J. S02010/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
JAMES GEORGE DOURIS,                     :          No. 998 EDA 2016
                                         :
                        Appellant        :


         Appeal from the Judgment of Sentence, February 29, 2016,
              in the Court of Common Pleas of Bucks County
             Criminal Division at No. CP-09-CR-0007834-2014


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED APRIL 19, 2017

      James George Douris appeals from the February 29, 2016 judgment of

sentence entered in the Court of Common Pleas of Bucks County, following

his conviction in a jury trial of one count of perjury, three counts of forgery,

one count of tampering with or fabricating physical evidence, and one count

of false swearing in an official proceeding.1     The trial court imposed an

aggregate sentence of 30 days to 23 months of imprisonment, followed by

3 years of probation. We affirm.

      The trial court summarized the evidence, as follows:

                 [Appellant] appeared before Magisterial District
            Judge Jan Vislosky in Fallsington, Bucks County, PA
            on November 17, 2011. [Appellant] had filed a civil
            complaint against Becker Tree Service (“Becker”),

1
   18 Pa.C.S.A.    §§   4902(a),    4101(a)(3),   4910(2),   and    4903(a)(1),
respectively.
J. S02010/17


          which had performed work at his home in Upper
          Makefield Township, Bucks County.          [Appellant]
          claimed that the work performed by Becker was
          unsatisfactory, [sic] and required repair. [Appellant]
          sought damages for repayment of his original costs,
          as well as for the cost of repairing Becker’s work, in
          the total amount of Five Thousand Dollars
          ($5,000.00).

          ....

                On the first day of trial, Magisterial District
          Judge      Vislosky     recounted        [appellant’s]
          sworn[Footnote 3] testimony in her district court on
          November 17, 2011, when he asserted that he had
          paid Becker Two Thousand Dollars ($2,000.00) which
          he was seeking to have refunded, given Becker’s
          allegedly inadequate tree work on his property.
          [Appellant] also claimed at trial that the $2,000.00
          was owed to him under the Pennsylvania Unfair
          Trade Practices and Consumer Protection Law.

                 [Footnote 3] The oath to tell the truth
                 taken by [Appellant] was administered
                 by legal authority, Judge Vislosky, in the
                 judicial proceeding which took place in
                 her court.

                 Judge Vislosky also recalled that [appellant]
          testified that he sought an additional Three
          Thousand Dollars ($3,000.00), which constituted
          repayment to him of what he alleged he had already
          paid others to repair damages allegedly caused by
          Becker, along with additional damages. [Appellant’s]
          testimony in the subject Common Pleas Court trial,
          as to why he sought the additional $3,000.00 in
          damages,     was     essentially   consistent   with
          Judge Vislosky’s testimony as to the claims he had
          made in her court.

                 In support of his testimony in her court,
          [appellant] provided Judge Vislosky with an invoice
          reflecting the $2,000.00 paid to Becker. He also
          provided invoices that he represented to be


                                   -2-
J. S02010/17


          estimates and/or payments for repair of damages
          allegedly caused by Becker as a result of services it
          performed at [appellant’s] property.     [Appellant]
          submitted photographs of the damage to his
          property that he alleged had been caused by Becker.

                Judge Vislosky testified that at the hearing
          before her, [appellant] testified that a representative
          from Becker came to his home and offered to repair
          any damages or to arrange for another company to
          perform any repairs. When a representative from
          Maple’s Tree Service thereafter came to [appellant’s]
          home to complete the repairs, [appellant] would not
          allow him to do so. [Appellant] testified that his son-
          in-law, Joe Connolly, “came over--right away.”

                 The invoices [appellant] presented to Judge
          Vislosky for the repair work were from “Joe Connolly
          in Philadelphia.” Exhibit C-2 was a proposal for work
          in the amount of Two Thousand Five Hundred Dollars
          ($2,500.00) for raking wood chips, filling in topsoil
          and seeding and fertilizing the grass following
          Becker’s allegedly substandard work at the property.
          That invoice reflected a deposit to be paid of One
          Thousand Two Hundred Fifty Dollars ($1,250.00) if
          the proposal were accepted. The Connolly invoice
          did not include an address or telephone number.

                 Judge Vislosky testified that [appellant]
          provided her with another invoice from “Joe Connolly
          of Philadelphia” for grinding six (6) tree stumps.
          Again, no business address or telephone number was
          reflected on the proposal. The proposal stated a cost
          of One Thousand Two Hundred Fifty Dollars
          ($1,250.00), with a deposit of Six Hundred Twenty-
          Five Dollars ($625.00) due should the proposal be
          accepted.

                Exhibit C-4 was a proposal from “Joe Connolly
          of Philadelphia” to [appellant] for repairing and
          resealing [appellant’s] driveway.       The Exhibit
          included three (3) pages. On the first page the
          proposal reflected a total cost of $1,250.00. Page
          two (2) reflected a Six Hundred Twenty-Five Dollar


                                   -3-
J. S02010/17


          ($625.00) deposit having been paid, and page three
          (3) reflected a payment of the remaining $625.00.
          The proposal did not include any contact information
          for Joe Connolly of Philadelphia. Additionally, the
          documents included in Exhibits C-2, C-3, and C-4
          were all devoid of any reference to dates, including
          dates of proposals, work performed or completed, or
          payments billed or received.

                 Judge Vislosky testified that [appellant]
          provided sworn testimony on November 17, 2011
          that Joe Connolly had come to [appellant’s] home,
          assessed the damage done by Becker, and provided
          proposals for repair of the damage.     [Appellant]
          testified he paid some of the money to Connolly but
          that he needed to prevail at the hearing before
          Judge Vislosky to garner the funds to pay Connolly
          what he still owed him.[Footnote 4]

                [Footnote 4] We note that after hearing
                all of the testimony and reviewing the
                exhibits, Judge Vislosky ruled in favor of
                Becker and against [appellant].

                 Joseph Connolly, [appellant’s] son-in-law,
          testified at the October, 2015 trial in Common Pleas
          Court that he has lived in Philadelphia for five (5)
          years and that he has been employed by Pepsi for
          approximately seven (7) years.             Mr. Connolly
          testified that he does not work anywhere other than
          Pepsi and that he is not presently, nor has he been
          in the past, the owner of his own company.
          Mr. Connolly testified that over the seven (7) or
          eight (8) years he has known [appellant], he has
          performed various work at [appellant’s] home. The
          work performed by Mr. Connolly, either alone or with
          the assistance of his cousin Robert Supley, included
          flooring, painting, yard work, soil and tree removal,
          and driveway paving or sealcoating. Mr. Connolly
          testified that he could not recall if he removed a tree
          from [appellant’s] property in 2009. He testified,
          however, that the work at [appellant’s] property had
          been performed prior to 2011; that is, prior to the
          date when Mr. Supley passed away.


                                   -4-
J. S02010/17



                  Mr. Connolly testified that he was paid for the
          work he performed at [appellant’s] home, but
          claimed that he did not know how much he was paid
          because his wife, [appellant’s] daughter, “dealt with
          it . . . [.] My wife deals with her father. Like, I don’t
          speak with my father-in-law that often. My wife
          dealt with it.”       Mr. Connolly testified that his
          relationship with his father-in-law consisted of seeing
          him perhaps three (3) or four (4) times per year, for
          family holidays. They did not otherwise socialize.

                [Appellant] testified at the October, 2015
          Common Pleas Court trial.      He insisted that his
          son-in-law, Mr. Connolly, with the occasional
          assistance of Mr. Supley, “absolutely” performed the
          repair work at issue following Becker’s allegedly
          substandard work at [appellant’s] property.

                 [Appellant] testified that he paid his daughter
          for Mr. Connolly’s work[], but that he did not have a
          receipt for payment made to Mr. Connolly. When
          asked how he received the invoice depicted in
          Exhibit C-2, [appellant] testified he had nothing to
          do with preparing or altering the invoice. “I didn’t
          make it. I didn’t put a pen to it. I didn’t do anything
          to it.” “. . . [O]bviously I asked Joe, my son-in-law,
          to prepare a receipt for me so I can present this to
          the court. . . . He didn’t do it right away.”
          [Appellant] stated that he also asked his son-in-law
          to produce the document presented as Exhibit C-3.
          [Appellant] testified that Mr. Connolly did not
          produce it right away, stating that “it was like pulling
          teeth.”     [Appellant] claimed that his son-in-law
          “absolutely” performed the work described in the
          invoice introduced as Exhibit C-4, [sic] and insisted
          that he did not prepare that receipt himself.

                 When Mr. Connolly was questioned about the
          Exhibits C-2, C-3, and C-4, he testified that he
          became      aware    of   the  documents    labeled
          “Joseph Connolly of Philadelphia,” which [appellant]
          had presented at his hearing before Magisterial
          District Judge Vislosky, when members of the Bucks


                                    -5-
J. S02010/17


            County District Attorney’s office visited him at his job
            and showed him the proposals.             When asked
            whether he had created those proposals, he replied,
            “Not that I am aware of,” and when pressed for
            further clarification as to whether he did or did not
            prepare the proposals, Mr. Connolly again stated
            “Not that I am aware of.” He admitted that “as far
            as I’m aware of,” the first time he saw the
            documents       was   when    somebody      from     law
            enforcement showed them to him. Mr. Connolly
            testified that he did not know who prepared the
            invoices represented in Exhibits C-2, C-3, and C-4.

                   [Appellant] testified at trial that an invoice
            admitted into evidence as Exhibit C-6 that read
            “Joe Connelly Jr. Construction,” was an invoice that
            he believed Mr. Connolly had previously presented to
            him for work performed at [appellant’s] home.
            Despite his testimony that Mr. Connolly is not a
            “junior,” [appellant] insisted that he received the
            invoice from Mr. Connolly. [Appellant] also noted
            that the invoice introduced as Exhibit C-6, which
            spelled Connolly “C-O-N-N-E-L-L-Y”, as opposed to
            “Connolly” as it was spelled in Exhibits C-2, C-3, and
            C-4, was “spelled wrong . . . misspelled absolutely.”
            Under the circumstances, it was reasonable for the
            jury to conclude that it was less than likely that
            Mr. Connolly would mistakenly refer to himself as
            “Jr.,” and less than likely that Mr. Connolly would
            misspell his own name on written documents
            [appellant] claimed Mr. Connolly had produced.

Trial court opinion, 8/11/16 at 2, 4-10 (citations to notes of testimony

omitted).

      The record further reflects that appellant did not file post-sentence

motions. On March 24, 2016, appellant filed a notice of appeal to this court.

Appellant thereafter complied with the trial court’s order directing appellant




                                     -6-
J. S02010/17


to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). The trial court then filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

              A.     Was the evidence sufficient to support the
                     convictions?

              B.     Did the trial judge err in permitting a police
                     detective to testify to the hearsay statement
                     made by the key witness in the case when that
                     witness was never confronted with the
                     statement during testimony?

Appellant’s brief at 4.

      With respect to appellant’s sufficiency challenge, a reading of

appellant’s brief reveals that he does nothing more than set forth certain

portions of Joseph Connolly’s trial testimony, as well as certain portions of

his own testimony and the testimony of Messrs. Connolly and Supley from

the underlying magistrate’s hearing, in an effort to convince this court that

someone other than appellant prepared the falsified proposals. In so doing,

appellant’s argument on his first issue challenges the weight of the evidence,

not its sufficiency.       See, e.g., Commonwealth v. Gibbs, 981 A.2d 274,

281-282 (Pa.Super. 2008) (an argument that the fact-finder should have

credited one witness’ testimony over that of another witness goes to the

weight   of    the        evidence,    not    the   sufficiency    of   the   evidence);

Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003) (a

review of the sufficiency of the evidence does not include a credibility

assessment;        such    a   claim   goes    to   the   weight   of   the   evidence);


                                             -7-
J. S02010/17


Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997) (the

fact-finder makes credibility determinations, and challenges to those

determinations go to the weight of the evidence, not the sufficiency of the

evidence).

      In order to raise a weight claim on appeal, Pennsylvania Rule of

Criminal Procedure 607 requires appellant to raise the claim with the trial

judge in a motion for a new trial “(1) orally, on the record, at any time

before sentencing; (2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). “The purpose of this

rule is to make it clear that a challenge to the weight of the evidence must

be raised with the trial judge or it will be waived.”        Pa.R.Crim.P. 607,

comment.

      Our review of the certified record reveals that appellant failed to file

any post-sentence motions.        Additionally, although the certified record

contains a portion of the trial transcript, it only includes the transcription of

the proceedings that occurred prior to the close of testimony. Furthermore,

the sentencing transcript is not contained within the certified record.

Therefore, we are unable to determine whether appellant raised a challenge

to the weight of the evidence on the record following the jury’s verdict or on

the record before sentencing. We remind appellant that it is appellant’s duty

to “ensure that the certified record is complete for purposes of review.”

Commonwealth v. Dehart, 730 A.2d 991, 993 n.1 (Pa.Super. 1999),



                                      -8-
J. S02010/17


appeal denied, 745 A.2d 1218 (Pa. 1999). An appellant’s failure to provide

the reviewing court with a complete certified record results in waiver of the

claim.   See Commonwealth v. Johns, 812 A.2d 1260, 1261 (Pa.Super.

2002); see also, Commonwealth v. Lassen, 659 A.2d 999, 1008

(Pa.Super. 1995) (holding that where a claim depends upon materials not

provided in the certified record, that claim is waived). Accordingly, because

the certified record contains no evidence that appellant preserved his weight

challenges, appellant waives those challenges on appeal.

      Appellant finally complains that the trial court erred in permitting

Detective     Patricia   Haines   to   testify   that   during   the   course   of   her

investigation, Joseph Connolly stated to her that he did not prepare the work

proposals2 that gave rise to appellant’s prosecution, that he was unfamiliar

with the proposals, that he did not know who prepared the proposals, and

that he did not perform the majority of work set forth in the proposals.

(Appellant’s brief 13-14.)        Appellant contends that this portion of the

detective’s     testimony     constituted        impermissible    hearsay       because

Mr. Connolly was not confronted with the statements that he allegedly made

to Detective Haines.          Appellant further claims that this portion of

Detective Haines’s testimony prejudiced appellant because it contradicted

Mr. Connolly’s trial testimony, and as a result, the jury convicted appellant.



2
 We note that appellant refers to the documents in his brief as “invoices,”
but the record reflects that the each of three documents is titled, “proposal.”


                                          -9-
J. S02010/17


            [T]he admissibility of evidence rests within the sound
            discretion of the trial court, and such a decision will
            be reversed only upon a showing that the trial court
            abused its discretion. An abuse of discretion is not
            merely an error of judgment, 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.
            Hearsay is defined as [“]a statement, other than one
            made by the declarant while testifying at trial or
            hearing, offered in evidence to prove the truth of the
            matter asserted.[”] Hearsay testimony is per se
            inadmissible in this Commonwealth, except as
            provided in the Pennsylvania Rules of Evidence, by
            other rules prescribed by the Pennsylvania Supreme
            Court, or by statute.

Commonwealth v. Gray, 867 A.2d 560, 569-570 (Pa.Super. 2005)

(internal citations, original quotation marks, and original brackets removed).

See also Pa.R.E. 803(c) (defining “hearsay” as “a statement that (1) the

declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the

statement.”).

      Here, the record reflects that Mr. Connolly testified as a reluctant

prosecution witness. When asked on direct examination when he first saw

the proposals, he responded that, “it was the first time you guys came to

visit me at my job and showed them to me.” (Notes of testimony, 10/20/15

at 40.) When asked on direct if he had created the documents, Mr. Connolly

replied, “Not that I’m aware of.”     (Id.)   On cross-examination, appellant

asked Mr. Connolly if he knew who prepared the proposals that the



                                     - 10 -
J. S02010/17


prosecutor showed him on direct. Mr. Connolly replied, “No.” (Id. at 50.)

The record demonstrates that this portion of Mr. Connolly’s testimony was

substantially similar to Detective Haines’s testimony. Specifically, when the

prosecution asked Detective Haines on direct what Mr. Connolly said about

the proposals,3 the detective responded, “He stated that he did not prepare

them, that he was unfamiliar with them, and that he does not know or he

did not know who prepared them.” (Id. at 55.)

      With respect to the work that Mr. Connolly performed for appellant,

Mr. Connolly testified as follows:

            Q      His housework. Just -- I mean labor, I guess.
                   That’s it.

            A      In the house or outside the house?

            Q      In, outside, around, yes.

            Q      What kinds of stuff have you done specifically?

            A      Labor I mean. Flooring, paint, yard work. I
                   did -- depends. A lot -- I’m not really sure of
                   everything I’ve done, but it was a lot of work I
                   did.

            Q      Have you ever done any tree removal?

            A      Removed a tree from his yard, yes.

            ....


3
   We note that the record reflects that appellant’s counsel objected
immediately after the prosecutor asked Detective Haines what Mr. Connolly
said about the proposals on the grounds that the witness “wasn’t
contradicted or confronted with any inconsistencies to warrant this
testimony.” (Notes of testimony, 10/20/15 at 55.)


                                     - 11 -
J. S02010/17


           Q      Have you ever done any paving work for him?

           A      Paving or sealcoating      or   what?   I don’t
                  understand.

           ....

           Q      What exactly did you do?

           A      The driveway.

           ....

           A      Put like sealcoating, like I put stuff in the
                  cracks, like on the surface of the driveway.

Id. at 37-39.

     When the prosecutor asked Detective Haines what Mr. Connolly said

about the work that was claimed to have been done as set forth on the

proposals,4 Detective Haines responded, “He stated that he had done some

work for [appellant], but that the majority of the things that were listed on

the paperwork he did not do.” (Id. at 56.) The following colloquy then took

place:

           Q      What did he specifically say about the
                  document that contained the claim about
                  stump grinding?

           A      He stated that he did not grind any stumps.
                  He stated he did drag some trees and he did
                  do some cleanup work from the refuse of
                  trees, but he did not grind any stumps.

4
   We note that the record reflects that appellant’s counsel placed an
objection on the record immediately after the prosecutor asked
Detective Haines what Mr. Connolly said about the work that appellant
claimed that Mr. Connolly had done, but counsel did not state the grounds
for his objection. (Notes of testimony, 10/21/15 at 56.)


                                   - 12 -
J. S02010/17



             Q    What about landscaping?

             A    That was when he was explaining that he did
                  drag some trees around and did some raking
                  and that he put -- dug some holes for a fence.
                  And he did some painting.

Id. at 56.

      The record demonstrates that this portion of Detective Haines’s

testimony was also substantially similar to Mr. Connolly’s testimony.

Appellant, however, complains that this constituted inadmissible hearsay

because, “for the first time, the jury heard Detective Haines [sic] claim that

Mr. Connolly said he had done some work for [appellant], but that the

majority of the things that were listed on the paperwork he did not do.”

(Appellant’s brief at 15.)   Detective Haines’s statement that Mr. Connolly

said “that the majority of the things that were listed on the paperwork he did

not do,” however, was not offered to prove the truth of the services that

Mr. Connolly rendered to appellant, but was offered to demonstrate that

Mr. Connolly did not prepare the invoices. Therefore, the trial court did not

abuse its discretion in admitting the statement because it did not constitute

hearsay under Pa.R.E. 803(c).

      Judgment of sentence affirmed.



      Stabile, J. joins this Memorandum.

      Moulton, J. concurs in the result.



                                     - 13 -
J. S02010/17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/19/2017




                          - 14 -
