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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL ANTHONY LAPAGLIA
Appellant No. 104 WDA 2016
Appeal from the Judgment of Sentence dated September 21, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010922-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
MEMORANDUM BY SOLANO, J.: FILED APRIL 13, 2017
Appellant, Michael Anthony Lapaglia, appeals from the judgment of
sentence of life imprisonment without parole imposed after a jury convicted
him of murder of the first degree, robbery – inflict serious bodily injury, and
burglary of a structure adapted for overnight accommodation while a person
is present.1 We affirm.
Every Labor Day weekend, the Victim, Jack Parkes, and his fiancée,
Carol Lapaglia, held a party at their home in Kennedy Township, Allegheny
County, and invited all of their relatives, including Appellant, who is Ms.
Lapaglia’s nephew. N.T. Trial, 6/9/15, at 154-55; N.T. Trial, 6/10/15, at
264-67; Trial Ct. Op., 8/2/16, at 4. At the party held in September 2013,
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1
18 Pa.C.S. §§ 2502(a), 3701(a)(1)(i), and 3502(a)(1), respectively.
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numerous pieces of jewelry were taken from their home, and they
immediately suspected Appellant, who had been seen in their bedroom
during the party. Ms. Lapaglia called her sister-in-law and Appellant’s
mother, Marie Lapaglia (“Mother”), and told her about the theft, and Mother
answered that Appellant had also stolen jewelry from her. None of Ms.
Lapaglia’s jewelry was ever recovered, and Appellant was never arrested or
charged with the theft.
After Appellant graduated from high school, he enrolled in the military
but was dishonorably discharged after being found in possession of synthetic
marijuana. Trial Ct. Op., 8/2/16, at 4. The trial court then reports the
following events prior to the crime at issue:
Following his discharge, [Appellant] maintained that he
suffered from post-traumatic stress disorder and he began
to self-medicate and to experiment with other drugs to the
point that he became addicted to heroin. On June 7, 2014,
[Appellant] obtained employment as a teller for Dollar
Bank and following his training, was given an office where
he was to work. During an unannounced audit, it was
determined that on July 1, 2014, [Appellant]’s cash drawer
was short by nine hundred twenty-five dollars. A second
audit was done on July 9, 2014, and it was determined
that his cash drawer was short by eighteen hundred
dollars. In light of the two unexplained shortages in such
a very short period of time, a decision was made to
terminate [Appellant] from his job.
Id.; see also N.T. Trial, 6/10/15, 218-22.
On July 21, 2014, Ms. Lapaglia went to work at approximately 5:40
A.M., leaving the Victim at home alone. N.T. Trial, 6/9/15, at 92, 95-97,
109. Ms. Lapaglia left work at approximately 2:30 P.M. and arrived home
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about a half-hour later. When she entered her home, she saw the Victim
lying on the floor between a coffee table and a couch, with a single gunshot
wound to the head, and she called 911. Id. at 100-01; N.T. Trial, 6/10/15,
at 338, 340. The Victim was pronounced dead at the scene. The next day,
Ms. Lapaglia discovered that jewelry had been taken from her house. N.T.
Trial, 6/9/15, at 107-08, 110-11, 117-18, 177.
On the same day as the murder, a white male and a white female
entered a pawn shop known as Cash for Collectibles owned by Theodore
Hazlett; they were carrying a large amount of gold jewelry in a pouch and
seeking to sell it. N.T. Trial, 6/9/15, at 163-71; Trial Ct. Op., 8/2/16, at 6.
Mr. Hazlett told the couple that he did not have enough money with him that
day to buy all of the jewelry and asked them to return the next day at 11:00
A.M., but they did not. Shortly after the pair left, Mr. Hazlett called the
Sharpsburg Police Department and told the chief of police that he thought
someone was trying to sell him stolen jewelry. Mr. Hazlett later identified
Appellant as the male seller. N.T. Trial, 6/9/15, at 168, 171.
“On August 5, 2014, Appellant was taken into custody by the
Allegheny County Police and advised that he was being charged with the
crime of criminal homicide” in connection with Victim’s death. Trial Ct. Op.,
8/2/16, at 7. At first, Appellant “maintained that he had no involvement
with the death and knew nothing about that homicide.” Id. Then, he
claimed that an individual known as “Big Black Bro” had given him the bag
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full of jewelry to pawn. Id. After police confronted Appellant with records
that showed his cellular telephone “pinging”2 off the cellular tower that was
closest to the Victim’s home at 10:07 A.M. on the day of the homicide,
Appellant told them that he had waited in the car while a drug dealer named
“Stink” burglarized the Victim’s home and that Stink had shot the Victim
when “things did not go well.” Id. at 8.
Appellant then “asked for a bathroom break and when he came back
from that break, he told the police that he wanted to talk to them.” Trial Ct.
Op., 8/2/16, at 8. Appellant admitted to stealing jewelry from the Victim’s
home but claimed that he shot the Victim in self-defense, after the Victim
had attacked him and put him in a headlock. Id. at 8-9. He added that he
saw the Victim fall to the floor and that he “panicked” and grabbed jewelry
from the house. N.T. Trial, 6/10/15, at 299. He further explained that his
girlfriend had waited in his automobile while he committed the burglary and
that they had then attempted to pawn the jewelry in Sharpsburg. Trial Ct.
Op., 8/2/16, at 8-9. He also disclosed that he gave the firearm to Big Black
Bro in exchange for heroin and $40. N.T. Trial, 6/10/15, at 304-05.
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2
A “ping” determines “the real time location of [a] cell phone by looking at
the cell signal between the phone and the closest cell tower and finding the
last known address where the cell phone transmitted a signal requesting
service.” Commonwealth v. Rushing, 71 A.3d 939, 946 (Pa. Super.
2013), rev’d on other grounds, 99 A.3d 416 (Pa. 2014).
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On May 15, 2015, and June 5, 2015, the Commonwealth provided
notice of its intention to present evidence at Appellant’s trial of other crimes,
wrongs, or acts allegedly committed by Appellant, pursuant to Pa. R. Evid.
404(b).3 Specifically, the Commonwealth intended to introduce evidence of
Appellant’s termination from his employment with Dollar Savings Bank and
of the prior theft from the Victim’s home. The Commonwealth alleged that
these prior bad acts established the motive, plan, and opportunity that
Appellant had to commit the crimes for which he would be on trial. N.T.
Trial, 6/8/15, at 9.
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3
Rule 404(b) states:
(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.
(3) Notice in a Criminal Case. In a criminal case the
prosecutor must provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on
good cause shown, of the general nature of any such
evidence the prosecutor intends to introduce at trial.
Pa. R. Evid. 404(b) (bolding and italics in original).
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Appellant was tried from June 8 to 11, 2015. In the course of the trial,
over Appellant’s objection, the court admitted as evidence the materials
identified in its Rule 404(b) notice. In a later opinion, the court explained its
decision:
[Appellant] has suggested that this Court erred in allowing
evidence of prior bad acts with respect to his termination from
employment at Dollar Savings Bank and a prior theft from
Parkes' residence. The Commonwealth presented evidence that
[Appellant] was employed as a teller by Dollar Savings Bank and
over a very short period of time had two shortfalls in his cash
drawer. They also provided the testimony from Carol Lapaglia
that at a Labor Day party a year prior to [the Victim’s] death,
that a number of pieces of [the Victim’s] jewelry and her jewelry
were stolen and that [Appellant] had committed those thefts.
The Commonwealth filed a motion to produce evidence pursuant
to Pennsylvania Rule of Evidence 404.b of prior bad acts in order
to establish the motive, plan and opportunity that [Appellant]
had to commit the crimes for which he was on trial. In
particular, the Commonwealth wanted to show the fact that he
had been fired from his job at Dollar Savings Bank for theft
because of his need for money to support his drug habit and that
he knew that the victim had a considerable amount of jewelry
and coins which could easily be pawned. . . . The evidence
presented by the Commonwealth of [Appellant]’s bad acts was
designed to prove motive, intent and common plan. It was
offered for the purpose of showing [Appellant]’s need for money
to support his heroin addiction and the fact that he would
commit criminal activity to support that addiction. As with all of
his other claims of error, this claim is also without merit.
Trial Ct. Op., 8/2/16, at 18-19.
In an opinion issued on August 2, 2016, the trial court set forth the
remaining procedural history of this case, as follows:
On June 11, 2015, following a jury trial, [Appellant] was
found guilty of first degree murder, robbery and burglary.
A presentence report was ordered in aid of sentencing and
on December 9, 2015, [Appellant] was sentenced to the
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mandatory sentence of life without the possibility of parole
for his conviction of first degree murder, and a consecutive
sentence of ten to twenty years for his conviction of the
crime of robbery. No further penalty was imposed upon
him for his conviction of the crime of burglary. [Appellant]
filed timely post-sentence motions and then filed amended
post-sentence motions and a hearing on those motions
was continued several times at [Appellant]'s request. On
January 8, 2016, a hearing was held on his post-sentence
motions and those motions were denied on January 12,
2016.
[Appellant] filed a timely appeal to the Superior Court and
he was directed, pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b), to file a concise statement of
matters complained of on appeal. [Appellant] compl[ied]
with that directive[.]
Trial Ct. Op., 8/2/16, at 2. Appellant presents one issue for review:
Did the [t]rial [c]ourt abuse its discretion in admitting
evidence of two alleged prior bad acts when the
Commonwealth was unable to produce any evidence to
support its contention that the prior bad acts demonstrated
knowledge, motive, or intent?
Appellant’s Brief at 3.
“A trial court’s decision regarding an evidentiary ruling is governed by
an abuse of discretion standard.” Commonwealth v. Brown, 52 A.3d 320,
325 (Pa. Super. 2012), appeal denied, 62 A.3d 377 (Pa. 2013).
Appellant contends that “the trial court abused its discretion in
allowing the Commonwealth to introduce evidence of two alleged prior bad
acts” – Appellant’s “alleged Labor Day weekend theft” from the Victim’s
residence and Appellant’s “termination from Dollar Bank” – “when those
alleged bad acts did not meet a recognized exception.” Appellant’s Brief at
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10. According to Appellant, “[o]ther than the alleged victim and location,
there is absolutely nothing linking” these events. Id. at 13. Appellant adds
that the evidence of the alleged Labor Day theft and his termination from
the bank relates to events “so factually distinct from the death of [the
Victim] that it cannot be introduced as evidence of motive.” Id. at 13, 15.
Under Rule 404 —
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal
propensity. Pa.R.E. 404(b)(1). However, evidence of prior
bad acts may be admissible when offered to prove some
other relevant fact, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, and absence of
mistake or accident. Pa.R.E. 404(b)(2). In determining
whether evidence of other prior bad acts is admissible, the
trial court is obliged to balance the probative value of such
evidence against its prejudicial impact.
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009), cert.
denied, 559 U.S. 1111 (2010).
Here, we agree with the trial court that evidence that Appellant had
been fired from his employment at Dollar Savings Bank for theft, N.T. Trial,
6/10/15, 218-22; Trial Ct. Op., 8/2/16, at 4, could, if believed by the fact-
finder, establish a motive that he needed money to support his drug habit.
See Pa. R. Evid. 404(b)(2) (“This evidence [of crimes, wrongs, or other
acts] may be admissible for . . . proving motive”); Sherwood, 982 A.2d at
497; see also Trial Ct. Op., 8/2/16, at 19 (“The evidence presented by the
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Commonwealth of [Appellant]’s bad acts . . . was offered for the purpose of
showing [Appellant]’s need for money to support his heroin addiction”).
We similarly discern no abuse of discretion in the trial court’s
reasoning that evidence of the jewelry theft on Labor Day 2013 and of Ms.
Lapaglia’s suspicion that Appellant was the culprit, N.T. Trial, 6/9/15, at
154; N.T. Trial, 6/10/15, at 264-67; Trial Ct. Op., 8/2/16, at 4, was
admissible to show that Appellant knew that the Victim and Ms. Lapaglia had
a considerable amount of jewelry in their home. See Pa. R. Evid. 404(b)(2)
(“This evidence [of crimes, wrongs, or other acts] may be admissible for . . .
proving . . . knowledge”); Sherwood, 982 A.2d at 497.
Additionally, any potential infirmity in the trial court’s evidentiary
ruling as to Appellant’s prior bad acts was harmless. As the Supreme Court
of Pennsylvania has explained:
In the event of an erroneous admission of evidence, a
verdict can still be sustained if the error was harmless.
See Commonwealth v. Wright, 599 Pa. 270, 961 A.2d
119, 144 (2008). An error is harmless if it could not have
contributed to the verdict, or stated conversely, an error
cannot be harmless if there is a reasonable possibility the
error might have contributed to the conviction. Id. We
have found harmless error 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
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(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 the error could not have contributed
to the verdict.”
Id. (quoting Commonwealth v. Young, 561 Pa. 34, 748
A.2d 166, 193 (1999) (citation omitted)). The
Commonwealth has the burden of proving harmless error
beyond a reasonable doubt. Id. at 143.
Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015), cert.
denied, 137 S. Ct. 89 (2016).
Here, the properly admitted evidence was overwhelming. Appellant
conceded that he drove to the Victim’s home with a firearm. Trial Ct. Op.,
8/2/16, at 8. Appellant also admitted that the Victim was shot with
Appellant’s firearm — of which Appellant later disposed — and that Appellant
had seen the Victim fall to the floor. N.T. Trial, 6/10/15, at 299, 304-05;
Trial Ct. Op., 8/2/16, at 8-9. Despite claiming to have “panicked,” Appellant
had the wherewithal to procure a large amount of jewelry and other
valuables. N.T. Trial, 6/10/15, at 299. On the same day as the murder,
Appellant attempted to pawn the items that had been stolen from the
Victim’s house, in exchange for cash. N.T. Trial, 6/9/15, at 163-71; N.T.
Trial, 6/10/15, at 299; Trial Ct. Op., 8/2/16, at 6-9.
Thus, even if the evidence of the Labor Day theft and Appellant’s
termination at the Dollar Bank had been erroneously admitted, the
prejudicial effect of those errors was so insignificant when compared to the
properly admitted evidence that the errors could not have contributed to the
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verdict. See Poplawski, 130 A.3d at 716. Hence, any potential error was
harmless. Id.
Therefore, based upon our review of the record, the lower court did
not abuse its discretion in allowing the Commonwealth to introduce evidence
of both prior bad acts. Brown, 52 A.3d at 325. Thus, Appellant’s sole issue
is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2017
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