J-S50012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

DAVID LEO WRIGHT

                            Appellant                 No. 1993 MDA 2015


              Appeal from the Judgment of Sentence June 29, 2015
         in the Court of Common Pleas of York County Criminal Division
                       at No(s): CP-67-CR-0005644-2014

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 22, 2016

        Appellant, David Leo Wright, appeals from the judgment of sentence

entered in the York County Court of Common Pleas, after he was convicted

of burglary,1 theft by unlawful taking,2 receiving stolen property,3 criminal

trespass,4 and two counts of criminal conspiracy.5      Appellant contends (1)

the verdict was against the weight of the evidence, (2) the trial court erred

in allowing details of his prior theft to be considered by the jury, and (3) the

trial court’s sentence was manifestly excessive. We affirm.

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3502(a)(2).
2
    18 Pa.C.S. § 3921(a).
3
    18 Pa.C.S. § 3925(a).
4
    18 Pa.C.S. § 3503(a)(1)(ii).
5
    18 Pa.C.S. § 903(a)(1).
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        On    September    29,   2014,   the   Commonwealth     filed   a   Criminal

Information against Appellant charging him with the above crimes.                On

March 26, 2015, the Commonwealth filed a motion to introduce Appellant’s

prior bad acts pursuant to Pa.R.E. 404(b).6 Specifically, the Commonwealth

sought to introduce that Appellant pleaded guilty on December 30, 2014, for

theft by unlawful taking.7         Appellant admitted entering Janet Dalton’s

apartment on the second floor of Dutch Kitchen on May 26, 2014, and

removing money without her permission from a drawer.            Commonwealth’s

Pre-Trial Mot., 3/26/15, at 1 (unpaginated). The Commonwealth sought the

introduction of the evidence “to prove opportunity, a common scheme or

plan, and knowledge.” Id. at 2. On April 23, 2015, the trial court held a

hearing on the Commonwealth’s motion before the Honorable Maria Musti

6
    Pennsylvania Rule of Evidence 404(b) provides:

             (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.

Pa.R.E. 404(b).
7
  Appellant pleaded guilty to this crime at docket number CP-67-CR-
0004104-2014.




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Cook.    At the conclusion of the testimony and argument, the trial court

granted the Commonwealth’s motion concluding, “the evidence does tend to

prove a common scheme or plan, intent, or motive, or may do any of those

at the time of trial.” N.T. Mot. Hr’g., 4/23/15, at 17; see Trial Ct. Order,

5/15/15.8 Specifically, the court found a common scheme that consisted of

entering unoccupied apartments of Appellant’s hallway neighbors without

permission to steal valuables in order to purchase heroin. N.T. Mot. Hr’g. at

17.

        On May 11, 2015, the case proceeded to a two-day jury trial.

Appellant resided in Room 219 of the Dutch Kitchen Apartments. See N.T.

Trial, 5/11/15, at 68. On May 26, 2014, sometime between 9:00 a.m. and

10:00 a.m., Appellant, entered Room 201, which had been left unlocked,

and stole seven dollars from his neighbor Janet Dalton.9      Id. at 78-79.

Rafael Rivera testified that on the morning of May 26, 2014, he visited

Appellant at Dutch Kitchen Apartments. Id. at 31-32. He testified that he

and Appellant were “dope sick” and Appellant instructed him to climb out his

window and into the window of the neighboring apartment belonging to

Alberto Perez. Id. at 32; see id. at 34. Appellant claimed he could not go

onto the roof himself due to a leg injury. Id. at 44. Rivera was unable to

8
 We note the order granting the Commonwealth’s motion was dated April
23, 2015.
9
 CP-67-CR-0004101-2014. Appellant pleaded guilty to this separate crime
on December 30, 2014.



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open the neighbor’s window, so he returned to Appellant’s room. Id. at 35-

36. Appellant instructed him to place tape over the lens of the surveillance

camera in the hallway and to wait by the elevator. Id. Rivera testified that

he heard “banging, and moments later [Appellant] came out with the TV.”

Id. at 38. Appellant passed Perez’s television to Rivera who carried it out of

the building.   Id. at 38.    Rivera later sold the television, sharing the

proceeds with Appellant in order to buy heroin. Id. at 37-38.

     Hector Vasquez, the building maintenance man, testified that he

responded to an emergency call to Room 220 on May 26, 2014. Id. at 48.

Upon arrival, Vasquez saw the door had been left partially open, the frame

of the door was broken, and “the whole inside jam was all pushed out”

despite the dead bolt and bottom lock remaining in the lock position. Id. at

49. Vasquez immediately called police, and when they arrived, he entered

the room and saw that the flat-screen television, which Vasquez had

previously helped Perez to program, was missing.      Id. at 49-51.    Officer

Fogelman of the York City Police Department similarly testified as to the

state of the doorway after arriving on scene. Id. at 57-59. Alberto Perez

testified that no one had permission to enter his apartment that day and

that “they broke the door.” Id. at 62.

     At trial, the Commonwealth admitted into evidence the surveillance

video obtained from the scene.        Id. at 71.     Building manager Gail

Stambaugh testified that Appellant can be seen in surveillance footage



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earlier that day with his ear to his neighbor’s door. Id. at 69-70. She also

testified that the time-stamp on the video was about twenty-nine minutes

slow. Id. at 74.

      Detective Fetrow of the York City Police Department reviewed building

surveillance video.   Id. at 80-81.   He testified that Appellant and Rivera

were in the hallway prior to the lens being covered, and minutes later

footage showed Rivera walking outside the building with a large white bag

resembling the shape of a television.       Id. at 82.   The obstruction to the

hallway camera was removed eight seconds prior to the footage of Rivera

walking out with the white bag. Id. at 84-86.

      Detective Fetrow further testified that he investigated the timing of the

building’s elevator, which is the sole means of going between floors in that

part of the building. Id. at 84-85. He found that it takes more than thirty

seconds to go from the second to the first floor. Id. When Detective Fetrow

interviewed Appellant, Appellant provided conflicting information and an

inconsistent account of the day’s events. Id. at 85-86. He initially denied

stealing from Ms. Dalton, and later admitted to it. Id.

      Prior to Appellant’s testimony, the parties stipulated to Appellant’s

convictions in 2003 for robbery and in 2014 for theft by unlawful taking as

evidence of his crimen falsi. Id. at 92. As the only witness for the defense,

Appellant testified that he met up with Rivera who was seeking heroin. Id.

at 93-95.   He admitted to having been on heroin himself that day, but



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claimed no involvement in any of the events surrounding Room 220.            Id.

Regarding his conflicting stories during the police investigation, Appellant

testified that he played “cat and mouse” with Detective Fetrow. Id. at 100.

       At the conclusion of testimony, Judge Eby instructed the jury

concerning Appellant’s past convictions.        Id. at 137, 141.   Despite Judge

Cook’s pre-trial determination that the evidence was admissible under

Pa.R.E. 404(b) as evidence of a common scheme, Judge Eby issued the

following instructions to the jury:

             You must not infer from th[e] evidence of any prior
         conviction that the Defendant is, therefore, automatically
         guilty in this case. The evidence may be considered by
         you for one purpose only, and that is to help you
         judge the credibility and weight of the testimony
         given by the Defendant as a witness in this trial. In
         considering the evidence of the Defendant, you may
         consider the type of the crime that was committed, how
         long ago it was committed, and how it may affect the
         likelihood that the Defendant testified truthfully in this
         case.

Id. at 137 (emphasis added).

       Counsel for the Commonwealth immediately approached the bench

after the instructions were given and had the following exchange with Judge

Eby.

         Attorney Bowser: The prior conviction for the theft by
         unlawful taking, breaking into Janet’s room earlier in the
         morning can come in as substantive evidence and not just
         whether or not --

                                      *    *    *




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        The Trial Court: . . . fair enough, but I’m not going to go
        there. Anything else?

                                  *     *       *

        Attorney Bowser: So they are not going to get an
        instruction that they can use that evidence?

        The Trial Court: That’s right.          I am going to leave the
        instructions as they are. . . .

                                  *     *       *

        Attorney Bowser: Okay. Cause I mean we had a full
        hearing on it. . . . [W]e had a full hearing on that issue,
        and then that testimony was allowed to come in, and
        that’s --

        The Trial Court: The testimony came in.

        Attorney Bowser: Right, but now they have just been told
        that they can’t consider that for anything other than his
        truthfulness.

        The Trial Court: His credibility. . .

        Attorney Bowser: But not whether or not it was part of a
        common scheme.

        The Trial Court: . . . that’s where I’m at.

Id. at 141-42.

     On May 12, 2015, the jury found Appellant guilty on all counts.       On

June 29, 2015, the court sentenced Appellant to an aggregate term of three

and one-half to seven years’ imprisonment. On July 8, 2015, Appellant filed

a post-sentence motion challenging, inter alia, the weight of the evidence,

the sentence, and the admission of his past crimes as evidence at trial.

Post-Sentence Mot., 7/8/15, at 3-6 (unpaginated).         On October 15, 2015,


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the court denied Appellant’s post-sentence motion.     Regarding Appellant’s

claim that the verdict was against the weight of the evidence, the court

reasoned,

         [t]he Commonwealth buttressed the testimony of Rafael
         Rivera with objective, corroborating evidence, including
         videotape depicting [Appellant] leaning in to listen to the
         doorway of the victim’s apartment prior to the break-in
         and the testimony of Detective Fetrow who established
         that Rivera could not have acted alone removing the
         television set from the apartment building while
         simultaneously removing the piece of tape from the
         surveillance camera. . . . Given the substantial, credible
         evidence presented at trial establishing [Appellant’s]
         complicity in the burglary and other offences committed
         against Alberto Perez, we do not find that the Defendant’s
         claim that the verdicts were against the weight of the
         evidence compels post-sentence relief.

Trial Ct. Op. at 10.

       Appellant timely appealed on November 13, 2015. The court did not

order a Concise Statement of Errors pursuant to Pa.R.A.P. 1925(b), but

Appellant filed one.   The court issued a response pursuant to Pa.R.A.P.

1925(a) that referred to the trial court’s opinion from October 9, 2015.

      On appeal, Appellant raises three issues:

         I. Whether the verdict of guilty was against the weight of
         the evidence given Rafael Rivera’s conflicting statements
         and disregard of Appellant’s testimony?

         II. Whether the court erred in allowing specifics of
         Appellant’s prior theft to be considered by the jury?

         III. Whether the sentence imposed was manifestly
         excessive given the mitigating circumstances provided to
         the court at sentencing?



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Appellant’s Brief at 5.

      First, Appellant argues the verdict was against the weight of the

evidence because Rafael Rivera gave inconsistent testimony, which served

as the crux of the Commonwealth’s case against Appellant.10 Id. at 10-12.

Additionally, he argues Gail Stambaugh testified that the time stamp on the

surveillance footage was off, which means evidence of the crime’s timing

could not be relied upon exclusively. Id. at 12. We conclude Appellant is

not entitled to relief.

      In reviewing a claim that a verdict was against the weight of the

evidence, our standard is well-settled:

          The finder of fact is the exclusive judge of the weight of
          the evidence as the fact finder is free to believe all, part,
          or none of the evidence presented and determines the
          credibility of the witnesses.

          As an appellate court, we cannot substitute our judgment
          for that of the finder of fact. Therefore, we will reverse a
          jury’s verdict and grant a new trial only where the verdict
          is so contrary to the evidence as to shock one’s sense of
          justice. A verdict is said to be contrary to the evidence
          such that it shocks one’s sense of justice when “the figure
          of Justice totters on her pedestal,” or when “the jury’s
          verdict, at the time of its rendition, causes the trial judge
          to lose his breath, temporarily, and causes him to almost


10
    Appellant specifically argues that Rivera’s testimony is inconsistent
because Rivera testified that Appellant broke in the door.        Appellant
contends that “evidence” of his leg injury proves this scenario is “very
unlikely.” Appellant’s Brief at 11. Rivera, however, never claimed in his
testimony that Appellant kicked the door. Moreover, the only evidence in
the record of Appellant’s leg injury are his own claims to witnesses Rafael
Rivera and Detective Fetrow. See N.T. Trial at 44, 90.



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         fall from the bench, then it is truly shocking to the judicial
         conscience.”

         Furthermore,

            where the trial court has ruled on the weight claim
            below, an appellate court’s role is 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. Foley, 38 A.3d 882, 891 (Pa. Super. 2012) (citation

and footnote omitted).

      Instantly, we conclude the trial court did not abuse its discretion when

it denied Appellant’s weight claim. See id. at 891. Contrary to Appellant’s

claim, the trial court concluded the Commonwealth did not rely on any single

testimony or piece of evidence exclusively to present its case against

Appellant. See Trial Ct. Op. at 10. Rather, the Commonwealth presented a

number of witnesses and video and photographic evidence, which combined,

served to incriminate him. See id. Therefore, we conclude the trial court

properly ruled the verdict did not shock one’s sense of justice and denied

Appellant’s post-sentence motion challenging weight. See Foley, 38 A.3d at

891; Trial Ct. Op., 10/9/15, at 9-10.




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      Next, Appellant claims that the trial court erred in admitting evidence

of his prior theft conviction to the jury.11 Appellant’s Brief at 7. Appellant

argues that the facts underlying his previous theft conviction bore minimal

resemblance to the instant case, and the admission of this evidence “for a

substantive purpose unfairly prejudiced” him. Id. at 13.

      When reviewing the admissibility of evidence, we use the abuse of

discretion standard.    See Commonwealth v. Phillips, 700 A.2d 1281,

1284 (Pa. Super. 1997).      It is well-settled that a mere error of judgment

does not constitute an abuse of discretion. Commonwealth v. Tyson, 119

A.3d 353, 357-58 (Pa. Super. 2015). Rather, the court’s judgment must be

“manifestly unreasonable or the result of bias, prejudice, ill will or partiality.”

Id. Moreover, “[t]he law presumes that the jury will follow the instructions

of the court.”   See Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa.

2011) (citations omitted).

      We find that the record does not support Appellant’s claim.         Despite

the pre-trial hearing on the admissibility of the evidence under Pa.R.E

404(b), the trial court did not admit the prior theft conviction as evidence of

a common scheme pursuant to Rule 404(b). N.T. Trial at 137. The parties

stipulated at trial to the admissibility of the prior theft conviction as it

concerned Appellant’s crimen falsi.       Id. at 92.    Instead, the trial court

11
  While two prior convictions were stipulated to at trial, Appellant in his brief
only addresses his conviction for stealing from Janet Dalton. CP-67-CR-
0004101-2014.



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explicitly instructed the jury to consider the evidence only as it relates to

Appellant’s credibility. Id. at 137; see id. at 142. We therefore presume

the jury considered the conviction in accordance with the trial court’s

instruction. See Chmiel, 30 A.3d at 1184. Thus, this issue fails.

        Finally, Appellant contends that his sentence was manifestly excessive.

In determining our jurisdiction over such an appeal,

          [w]e conduct a four-part analysis to determine: (1)
          whether appellant has filed a timely notice of appeal; (2)
          whether the issue was properly preserved at sentencing or
          in a motion to reconsider and modify sentence; (3)
          whether appellant's brief has a fatal defect, Pa.R.A.P.
          2119(f); and (4) whether there is a substantial question
          that the sentence appealed from is not appropriate under
          the Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (some

citations omitted).

        Regarding the requirements for Appellant’s brief, this Court has stated

that,

          [w]ith respect to such challenges, the Pennsylvania Rules
          of Appellate Procedure require that:

             An appellant who challenges the discretionary
             aspects of a sentence in a criminal matter shall set
             forth in his brief a concise statement of the reasons
             relied upon for allowance of appeal with respect to
             the discretionary aspects of a sentence.          The
             statement shall immediately precede the argument
             on the merits with respect to the discretionary
             aspects of sentence.

          Pa.R.A.P. 2119(f) (emphasis added).




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        . . . A failure to include the Rule 2119(f) statement does
        not automatically waive an appellant's argument; however,
        we are precluded from reaching the merits of the claim
        when the Commonwealth lodges an objection to the
        omission of the statement.

Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006).

     Instantly, Appellant filed a timely notice of appeal, and he preserved

his claim in his post sentence motion. See Post-Sentence Mot., 7/8/15, at

3-4. Appellant, however, has failed to include a Rule 2119(f) statement in

his brief and the Commonwealth objected.      Commonwealth’s Brief at 27;

see Love, 896 A.2d at 1287; Appellee’s Brief at 29-30.      Appellant’s brief

thus contains a fatal defect, and therefore his claim is waived. See Moury,

992 A.2d at 170. For these reasons, we affirm Appellant’s conviction.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/22/2016




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