J-S48026-17

                                   2018 PA Super 22

    COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT
                                                            OF PENNSYLVANIA
                             Appellee

                        v.

    TODD FRANKLIN MCCARTHY

                             Appellant                     No. 345 MDA 2017


        Appeal from the Judgment of Sentence Entered October 21, 2016
                  In the Court of Common Pleas of York County
                Criminal Division at No: CP-67-CR-0002433-2015


BEFORE: OTT, STABILE, and PLATT,* JJ.

CONCURRING         AND       DISSENTING        OPINION    BY   STABILE, J.:   FILED

FEBRUARY 06, 2018

        I respectfully concur in part and dissent in part. Although I fully agree

with the learned Majority that the trial court did not abuse its discretion in

denying Appellant’s Rule 600 motion, I conclude that the evidence of waste

was irrelevant in this case and its introduction and admission into evidence

caused unfair prejudice to Appellant by inflaming the jury.           Accordingly, I

would vacate Appellant’s judgment of sentence and remand this case to the

trial court for a new trial.

        Appellant argues that the trial court abused its discretion in allowing the

Commonwealth to introduce evidence of waste by discussing the condition and

value of the victim’s (his elderly mother) house, while Appellant was in charge


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*   Retired Senior Judge assigned to the Superior Court.
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of her care. Appellant contends that the evidence of waste was not relevant

to establish the underlying charges of theft by unlawful taking, access device

fraud, or forgery. Specifically, Appellant argues that the trial court permitted

the Commonwealth to present evidence that, while the victim was in

Appellant’s care, the value and condition of her house had diminished through

Appellant’s action or inaction.

      It is settled:

      [a]dmission of evidence is within the sound discretion of the trial
      court and will be reversed only upon a showing that the trial court
      clearly abused its discretion. An abuse of discretion is not merely
      an error of judgment, but is rather the overriding or misapplication
      of the law, or the exercise of judgment that is manifestly
      unreasonable, or the result of bias, prejudice, ill-will or partiality,
      as shown by the evidence of record.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (internal

citations omitted). Moreover, an appellant bears a “heavy burden” to show

that the trial court has abused its discretion. Commonwealth v. Christine,

125 A.3d 394, 398 (Pa. 2015).          “[A]n appellate court may affirm a valid

judgment based on any reason appearing as of record, regardless of whether

it is raised by appellee.” Commonwealth v. Moore, 937 A.2d 1062, 1073

(Pa. 2007) (citation omitted).

      Relevance        is   the   threshold   for   admissibility   of     evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008).                      Evidence is

relevant if: (a) it has any tendency to make a fact more or less probable than

it would be without the evidence; and (b) the fact is of consequence in

determining the action. Pa.R.E. 401; Commonwealth v. Drumheller, 808


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A.2d 893, 904 (Pa. 2002). “Evidence that is not relevant is not admissible.”

Pa.R.E. 402. In addition, “[t]he court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403;

see Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa. Super. 2012) (stating

that even when evidence meets the relevance requirements, “such evidence

may still be excluded where its probative value is outweighed by the danger

of unfair prejudice.”).

      However, [e]vidence will not be prohibited merely because it is
      harmful to the defendant. [E]xclusion is limited to evidence so
      prejudicial that it would inflame the jury to make a decision based
      on something other than the legal propositions relevant to the
      case. . . . This Court has stated that it is not required to sanitize
      the trial to eliminate all unpleasant facts from the jury’s
      consideration where those facts are relevant to the issues at
      hand[.]

Kouma, 53 A.3d at 770 (citation omitted); see Pa.R.E. 403 cmt. (defining

“unfair prejudice” as “a tendency to suggest a decision on an improper basis

or to divert the jury’s attention away from its duty of weighing the evidence

impartially.”).

      Instantly,   my     review   of   the   trial   transcript   reveals   that   the

Commonwealth extensively mentioned and referenced the value and condition

of the victim’s house to demonstrate to the jury that Appellant had allowed

the wasting of the victim’s assets. Specifically, the Commonwealth elicited

testimony regarding the dissipation of the victim’s asserts from three

witnesses who indicated that Appellant had allowed the victim’s house to fall

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J-S48026-17



into disrepair. In other words, the Commonwealth emphasized that Appellant

had caused the value of the victim’s house to diminish by failing to maintain

it and pay taxes on it. According to the Commonwealth, this evidence was

relevant and necessary to establish Appellant’s criminal intent with respect to

the charged crimes of theft by unlawful taking, access device fraud, and

forgery.

      At the start of trial, during the Commonwealth’s opening statement, the

Commonwealth mentioned that Appellant had caused the victim’s house to go

“into tax sale.”     N.T. Trial, 9/12/16, at 96.    With this backdrop, the

Commonwealth elicited from its first witness, Angie Walker, the following

testimony regarding the condition of the victim’s house.

            Q. I’m going to show you some documents, some pictures
      that have been marked Commonwealth’s Exhibits 83 through 91.
      Could you take a look at those photographs and let me know when
      you are done.

            A. (Witness complied)

            Q. Do you recognize what’s depicted in those photographs?

            A. It’s her home.

           Q. Now, is that what her home looked like at the time that
      you were visiting with her?

            A. No.

            Q. What’s the difference about it?

          A. There’s a lot more clutter. I mean, she had a little bit
      maybe back in her bedroom, but it was picked up in the home.

            Q. So when you were there would you have characterized
      her home as relatively neat and cared for?

            A. I would have, mm-hmm.



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N.T. Trial, 9/12-14/16, at 119-120. The Commonwealth’s first witness on the

second day of trial also testified about the condition of the victim’s house.

Megan Schrom, a nursing home administrator at Rest Haven, testified:

            Q. All right, what was the condition of the place at the time
      that you went?

            A. It was really disgusting, like the cars had like cans and
      cigarette ashes. The house had actually, I think a tax notice or
      some notice on the door, taped to the door. There was multiple
      notices on the door. I didn’t read them, but—

            Q. Okay. Anything else about the physical condition of the
      place?

            A. Dingy, dirty. Looked like it was going to fall down.

Id. at 172.   Finally, the Commonwealth’s last witness, Attorney Amanda

Snoke Dubbs, who administered the estate of the victim, testified about the

value and condition of the victim’s house.

           Q. Okay, Now, the house being just in her name, what was
      done with it?

            A. It was sold at a real estate auction after her death.

            Q. Okay. Do you know what the house sold for?

            A. Not off the top of my head.

            Q. Okay.
            A. I have the file with me if you need me to get my file.

            Q. Would that refresh your recollection?

            A. Yes.

            Q. Okay.

              ....

            Q. I’m sorry, did you get those?
            A. I did not.


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          Q. Could you get them please?         Do you know what the
     house sold for?

           A. Yes. It’s $57,500.

           Q. Okay. And do you know what the house was assessed
     at?

           A. I don’t think I have that information with me. No. I
     don’t have that with me.

              ....

           Q. Do you recognize this document?

           A. Yes, I do.
           Q. Okay. And just if you can identify the document and
     then tell me if that helps refresh your recollection.

          A. This was a memo that I drafted to Detective Snell to
     answer questions that he had regarding the estate, and it was
     dated June 26, 2016.

          Q.   And did you put the information regarding the
     assessment in there?

           A. Yes, I did.

           Q. Okay. And what was the assessed value?

           A. The assessed value was $104,650.

           Q. So it sold for just under half?

           A. Correct.

           Q. Or just over half. I’m sorry.
           A. Correct.

           Q. Are you familiar with the condition of the property—

           A. Yes.

           Q. –when it was sold?

           A. Yes.

              ....
          Q. I’m going to show you what’s been previously marked
     as Commonwealth’s Exhibits 83 through 91. Would you take a


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J-S48026-17


      look at those photographs, and do those photographs accurately
      reflect the condition of the house at the time that it was sold?

            A. Yes.

              ....

            Q. Any money that went from the sale of the house was
      part of the value of the estate, correct? If it had sold for more, it
      would have been a higher estate to be divided?

            A. Yes. Correct.

            Q. And so the same is true for all of the assets, correct?

            A. Correct.

Id. at 260-263.

      On cross-examination, the Commonwealth questioned Appellant on his

late payments of property taxes on the victim’s house. Id. at 278. Lastly, in

its closing argument, the Commonwealth pointed out to the jury that Appellant

diminished the victim’s estate, in part, by failing to pay the property taxes on

her house. Id. at 313-14. During jury deliberations, the trial court permitted,

over Appellant’s objections, Exhibits 83 through 91, depicting the condition of

the victim’s house, to go out to the jury. Id. at 342-44.

      As I stated earlier, Appellant was brought to trial on the charges of theft

by unlawful deception, access device fraud and two counts of forgery. Theft

by unlawful taking is defined as follows:    “A person is guilty of theft if he

unlawfully takes, or exercises unlawful control over, movable

property of another with the intent to deprive him thereof.” 18 Pa.C.S.A.

§ 3921(a) (emphasis added). A person commits the offense of access device

fraud if he: “uses an access device to obtain . . . property or services with

knowledge that . . . access device was issued to another person who has not

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J-S48026-17



authorized its use.” 18 Pa.C.S.A. § 4106(a)(1)(ii). Lastly, forgery is defined

as follows:

       (a) . . . . A person is guilty of forgery if, with intent to defraud or
       injure anyone, or with knowledge that he is facilitating a fraud or
       injury to be perpetrated by anyone, the actor:

               ...

                    (2) makes, completes, executes, authenticates,
              issues or transfers any writing so that it purports to
              be the act of another who did not authorize that act,
              or to have been executed at a time or place or in a
              numbered sequence other than was in fact the case,
              or to be a copy of an original when no such original
              existed; or

                    (3) utters any writing which he knows to be
              forged in a manner specified in paragraphs . . . (2) of
              this subsection.

18 Pa.C.S.A. § 4101(a)(2), and (3). As the foregoing indicates, the crimes

with which Appellant was charged in this case involved the deprivation or the

taking of property from another without authorization.

       With this in mind, I fail to understand the relevance of the admitted

evidence demonstrating the dissipation of the victim’s assets. Specifically, in

agreeing with the Commonwealth’s position, the trial court permitted the

introduction of evidence relating to the value and condition of the victim’s

house for purposes of establishing waste.1 In so doing, the trial court agreed

with the Commonwealth’s contention that evidence of waste was relevant to

show Appellant’s intent in committing theft by unlawful taking, access device
____________________________________________


1 I note that neither the Majority, nor the trial court, nor the Commonwealth
cite any legal authority for the proposition that evidence of waste may be
admitted in a trial where a defendant is charged with theft, access device fraud
or forgery. Indeed, my exhaustive research has yielded no such authority.

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fraud and forgery. The wasting or dissipation of assets generally implicates a

breach of a fiduciary duty, an issue that, as the Majority agrees, normally is

addressed in the orphans’ court. Even assuming that Appellant wasted the

victim’s assets, I fail to see how that would be relevant to establishing whether

he committed theft by unlawful taking, access device fraud or forgery.

Evidence of waste is not of consequence in determining whether Appellant

committed the aforementioned crimes because it does not prove whether

Appellant intended to unlawfully take control over movable property to deprive

the victim of that property. Accordingly, I conclude that the trial court abused

its discretion in permitting the Commonwealth to introduce evidence of waste

by emphasizing the value and condition of the victim’s house. The evidence

was not relevant.

      Having concluded that the evidence of waste was irrelevant in this case,

I now must determine whether the introduction and admission into evidence

of the value and condition the victim’s house was prejudicial to Appellant. As

noted, “[e]xclusion is limited to evidence so prejudicial that it would inflame

the jury to make a decision based on something other than the legal

propositions relevant to the case.” Kouma, supra.

      Here, upon reviewing the record, I am constrained to agree with

Appellant that he suffered prejudice. The prejudicial effect of allowing the

Commonwealth to introduce into evidence of waste by discussing the value

and condition of the victim’s house was staggering and highly inflammatory.

First, the Commonwealth alluded to the value and condition of the victim’s

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property in its opening statement. The Commonwealth mentioned that the

victim’s house went into tax sale.      Second, of its eight witnesses, three

testified about this issue, in particular Appellant’s dissipation of the victim’s

assets. The Commonwealth strategically highlighted the issue of waste. On

the first day of trial, the Commonwealth questioned its first witness,

Ms. Walker, about the condition of the victim’s house.        In this regard, it

introduced into evidence exhibits depicting the condition of the victim’s house

while Appellant was in charge of her care. Similarly, it questioned its first

witness on the second day of trial, Ms. Schrom, about the same issue. The

Commonwealth then questioned its last witness, Ms. Dubbs, extensively on

the value of the victim’s house and showed her the exhibits depicting the

condition of the victim’s house. Third, the Commonwealth was permitted to

admit into evidence the exhibits demonstrating the condition of the victim’s

house. Fourth, by raising the issue of waste, the Commonwealth also was

able to point out to the jury that other individuals also suffered because of

Appellant’s actions.     Specifically, the Commonwealth emphasized that

Appellant was not the victim’s sole beneficiary or heir.        Fifth, on cross-

examination, the Commonwealth questioned Appellant about his failure to pay

property taxes on the victim’s house. Sixth, the Commonwealth alluded to

the wasting of the victim’s assets during its closing argument. Seventh, the

Commonwealth was permitted to publish and send the exhibits depicting the

condition of the victim’s house to the jury during deliberations.




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J-S48026-17



       In light of the foregoing, I conclude that the trial court’s decision to

permit the introduction of evidence relating to the waste of the victim’s assets,

specifically her house, caused unfair prejudice to Appellant. As discussed, the

issue of waste largely implicates Appellant’s discharge of his fiduciary duties.

By emphasizing waste, the Commonwealth pointed out to the jury that

Appellant failed to discharge his fiduciary duties properly. As such, evidence

of waste inflamed the jury, because it heard testimony that had no bearing on

whether Appellant committed theft by unlawful taking, access device fraud or

forgery.2 I, therefore, would vacate Appellant’s judgment of sentence and

remand this case to the trial court for a new trial.3 See Commonwealth v.

Davis, 650 A.2d 452, 455 (Pa. Super. 1994) (noting that “[t]he remedy for .

. . the improper admission of evidence, is the award of a new trial.”).

       Accordingly, I respectfully concur in part and dissent in part.




____________________________________________


2 The harmless error doctrine would not be applicable because, as discussed,
the error here prejudiced Appellant and the prejudice to Appellant was not de
minimis, the admitted evidence was not merely cumulative of other untainted
evidence which was substantially similar, and prejudicial effect of the error
was not insignificant. See Commonwealth v. Hutchinson, 811 A.2d 556,
561 (Pa. 2002).
3 Given my disposition of this evidentiary issue, I would not address
Appellant’s final issue challenging the discretionary aspects of sentencing.

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