J-S36018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    HARRY ALBERT SMITH                         :
                                               :
                       Appellant               :       No. 73 WDA 2020

       Appeal from the Judgment of Sentence Entered November 22, 2019
                 In the Court of Common Pleas of Mercer County
              Criminal Division at No(s): CP-43-CR-0000287-2019


BEFORE:      OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY KING, J.:                                FILED AUGUST 21, 2020

        Appellant, Harry Albert Smith, appeals from the judgment of sentence

entered in the Mercer County Court of Common Pleas, following his bench trial

convictions for burglary, criminal trespass, and criminal mischief.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

Appellant befriended Carolyn Gayle Pierre (“Victim”), an elderly woman with

medical issues, and he completed certain tasks around her house. Victim lived

alone at a residence in Farrell, Pennsylvania. A breezeway with a sliding glass

door connects Victim’s house to her garage. Victim always locked her side

door, a wooden door with glass panels, which led from the breezeway to her


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3502(a)(1)(ii), 3503(a)(1)(ii), and 3304(a)(5), respectively.
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house.

     On January 20, 2019, Appellant went to Victim’s house and shoveled

snow in the driveway. At some point, Appellant stopped shoveling and entered

Victim’s house. The trial court summarized the ensuing events as follows:

         Upon leaving her bathroom, [Victim] discovered Appellant
         standing in her house attempting to conceal her purse,
         which contained her checkbook, under his jacket. [Victim]
         testified she did not invite Appellant over to her house or
         give Appellant permission to come into her house.
         Moreover, [Victim] testified the glass window panel in her
         side door nearest to the doorknob was broken and she had
         locked the side door prior to Appellant appearing uninvited
         in her home. [Victim] testified [that] after she confronted
         Appellant, Appellant threw the purse down and abruptly left
         her home.

         Appellant testified [that] he showed up to [Victim’s] home
         to shovel her driveway because a snowstorm had occurred
         the day before and there were several inches of snow on the
         ground. While shoveling [Victim’s] driveway, Appellant
         stated his hands got cold so he thought he would ask
         [Victim] for a pair of gloves. Appellant then said he opened
         a sliding breezeway door and proceeded to knock on the
         glass window panel in [Victim’s] side door to get her
         attention.

         After two knocks, Appellant testified the glass window panel
         suddenly shattered and [Victim] invited him inside her home
         to get warm. Appellant then testified he left [Victim’s] home
         and told her he would return to finish shoveling her driveway
         once he went to get gloves and something to eat.

         [Victim’s] neighbor, Tracy Graham-Hughes, testified she
         saw Appellant pretending to shovel [Victim’s] driveway the
         day of the incident. Concerned, Ms. Graham-Hughes called
         [Victim] and asked her, “[D]id you ask him to come over to
         do your driveway? She said, no.” Ms. Graham-Hughes also
         testified [Victim] was afraid of Appellant. Ms. Graham-
         Hughes further testified she observed Appellant leaving
         [Victim’s] property. Worried about Victim, Ms. Graham-

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         Hughes ran over to check up on [Victim].

         Once Ms. Graham-Hughes arrived, she observed the glass
         window panel in [Victim’s] side door nearest the doorknob
         was broken. Describing the extent of the broken window
         panel, Ms. Graham-Hughes testified: “[T]he part in the
         bottom left was broken out where you can reach in and
         unlock the door.” Ms. Graham-Hughes further testified the
         broken window panel was within an arm’s reach of the
         doorknob. Concluding her testimony, Ms. Graham-Hughes
         testified:

            And I said, “Oh my God,” I said, “He was in here. He
            broke in your house.”       [Victim] said, “[Y]eah.”
            [Victim] said she was in the bathroom and she didn’t
            know he was in the house. And when she came out it
            startled her, because she said, “What are you doing
            here?” He was in her house.

         Ms. Graham-Hughes also testified she observed Appellant in
         the past peeking into [Victim’s] windows like [a] peeping
         tom.     Ms. Graham-Hughes believed Appellant was
         attempting to see if [Victim] was in her home.

         David Rhodes, another neighbor of [Victim], testified [he]
         arrived at [Victim’s] house after his wife called 911 to report
         the burglary. Upon arriving at [Victim’s] house, Mr. Rhodes
         testified he observed the glass window panel in [Victim’s]
         side door nearest to the doorknob was broken and it looked
         as if someone broke the glass panel from the outside.

(Trial Court Opinion, filed March 11, 2020, at 2-5) (internal record citations

omitted).

      The Commonwealth charged Appellant with burglary, criminal trespass,

criminal mischief, and theft by unlawful taking.        On July 5, 2019, the

Commonwealth filed notice of its intent to present evidence of prior bad acts,

pursuant to Pa.R.E. 404(b).     Specifically, the Commonwealth intended to

introduce evidence that Appellant had befriended another elderly woman in

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2017, gained access to her credit card, and made unauthorized withdrawals

in the amount of $2,812.75. On July 12, 2019, Appellant filed a motion in

limine, arguing the prior bad acts evidence was inadmissible. The court denied

Appellant’s motion in limine on August 19, 2019.

      Appellant proceeded to a bench trial, and the court found Appellant

guilty of burglary, criminal trespass, and criminal mischief. The court also

acquitted Appellant of the theft charge. On November 22, 2019, the court

sentenced Appellant to an aggregate term of thirty (30) to sixty (60) months’

incarceration. Appellant timely filed post-sentence motions on December 2,

2019. Among other things, Appellant argued Victim’s trial testimony “was of

such poor and ambiguous quality that it lacked sufficient reliability and

trustworthiness.” (Post-Sentence Motions, filed 12/2/19, at 1). On December

11, 2019, the court denied Appellant’s post-sentence motions.

      Appellant timely filed a notice of appeal on January 10, 2020. That same

day, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal. Appellant timely filed his Rule 1925(b)

statement on January 27, 2020.

      Appellant now raises two issues on appeal:

         Was not the evidence at trial insufficient as a matter of law
         to sustain the convictions of burglary and criminal trespass
         because the trial testimony of [Victim] was so vague,
         uncertain, contradictory and internally inconsistent that it
         was insufficiently reliable and trustworthy to establish a
         credible basis for a determination that the crimes of burglary
         and criminal trespass had been committed beyond a
         reasonable doubt?

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         Did not reversible error occur when the trial court permitted
         the Commonwealth under [Pa.R.E.] 404(b)(2), to offer as
         evidence at trial Appellant’s prior acts of befriending an
         elderly woman and then fraudulently obtaining unauthorized
         possession of the elderly woman’s credit cards and obtaining
         cash from the unauthorized use of the credit cards?

(Appellant’s Brief at 3).

      In his first issue, Appellant argues the trial court “did not find [Victim]

fully credible because of her age and medical issues,” but it did credit Victim

“on the limited claim that she saw … Appellant attempting to hide [Victim’s]

purse under his jacket.”       (Id. at 19).   Appellant insists the court erred in

making this credibility determination, because Victim “testified at trial as to

two inconsistent versions of what occurred when she came out of the

bathroom.”     (Id.)        Specifically, Appellant emphasizes Victim’s cross-

examination testimony that, at some point, Appellant actually asked to enter

the house because he needed gloves.

      Appellant further argues that Victim first mentioned Appellant’s hiding

of the purse after speaking with her neighbor, Ms. Graham-Hughes. Appellant

contends Ms. Graham-Hughes does not like him, and “[a] reasonable inference

is that Ms. Graham-Hughes or someone else may have influenced [Victim’s]

observations and recollections of events….”          (Id. at 21).    Under these

circumstances, Appellant maintains Victim’s testimony “was so vague,

uncertain, [and] inconsistent … that the Commonwealth’s evidence from

[Victim] lacked sufficient reliability….” (Id.) Appellant concludes the evidence


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was insufficient to support his burglary and trespass convictions, and this

Court must reverse. We disagree.

     Preliminarily, the distinction between a claim challenging sufficiency of

the evidence and a claim challenging the weight of the evidence is critical.

Commonwealth v. Widmer, 560 Pa. 308, 318, 744 A.2d 745, 751 (2000).

        A claim challenging the sufficiency of the evidence is a
        question of law. Evidence will be deemed sufficient to
        support the verdict when it establishes each material
        element of the crime charged and the commission thereof
        by the accused, beyond a reasonable doubt. Where the
        evidence offered to support the verdict is in contradiction to
        the physical facts, in contravention to human experience
        and the laws of nature, then the evidence is insufficient as
        a matter of law.

                                 *    *    *

        A motion for new trial on the grounds that the verdict is
        contrary to the weight of the evidence, concedes that there
        is sufficient evidence to sustain the verdict. Thus, the trial
        court is under no obligation to view the evidence in the light
        most favorable to the verdict winner. An allegation that the
        verdict is against the weight of the evidence is addressed to
        the discretion of the trial court. A new trial should not be
        granted because of a mere conflict in the testimony or
        because the judge on the same facts would have arrived at
        a different conclusion.

                                 *    *    *

        [T]he role of the trial judge is to determine that
        notwithstanding all the facts, certain facts are so clearly of
        greater weight that to ignore them or to give them equal
        weight with all the facts is to deny justice.


Id. at 319-20, 744 A.2d at 751-52 (internal citations, quotation marks, and

footnote omitted).   See also Commonwealth v. Wilson, 825 A.2d 710


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(Pa.Super. 2003) (explaining sufficiency of evidence review does not include

assessment of credibility, which is more properly characterized as challenge

to weight of evidence).

      Our standard of review for a challenge to the weight of the evidence is

as follows:

         The finder of fact is the exclusive judge of the weight of the
         evidence as the fact finder is free to believe all, part, or none
         of the evidence presented and determines the credibility of
         the witnesses. As an appellate court, we cannot substitute
         our judgment for that of the finder of fact. Therefore, we
         will reverse a jury’s verdict and grant a new trial only where
         the verdict is so contrary to the evidence as to shock one’s
         sense of justice. Our appellate courts have repeatedly
         emphasized that one of the least assailable reasons for
         granting or denying a new trial is the [trial] court’s
         conviction that the verdict was or was not against the weight
         of the evidence.

Commonwealth v. Rabold, 920 A.2d 857, 860 (Pa.Super. 2007), aff'd, 597

Pa. 344, 951 A.2d 329 (2008) (internal citations and quotation marks

omitted).

         Moreover, where the trial court has ruled on the weight
         claim below, an appellate court’s role is not to consider the
         underlying question of whether the verdict is against the
         weight of the evidence. Rather, appellate review is limited
         to whether the trial court palpably abused its discretion in
         ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004).

      Instantly,    Appellant’s    post-sentence         motions    claimed       the

Commonwealth       presented   insufficient   evidence    where    the   trial   court


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improperly credited Victim’s testimony. Notwithstanding Appellant’s attempt

to raise a challenge to the sufficiency of the evidence, Appellant blurred the

concepts of weight and sufficiency.      See Widmer, supra.           Essentially,

Appellant contests Victim’s credibility, which is a challenge to the weight of

the evidence. See Wilson, supra.

      Nevertheless, Appellant properly preserved the weight issue, and the

trial court expressly addressed the claim as follows:

         The trial judge determined [Victim] was not fully credible
         due to her age and health issues. However, the trial judge
         found [Victim] was credible when she testified about her
         narration of the burglary.    The trial judge found the
         testimony that Appellant appeared uninvited [in Victim’s]
         home and was concealing [Victim’s] purse under his jacket
         credible.3

            3  The trial judge held: “[Victim] was very clear
            [regarding] the color of the purse, the cloth of the
            purse, I think, or at least the pattern of the purse.
            And she gave that same description to the police
            before. So she was very consistent the day of, and
            even today on that point.”

(Trial Court Opinion at 15-16) (internal record citations omitted).

      We see no reason to disturb the trial court’s conclusions and emphasize

that the finder of fact is exclusively responsible for weight determinations.

See Rabold, supra. Here, the trial court credited Victim’s testimony that

Appellant attempted to conceal her “green and tapestry type” purse “under

his jacket,” and Appellant “threw it” on the floor when confronted. (N.T. Trial,

9/16/19, at 35, 36). The responding officer, Sergeant Monica Rose, confirmed

that on the day of the incident, Victim claimed to see Appellant hide the purse


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under his jacket and subsequently throw it to the floor. (See id. at 111).

Additionally, Victim’s testimony that Appellant entered her house without

permission was supported by Ms. Graham-Hughes. (Id. at 87). Although

Victim may have offered conflicting testimony about the precise sequence of

events on the date of the burglary, the trial court was free to believe her

testimony in part. See Rabold, supra. On this record, the trial court did not

palpably abuse its discretion in ruling on the weight claim, and Appellant is

not entitled to relief on this basis. See Champney, supra.

      In his second issue, Appellant argues his “prior acts of unauthorized use

of another’s access device proves nothing about” whether he committed the

offenses at issue. (Appellant’s Brief at 26). Appellant acknowledges the prior

bad acts evidence “may show a character trait of [Appellant] preying on

elderly women to steal from them[.]” (Id. at 27). Appellant insists, however,

the underlying facts of the two incidents are so different “that the evidence of

the prior [bad] acts serve only to show Appellant’s … propensity to commit

nonviolent theft and has no probative value on the commission of the present

charges….” (Id.) Appellant concludes the court improperly admitted the prior

bad acts evidence, and he is entitled to a new trial on this basis. We disagree.

      This Court’s standard of review for issues regarding the admissibility of

evidence is well settled:

         Questions concerning the admissibility of evidence are
         within the sound discretion of the trial court ... [and] we will
         not reverse a trial court’s decision concerning admissibility
         of evidence absent an abuse of the trial court’s discretion.
         An abuse of discretion is not merely an error of judgment,

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        but is rather the overriding or misapplication of the law, or
        the exercise of judgment that is manifestly unreasonable, or
        the result of bias, prejudice, ill-will or partiality, as shown
        by the evidence of record. [I]f in reaching a conclusion the
        trial court [overrides] or misapplies the law, discretion is
        then abused and it is the duty of the appellate court to
        correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014), appeal

denied, 632 Pa. 667, 117 A.3d 294 (2015) (internal citations and quotation

marks omitted).

     “Relevance    is   the   threshold      for    admissibility   of   evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) (en banc),

appeal denied, 633 Pa. 787, 128 A.3d 220 (2015).

        Evidence is relevant if it logically tends to establish a
        material fact in the case, tends to make a fact at issue more
        or less probable, or tends to support a reasonable inference
        or proposition regarding a material fact. Relevant evidence
        may nevertheless be excluded if its probative value is
        outweighed by the danger of unfair prejudice, confusion of
        the issues, or misleading the jury, or by considerations of
        undue delay, waste of time, or needless presentation of
        cumulative evidence.

Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa.Super. 2019), appeal

denied, ___ Pa. ___, 219 A.3d 597 (2019) (internal quotation marks omitted).

     “Evidence of a crime, wrong, or other act is not admissible 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,

evidence of a crime, wrong, or another act “may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation, plan,


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knowledge, identity, absence of mistake, or lack of accident.”          Pa.R.E.

404(b)(2). “In a criminal case this evidence is admissible only if the probative

value of the evidence outweighs its potential for unfair prejudice.” Id.

      “Evidence of prior bad acts may [also] be admitted to establish the

existence of a common scheme, [establish] an individual’s motive, intent, or

plan, or [identify] a criminal defendant as the perpetrator of the offense

charged.”   Commonwealth v. Ivy, 146 A.3d 241, 253 (Pa.Super. 2016)

(internal quotation marks omitted).     “Two conditions must be satisfied to

admit prior-crimes evidence to establish a common scheme: (1) the probative

value of the evidence must outweigh its potential for prejudice against the

defendant and (2) a comparison of the crimes must establish a logical

connection between them.” Id. (internal quotation marks omitted).

      Instantly, the Commonwealth sought to introduce evidence of the

circumstances surrounding Appellant’s 2017 charges. The trial court noted

the similarities between the prior bad acts and the current offenses as follows:

         Addressing the logical connection between the two acts, the
         manner in which the two acts were committed was identical.
         Appellant inserted himself into the lives of both elderly
         women in [an] attempt to swindle them out of their money.
         Appellant preys on elderly women.

         The prior bad act involved an elderly woman named Ms.
         Marenchin.     Ms. Marenchin was Appellant’s neighbor.
         Appellant befriended her and then once he gained her trust,
         he stole $2,813.00 through ATM cash withdrawals.
         Similarly, Appellant introduced himself to [Victim] and
         offered to help with tasks around her house. Instead of
         helping [Victim], Appellant was simply casing her home.


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                                  *     *      *

         Applying the remaining factors used to establish a logical
         connection, both bad acts involved no weapons but
         Appellant’s sly tongue to gain his victim’s trust. The purpose
         of both bad acts was to swindle elderly women out of their
         money. Even though the location of the crimes were
         different, the type of victims in both bad acts were identical.
         Both were elderly women. After an examination of all the
         factors, it is clear a logical connection exists between the
         two bad acts.

(Trial Court Opinion at 9-10).

      Contrary to Appellant’s assertions, the prior bad acts evidence

established a common scheme that Appellant implemented on at least two

occasions.    Both the prior bad acts and current charges have a logical

connection, arising from Appellant’s attempts to befriend elderly women. See

Ivy, supra.     Moreover, we cannot say that the potential for prejudice

outweighed the probative value of the prior bad acts evidence. Id. Therefore,

the trial court did not abuse its discretion by admitting the evidence of prior

bad acts. See Belknap, supra. Accordingly, we affirm.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2020

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