Com. v. Brifu, D.

J-A12041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DESMOND D. BRIFU,

Appellant No. 1134 MDA 2014

Appeal from the Judgment of Sentence entered February 6, 2014,
in the Court of Common Pleas of Centre County,
Criminal Division, at No(s): CP-14-CR-0000375-2013

BEFORE: BOWES, DONOHUE, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.: FILED APRIL 30, 2015

Desmond D. Brifu (“Appellant”) appeals from the judgment of

sentence imposed after a jury convicted him of burglary, theft by unlawful

taking, and criminal trespass.1 We affirm.

On January 18, 2013, officers from the State College Police

Department received a report of a theft at Apartment No. 404 of the Legend

apartment building in State College, Pennsylvania. Affidavit of Probable

Cause, 1/29/13. Upon arriving, the officers spoke with the two residents of

Apartment 404, who reported that two Apple Macbook Pro computers, a blue

Apple iPad Mini, and an Apple iPhone were missing. Id. The officers

obtained video surveillance footage of the hallway in front of Apartment 404,

____________________________________________

1
18 Pa.C.S.A. § 3502(a)(1), 3921(a) and 3503(a)(1)(i).
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which revealed a black male, later identified as Appellant, entering and

exiting Apartment 404 three times, with some of the footage showing him

holding a blue iPad. Id.

Appellant was subsequently arrested and charged with the

aforementioned crimes. A jury trial commenced on November 21, 2013, at

the conclusion of which the jury rendered its verdicts.

Following a hearing on February 6, 2014, the trial court sentenced

Appellant to a term of imprisonment of one to two years for burglary, a

consecutive two years of probation for theft by unlawful taking, and an

additional two years of probation for criminal trespass to run concurrent to

the probationary sentence imposed for theft by unlawful taking. Appellant

filed a timely post-sentence motion, which the trial court denied by opinion

and order dated June 12, 2014. Appellant filed a notice of appeal on July 9,

2014, and complied with a July 14, 2014 trial court order directing him to

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

Pa.R.A.ap. 1925(b). On August 18, 2014, the trial court filed an opinion

indicating that it would rely on the reasoning provided in its opinion and

order of June 12, 2014 in lieu of a 1925(a) opinion.

Appellant presents six issues for our review:

A. Where the prosecution failed to prove that [Appellant]: (1) was not
acting under a bona fide, reasonable mistake of fact; and (2) had
the requisite intent to commit the crimes charged, was the evidence
insufficient to sustain [Appellant’s] convictions, thereby requiring
that judgement be arrested?

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B. Alternatively, did the trial court abuse its discretion by refusing to
grant a new trial, as the verdict was against the weight of the
evidence?

C. Where: (1) A critical defense witness working as a student teacher
in Philadelphia had a conflict with physically appearing at trial in
Centre County; and (2) the defense witness was available to testify
via Skype, did the trial court abuse its discretion, err and violate
[Appellant’s] right to a fair trial and to due process of law, as
guaranteed by the Constitution of the United States, as well as the
Constitution of the Commonwealth of Pennsylvania, by refusing to
permit the defense witness to testify via Skype?

D. Where the Commonwealth intimidated and threatened a defense
witness who provided a statement to the police that was consistent
with [Appellant’s] defense, did the trial court err by refusing to
grant [Appellant’s] motion to dismiss and/or failing to award a new
trial based on prosecutorial misconduct.

E. Where members of the District Attorney’s office who were watching
trial attempted to convey their personal opinion and influence the
jury by scoffing, making faces and making improper comments
reflecting their personal opinion as to the credibility of various
witnesses and arguments, did the trial court abuse its discretion
and err by failing to vacate [Appellant’s] conviction based on
prosecutorial misconduct or, alternatively, by refusing to grant a
new trial?

F. Where the trial court sentenced [Appellant] for the charge of theft
by unlawful taking, which was the offense that [Appellant] allegedly
intended to commit after the alleged burglarious entry, to a
sentence to be served consecutively to the sentence imposed for
the conviction of burglary, did the consecutive sentence imposed on
the charge of theft by unlawful taking render the sentence illegal?

Appellant’s Brief at 5-6.

In his first issue, Appellant argues that the evidence was insufficient to

support his convictions for burglary, theft by unlawful taking, and criminal

trespass. When reviewing a challenge to the sufficiency of the evidence, we

are bound by the following:

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We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth's
burden may be met by wholly circumstantial evidence and any
doubt about the defendant's guilt is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012).

To support Appellant’s conviction for burglary pursuant to 18 Pa.C.S.A.

§ 3502(a)(1), the Commonwealth was required to prove that Appellant “with

the intent to commit a crime therein ... enter[ed] a building or occupied

structure, or separately secured or occupied portion thereof that is adapted

for overnight accommodations in which at the time of the offense any person

is present.”

To sustain the conviction for theft by unlawful taking pursuant to 18

Pa.C.S.A. § 3921(a), the Commonwealth was required to demonstrate that

Appellant “unlawfully [took], or exercise[d] unlawful control over, movable

property of another with intent to deprive him thereof.”

Finally, to sustain the conviction for criminal trespass pursuant to 18

Pa.C.S.A. § 3503(a)(1)(i), the Commonwealth was required to demonstrate

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that Appellant, “knowing that he [was] not licensed or privileged to do so, ...

enter[ed] any building or occupied structure or separately secured or

occupied portion thereof.”

Appellant argues that the Commonwealth failed to prove, beyond a

reasonable doubt, that he possessed the requisite intent to commit the

above crimes. Appellant’s Brief at 18-27. Specifically, Appellant maintains

that he was acting under a mistake of fact when he entered Apartment 404

and removed the electronic equipment. Id. He asserts that he believed that

the apartment belonged to his friend, Lauren Galiney, and that he intended

to play a practical joke on her by removing her property leading her to

believe it was stolen. Id. at 22. Appellant contends that the

Commonwealth failed to disprove that he was acting under a mistake of fact

when he removed the electronic equipment from Apartment 404, and

therefore the evidence was insufficient to support his convictions.

18 Pa.C.S.A. § 304 provides:

Ignorance or mistake as to a matter of fact, for which there is
reasonable explanation or excuse, is a defense if:

(1) the ignorance or mistake negatives the intent,
knowledge, belief, recklessness, or negligence
required to establish a material element of the
offense; or

(2) the law provides that the state of mind established
by such ignorance or mistake constitutes a defense.

Thus, “a bona fide, reasonable mistake of fact may, under certain

circumstances, negate the element of criminal intent.” Commonwealth v.

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Namack, 663 A.2d 191, 194 (Pa. Super. 1995) (citations and internal

quotations omitted). “It is not necessary that the facts be as the actor

believed them to be; it is only necessary that he have a bona fide and

reasonable belief in the existence of facts which, if they did exist, would

render an act innocent.” Id. “When evidence of a mistake of fact is

introduced, the Commonwealth retains the burden of proving the necessary

criminal intent beyond a reasonable doubt. In other words, the

Commonwealth must prove either the absence of a bona fide, reasonable

mistake, or that the mistake alleged would not have negated the intent

necessary to prove the crime charged.” Id.

Here, the trial court, finding the evidence sufficient to support

Appellant’s convictions, explained:

[T]he Commonwealth presented sufficient circumstantial
evidence of [Appellant’s] intent to obtain a conviction on all
three charges. This evidence included the security camera
footage shown at trial, which appeared to show [Appellant]
trying the apartment door, entering and leaving the apartment
multiple times while turning his head away from the cameras
and/or covering his face with the hood of his sweatshirt, and
leaving the building and not returning after exiting the
apartment for the final time. The Commonwealth also presented
the testimony of the victims that their personal effects and
photographs are displayed prominently throughout the
apartment, making it highly likely someone entering the
apartment would be able to easily ascertain the identity of the
residents. ...

The evidence presented, when viewed in the light most
favorable to the Commonwealth as verdict winner, was sufficient
to permit the jury to make the determination [that] Appellant’s
alleged mistake of fact either did not exist, was not reasonable

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or bona fide, or did not negate the intent of the crimes with
which he was charged.

Trial Court Opinion, 6/12/14, at 9-10.

Upon review, we find no error in the trial court’s determination.

Although Appellant asserted that he believed that his friend Lauren Galiney

resided in Apartment 404, the Commonwealth presented sufficient

circumstantial evidence from which a jury could have concluded that

Appellant was not operating under a bona fide and reasonable mistake.

At trial, Officer Bradley testified that the video surveillance footage

taken in the hallway outside Apartment 404 revealed that Appellant entered

and exited the apartment multiple times, holding electronic equipment, and

that on more than one occasion, while in the hallway, he covered his head

with the hood of his sweatshirt, and moved in such a way as to obscure his

face from the video camera. N.T., 11/21/13, at 171-174. Moreover, as the

trial court observed, Appellant removed two Apple Macbook Pro computers

from the apartment, from which the jury could conclude that Appellant could

not have reasonably believed, in good faith, that the duplicate items

belonged solely to Ms. Galiney. Based on this evidence, along with the

testimony of the victims that multiple photographs of them were displayed

prominently in the apartment, the jury could have reasonably concluded that

Appellant was not acting under a mistake of fact when he entered the

apartment and removed the electronic equipment. Id. at 109-110; 123-

124.

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Appellant next raises a challenge to the weight of the evidence. Our

scrutiny of whether a verdict is against the weight of the evidence is

governed by the principles set forth in Commonwealth v. Champney, 832

A.2d 403, 408 (Pa. 2003) (citations omitted):

The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence and
to determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact.
Thus, we may only reverse the lower court's verdict if it is so
contrary to the evidence as to shock one's sense of justice.

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.

In his weight claim, Appellant argues that the evidence demonstrates

that he did not act in a furtive manner when he entered Apartment 404, and

that based on his open and conspicuous entry into the apartment, the jury

could not have believed that he intended to commit a crime. Appellant’s

Brief at 27-31. Appellant references the video surveillance footage depicting

his entry into Apartment 404 multiple times, in full view of, and later

accompanied by, several other individuals with whom he had been attending

a party at an adjacent apartment. Appellant’s Brief at 27-30. Additionally,

Appellant relies on the testimony of Marielle Bellini, who stated that she was

asleep in Apartment 404 at the time of the incident, and testified that she

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heard voices and laughter in her apartment. N.T., 11/21/13, at 128-129.

Appellant argues that the video evidence, and the testimony of Ms. Bellini,

indicate that he made no effort to be surreptitious or conceal his presence in

the apartment, that his actions did not comport with that of a person

intending to commit a crime, and therefore any conclusion that he entered

the apartment for purposes of stealing the electronic equipment, was against

the weight of the evidence. Appellant’s Brief at 27-30.

“[I]ssues of credibility are left to the trier of fact; the jury is free to

accept all, part, or none of the witness testimony.” Commonwealth v.

Russell, 665 A.2d 1239, 1246-1247 (Pa. Super. 1995) (citations omitted).

Here, the jury found the evidence presented by the Commonwealth to be

credible. The Commonwealth presented video footage which showed

Appellant enter Apartment 404 three times, at least once when nobody else

was in the hallway to observe him, and when he exited the apartment, he

made movements as though to conceal his face from the camera. N.T.,

11/21/13, at 174. The fact that Appellant later entered Apartment 404 in

full view of other partygoers would not preclude the jury from concluding

that Appellant’s intent was to steal property. Cole Feindt, one of the

individuals in the hallway and who briefly accompanied Appellant into the

apartment, testified that Appellant asked him for assistance in removing a

television from the apartment as a “prank”, and that he believed that

Appellant was playing a trick on a friend. Id. at 270-273. He testified that

he did not know that Appellant had previously entered the apartment and

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removed electronic items, which he hid under his coat. Id. at 273-276.

From this testimony and evidence, the jury could have reasonably inferred

that Appellant acted under the ruse of playing a prank when he entered the

apartment within view of eyewitnesses, and that his method or modus

operandi for the commission of the crimes was to deceive onlookers into

believing that he was playing a practical joke. The jury, within its province

as fact finder, did not find credible Appellant’s version of events, concluding

instead that Appellant entered the apartment with the intent to steal

property. We will not disturb such credibility determinations on appeal.

Upon review, we find no abuse of discretion in the trial court’s determination

that the verdict was not so contrary to the evidence as to shock one's sense

of justice.

In his third issue, Appellant argues that the trial court erred in

rejecting his motion in limine, requesting to have Lauren Galiney testify via

Skype because she was unable to physically appear at trial in Centre County

due to academic obligations in the Greater Philadelphia area.2 Appellant’s

Brief at 31-37.3

____________________________________________

2
Skype is an internet communication service that provides live,
two-way audio and video communication.... Skype permits
individuals using webcams to see each other while conversing
over the internet. During the live-streaming communication, the
images recorded by a webcam appear on the other user's
monitor screen. Any person within eyesight and earshot of the
computer monitor can observe the participant's image and hear
(Footnote Continued Next Page)

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The trial court rejected Appellant’s request to have Ms. Galiney testify

via Skype, reasoning that since Ms. Galiney resided in the Commonwealth,

Appellant could instead subpoena her and thereby mandate her appearance.

_______________________
(Footnote Continued)

his or her words. In other words, Skype offers a program that
permits a person to see and hear another person, who is in a
different location, using a webcam and the internet.

Commonwealth v. Levy, 83 A.3d 457, 463 (Pa. Super. 2013)
3
Appellant presented the following letter to the trial court from Lauren
Galiney in support of his request to have her testify via Skype:

I am currently enrolled as a Penn State student and am
completing my student teaching in the Greater Philadelphia area.
This is a fifteen credit practicum and is mandatory for Education
majors to graduate as a certified teacher. Being involved in this
practicum student teachers are expected to teach everyday for
the entire fifteen weeks of study, with particular emphasis on the
tail end of the course. The last four weeks of the practicum
(which we are currently in) are the most vital to my final grade,
which is contingent on my graduating in December. There is one
core unit of study that we must prepare and teach fully in order
to be presented a final grade for the semester, it is imperative
we do not miss any teaching days during this unit of study. The
trial date happens to fall within the perimeters of my teaching
unit, therefore it would be impossible for me to miss a full day
and appear in court without it affecting my overall grade and
inevitably my graduating as a certified teacher. I would be able
to take a phone or skype call on the trial date on a scheduled
break during my day, or more preferably after school lets out
around 3 p.m. I would appreciate the opportunity to testify via
call or skype seeing as that I am at such a vital point in my
education.

Letter from Lauren Galiney, 11/11/13.

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Specifically, at the hearing on Appellant’s motion, the following exchange

occurred:

Appellant’s Counsel: [Ms. Galiney] is in New Jersey [and a
subpoena] is just not enforceable because its
out of state. ... And to guarantee, I need a
court order ... from New Jersey. And that’s not
going to happen. ... I mean, she’s not
avoiding us. But if you read her email, she’s in
her practical with student teaching and is very
very very concerned about missing one day
and articulated for us why she’s unavailable.

Trial Court: Well, she’s in the greater Philadelphia area,
right, for student teaching.

Appellant’s Counsel: I thought she was in New Jersey.

Trial Court: I’m just reading your motion, it says greater
Philadelphia area.

Appellant’s Counsel: ... I thought it was New Jersey because maybe
that’s where her hometown is.

Trial Court: Maybe she’s doing an internship in greater
Philadelphia. ... [W]e can serve her on
subpoena while she’s in the state. Just like if
there was someone that was from New Jersey
and was a Penn State student in State College,
you can serve them a subpoena here while
they’re in State College.

Appellant’s Counsel: Right. ... I could get her. Yes. ... I know she
lives in New Jersey.

Trial Court: I think it’s important, especially if you’re
saying that she’s a critical witness, that she be
here for the jury to evaluate...

Appellant’s Counsel: I want her here, I want her here. She’s key to
me. I want her here too.

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***

Trial Court: If she’s teaching in Philadelphia, why don’t you
just go and send someone down and serve her
while she’s down in Philadelphia ... Then she’s
in PA, she’s been served with it. ... If she
doesn’t show up, then she’s in contempt of
court. ... I assume that if she’s got a job
teaching, she doesn’t want to be in contempt
of court and have whatever could happen to
her teaching career based on the fact that she
blew off a subpoena to testify.

Appellant’s Counsel: Yes. Maybe there’s much to do about nothing
here. So yes, maybe that’s what I’ll do. All
right. I am going to have her served and then
I guess I’m going to have her direct her call to
chambers with any questions.

Trial Court: I’d serve her and say you need to be there on
Thursday at 8:30 or whatever time we’re
starting.

Appellant’s Counsel: ...[M]y specific request is that she be
permitted [to] testify by Skype. ... And your
Honor’s ruling on that --

Trial Court: It will be denied. So, if she’s in the
Philadelphia area, you can serve her and she
can be here.

Appellant’s Counsel: I shall serve her in Philadelphia.

Trial Court: Subpoena her. Serve her and have her be
here. And if she’s worried about her teaching
internship, the [trial court’s] making her come
here, it’s not like she’s just blowing off her
teaching internship.

Appellant’s Counsel: That actually makes it a lot better. Okay good.

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N.T., 11/15/13, at 11-13.4

Based on the foregoing, the trial court denied Appellant’s motion. The

trial court explained:

In the instant case, [Appellant] actually attempted to subpoena
Ms. Galiney prior to the trial. Upon learning Ms. Galiney did not
wish to appear in person due to an internship commitment,
[Appellant] filed the Motion in Limine at issue. [The trial court]
denied [Appellant’s] motion, as Ms. Galiney was actually in the
[S]tate of Pennsylvania and was therefore able to be properly
served with a subpoena. Ultimately, [Appellant] released Ms.
Galiney from her subpoena and she did not appear at trial.

Both [Appellant] and the Commonwealth have the right to
subpoena witnesses at trial. Although limited exceptions for
testimony via video conference, telephone, video deposition, and
trial transcripts do exist, none are applicable to this case, as Ms.
Galiney was a living witness in a criminal case (not a child
victim), and was able to be properly served with a subpoena in
the state of Pennsylvania. Further, it is important for the jury to
be able to view the witness as he or she testifies in order to
make the necessary credibility determinations, especially in the
instant matter where [Appellant] based his defense on the idea
he meant to play a prank on Ms. Galiney, whom he allegedly
believed lived in the apartment he entered. [The trial court] did
not, therefore, err in denying [Appellant’s] Motion in Limine, as it
was ultimately the responsibility of [Appellant’s] counsel to make

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4
Subsequently, Appellant sent email correspondence to Ms. Galiney dated
11/19/13, which read in pertinent part as follows:

Dear Ms. Galiney, I understand you do not want to appear for
the trial due to your teaching commitments. I am therefore not
going to serve you with a subpoena. If you have any questions
please call me.

Letter from Philip Masorti, 11/19/13. See also N.T., 11/21/13, at 14.
Because Appellant’s counsel opted not to subpoena her, Ms. Galiney was not
present to testify at trial.

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certain the witnesses critical to his client’s defense were
available and ready to testify at trial.

Trial Court Opinion, 6/12/14, at 3-4 (footnote omitted).

Appellant argues that the trial court erred in denying his motion in

limine to have Ms. Galiney testify via Skype. “In evaluating the denial or

grant of a motion in limine, our standard of review is well-settled. When

ruling on a trial court's decision to grant or deny a motion in limine, we

apply an evidentiary abuse of discretion standard of review.”

Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014). “An

abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, 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. Commonwealth v. Mendez, 74 A.3d

256, 260 (Pa. Super. 2013).

Pa.R.Crim.P. 119 governs the use of two-way simultaneous audio-

visual communication in criminal proceedings. It provides:

Use of Two-Way Simultaneous Audio-Visual
Communication in Criminal Proceedings.

(A) The court or issuing authority may use two-way
simultaneous audio-visual communication at any criminal
proceeding except:

(1) preliminary hearings;

(2) proceedings pursuant to Rule 569(A)(2)(b);

(3) proceedings pursuant to Rules 595 and 597;

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(4) trials;

(5) sentencing hearings;

(6) parole, probation, and intermediate punishment
revocation hearings; and

(7) any proceeding in which the defendant has a
constitutional or statutory right to be physically
present.

(B) The defendant may consent to any proceeding being
conducted using two-way simultaneous audio-visual
communication.

(C) When counsel for the defendant is present, the defendant
must be permitted to communicate fully and confidentially
with defense counsel immediately prior to and during the
proceeding.

Pa.R.Crim.P. 119.

When evaluating whether to permit two way audiovisual

communication as opposed to in-person testimony in criminal cases, the

primary consideration is to ensure that the defendant is not denied his

constitutional right to confrontation. See Commonwealth v. Atkinson,

987 A.2d 743 (Pa. Super. 2009) (citations omitted).5

However, where, as here, it is the defendant who is requesting that his

witness be permitted to testify remotely, violation of the defendant’s rights
____________________________________________

5
See Maryland v. Craig, 497 U.S. 836, 845–846, 110 S.Ct. 3157 (1990)
(“[A] defendant's right to confront accusatory witnesses may be satisfied
absent a physical, face-to-face confrontation at trial only where denial of
such confrontation is necessary to further an important public policy and
only where the reliability of the testimony is otherwise assured.”).

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under the Confrontation Clause no longer presents the same concern, as it is

the defendant who seeks the accommodation. Accordingly, Pa.R.Crim.P.

119(B) provides that a defendant may consent to any proceeding being

conducted using two-way video conferencing. Thus, it appears that the

applicable rules of criminal procedure do not preclude testimony via video-

conferencing software, if the defendant agrees, which he did in this case.

In the absence of any rules expressly addressing when a defendant

wishes to present a witness via Skype, as with all evidentiary matters, the

decision as to whether to permit such testimony falls within the discretion of

the trial court. See In Re. C.W., 960 A.2d 458, 469 (Pa. Super. 2008)

(“trial court judges have wide discretion in the management and conduct of

trial proceedings[;] [t]hus, we are most careful not to second-guess trial

court judges in the exercise of their discretion to so manage”).

Here, we find no abuse of discretion in the trial court’s denial of

Appellant’s motion to have Ms. Galiney testify via Skype. While Appellant

produced a letter from Ms. Galiney in which she expressed that due to her

academic obligations in another part of the state she would be unable to

testify at trial, the trial court did not find Ms. Galiney’s letter compelling

enough to exempt her from appearing in person pursuant to a subpoena.

Rather, the trial court reasonably concluded that Ms. Galiney’s academic

obligations were not so burdensome or prohibitive that they could not be

excused for her compliance with a judicially-issued subpoena. Appellant’s

subsequent decision not to pursue the subpoena, despite advising the trial

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court that he would do so, does not entitle him to relief. Because we do not

find the trial court’s decision manifestly unreasonable or the result of bias,

prejudice, ill will or partiality, Appellant’s claim fails.

In his fourth issue, Appellant argues that the trial court erred when it

refused to grant his motion to dismiss for prosecutorial misconduct, after

learning that the Commonwealth threatened and intimidated Appellant’s

witness, Cole Feindt, several days prior to trial. Appellant’s Brief at 37-45.6

In considering a claim of prosecutorial misconduct, once again, our

standard of review is limited to whether the trial court abused its discretion.

See Commonwealth v. Baez, 720 A.2d 711, 729 (1998) (“It is within the

____________________________________________

6
The Commonwealth contends that this claim is waived because Appellant
did not object at trial. However, Appellant raised a claim of prosecutorial
misconduct in a pre-trial motion to dismiss, requesting that the charges
against Appellant be dismissed due to, inter alia, the Commonwealth’s
harassment of Mr. Feindt. See Motion to Dismiss for Prosecutorial
Misconduct, 11/21/13. On November 21, 2013, the trial court denied the
motion, with directions that Appellant re-file it as a post-trial motion. Trial
Court Order, 11/22/13. Appellant complied with the trial court’s directive
and subsequently renewed his claim of prosecutorial misconduct in his post-
sentence motion. Thus, we conclude that Appellant’s claim of prosecutorial
misconduct has been adequately preserved for appellate review.

However, on appeal, in support of his claim of prosecutorial misconduct,
Appellant raises for the first time a new theory, i.e., that the prosecutor’s
intimidation of Mr. Feindt caused Mr. Feindt to become equivocal in his
testimony at trial. Although Appellant presents this rationale for the first
time on appeal, we conclude that given Appellant’s pre-trial and post-trial
motions asserting a general claim of prosecutorial misconduct, Appellant's
claim has been adequately preserved for appellate review.

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discretion of the trial court to determine whether a defendant has been

prejudiced by misconduct or impropriety to the extent that a mistrial is

warranted.”).

The Pennsylvania Supreme Court has stated that “[t]he essence
of a finding of prosecutorial misconduct is that the prosecutor, a
person who holds a unique position of trust in our society, has
abused that trust in order to prejudice and deliberately mislead
[the factfinder].” Commonwealth v. Pierce, 645 A.2d 189, 197
(Pa. 1994). ... Prosecutorial misconduct will justify a new trial
where the unavoidable effect of the conduct or language was to
prejudice the factfinder to the extent that the factfinder was
rendered incapable of fairly weighing the evidence and entering
an objective verdict. If the prosecutorial misconduct contributed
to the verdict, it will be deemed prejudicial and a new trial will
be required.

Commonwealth v. Francis, 665 A.2d 821, 824 (Pa. Super. 1995).

Appellant argues that shortly before trial, the Commonwealth

threatened Mr. Feindt with criminal prosecution based on video evidence

that depicted Mr. Feindt accompanying Appellant into Apartment 404.

Appellant maintains that the Commonwealth’s threats of criminal prosecution

resulted in the erosion of Mr. Feindt’s testimony at trial, depriving Appellant

of his constitutional right to call witnesses favorable to his defense without

fear of prosecutorial retaliation. Appellant’s Brief at 38-45. Accordingly,

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Appellant asserts that the Commonwealth committed prosecutorial

misconduct warranting dismissal of the charges against him. Id.7

In all criminal prosecutions, the accused shall enjoy the
right ... to have compulsory process for obtaining witnesses in
his favor. United States Constitution, Amendment VI. The right
to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a
defense. ... This right is a fundamental element of due process
of law. The defendant's Sixth Amendment right to call witnesses
favorable to his defense mandates that such witnesses be free to
testify without fear of prosecutorial retaliation.

Under certain circumstances, intimidation or threats that
dissuade a potential defense witness from testifying may infringe
a defendant's due process rights.

To establish a fourteenth amendment due process violation
based on the denial of the right to compulsory process, a
defendant must establish more than the mere absence of
testimony. There must be a plausible showing that an act by the
government caused the loss or erosion of testimony that was
both material and favorable to the defense.

____________________________________________

7
In Commonwealth v. Cox, 983 A.2d 666, 685 (Pa. 2009), our Supreme

Court, discussing the meaning of prosecutorial misconduct, noted:

The phrase ‘prosecutorial misconduct’ has been so abused as to
lose any particular meaning. The claim either sounds in a
specific constitutional provision that the prosecutor allegedly
violated or, more frequently, like most trial issues, it implicates
the narrow review available under Fourteenth Amendment due
process. However, [t]he Due Process Clause is not a code of
ethics for prosecutors; its concern is with the manner in which
persons are deprived of their liberty. The touchstone is the
fairness of the trial, not the culpability of the prosecutor.

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Therefore, in order to prevail on such a due process claim,
an accused must, at a minimum, demonstrate some plausible
nexus between the challenged governmental conduct and the
absence of certain testimony.

Commonwealth v. Holloman, 621 A.2d 1046, 1053-1054 (Pa. Super.

1993) (citations and internal quotations omitted).

Appellant argues that as a result of the Commonwealth’s intimidation,

Mr. Feindt’s testimony was eroded, with Mr. Feindt becoming equivocal at

trial in the face of threats of prosecution. Appellant’s Brief at 41.

Specifically, Appellant claims that Mr. Feindt equivocated at trial in his

statement that he believed Appellant committed a prank. Id. at 39-42.

Additionally, Appellant claims that the Commonwealth threatened Mr. Feindt

into agreeing that his own conduct, when he entered into Apartment 404

with Appellant, was criminal in nature. Id. at 40. Accordingly, Appellant

asserts that the Commonwealth’s threats interfered with his constitutional

right to call witnesses favorable to his defense.

To prevail on such a due process claim, the accused “must, at a

minimum, demonstrate some plausible nexus between the challenged

governmental conduct and the absence of certain testimony.” Holloman,

621 A.2d at 1054. Here, the record does not contain any support for

Appellant’s allegation that Mr. Feindt would have testified differently but for

the Commonwealth’s alleged threats. No post-trial proceeding was

conducted at which Mr. Feindt testified that he altered his testimony because

of the Commonwealth’s threats of prosecution, or how he would have

otherwise testified differently had he not felt threatened. Absent such

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support in the record to substantiate Appellant’s claim, a finding that Mr.

Feindt was pressured to alter or amend his testimony would constitute only

speculation, inadequate to support a claim of prosecutorial misconduct. See

Holloman 621 A.2d at 1054 (holding that appellant did not establish a

causal nexus between the conduct of the prosecutor and the absence of

witness testimony where the only support in the record for appellant's

position was based on speculation and assumption that the prosecuting

attorney’s comments intimidated the witness and thereby deprived him of

the benefit of her testimony at trial; at the hearing on post-trial motions,

appellant did not call the intimidated witness to testify, nor did appellant in

any other way substantiate the allegation that the witness had been coerced

by the Commonwealth not to testify).

Moreover, even if Appellant had established that the Commonwealth’s

actions resulted in an erosion of Mr. Feidnt’s testimony and infringed upon

his right to offer witnesses in his defense, any such error by the trial court in

denying his claim of prosecutorial misconduct is harmless.

“Harmless error exists where: (1) the error did not prejudice the

defendant or the prejudice was de minimis; (2) the erroneously admitted

evidence was merely cumulative of other untainted evidence which was

substantially similar to the erroneously admitted evidence; or (3) the

properly admitted and uncontradicted evidence of guilt was so overwhelming

and the prejudicial effect of the error was so insignificant by comparison that

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the error could not have contributed to the verdict.” Commonwealth v.

Robinson, 721 A.2d 344, 350 (Pa. 1999).

Appellant’s sole defense at trial was that he believed his friend, Lauren

Galiney, resided in Apartment 404, and that he removed the items from that

apartment as part of a “prank.” See, e.g., N.T., 11/21/13, at 270-283. To

substantiate this defense, Appellant presented Mr. Feindt to testify that on

the night of the incident, Appellant told him he was playing a “prank” when

he entered Apartment 404. Id.

To the extent that Mr. Feindt’s testimony in support of Appellant’s

“prank” defense was eroded because of the Commonwealth’s threats, the

record reveals that Mr. Feindt’s testimony with regard to the “prank” defense

was merely cumulative of testimony presented by numerous other

witnesses. Specifically, Officer Bradley testified at trial that when he

interviewed Appellant at the police station, Appellant told him he had not

intended to steal the items, and was committing a prank on a friend. Id. at

194. Appellant’s friend Jessica Wynn testified that Appellant and Laruen

Galiney – the purported subject of the prank – had a “very friendly”

relationship and would regularly joke around with each other. Id. at 239.

Additionally, Ahmed Sylla, Appellant’s friend who was present on the night of

the incident, testified unequivocally that Appellant told him “he was pulling a

prank on his friend, Lauren.” Id. at 251. Given that Mr. Feindt’s testimony

as to the “prank” was merely cumulative of other testimony admitted at

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trial, any erosion of Mr. Feindt’s testimony as a result of the

Commonwealth’s threats was harmless.

In his fifth issue, Appellant argues that members of the District

Attorney’s office committed prosecutorial misconduct when, during trial, they

attempted to influence the jury by displaying behavior demeaning to

Appellant, voiced their personal opinions, and made gestures and motions in

response to the testimony of various witnesses in a manner designed to

influence the jury’s opinions as to witness credibility, in such a way as to

deny Appellant the right to a fair and impartial jury. Appellant’s Brief at 45-

55. In support of his claim, Appellant presented in his post-trial motion, two

affidavits from Appellant and Appellant’s father, which stated that members

of the Centre County District Attorney’s Office who were present in the

courtroom to observe the proceedings, “rolled their eyes, snickered, scoffed

and made facial expressions reflecting disbelief” and “otherwise

impermissibly attempted to convey their personal opinion about the

credibility of the several witnesses who testified at trial.” See Appellant’s

Brief at 47-48. Appellant claims that his counsel was unaware of the

majority of improper conduct during trial, and therefore was unable to raise

a timely objection. However, Appellant notes that on at least one occasion

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during trial, his counsel became aware of improper conduct by members of

the District Attorney’s office, which he brought to the trial court’s attention. 8

The trial court, finding that Appellant’s claim of prosecutorial

misconduct did not entitle him to relief, explained:

[The trial court] did not observe any of the conduct alleged
by defense counsel in his brief, nor did it observe any of the
conduct alleged by [Appellant] or his father in the affidavits
provided to [the trial court]. [Appellant’s] counsel never raised
an objection to any alleged behavior on the part of any of the
members of the District Attorney’s Office, nor did he in any way
make the [trial court] aware of any perceived disturbances.

Further, none of the jurors reported or mentioned any of
this conduct to the [trial court] at any point. At all times during
the trial, the jurors appeared to be listening attentively to the
witnesses, and did not appear to be distracted by anything from
the gallery. The [trial court] is satisfied the jury was not
inappropriately influenced or distracted by any actions allegedly
taken by any members of the audience in the gallery, and as
such [Appellant] was not denied his rights to a fair trial.

____________________________________________

8
Appellant refers to the following exchange which, he claims, occurred when
a member of the District Attorney’s Office, sitting in the gallery, interfered
with his cross-examination of a witness:

Appellant’s Counsel: Your Honor, I’m going to ask that if the district
attorney can’t be quiet during my cross-
examination ... Ask to request her [to] be
removed from [the] courtroom.

Trial Court: We’ll have counsels that are in charge do the
speaking.

N.T., 11/21/13, at 162.

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J-A12041-15

Trial Court Opinion, 6/12/14, at 12.

“[I]n the area of bystander misconduct, [the Pennsylvania Supreme

Court has] held that it is primarily within the trial judge's discretion to

determine whether the defendant was prejudiced by the misconduct.”

Commonwealth v. Philistin, 774 A.2d 741, 743 (Pa. 2001) (citations

omitted).

Misconduct in the courtroom is a serious matter. The onus is on
the trial judge to avert or cure it: [I]t is the duty of the court to
see that trial proceedings are conducted in an orderly manner
and any disturbance or outbursts should be checked immediately
by the court on its own motion. Misconduct on the part of a trial
audience should never be tolerated and should immediately be
suppressed in a manner as to impress upon the jury the
impropriety and injustice of such conduct. The trial judge should
take appropriate steps . . . to insure that the jurors will not be
exposed to sources of information or opinion, or subject to
influences, which might tend to affect their ability to render an
impartial verdict on the evidence presented in court.

Commonwealth v. Sojourner, 408 A.2d 1100, 1105 (Pa. Super., 1978)

(citations and internal quotations omitted).

Here, however, the trial court did not observe any of the alleged

misconduct, and therefore did not have the opportunity to “avert or cure” it.

Moreover, the trial court could reasonably have concluded, given that neither

the court nor Appellant’s counsel had perceived any misconduct, that the

jury did not perceive it either, thus making it highly unlikely that any alleged

misconduct had influenced the jury. On the single occasion when trial

counsel did object on the record to a member of the district attorney’s office

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J-A12041-15

speaking at an inappropriate time, the trial court promptly instructed the

Commonwealth to stop, and Appellant did not request any further curative

instruction. In addition, aside from the single comment from Appellant’s

counsel requesting the district attorney’s office to refrain from speaking, the

record does not substantiate Appellant’s other claims of misconduct within

sight or hearing of the jury, to support a finding that Appellant was deprived

of his right to a fair and impartial jury. Based on the record before us, we

find no abuse of discretion in the trial court’s determination.

In his sixth and final issue, Appellant argues that the trial court

imposed an illegal sentence. Appellant’s Brief at 55-61. Specifically,

Appellant argues that the sentences for burglary and theft by unlawful taking

should have merged. The trial court rejected this claim and explained:

In the instant case, [Appellant] entered the apartment
multiple times and, on each entry, took one or more items from
the apartment. Had [Appellant] merely entered the apartment
once and removed all of the items at the same time, [the trial
court] agrees the crimes of Burglary and Theft by Unlawful
Taking would merge and only one sentence could be imposed.
However, because [Appellant] committed multiple acts of theft,
[the trial court] did not err in sentencing him for both Burglary
and Theft by Unlawful Taking.

Trial Court Opinion, 6/12/14, at 3.

Appellant argues that only a single criminal episode occurred, as

evidenced by the fact that he was charged with only one count of burglary,

and not multiple counts of burglary, despite his repeated entries into the

apartment. Appellant’s Brief at 59.

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Whether [a defendant’s] convictions merge for the purposes of
sentencing is a question implicating the legality of his sentence.
As such, our standard of review is de novo and the scope of our
review is plenary.

Section 9765 of the Pennsylvania Sentencing Code provides as
follows regarding the merger of crimes for sentencing purposes:

No crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act and
all of the statutory elements of one offense are
included in the statutory elements of the other
offense. Where crimes merge for sentencing
purposes, the court may sentence the defendant
only on the higher[-]graded offense.

42 Pa.C.S. § 9765. Accordingly, merger is appropriate only
when two distinct criteria are satisfied: (1) the crimes arise from
a single criminal act; and (2) all of the statutory elements of one
of the offenses are included within the statutory elements of the
other.

Commonwealth v. Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014)

(citations and internal quotations omitted).

“If the offenses stem from two different criminal acts, merger analysis

is not required. In this regard, [t]he threshold question is whether [the]

[a]ppellant committed one solitary criminal act. The answer to this question

does not turn on whether there was a ‘break in the chain’ of criminal

activity. Rather, the answer turns on whether the actor commits multiple

criminal acts beyond that which is necessary to establish the bare elements

of the additional crime[.] If so, then the defendant has committed more

than one criminal act. This focus is designed to prevent defendants from

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receiving a volume discount on crime.” Commonwealth v. Orie, 88 A.3d

983, 1020 (Pa. Super. 2014).

Here, we agree with the trial court that Appellant committed multiple

criminal acts beyond that necessary to establish the bare elements of theft

by unlawful taking, when he entered the apartment on three separate

occasions, and stole items each time. Although the time between the

separate acts was relatively short, each time, Appellant reformulated the

intent to enter the apartment for criminal purposes. Appellant is not entitled

to a “volume discount” for his crimes simply because he managed to

accomplish all of the acts within a relatively short period of time, and despite

his assertions to the contrary, the fact that the Commonwealth opted to

charge him with only one count of burglary does not alter the fact that he

entered the apartment three separate and distinct times. Appellant’s merger

claim is without merit.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/30/2015

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