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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHELLE MARTIN
Appellant No. 594 WDA 2015
Appeal from the Judgment of Sentence March 26, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000907-2014
BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 17, 2016
Michelle Martin appeals from the judgment of sentence entered in the
Court of Common Pleas of Erie County after a jury found her guilty of false
statements under the Public Welfare Code.1 Upon careful review, we affirm.
This case stems from Martin’s failure to report the employment wages
of her son, Matthew Malone, and, as a result, receiving an overpayment of
food stamps in the amount of $2,487. After a two-day jury trial, Martin was
convicted of the foregoing offense and, on March 26, 2015, the trial court
sentenced her to five years’ probation. Martin filed a timely notice of appeal,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
62 P.S. § 481.
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followed by a court-ordered statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Martin raises the following issues for our review:
1. Whether the trial court abused its discretion in overruling the
defense’s objection and permitted testimony regarding routine
practice?
2. Whether the trial court abused its discretion in permitting the
Commonwealth to present testimony regarding [Martin’s] prior
welfare charge from 2001 when that was resolved through entry
and completion of the [Accelerated Rehabilitative Disposition
(“ARD”)] program?
Brief of Appellant, at [4].
Martin first claims that the trial court erred in allowing Harry Harbst, a
continuing eligibility caseworker with the Department of Public Welfare, to
testify to his “routine practice” in conducting benefits reviews. This claim is
waived.
The failure by an appellant to develop an argument with citation to and
analysis of relevant authority waives the issue on appeal. Bombar v. West
Am. Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007). Here, the argument
section of Martin’s brief begins by setting forth the standard of review for
claims involving the admission of evidence. However, Martin fails to develop
and support her claim with citation to pertinent caselaw or other authority
regarding the admission of “routine practice” evidence. Accordingly, this
claim is waived.
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Martin next asserts that the trial court abused its discretion by
permitting the Commonwealth to present testimony regarding her prior
welfare fraud charge, which was resolved through the ARD program. Martin
claims that the prejudicial nature of this evidence outweighed its probative
value because the prior charges, from 2001, were too remote in time. The
2001 charges stemmed from Martin’s failure to report a change in household
composition when she separated from her husband because it would have
reduced her benefits. For the following reason, this claim is meritless.
We begin by noting that the admission of evidence is within the sound
discretion of the trial court and will be reversed only upon a showing that the
trial court clearly abused its discretion. Commonwealth v. Tyson, 119
A.3d 353, 357 (Pa. Super. 2015) (citations omitted). “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.” Id. at 357-58 (citation omitted).
Relevance is the threshold for admissibility of evidence.
Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). Pennsylvania Rule
of Evidence 401 provides as follows:
Rule 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and
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(b) the fact is of consequence in determining the action.
Pa.R.E. 401. “Evidence is relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more or less probable or
supports a reasonable inference or presumption regarding a material fact.”
Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002). All
relevant evidence is admissible, except as otherwise provided by law.
Pa.R.E. 402. However, “[t]he court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
Nonetheless,
[e]vidence will not be prohibited merely because it is harmful to
the defendant. This Court has stated that it is not required to
sanitize the trial to eliminate all unpleasant facts from the jury’s
consideration where those facts are relevant to the issues at
hand and form part of the history and natural development of
the events and offenses for which the defendant is charged.
Moreover, we have upheld the admission of other crimes
evidence, when relevant, even where the details of the other
crime were extremely grotesque and highly prejudicial.
Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007).
Finally, “when examining the potential for undue prejudice, a
cautionary jury instruction may ameliorate the prejudicial effect of the
proffered evidence. . . . Jurors are presumed to follow the trial court’s
instructions.” Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014).
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In this case, the challenged evidence consists of testimony regarding a
past crime committed by Martin. Regarding the admission of such evidence,
P.R.E. 404(b) provides as follows:
Rule 404. Character Evidence; Crimes or Other Acts
***
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
Pa.R.E. 404(b)(1)-(2).
The trial court concluded that the challenged evidence was relevant
and probative because Martin’s defense was that she had mistakenly and/or
accidentally failed to report her son’s employment status. The court further
noted that the potential for undue prejudice was mitigated by the cautionary
instructions provided to the jury. The first instruction, provided immediately
following the challenged testimony, stated as follows:
THE COURT: All right, ladies and gentlemen, let me give you an
instruction here. First of all, when this type of evidence is
admitted about a prior act, a prior act here involving a false
statement to the Department of Public Welfare, I’m not
admitting it to show that the person is bad, evil, criminal or
criminally disposed, but you’re entitled to have that information
in my view, and you may use it only for a limited purpose. You
may use it to decide in judging this case whether what occurred
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here under the totality of the circumstances is a result of either
absence of mistake, or mistake or an accident, okay? When
you’re looking at why [son’s employment] isn’t on there, on the
form, you’re entitled to judge what happened in the past to look
at the statement about why this here, was it an accident, was it
a mistake, was there a motive here. You can consider that for
those purposes, but you cannot just conclude, problem in the
past, guilty today. That would be wrong, okay?
N.T. Trial, 1/13/15, at 95-96. The court’s second cautionary instruction
came during the jury charge and provided as follows:
THE COURT: The defendant had a prior episode where she was
charged with making a false statement to welfare. That’s
relevant here, but only for a limited purpose, only for the
purpose of determining whether what happened here is a
mistake – result of a mistake or accident. Okay? It’s not here
and can’t be used to determine that she is necessarily guilty of
this offense or that she[] is a bad person. It has limited
relevancy. Use it that way.
Id. at 146.
In this case, Martin’s prior conviction involved her failure to report a
change in household composition; her current charges involved failure to
report income earned by a household member. The two crimes were similar,
in that they involved a failure to report information to the Department of
Public Welfare that was pertinent to determining the amount of benefits to
which Martin was entitled. The evidence of Martin’s prior conviction was
admitted solely to demonstrate that it was unlikely she had forgotten or
made some other mistake in failing to report her son’s income. A violation
of 62 P.S. § 481 requires that the defendant’s representation be willful. The
evidence of Martin’s prior crime tends to make it more likely than not that
her misrepresentation in the instant matter was willful, rather than
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negligent, as she would have learned from her prior experience the
consequences of failing to report pertinent information to the Department.
Moreover, Martin’s bald assertion that “the act was too remote in time
to have probative value,” Brief of Appellant, at [7], is unpersuasive and
lacking in any support, in the form of caselaw or otherwise. Indeed,
remoteness in time is merely one factor to be considered in determining the
admissibility of prior bad acts evidence. Commonwealth v. Aikens, 990
A.2d 1181, 1186 (Pa. Super. 2010).
Here, the trial court provided two curative instructions regarding the
limited purpose for which the evidence was to be used by the jury. The jury
is presumed to have followed those instructions. Hairston, supra. Upon
review of the record as a whole, we cannot conclude that the evidence of
Martin’s prior welfare fraud conviction was so unfairly prejudicial as to
“divert the jury’s attention away from its duty of weighing the evidence
impartially.” Dillon, 925 A.2d at 141.
Judgment of sentence affirmed.
STABILE J., Joins the memorandum.
FITZGERALD J., Concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2016
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