J-S79012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DONALD M. BROWN

                            Appellant                No. 1071 EDA 2016


             Appeal from the Judgment of Sentence June 15, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000544-2015


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED NOVEMBER 02, 2016

        Appellant, Donald M. Brown, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his jury

trial conviction for retail theft.1 We affirm.

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

On December 29, 2014, Appellant and an accomplice, Mr. Williams, entered

a Home Depot in Marple Township through a service door labeled

“Contractors.” Mr. Williams was pushing a flat cart with a cardboard window

box on top. Appellant and Mr. Williams loaded a French door refrigerator on

the cart and proceeded to the customer service desk. Mr. Williams showed

the store clerk a receipt for the window and asked about the store’s return
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1
    18 Pa.C.S.A. § 3929(a)(1).
J-S79012-16


policy.   Mr. Williams claimed he purchased both the window and the

refrigerator at a different Home Depot store. While Mr. Williams spoke with

the clerk, Appellant stood nearby. After the clerk informed Mr. Williams that

he would have to return the items where they were purchased, Appellant

and Mr. Williams took the flat cart from the store without paying for the

refrigerator. As Appellant and Mr. Williams loaded the refrigerator into a U-

Haul truck outside of the store, Cesar Evangelista, a loss prevention officer

for Home Depot, recognized Mr. Williams from a prior retail theft.           Mr.

Evangelista became suspicious when he saw the refrigerator was a special

order item that the store would typically ship to a purchaser’s home.        Mr.

Evangelista called the police, who stopped Appellant and Mr. Williams in the

U-Haul near the store. Mr. Williams told officers that he and Appellant had

attempted to return the refrigerator, while Appellant stated he had

accompanied Mr. Williams to Home Depot to help him pick up a refrigerator.

The police arrested both Appellant and Mr. Williams.       The Commonwealth

charged Appellant with retail theft, receiving stolen property, and two counts

of conspiracy.

      Appellant proceeded to a jury trial on April 23, 2015.       Mr. Williams,

who had previously pled guilty to charges stemming from the Home Depot

incident, testified on Appellant’s behalf at trial. Mr. Williams stated Appellant

was a friend, with whom he attended religious prayers, and Appellant knew

of Mr. Williams’ criminal history. Mr. Williams claimed he told Appellant the


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refrigerator had already been paid for, in order to dupe Appellant into

renting the U-Haul and unknowingly assisting in the retail theft.            Mr.

Williams also testified Appellant was aware that Mr. Williams did not have a

credit card. After prosecution had an opportunity for cross-examination, the

court asked Mr. Williams several clarifying questions. In addition, the court

asked Mr. Williams, “Did you ever tell [Appellant] that ‘I’m going to steal this

refrigerator, you’re going to help me, but if we get caught I’ll take the fall’?”

(N.T. Trial, 4/23/15, at 120). Mr. Williams denied he and Appellant had any

agreement that Mr. Williams would take responsibility if they were caught

and insisted he alone had planned the theft from Home Depot.              At the

conclusion of all testimony, the court gave the jury the following cautionary

instruction:

         During the trial of the case, I did ask questions of Mr.
         Williams. I don’t think I did any other witness, but the fact
         that I asked these questions as opposed to [the
         Commonwealth] or [Appellant’s attorney] doesn’t matter.
         My questions have no greater weight, or relevance, or
         anything else because I asked them.          They’re simply
         questions that I thought were necessary to clarify the
         witness’ testimony and you should accept that. Don’t say
         “well, that must be more important than the other
         evidence because the judge asked the questions.” That is
         not the case. They are no different from the questions
         that either counsel asked during the trial.

(Id. at 146).

      On April 24, 2015, the jury convicted Appellant of retail theft.       The

court ordered a pre-sentence investigation (“PSI”) report.         On June 15,

2015, the court sentenced Appellant to twelve and one-half (12½) to

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twenty-five (25) months’ imprisonment, plus three (3) years’ probation.

Appellant timely filed a post-sentence motion on June 24, 2015. The court

denied Appellant’s motion on September 8, 2015.         Appellant did not file a

direct appeal.

      On November 17, 2015, Appellant timely filed a pro se PCRA petition

seeking reinstatement of his direct appeal rights nunc pro tunc. The court

appointed counsel on November 20, 2015, and Appellant’s counsel filed an

amended PCRA petition on March 4, 2016.         The court granted Appellant’s

petition and reinstated Appellant’s direct appeal rights nunc pro tunc on

March 18, 2016. On April 8, 2016, Appellant filed a notice of appeal. The

court ordered Appellant on April 19, 2016, to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).         Appellant

timely complied on May 6, 2016.

      Appellant raises a single issue for our review:

         WHETHER IT IS REASONABLY POSSIBLE THAT THE TRIAL
         COURT’S PROTRACTED INTERROGATION OF THE ONLY
         DEFENSE WITNESS DEPRIVED [APPELLANT] OF A FAIR
         AND IMPARTIAL TRIAL WHEN THE COURT (I) ADVOCATED
         ON BEHALF OF THE COMMONWEALTH, DRASTICALLY
         SHIFTING THE MOMENTUM OF THE TRIAL; (II) POSED
         TWENTY-FIVE QUESTIONS THAT DID NOT SERVE THE
         PURPOSE OF CLARIFYING AN IMPORTANT ISSUE; (III)
         REPEATEDLY AND STRONGLY IMPUGNED THE CREDIBILITY
         AND CHARACTER OF THE DEFENSE’S ONLY WITNESS; AND
         (IV) REACTED NEGATIVELY AND EXPRESSED INCREDULITY
         REGARDING THE PLAUSIBILITY OF THE DEFENSE.

(Appellant’s Brief at 7).

      After a thorough review of the record, the briefs of the parties, the

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applicable law, and the well-reasoned opinion of the Honorable James P.

Bradley, we conclude Appellant’s issue merits no relief.         The trial court

opinion comprehensively discusses and properly disposes of the question

presented. (See Trial Court Opinion, filed June 7, 2016, at 8-10) (finding:

Mr. Williams testified in manner that was confusing and contradictory at

times; Mr. Williams claimed to enjoy “honest” six-year friendship and

religious connection with Appellant, and at same time testified that he twice

duped Appellant into unknowingly committing thefts; court expressed no

opinion regarding Mr. Williams’ credibility; court simply reviewed Mr.

Williams’ earlier testimony and ultimately asked Mr. Williams if he had

agreement with Appellant that, in event theft led to arrest, Mr. Williams

would take full responsibility; Mr. Williams denied any such agreement

existed; court did not act as advocate for prosecution; court did not engage

in pervasive pattern of questioning that by method or in content deprived

Appellant of fair and impartial trial; Appellant was not deprived of fair trial as

result of court’s limited inquiry).2 Accordingly, we affirm on the basis of the

trial court opinion.

       Judgment of sentence affirmed.
____________________________________________


2
  Moreover, the court gave the jury a cautionary instruction. The court
advised the jury not to give undue or additional weight to the questions the
court asked of Mr. Williams. “[T]he law presumes that the jury will follow
the instructions of the court.” Commonwealth v. Rega, 593 Pa. 659, 692,
933 A.2d 997, 1016 (2007), cert. denied, 552 U.S. 1316, 128 S.Ct. 1879,
170 L.Ed.2d 755 (2008).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2016




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                                                                                        Circulated "i0/18/2016 1 0:01 AM




     IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                           CRIMINAL DIVISION



COMMONWEALTH OF PENNSYLVANIA                                :   CP- 23 -CR- 544 -2015

                              vs.

                    DONALD BROWN


A. Sheldon Kovach, Esquire, on behalf of the Commonwealth
Michael J. Harper, Esquire, on behalf of the Defendant


                                               OPINION
Bradley, J.                                                 FILED:



          Defendant Donald Brown was found guilty of retail thefts after a jury trial. The incident

that gave rise to his conviction took place on December 29, 2014 when Defendant and                     a co-


conspirator, Eugene Williams, entered          a   Home Depot in Marple Township, Delaware County

and removed         a   large refrigerator that was on display. After creating a diversion the two men

left the store and loaded the refrigerator into a U -Haul rental truck bearing Arizona license

plates. The        U -Haul   was stopped within minutes of leaving the Hope Depot parking lot. The

men's actions in the store were caught on video tape and a loss prevention officer

immediately identified the two men and their vehicle at the location of the stop.

          On June 15, 2015 a sentence of twelve and one -half to twenty -five months of

incarceration to be followed by three years of probation was imposed. Post -sentence motions



1   18 Pa.C.S.A.   3929(a)(1)
                                                        1
were denied on September 8, 2015. Defendant did not appeal from judgment of sentence.

On November 17, 2015 Defendant filed a Post Conviction Relief Act petition alleging            inter

aiia, that trial counsel provided ineffective assistance by failing to file   a   timely notice of

appeal on his behalf. After an amended counseled PCRA petition was filed, the

Commonwealth agreed that relief in the form of        a   direct appeal nunc pro tunc was

warranted. Relief was granted on March 18, 2016.

        A Notice of Appeal was filed by newly appointed counsel. In a "Statement of Errors

Complained of on Appeal," filed on May 6, 2016 Defendant has identified a single issue:

        The Trial Court abused its discretion when it examined, reacted and commented
        on the testimony of witness Eugene Williams in a prejudicial manner depriving

        Appellant of due process of law. See Commonwealth v. Hammer, 508 Pa. 88,
        494 A.2d 1054 (Pa. 1985).


Statement of Errors Complained of on Appeal.

        At trial the Commonwealth offered the testimony of Cesar Evangelista, Home

Depot Loss Prevention Associate, in the Marple store where the theft occurred and

Officer Nick Coffin and Detective Barry Williams of the Marple Township Police

Department. Mr. Evangelista testified that on December 29, 2014 at about 11:45 a.m.

he saw two men, the Defendant and Eugene Williams, in the parking lot rapidly loading

a   "French door" refrigerator into a U -Haul van. N.T. 4/23/15 p. 26, 42. He immediately

recognized Williams from retail thefts that had taken place at Home Depots in Upper

Darby and Plymouth Meeting earlier in the week and he recognized the Defendant from

the theft reported at the Upper Darby store. Id. at 27 -28, 41. Mr. Evangelista knew

that refrigerators were "special order" items that were ordered in -store and then
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delivered directly to the purchaser's home. He immediately called the Marple Police

Department and reported the suspected theft. He was able to provide police with                    a


description of Mr. Williams and reported the facts that the            U -Haul    was bearing an

Arizona license plate and was heading south on Sproul Road. Id. at 29, 52. This

information was broadcast throughout Delaware County via the 911 call center. Id at

67. After calling the police Mr. Evangelista went into the store and viewed video tape'

that captured images of the Defendant and Williams in the store. This video was viewed

by the jury.

       The video showed Defendant and Williams entering the store through the

"contractor" exit. Defendant pushed     a   cart with   a   large brown box on it.      It was   later

determined that the box contained   a   broken window. The two men went to the back of

the store and are next seen returning to the front with          a French      door refrigerator on the

cart along with the window. Next, Defendant hands Williams                 a   receipt and Williams is

shown holding up a receipt and speaking to a customer service employee. Id. at 30 -31,

35. Mr. Williams and Defendant then leave the store by the main exit with both the

refrigerator and the window. Id. The men passed all points of sale without paying for

the refrigerator. Id. at 34.

       Officer Nick Coffin responded to Mr. Evangelista's call. Id. at 52. He received

information almost immediately following the dispatch that             a   Springfield patrol officer

had intercepted and stopped the U -Haul. Id. at 52. Officer Coffin went to the location of

the stop and made contact with the driver, Eugene Williams. He explained the purpose

of the stop and his investigation and asked Williams for          a   receipt for the refrigerator. Id.



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at 54. Williams did not have a receipt and offered by way of explanation,        a   story that he

was attempting to return a refrigerator that he purchased from another store. Id. at

36 -38, 55, 68. Mr. Brown told officers that he and Williams had gone to the Home

Depot to pick up the refrigerator. M. at 56. Both men were arrested. Id. at 39.

      Within minutes of the 911 call Detective Barry Williams of the Marple Township

Police Department arrived at the store, picked up Mr. Evangelista and drove him to the

location of the stop. Id. at 36. The stolen refrigerator and a broken window were in the

truck's cargo area. Id. at 69. Mr. Evangelista immediately identified Defendant and

Williams as the men he had seen loading the refrigerator into the van. Id. at 36 -38, 68.

Detective Williams described Williams as "uncooperative" and testified that Defendant

looked nervous and "talk[ed] a lot. Id. at 84.

       Defendant did not testify at trial. He did however offer the testimony of Eugene

Williams. See id. at 87 -122. Williams pled guilty to theft in connection with this incident

before Defendant's trial. He testified that Defendant knew nothing about the theft and

that he (Williams) "was taking the case." His statements at the location of the stop bore

no resemblance to his testimony at trial where he stated that he "duped" the Defendant

into both renting   a U -Haul   truck and removing the refrigerator from the Home Depot by

telling him that he had to pick up    a   "special order" that was already paid for. See id. at

91, 103 -06. Williams is a serial thief with convictions for three retail thefts in New

Jersey, several different theft convictions in Pennsylvania and larceny, theft and robbery

convictions in Virginia. Id. at 98. He and the Defendant knew each other for about six

years and the Defendant knew that Williams was incarcerated "upstate" before this



                                                    4
incident. Id. at 115. Williams claimed that he was "honest" with Defendant about his

criminal past because he "liked" him and they prayed together but nevertheless he

purposefully duped Defendant into renting       a   truck and unknowingly assisting him in this

theft. Also, Williams duped the Defendant not once but twice.            A   week earlier Brown

helped Williams commit a retail theft at a Home Depot in Upper Darby, PA. Id. at 104.

When the prosecutor inquired regarding the earlier theft, Williams explained that each

time he compensated the Defendant for renting            a   truck and helping him. Defendant

knew that Williams did not have   a   credit card. Id. at 105. At the same time Williams

testified that he told Defendant that he placed special orders in advance for the

merchandise and that he had receipts for the items he intended to steal. Williams

described a scam in which he routinely went into a store displaying            a   "bogus" receipt,

feigned an attempt to return certain merchandise and then left the store with additional

items that were not paid for. See id. at 106.

      At the conclusion of Williams's testimony the Court briefly reviewed several areas

of his testimony. The facts that Williams knew Defendant for six years, that they were

friends and attended masjid together, that Defendant drove Williams on occasion, that

Defendant knew that Williams had      a   criminal history and had spent time "upstate, " and

that Defendant was paid for his assistance were reiterated. Williams again testified both

that he was "honest" with the Defendant and that he "duped" him. Williams recounted

his entry, exit and activities in the store where Defendant was never more than six feet

away. Each of these areas was explored in Williams's earlier testimony or was depicted

in the video   that the jury viewed more than once. Once again Williams described his


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credibility but merely asked the witness to reiterate his testimony in areas that were

previously explored. As could be expected from a person of his ilk, Williams testified in

a   manner was at times confusing and contradictory. He claimed to enjoy an "honest"

six -year friendship and religious connection with Defendant and at the same time

testified without reservation that twice he paid the Defendant for his services and

duped him into unknowingly assisting in committing a theft. The trial court simply

reviewed Williams's earlier testimony and asked a final clarifying question which was

the crux of Williams's testimony: whether Williams had ever assured Defendant that if

the theft led to an arrest and prosecution Williams would take full responsibility.

        In Commonwealth v. Manuel, 844 Aid         1, 9 (Pa. Super. 2004)   the appellant

claimed that he was unduly prejudiced after the trial court made inquiries during an

expert witness's testimony and at its conclusion queried whether the expert's answers

in cross -examination in any way changed, altered or modified the opinions that he had

rendered.    On appeal the Superior Court found that this single question was not              "of

such nature or substance or delivered in such a manner that it may reasonably be said

to have deprived the defendant of   a   fair and impartial trial." Id. at 9. Similarly,   in


Commonwealth v. Hodge, supra, where an alibi witness's testimony was "hazy and

inconsistent," the trial judge questioned the witness in an attempt to clarify his

responses. In an effort to rehabilitate his own testimony the witness made statements

that revealed the appellant's efforts to avoid arrest and thus raised flight as

consciousness of guilt. As in the current case, the record showed no evidence of bias,

hostility, or unfairness in the court's questions and on appeal the Superior Court


                                                   9
concluded that there was no merit to the claim that the appellant was denied the right

to   a   fair and impartial trial because the trial court acted as an advocate for the

prosecution. Rather, the court appropriately exercised its inherent right to question

witnesses "to clarify existing facts and to elicit new information." Id. at 179. So too, in

this case the Defendant suffered no undue prejudice and was not deprived of              a   fair

trial as    a   result of the trial court's limited clarifying inquiry.

           In light of the foregoing it is respectfully submitted that judgment of sentence

should be affirmed.




                                                           BY THE COURT:




                                                               es P. Bradley,




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