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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DMITRY KUPERSCHMIDT
Appellant : No. 3295 EDA 2016
Appeal from the Judgment of Sentence October 7, 2016
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000423-2014
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 07, 2018
Dmitry Kuperschmidt ("Appellant") appeals from the judgment of
sentence imposed by the Court of Common Pleas of Pike County after a jury
found him guilty of multiple offenses related to an attempted election fraud.
We reverse the conviction on criminal use of communication facility, vacate
the judgment of sentence, and remand for resentencing.1
This case arises out of Appellant's fraudulent voting scheme in the
2014 Wild Acres Community Association election. Appellant and his co -
1 Appellant filed an untimely Request for Permission to File a Post -
submission Communication in the Form of a Reply Brief on December 19,
2017. Said request is hereby denied.
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defendant, Myron Cowher, 11,2 planned to cast ballots for historically non-
voting property owners of the Wild Acres Community in order to influence
the election results. Appellant went to trial in May of 2016 on 217 counts,
including forgery, identity theft, criminal use of communication facility,
tampering with records or identification, criminal attempt, and criminal
conspiracy.3 The jury convicted Appellant on 190 counts.
On August 11, 2016, the trial court sentenced Appellant to
incarceration for an aggregate term of twelve to twenty-nine months.
Appellant filed a post -sentence motion for reconsideration. Following a
hearing, the trial court entered an amended sentencing order, which
reflected its intent not to impose a sentence on multiple counts. Order,
10/7/16.4 This appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925.
2 Myron Cowher, II appealed his judgment of sentence at 3297 EDA 2016.
We addressed his claims of error in a separate memorandum.
3 18 Pa.C.S. §§ 4101(a)(2), 4120(a), 7512(a), 4104(a), 901, and 903,
respectively.
4 The jury convicted Appellant on multiple counts of criminal attempt and
criminal conspiracy related to the substantive offenses of forgery, identity
theft, and tampering with records or identification. However, "[a] person
may not be convicted of more than one of the inchoate crimes of criminal
attempt, criminal solicitation or criminal conspiracy for conduct designed to
commit or to culminate in the commission of the same crime." 18 Pa.C.S.
§ 906. Thus, the trial court "decline[d] to enter a Sentence on [the
conspiracy convictions] in accordance with 18 Pa.C.S.A. §906." Order,
10/7/16, at 2-3 (emphasis omitted).
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On appeal, Appellant states the following issues for our consideration:
1. Did the lower court err when it denied [Appellant's] motion to
suppress the recorded phone call of May 8, 2014 because the
wiretap application did not recite reasonable grounds for the
interception of that call since the averments therein only
showed that [Appellant] may have had knowledge that a
future crime would be committed?
2. Did the lower court err by violating [Appellant's] right to
confrontation and procedural due process when it
consolidated [Appellant's] trial with Cowher's and denied
[Appellant's] request for a severance which allowed the
Commonwealth to introduce Cowher's hearsay against
[Appellant]?
3. Did the lower court err when it refused togrant a mistrial
after the prosecutor twice commented on [Appellant's] right
to remain silent?
4. Was the evidence insufficient to support [Appellant's]
convictions for attempt?
5. Was the evidence insufficient to commit criminal use of a
communication facility through the use of the mail; where
there was no evidence that [Appellant] attempted to take a
substantial step toward using the mail?
Appellant's Brief at 4-5.5
Appellant first challenges the denial of his motion to suppress the
consensual wiretap of a May 8, 2014 telephone call between Appellant and
Robert Depaolis ("Depaolis"), the Wild Acres Community Director of
Operations. Pennsylvania State Police Trooper Frank Orlando recorded the
5 Although Appellant presented eight issues for the trial court's review, he
only presents five issues on appeal to this Court. Thus, we consider the
other three issues waived. Commonwealth v. Yocolano, 169 A.3d 47, 53
n.7 (Pa. Super. 2017).
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telephone call pursuant to the Pennsylvania Wiretapping and Electronic
Surveillance Control Act ("Wiretap Act"), 18 Pa.C.S. §§ 5701-5782.
Our standard of review in addressing a challenge to a trial
court's denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct.
We may consider only the evidence of the prosecution and so
much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. Where the
record supports the findings of the suppression court, we are
bound by those facts and may reverse only if the court erred in
reaching its legal conclusions based upon the facts.
Moreover, it is within the lower court's province to pass on the
credibility of witnesses and determine the weight to be given to
their testimony.
Commonwealth v. McCoy, 154 A.3d 813, 815-816 (Pa. Super. 2017)
(quoting Commonwealth v. Roberts, 133 A.3d 759, 771 (Pa. Super.
2016), appeal denied, 636 Pa. 675,145 A.3d 725 (2016)) (internal citations
omitted). "Furthermore, our Supreme Court in In the Interest of L.1., 79
A.3d 1073, 1085 (Pa. 2013), clarified that the scope of review of orders
granting or denying motions to suppress is limited to the evidence presented
at the suppression hearing." McCoy, 154 A.3d at 816.
Appellant complains that Trooper Orlando's memorandum in support of
the wiretap application did not establish reasonable grounds for the wiretap;
rather, it established that the trooper "could only, at best, show that
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[Appellant] may have had knowledge of Cowher's plan." Appellant's Brief at
10.6 In response, the Commonwealth argues that reasonable grounds for
the wiretap consist of the following facts: Cowher told DePaolis that
Appellant was aware of the plan; Appellant was the Wild Acres Community
Chairman of the Board at the time; and Appellant had already confronted
DePaolis about the plan by asking if DePaolis had taken care of "something"
yet. Commonwealth's Brief at 18-19.
We have discussed Pennsylvania's Wiretap Act as follows:
Pennsylvania's Wiretapping and Surveillance Control
Act, is a pervasive scheme of legislation which
suspends an individual's constitutional rights to
privacy only for the limited purpose of permitting law
enforcement officials, upon a showing of probable
cause, to gather evidence necessary to bring about a
criminal prosecution and conviction. The statute sets
forth clearly and unambiguously by whom and under
what circumstances these otherwise illegal practices
and their derivative fruits may be used.
However, the Wiretap Act contains an exception allowing law
enforcement to utilize wiretaps without obtaining prior judicial
approval when one of the parties to the conversation consents to
the interception:
§5704. Exceptions to prohibition of interception and
disclosure of communications
6 We consider this argument to be fairly subsumed in the third issue, first
subpart of Appellant's statement of errors complained of on appeal: "The
District Attorney's application for authorization to conduct the wiretap was
not supported by reasonable suspicion and/or probable cause[.]" Pa.R.A.P.
1925(b) Statement, 11/23/16, at 3a. '11
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It shall not
be unlawful and no prior court approval shall be
required under this chapter for:
* * *
(2) Any investigative or law enforcement officer or
any person acting at the direction or request of an
investigative or law enforcement officer to intercept
a wire, electronic or oral communication involving
suspected criminal activities, including, but not
limited to, the crimes enumerated in section 5708
(relating to order authorizing interception of wire,
electronic or oral communications), where:
* * *
(ii) one of the parties to the communication has
given prior consent to such interception. However,
no interception under this paragraph shall be made
unless the Attorney General or a deputy attorney
general designated in writing by the Attorney
General, or the district attorney, or an assistant
district attorney designated in writing by the district
attorney, of the county wherein the interception is to
be made, has reviewed the facts and is satisfied that
the consent is voluntary and has given prior approval
for the interception ...
18 Pa.C.S.A. § 5704 (emphasis added).
In determining whether the approval of a consensual
wiretap was proper, this Court has determined that police
officers must articulate "reasonable grounds" for the monitoring
and the Attorney General or the district attorney must verify that
that [sic] these reasonable grounds exist.
Commonwealth v. McMillan, 13 A.3d 521, 525 (Pa. Super. 2011) (internal
citations omitted).
The trial court disposed of Appellant's suppression motion as follows:
On March 2, 2015, [Appellant] filed a second Omnibus Pre -Trial
Motion seeking to suppress a recorded telephone conversation
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involving [Appellant] on May 8, 2014. A hearing on [Appellant's]
Motions was held on April 14, 2015.. .
The relevant facts for determination of [Appellant's]
Omnibus Pre -Trial Motion are as follows[:] In late March 2014,
Robert Depaolis, the director of operations of the Wild Acres
Community Association, received a telephone call from Myron M.
Cowher, II who was the secretary of the Association's board of
directors. Cowher advised DePaolis that he and [Appellant], the
chairman of the board of directors, wanted to speak to him
about a matter. Several weeks thereafter, Cowher came to the
Association's office and requested Depaolis to provide him with a
list of members in good standing who own lots in the
community's "SOS" area. The "SOS" area consists of lots that
are not buildable.
DePaolis stated that Cowher intended to use the ballots of
the SOS members to vote in the upcoming board of directors
election scheduled in June 2014. Shortly after receiving this
information, DePaolis contacted the Pennsylvania State Police
("PSP") and the Pike County District Attorney's office. DePaolis
was concerned that Cowher's stated intentions may constitute a
crime. After consultation with the PSP, DePaolis arranged a
meeting with Cowher for May 8, 2014 at the Association's office.
On the day before the scheduled meeting, to wit, May 7,
2014, Trooper Frank Orlando of the PSP requested approval from
the District Attorney to intercept a telephone call between
DePaolis and [Appellant]. The District Attorney approved
Trooper Orlando's request in accordance with 18 Pa. C.S.A.
5704. During this telephone call which occurred on May 8, 2014
at 9:29 a.m., [Appellant] told DePaolis that he and Cowher have
already agreed and that DePaolis has nothing to worry about.
DePaolis advised [Appellant] that Cowher was coming to the
office to fill out ballots. [Appellant] told DePaolis that he should
relax, that no one knowns anything and that "nobody's got any
proof of what happened, when it happened." See
Commonwealth's Exhibit No. 2. Further, [Appellant] instructed
DePaolis to shut off the video cameras at the office prior to
Cowher arriving.
On May 8, 2014 at 11:18 a.m., Cowher arrived at the
Association's office to meet with DePaolis. This meeting was
recorded electronically and orally in accord with Section 5704.
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During this meeting, DePaolis provided numerous election ballots
to Cowher for the upcoming June 2014 board of directors'
election. The ballots, which totaled seventy-one (71), were
those intended for the SOS members. Cowher completed nine
(9) of the ballots during his meeting with DePaolis. Cowher did
so by placing an "X" over the name of the selected candidate or
circling the candidate's name. At the conclusion of the meeting,
Cowher took the nine (9) completed ballots and the remaining
sixty-two (62) uncompleted ballots with him. As Cowher left the
office, the PSP arrested him.
* * *
[Appellant] challenges the admissibility of the recorded
conversation on the basis that the state police failed to articulate
reasonable grounds for suspected criminal activity by [Appellant]
as required by appellate case law interpreting §5704.
* * *
The [c]ourt finds that Trooper Orlando's affidavit seeking
approval of the district attorney for the interception sets forth
reasonable grounds for the request. See Commonwealth's
Exhibit No. 4. The affidavit sets forth details as to Cowher's
alleged activities in attempting to fix the upcoming Wild Acres
board election. It further alleges that [Appellant] knew what
Cowher "wanted to do for the upcoming election." Id. The
affidavit further alleged that [Appellant] asked DePaolis if he had
taken care of "something" yet. Id. When read in its entirety,
Trooper Orlando's affidavit sets forth reasonable grounds to
suspect that [Appellant] knew of and was a participant in the
attempt to fix the upcoming board election. Accordingly,
[Appellant's] request to suppress the recorded telephone
conversation is DENIED.
Trial Court Order, 7/15/15, at unnumbered 1-3,5,6. See also Trial Court
Opinion, 1/3/17, at unnumbered 9 ("This [c]ourt determined that the
affidavit, when read in its entirety, provided reasonable grounds for the
wiretap.").
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Upon our review of the statutory language, relevant case law, and the
record in this case, we agree with the trial court that Trooper Orlando
provided reasonable grounds for believing that Appellant would discuss the
fraudulent election scheme with DePaolis during an intercepted telephone
call. Prior to monitoring the May 8, 2014 telephone conversation between
DePaolis and Appellant, DePaolis provided Trooper Orlando with information
about DePaolis' conversations with Cowher and Appellant regarding the
fraudulent election scheme. N.T., 10/13/15, at 26-31, 60-62;
Commonwealth Exhibits 1 and 4. Moreover, an assistant district attorney
verified that reasonable grounds for the monitoring existed. Id. at 27, 28,
36; Commonwealth Exhibits 3 and 6. Because the trial court's findings are
supported by the record and its legal conclusions are sound, we discern no
abuse of its discretion in admitting the consensual telephone interception of
Depaolis' conversation with Appellant.
Next, Appellant complains that the trial court erred in denying his
motion to sever the joint trial of Appellant and Cowher. In challenging the
denial of his motion for severance, Appellant presents a two-part argument:
the joint trial violated his right to confrontation, and the joint trial violated
his right to procedural due process. In Appellant's words: "The
Commonwealth introduced a statement made by Cowher about what
[Appellant] allegedly said to him, which implicated [Appellant] by showing
that he knew about Cowher's scheme. [Appellant] had no way to rebut this
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hearsay-Cowher did not testify and was therefore not subjected to
confrontation." Appellant's Brief at 13-14 (footnote omitted).
In support of his confrontation argument, Appellant relies on Bruton
v. United States, 391 U.S. 123 (1968). Therein, the United States
Supreme Court held that admission at a joint trial of a co-defendant's
confession, which implicates the defendant, violates the defendant's Sixth
Amendment right to confront witnesses against him. Id. at 125. In
response, the Commonwealth counters that Cowher's statement does not
present a confrontation issue. Commonwealth's Brief at 20. In support of
its position, the Commonwealth relies on Crawford v. Washington, 541
U.S. 36 (2004). Therein, the United States Supreme Court held that the
Sixth Amendment bars the admission at trial of an out -of -court statement,
which is testimonial in nature, unless the declarant is unavailable and the
defendant had a prior opportunity to cross examine the declarant. The
Commonwealth argues that Cowher's statement was non -testimonial in
nature and, therefore, not subject to the Bruton rule. Commonwealth's
Brief at 21.
In support of his due process argument, Appellant argues that he "was
not afforded an opportunity to defend himself against Cowher's hearsay
statement to Depaolis that relayed what [Appellant] allegedly told Cowher."
Appellant's Brief at 16 (citing Commonwealth v. Ceja, 427 A.2d 631, 642
(Pa. 1981) ("Due process principles no doubt require that a party be
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afforded a reasonable opportunity to challenge the reliability of adverse
hearsay evidence.")).7 In response, the Commonwealth asserts that the trial
court properly admitted Cowher's statements implicating Appellant under the
hearsay exception of Pa.R.E. 803(25)(E).8
The following principles guide our review of this issue:
Where ... the crimes charged against each defendant arise out of
the same facts and virtually all of the same evidence is
applicable to both defendants, this Court, as well as the United
States Supreme Court, have indicated a preference to encourage
We distinguish Ceja, wherein the Pennsylvania Supreme Court "granted
allocator to consider the appropriateness of the [Walker v. Unemployment
Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976)]
guidelines for evaluating hearsay evidence in administrative hearings."
Ceja, 427 A.2d 631, 633 (Pa. 1981). This appeal does not stem from an
administrative hearing.
8 That rule provides:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
* * *
(25) An Opposing Party's Statement. The statement is
offered against an opposing party and:
* * *
(E) was made by the party's coconspirator during and in
furtherance of the conspiracy.
The statement may be considered but does not by itself establish
. .the existence of the conspiracy or participation in it under
.
(E).
Pa.R.E. 803(25)(E).
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joint trials to conserve resources, promote judicial economy, and
enhance fairness to the defendants:
It would impair both the efficiency and the fairness of the
criminal justice system to require ... that prosecutors bring
separate proceedings, presenting the same evidence again
and again, requiring victims and witnesses to repeat the
inconvenience (and sometimes trauma) of testifying, and
randomly favoring the last tried defendants who have the
advantage of knowing the prosecution's case beforehand.
Joint trials generally serve the interests of justice by
avoiding inconsistent verdicts and enabling more accurate
assessment of relative culpability.
Given this preference, the burden is on defendants to show
a real potential for prejudice rather than mere speculation.
Separate trials of co-defendants should be granted only where
the defenses of each are antagonistic to the point where such
individual differences are irreconcilable and a joint trial would
result in prejudice. Although antagonistic defenses are a factor
for a trial court to consider in determining whether to grant a
motion to sever, the fact that defendants have conflicting
versions of what took place, or the extent to which they
participated in it, is a reason for rather than against a joint trial
because the truth may be more easily determined if all are tried
together.
Commonwealth v. Rainey, 928 A.2d 215, 231-232 (Pa. 2007) (internal
quotation marks and citations omitted). We have further explained:
Joinder and severance of separate indictments for trial is a
discretionary function of the trial court; consequently, the trial
court's decision is subject to review for abuse of that discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. Consequently, an abuse of discretion
consists not merely of errors in judgment by the trial court, but
instead contemplates action unsupported by the evidence, at
odds with governing law, or arising from improper motives
personal to the judge.
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Commonwealth v. Brookins, 10 A.3d 1251, 1255 (Pa. Super. 2010)
(internal quotations marks and citations omitted).
Moreover, our rules of criminal procedure provide: "Defendants
charged in separate indictments or informations may be tried together if
they are alleged to have participated in the same act or transaction or in the
same series of acts or transactions constituting an offense or offenses."
Pa.R.Crim.P. 582(A)(2). Conversely, the rules permit severance of charges
of defendants already joined when it appears that a defendant may be
prejudiced by a joint trial. Pa.R.Crim.P. 583. Reading these rules together,
our Supreme Court established the following test for severance matters:
Where the defendant moves to sever offenses not based on the
same act or transaction ... the court must therefore determine:
(1) whether the evidence of each of the offenses would be
admissible in a separate trial for the other; (2) whether such
evidence is capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these inquiries are in
the affirmative, (3) whether the defendant will be unduly
prejudiced by the consolidation of offenses.
Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997). The prejudice
must be greater than the general prejudice any defendant suffers when the
Commonwealth's evidence links him to a crime. Commonwealth v. Lauro,
819 A.2d 100, 107 (Pa. Super. 2003).
Additionally, we note that Appellant and Cowher were charged with
conspiracy. In Pennsylvania, "joint trials are preferred where conspiracy is
charged." Commonwealth v. Housman, 986 A.2d 822, 834 (Pa. 2009).
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In fact, the statute defining conspiracy specifically addresses the issue of
joinder:
(d) Joinder and venue in conspiracy prosecutions.-
(1) Subject to the provisions of paragraph (2) of this
subsection, two or more persons charged with criminal
conspiracy may be prosecuted jointly if:
(i) they are charged with conspiring with one
another; . . .
18 Pa.C.S. § 903(d)(1)(i).
Here, the trial court concluded that joinder was appropriate,
addressing Appellant's confrontation and due process arguments together.
Specifically, the trial court acknowledged the constraints of Bruton, but it
"found that the audio recordings and statements made by Cowher fell under
[Pa.R.E. 803(25)(E)] and therefore Burton [sic] was not applicable to the
use of these statements at the joint trial." Trial Court Opinion, 1/3/17, at
unnumbered 4. The trial court explained its position as follows:
In requesting severance, [Appellant] asserts that he would
be denied his federal constitutional right of confrontation (Sixth
Amendment) under the ruling of Bruton v. United States, 391
U.S. 123(1968) and its progeny. . . .
The Pennsylvania Supreme Court has determined,
however, that Bruton is not applicable where the admission of
the disputed co-defendant testimony is authorized by a
recognized exception to the hearsay rule. Commonwealth v.
Coccioletti, 493 Pa. 103, 425 A. 2d 387 (1981); Commonwealth
v. Gribble, 580 Pa. 647, 863 A. 2d 455 (2004). In addition, our
Supreme Court noted that "the out -of -court declarations of one
co-conspirator can be admitted against another co-conspirator
provided that the declarations were made during the conspiracy
and in furtherance of the common design." Coccioletti, 493 Pa.
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at 113; 425 A. 2d at 392 referring to Commonwealth v. Evans,
489 Pa. 85,413 A. 2d 1025(1980).
The Gribble Court subsequently recognized that Pa. R. E.
803(25)(E) serves as a recognized exception to the hearsay rule.
Rule 803(25)(E) allows a hearsay statement to be admitted
where it is made by a defendant's co-conspirator "during and in
furtherance of the conspiracy." The Gribble Court further noted
that "the U.S. Supreme Court and this Court had recognized that
statements admitted under the co-conspirator exception to the
hearsay rule do not violate the Sixth Amendment." Gribble, 580
Pa. at 664,863 A.2d at 465; see also United States v. Bourjaily,
483 U.S. 171, 183-184, 107 S. Ct. 2775, 2783, 97 L. Ed. 144
(1987). Accordingly, the Sixth Amendment protections originally
explained in Bruton were not applicable in Gribble as a result of
the available co-conspirator hearsay exception provided in Pa. R.
E. 803(25).
We similarly conclude herein that the out -of -court
statements of the co-defendant Cowher are admissible in a joint
trial of the two (2) defendants pursuant to Pa. R. E. 803(25)(E).
The out -of -court statements in question were made prior to
completion of the alleged conspiratorial act, i.e., election fraud.
The statements were also made in furtherance of the alleged
common design of the conspiracy, i.e., to commit election fraud
in the Wild Acres community general election in May 2014. In
accordance with our Supreme Court's interpretation of Bruton
and its progeny as set forth above and the applicability of Pa. R.
E. 803(25)(E) herein, as well as in exercising this [c]ourt's
discretion to effectuate judicial economy, a joint trial of
[Appellant] and his co-defendant is proper. Accordingly,
[Appellant's] Motion for Severance is hereby DENIED.
Trial Court Opinion and Order, 3/7/16, at unnumbered 4-6.
Upon review, we agree with the trial court. Appellant has failed to
establish that severance was necessary because of constitutional infractions.
First, the evidence regarding charges against Appellant and Cowher related
to their roles in the fraudulent election scheme; as such, evidence of the
offenses would be admissible in separate trials for each other. Collins, 703
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A.2d at 422. Indeed, the Commonwealth proved the existence of a
conspiracy. See Commonwealth v. Pinkins, 525 A.2d 1189, 1191 (Pa.
1987) ("[A]conspiracy, for purposes of the co-conspirator exception, may be
inferentially established by showing the relation, conduct or circumstances of
the parties."). Thus, because Cowher's statements about Appellant occurred
during and in furtherance of the conspiracy, they were admissible under
Pa.R.E. 803(25)(E). Second, evidence presented at trial explained the role
each co-defendant played in the scheme; thus, separation of the evidence
by the jury was possible, and the likelihood of jury confusion was minimal.
Collins, 703 A.2d at 422.
As to the third element for severance, Appellant has failed to establish
that he suffered such prejudice as to require a separate trial. Collins, 703
A.2d at 422. The evidence presented at trial established that Appellant and
Cowher conspired with one another to commit election fraud. 18 Pa.C.S.
§ 903(d)(1)(i). Furthermore, the fact that Appellant and Cowher had
conflicting versions of the extent to which they each participated in the
fraudulent election scheme is not a sufficient basis on which to sever.
Rainey, 928 A.2d at 231-232. Thus, we conclude that the trial court did
not abuse its discretion in denying Appellant's motion to sever.
In his third issue, Appellant challenges the trial court's refusal to grant
a mistrial when, in his closing argument, the prosecutor twice referred to
Appellant's decision not to testify. Appellant's Brief at 16-17. Appellant
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contends that the prosecutor's comments violated his federal and state
constitutional right against self-incrimination. Appellant's at 17. According
to Appellant, "the prosecutor's comment here [was] a bell that was not un-
rung by the court's cautionary instruction. To make matters worse, . . . [the
prosecutor's] . . . disingenuous feigning of obedience to the [trial court's]
instruction only once again placed in the mind of the jurors that [Appellant]
chose not to testify." Id. at 19.
Relying on the analogous case of Commonwealth v. Hess, 548 A.2d
582 (Pa. Super. 1988), the Commonwealth argues that the prosecutor's first
comment during his closing argument was fair response to defense counsel's
opening statement that Appellant would testify and what he would say,
when, in fact, Appellant did not testify. Commonwealth's Brief at 26-27
(citing N.T., 5/18/16, at 87-88; N.T., 5/23/16, at 77). Additionally, the
Commonwealth points out that the prosecutor's comment was "precisely in
accord with the [trial c]ourt's instructions, that he was 'allowed to comment
as Prosecutor on what was told to the jury in the opening statement did not
happen in trial.' See N.T. 5/23/16 at 13-14." Id. at 28. Regarding the
prosecutor's second reference to Appellant not testifying, the Commonwealth
characterizes it as a "reaffirmation to the jury of the validity of the [trial
c]ourt's cautionary instructions." Id. at 29.
Our standard of review for the denial of a motion for a mistrial is
limited to assessing whether the trial court abused its discretion.
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Commonwealth v. Scott, 146 A.3d 775, 778 (Pa. Super. 2016), appeal
denied, 166 A.3d 1232 (Pa. 2017).
More specifically, this Court has provided the following standards
for reviewing a claim of prosecutorial misconduct in a closing
statement:
it is well settled that any challenged prosecutorial
comment must not be viewed in isolation, but rather must
be considered in the context in which it was offered. Our
review of a prosecutor's comment and an allegation of
prosecutorial misconduct requires us to evaluate whether a
defendant received a fair trial, not a perfect trial. Thus, it
is well settled that statements made by the prosecutor to
the jury during closing argument will not form the basis for
granting a new trial unless the unavoidable effect of such
comments would be to prejudice the jury, forming in their
minds fixed bias and hostility toward the defendant so they
could not weigh the evidence objectively and render a true
verdict. The appellate courts have recognized that not
every unwise remark by an attorney amounts to
misconduct or warrants the grant of a new trial.
Additionally, like the defense, the prosecution is accorded
reasonable latitude, may employ oratorical flair in arguing
its version of the case to the jury, and may advance
arguments supported by the evidence or use inferences
that can reasonably be derived therefrom. Moreover, the
prosecutor is permitted to fairly respond to points made in
the defense's closing, and therefore, a proper examination
of a prosecutor's comments in closing requires review of
the arguments advanced by the defense in summation.
Scott, 146 A.3d at 778-779 (internal quotation marks and citations
omitted).
Here, the trial court explained its refusal to grant a mistrial as follows:
During closing argument [the] Assistant District
his
Attorney . reminded the Jury that it is their duty to make
. .
decisions based on the evidence presented at trial and that the
statements made by attorneys are not evidence. N.T. 5/23/16
at [76-77]. [The prosecutor] referred to Appellant's Attorney['s]
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. .opening statement in which [defense counsel] stated that
.
his client would testify. Id. at 77. The relevant part of [the
prosecutor's] statement is as follows:
I want to emphasize to you that when it comes to those
wires that is evidence. It is absolutely evidence; those two
recordings. I will tell you what is not evidence though.
The Judge will give you instruction that what lawyers say is
not evidence. This is important. You sit as far away from
that witness stand as I do. Do you recall [defense
counsel] talking about how my client is going to testify?
How he is going to testify? How he said that in his opening
statement? Do you remember that? Gave some long
story about Moldova or something along those lines; did
you seem him testify to that? I didn't. Id. at 76-[7]7.
Following this statement [defense counsel] objected and at
sidebar moved for a mistrial. Id. at 77. This [c]ourt denied the
motion, but informed [the prosecutor] that he would "have to
move on." Id. The [c]ourt also addressed the jury with a
cautionary instruction regarding [Appellant's] right to remain
silent. The jury was instructed that it was "not to draw any
adverse inference whatsoever" from [Appellant's] choice not to
testify. Id. at 79. After the cautionary instruction was given,
[the prosecutor] continued as follows:
Yes Your Honor. That is absolutely the case; you do not
consider the fact that [Appellant] didn't testify against him.
This is absolutely the case. No doubt about it. What the
Judge said is right. Id.
At this point, [defense counsel] once again objected and
moved for a mistrial at side bar. Id. at 79-80. This [c]ourt
again denied the motion and told [the prosecutor] to "move on."
Id. at 80.
This [c]ourt respectfully submits that it properly addressed
both references made by the prosecutor to [Appellant's] failure
to testify. The first reference appeared to be an attempt by [the
prosecutor] to rebut defense counsel's remarks in his opening
statement that [Appellant] would testify in the case. Obviously,
[Appellant] did not testify. Although the prosecutor's attempt to
rebut defense counsel's opening statement remarks in his closing
argument was fraught with the potential of prejudicial
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implications, the [c]ourt did not discern the attempt as a direct
attack on [Appellant's] constitutional right to not testify.
Accordingly, instead of granting a mistrial, the [c]ourt gave an
immediate and appropriate cautionary instruction advising the
jury that it was [Appellant's] absolute right to remain silent and
the jury should not draw any adverse inference whatsoever from
[Appellant's] decision not to testify.
After the initial cautionary instruction, the prosecutor
attempted to confirm to the jury the appropriateness of the
[c]ourt's cautionary instruction as to [Appellant's] right to
remain silent and his agreement therewith. While these
additional statements may have been unnecessary, given the
[c]ourt's cautionary instruction, they did not warrant the
declaration of a mistrial. If anything, these comments
reaffirmed to the jury the validity of the [c]ourt's cautionary
instruction. As indicated, the [c]ourt then appropriately
instructed [the prosecutor] to "move on" with his closing
argument.
Trial Court Opinion, 1/3/17, at unnumbered 14-16.
Our review of the record reveals that the prosecutor did not violate
Appellant's right to remain silent. The prosecutor's first comment was a fair
response to defense counsel's opening statement as to Appellant testifying
and what he would say. Thus, it was proper for the trial court to give the
prosecutor latitude in advancing an argument that was supported by the
record. Consequently, we conclude the prosecutor's first comment did not
amount to misconduct. Moreover, the trial court promptly gave a cautionary
instruction to the jury. N.T., 5/23/16, at 79.
As for the prosecutor's second reference, we agree with the trial
court's assessment that, although ill-advised, the comment did not
necessitate a mistrial; it merely reinforced the trial court's cautionary
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instruction. Furthermore, after closing arguments, the trial court gave the
jury a thorough instruction, emphasizing that the Commonwealth had the
burden to prove Appellant's guilt beyond a reasonable doubt and that
Appellant was not required to produce any evidence. Id. at 129, 134-135,
137-139. Juries are presumed to follow the trial court's instructions. Scott,
146 A.3d at 780 (citation omitted). We agree with the trial court's
conclusion that the prosecutor's comments did not warrant a mistrial.
Appellant's fourth issue is a challenge to the sufficiency of the evidence
supporting his convictions of criminal attempt to commit forgery, identity
theft, and tampering with records or identification. Appellant's Brief at 20-
23. According to Appellant, the Commonwealth's evidence:
directly rebuts any notion that [Appellant] was involved in
Cowher's alleged scheme. He did not know specifics; issued no
instructions on how to complete the crimes; and in fact did not
even know what was going on. . . .
Even taking the most favorable inference in favor of the
Commonwealth, the one comment [Appellant] made about
"turning the cameras off" could only possibly lead to an inference
of his limited knowledge that Cowher and De[P]aolis were
planning something.
Id. at 24-25.
In reviewing the sufficiency of the evidence, we consider:
[w]hether[,] viewing all the evidence admitted at trial light in the
most favorable to the verdict winner, there is sufficient evidence
to enable the fact -finder to find every element of the crime
beyond a reasonable doubt. In applying the above test, we may
not weigh the evidence and substitute our judgment for the fact -
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
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possibility of innocence. Any doubts regarding a defendant's
guilt may be resolved by the fact -finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Fortson, 165 A.3d 10, 14-15 (Pa. Super. 2017)
(quoting Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011))
(original internal brackets omitted). "A person commits an attempt when,
with the intent to commit a specific crime, he does any act which constitutes
a substantial step towards the commission of that crime." 18 Pa.C.S.
§ 901(a).
Furthermore, "[a] person is guilty of an offense if it is committed
by . . . the conduct of another person for which he is legally
accountable. . . . A person is legally accountable for the conduct of another
person when . . . he is an accomplice of such other person in the commission
of the offense." 18 Pa.C.S. § 306(a), (b)(3). "An individual is an accomplice
if, with intent to promote or facilitate the commission of the offense, he
solicits, aids, agrees, or attempts to aid another person in planning or
committing the offense." Commonwealth v. Treiber, 121 A.3d 435, 459
(Pa. 2015) (citing 18 Pa.C.S. § 306(c)(1)).
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Relying on accomplice liability, the trial court disposed of Appellant's
sufficiency challenge to the attempt convictions with the following analysis:
Here, [Appellant] was convicted on numerous Counts of
Criminal Attempt to Commit Forgery (F-3) under 18 Pa.C.S.
§ 4101(2), numerous Counts of Criminal Attempt to Commit
Identify Theft (F-3) under 18 Pa. C. S. § 4120(a), and numerous
Counts of Criminal Attempt to Commit Tampering with Records
or Identification (M-1) under 18 Pa.C.S. § 4104(a).[9]
[Appellant's] convictions rested on his liability as an accomplice
to his co -Defendant, Cowher.
At trial, the Commonwealth presented the PSP recording in
which [Appellant] was informed by DePaolis over the phone that
Cowher was coming into the office "to take care [of] the ballots"
and that DePaolis was "a little nervous about it." See
Commonwealth Exhibit 1. [Appellant] responded by saying,
"Don't be nervous about it." I didn't know nothing about it. Me
and Myron already agreed." Id. [Appellant] went on to tell
DePaolis to "relax" and assured him they were "still gonna win
no matter what." Id. In addition, [Appellant] suggested that
DePaolis turn off the cameras on the office while Cowher was
filing out the ballots. Id.
The PSP recording clearly shows that [Appellant] was fully
aware and supportive of Cowher's intention to fill out all of the
S.O.S. ballots and commit fraud. Specifically, [Appellant's]
suggestion that DePaolis should turn off the cameras shows his
intent to promote and aid or agree in Cowher's attempt to
fraudulently file [sic] out the S.O.S. ballots. Given this evidence,
a reasonable fact -finder could conclude that the verdicts on all
the attempt charges were correct and that there was sufficient
evidence to support the jury's conclusions of fact.
Trial Court Opinion, 1/3/17, at unnumbered 17-18. Notably, Appellant
makes no mention of, let alone argument against, his liability as Cowher's
9 We note that Appellant incorrectly identifies this offense as a violation of
18 Pa.C.S. § 4911 (Tampering with public records or information).
Appellant's Brief at 21.
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accomplice. Appellant's Brief at 20-26. Additionally, viewing all of the
evidence in the light most favorable to the Commonwealth, we discern no
basis on which to disturb the trial court's findings, which are supported by
the record, or its legal conclusion, which is supported by statutory and case
law.
Finally, Appellant argues that the evidence was insufficient to support
his conviction of criminal use of communication facility. According to
Appellant:
Here, there was no evidence that Cowher actually used the mail.
Moreover, there is no evidence to support the inference that
Cowher took a substantial step toward using the mail. As
. . .
Cowher did not attempt to use the mail, then it follows that
[Appellant] could not be convicted of being an accomplice to
same.
Appellant's Brief at 27.
"A person commits a felony of the third degree if that person uses a
communication facility to commit, cause or facilitate the commission or the
attempt thereof of any crime which constitutes a felony . . ." 18 Pa.C.S.
§ 7512(a). The term 'communication facility' means a public or private
instrumentality used or useful in the transmission of signs, signals, writing,
images, sounds, data or intelligence of any nature transmitted in whole or in
part, including, but not limited to, telephone, wire, radio, electromagnetic,
photoelectronic or photo -optical systems or the mail." Id. at 7512(c).
The trial court disposed of this challenge with the following analysis:
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[Appellant's] conviction under [section 7512] of the code
rests again on his accomplice liability for Cowher's actions. . . .
[Appellant] was aware and supportive of Cowher's plan to fill out
the S.O.S. ballots. In addition, as a then member of the Wild
Acres Board of Directors, [Appellant] would have been fully
aware of the election process as DePaolis described it at trial.
DePaolis testified that each year ballots were printed up in the
community's administrative office and mailed out to lot owners.
N.T., 05/19/16 at 92-[9]4. He further testified that instead of
mailing the S.O.S. ballots he brought them to Cowher during a
meeting with Cowher in his office. Id. at 94. DePaolis brought
the ballots to Cowher upon Cowher's instruction to do so. Id.
Finally, DePaolis testified that following the meeting Cowher left
the office with nine (9) filled out ballots and approximately
twenty-one (21) other ballots that Cowher intended to fill out
and mail. Id. at 111-[11]2.
Based on Cowher's intentions and [Appellant's]
understanding of both Cowher's intentions and understanding of
the election process in Wild Acres, a reasonable fact -finder could
infer that [Appellant] knew Cowher was going to use the U.S.
Postal Service in furtherance of his attempt to commit Forgery,
Identity Theft, and Tampering with Records or Identification.
This inference allowed the jury to reasonably determine that
there was sufficient evidence to convict Appellant [of criminal
use of communication facility].
Trial Court Opinion, 1/3/17, at unnumbered 18-19.
Viewing all of the evidence in the light most favorable to the
Commonwealth, we disagree with the trial court's conclusion that there was
sufficient evidence to convict Appellant of criminal use of communication
facility. The basis for this charge was Appellant's use of:
the United States Postal Service . ., to wit, in that he caused
.
numerous election ballots not to be mailed to property owners
within the Private Community of Wild Acres with the intention of
completing and mailing back same in order to cast votes in favor
of specific individuals in an upcoming Election of the Wild Acres
Lakes property Owners Association.
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Information, 10/27/14, at Count 19. We note that the statute requires "use"
of a communication facility. 18 Pa.C.S. § 7512(a). The record reveals,
however, that Cowher did not mail the ballots because DePaolis secured the
ballots in his office, turned them over to Cowher on May 8, 2014, and then
Cowher was arrested upon leaving the Wild Acres administration building.
N.T., 5/19/16, at 94, 111-112; N.T., 5/20/16, at 53. Therefore, despite
their intentions, neither Cowher nor Appellant as an accomplice used the
United States Postal Service "to commit, cause or facilitate the commission
or the attempt thereof of any crime which constitutes a felony." 18 Pa.C.S.
§ 7512(a). Finding the evidence sufficient would be wholly inconsistent with
the language and purpose of section 7512(a). Accordingly, we reverse the
conviction for criminal use of communication facility.
Because we reverse the conviction for criminal use of communication
facility, we have upset the trial court's sentencing scheme. Consequently,
we must remand the case for resentencing. Commonwealth v. Phillips,
946 A.2d 103,115 (Pa. Super. 2008).
Conviction for criminal use of communication facility reversed.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 2/7/18
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