J-S32038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ROBERT WILLIAM RUGGLES                     :
                                               :
                       Appellant               :      No. 1920 MDA 2017


             Appeal from the Judgment of Sentence August 4, 2017
               in the Court of Common Pleas of Schuylkill County
              Criminal Division at No.: CP-54-CR-0002221-2015


BEFORE:      PANELLA, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                 FILED JUNE 27, 2018

       Appellant, Robert William Ruggles, appeals from the judgment of

sentence imposed after his jury conviction of burglary, criminal conspiracy,

robbery, theft by unlawful taking, and harassment.1 We affirm.

       We take the following facts and procedural history from the trial court’s

November 20, 2017 opinion and our independent review of the record. The

above charges resulted from the attempted robbery of Robert John Miller, in

his home, by Appellant, Bobbi Jo Rohrbach, and Braxton Moore.




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1 18 Pa.C.S.A. §§ 3502(a)(1), 903, 3701(a)(1)(v), 3921(a), and 2709(a)(1),
respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       The one-day trial occurred on June 9, 2017. Co-defendant Rohrbach

testified against Appellant as part of a plea agreement.     (See N.T. Trial,

6/09/17, at 58, 65). She testified that, in the late evening of September 6,

2015, she met Appellant and Moore for the first time when she was at the

apartment of a friend.2 (See id. at 60-61). They were at the apartment for

approximately twenty minutes. (See id. at 90). The three of them devised

a plan to rob Miller, an individual they thought to be a drug dealer, in his

apartment, with the intent of taking his drugs and money. (See at 63, 66-

67). Thereafter, the three went to the apartment of another friend, Cheryl

Savaro, who lived in the same building as Miller.     While there, Appellant,

Rohrbach, and Moore agreed that Rohrbach would knock on Miller’s door, and

that Appellant and Moore would then rush in and steal drugs and money from

him. (See id. at 66-67). They were at Savaro’s apartment for approximately

ten minutes. (See id. at 90).

       Pursuant to the plan, the three individuals went to Miller’s apartment,

knocked on his door, dragged him by his hair, and demanded drugs and

money. (See id. at 33-36, 68-69, 71-73). However, Miller was unable to

provide them with anything, because he, in fact, was not a drug dealer. (See

id. at 37). Rohrbach stated that they then fled, taking Miller’s cell phone.

(See id. at 73).


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2Rohrbach refers to Appellant by his nickname, “Mofo.” (See N.T. Trial, at
61-62).

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       At the conclusion of trial, the jury convicted Appellant of the above

referenced crimes.       The court ordered a presentence investigative report

(PSI). On August 4, 2017, it sentenced Appellant to an aggregate term of not

less than eight nor more than sixteen years’ incarceration. The same day,

Appellant filed a post-sentence motion, which the court denied on November

20, 2017. Appellant timely appealed.3

       Appellant raises three questions for this Court’s review:

       I.    [Whether] the trial court erred in admitting (and failing to
       suppress) the testimony of co-defendant Bobby Jo Rohrbach . . .
       when the Commonwealth denied [Appellant’s] request for a
       Wade[4] hearing concerning . . . a photocopy of the image used
       by co-defendant Bobby Jo Rohrbach which had been substantially
       altered from the state in which it was used for an identification[?]

       [II.] [Whether] the trial court erred by failing to give the missing
       witness instruction as to Officer Mohl[?]

       [III.] [Whether] the evidence presented was insufficient to
       sustain the verdict; [whether] the jury verdict was against the
       weight of the evidence[?]




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3On January 10, 2018, Appellant filed a timely statement of errors complained
of on appeal pursuant to the trial court’s order. See Pa.R.A.P. 1925(b). The
court filed an opinion on January 11, 2018, in which it relied on the reasons
stated in its November 20, 2017 opinion denying Appellant’s post-sentence
motion. See Pa.R.A.P. 1925(a).

4Commonwealth v. Wade, 33 A.3d 108 (Pa. Super. 2011), appeal denied,
51 A.3d 839 (Pa. 2012).




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(Appellant’s Brief, at 1-2) (unnecessary capitalization omitted; citation

formatting provided).5

       In Appellant’s first issue, he maintains that the trial court erred in

admitting the testimony of Rohrbach on the basis of an “impermissibly

suggestive” identification procedure. (Id. at 5; see id. at 4-15). Appellant’s

issue does not merit relief.

       It is well-settled that “[t]he admission of evidence is a matter vested

within the sound discretion of the trial court, and such a decision shall be

reversed only upon a showing that the trial court abused its discretion.”

Commonwealth v. Rashid, 160 A.3d 838, 842 (Pa. Super. 2017), appeal

denied, 170 A.3d 976 (Pa. 2017) (citation omitted).

              Generally, in reviewing the propriety of identification
       evidence, the central inquiry is whether, under the totality of the
       circumstances, the identification was reliable. The question for
       the suppression court is whether the challenged identification has
       sufficient indicia of reliability to warrant admission, even though
       the confrontation procedure may have been suggestive.

                    Suggestiveness in the identification process is a
              factor to be considered in determining the
              admissibility of such evidence, but suggestiveness
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5 Page numbering provided by this Court. We note that Appellant’s brief
violates multiple Pennsylvania Rules of Appellate Procedure. For example, it
does not contain page numbers, see Pa.R.A.P. 2173; a table of contents and
citations, see Pa.R.A.P. 2174; or a statement of jurisdiction, statement of the
scope and standard of review, statement of the case, summary of the
argument, or copy of Appellant’s Rule 1925(b) statement, see Pa.R.A.P.
2111(a)(1), (3), (5), (6), (11); see also Pa.R.A.P. 2101 (“[I]f the defects are
in the brief . . . of the appellant and are substantial, the appeal or other matter
may be quashed or dismissed.”). However, because these errors do not
preclude our meaningful review, we will not find waiver on this basis.

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              alone does not warrant exclusion.             A pretrial
              identification will not be suppressed as violative of due
              process rights unless the facts demonstrate that the
              identification procedure was so infected by
              suggestiveness as to give rise to a substantial
              likelihood of irreparable misidentification.

               In determining whether a particular identification was
        reliable, the suppression court should consider the opportunity of
        the witness to view the criminal at the time of the crime, the
        witness’ degree of attention, the accuracy of [her] prior
        description of the criminal, the level of certainty demonstrated at
        the confrontation, and the time between the crime and the
        confrontation. The opportunity of the witness to view the actor at
        the time of the crime is the key factor in the totality of the
        circumstances analysis.

Commonwealth v. Bruce, 717 A.2d 1033, 1036-37 (Pa. Super. 1998),

appeal denied, 794 A.2d 359 (Pa. 1999) (citations and quotation marks

omitted).6

        Here, the court admitted Rohrbach’s testimony, finding that the

identification procedure was not so suggestive as to raise a substantial

likelihood of misidentification.       See id.   The totality of the circumstances

supports the court’s decision.

        On September 8, 2016, Police Officer Mohl7 showed Rohrbach

Appellant’s photograph, and asked her if she could identify him. (See N.T.



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6 In the argument section of his brief, Appellant cites to Wade one time, and
then mentions “Wade factors” twice, without actually identifying what they
are. (Appellant’s Brief, at 9, 12; see id. at 8). Upon review, they are nearly
identical to the factors identified in Bruce, supra. See Wade, supra at 114.

7   Officer Mohl’s first name is not mentioned in the certified record.

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Trial, at 105). She immediately identified the man in the picture as Appellant,

her co-conspirator in the criminal events. In finding that the identification

procedure was not overly suggestive, the court observed that Rohrbach was

not only a witness to the crime, but also Appellant’s co-defendant. She spent

half an hour with Appellant prior to the attempted robbery, talking with him

to plan how they would commit the crime.

        Based on the foregoing, we conclude that the trial court did not abuse

its discretion in allowing the admission of Rohrbach’s testimony. See Rashid,

supra at 842. Appellant’s first issue lacks merit.

        In the second issue in the argument section of his brief, Appellant

maintains that the trial court erred in admitting the testimony of Rohrbach

about the photograph8 she identified because the Commonwealth committed

a Brady9 violation. (See Appellant’s Brief, at 15-26). Specifically, he argues

that, because he was not aware that the photograph identified by Rohrbach

contained investigative notes before the jury was selected, he was not able to

question them during voir dire about what effect such evidence would have

on them. (See id. at 25-26). This issue is waived.




____________________________________________


8Appellant, not the Commonwealth, introduced the photograph at trial. (See
N.T. Trial, at 87). Moreover, defense counsel was the only attorney who
questioned Rohrbach about it. (See id. at 87-88, 105).

9   Brady v. Maryland, 373 U.S. 83 (1963).

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       First, we observe that Appellant failed to include a Brady issue in his

statement of questions involved. (See id. at 1-2); see also Pa.R.A.P. 2116(a)

(“No question will be considered unless it is stated in the statement of

questions involved or is fairly suggested thereby.”). Additionally, Appellant

failed to include a Brady claim in his concise statement of errors raised on

appeal. (See [Appellant’s] Statement of the [Errors] Complained on Appeal,

1/10/18, at unnumbered pages 1-2); see also Commonwealth v. Johnson,

107 A.3d 52, 69 n.7 (Pa. 2014), cert. denied, 136 S. Ct. 43 (2015) (finding

issue waived for failing to raise it in Rule 1925(b) statement). Therefore, for

these reasons, Appellant’s issue is waived.10

       In his next issue, Appellant argues that “the trial court erred by failing

to give the missing witness instruction as to Officer Mohl.” (Appellant’s Brief,




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10 Moreover, we briefly note that the issue would not merit relief. “The crux
of the Brady rule is that due process is offended when the prosecution
withholds material evidence favorable to the accused. . . . To establish . . .
Brady violations, [a defendant has] to prove that the Commonwealth willfully
or inadvertently suppressed impeachment evidence and that prejudice
ensued.” Commonwealth v. Wholaver, 177 A.3d 136, 158 (Pa. 2018)
(citations omitted). Here, the Commonwealth produced the photograph prior
to trial, so it did not commit a Brady violation. Moreover, Appellant was not
prejudiced by his inability to question the jury about what effect investigative
notes on a picture would have on them because such questioning is not
permitted. See Commonwealth v. Delligatti, 538 A.2d 34, 41 (Pa. Super.
1988), 552 A.2d 250 (Pa. 1988) (“[P]ermissible questions for voir dire
purposes . . . should be strictly confined to disclosing the prospective jurors’
ability to render a fair and impartial verdict and whether the jurors have
formed a fixed opinion as to the accused’s guilt or innocence.”). Therefore,
this issue would lack merit, even if not waived.

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at 26 (unnecessary capitalization omitted); see id. at 26-27). This issue does

not merit relief.

      “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Yale, 150 A.3d 979, 983 (Pa. Super. 2016) (citation

omitted). In addition:

            The trial court is not required to give every charge that is
      requested by the parties and its refusal to give a requested charge
      does not require reversal unless the Appellant was prejudiced by
      that refusal.

            A missing witness instruction may be given in limited
      circumstances. When a potential witness is available to only one
      of the parties to a trial, [] it appears this witness has special
      information material to the issue, and this person’s testimony
      would not merely be cumulative, then if such party does not
      produce the testimony of this witness, the jury may draw an
      inference that it would have been unfavorable.

Commonwealth v. Miller, 172 A.3d 632, 645 (Pa. Super. 2017), appeal

denied, 2018 WL 1611472 (Pa. filed Apr. 3, 2018) (citations and quotation

marks omitted).

      Here, the Commonwealth did not present Officer Mohl, the officer who

questioned Rohrbach about the photo, at trial.     Appellant argues that this

rendered defense counsel unable to ask him about the photograph’s condition

at the time he showed it to her. However, other than stating that Officer Mohl

was unavailable to the defense because he is a police officer, Appellant fails

to support the claim by providing evidence that his attempts to subpoena the

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officer for trial, in fact, proved unsuccessful.     See Commonwealth v.

Echevarria, 575 A.2d 620, 625 (Pa. Super. 1990) (“When defendant fails to

subpoena a witness who is known and available to him, even if that witness

has special information material to the issue which would not be cumulative,

he is not entitled to the ‘missing witness’ charge.”) (citation omitted).

      Additionally,   defense   counsel   cross-examined    Rohrbach    on   her

identification of Appellant in the photograph, and she responded that she did

not notice any notes, only the picture. (See N.T. Trial, at 87, 105). Therefore,

Officer Mohl’s testimony about whether there were or were not notations on

the photograph when he showed it to Rohrbach was immaterial. Hence, the

trial court did not abuse its discretion when it determined that Appellant was

not entitled to a missing witness instruction.       See Commonwealth v.

Pursell, 724 A.2d 293, 308 (Pa. 1999), cert. denied, 528 U.S. 975 (1999)

(missing witness instruction not required “where the testimony of a witness is

comparatively unimportant”) (citation omitted); see also Miller, supra at

645; Yale, supra at 983.

      In his next issue, Appellant argues that “the evidence presented was

insufficient to sustain the verdict; the jury verdict was against the weight of

the evidence.” (Appellant’s Brief, at 27; see id. at 27-28). This issue lacks

merit.

      Before reaching its merits, we observe that Appellant’s claim is waived

for his failure to provide any legal citation or discussion thereof in his one-


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page argument.         (See id. at 27-28); see also Pa.R.A.P. 2119(a)-(b);

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied,

562 U.S. 906 (2010) (“[W]here an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is

waived.”) (citation omitted).

       In addition, we note that, although Appellant frames his issue as a

challenge to both the sufficiency and weight of the evidence, in fact, it only

raises weight claims. He correctly states that his issue alleging inconsistencies

in Miller’s testimony challenges the weight of the evidence. (See Appellant’s

Brief, at 28).      However, his allegation that Miller and Rohrbach’s prior

convictions for crimes of dishonesty render them incredible, also goes to the

weight of the evidence, not sufficiency, as claimed by Appellant.11 (See id.);

see also Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011),

appeal denied, 34 A.3d 828 (Pa. 2011) (“Directed entirely to the credibility of




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11 Specifically, Appellant argues that the witnesses’ testimony “should have
been impeached and determined to be incredible” because they “have
extensive criminal histories which include multiple crimes of dishonesty.”
(Appellant’s Brief, at 28). We interpret this to be an inartful allegation that
the jury should have found the witnesses incredible due to their previous
convictions for crimes of dishonesty, not that trial counsel should have
impeached the witnesses. The same attorney served as Appellant’s trial and
appellate counsel, and he did impeach the witnesses about their criminal
history. (See N.T. Trial, at 53-54, 115-16).

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the Commonwealth’s chief witness, [a]ppellant’s claim challenges the weight,

not the sufficiency, of the evidence.”).

             Appellate review of a weight claim is a review of the exercise
      of discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court’s determination that the verdict is against the weight of the
      evidence. One of the least assailable reasons for granting or
      denying a new trial is the lower court’s conviction that the verdict
      was or was not against the weight of the evidence and that a new
      trial should be granted in the interest of justice.

Commonwealth v. Colon-Plaza, 136 A.3d 521, 529 (Pa. Super. 2016)

(citation and emphasis omitted).

      Here, the trial court found that Appellant’s issue lacks merit because the

jury was entitled to assess the credibility of the witnesses and determine the

weight to give to their testimony. (See Trial Court Opinion, 11/20/17, at 7).

We agree. The claims Appellant raises, that the victim did not see his face

and gave conflicting testimony, and that he and Rohrbach had prior

convictions for crimes involving dishonesty, were for the jury to consider in

rendering its verdict. See Commonwealth v. Scott, 146 A.3d 775, 777 (Pa.

Super. 2016), appeal denied, 166 A.3d 1232 (Pa. 2017) (“[T]he trier 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.”) (citation

omitted). The trial court did not abuse its discretion in finding that the verdict




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was not against the weight of the evidence. See Colon-Plaza, supra at 529.

Therefore, Appellant’s issue would lack merit, even if not waived.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2018




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