J-S28025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

MONTGOMERY TIBURCIO,

                         Appellant                 No. 1619 MDA 2014


     Appeal from the Judgment of Sentence entered August 26, 2014,
              in the Court of Common Pleas of Berks County,
          Criminal Division, at No(s): CP-06-CR-0000713-2014


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED MAY 15, 2015

      Montgomery Tiburcio (“Appellant”) appeals from the judgment of

sentence imposed after a jury convicted him of hindering apprehension or

prosecution of another person. 18 Pa.C.S.A. § 5105(a)(5).

      The facts adduced at trial are as follows: West Reading Police Officer

Marc Oxenford testified that during the early morning hours of January 10,

2014, he received a radio call to stop a white Dodge van. N.T., 8/25/14, at

40-41.   Appellant was the driver of the van, and a single male passenger

was seated in the second row of the van behind Appellant.     Id. at 43-44.

Officer Oxenford apprehended the passenger on an arrest warrant.      Id. at

52. Officer Oxenford testified:

      [Another officer] had informed [Appellant] that we knew that the
      backseat passenger had a warrant for his arrest, that it was his
      brother, and he kept saying that it wasn’t his brother and that
      his name was “Sanny Dominguez”.
J-S28025-15



Id. at 56.

      Wyomissing Police Officer William Roecher testified to receiving a

dispatch call and responding to the scene where Officer Oxenford had

stopped the Dodge van. Officer Roecher asked Appellant, as the driver, for

his license, registration and proof of insurance, which all “came back clean.”

Id. at 63. However, “when it was determined that [the passenger] had a

warrant, an active warrant, both individuals were removed from the van.”

Id. at 68.

      Wyomissing Police Officer Peter Purcell testified that he responded “as

a back up” to Officers Roecher and Oxenford. Id. at 72.        The passenger

told Officer Purcell that he was “Sanny Dominguez”. Id. at 74. Appellant

also told Officer Purcell that the passenger was “Sanny Dominguez”.       Id.

Appellant said that he and the passenger “were no relation to each other”

and that Appellant’s brother “was in jail”. Id. at 75.

      Reading Police Investigator Joseph Snell testified to interviewing

Appellant and giving him Miranda warnings, which Appellant waived. Id. at

83, 99-101.    Both counsel stipulated that Appellant admitted during the

interview to knowing that his brother had been charged with “conduct that

would constitute a felony” and was wanted by the Reading Police

Department. Id. at 95, 114. Investigator Snell testified that Appellant “said

he was not planning on turning [his passenger/brother] in that night. … He

said his brother was planning to turn himself in at 10 – January 10, 2014 at




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J-S28025-15



some point.”     Id. at 101-102.     Investigator Snell further testified that

Appellant “told me his brother gave his real name.” Id. at 110.

      After hearing the above evidence, the jury found Appellant guilty of

hindering apprehension or prosecution of another person.         On August 26,

2014, the trial court sentenced Appellant to 16 months to 7 years of

incarceration.

      Appellant filed timely post-sentence motions, which the trial court

denied.   Appellant filed a notice of appeal on September 25, 2014.           On

September 30, 2014, the trial court directed Appellant to file a Pa.R.A.P.

1925(b) concise statement of matters complained of on appeal, which

Appellant filed on October 14, 2014.        The trial Court filed a Pa.R.A.P.

1925(a) opinion on November 6, 2014.

      Appellant presents three issues for our review:

      [1.] Whether the trial court abused its discretion in denying
      Appellant’s request for a mistrial when two police officers
      testified regarding the criminal offense for which [Appellant’s
      brother] was wanted in violation of the trial court’s pretrial ruling
      granting Appellant’s Motion in Limine and excluding this evidence
      from trial.

      [2.] Whether the evidence was insufficient to support the guilty
      verdict for Hindering Apprehension or Prosecution (F3), where
      the Commonwealth failed to prove beyond a reasonable doubt
      that Appellant provided false information to law enforcement or
      that the Appellant intended to hinder the apprehension of [his
      brother] on an arrest warrant.

      [3.] Whether the verdict of guilty for the crime of Hindering
      Apprehension or Prosecution (F3) is contrary to the weight of the
      evidence presented at trial in that [Appellant’s brother] had been
      arrested and placed in police custody prior to [Appellant]
      providing any false information to law enforcement thereby

                                      -3-
J-S28025-15


      making it impossible for Appellant to hinder the apprehension of
      a wanted person.

Appellant’s Brief at 5 (footnote omitted).

      Appellant was convicted under the section of the Crimes Code which

provides:

      A person commits an offense if, with intent to hinder the
      apprehension, prosecution, conviction or punishment of another
      for crime or violation of the terms of probation, parole,
      intermediate    punishment    or    Accelerated  Rehabilitative
      Disposition, he … provides false information to a law
      enforcement officer.

18 Pa.C.S.A. § 5105(a)(5).

      Upon review of the record – particularly the notes of testimony from

the jury trial – we conclude that the trial court has capably addressed

Appellant’s appellate issues in its November 6, 2014 opinion. Because the

trial court has succinctly but properly addressed the arguments Appellant

raises in his appellate brief, further discussion by this Court would be

redundant.    Accordingly, we adopt the trial court’s November 6, 2014

opinion in disposing of this appeal and affirming Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.




                                     -4-
J-S28025-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2015




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                COt\lliI01'1,\EALTH OF                                  IN THE COURT OF CO~LvION PLEAS
                  PE01');SYL \ .i..i"'\fJ.A.                            OF BERKS         couurv,         PE..~NS\ LV ~"-11.A

                                v.                                      CRIMINAL DfVISION

             ~10~lGOl\1ER Y TIBURCIO                                         713-2014
                                                                        l',;o.
                     Defendant                                          KELLER. Judge
                                                                                    9.)l)_.
                   MK'HORA:\DUM OPlNlON. S.D. Keller. J .. ="ovember 61 2014

                                              PROCEDURAL HISTORY

           After trial held on ALIgust 25. lU 1-4, and August 26. 2014. the: Jury found the Defendant

    gt::ilt) of the sole count tn the Information, Hindering Apprehension or Prosecution.'                           The Court

sentenced Defendant on August 26. 20! 4, ro serve no less than sixteen ( 16) months to no more

    than seven 1)) years with a credit for rwo hundred and twenty nine I 229) days of time served.

On August 2-. 2•)14, Defendant, through counsel, filed POST-SENTE1'CE NfOTIONS, which

the Court denied on September ~- 2014. Defendant was represented at trial and sentencing by

Brie Halfond, Esquire, and Amy Shaffer. Esquire.

           Defendant. through Anorney Shaffer, filed a Notice of. \ppeal on September 25, 20 l-l,

The Court ordered the Defendant on September JO, ~014. to file a Concise Statement of the

Errors Complained of on Appeal, pursuant to Pennsylvania Rule of Appellate Procedure l925(b).

which appellate counsel filed on October 14, .2014. The following errors are complained of on

appeal:

                   I.    The trial court abused us discretion in denying Defendant's request for :1 mistnal
                         when two police officers tesufied regarding the criminal offense ror which Tommy
                         Tiburcio was wanted         in   violanon ct the trial court's pretrial rulmg granting
                          Appellant's motion m limme and excluding this evidence from trial

                   '        The evidence was msufficienr to support the guilty verdict tor Hmder[SIC)
                          -Apprehension or Prf)Secution (F, J where the ( ommonwealth failed to prove
                        :::,b-.cyoau
                                ' 1 1 a.,-reasona
                                             mH blve '..l
                                                      1..0U bt t h 3L Appe
                                                                      A    11 ant provi d e d ta• 1 se m
                                                                                                       · 1·orrnanon
                                                                                                                 · lo l aw


                                            ..• 1J
I
    l:~PA CO'lS STAr.   s S105(a)(5).
                                                                                         Circulated 04/17/2015 01:00 PM




                          enforcement or that he intended to hinder the apprehension of Tommy Tiburcio on
                          an arrest warrant.

                         The verdict of guilty for the crime ot Hindering Apprehension or Prosecution rf3) l:
                         contrary to the weight vf the evidence presented ar mat :n chat Torr-my 1 burcio bnd
                         been arrested and placed in pohce custody prior to Defendant providing any false
                          mforrnanon to law enforcement thereby making it impossible for Appellant to
                          hinder the apprehension of a wanted person.

                                                DISCUSSION

                                                    Mistrial

         In i:us first alleged error. Defendant asserts that the Court erred      tn   denying a motion for

 mistrial made after police officers testified at trial about information that the Court had

 prevrously ruled inadmissible.

         Prior   Lo   trial. both parties tiled motions m Iirnine. In DEFENl) I\.NT'~ MOTIOi\ ft\/

 L!M!NETO FXCI.UDE EVIDI;NCE REGARDIXG ro:-.1:vr'i TlBlTRCl(YS PRIOR

 CHARGED l .. Rllv1I:S A~D DEFENDA .. NT:::i POTEl'{TL.\L IN\ OLEMENT WITH fHOSE

 PRIOR CHARGED CRIMES, filed on August 18. 2014, Defendant                     requested that the Court

exclude evidence that his brother, Tommy Tiburcio. was wanted on January                  10, 2014, for

attempted criminal homicide. Defendant further challenged the inrroducuon of evidence that he

was charged as a co-defendant for the events which led to his brother's attempted criminal

homicide charges.' Defendant argued that the probative value of this e\ nlence was clearly

outweighed by the unfair prejudice. Defendant also filed a motion on August 19. 2014. in

opposition to the Commonwealth's motions in lirnmc. In that filing. Defendant                added that he

was willing to stipulate that he knew lus brother was wanted for a first or second degree felony:

thus. Defendant argued that the Commonwealth had a less prejudicial avenue to establish his

know ledge. A discussion was held to address the mouons in lirnme prior to Jury selection.

~ The Commonwealth filed a corresponding morion in limine on August 1 !J, 1014, seeking perrmssron to introduce
                                                                         'm
evidence of'Defendanr's prior conviction to demonstrate his knowledge that    brother was vanted for 1serious
felony ,10 January 10, 20 ,4.
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 tNotes of Iestimony, hereinafter N.T. S/25 & 26/14. at 4-6.) At the conclusion of that

 discussion. the Court denied the Commonwealth's motion                    Lo   introduce evidence of Defendant's

 pnor conviction as prejudicial and curnulauve in Light of the Defendant's proposed stipulauon.

 t>T.1 .. 8125     & 26114. a, J-5J.

              Sergeant Roecher and Officer Purcell both testified that Tommy Tiburcio was wanted for

 attempted murder tN. T. 8 2:i & 26114. al 65. 75)                  Following each instance, the defense

 requested 3 mistrial. which the Court denied               However, the Court instructed the JU[)' to not

 consider the nature of those charges but only due there was an arrest warrant for Tommy

 Tiburcio. (NT,         S 25 & 26/14, at 66. -:7)_

              ''A mistrial is an "extreme remedy .. [that]., .rnust be granted only when an mcident ts of

 such   .J   nature that its unavoidable effect is to deprive defendant of a fair trial. ··· Commonw ealth

 v. Bracey, 831 •.\. . .2d 618. 682 (Pa. Super. 2003) (quoting Commonweahh v, Snllev, 689 A.2d

2-4.\ 15() (Pa. Super 1997)). "The trial court is in the best position to assess the effect of an

allegedly prejudicial statement on the Jury, and as such, the: grant or dental of a mistrial will not

be overturned absent an abuse of discretion ... Likewise, a mistrial is not necessary               where

cautionarv instructions       are adequate to overcome any possible prejudice."             Commonwealth ,.

Simpson, 754 A 2d 126~, 1272 1Pa. 2000) (internal citations omitted). "[Jluries are presumed to

follow the instructions of a trial court      11..1   disregard inadmissible evidence."     Simpson, 754 A.2d at

1272.

             1 he testimonial reference by the police officers to the nature o t' the arrest w arrant for

Tommy Tiburcio was not sufficiently prejudicial to warrant the extreme remedy of a mistrial.

Defendant stipulated that he knew his brother              \VJ~   wanted for a serious felony. The incurable

prejudice would have come from the jury learning thar Defendant himself was charged in



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  connection with the attempted murder case, which did not occur              Given the nature and

  circumstances. the Court believes that the curative instrucuon        WdS   sufficient to umeliorate any

  prejudice caused by the pohce officers' testimony.          l'he jury was instructed to disregard the

  nature of the charges and we must presume that they followed these instructions. Therefore. the:

  Court docs not believe that it abused its discretion m denying Defendant's mouon for a mistrial.

  c1J1d Defendant's   alleged error one ( 1) is rneritless,

                                         Sufficiency of the Evidence

            In alleged error two ("2). Defendant argues chat the evidence presented at trial was

 insufficient ro support the fUilr:• verdict The Superior Court's review of a challenge to the

 sufficiency 0f the evidence is well settled, A<:: the Superior Court of Pennsylv ania exp lamed

            When reviewing a challenge to the sufficiency of the evidence, [the Superior Court] must
            deterrmne "whether. viewing all the evidence adrnntcd at trial, together with all
            reasonable inferences therefrom, in the light most favorable to the Commonwealth, the
            trier of fact could have found that each element of the offense] l charged was supported
            by evidence and inferences sufficient in Jaw to prove guilt beyond a reasonable doubt."

 Commonwealth v Salter 858 A.2d 610, 613 (Pa Super. 2004) (quoting Commonwealth.                     11•



Jackson, 4S5 A.2d l 102. 1103 (P.1. 1934) 1 "Any doubt about the defendant's guilt ts to be

 resolved by the fact tinder unless the evidence is so weak and inconclusive          that, as a matter of

 !3\Y, no   probability of fact can be drawn from the combined circumstances."          Commonwealth ,.

Stavs. 40 A 3d 160. 167 (Pa. Super 201 ~) (citing Commonwealth v. Di'Stefano, 782 A.2J 57-l,

5S2 (Pa. Super. ~OOl l).

        Specifically, Defendant argues that the evidence presented at trial was insufficient,

because the Commonwealth failed to prove that he provided false information to law

enforcement or that he did so with the mtent to lundcr his brother's apprehension.

        "A person commits an offense 1C with intent to hinder the apprehension [or]

prosecution .. of another. .. , he provides false information to a law enforcement of ficer." LS PA
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 CoM Sr:,.1 § 5105(alt5).          The offense is a third-degree felony if the person knows that the

 conduct charged would constitute a felony of the first or second degree. ~ 5105tb J.

           Al trial, Officer Oxenford testified that on January 10, 2014, he stopped a minivan

 marching a vehicle description from        ~i   radio call. lN T, 8 '25 & 26/1 ~. at 40-41 ). Officer

 Oxenford further tesrified that Defendant was located in the driver's seat and a mile passenger

 was sitting   1:1   the middle row of seats. (N. T , S/25 & 26/14. at 42-44 l. Officer Oxen ford spoke

 with the male passenger and asked tum to write down his idenufying mformution on a piece of

 paper. (:N.T.. S/25 & 26'l.. .!. at ..14-i..-) The passenger wrote "Sanny Dominique, 4 20:'S:."

 (N.T. 8115 S: 26 14. at 44--i5: Commonwealth Exhibit 2). Arter being unable to confirm that

ideaury, Officer Oxenford re-approached the vehicle to verify the spell mg of the name provided.

(N.T. 8/25 ~ 261i4, a~ 56-5...,).      Defendant confirmed that the name "Sanny" was spelled

correctly, (N, I., S/'25 & 26114, .Jt 5"7) The police later learned that the male passenger was. in

fact. Tommy Tiburcio. who had an active warrant for his arrest, (');. T , 8/25 & 26/14. at 64-b5 ).

Defendant stipulated that he: knew Tomrnv Tiburcio had been charged whh and v. as wanted for

conduct wluch would constitute a felony of the firsl or second degree. (N.T .. 3125            &   26, 14. at

11..1),

          This testimony, if behcved. was sufficient evidence to support guilt beyond a reasonable

doubt on all elements of the offense. Defendant. knowing that his brother was wanted for

conduct whicb would constitute a serious felony, confirmed the spelling of a false idenuty to a

police officer. Defendant's actions and the reasonable inferences that could be drawn therefrom

are sufficient t1.1 establish the requisite intent. Any doubt about the Defendant s actions or his

intent was resolved by the fact-finder; therefore. the Court believes that Defendant's second

alleged error has no meri t.



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                                         Weight of the Evidence

          Initially, the Court notes that the Defendant properly raised his contention that the gutty

verdict   WJS   against the weight of the ev idcnce   in   his post-sentence motion. See Pennsylvania

Rule of Criminal Procedure 607( A.)(31. Because- the Court denied the Defendant' s post-sentence

motion, the appellate court will review ilie trial court's dernal for an abuse of drscreuon.

Commonwealth v. lvlcC!('ske_'I!. 835 A.2d 301, 'S09 (Pa. Super 2003).

          "The weight of the evidence is exclusively for the finder of fact who is free to believe all,

part, or none of the ev idence and to determine the credibility of the witnesses."           lvfcCloske.i. 83~

A.2d at 809 (quonng Conunonweclth .-. Champnev, f 32 A.2d ,103, 408 (Pa. 2003 ))- A verdict is

contrary to the weight of the evidence where rt "is so contrary to the evidence as to shock one's

sense of jusnce." Cammonwealth \-'. B;;1111ett, 827 A . .2d 4b9. 45     J   (Pa Super. 20113) (citing

Camn-onwealtl: v Bro» n. 64S A.2d 11 ""7. 1189 (Pa. 1994) ).

          When the Court denied the Defendant's post-sentence motion which challenged the

weight of the evidence, the Court deterrnmed that the guilty verdict \.\ as not        50   contrary ro the

evidence as to shock one's sense of justice, and the Defendant will not be able to demonstrate

that this determination was un abuse of discretion.

          In challenging th(' weight of the ~, idcnce, Defendant argues that the testimony

demonstrated that Tommy Tiburcio was already in custody before he provided am false

information to Jaw enforcement. The Court disagrees with this assessment of the trial testimony,

       1 he Court:               Both instances - - both instances when you spoke with the
                                 defendant?

       Ofrrer Oxenford:          When I spoke to him, 1 approached the vehicle initially with
                                 Sergeant Roecher arid asked him for his intormauon, the backseat
                                 passenger And that · s when ht wrote down his information on m v
                                 notepad.   r went back    and gave the information to Sergeant Roechcr
                                 so he could run ir and Sergeant Roecher said he didn 't get the

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                                                     name back on   information, to go
                                                                                    ~ back and verify. that was indeed
                                                     the correct mformation

                                                     So, I re-approached the vehicle, asked hIBI if that was the correct
                                                     information, that's when he told me n was the spelling, Sanny, S-a-
                                                     n-n-y, and then I went back 10 - -

         The Court'                                 That was when the defendant said what was written down         \',·J:::   the-
                                                    correct spelling - -

         Officer Oxenford,                          Correc ~

         The Court:                                 - -of the first name?

         Officer Oxenford                           Correct .

                                                    . \II nght. S,), Tamm)' T tburcio was not in custody at that time!

         Officer Oxenford:                          Correct.

(N.T. s:25 & ]6/14, at 56-57). After hearing this testimony, the jury was free co believe that

Defendant confirmed his brother's false identity before he                        W35   taken into custody.   When

considenng all of the evidence presented, the verdict was not so contrary to weight of the

evidence as to shock one's sense of'justicc.                        Therefore, the Jury's verdict should stand and

Defendant s alleged error three (3) has no merit

        for all of the foregoing reasons, we respectfully request that Defendant's appeal be

D£:'.'11ED.

                                                                    DYT




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