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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ROBERT WILLIAM RUGGLES :
:
Appellant : No. 1920 MDA 2017
Appeal from the Judgment of Sentence August 4, 2017
in the Court of Common Pleas of Schuylkill County
Criminal Division at No.: CP-54-CR-0002221-2015
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED JUNE 27, 2018
Appellant, Robert William Ruggles, appeals from the judgment of
sentence imposed after his jury conviction of burglary, criminal conspiracy,
robbery, theft by unlawful taking, and harassment.1 We affirm.
We take the following facts and procedural history from the trial court’s
November 20, 2017 opinion and our independent review of the record. The
above charges resulted from the attempted robbery of Robert John Miller, in
his home, by Appellant, Bobbi Jo Rohrbach, and Braxton Moore.
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1 18 Pa.C.S.A. §§ 3502(a)(1), 903, 3701(a)(1)(v), 3921(a), and 2709(a)(1),
respectively.
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* Retired Senior Judge assigned to the Superior Court.
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The one-day trial occurred on June 9, 2017. Co-defendant Rohrbach
testified against Appellant as part of a plea agreement. (See N.T. Trial,
6/09/17, at 58, 65). She testified that, in the late evening of September 6,
2015, she met Appellant and Moore for the first time when she was at the
apartment of a friend.2 (See id. at 60-61). They were at the apartment for
approximately twenty minutes. (See id. at 90). The three of them devised
a plan to rob Miller, an individual they thought to be a drug dealer, in his
apartment, with the intent of taking his drugs and money. (See at 63, 66-
67). Thereafter, the three went to the apartment of another friend, Cheryl
Savaro, who lived in the same building as Miller. While there, Appellant,
Rohrbach, and Moore agreed that Rohrbach would knock on Miller’s door, and
that Appellant and Moore would then rush in and steal drugs and money from
him. (See id. at 66-67). They were at Savaro’s apartment for approximately
ten minutes. (See id. at 90).
Pursuant to the plan, the three individuals went to Miller’s apartment,
knocked on his door, dragged him by his hair, and demanded drugs and
money. (See id. at 33-36, 68-69, 71-73). However, Miller was unable to
provide them with anything, because he, in fact, was not a drug dealer. (See
id. at 37). Rohrbach stated that they then fled, taking Miller’s cell phone.
(See id. at 73).
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2Rohrbach refers to Appellant by his nickname, “Mofo.” (See N.T. Trial, at
61-62).
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At the conclusion of trial, the jury convicted Appellant of the above
referenced crimes. The court ordered a presentence investigative report
(PSI). On August 4, 2017, it sentenced Appellant to an aggregate term of not
less than eight nor more than sixteen years’ incarceration. The same day,
Appellant filed a post-sentence motion, which the court denied on November
20, 2017. Appellant timely appealed.3
Appellant raises three questions for this Court’s review:
I. [Whether] the trial court erred in admitting (and failing to
suppress) the testimony of co-defendant Bobby Jo Rohrbach . . .
when the Commonwealth denied [Appellant’s] request for a
Wade[4] hearing concerning . . . a photocopy of the image used
by co-defendant Bobby Jo Rohrbach which had been substantially
altered from the state in which it was used for an identification[?]
[II.] [Whether] the trial court erred by failing to give the missing
witness instruction as to Officer Mohl[?]
[III.] [Whether] the evidence presented was insufficient to
sustain the verdict; [whether] the jury verdict was against the
weight of the evidence[?]
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3On January 10, 2018, Appellant filed a timely statement of errors complained
of on appeal pursuant to the trial court’s order. See Pa.R.A.P. 1925(b). The
court filed an opinion on January 11, 2018, in which it relied on the reasons
stated in its November 20, 2017 opinion denying Appellant’s post-sentence
motion. See Pa.R.A.P. 1925(a).
4Commonwealth v. Wade, 33 A.3d 108 (Pa. Super. 2011), appeal denied,
51 A.3d 839 (Pa. 2012).
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(Appellant’s Brief, at 1-2) (unnecessary capitalization omitted; citation
formatting provided).5
In Appellant’s first issue, he maintains that the trial court erred in
admitting the testimony of Rohrbach on the basis of an “impermissibly
suggestive” identification procedure. (Id. at 5; see id. at 4-15). Appellant’s
issue does not merit relief.
It is well-settled that “[t]he admission of evidence is a matter vested
within the sound discretion of the trial court, and such a decision shall be
reversed only upon a showing that the trial court abused its discretion.”
Commonwealth v. Rashid, 160 A.3d 838, 842 (Pa. Super. 2017), appeal
denied, 170 A.3d 976 (Pa. 2017) (citation omitted).
Generally, in reviewing the propriety of identification
evidence, the central inquiry is whether, under the totality of the
circumstances, the identification was reliable. The question for
the suppression court is whether the challenged identification has
sufficient indicia of reliability to warrant admission, even though
the confrontation procedure may have been suggestive.
Suggestiveness in the identification process is a
factor to be considered in determining the
admissibility of such evidence, but suggestiveness
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5 Page numbering provided by this Court. We note that Appellant’s brief
violates multiple Pennsylvania Rules of Appellate Procedure. For example, it
does not contain page numbers, see Pa.R.A.P. 2173; a table of contents and
citations, see Pa.R.A.P. 2174; or a statement of jurisdiction, statement of the
scope and standard of review, statement of the case, summary of the
argument, or copy of Appellant’s Rule 1925(b) statement, see Pa.R.A.P.
2111(a)(1), (3), (5), (6), (11); see also Pa.R.A.P. 2101 (“[I]f the defects are
in the brief . . . of the appellant and are substantial, the appeal or other matter
may be quashed or dismissed.”). However, because these errors do not
preclude our meaningful review, we will not find waiver on this basis.
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alone does not warrant exclusion. A pretrial
identification will not be suppressed as violative of due
process rights unless the facts demonstrate that the
identification procedure was so infected by
suggestiveness as to give rise to a substantial
likelihood of irreparable misidentification.
In determining whether a particular identification was
reliable, the suppression court should consider the opportunity of
the witness to view the criminal at the time of the crime, the
witness’ degree of attention, the accuracy of [her] prior
description of the criminal, the level of certainty demonstrated at
the confrontation, and the time between the crime and the
confrontation. The opportunity of the witness to view the actor at
the time of the crime is the key factor in the totality of the
circumstances analysis.
Commonwealth v. Bruce, 717 A.2d 1033, 1036-37 (Pa. Super. 1998),
appeal denied, 794 A.2d 359 (Pa. 1999) (citations and quotation marks
omitted).6
Here, the court admitted Rohrbach’s testimony, finding that the
identification procedure was not so suggestive as to raise a substantial
likelihood of misidentification. See id. The totality of the circumstances
supports the court’s decision.
On September 8, 2016, Police Officer Mohl7 showed Rohrbach
Appellant’s photograph, and asked her if she could identify him. (See N.T.
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6 In the argument section of his brief, Appellant cites to Wade one time, and
then mentions “Wade factors” twice, without actually identifying what they
are. (Appellant’s Brief, at 9, 12; see id. at 8). Upon review, they are nearly
identical to the factors identified in Bruce, supra. See Wade, supra at 114.
7 Officer Mohl’s first name is not mentioned in the certified record.
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Trial, at 105). She immediately identified the man in the picture as Appellant,
her co-conspirator in the criminal events. In finding that the identification
procedure was not overly suggestive, the court observed that Rohrbach was
not only a witness to the crime, but also Appellant’s co-defendant. She spent
half an hour with Appellant prior to the attempted robbery, talking with him
to plan how they would commit the crime.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion in allowing the admission of Rohrbach’s testimony. See Rashid,
supra at 842. Appellant’s first issue lacks merit.
In the second issue in the argument section of his brief, Appellant
maintains that the trial court erred in admitting the testimony of Rohrbach
about the photograph8 she identified because the Commonwealth committed
a Brady9 violation. (See Appellant’s Brief, at 15-26). Specifically, he argues
that, because he was not aware that the photograph identified by Rohrbach
contained investigative notes before the jury was selected, he was not able to
question them during voir dire about what effect such evidence would have
on them. (See id. at 25-26). This issue is waived.
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8Appellant, not the Commonwealth, introduced the photograph at trial. (See
N.T. Trial, at 87). Moreover, defense counsel was the only attorney who
questioned Rohrbach about it. (See id. at 87-88, 105).
9 Brady v. Maryland, 373 U.S. 83 (1963).
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First, we observe that Appellant failed to include a Brady issue in his
statement of questions involved. (See id. at 1-2); see also Pa.R.A.P. 2116(a)
(“No question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby.”). Additionally, Appellant
failed to include a Brady claim in his concise statement of errors raised on
appeal. (See [Appellant’s] Statement of the [Errors] Complained on Appeal,
1/10/18, at unnumbered pages 1-2); see also Commonwealth v. Johnson,
107 A.3d 52, 69 n.7 (Pa. 2014), cert. denied, 136 S. Ct. 43 (2015) (finding
issue waived for failing to raise it in Rule 1925(b) statement). Therefore, for
these reasons, Appellant’s issue is waived.10
In his next issue, Appellant argues that “the trial court erred by failing
to give the missing witness instruction as to Officer Mohl.” (Appellant’s Brief,
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10 Moreover, we briefly note that the issue would not merit relief. “The crux
of the Brady rule is that due process is offended when the prosecution
withholds material evidence favorable to the accused. . . . To establish . . .
Brady violations, [a defendant has] to prove that the Commonwealth willfully
or inadvertently suppressed impeachment evidence and that prejudice
ensued.” Commonwealth v. Wholaver, 177 A.3d 136, 158 (Pa. 2018)
(citations omitted). Here, the Commonwealth produced the photograph prior
to trial, so it did not commit a Brady violation. Moreover, Appellant was not
prejudiced by his inability to question the jury about what effect investigative
notes on a picture would have on them because such questioning is not
permitted. See Commonwealth v. Delligatti, 538 A.2d 34, 41 (Pa. Super.
1988), 552 A.2d 250 (Pa. 1988) (“[P]ermissible questions for voir dire
purposes . . . should be strictly confined to disclosing the prospective jurors’
ability to render a fair and impartial verdict and whether the jurors have
formed a fixed opinion as to the accused’s guilt or innocence.”). Therefore,
this issue would lack merit, even if not waived.
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at 26 (unnecessary capitalization omitted); see id. at 26-27). This issue does
not merit relief.
“[O]ur standard of review when considering the denial of jury
instructions is one of deference—an appellate court will reverse a court’s
decision only when it abused its discretion or committed an error of law.”
Commonwealth v. Yale, 150 A.3d 979, 983 (Pa. Super. 2016) (citation
omitted). In addition:
The trial court is not required to give every charge that is
requested by the parties and its refusal to give a requested charge
does not require reversal unless the Appellant was prejudiced by
that refusal.
A missing witness instruction may be given in limited
circumstances. When a potential witness is available to only one
of the parties to a trial, [] it appears this witness has special
information material to the issue, and this person’s testimony
would not merely be cumulative, then if such party does not
produce the testimony of this witness, the jury may draw an
inference that it would have been unfavorable.
Commonwealth v. Miller, 172 A.3d 632, 645 (Pa. Super. 2017), appeal
denied, 2018 WL 1611472 (Pa. filed Apr. 3, 2018) (citations and quotation
marks omitted).
Here, the Commonwealth did not present Officer Mohl, the officer who
questioned Rohrbach about the photo, at trial. Appellant argues that this
rendered defense counsel unable to ask him about the photograph’s condition
at the time he showed it to her. However, other than stating that Officer Mohl
was unavailable to the defense because he is a police officer, Appellant fails
to support the claim by providing evidence that his attempts to subpoena the
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officer for trial, in fact, proved unsuccessful. See Commonwealth v.
Echevarria, 575 A.2d 620, 625 (Pa. Super. 1990) (“When defendant fails to
subpoena a witness who is known and available to him, even if that witness
has special information material to the issue which would not be cumulative,
he is not entitled to the ‘missing witness’ charge.”) (citation omitted).
Additionally, defense counsel cross-examined Rohrbach on her
identification of Appellant in the photograph, and she responded that she did
not notice any notes, only the picture. (See N.T. Trial, at 87, 105). Therefore,
Officer Mohl’s testimony about whether there were or were not notations on
the photograph when he showed it to Rohrbach was immaterial. Hence, the
trial court did not abuse its discretion when it determined that Appellant was
not entitled to a missing witness instruction. See Commonwealth v.
Pursell, 724 A.2d 293, 308 (Pa. 1999), cert. denied, 528 U.S. 975 (1999)
(missing witness instruction not required “where the testimony of a witness is
comparatively unimportant”) (citation omitted); see also Miller, supra at
645; Yale, supra at 983.
In his next issue, Appellant argues that “the evidence presented was
insufficient to sustain the verdict; the jury verdict was against the weight of
the evidence.” (Appellant’s Brief, at 27; see id. at 27-28). This issue lacks
merit.
Before reaching its merits, we observe that Appellant’s claim is waived
for his failure to provide any legal citation or discussion thereof in his one-
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page argument. (See id. at 27-28); see also Pa.R.A.P. 2119(a)-(b);
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied,
562 U.S. 906 (2010) (“[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”) (citation omitted).
In addition, we note that, although Appellant frames his issue as a
challenge to both the sufficiency and weight of the evidence, in fact, it only
raises weight claims. He correctly states that his issue alleging inconsistencies
in Miller’s testimony challenges the weight of the evidence. (See Appellant’s
Brief, at 28). However, his allegation that Miller and Rohrbach’s prior
convictions for crimes of dishonesty render them incredible, also goes to the
weight of the evidence, not sufficiency, as claimed by Appellant.11 (See id.);
see also Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011),
appeal denied, 34 A.3d 828 (Pa. 2011) (“Directed entirely to the credibility of
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11 Specifically, Appellant argues that the witnesses’ testimony “should have
been impeached and determined to be incredible” because they “have
extensive criminal histories which include multiple crimes of dishonesty.”
(Appellant’s Brief, at 28). We interpret this to be an inartful allegation that
the jury should have found the witnesses incredible due to their previous
convictions for crimes of dishonesty, not that trial counsel should have
impeached the witnesses. The same attorney served as Appellant’s trial and
appellate counsel, and he did impeach the witnesses about their criminal
history. (See N.T. Trial, at 53-54, 115-16).
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the Commonwealth’s chief witness, [a]ppellant’s claim challenges the weight,
not the sufficiency, of the evidence.”).
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Colon-Plaza, 136 A.3d 521, 529 (Pa. Super. 2016)
(citation and emphasis omitted).
Here, the trial court found that Appellant’s issue lacks merit because the
jury was entitled to assess the credibility of the witnesses and determine the
weight to give to their testimony. (See Trial Court Opinion, 11/20/17, at 7).
We agree. The claims Appellant raises, that the victim did not see his face
and gave conflicting testimony, and that he and Rohrbach had prior
convictions for crimes involving dishonesty, were for the jury to consider in
rendering its verdict. See Commonwealth v. Scott, 146 A.3d 775, 777 (Pa.
Super. 2016), appeal denied, 166 A.3d 1232 (Pa. 2017) (“[T]he 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.”) (citation
omitted). The trial court did not abuse its discretion in finding that the verdict
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was not against the weight of the evidence. See Colon-Plaza, supra at 529.
Therefore, Appellant’s issue would lack merit, even if not waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2018
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