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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
BRYAN WAYNE BRACKBILL JR.,               :            No. 1433 MDA 2014
                                         :
                         Appellant       :


            Appeal from the Judgment of Sentence, August 14, 2014,
                 in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-CR-0005421-2013


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED SEPTEMBER 08, 2015

        Bryan Wayne Brackbill, Jr., appeals from the judgment of sentence of

August 14, 2014, following his conviction of second-degree murder and theft

by unlawful taking.1 We affirm.

        The facts in this case are as follows: On June 1, 2013, Shawn Snyder

(“Mrs. Snyder”) and appellant’s then-girlfriend, Crystal Hughes (“Hughes”),

left to go on a road trip from Harrisburg to Minnesota. (Notes of testimony,

8/11/14 at 94.) Hughes did not have her cell phone with her on the trip, as

it was being used by appellant. (Notes of testimony, 8/10/14 at 96, 8/11/14

at 252.)     While Mrs. Snyder and Hughes were en route to Minnesota,




* Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(b); 3921(a), respectively.
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William Snyder (“Mr. Snyder”) dropped appellant off at the Parkside Bar in

Hershey, Pennsylvania, while Mr. Snyder went to a doctor’s appointment.

(Notes of testimony, 8/11/14 at 127.) After reuniting with appellant, both

appellant and Mr. Snyder had a few drinks at the Parkside Bar before

traveling to Arooga’s where Mr. Snyder left appellant after sharing a pitcher

of beer. (Id. at 129.) Later that evening, Mr. Snyder received a telephone

call from an acquaintance indicating that appellant was “saying some nasty

things” about Mr. Snyder at Arooga’s.      (Id. at 130.)    Upon arriving at

Arooga’s, Mr. Snyder asked the bouncers to cut off appellant, and then had

appellant wait outside for Mr. Snyder to take him home. (Id. at 133-134.)

When Mr. Snyder returned to the parking lot to take appellant back to his

house, appellant was gone. (Id. at 134.)

        After returning home, Mr. Snyder testified that appellant appeared at

his house at approximately 1:00 am on June 2, 2013, to collect his

belongings. (Id. at 136.) During this encounter, Mr. Snyder testified that

he saw the victim, Sandra Mulder, standing at the bottom of the front steps.

(Id.)

        Meanwhile, Mrs. Snyder and Hughes had stopped for the night at a

hotel in Indiana. (Id. at 100.) Over the course of the night, Mrs. Snyder

testified that she received numerous phone calls and text messages from

appellant, who was using Hughes’ phone.         (Id. at 104-105.)    Hughes




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eventually decided that she would remain at the hotel in Indiana rather than

continue on to Minnesota with Mrs. Snyder. (Id. at 108.)

      Andrew Power (“Mr. Power”) testified that on June 2, 2013, his wife

Lisa Power (“Mrs. Power”) unsuccessfully attempted several times to get in

touch with the victim, who was her mother. (Notes of testimony, 8/12/14 at

172.) After the unsuccessful attempts to get in touch with the victim, both

Mr. and Mrs. Power went to the victim’s house, where Mr. Power discovered

the victim’s body face down and bound with duct tape. (Id. at 179.)

      Later on June 2, 2013, appellant traveled to Indiana to pick up

Hughes, who was still waiting at the hotel where she and Mrs. Snyder had

stopped the night before. (Id. at 262.) Appellant was driving the victim’s

car. (Id.) Appellant drove with Hughes to Indianapolis, where he dropped

Hughes off, telling her that “he didn’t want [her] to be involved.”   (Id. at

267, 292.) Appellant traveled west where he was eventually apprehended

by the Missouri State Highway Patrol approximately 140 miles west of

St. Louis. (Id. at 227.)

      Appellant was convicted of second-degree murder and theft by

unlawful taking on August 14, 2014, and sentenced to life imprisonment

immediately thereafter. (Trial court opinion, 1/16/15 at 1.) Appellant filed

the instant appeal on August 26, 2014. Appellant filed a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. Rule 1925(b), and

the trial court filed an opinion.



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      Appellant has raised the following issues for this court’s review:

            A.     Whether the evidence at trial was insufficient
                   to support the jury’s verdict as to second
                   degree murder and theft by unlawful taking in
                   that: the evidence did not establish beyond a
                   reasonable doubt that the appellant removed
                   the victim’s vehicle intending to permanently
                   deprive her of said moveable property and
                   without the victim’s permission: the alleged
                   theft of motor vehicle occurred after the
                   alleged homicide therefore the evidence was
                   insufficient to establish that the homicide was
                   committed during the course of the felony theft
                   and therefore insufficient to support the verdict
                   of second degree murder.

            B.     Whether the trial court erred in instructing the
                   jury on the elements of robbery when the
                   appellant was not charged with robbery.

            C.     Whether the pretrial motions court erred in
                   denying the appellant’s motion to dismiss/
                   habeas corpus petition as to theft in that the
                   Commonwealth could not establish a prima
                   facie case that the appellant removed the
                   victim’s vehicle intending to permanently
                   deprive her of said movable property and
                   without the victim’s permission.

            D.     Whether the pretrial motions court erred in
                   denying appellant’s motion to dismiss/habeas
                   corpus petition as to second degree murder in
                   that the Commonwealth could not establish a
                   prima facie case as to theft which formed the
                   basis for the charge of second-degree murder.

Appellant’s brief at 4.

      The first issue raised by appellant is whether the evidence at trial was

sufficient to warrant convictions for second-degree murder and theft by

unlawful taking.


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                  In reviewing the sufficiency of the evidence,
            we view all evidence admitted at trial in the light
            most favorable to the Commonwealth, as verdict
            winner, to see whether there is sufficient evidence to
            enable [the fact finder] to find every element of the
            crime beyond a reasonable doubt. This standard is
            equally applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of the evidence links the accused to the
            crime beyond a reasonable doubt.           Although a
            conviction must be based on “more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.”

                  Moreover, when reviewing the sufficiency of
            the evidence, this Court may not substitute its
            judgment for that of the fact finder; if the record
            contains support for the convictions, they may not
            be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted).    The Commonwealth may satisfy its burden of proving a

defendant’s guilt beyond a reasonable doubt by using wholly circumstantial

evidence. Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008).

            Moreover, in applying the above test, the entire
            record must be evaluated and all evidence actually
            received must be considered. Finally, the finder of
            fact while passing upon the credibility of witnesses
            and the weight of the evidence produced, is free to
            believe all, part, or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted).

      The credibility and weight of the evidence are both matters that are in

the sole purview of the jury. Specifically, when considering whether or not

the evidence was sufficient to prove each element of each charge beyond a


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reasonable doubt, we cannot assume the task of weighing evidence and

making independent conclusions of fact.      Commonwealth v. Lewis, 911

A.2d 558, 563 (Pa.Super. 2006) (citations omitted). “Any doubts regarding

[an appellant’s] guilt may be resolved by the fact-finder unless the evidence

is so weak and inconclusive that as a matter of law no probability of fact

may be drawn from the combined circumstances.” Id.

      In the instant case, after reviewing the evidence presented, cast in the

light most favorable to the Commonwealth, as verdict winner, we find that

the evidence is sufficient to warrant the jury’s convictions for theft by

unlawful taking and second-degree murder.       We first address the theft by

unlawful taking charge.

      “A person is guilty of theft if he unlawfully takes, or exercises unlawful

control over, movable property of another with intent to deprive him

thereof.”   18 Pa.C.S.A. § 3921(a).    In this case, the Commonwealth has

established all of the necessary elements to prove a theft by unlawful taking

beyond a reasonable doubt.      First, while not an element to the theft by

unlawful taking charge, but a necessary component to this case, the

Commonwealth established that appellant, having sold a van that he

previously owned, did not have access to a car.          (Notes of testimony,

8/12/14 at 247.)      Second, appellant took unlawful control over and

unlawfully moved the victim’s car. The Commonwealth, through testimony

of Hughes, established that appellant did not have permission to use the



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victim’s car.2 (Id. at 256.) While defense counsel did establish that Hughes

did not mention anything about hearing the victim tell appellant that he was

not permitted to use the victim’s car when she was questioned by the police,

this is a question of weight and credibility that could only have been decided

by the jury.    The Commonwealth also established through testimony of

Mrs. Power and Detective Scott James, who helped process the crime scene,

that the victim had plans to use her car in the several days immediately

following her death.3 (Id. at 193-194, 360.)

      Finally, the Commonwealth presented evidence proving appellant’s

intent to deprive the victim of her car.       After taking the victim’s car,

appellant used the car to pick up Hughes in Indiana. (Id. at 262.) Appellant

was later apprehended driving the victim’s car on Interstate 70 in Missouri.

(Id. at 224.)   Moreover, at the time of his apprehension, appellant was

traveling westbound on Interstate 70 -- traveling away from Pennsylvania

when he was apprehended.       (Id.)    Hughes testified that when appellant

picked her up in Indiana, appellant stated that he did not want to go back to

Pennsylvania; rather, he wanted to go down south.       (Notes of testimony,



2
  Hughes testified that, during a phone conversation with appellant, she
could overhear the victim in the background saying to appellant, “You are
not using my car, I’m not going to get her.” (Id. at 256.)
3
  Mrs. Power had planned to meet the victim at the victim’s townhouse on
the morning of June 2, 2013, and Detective James testified that the victim’s
calendar indicated that she had a doctor’s appointment scheduled for June 4,
2013. (Id. at 360.)


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8/12/14 at 262-263.)      Mrs. Power also testified that when she called

appellant trying to get information about her mother’s whereabouts,

appellant indicated that he “was on the run.” (Id. at 202.)

     We next turn to appellant’s conviction for second-degree murder.

Second-degree murder is defined as a criminal homicide “committed while

defendant was engaged as a principal or an accomplice in the perpetration of

a felony.” 18 Pa.C.S.A. § 2502(b). In order for a defendant to be convicted

of second-degree murder, the Commonwealth must prove beyond a

reasonable doubt that the defendant committed a murder while engaged in

the commission of a felony. 18 Pa.C.S.A. § 2502(b). For the purposes of

second-degree murder, a “felony” is defined as robbery, rape, deviate sexual

intercourse by force or threat of force, arson, burglary, or kidnapping.

18 Pa.C.S.A. § 2502(d).

     In this case, the underlying felony was robbery, despite the fact that

appellant was not charged with robbery. Since appellant was charged with

theft by unlawful taking, the Commonwealth is required to establish the

additional element of theft by force or threat of force in order to obtain a

conviction of second-degree murder with robbery acting as the underlying

felony. See 18 Pa.C.S.A. § 3701.

     Having already discussed the elements for the underlying theft

required to prove robbery beyond a reasonable doubt for the charge of theft

by unlawful taking, we now only need to address the missing element: force



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or threat of force, no matter how slight. This court has defined force within

the context of a robbery as, “that of which the victim is aware and by reason

of that force, is compelled to part with his property.”       Commonwealth v.

Bonner, 27 A.3d 255, 259 (Pa.Super. 2011). The Commonwealth met its

burden of proving force by establishing that the victim died face down with

her hands and feet bound with duct tape. (Notes of testimony, 8/12/14 at

215.)

        The Commonwealth also proved beyond a reasonable doubt that as a

result of being bound by appellant, so that appellant could steal the victim’s

car, the victim died of positional asphyxia. (Notes of testimony, 8/13/14 at

466.) Specifically, Dr. Barbara Bollinger, who completed the autopsy of the

victim, testified that the victim died as a result of being bound and placed

face down. (Id. at 467.) A DNA analysis conducted on a trace of saliva that

was found on the victim’s shirt was consistent with appellant’s DNA profile.

(Id. at 442.) The Commonwealth also introduced evidence that there were

no signs of a break-in or forced entry, and that appellant lived at the victim’s

house.     (Notes of testimony, 8/12/14 at 173, 350, 352.)          Finally, the

Commonwealth introduced evidence from Hughes, who testified that

appellant told her that he killed the victim. (Id. at 266.)

        Taking this evidence in the light most favorable to the Commonwealth,

as the verdict-winner, we find that the Commonwealth has satisfied its

burden of proving theft by unlawful taking and second-degree murder



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beyond a reasonable doubt, and that the jury’s guilty verdicts are fully

supported by the evidence, and accordingly cannot be disturbed.

      The second issue presented for our review in the instant appeal is

whether the trial court erred in instructing the jury on the elements of

robbery, a crime with which appellant was not charged, as the underlying

felony to support a charge of second-degree murder. Appellant specifically

claims that the trial court’s decision to instruct the jury on the elements of

robbery, despite appellant only being charged with theft by unlawful taking,

may have resulted in confusing the jury, thereby warranting a new trial.

(Appellant’s brief at 15.)

      A previous panel of this court has stated that in order to obtain a

conviction of second-degree murder, the Commonwealth need not charge a

defendant with the underlying felony.    Commonwealth v. Pasmore, 857

A.2d 697, 706 (Pa.Super. 2004), quoting Commonwealth v. Giles, 456

A.2d 1356, 1359 (Pa. 1983). Moreover, our supreme court has addressed

the issue of whether potential confusion between the charges of “theft” and

“robbery” would cause confusion for the jury and, by so doing, warrant a

new trial. In Commonwealth v. Prosdocimo, 578 A.2d 1273 (Pa. 1990),

our supreme court considered whether a trial court had erred when it

instructed the jury on the elements of robbery before the jury deliberated on

a second-degree murder charge. Id.




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     The court stated that a trial judge has considerable discretion in

wording jury instructions so long as the jury receives a clear, adequate, and

accurate instruction of the law in question. Id. at 1274. In Prosdocimo,

the trial judge provided jury instructions that defined the underlying felony

for a second-degree murder charge as robbery, while also describing the

elements of a theft offense. Id. at 1275. Our supreme court cited the fact

that the trial judge indicated to the jury at least four times that the

underlying felony for a second-degree murder conviction was robbery. Id.

at 1276. Therefore, despite the trial judge providing a definition of robbery

and theft in the jury instructions, the inclusion of both definitions did not

confuse the jury.

     In this case, the trial court’s instructions to the jury as related to the

second-degree murder charge were as follows:

                 The Defendant has been charged with Second
           Degree Murder, that is, Felony Murder. To find the
           Defendant guilty of this offense you must find the
           following three elements have been proven beyond a
           reasonable doubt:

                 First, that the Defendant caused the death of
           Sandra Mulder; second, that the Defendant did so
           while committing or attempting to commit a robbery;
           and, third, that the Defendant was acting with
           malice.

                 You may find that the Defendant was acting
           with malice if you are satisfied beyond a reasonable
           doubt that he committed or attempted to rob her.
           Because robbery is a crime inherently dangerous to
           human life, there does not have to be other proof of
           malice.


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                  I will now define Robbery.       To find the
            defendant guilty of this offense, you must find that
            the following two elements have been proven beyond
            a reasonable doubt:

                 First, that the Defendant physically took or
            removed property from the person of Sandra Mulder
            by force, however slight; and, second, that the
            Defendant did so in the course of committing a theft.

Notes of testimony, 8/14/14 at 608-609.          No reading of the trial judge’s

instructions could reach the conclusion that the trial judge confused the jury

on the definitions of robbery and theft. The trial judge specifically instructed

the jury that the underlying felony to reach a second-degree murder

conviction was robbery, and not theft.        Therefore, any allegation that the

jury was confused by the trial judge’s instructions is without merit.

      For the third and fourth issues presented for our review, appellant

claims that the Commonwealth failed to establish a prima facie case

against him in regards to the second-degree murder and theft by unlawful

taking charges.   As a means of developing his argument, appellant relies

solely on arguments that he made previously in his brief challenging his

convictions based on the sufficiency of the evidence:

                  The same argument presented at the trial by
            the Commonwealth was presented in its objection to
            the Appellant’s Motion for Dismissal. Accordingly,
            the Appellant relies on the previous argument above.

Appellant’s brief at 15-16.




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      This argument has no merit. Both this court and our supreme court

have stated that a conviction of a crime after trial will render any defects in

the Commonwealth’s case at the preliminary stages immaterial and moot.

Commonwealth        v.    Tyler,   587     A.2d   326,   328   (Pa.Super.   1991);

Commonwealth v. Lee, 662 A.2d 645, 650 (Pa. 1995).

      Here, appellant was held over for trial after a preliminary hearing was

held on July 29, 2013, and after the trial court denied appellant’s

habeas corpus petition in an opinion and order dated May 14, 2014, which

stated that the Commonwealth established a prima facie case for theft by

unlawful taking and second-degree murder. (Trial court opinion, 5/14/14 at

3.) Appellant was then found guilty by the jury on August 14, 2014, thereby

mooting any defects in the trial court’s decision to hold appellant over for

trial. (Notes of testimony, 8/14/14 at 625-626.)

      Judgment of sentence affirmed.

      Wecht, J. joins the Memorandum.

      Platt, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/8/2015




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