J-A30038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
IAN XAVIER MAUTE,
Appellant No. 563 EDA 2014
Appeal from the Judgment of Sentence January 9, 2014
in the Court of Common Pleas of Pike County
Criminal Division at Nos.: CP-52-CR-0000032-2013;
CP-52-CR-0000508-2012;
CP-52-CR-0000518-2012
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 05, 2015
Appellant, Ian Xavier Maute, appeals from the judgment of sentence
imposed following a jury conviction of two counts of robbery, two counts of
theft by unlawful taking, two counts of possessing instruments of crime, two
counts of recklessly endangering another person, two counts of simple
assault, one count of criminal conspiracy to commit intimidation of witness
or victim, one count of criminal solicitation to commit intimidation of witness
or victim, one count of criminal conspiracy to commit hindering
apprehension or prosecution, and one count of criminal solicitation to
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A30038-14
commit hindering apprehension or prosecution.1 These charges related to a
string of robberies on a small stretch of road just a few blocks from
Appellant’s home. Appellant challenges the trial court’s rulings on his
motion to sever and hearsay objection, and the weight and sufficiency of the
evidence for all convictions.2 We affirm on the basis of the trial court
opinion.
In its April 16, 2014 opinion, the trial court fully and correctly sets
forth the relevant facts and procedural history of this case. (See Trial Court
Opinion, 4/16/14, at 1-4). Therefore, we have no reason to restate them
here.
Appellant raises the following issues for our review:
1. Whether the trial court erred when denying [Appellant’s]
motion to sever criminal information 518-2012 from criminal
information 32-2013?
2. Whether the trial court erred when overruling [Appellant’s]
objection to hearsay testimony presented by the Commonwealth
during the [omnibus] pre-trial hearing?
3. Whether the verdict was [contrary] to the weight of the
evidence in that the evidence presented at trial was insufficient
____________________________________________
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), 907(b), 2705, 2701(a)(3),
903(c), 901(a), 903(c), and 901(a), respectively.
2
We note that, although the trial court addressed Appellant’s weight and
sufficiency of the evidence arguments, Appellant has impermissibly conflated
them into one issue. (See Trial Court Opinion, 4/16/14, at 14-18;
Appellant’s Brief, at 31-37); see also Commonwealth v. Widmer, 744
A.2d 745, 751-52 (Pa. 2000) (differentiating weight and sufficiency
arguments).
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J-A30038-14
to prove the elements of the offenses charged, beyond a
reasonable doubt?
(Appellant’s Brief, at 10).3
Preliminary we note that “[a] weight of the evidence claim must be
preserved either in a post-sentence motion, by a written motion before
sentencing, or orally prior to sentencing. Failure to properly preserve the
claim will result in waiver, even if the trial court addresses the issue in its
opinion.” Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013,
appeal denied, 76 A.3d 538 (Pa. 2013) (citations omitted); see also
Pa.R.Crim.P. 607.
Here, the docket indicates that Appellant did not file a pre-sentence
motion. Furthermore, he did not raise his weight of the evidence claim
orally prior to sentencing or in his post-sentence motion. (See N.T.
Sentencing, 1/09/14, at 4-9; Post-Sentence Motion, 1/21/14, at
unnumbered pages 1-3). Accordingly, this issue is waived. See Griffin,
supra at 938; Pa.R.Crim.P. 607.
It is well-settled that “[w]hether or not separate indictments should be
consolidated for trial is within the sole discretion of the trial court and such
discretion will be reversed only for a manifest abuse of discretion or
____________________________________________
3
Appellant has abandoned his argument that his constitutional “rights were
violated when the [t]rial [c]ourt denied [his] [m]otion [t]o [e]xclude all
evidence after clearly inadmissible evidence was displayed to the [j]ury by
the Commonwealth.” (Concise Statement, 3/07/14, at unnumbered page
2).
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J-A30038-14
prejudice and clear injustice to the defendant.” Commonwealth v.
Newman, 598 A.2d 275, 277 (Pa. 1991) (case citation omitted).
Similarly, “[r]ulings on the admissibility of evidence . . . are within the
discretion of the trial judge, and such rulings will form no basis for appellate
relief absent an abuse of discretion.” Commonwealth v. Johnson, 2014
WL 7392218, at *22 (Pa. filed Dec. 30, 2014). However,
Because evidentiary sufficiency presents a question of law, our
standard of review is de novo and our scope of review is plenary.
In reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial, and all
reasonable inferences drawn from that evidence, when viewed in
the light most favorable to the Commonwealth as verdict winner,
was sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt
Id. at *8.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court, we conclude
that there is no merit to Appellant’s issues. The trial court properly disposes
of all of the questions presented. (See Trial Ct. Op., at 4-11, 14-18)
(finding that the trial court properly: (1) denied severance and determined
that (a) evidence in all three robberies would be admissible in separate
trials, (b) jury could separate evidence of each crime to avoid confusion, and
(c) consolidation did not prejudice Appellant; (2) overruled objection to
alleged hearsay statements not offered to prove truth of what they asserted;
and (3) rejected challenge to sufficiency of evidence where (a) victims and
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J-A30038-14
other Commonwealth witnesses were credible, and (b) existence of security
footage showed the robberies and recorded phone conversations identified
that Appellant conspired and solicited Paul Bertino to retrieve a pair of
sneakers).
Accordingly, we find Appellant’s weight claim waived and reject all
other claims on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/2015
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IN THE COURT OF COMMON PLEAS OF
PIKE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
508-2012 CRIMINAL
Plaintiff 518-2012 CRIMINA\g,
n1- -D .
32-2013 CRIMINAL:r;::
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OPINI ON SUBMITTED PURSUANT TO PENNSYL VANIA RULE OF
.APPELJ;.,ATE PROCEDURE 1925
AND NOW, this -I-~d day of April, 2014 after careful review of the record,
we continue to stand by our decision and respectfully request the Superior Court to
uphold our Orders of January 9 and January 22, 2014. This COUli would also like to add ,
pursuant to Pennsylvania Rule of Appellate Procedure 1925, the following :
I. FACTUAL AND PROCEDURAL HISTORY
The evidence at trial, viewed in the light most favorable to the Commonwealth as
I
the verdict winner, establishes that on October 1, 2012, the Appellant, Ian Xavier Maute,
committed the crime of Robbery at the store Smoker' s Paradise. That Appellant entered
the store with his head and face obscured by a hooded jacket and mask and while waiving
a large knife at the cashier demanded she provide him with the cash in her register.
The Jury also found that the Appellant committed these acts again on October 19,
2012. This time, however, the Appellant targeted the store Karen' s Flea Market, but
otherwise repeated his previous actions in committing an armed assault against the
cashier in order to rob the store.
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Appellant was subsequently apprehended and arrested by the police department
and charged with three counts of robbery, three counts of unlawful taking or disposition,
two counts of possessing an instrument of crime, three counts of recklessly endangering
another person and three counts of simple assault. While being held on these charges,
Appellant placed calls to one Paul Bertino and entered into a criminal conspiracy to
intimidate witnesses and a conspiracy to hinder apprehension or prosecution. These
I
charges were consolidated and made a part of the trial on the previous charges.
On August 19, 2012, Appellant's counsel filed an Amended Omnibus Pre-Trial
Motion requesting the suppression of items found pursuant to a search warrant, the
suppression of witness Lindsey Bloomer's identification of the Appellant, a motion to
compel witness identification and contact information and a motion for severance of the
criminal informations.
On August 27, 2013, this COUli granted the Omnibus Motion with respect to the
motion to compel, the Appellant withdrew the request for suppression of items found
pursuant to the search warrant and this Court denied the motions to suppress the witness
identification and for severance.
A jury was impaneled on November 1, 2013. The trial was held on November 12
and 13, 2013. A verdict was rendered on November 14, 2013 . The Appellant was
sentenced on January 9, 2014. Appellant filed a Post-Sentence Motion on January 21,
2014, asserting that the evidence was insufficient to sustain the verdict guilty, requesting
a new trial and requesting a reconsideration of the Appellant's sentence. This Court
denied all of the Appellant's motions on January 22, 2014.
On February 19, 2014, Appellant filed a Notice of Appeal to the Superior Court.
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This COUli ordered a Concise Statement on February 20, 2014. The Appellant filed a
Concise Statement of Matters Complained on Appeal on March 7, 2014 . In his Concise
Statement, Appellant lists the following issues as matters complained of on appeal:
1. l pp ellant is entitled to a new Trial because his Pa. Constitution AIiicle 1 §9
and U.S. Constitution AIl1endment XIV Due Process Rights, as well as his
i on Constitutional Pa. R. Crim. P. 582 rights were violated when the
Commonwealth was improperly permitted to consolidate, into one trial, the
offenses contained in Criminal Information 518-2012 and 32-2013. Appellant
was entitled to a separate Trial on each of the Criminal Informations.
"2:· "Appellant is entitled to a new Trial because his Pa. Constitution Aliicle .1 §9
l d U.S. Constitution Amendment XIV Due Process Rights, as well as his
Non Constitutional Pa. R. Evid. 402, 611 and 802 rights to present relative
evidence, to duly cross exanl witnesses and rights against hearsay testimony
I
were violated when the Trial COUli allowed the Police Officer to testify, at the
J re-Trial Hearing, regarding the statements made by an out of Court witness
as to the witness' out of Court alleged identification of the Appellant. The
Trial Court, in overruling the Appellant's objections to hearsay prevented the
Appellant from presenting relative evidence and fully cross examining the
witness regarding her identification and statements.
3. vhe Appellant is entitled to a new Trial because his Pa. Constitutional Article
1 §9 and U.S. Constitution Amendment XIV Due Process Rights, as well as
his Non Constitutional Pa. R. Evid. 103 rights were violated when the Trial
Gourt denied Appellants Motion to Exclude all evidence after clearly
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inadmissible evidence was displayed to the Jury by the Commonwealth. The
display of this evidence to the Jury was improper and prejudicial in as much
al it suggested to the Jury that the Appellant was the owner of shoes identified
by one of the witnesses.
4. , hat the verdict was contrary to the weight of the evidence, in that the
T idence and testimony presented at Trial was insufficient to prove the
elements of the offenses charged, beyond a reasonable doubt.
II.
I
DIS~
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