J-S37035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 SHAKIRA WILLIAMS                           :
                                            :
                    Appellant               :   No. 3336 EDA 2016

            Appeal from the Judgment of Sentence June 17, 2016
     In the Court of Common Pleas of Bucks County Criminal Division at
                      No(s): CP-09-CR-0005172-2015,
                          CP-09-CR-0006359-2015


BEFORE:    OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                           FILED JULY 06, 2018

      Appellant Shakira Williams appeals from the judgment of sentence of

five (5) years to twenty (20) years in prison with a concurrent term of ten

(10) years’ probation entered in the Court of Common Pleas of Bucks County

on June 17, 2016, following a jury trial.   We affirm.

      The trial court detailed the facts and procedural history herein as

follows:

                         Procedural and Factual History

      Criminal Information Number 5172-2015

            On February 18, 2016, following a trial by jury, [Appellant]
      was convicted of robbery (inflicts bodily injury, threatens another
      with or intentionally puts another in fear of immediate bodily
      injury), 18 Pa.C.S. §3701(a)(1)(iv), a felony of the second
      degree; conspiracy to commit robbery, 18 Pa.C.S. §903, a felony
      of the second degree; robbery (physically takes/removes property
      from a person by force however slight), 18 Pa.C.S.

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S37035-18


     §3701(a)(1)(v), a felony of the third degree; conspiracy to
     commit robbery, a felony of the third degree; theft by unlawful
     taking, 18 Pa.C.S. §3921(a), a felony of the third degree (value
     of property taken exceeded $2,000); simple assault, 18 Pa.C.S.
     §2701(a)(1), a misdemeanor of the second degree; identity theft,
     18 Pa.C.S. §4120(a), a felony of the second degree (value of
     property obtained $2,000 or more, victim sixty years of age or
     older at time of offense); access device fraud, 18 Pa.C.S.
     §4106(a)(1)(ii), (Lowe's- value of property obtained exceeded
     $500), a felony of the third degree; access device fraud (Home
     Depot - value of property obtained exceeded $500), a felony of
     the third degree; and access device fraud (Kohl's - value of
     property obtained between $50 and $500), a misdemeanor of the
     first degree. [Appellant] was found not guilty of aggravated
     assault (attempting to cause or causing bodily injury with a deadly
     weapon), a felony of the second degree.
            The victim, Mildred Abrams (Ms. Abrams), was seventy-
     eight years old at the time of trial. On May 25, 2015, at about 10
     a.m., Ms. Abrams drove to the ShopRite grocery store located in
     Fairless Hills, Bucks County, to purchase rolls for a Memorial Day
     picnic. N.T. 2/16/16, pp. 51-52. After Ms. Abrams entered the
     store, [Appellant] and her Co-Defendant, Michael Galante
     (Galante), arrived at the shopping center and parked their car four
     or five spaces away from Ms. Abrams' car. N.T. 2/16/16, p. 63;
     N.T. 2/17/16, p. 94. [Appellant] and Galante entered the
     ShopRite, observed [Ms.] Abrams and followed her out of the
     store. Surveillance cameras captured [Appellant] and Galante
     entering the store and, after a short period of time, leaving the
     store behind Ms. Abrams. N.T. 2/16/16, pp. 82-87; Exs. C-1(a)-
     (d).
            After leaving the store, [Appellant] returned to the car she
     and Galante were driving. Galante continued to follow Ms. Abrams.
     N.T. 2/17/16, pp. 106-107. When Ms. Abrams stopped at her car,
     Galante forcibly removed Ms. Abrams[’] purse from her person
     and ran back to his car. Ms. Abrams followed, shouting that her
     pocketbook had been taken. N.T. 2/16/16, pp. 59, 63, 90-92; N.T.
     2/17/16, pp. 19-21; 107-108. After Galante got into the driver's
     seat of his car, Ms. Abrams reached inside the open[] window on
     the driver's side in an attempt to retrieve her purse. N.T. 2/16/16,
     pp. 64, 92; N.T. 2/17/16, pp. 20, 109-110. [Appellant], seated in
     the passenger seat, shouted at Galante to "go, go." Galante drove
     away at a high rate of speed. Ms. Abrams, who was still partially
     inside the vehicle, fell and struck her face on the pavement. N.T.


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J-S37035-18


     2/16/16, pp. 65-67, 93-94; N.T. 2/17/16, pp. 20-22; 110-111;
     Ex. C-2.
           Ms. Abrams was later transported by ambulance from the
     scene to a local hospital where she received eleven stitches to
     close a gash over her eye. Ms. Abrams also sustained bruises and
     scrapes on the right side of her body. N.T. 2/16/16, pp. 69-70.
           After [Appellant] and Galante fled the scene, they
     proceeded to New Jersey. Along the way, cash and credit cards
     were removed from Ms. Abrams' purse; the purse and remaining
     items were discarded. N.T. 2/17/16, pp. 111, 119. [Appellant] and
     Galante used the cash to buy heroin. They then proceeded to use
     the credit cards to make purchases from Home Depot, Lowe's and
     Kohl's, in order to obtain money for more heroin. N.T. 2/17/16,
     pp. 111-117. Receipts of those transactions established that
     [Appellant] used [Ms.] Abrams' credit cards to purchase $965.79
     in merchandise and gift cards from Home Depot, $807.96 in
     merchandise and gift cards from Lowe's and $252.85 in
     merchandise from Kohl's, and signed [Ms.] Abrams' name without
     her permission. N.T. 2/16/16, pp. 62, 73-83; Ex. C-3 (Home
     Depot receipt); Ex. C-4 (Home Depot receipt); Ex. C-5 (Lowe's
     receipts); Ex. C-6 (Lowe's receipt); Ex. C-7 (Kohl's receipt).
     Surveillance cameras captured [Appellant] selecting items and
     making purchases at Lowe's and Home Depot. N.T. 2/17/16, pp.
     43-52; 58-71; Ex. C-8 (Home Depot video); Exs. C-12-C-15
     (Lowe's video).
           Galante testified against [Appellant] at trial and
     corroborated the above set of facts. In addition, Galante testified
     that on May 25, 2015, he and [Appellant] agreed to go to the
     ShopRite in Fairless Hills to steal a wallet from one of the
     shoppers. N.T. 2/17/16, p. 93. Galante further testified that he
     and [Appellant] agreed to commit the crime because they both
     needed money to purchase crack and heroin. N.T. 2/17/16, pp.
     98-99. Initially, the plan was that [Appellant] would draw the
     victim's attention away from her purse and Galante would steal
     the wallet from the purse without the victim's knowledge. N.T.
     2/17/16, pp. 93-94. However, when they arrived inside of the
     ShopRite and began to look for a victim, Galante began to feel
     "dope sick," i.e. experience heroin withdrawal symptoms, and
     decided to steal an entire purse. N.T. 2/17/16, pp. 98-101.
     Galante changed plans after seeing Mrs. Abrams with her purse
     inside the top basket of her shopping cart, and determined it
     would be easier for him to snatch the purse from the cart. N.T.
     2/17/16, pp. 99-101. When Galante and [Appellant] followed Mrs.


                                    -3-
J-S37035-18


     Abrams out of the store. Galante told [Appellant] that he was
     going to get the purse and told [Appellant] to go to the stolen car.
     [Appellant] responded, "okay" and returned to the car as directed.
     N.T. 2/17/16, pp. 99-100, 130, 153. Galante testified that while
     driving to New Jersey after the robbery, he and [Appellant]
     discussed using the credit cards from the purse to purchase power
     tools from Home Depot and Lowe's to "fence," i.e. sell them at a
     pawn shop for cash. N.T. 2/17/16, pp. 111-112.
            Surveillance videos were retrieved from ShopRite, Home
     Depot and Lowe's. The same individual used the victim's credit
     cards at all three locations. That individual had a distinctive tattoo
     on her right arm identical to a tattoo on [Appellant’s] right arm.
     N.T. 2/17/16, pp. 164-173; Ex. C-16. Galante also identified
     [Appellant] in the store surveillance videos. N.T. 2/17/16, pp.
     113-116.
            On July 7, 2015, after being advised her Miranda1 rights and
     waiving those rights, [Appellant] admitted that she and Galante
     had planned to go to the ShopRite in Fairless Hills to "rob"
     somebody's purse and use the credit cards found within to
     purchase tools and gift cards.        N.T. 2/17/16, pp. 178-179.
     [Appellant] admitted to Detective Slemmer that she and Galante
     committed subsequent robberies, in which they targeted women
     with purses, in order to support their drug habits. N.T. 2/17/16,
     pp. 186-188.

     Criminal Information Number 6359-2015

           On May 27, 2016, [Appellant] pled guilty to use/possession
     of drug paraphernalia, 35 Pa.C.S. §780-113(a)(32), a
     misdemeanor.2 [Appellant] admitted to the following facts
     regarding this offense:

          On June 23, 2015, during a high-speed police pursuit,
          the officers found [Appellant] on Route 1 south in the
          area of Old Lincoln Highway in Bensalem, Bucks County.
          She was found to be in possession of, among other
          things, pipes, bags, vials, and needles positive for the
          presence of a controlled substance.

     N.T. 5/27/16, pp. 6-7.
                                 Sentencing

          On May 27, 2016, [Appellant] was sentenced on both cases.
     On Criminal Information 5172-2015, [Appellant] was sentenced

                                     -4-
J-S37035-18


     to an aggregate sentence of seven-and-one half to twenty years.
     A term of incarceration of five to ten years was imposed on the
     Robbery conviction (inflicts bodily injury, threatens another with
     or intentionally puts another in fear of immediate bodily injury). A
     consecutive term of incarceration of two-and-one half to ten years
     was imposed on the Identity Theft conviction. A concurrent term
     of incarceration of two-and-one half years to five years was
     imposed on the Conspiracy to commit Robbery conviction.
     [Appellant] was also ordered to pay $349 in restitution to Ms.
     Abrams. N.T. 5/27/16, pp. 59-63. On Criminal Information 6359-
     2015, [Appellant] was placed on probation for a period of one year
     for Possession of Drug Paraphernalia. That sentence was imposed
     to run concurrent to the sentence imposed on Criminal
     Information 5172-2015.
            By order dated June 3, 2016, this [c]ourt sua sponte
     vacated [Appellant’s] sentence and directed a hearing be held on
     June 17, 2016 for the [c]ourt to hear further testimony regarding
     the sentencing of Co-Defendant, Michael Galante. N.T. 6/17/16,
     pp. 2-3, 20. Based on the evidence presented at that hearing, the
     aggregate term of incarceration imposed on Criminal Information
     5172-2015 was reduced to five to twenty years based on the
     sentence imposed upon Galante, clearly the more culpable actor
     in the robbery of Ms. Abrams. [Appellant] was sentenced to a term
     of incarceration of two-and-one half to ten years on her conviction
     for Robbery (inflicts bodily injury, threatens another with or
     intentionally puts another in fear of immediate bodily injury) with
     a consecutive term of incarceration of two-and-one half to ten
     years on the Identity Theft conviction. A concurrent period of ten
     years[’] probation was imposed on [Appellant’s] conviction for
     Conspiracy to commit Robbery. No further penalty was imposed
     on the remaining counts. [Appellant] was also ordered to pay
     restitution to [Ms.] Abrams. On Criminal Information 6359-2015,
     [Appellant] was sentenced to six to twelve months for Possession
     of Drug Paraphernalia, to be served concurrent to the sentence
     imposed on Criminal Information 5172-2015.

               Appeals from the Judgments of Sentence

            On July 18, 2016, [Appellant] filed pro se Notice of Appeal
     from the judgment of sentence. On October 24, 2016, [Appellant]
     filed a pro se PCRA Petition. By order dated November 9, 2016,
     this [c]ourt denied PCRA relief pursuant to 42 Pa.C.S. §9541, et
     seq, and Commonwealth v. Leslie, 757 A.2d 985 (Pa.Super.2000)
     (Trial Court lacks jurisdiction to proceed on PCRA petition during

                                    -5-
J-S37035-18


      pendency of direct appeal). By order dated that same date,
      [Appellant] was directed to file a Concise Statement of Matters
      Complained ("Statement") of on Appeal within twenty-one days
      pursuant to Pa.R.A.P. 1925(b).
              [Appellant] did not comply with this [c]ourt's order
      directing her to file a Statement within twenty-one days and did
      not order the necessary transcripts as required by Pa.R.A.P.
      1911(a). Accordingly this [c]ourt was unable to file an opinion on
      the merits of [Appellant’s] appeal and on January 27, 2017, filed
      an opinion finding that [Appellant] waived her right to raise any
      issues on direct appeal. See, Trial Court Opinion, 1/27/17.
             On February 16, 2017, the Superior Court remanded the
      matter to this [c]ourt for a determination as to whether counsel
      has abandoned [Appellant] and to take further action as required
      to protect [Appellant’s] right to appeal, including, but not limited
      to, appointment of new counsel.
             By order dated March 31, 2017, having been advised that
      Trial Counsel had not been retained by [Appellant] for purposes
      of appeal, this [c]ourt granted Trial Counsel's request to withdraw
      his appearance and appointed new counsel to represent
      [Appellant] for purposes of direct appeal. This [c]ourt further
      ordered transcription of the necessary notes of testimony and
      again ordered [Appellant] to file a Statement within twenty-one
      days. On June 9, 2017, [Appellant] filed a timely counseled
      Statement.
      ___
      1
        Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
      (1966).
      2
        The Commonwealth's motion to consolidate these cases for trial
      was denied on February 16, 2016. N.T. 2/ 16/ 16, pp. 6-7[.]

Trial Court Opinion, filed 9/11/17, at 1-6.

     In her brief, Appellant presents the following Statement of the Question

Involved:

      1.       Did the lower court err by ruling that [Appellant’s] prior
      criminal record was admissible when overwhelming evidence of
      her guilt was presented at trial?

      2.      Did the [c]ourt lack jurisdiction to try crimes that
      occurred in New Jersey with the use of items stolen in
      Pennsylvania?

                                     -6-
J-S37035-18




      3.      Was the Appellant’s sentence too harsh given her
      attempts at rehabilitation?

Brief for Appellant at 4. We shall discuss each of these issues in turn, and in

first analyzing Appellant’s challenge to the admission of evidence, we employ

a well-settled standard of review:

      When ruling on a trial court's decision to grant or deny a motion
      in limine, we apply an evidentiary abuse of discretion standard of
      review. The admission of evidence is committed to the sound
      discretion of the trial court, and a trial court's ruling regarding the
      admission of evidence will not be disturbed on appeal unless that
      ruling reflects manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Ivy, 146 A.3d 241, 250–51 (Pa.Super. 2016) (citation

omitted).

      It is impermissible to present evidence at trial of a defendant's prior bad

acts or crimes in an attempt to establish the defendant's criminal character or

propensity to commit crimes. See Commonwealth v. Hudson, 955 A.2d

1031, 1034 (Pa.Super. 2008), appeal denied, 600 Pa. 739, 964 A.2d 1 (2009);

Pa.R.E. 404(b)(1). Such evidence, however, may be admissible “where it is

relevant for some other legitimate purpose and not utilized solely to blacken

the defendant's character.” Commonwealth v. Russell, 938 A.2d 1082,

1092 (Pa.Super. 2007) (citation omitted), appeal denied, 598 Pa. 766, 956

A.2d 434 (2008). Evidence of other crimes, wrongs or acts may be admitted

for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity or absence of mistake or lack of accident and is

                                       -7-
J-S37035-18


admissible in a criminal case only where the probative value of the evidence

outweighs its potential for unfair prejudice. Pa.R.E. 404(b)(2).

       In the matter sub judice, Appellant acknowledges that evidence she

and her co-defendant committed other robberies “might have been

admissible”; however, she reasons that “ascribing to them evidence that [she]

was also committing other robberies and illegally purchasing and using drugs-

crimes not charged in this matter- was improper.” Appellant admits “research

has not discovered any case on point with this issue where such evidence was

ruled inadmissible under circumstances such as those in this record,” but

submits admission of evidence concerning Appellant’s drug dependency was

“manifestly unreasonable” herein, especially in light of the “overwhelming”

evidence of Appellant’s guilt, including testimony of her co-conspirator, Mr.

Galante, that had been presented prior to the time Detective Slemmer

testified. Appellant concludes the minimal probative value of the evidence

resulted in its being unduly prejudicial to her. Brief for Appellant at 11-12.

      The trial court held the testimony of Detective Douglas Slemmer

concerning the actions of Appellant and Mr. Galante was admissible under

Pa.R.E. 404(b)(2) to show the presence of the intent, preparation, plan and

knowledge to establish a conspiracy. The court further found the evidence

admissible to rebut Appellant’s defense presented at trial that she was merely

present when the crimes were committed.          In doing so, the trial court

reasoned as follows:


                                     -8-
J-S37035-18


            [Appellant] asserts that this [c]ourt erred in admitting
     [Appellant’s] statement that she and Michael Galant[e] planned
     and engaged in other crimes. Statement, ¶ 3. In her statement,
     [Appellant] admitted that she and Galant[e] were involved in an
     ongoing criminal conspiracy at the time the robbery of Ms. Abrams
     occurred. She described the scope of that conspiratorial
     agreement as follows: the Defendant and Galante agreed to target
     older women at grocery stores to "rob" them of their purses, use
     the credit cards to obtain additional property that would then be
     converted into cash which would then be used by the two
     conspirators to purchase drugs for their joint use. [Appellant]
     admitted that, pursuant to that plan, she and Galante committed
     multiple robberies. She admitted that the crimes committed
     against Ms. Abrams were part of that ongoing criminal conspiracy
     between her and Galante. N.T. 2/16/16, pp. 13-19.
            Pennsylvania Rule of Evidence 404 generally prohibits the
     admission of evidence of a crime, wrong or other act to prove a
     person's character in order to show that on a particular occasion
     the person acted in accordance with the character. Pa.R.E.
     404(b)(1). However, such evidence may be admissible to prove
     motive, opportunity, intent, preparation, plan, knowledge,
     identity, absence of mistake or lack of accident if the probative
     value of the evidence outweighs its potential for unfair prejudice.
     Pa.R.E. 404(b)(2). This list of exceptions is not exclusive.
     Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017);
     Commonwealth v. Brown, 52 A.3d 320, 325 (Pa. Super. 2012),
     appeal denied, 62 A.3d 377 (Pa. 2013). "[C]ourts are not
     restricted to the nine exceptions expressly listed in Rule 404(b)(2)
     when exercising their discretion to permit the admission of
     evidence of prior crimes, wrongs and acts, so long as the evidence
     is used for purposes other than to prove character or a propensity
     to act in accordance with traits of character." Commonwealth v.
     Johnson, 160 A.3d 127, 144 (Pa. 2017).
            In the instant case, [Appellant] was charged with robbery
     and conspiracy to commit robbery. Both individuals involved fled
     the scene and were not immediately apprehended. This [c]ourt
     ruled that the evidence that [Appellant] admitted to have
     participated in other purse snatch robberies with Galante was
     admissible to prove identity.
            Evidence of other criminal conduct is admissible to prove
     identity where the relevant details and surrounding circumstances
     of each incident reveal criminal conduct which is sufficiently
     distinctive to establish a common plan, scheme or design.
     Commonwealth v. Tyson, 119 A.3d 353, 360 (Pa.Super.2015)

                                    -9-
J-S37035-18


     appeal denied, 633 Pa. 787, 128 A.3d 220 (2015). In the instant
     case, the robberies were committed pursuant to the same
     prearranged plan. The details were therefore more than
     distinctive, they were identical. The evidence was therefore
     relevant and admissible to prove identity. See Commonwealth v.
     Weakley, 972 A.2d 1182, (Pa.Super.2009), appeal denied, 986
     A.2d 150, 604 Pa. 696 (Evidence of a subsequent robbery of a
     jeweler was admissible in homicide prosecution involving death of
     a pharmacy owner to show identity, in view of methods that
     placed same signature on crimes at issue; both crimes involved
     selecting as victim a small business owner who possessed a large
     stock of small, easily confiscated, and highly valuable goods that
     could be readily trafficked in an illicit market, engaging victim not
     at his place of work but at his residence, overtaking and binding
     victim with combination of duct tape over eyes and mouth and
     plastic flex ties around wrists, and gaining uncontested access to
     valuable goods and a store of cash). Where, as here, multiple
     robberies derive from one criminal conspiracy and are but parts of
     one planned criminal episode, then evidence of each robbery
     event will be admissible at trial of the other offense to establish a
     common scheme or plan. Commonwealth v. Saunders, 483 Pa.
     29, 34, 394 A.2d 522, 525
     (1978).
            The evidence with regard to the general conspiracy and
     actions taken pursuant to that conspiracy was also admissible to
     show intent, preparation, plan and knowledge to establish
     conspiracy and to rebut the defense of mere presence. Pa.R.E.
     404(b)(2). At the time that the robbery occurred, [Appellant] was
     in the passenger seat of Galante's car. Galante committed the
     actual robbery. In its prosecution of [Appellant], the
     Commonwealth relied on conspiracy and accomplice liability. The
     defense argued that she did not intend to commit any crime, that
     she did not participate in the planning of any crime, that she did
     not enter into any agreement with Galante to commit a crime, that
     she had no foreknowledge that Galante was going to commit a
     theft and/or robbery and that she did not aid Galante at any time
     before, during or after the crime.
            [Appellant’s] admission prior to trial that she was, in fact,
     engaged in an ongoing conspiracy with Galante to commit the
     exact type of crime involved here in the exact manner and that
     the two of them had carried out that plan on more than one
     occasion was therefore relevant and admissible to prove that on
     the day this crime was committed, [Appellant’s] involvement
     involved more than "mere presence," that she accompanied

                                    - 10 -
J-S37035-18


      Galante to the ShopRite store for the explicit purpose of
      committing a crime, that she had the intent to assist her co-
      conspirator in carrying out the crime, that she entered the store
      to locate a potential victim, that she followed Ms. Abrams for the
      explicit purpose of robbing her and that she knew what Galante
      was going to do when he continued to follow Ms. Abrams. The
      evidence clearly rebuts [Appellant’s] argument of being in the
      wrong place, at the wrong time, with the wrong person. N.T.
      2/16/16, pp. 44-45; See Commonwealth v. Tyson, 119 A.3d 353,
      359 (Pa.Super. 2015) appeal denied, 633 Pa. 787, 128 A.3d 220
      (2015) (Evidence of a prior crime may be admitted to show a
      defendant's actions were not the result of a mistake or accident,
      "where the manner and circumstances of two crimes are
      remarkably similar.").
             Finally, this [c]ourt found that the agreement as to how the
      unlawful proceeds of the robbery, identity theft and access device
      fraud were to be used, i.e. the purchase of heroin, was part of the
      conspiratorial agreement between [Appellant] and Galante and
      that [Appellant’s] statements regarding the agreed disposition of
      those proceeds was therefore relevant and admissible to the
      conspiracy charges. This [c]ourt further found that the statement
      regarding why the two entered into and carried out their ongoing
      conspiracy was admissible under the motive exception to Rule
      404(b)(1). N.T. 2/16/16, p. 25.
             In admitting the evidence, this [c]ourt properly determined,
      as required, that the probative value of the evidence outweighed
      its potential for unfair prejudice. Pa.R.E. 404(b)(2). Because
      [Appellant] was not apprehended at the scene and did not directly
      participate in the robbery and theft, the evidence was necessary
      to establish her identity and her complicity in the crimes charged.

Trial Court Opinion, 9/11/17, at 9-13.

      Upon a review of the record, we agree with the trial court that Detective

Slemmer’s testimony was admissible to rebut Appellant’s defense at trial that

Mr. Galante acted without her knowledge in robbing Ms. Abrams, and that she

was merely present at the scene. See N.T. Trial, 2/16/16, at 44-48; N.T. Trial

2/18/16, at 26-31, 35-39. Moreover, the trial court provided the jury with a

cautionary instruction explaining the purpose for which the evidence of

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J-S37035-18


“crimes committed outside this particular crime involving the purse snatch of

May of 2015” had been admitted and informing it such evidence could not be

considered as proof of Appellant’s bad character or propensity to commit

crimes. N.T. Trial, 2/18/16, at 79-81.1

        As our Supreme Court has stated, [“i]t is well settled that the jury is

presumed to follow the trial court's instructions, Commonwealth v.

Travaglia, 611 Pa. 481, 28 A.3d 868, 882 (2011), and Appellant does not

otherwise attempt to offer any evidence establishing that the jury failed to do

so in the instant case.” Commonwealth v. Cash, 635 Pa. 451, 484, 137

A.3d 1262, 1280 (2016), cert. denied, Cash v. Pennsylvania, 137 S. Ct.

1202, 197 L. Ed. 2d 249 (2017). In light of the foregoing, Appellant cannot

establish arguable merit for this claim.

____________________________________________


1
    In relevant part, the trial court stated the following:

        You may not consider that evidence of drug use or involvement in
        other criminal activity for any other purpose, meaning you can’t
        just say, well, that person was involved in criminal activity;
        therefore, that person is bad, a bad person, that person has bad
        character, or that person has criminal tendencies and so,
        therefore, she must be guilty. You may not do that.
              This evidence is being admitted for one purpose and one
        purpose alone, is whether or not there was motive, whether or not
        that—there was a conspiracy, and whether or not she knew what
        to anticipate was going to occur on the date in question. You
        cannot just say, well, she did something bad in the past; so
        therefore, she must have done something bad here.

N.T. Trial, 2/18/16, at 81.




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J-S37035-18


        Appellant next contends the trial court did not have jurisdiction over

the crimes of identity theft, access device fraud and forgery because those

crimes were committed in New Jersey.2 In addressing Appellant’s challenge

to the trial court’s subject matter jurisdiction, we are mindful of the following:

       The standard of review for a question of subject matter jurisdiction
       is de novo and the scope of review is plenary. . . .
           [S]ubject matter jurisdiction relates to the competency of a
       court to hear and decide the type of controversy presented.
       Jurisdiction is a matter of substantive law. Whether a court has
       subject matter jurisdiction over an action is a fundamental issue
       of law which may be raised at any time in the course of the
       proceedings, including by a reviewing court sua sponte.[3]

Commonwealth v. Arcelay, 2018 WL 2927748, at *3-4 (Pa.Super. June 12,

2018) (citations and quotation marks omitted).

           While each court of common pleas in this state possesses the
       same subject matter jurisdiction to decide cases arising under the
____________________________________________


2
   We note that in her “Statement Pursuant to Pa.R.App.Pro. 1925(b),”
Appellant referenced convictions under 18 Pa.C.S.A. §§ 4120 (identity theft)
and 4106 (access device fraud). As such, she has waived any argument
pertaining to a conviction under 18 Pa.C.S.A. § 4101 (forgery). Rule
1925(b)(4)(vii) provides that “[i]ssues not included in the Statement and/or
not raised in accordance with the provisions of this paragraph (b)(4) are
waived.” Pa.R.A.P. 1925(b)(vii). In Commonwealth v. Lord, 553 Pa. 415,
420, 719 A.2d 306, 309 (1998), our Supreme Court established the bright-
line rule that “in order to preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court orders them to file a
Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any
issues not raised in a 1925(b) statement will be deemed waived.”


3
  It is noteworthy that during his closing argument, defense counsel told the
jury Appellant was guilty of identity theft and access device fraud and went so
far ask to ask it to find her guilty of those crimes. N.T. Trial, 2/18/16, at 35.
However, as this issue may be raised at any juncture of the proceedings, we
will consider the merits of this claim.

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     Crimes Code, that jurisdiction should only be exercised beyond
     the territorial boundaries of the judicial district in which it sits in
     the most limited of circumstances.

          The law is clear that the locus of a crime is always in
          issue, for the court has no jurisdiction of the offense
          unless it occurred within the county of trial, or unless,
          by some statute, it need not[.] For a county to take
          jurisdiction over a criminal case, some overt act involved
          in that crime must have occurred within that county. In
          order to base jurisdiction on an overt act, the act must
          have been essential to the crime, an act which is merely
          incidental to the crime is not sufficient.


Commonwealth v. Seiders, 11 A.3d 495, 497 (Pa.Super. 2010) (citations

and quotation marks omitted).

     Section 102 of the Crimes Code, entitled “Territorial applicability” states,

in relevant part: “Except as otherwise provided in this section, a person may

be convicted under the law of this Commonwealth of an offense committed by

his own conduct ... if ... (1) the conduct which is an element of the offense

or the result which is such an element occurs within this Commonwealth[.]”

18 Pa.C.S.A. § 102(a)(1). To establish the crime of identity theft of another

person, pursuant to 18 Pa.C.S.A. § 4120(a), the Commonwealth must prove

one “possesses or uses, through any means, identifying information of another

person without the consent of that other person to further any unlawful

purpose.” 18 Pa.C.S.A. § 4120(a). To sustain a conviction of access device

fraud under 18 Pa. C.S.A. § 4106(a)(1)(ii), the Commonwealth must establish

that one “(1) uses an access device to obtain or in an attempt to obtain

property or services with knowledge that [ ] (ii) the access device was issued

                                     - 14 -
J-S37035-18


to another person who had not authorized its use[.]” 18 Pa. C.S.A. §

4106(a)(1)(ii).

      Herein,     Appellant   acknowledges    “the   Commonwealth   presented

evidence that [ ] Appellant used the credit cards found in Ms. Abrams’ purse

to purchase merchandise in New Jersey.”          Brief for Appellant at 12-13

(citations to record omitted).       Notwithstanding, Appellant reasons the

aforementioned crimes could not have been prosecuted in Pennsylvania

because no evidence was presented that her conduct violated New Jersey law.

      However, Appellant’s theory ignores the fact that the felonious conduct

under the Pennsylvania Crimes Code was initiated in Pennsylvania where the

victim resided, and whether or not it contravened New Jersey Law is

inapposite. In Bucks County, Appellant and Mr. Galante took possession of

Ms. Abrams’ purse without her consent and utilized the cash and credit cards

contained therein to make various purchases in New Jersey.

      Specifically, they used Ms. Abrams’ cash to buy heroin and charged

items from Home Depot, Lowe’s and Kohl’s on Ms. Abrams’ credit cards.

Hence, jurisdiction in this case properly lies in the Pennsylvania trial court

because an element of each statute occurred here, i.e. Appellant used

identifying information (credit cards) issued to Ms. Abrams, a Pennsylvania

resident, to make purchases without her authorization in New Jersey.       18

Pa.C.S.A. § 102.




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J-S37035-18


       Appellant’s final claim pertains to the discretionary aspects of his

sentence. See Commonwealth v. Krum, 533 A.2d 134, 135 (Pa.Super.

1987) (en banc) (challenges to the trial court's application of the sentencing

guidelines address the discretionary aspects of Appellant's sentence).

Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011). Before this Court can address such a discretionary

challenge, an appellant must comply with the following requirements:


      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court's jurisdiction by satisfying a four-part test:
      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. [720]; (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. 42 Pa.C.S.A. § 9781(b).
      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006).

Id.

      Herein, Appellant waived her claim the trial court issued a sentence in

the aggravated range of the Sentencing Guidelines without providing

adequate reasons for doing so.       As stated above, the trial court initially

sentenced Appellant on May 27, 2016, to an aggregate term of seven and

one-half years to fifteen years in prison with a one-year sentence of probation

to be served concurrently thereto. Prior to Appellant’s filing of a motion for

reconsideration of that sentence on June 6, 2016, the trial court sua sponte



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entered an order on June 3, 2016, vacating Appellant’s sentence and directing

that a new sentencing hearing be held. That hearing was held on June 17,

2016, following which the trial court imposed a new aggregate sentence within

the Sentencing Guidelines range of five years to twenty years in prison with a

concurrent term of ten years’ probation, and it is this sentence from which the

instant appeal was taken.

       A review of the certified record reveals Appellant failed to raise the

challenge to her sentence that she presents herein with the trial court either

at her June 17, 2016, sentencing hearing or in a motion for reconsideration

following the imposition of the sentence. In fact, Appellant indicates in her

Response to Rule to Show Cause Why Appeal Should Not Be Quashed As

Interlocutory filed with this Court on January 17, 2017, that following June

17, 2016, “[n]o other post-verdict motions were filed or are pending.” See

id. at ¶2.      Thus, Appellant has failed to preserve a challenge to the

discretionary aspects of her sentence.         See Allen, supra.4

       Judgment of Sentence affirmed.




____________________________________________


4
  The trial court found this issue lacked merit. “To the extent our legal
reasoning differs from the trial court's, we note that as an appellate court, we
may affirm on any legal basis supported by the certified record.”
Commonwealth v. Rouse, 2018 WL 2750554, at *5 (Pa.Super. June 8,
2018) (citation omitted).

                                          - 17 -
J-S37035-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2018




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