further penalty was imposed upon
         him for his conviction of the crime of burglary. [Appellant]
         filed timely post-sentence motions and then filed amended
         post-sentence motions and a hearing on those motions
         was continued several times at [Appellant]'s request. On
         January 8, 2016, a hearing was held on his post-sentence
         motions and those motions were denied on January 12,
         2016.

         [Appellant] filed a timely appeal to the Superior Court and
         he was directed, pursuant to Pennsylvania Rule of
         Appellate Procedure 1925(b), to file a concise statement of
         matters complained of on appeal. [Appellant] compl[ied]
         with that directive[.]

Trial Ct. Op., 8/2/16, at 2. Appellant presents one issue for review:

         Did the [t]rial [c]ourt abuse its discretion in admitting
         evidence of two alleged prior bad acts when the
         Commonwealth was unable to produce any evidence to
         support its contention that the prior bad acts demonstrated
         knowledge, motive, or intent?

Appellant’s Brief at 3.

      “A trial court’s decision regarding an evidentiary ruling is governed by

an abuse of discretion standard.” Commonwealth v. Brown, 52 A.3d 320,

325 (Pa. Super. 2012), appeal denied, 62 A.3d 377 (Pa. 2013).

      Appellant contends that “the trial court abused its discretion in

allowing the Commonwealth to introduce evidence of two alleged prior bad

acts” – Appellant’s “alleged Labor Day weekend theft” from the Victim’s

residence and Appellant’s “termination from Dollar Bank” – “when those

alleged bad acts did not meet a recognized exception.” Appellant’s Brief at


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10.   According to Appellant, “[o]ther than the alleged victim and location,

there is absolutely nothing linking” these events. Id. at 13. Appellant adds

that the evidence of the alleged Labor Day theft and his termination from

the bank relates to events “so factually distinct from the death of [the

Victim] that it cannot be introduced as evidence of motive.” Id. at 13, 15.

      Under Rule 404 —

         Generally, evidence of prior bad acts or unrelated criminal
         activity is inadmissible to show that a defendant acted in
         conformity with those past acts or to show criminal
         propensity. Pa.R.E. 404(b)(1). However, evidence of prior
         bad acts may be admissible when offered to prove some
         other relevant fact, such as motive, opportunity, intent,
         preparation, plan, knowledge, identity, and absence of
         mistake or accident. Pa.R.E. 404(b)(2). In determining
         whether evidence of other prior bad acts is admissible, the
         trial court is obliged to balance the probative value of such
         evidence against its prejudicial impact.

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009), cert.

denied, 559 U.S. 1111 (2010).

      Here, we agree with the trial court that evidence that Appellant had

been fired from his employment at Dollar Savings Bank for theft, N.T. Trial,

6/10/15, 218-22; Trial Ct. Op., 8/2/16, at 4, could, if believed by the fact-

finder, establish a motive that he needed money to support his drug habit.

See Pa. R. Evid. 404(b)(2) (“This evidence [of crimes, wrongs, or other

acts] may be admissible for . . . proving motive”); Sherwood, 982 A.2d at

497; see also Trial Ct. Op., 8/2/16, at 19 (“The evidence presented by the




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Commonwealth of [Appellant]’s bad acts . . . was offered for the purpose of

showing [Appellant]’s need for money to support his heroin addiction”).

      We similarly discern no abuse of discretion in the trial court’s

reasoning that evidence of the jewelry theft on Labor Day 2013 and of Ms.

Lapaglia’s suspicion that Appellant was the culprit, N.T. Trial, 6/9/15, at

154; N.T. Trial, 6/10/15, at 264-67; Trial Ct. Op., 8/2/16, at 4, was

admissible to show that Appellant knew that the Victim and Ms. Lapaglia had

a considerable amount of jewelry in their home. See Pa. R. Evid. 404(b)(2)

(“This evidence [of crimes, wrongs, or other acts] may be admissible for . . .

proving . . . knowledge”); Sherwood, 982 A.2d at 497.

      Additionally, any potential infirmity in the trial court’s evidentiary

ruling as to Appellant’s prior bad acts was harmless. As the Supreme Court

of Pennsylvania has explained:

         In the event of an erroneous admission of evidence, a
         verdict can still be sustained if the error was harmless.
         See Commonwealth v. Wright, 599 Pa. 270, 961 A.2d
         119, 144 (2008). An error is harmless if it could not have
         contributed to the verdict, or stated conversely, an error
         cannot be harmless if there is a reasonable possibility the
         error might have contributed to the conviction. Id. We
         have found harmless error where:

            “(1) the error did not prejudice the defendant or the
            prejudice was de minimis;

            (2) the erroneously admitted evidence was merely
            cumulative of other untainted evidence which was
            substantially similar to the erroneously admitted
            evidence; or




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             (3) the properly admitted and uncontradicted
             evidence of guilt was so overwhelming and the
             prejudicial effect of the error was so insignificant by
             comparison that the error could not have contributed
             to the verdict.”

         Id. (quoting Commonwealth v. Young, 561 Pa. 34, 748
         A.2d 166, 193 (1999) (citation omitted)).        The
         Commonwealth has the burden of proving harmless error
         beyond a reasonable doubt. Id. at 143.

Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015), cert.

denied, 137 S. Ct. 89 (2016).

      Here, the properly admitted evidence was overwhelming.           Appellant

conceded that he drove to the Victim’s home with a firearm. Trial Ct. Op.,

8/2/16, at 8.     Appellant also admitted that the Victim was shot with

Appellant’s firearm — of which Appellant later disposed — and that Appellant

had seen the Victim fall to the floor. N.T. Trial, 6/10/15, at 299, 304-05;

Trial Ct. Op., 8/2/16, at 8-9. Despite claiming to have “panicked,” Appellant

had the wherewithal to procure a large amount of jewelry and other

valuables.   N.T. Trial, 6/10/15, at 299.     On the same day as the murder,

Appellant attempted to pawn the items that had been stolen from the

Victim’s house, in exchange for cash.       N.T. Trial, 6/9/15, at 163-71; N.T.

Trial, 6/10/15, at 299; Trial Ct. Op., 8/2/16, at 6-9.

      Thus, even if the evidence of the Labor Day theft and Appellant’s

termination at the Dollar Bank had been erroneously admitted, the

prejudicial effect of those errors was so insignificant when compared to the

properly admitted evidence that the errors could not have contributed to the

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verdict. See Poplawski, 130 A.3d at 716. Hence, any potential error was

harmless. Id.

      Therefore, based upon our review of the record, the lower court did

not abuse its discretion in allowing the Commonwealth to introduce evidence

of both prior bad acts. Brown, 52 A.3d at 325. Thus, Appellant’s sole issue

is without merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017




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