J-S70019-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
YVETTE THOMAS,                           :
                                         :
                   Appellant             :   No. 79 EDA 2014

           Appeal from the Judgment of Sentence October 22, 2013,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0007124-2013

BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED DECEMBER 04, 2015

        Yvette Thomas (“Thomas”) appeals from the judgment of sentence

entered following her convictions of conspiracy, theft by extortion, and

witness or informant taking bribe.1 Following our review, we affirm in part

and vacate in part.

        Thomas’ convictions arise out of the following sequence of events. In

September 2012, Quentin Johnson fired a gun multiple times into a

neighboring residence shared by Thomas and Justin Singleton (“Singleton”).

As a result of Thomas and Singleton reporting this to the police, Quentin

Johnson was arrested on attempted murder charges. N.T., 9/18/13, at 13.

In November 2012, Singleton approached Quentin’s wife, Jerii Johnson (“Ms.

Johnson”), between six and nine times, offering not to appear in court



1
    18 Pa.C.S.A. §§ 903, 3923(a)(1), 4909.


*Retired Senior Judge assigned to the Superior Court.
J-S70019-15


against Quentin in exchange for money. Id. at 16-17. Singleton indicated

that he wanted the money so that he could perform repairs on his home.

Id. at 16. Ms. Johnson rebuffed all of Singleton’s offers.        Id. During the

same period of time in November 2012, Thomas approached Ms. Johnson

and told her that in exchange for $105, Thomas and Singleton would leave

Ms. Johnson alone. Id. at 19. Thomas indicated that she needed the $105

for her pharmacy license.      Id.   Ms. Johnson agreed to give Thomas the

money the day before Thanksgiving; however, on that day, Thomas did not

show up to collect the money, as they agreed she would. Id. at 20-21.

      The day after Thanksgiving, November 23, 2012, Singleton appeared

at Ms. Johnson’s home and demanded that she give him money, even going

so far as to say that he was going to drive her to an ATM to withdraw the

money. Id. at 18. Ms. Johnson assumed that Singleton was talking about

the money she had agreed to give Thomas. Id. at 19. Ms. Johnson did not

get in Singleton’s car; rather, she drove her own car, with her daughter and

her   daughter’s   boyfriend   as    passengers,   to   her   preferred   bank   in

Cheltenham. Id. at 21. Singleton, Thomas, and another woman followed

Ms. Johnson in another car. Id. at 22. Singleton parked directly next to Ms.

Johnson in the bank’s parking lot and remained in his car while Ms. Johnson

and her daughter’s boyfriend were in the bank.           Id. at 27.   When they

arrived at the bank, Ms. Johnson filled out a withdrawal slip and wrote “For

Yvette and Justin” and “I’m scared” on the back of it.             Id. at 24-25;



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Commonwealth’s Exhibit C-1.        As she handed it to the teller, she told the

teller to read the withdrawal slip and to remember her face and the address

on her account in case something happened to her. Id. at 26. Ms. Johnson

withdrew $205. She kept $100 for herself and placed $105 in an envelope.

Id. at 26. When she exited the bank, Singleton and Thomas were sitting in

their vehicle.   Id. at 27.    She handed the envelope to Singleton and said

“something along the lines about this being over with[.]”      Id. at 28.   Ms.

Johnson then left the bank parking lot and proceeded to run a few errands

before returning home.        Id. at 29.   When she arrived home, there were

multiple police officers on her street and Singleton and Thomas had been

taken into custody. Id. Following a bench trial, Thomas was convicted of

the offenses set forth above and sentenced to two one-year terms of

probation, ordered to run concurrently. Trial Court Order, 10/22/13. This

timely appeal followed.

      Thomas presents the following three issues for our review:

            1. Did not the [trial] court err, abuse its discretion
               and violate [Thomas’] federal and state rights to
               present a defense, due process and confrontation,
               where the court failed to allow counsel to pursue
               a legitimate and critical line of questioning
               regarding the complaining witness’[] bias and
               motive to fabricate the events at issue in order to
               protect her husband?

            2. Was not the evidence of bribery insufficient where
               it was only [Thomas’] co-defendant, and not she,
               who allegedly asked for and received money in
               return for not testifying against the complainant’s



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               husband; there was no proof that [Thomas]
               intimidated or attempted to intimidate the
               witness, as is required under 18 Pa.C.S. § 4952[,]
               the predicate offense of 18 Pa.C.S. § 4909, and
               [Thomas] was not charged with conspiracy to
               bribe nor did the Commonwealth alleged or argue
               accomplice liability?

            3. Was not the evidence of theft by extortion[,] or a
               conspiracy to do so, insufficient where [Thomas]
               was charged under 18 Pa.C.S. § 3923(a)(1) which
               requires a threat to commit another crime, and
               there was no proof of any threat made by
               [Thomas] to do anything?

Thomas’ Brief at 4.

      Thomas’ first issue challenges the trial court’s limitation of her cross-

examination of Ms. Johnson. Specifically, she argues that in two instances,

the trial court impermissibly limited her questioning of Ms. Johnson

regarding her alleged bias and motive to lie, as Thomas’ complaints led to

the arrest of Ms. Johnson’s husband. Thomas’ Brief at 21.

            The determination of the scope and limits of cross-
            examination are within the discretion of the trial
            court, and we cannot reverse those findings absent a
            clear abuse of discretion or an error of law. An
            abuse of discretion is not a mere error in judgment,
            but, rather, involves bias, ill will, partiality,
            prejudice,     manifest     unreasonableness,     or
            misapplication of law.

Commonwealth v. Handfield, 34 A.3d 187, 210 (Pa. Super. 2011)

(citations omitted).

      In her court-ordered statement of matters complained of pursuant to

Pa.R.A.P. 1925(b), Thomas did not identify any particular instance during



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which the trial court allegedly curtailed her cross-examination of Thomas.

Indeed, the record reveals that the first time Thomas identifies the specific

instances upon which her claim is based is in her appellate brief. The record

reveals a substantial number of objections by the Commonwealth to

Thomas’ questioning of Ms. Johnson. By failing to identify which of these

instances form the basis for her claim, Thomas failed to present this issue to

the trial court in a manner in which the trial court could meaningfully

respond.       As such, Thomas effectively failed to raise this issue before the

trial court.    It is well-established that claims cannot be raised for the first

time on appeal.       See Pa.R.A.P. 302(a); Commonwealth v. Strunk, 953

A.2d 577, 579 (Pa. Super. 2008); Commonwealth v. Haughwout, 837

A.2d 480, 486 (Pa. Super. 2003) (issues, even of constitutional dimension,

are waived if not raised in the court below). Accordingly, we find this issue

waived.2

      Thomas’ remaining two issues challenge the sufficiency of the evidence

supporting her convictions.




2
   The importance of this rule is obvious here. As Thomas did not identify
which rulings by the trial court formed the basis for her claim, the trial court
picked three instances upon which it apparently assumed Thomas’ claim was
based. Trial Court Opinion, 1/28/15, at 8-9. None of the instances that the
trial court picked is the same as the two instances Thomas later identified as
the bases for her claim in her appellate brief. Notably, the trial court
addressed instances involving objections to questioning by Thomas’ counsel,
but Thomas has based her entire argument on ruling regarding the
questioning of Ms. Johnson by her co-defendant’s counsel.


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            Our review of a challenge to the sufficiency of the
            evidence is well-established.       We review the
            evidence in the light most favorable to the verdict
            winner to determine whether there is sufficient
            evidence to allow the jury to find every element of a
            crime beyond a reasonable doubt. In applying the
            above test, we may not weigh the evidence and
            substitute our judgment for the fact-finder. In
            addition, we note that the facts and circumstances
            established by the Commonwealth need not preclude
            every possibility of innocence. Any doubts regarding
            a defendant'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. The Commonwealth may sustain its
            burden of proving every element of the crime beyond
            a    reasonable    doubt    by    means   of   wholly
            circumstantial evidence. Moreover, in applying the
            above test, the entire record must be evaluated and
            all evidence actually received must be considered.

Commonwealth v. Rogal, 120 A.3d 994, 1000-01 (Pa. Super. 2015)

(quoting Commonwealth v. Tejada, 107 A.3d 788, 792-93 (Pa. Super.

2015)).

      Thomas first challenges her conviction of witness or informant taking a

bribe under 18 Pa.C.S.A. § 4909 (“taking a bribe”).      The definition of this

crime states that “[a] person commits a felony of the third degree if he

solicits, accepts or agrees to accept any benefit in consideration of his doing

any of the things specified in section 4952(a)(1) through (6) (relating to

intimidation of witnesses or victims).”    18 Pa.C.S.A. § 4909.      The “things

specified in section 4952(a)(1) through (6)” are:




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           (1) Refrain from informing or reporting to any law
           enforcement officer, prosecuting official or judge
           concerning any information, document or thing
           relating to the commission of a crime.

           (2) Give any false or misleading information or
           testimony relating to the commission of any crime to
           any law enforcement officer, prosecuting official or
           judge.

           (3) Withhold any testimony, information, document
           or thing relating to the commission of a crime from
           any law enforcement officer, prosecuting official or
           judge.

           (4) Give any false or misleading information or
           testimony or refrain from giving any testimony,
           information, document or thing, relating to the
           commission of a crime, to an attorney representing a
           criminal defendant.

           (5) Elude, evade or ignore any request to appear or
           legal process summoning him to appear to testify or
           supply evidence.

           (6) Absent      himself from any proceeding or
           investigation   to which he has been legally
           summoned.

18 Pa.C.S.A. §4952(a)(1)-(6).

     Thomas states that she was not charged with conspiracy to commit

taking a bribe and argues that there is no evidence that she told Ms.

Johnson that she would not go to court in exchange for money. Further, she

points out that Ms. Johnson gave the money to Singleton, not to her.

Thomas’ Brief at 30-32.     Without evidence of a quid pro quo, Thomas

argues, her conviction cannot stand. Id. at 32-33.




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      First, we disagree with Thomas that she was not charged with

conspiracy with regard to taking a bribe. The criminal information charges

her with conspiracy as to the events of November 23, 2012, but does not

state that it is charged specifically with regard to either taking a bribe or

theft by extortion. Criminal Information, 6/14/13. The offenses of taking a

bribe and theft by extortion also were based on the events of November 23,

2012. See id. Accordingly, we conclude that the Commonwealth’s charge

of conspiracy was sufficient to charge Thomas with conspiracy as to both

taking a bribe and theft by extortion. For the reasons below, however, we

conclude that the evidence was insufficient to sustain Thomas’ conviction of

taking a bribe as either the principle actor or a co-conspirator.

      As set forth above, the record reveals that following Quentin Johnson’s

arrest, Singleton approached Ms. Johnson between six and nine times asking

for money and telling her that “they” would not testify in court in exchange

for money. N.T., 9/18/13, at 16-17. He did not state that Thomas would

also not testify in court, but Ms. Johnson believed that this was implied. Id.

at   17.   Thomas never asked Ms. Johnson for money in exchange for not

appearing in court. Id. at 69. As such, there is no evidence to support a

finding that Thomas, herself, solicited money in exchange for not appearing

for the court proceedings involving Mr. Johnson.

      With regard to co-conspirator liability, we begin with the definition of

conspiracy:



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           A person is guilty of conspiracy with another person
           or persons to commit a crime if with the intent of
           promoting or facilitating its commission he:

               (1) agrees with such other person or persons
               that they or one or more of them will engage
               in conduct which constitutes such crime or an
               attempt or solicitation to commit such crime;
               or

               (2) agrees to aid such other person or persons
               in the planning or commission of such crime or
               of an attempt or solicitation to commit such
               crime.

18 Pa.C.S.A. § 903(a).

     “A conviction for criminal conspiracy … is sustained where the

Commonwealth establishes that the defendant entered an agreement to

commit or aid in an unlawful act with another person or persons with a

shared criminal intent and an overt act was done in furtherance of the

conspiracy.”   Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.

Super. 2002) (en banc) (citation omitted).

     Viewing    the   evidence   in   the    light   most   favorable   to   the

Commonwealth, we cannot conclude that it supports a finding that Thomas

and Singleton entered into an agreement whereby they would agree to

solicit money from Ms. Johnson in exchange for not appearing in court. We

reiterate that following Quentin Johnson’s arrest, Singleton approached Ms.

Johnson many times, offering that “they” would not go to court if Ms.

Johnson gave him money, but never directly stated that Thomas would not




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testify in exchange for money.      N.T., 9/18/13, at 16. Id.     Ms. Johnson

testified that Thomas never offered to withhold her testimony (much less

Singleton’s) in exchange for money. Id. at 69. When Thomas did approach

Ms. Johnson, she offered only that she and Singleton would leave her alone

in exchange for money. Id. at 20. The different requests by Singleton and

Thomas preclude a finding that they shared an agreement to commit this

crime, i.e, to solicit a bribe in exchange for a promise not to appear in court.

As such, no conspiracy can be established with regard to this offense.

      Thomas next argues that her conviction of theft by extortion is

improper because the evidence was insufficient to establish the elements of

the crime as charged. Theft by extortion is defined as follows:

            (a) Offense defined.--A person is guilty of theft if
            he intentionally obtains or withholds property of
            another by threatening to:

            (1) commit another criminal offense;

            (2) accuse anyone of a criminal offense;

            (3) expose any secret tending to subject any person
            to hatred, contempt or ridicule;

            (4) take or withhold action as an official, or cause an
            official to take or withhold action;

            (5) bring about or continue a strike, boycott or other
            collective unofficial action, if the property is not
            demanded or received for the benefit of the group in
            whose interest the actor purports to act;

            (6) testify or provide information or withhold
            testimony or information with respect to the
            legal claim or defense of another; or



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            (7) inflict any other harm which would not benefit
            the actor.

18 Pa.C.S.A. § 3923(a) (emphasis added).          As Thomas points out, the

Commonwealth charged her explicitly under § 3923(a)(1) only.             See

Criminal Information, 6/14/13. As such, to convict Thomas of this offense,

the Commonwealth was required to prove that Thomas obtained money by

threatening to commit another criminal offense.

      The evidence reveals that Ms. Johnson agreed to give Thomas $105

for her pharmacy license in exchange for Thomas’ offer that she and

Singleton would leave Ms. Johnson alone.     It was this promise alone that

induced Ms. Johnson’s acquiescence. The trial court concluded that viewing

this evidence in the light most favorable to the Commonwealth, Thomas’

actions amounted to a threat to harass Ms. Johnson if she did not comply

(especially in light of the fact that she and Singleton had already approached

her up to ten times in the span of just over a month seeking money),

thereby establishing a threat to commit another crime, as is required by

§ 3923(a)(1). See Trial Court Opinion, 1/28/15, at 7. We agree.

      Harassment is defined, inter alia, as “engag[ing] in a course of conduct

or repeatedly commit[ing] acts which serve no legitimate purpose[.]”

18 Pa.C.S.A. § 2709(a)(3). Threating to continue to contact Ms. Johnson for

money for her pharmacy license satisfies the definition of harassment in §

2709(a)(3), as it is a threat to continue a course of conduct that serves no




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legitimate purpose. As such, we agree that when viewing the evidence, and

all reasonable inferences therefrom, in the light most favorable to the

Commonwealth, the evidence is sufficient to support a finding that Thomas

threatened to commit another crime (i.e., harass Ms. Johnson) if her

demands for money were not met, and therefore that the evidence is

sufficient to support Thomas’ conviction.

      As we have found the evidence insufficient to support Thomas’

conviction of taking a bribe under 18 Pa.C.S.A. § 4909, we reverse that

conviction and vacate the judgment of sentence entered thereon. The trial

court sentenced Thomas to a term of one year of probation on this

conviction, which was ordered to run concurrently with the probationary

sentence imposed on the theft by extortion conviction. Accordingly, vacating

this judgment of sentence does not disturb the trial court’s sentencing

scheme, and so we do not need to remand this case for resentencing. Cf.

Commonwealth v. Barton-Martin, 5 A.3d 363, 370 (Pa. Super. 2010)

(providing that where vacating a sentence disrupts a trial court’s overall

sentencing   scheme,    this   Court     will     remand      to   the   trial   court     for

resentencing).

      Judgment    of   sentence    affirmed       in   part    and   vacated      in     part.

Jurisdiction relinquished.

      Lazarus, J. joins the Memorandum.

      Platt, J. concurs in the result.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/4/2015




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