J-S34011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK JAMES FORTNEY :
:
Appellant : No. 1393 WDA 2017
Appeal from the Judgment of Sentence August 14, 2017
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0004128-2016
BEFORE: BOWES, J., STABILE, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 22, 2018
Patrick James Fortney appeals from the judgment of sentence of ninety
to 180 months incarceration imposed following his jury trial convictions for,
inter alia, burglary. We affirm on the basis of the thoroughly well-reasoned
Pa.R.A.P. 1925(a) opinion prepared by the Honorable John Garhart, which
cogently sets forth why Appellant’s claims fail.
This appeal follows Appellant’s convictions for four counts of burglary,
which occurred at four separate residences over the period of March 7, 2016,
through March 28, 2016. The Commonwealth’s case was largely
circumstantial, and relied, in part, on the admission of a separate burglary
that occurred in Ashtabula County in Ohio, just over the Pennsylvania border.
Appellant’s two claims on appeal attack the sufficiency of the evidence
supporting those convictions, and the trial court’s decision to admit the other
crimes evidence. Appellant’s brief at 7-12. After reviewing the certified record
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S34011-18
and Appellant’s brief, we affirm on the basis of the trial court’s twenty-nine
page opinion, entered on November 21, 2017 and which we adopt as our own.
Regarding the sufficiency claims, we fully agree with the trial court’s
conclusion that the evidence was sufficient to sustain the jury’s convictions.
The opinion notes that the Commonwealth built its case piece by piece. “Once
arranged by the finder of fact, however, the evidentiary pieces created a clear
picture of [Appellant]’s absolute complicity in each and every one of the four
burglaries of which he was convicted.” Trial Court Opinion, 11/21/17, at 6.
Appellant’s brief largely focuses on the lack of direct evidence placing
Appellant inside the residences, but Judge Garhart’s opinion carefully
examines the direct evidence implicating Appellant in these crimes, namely,
the fact that Appellant’s girlfriend testified that Appellant gave her a diamond
bracelet that was identified as stolen from one of the homes. Additionally,
other stolen items were recovered from pawn shops in Ashtabula County. The
receipts for these items were made out to the co-defendant’s sister, who
testified that both Appellant and co-defendant gave her those items. As the
trial court opinion notes, the Commonwealth may prove every element beyond
a reasonable doubt by circumstantial evidence, and the prosecution as verdict
winner receives the benefit of all reasonable inferences drawn from the
evidence. The opinion comprehensively places this direct evidence in context
of other pieces of circumstantial evidence, and we agree that the sufficiency
claims must fail.
-2-
J-S34011-18
With respect to the second issue, the court also set forth its rationale
for admitting the other crimes evidence, and we agree that the judge’s
decision was not an abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2018
-3-
Circulated 09/28/2018 03:15 PM
COMMONWEALTH OF PENNSYLVANIA, IN THE COURT OF COMMON PLEAS
Appellee, OF ERIE COUNTY, PENNSYLVA.NJA
CRIMINAL DIVISION 85
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Appellant, Patrick Fortney; appeals from this Court's denial of Appellant's Post-Sentence
Motions on 'September 13, 2017, following his- conviction for burglary, criminal trespass,"
conspiracy to commit burglary, theft by unlawful taking, and criminal mischief.1 Based on the·
following, this Court respectfully requests his sentence be affirmed.
I. BACKGROUND OF THE CA.SE
On March 7, 9, 16, 25, and 28, 2016 a string ·o°f daytime burglaries occurred certain rural
areas of Erie County near the Ohio border.' The burglaries all bore loosely overlapping ·
similarities with each other and with a sixth burglary committed on Monday, Mar�h 28, 2016,'in
Ashtabula County, Ohio.3 Appellant. and· his .co-defendant were apprehended in the Ohio
burglary, to which they later pled guilty." All of the burglaries involvedat least two or more of
the following elements; (1) a small_ red sedan was observed at or near the scene of the crime; (2)
1
18 Pa.C.S.A. §§3S02(a)(2), 3503(a)(l}(ii), 903/3.502(a)(2), 3921 (a), and 3304(a)(2), respectively.
2
The residences were owned by Brad Hayes (Monday, March 7; 2016 burglary, Count I); Catherine Szyplik
(Wednesday, March 9; 20l6 burglary, Count Z), Diane\Voodie.(Wednesday, March 16, 2016 burglary, Count'3), ·
Gerald Cafardi (Friday, March 25, 2016 burglary, Count 4), and Timothy Krahe (Monday, March 28, 2016 burglary,
Count S). Appellant was acquitted of the March 9, 2016 burglary of the Szyplik residence. ·
3
The Ashtabula, Ohio burglary occurred on March 28, 2016, the same day as the last of Erie County burglary
(Krahe residence). Appellants were apprehended.in Qhio w�ile they were in a small red sedan being driven by
Patrick Fortney and owned by Fortney's girlfriend, Yvette Santiago. A witness to the Krahe burglary, Eric Sharf,
saw asmall red sedan parked near the Krahe residence near the
time of the Krahe break-in. N:T. (Day I) at 160.
4
N.T. (Day 2) at 78-80.
1
«,
two Caucasian .men were observed at or near the crime scenes; (3) one or both of the men had
tattoos on their forearms; (4) the crimes were committed on a Monday, Wednesday, or Friday;
(5) the crimes were committed during the daytime, usually before noon or 1:00 p.m. N.T. Trial,
6/22/17, (Day 1) 50-168; (6) the burglarized properties were in geographically close, rural areas
near the Pennsylvania/Ohio border; (7) all of the burglaries occurred within a three week period
in March of 2016.
Furthermore, law enforcement testified at trial that the tire trea.d prints from the red VW Jetta
driven by Appellant during the Ashtabula, ·ohio burglary was similar to tire tread prints found at
the Cafardi residence. N.T. (Day 2) at 61. Trooper Youngberg also testified that sneakerprints
found at the Cafardi residence appeared similar to the distinctive tread on Appellant's shoes,
Nike Air Jordans, N.T. (Day 2) at 59;
Appellant's girlfriend, Yvette Santiago," turned over a stolen diamond bracelet to thepolice,
Ms. Santiago credibly testified that Appellant gave her the diamond bracelet. N.T. Trial, 6/23/17,
(Day 2) at 4-21. Other stolen items were recovered from Ashtabula County pawn shops, with the
. .
pawn shop receipt made out to the co-defendant's sister, Belinda Buttons, or co-defendant's
girlfriend, Jessica Knowlton. N.T. Trial, (>/23/17, (Day 2) at 1-33. Notably, Belinda Buttons
admitted during cross examination that she. received the stolen cameras found at her residence
from both Patrick Fortney and Walter Sterling. N.T. Trial (Day 2) at 185. Finally, Appellant's
girlfriend, Yvette Santiago, testified that she would routinely let Appellant drive her car, a 2008
Volkswagen Jetta, a small red four door sedan, on Monday, Wednesday, and Friday mornings
when she was at work. He would join her regularly for. lunch between 12:30 and 1:00 p.m. N.T.
Trial (Day 2) at 8-13, 20.
2
. After a two day jury trial, . the Appellant, Patrick Fortney, and his co-defendant, Walter
Sterling, were convicted of four out of the five burglaries and related charges. N.T. (Day 2), at.
\
190-195.5 01� August 14, 2017, Appellant was sentenced to the following concurrent terms of
incarceration: 24 to 48 months, plus 60.months of state probation, at each conviction at Counts 1,
3, 4, and 5 (burglary), Counts 6, 8, 9, and 10 (criminal trespass) merged for sentencing purposes.
Counts 13, 14, and 15 (conspiracy to commit burglary) resulted in concurrent state probationary
sentences of 10 years. Counts 16, 18; 19, and 20 (theft by unlawful taking) merged. Counts 21
and 22 (criminal mischief) resulted in no further penalty. Appellant was further ordered to pay ·
restitution in the amount of $4,340:05 and costs. On August 24, 2017, Appellant filed Motions
for Post-Sentence Relief, seeking, inter alia, a Judgment of Acquittal andrequesting a newtrial,
which motions were denied by this Court on September 13, 2017.
On September 25, 2016, Appellant filed a timely Notice of Appeal. On September 26, 2017,
Appellant filed a Concise Statement of Matters Complained of on Appeal, raising 15 issues for
. appeal. Paraphrased, Appellant complains of the following:
1. The evidence is insufficient to support the. verdicts on all guilty charges;
2. The verdict was against the weightof the evidence on all guilty charges;
3. The trial court erred in admitting evidence of the Ashtabula, Ohio burglary, as a prior bad
act, pursuant to Pa; R.E. 404(b), because the Ohio burglary: (a) was not substantially
similar to the Erie County burglaries to establish a common scheme, plan or design; (b)
or
failed 'to establish the intent motive of the Appellant; (c) weighed more toward
prejudice rather than probative value; arid (d) constituted inadmissible propensity
evidence; and · .
4. The trial court erred in consolidating Appellant's trial with the trial of his co-defendant,
Walter Sterling, because the Commonwealth failed to provide notice and/or submit a
proper motion to consolidate. Appellant was deprived ofhls due process rights and right
to a fair trial.
Appellant's Concise Statement, 10/10/17, at ,Jf 1-15.
5
Appellant was acquitted of the Szyplik burglary. N.T. (Day 2) at 191,
3
II. DISCUSSION
A. Sufficiency of Evidence.
Appellant's first claim is that the trial court erred when it denied Appellant's post sentence
motion for judgment of acquittal, as there was insufficient evidence supporting his conviction for
(1) burglary, (2) criminal trespass, (3) conspiracy �o commit burglary; (4) theft by unlawful
taking, and (5) criminal mischief. The standard. for reviewing the sufficiency of evidence on
appeal is as follows:
When reviewing a sufficiency of the evidence claim, au appellate court must view
all the evidence and reasonable inferences therefrom in a light most favorable to.
the Commonwealth as verdict winner and must determine whether the evidence
was such as to enable a fact finder to find that all.of the elements of the offense []
were established beyond a reasonable doubt.
. . . .
Commonwealth v. Lawrence, 960 A2d 473, 477 (Pa; Super. 2008), citing Commonwealth v.
Holley, 945· A.2d 241, 246-247 (Pa; Super. 2008). In applying the above noted test, the .
Pennsylvania Superior Court has.noted that" it· will not weigh the evidence and substitute its
judgment for·the fact-finder. Commonwealthv.Urays, 167 A.3d 793, 806 (Pa. Super. 2017). The
facts and circumstances established by the Comn:ionwealth need not preclude every possibility of
innocence. Id Any doubts regarding a defendant's .guiltmay be resolved bythe 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. Id.·
The Commonwealth may sustain its burden of proving every element of a crime beyond a
reasonable doubt by means of wholly circumstantial evidence. Commonwealth v. Grays, 167
A.3d at 806. Moreover, in applying the above test, "the entire record must be evaluated and all
evidence actually received must be considered." Id Finally, the finder of fact is free to believe
4
all, part or none of the evidence when passing judgment upon the credibility of witnesses and the
weight of the evidence produced. Id
1. Burglary.
Appe11ant was convicted of burglary at Counts 1, 3, 4 and 5. Burglary is defined at 18 Pa.
C.S.A. §3502 (a)(2):
§3502 Burglary
(a) Offense defined. -A person commits the offense of burglary if, with the
intent to commit a crime therein, the person:
¥*"'
(2) enters a building or occupied structure, or separately secured or
occupied portion thereof that is adapted for overnight accommodations in .
which a the time of the offense no person is present;
Appellant claims that the Commonwealth failed to prove "through either eye-witness testimony
or forensic evidence, that Appellant was ever at' any of the locations that were burglarized or that
he entered any of the homes alleged to have been burglarized." Appellant's Statement of Matters
Complained of on Appeal, 11. 6
In the instant case, Appellant challenges the finding that he "entered the building" in each
of the four burglaries of which he was convicted, and claims that there were "no eye witnesses"
and "no forensic evidence" against him, The record belies Appellant's cl'":111 on each burglary
conviction at Counts l , 3, 4, and 5. These counts pertain to the burglaries of the Hayes, Woodie,
Cafardi and Krahe residences." We find that there was sufficient evidence to convict Appellant
of burglary in each 'of these crimes. Not only was there sufficient evidence of similar
6
We note that even if, for argument's sake, this statement is true, the jury was still free to infer from circumstantial
evidence that appellant was present at tho burglarized locations and that he entered the burglarized homes.
Commonwealth v. Grays, 167 A.3d at 806 (the Commonwealth may sustain its burden of proving every element ofa
crime beyond a reasonable doubt by means of wholly circumstantial evidence).
7
The jury
found there was insufficient evidence connecting Appellant to the burglary of the Szyplik home. N.T. ·
(Day2) at 193. · ·
5
· characteristics between all of the burglaries, including the Ashtabula, Ohio burglary to which
Appellant pied guilty, but there was also sufficient individualized evidence attaching Appellant
to each crime.
Appellant's blanket sufficiency challenge requires a thorough review of the extensive
8
testimony in this case. Piece by piece, the Commonwealth built its case against Appellant.
Some of the evidence was direct and some was circumstantial. Disjointed and seemingly lacking
in cohesion, like a strewn puzzle,. the picture of Appellant's guilt was unclear until the last breath
of the final witness for the prosecution. Even then, the pieces required organization. Once
arranged by the finder of fact, however, the evidentiary pieces created a clear picture of
Fortney's absolute complicity in each· and every one·of the four burglaries of which he was
convicted.
First, Brad Hayes testified that his residence _at 9851 Old Albion Rd., Cranesville,
Pennsylvania was broken into on Monday, March .7, 2016 at between 6:30 a.m. and 11: 15· a.m.
When Mr. Hayes returned to the house at 11 a.m. hefound his fire safe smashed in the back�ard
and the house sliding glass door open. N.T. (Day 1) at 51-53. The thieves had takenthe Hayes'
television, cash, guns, jewelry, and camera and camera bag. N.T. (Day 1) at 53-58. Mr, Hayes
identified photos of his wife's necklace (Commonwealth Exhibit #1), camera and camera bag ·
(Commonwealth Exhibit #2), as well as a silver bracelet given by his mother-in-law to his wife
(Commonwealth Exhibit #3). N.T .. (Day 1) at 55-59. Under examination by Commonwealth
counsel as a hostile witness, Belinda Button testified that she had gotten the camera and 'camera
bag, (both of which were found in her room by the Pennsylvania State Police), from Pat Fortney
and Walter Sterling. N.T. (Day 1) 185.
8
Regrettably,
6
Furthermore, the Hayes' neighbor, Michele Mihalak, who lived about a mile away from
Mr. and Mrs. Hayes, testified that at about 9:30 a.m. on March 7, 2016, the day of the Hayes
burglary, she saw a red sedan going very slowly down her road, Lexington Road. N.T. (Day 1) at
67, 70. Ms. Mihalak could see that that there were two people in the car. The driver was a
Caucasian male bearing tattoos on his lower left forearm. Id at 67. At trial, Appellant was asked
to roll up his sleeves to show the jury the tattoos on his lower forearms," Id Ms. Mihalak
testified that she followed the red car for a half mile down the road and the red car turned around
and went the other way. Id. at 68.
Next, Diane Woodie took the stand and testified that she lives on 2071 Welch Road in
Waterford. On Wednesday, March 16, 2016, between 9:30 a.m. and 11 :30 a.m. she left her
home. She returned to find the sliding glass door open'. Her engagement and wedding ring and a
42 inch Panasonic television were missing. NJ', (Pay 1) at 94-97. M�. Woodie's neighbor, Sam
McCaughtry, also testified. As he drove by the Woodie residence at between 10:30 a.m. and
11 :00 a.m., he saw a red sedan parked 100 yards up the road from the house. He noted that it is
unusual for a car to be parked on· the side of the road in that area. He then noticed a Caucasian
man running through a field toward the parked car.from Mrs. Woodie's house. The running man
got in the passenger side of the red sedan and the cat took off. Id. at 100�106.
The next burglary victim was Gerald Cafardi who testified that he lives on 13774 Old
Route 19 North, Waterford. Id. at 109: On Friday, March 25, 2016, his home was broken into
between 9:00 a.m. and noon or 1:00 p.m. Mr. Cafardi had just returned from Good Friday
services and entered his home through the garage. Once inside his home, he noticed the front
door jamb lying in the middle of the living room floor. Id. at 111. He found his wifes bracelet
9
-
We note that Ms. Mihalak also claimed there may have been facial hair or a tattoo on the driver's neck, but
Appellant does not have a neck tattoo. Id. at 67, 72.
7
missing and identified the bracelet in Commonwealth Exhibit 14. Mr. Cafardi also identified a
footprint found in the dirt of the garden by his porch, as well as a dirt-footprint left on his front
door, where it had been kicked-in. (Commonwealth Exhibit #13). The Pennsylvania State police
took photographs of a tire print at the scene. (Commonwealth Exhibit #11). Patrick Lamb was
the Cafardi's next door neighbor. He noticed a smaller red car in front of the Cafardi's house the
day of the burglary' parked on the opposite side of the road with its four way flashers on, facing
against traffic, between 9 a.m, and 11 a.m. Id. at 139;.142.
The last victim, Tim Krahe, testified that he lives at 7012 Bargain Road. On Monday;
March 28, 2016, at between 11 a.m. and 1:30 p.m. his home was burglarized. Id. at 145. A
window was open and the front door was open with the door frame cracked. "It appeared
someone had tried to kick the front door down, so the frame was cracked." Id at 146. The .
· screened-in porch was cut so someone could reach in to unlock the back door. Id at 146. Mr.
Krahe lost a 50 inch Samsung TV, (serial number z6p43cad90080lw), a Cannon T51 Rebel
camera, bag and lens, and some jewelry; Id. at °I:46� 154. (Commonwealth Exhibits #16-#20).
Eric Sharf, the Krahe's next door neighbor testified that on March 28, 2016 he saw a red
car parked up from the Karhe's house on the.. street. 1£ at 160. It stayed there for a while. Id at·
160. He noticed a Caucasian male outside the �ar walking around. Then, he heard the car speed
off between I 0:30 a.m. and 11 :00 a.m. Id. Mr. Scharf was sure of the time because the power
went out at that time. Id at 161. Later, .Mr, and Mrs. Scharf went out to lunch when they got a
phone call from the Krahe's that theKrahe's home had been broken into. Mr. Scharf testified,
"And we're like, oh shit, the red car. And ,ve both just realized what was going on right at that
instant. Like, we knew what was up then." Id. at 165.
8
Similarly, witness Katie Fedchick testified to driving by the Krahe residence on March
28, 2016. She too saw a red car parked 9i1 the.sideof the road around 11 a.m, She saw "two guys
running across the lawn." Id at 167. She identified the car as a red Hyundai. Id. at 168.
Next, Appellant's (presumably former) girlfriend took the stand. Ms. Santiago was the
owner of the 2008 red Volkswagen Jetta. N.T. (Day 2) at 6. She allowed Fortney to use her car
while she worked at Kiss Chiropractic Monday, Wednesday, and Fridays from 8:30 a.m. to.6:00
p.m. Id at 7-8. She testified that Appellant would routinely pick her up for lunch when he had
her car, usually betweeen 12:30 and 1 :00. N.T. .(Day 2) at 20. Santiago identified
Commonwealth Exhibit#3 as the bracelet Appellant gave her. N.T. (Day 2) at 15-16. We note
that the bracelet in Commonwealth 'Bxhiblt #3 was also identified by Mr. Hayes as his wife's.
bracelet, stolen during the burglary of their home. N.T. (Day 1) at 58.
Then Commonwealth witnesses Trooper Christopher Wingard took the stand. Wingard
testified that he went to the Ashtabula, Ohio home of Robert Sterling's girlfriend, Jessica
Knowlton. N.T. (Day 2) at 24. He searched Knowlton's home and found the items of jewelry
identified in Commonwealth Exhibit .#4. He also recovered a receipt from "Pawntastics" in
Ashtabula, made out to Belinda Button, Sterling's sister, who had pawned a large screen
television. Id at 25-26. (Commownealth Exhibit #15). The television recovered at the pawn shop
was identified by Mr. Krahe as the television stolen from. his home. N.T. (Day 1)146-149.
Trooper Wingard then went to Belinda Button's house where, when given consent to search, he
found two cameras in her room: and a diamond bracelet ·on her wrist. Id at 26�27. The troop.er
identified.one of the cameras in Button's possession as from a burglary in Erie County. Id at 31. ·
Belinda· Button admitted under cross· examination that she got the cameras from Sterling and
Fortney. N.T. (Day 1) at 185.
9
Next, Trooper Robert Youngberg testified that he investigated the Woodie, Cafari and·
Krahe burglaries. N.T. (Day 2) at SO. There were no breaks in those investigations until he
learned about a burglary in Ashtabula, Ohio where Fortney and Sterling were in custody for a
burglary which involved a red car, a daylight break-in, and a stolen television. Trooper
Youngberg thought there were sufficient similarities to follow the Ashtabula, Ohio lead, Trooper
Youngberg went to the Ashtabula, Ohio pawn shops (discovered by Trooper Wingard's
investigation of Belinda Button) and. recovered stolen items from "his {Southern Erie County]
burglaries." N.T. (Day 2) at 55. Trooper Youngberg testified that law enforcement officers then
recovered a pair of red and white Air Jordan sneakers from the home of Patrick Fortney's
girlfriend, Yvette Santiago. Id at 58. (Commonwealth Exhibit #29).
Trooper Youngberg then testified that police found a muddy. shoe print on the door of the
Cafardis residence. He identified a photo of the shoe print found on the Cafardi residence and
compared it to the tread of Fortney's red and whiteAir Jordan sneakers. Trooper Youngberg said
that the muddy print on the Cafardi's door was "very similar" to the tread of Appellant's shoe.
N.T. (Day 2) at 56�59.
Next, the Trooper testified that the troopers found tire tracks along the roadway where the
red vehicle had parked near the Cafardi residence. These tracks were photographed by the police
immediately after the Cafardi burglary. N.T. (Day·2) at 59. Trooper Youngberg compared the
tire tracks with photographs of the tread of'.the tires on the red VW Jetta. owned by Yvette
Santiago and driven by Fortney. Trooper Youngberg testified that the tire tracks at the Cafardi
crime scene were "very similar" to the tire tread of the red VW Jetta driven by Patrick Fortney.
Id at 62. (Commonwealth Exhibits #11� #30).
10
Finally, Jeff Brown> a detective and records custodian from the Ashtabula, Ohio Sheriffs
Department testified to Sterling and Fortney's conviction in Ohio for an Ashtabula, Ohio
daytime burglary on the same day as the burglary of the Krahe residence, in Pennsylvania, just
over the border. On March 28, 2016, Fortney and Sterling were caught in the act of committing a
burglary in Ashtabula. Fortney was driving his girlfriend's red VW Jetta. He was wearing his red
and white Air Jordan tennis shoes .. Both Sterling and _Fortney pled guilty to the Ashtabula
burglary. N.T. (Day 2) at 72�80.
Based on the evidence presented and the inferences to be drawn therefrom, the evidence
was sufficient to sustain appellant's conviction for burglary of the four homes noted above.
Contrary to Appellant's claim thatall of the evidence pointed solely to Walter Sterling as the
perpetrator of these burglaries, the evidence consistently pointed to not one, but a pair of robbers,
acting in concert in each and every burglary. Patrick Fortney was the one who had Monday,
Wednesday, Friday access to his girlfriend's red sedan, the car identified by eye witnesses in
each of the burglaries. Patrick Fortney was Identified as having tattoos· on his lower forearms.
Patrick Fortney's girlfriend was in possession of a bracelet stolen from the Krahe residence.
Patrick Fortney was identified by Belinda Button as the sourceof a stolen camera found in her
room by a State Trooper. Patrick Fortney's shoe print, or one very similar to his Air Jordan
sneaker tread, was found on the kicked in door at the Cafardi residence. A tire tread very similar
to PatrickFortney's borrowed red sedan was found at the Cafardi residence. Patrick Fortney was
and apprehended while committing a daytime· burglary in Ashtabula, Ohio, while driving his
girlfriend's red Jetta. This was on the same day as the Krahe burglary, just over the state line in
Erie County, where not one, but two witnesses saw a suspicious small red sedan parked near the
Krahe residence during the burglary.
11
The Conunonwealth may sustain its burden of proof wholly by means of circumstantial
evidence. Commonwealth v. Sullivan, 284 A.2d 504 (1971). It is permissible for the trier of fact
to draw inferences based on the evidence presented by the Corrunonwealth. Commonwealth v.
Fontana, 327 A.2d 154 (1974). After a review of the evidence cited above, we find that there
was sufficient evidence for the jury to find that Appellant guilty of burglary and, specifically,
that Appellant was present at the location of the four burglaries for which he was convicted.
2. Criminal Trespass.
Appellant was convicted of criminal trespass at Counts 6, 8, 9, and 10. A person
commits the offense of criminal trespass "if, knowing that he _is not licensed or privileged to do
so, he breaks into any building or occupied structure or separately secured or
exercises unlawful control over> movable property of another with intent to
deprive him thereof. ·
18 Pa.C.S.A. § _3921. Appellant claims that the Commonwealth failed to prove that "Appellant
ever took or· exercised control over any of the property that was taken from any of the ·
burglarized homes and ... failed to prove that Appellant was ever at any of the locations that were
burglarized."· Appellant's Statement of Matters Complained of on Appeal, �3. · Appellant's
presence "at any of the locations that were burglarized" has been discussed above. Furthermore,
the Commonwealth presented sufficient direct and circumstantial evidence showing that the
Appellant unlawfully took or exercised unlawful control over, moveable property of another with
the intent to deprive. 18 Pa. C.S.A. §392l(a).
First, there was direct evidence that Appellant stole and dispensed items taken from the
Hayes residence. Brad Hayes testified that a bracelet was taken in the burglary of his home. N.T.
(Day 1), p. 53. Mr. Hayes then identified a photograph of the bracelet in Commonwealth Exhibit.
3 as one of the items missing from his home immediately after it was burglarized. N. T. (Day 1 )>
at 58-59. Mr. Hayes testified as follows:
Q. This is the next photo. Could you ... please identify what's in that photo?
(Commonwealth Exhibit 3 marked for identification).
A. (Brad Hayes): A silver bracelet.
Q. And do you recognize it?
A. Yes I do.
13
Q. How do you recognize it?
A. It's the bracelet that my wife's mother bought her.
Q. Okay. Is there anything distinguishing about that bracelet that makes you. sure that
that's the bracelet that your mother -your wife's mother bought her?
A. The diamond pendant.
Then, Defendant's former girlfriend, Yvette Santiago, credibly testified that Appellant gave her
the same bracelet, which she also identified in the photograph of the recovered item, entered as
Commonwealth Exhibit 3 -. N.T. (Day 2), p. 16, Commonwealth Exhibit 3. Yvette Santiago
testified as follows:
Q. [I] give you previously marked Conunonwealth Exhibit 3. Do you recognize that
picture at all or the item inthat picture?
A. (Yvonne Santfago): Yeah.
Q. And what is that?
A. A picture of the braceletthat I had.
Q. Is this that picture?
A. Yeah,
Q.- And how did you come to have that bracelet?
A. Patrick had given it to me.
Q. And when you say Patrick, do you mean Patrick Fortney?
A. Yes.
Q. This individual-.
A. Yeah.
N.T. (Day 2), at p, 15-16. Thus there was sufficient evidence to directly connect Patrick Fortney
as having taken control of at least one specific item taken in the Hayes, robbery.
14
In addition, Belinda-Buttons identified Fortney, as well as Walter Sterling, as the source
of the stolen cameras found her room. Belinda Buttons testified:
Q. Where did you get the cameras from?
***
Q. Belinda?
A. I got some from the guys and some from my sister Jessica.
Q. Okay. And specifically, you said, "the guys," who are the guys, Belinda?
A. Patrick and Walter.
N.T. (Day 1), at 185. Cameras were taken from the Hayes and Krahe residences. N.T. (Day 1) at
53, 146. Officer Wingard testified that.the cameras found in Belinda Button's home were from
the Erie County burglaries that were the subject of this trial. N.T. (Day 2) at 31.
The remainder of the theft evidence against Appellant was circumstantial. See
Commonwealth v. Grays, 167 A.3d at 806 (the Commonwealth may sustain its burden of proving
. .
every element of a crime beyond 'a reasonable doubt by means of wholly circumstantial
evidence); Commonwealth v, Fontana, 327 A. 2d 154 (Pa. 1974)(it is permissible for the trier of
fact to draw inferences based on the· evidence presented by the Commonwealth). Based on the
evidence presented and inferences to be drawn therefrom, the evidence here was sufficient to
sustain Appellant's conviction for theft by unlawful taking. Appellant was clearly the driver of
the getaway vehicle in each and every burglary. His (borrowed) vehicle would have carried off
the contraband taken in each and every break-in. There was significant testimony from Troopers
Wingard and Youngberg as to the additional ·items recovered from the other burglaries which
they found in Ashtabula pawn shops or at the homes of Belinda Button and Jessica Knowlton.
15
These items could only have reached. their destinations via Appellant's "unlawful control over"
these stolen items in the red VW Jetta Appellant was driving.
4. Criminal Mischief
Next, Appellant challenges the sufficiency of evidence in support of his conviction of two
counts of· criminal mischief with respect to the Krahe and Cafardi residences- which were
damaged during the break-ins. Criminal mischief is statutorily defined by §3304 of the Crimes
Code, in relevant part, as follows:
(a) Offense defincd.-A person is guilty of criminal mischief if he:
* * *.
(2) intentionally or recklessly tampers with tangible property of another so as to
endanger person or property;
18 Pa.C.S.A� § 3304(a). Appellant claims that-criminal mischief was insufficiently proven at trial·
because "Appellant was not at either location that was tampered with and damaged during the
course of the underlying alleged burglaries." Appellant's Statement of Matters Complained of on
Appeal, �4.
There was plenty of evidence showing tampering. with property, including kicked-in
doors, cutscreens, broken safes, and other damage to the victim's homes and property. However,
Appellant only challenges the element of "being at the location" tampered with and damaged.
The issue of Appellant's presence at the various· properties has· already been discussed
extensively above. There was sufficient evidence for the jury to conclude that Appellant was
present· at each of the four properties which are the subject of his conviction; either by direct
evidence or adequate circumstantial evidence.
5. Criminal Conspiracy.
Finally; Appellant challenges the sufficiency ofevidence in support of his convictions for
criminal conspiracy to commit burglary at Counts 11, 13, 14, and 15. Appellant claims that
16
criminal conspiracy -was insufficiently proven· at trial because, the Commonwealth "failed to
establish that Appe1lant agreed to commit burglaries with Co-Defendant Walter Sterling and Mr.
Sterling's actual co-conspirators: Belinda Button and Jessica Knowlton." Appellant's Statement
of Matters Complained of on Appeal, 15.
Criminal conspiracy is statutorily defined as follows:
§903. Criminal Conspiracy
(a) Definition of conspiracy.--A person is guilty of conspiracy with another
person or persons to commit ·a crime if with the intent of promoting 01'
facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will
engage in conduct which constitutes such crime or an attempt or solicitation to
commit such crime; or ·
(2) agrees to aid such_ other person or persons in the planning or commission of
such crime or of an attempt or solicitation to commit such crime.
18 Pa.C.S.A. § 903(a). This requiresproof that: 1) the· defendant entered into an agreement with
another to commit or aid in the. commission of a .crime; 2) he· shared the criminal intent with that
other person; and 3) an overt act was committed in furtherance of the conspiracy.
Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa.Super.Zul I). "This overt act need not be
committed by the defendant; it need· only be committed by a co-conspirator." Commonwealth v.
Murphy, 795 A.2d 1025, 1038 (Pa.Super.2002) (citation omitted).
The essence of a criminal conspiracy is a common understanding, no matter how
it came into being, that a particular criminal objective be accomplished.
Therefore, a conviction for conspiracy requires proof of the existence of a shared
criminal intent. An explicit or formal agreement to commit crimes can seldom, if
ever; be proved and it need not be, for proof of a criminal partnership is almost
invariably extracted from the circumstances that attend its activities. Thus, a
conspiracy may be inferred where it is demonstrated that the relation,
conduct, or circumstances · of the parties, and the overt acts of the co-
consplrators sufficiently prove the formation· of a criminal confederation.
The conduct of the parties and the circumstances surrounding their conduct
may create a web of evidence linking the accused to the alleged conspiracy
17
beyond a reasonable doubt. Even if the conspirator did not act as a principal in.
committing the underlyingcrime, he isstill criminally liable for the actions of his
co-conspirators in furtherance of the conspiracy.
Commonwealth v. McCall, 911 A.2d 992, 996-97 (Pa.Super.2006} (citation omitted).
Here, the evidence was more than adequate for the jury to reasonably find that Appellant
and Walter Sterling, by way of their relationship to each other, agreed to commit crimes, and
with shared intent, committed overt acts in furtherance of the conspiracy to burglarize the four ·
homes in· Southern Erie County. This "web -of evidence'' was more than sufficient to permit an
inference that Fortney was acting as part of a criminal partnership with his co-defendant, Walter
Sterling. Accordingly, there was sufficient evidence to support Appellant's burglary conviction
based upon conspirator and accomplice liability. 18 Pa. C.S.A. §306(b)(c), 903(a)(l).
Furthermore, there was ample circumstantial evidence of a shared criminal intent
between Patrick Fortney and WalterSterling. The evidence showed that Appellant drove the red·
getaway car at each and every burglary, he kicked in the door to the Krahe residence,· he gave
away the Hayes' diamond bracelet to his girlfriend, and he gave the stolen cameras to Belinda
Button to pawn "(Wjhere the conduct of the parties indicates that they were acting together with
=,
a common and corrupt purpose in view the jury may properly infer that a conspiracy did exist In
Interest of Waldron, 353 A.2d 43, 46 (Pa. Super. 1975)(citations omitted). Appellant was knee
deep in this burglary operation. There was sufficient circumstantial evidence to show a tacit
agreement between Appellant and. his co-conspirator.
B. The weight of the evidence was sufficient to prove to the lmder
of fact that Appcllan·t was gyilty. of· theft by unlawful taldng
and'conspiracy to.commit burglary.
Appellant also challenges his conviction based on the Weight of the evidence
against him with respect to his conviction for theft by unlawful taking and
18
conspiracy to commit burglary.11 Appellant Concise Statement ��14-15.
Challenges to the consistency and credibility of testimony go to -
the weight of evidence rather 'than to sufficiency. See Commonwealth v.
Montalvo, 956 A.2d 926, 932 n.6 (Pa. 2_008) (citing Commonwealth 'v, De.Iesus,
860 A.2d 102, I 07 (Pa, 2004)). The weight of the evidence is entirely for the
finder of fact who is free to believe all, part or none of the evidence and determine
the credibility of the witnesses. Commonwealth v, Morris, 9S8 A.2d 586, 577 (Pa.
Super. 2008). A verdict is only against the weight · of the evidence if it is so
contrary to the evidence that it shocks one's · sense · of justice. Commonwealth v.
Charlton, 902 A.2d 554, 561 (Pa.Super. 2006). Appellate review is limited to
whether the trial courts "palpably abused its discretion" in ruling on the weight
claim. Commonwealth v. Champney, 832 A.2d 403 (2003). "[A]n appellate court
will give the gravest consideration to the findings and reasons advanced by the
trial judgewhen reviewing a trial court's determination that the verdict is against
the weight of the evidence," as the trial judge is hi the best positionto view the
evidence presented. Commonwealth v. Wright, 865 A.2d 894, 915
(Pa.Super.2004) (citations omitted).
In this case, Appellant was found guilty of theft by unlawful taking and conspiracy to
commit burglary. The elements of these offenses areoutlined above. After careful review we are
satisfied that the testimony of the victims was completely credible, as was the testimony
proffered by various eye witnesses who consistently testified to seeing a small red sedan with
two Caucasian men in it suspiciously cruising or parked on the side of country roads near the
homes which were later found to have been burglarized. We also find credible the succinct
testimony of the two investigating officers, Troopers Wingard and Youngberg, who documented
the tire tracks and sneaker prints found at the crime scenes, as very similar to the treads of the
Fortney's borrowed VW and his Air Jordan shoes. In fact, the jury was free to assess 'the
similarity of the treads themselves by viewing the photographs taken by the officers.
In contrast, Erwin Chapman, Fortney's 68 year-old uncle, took the stand in an attempt to
provide an alibi for Appellant. N.T. (Day 2) at 90 .;..,101. Chapman's testimony was equivocal at
best. He testified that during approximately three weeks in March of 2016, he would pick
11
Counts 16, 18, 19 and 20 (Theftby Unlawful Taking) and at Counts! 1, 13, 14, and 15
(Conspiracy to Commit Burglary).
19
Appellant up to perform landscaping work together. Chapman was not clear about the days he
worked with his nephew. On direct his testimony inferred that he and Appellant worked together
almost every day between March 3 · and March 20 from the hours of 10 a.m, and 3 p.m. However,
on cross he admitted that they only worked "three or four days out of the week." N.T. (Day 2) at
96. He claimed the days they worked, "had to be Tuesday, Wednesday, and Thursday," because
"those are the slow days at my barber shop." N.T. (Day 2) at 96. However, on cross he admitted
that "if presented with evidence to show that on one. or more of the days [Appellant] was
elsewhere, you don't have a specific recollection of any specific day; you just know during that
month he was working on generally those days?" N.T. (Day 2) at 100. ·
Chapman's testimony did not provide a clear cut alibi for Appellant, especially since the
burglaries took place on Mondays, Wednesdays, and Fridays. No other exculpatory evidence was
presented on Appellant's behalf. The jury was free to believe or disbelieve the testimony of
Appellant'swell-meaning uncle who admitted, that he loved his nephew and didn't want him to
be convicted of a crime. N.T. (Day 2).at 95. If the jury failed to treat Chapman's testimony as an
iron clad. alibi in the exercise of their discretion, it was not "so contrary to the evidence that it
shocks one's sense of justice." Charlton, 902 A.2d at 561.
Finally, the testimony of Belinda Button, to the extent that it may have exculpated
Appellant, was completely unbelievable and contrary to the credible testimony given by all other
witnesses. When shown a photo of a very large, fifty inch, Samsung Smart TV, Button testified
. . .
she recognized it "vaguely." N.T. (Day 1) at 178; Button claimed she got the TV "from her
mother's house." Id at 179. Her brother told her it was his. Id at 180. She also testified that she
found a stolen bracelet on the "back steps" of her building. Id at 178. Then she said she found it
in the "back hallway" of her building. Id, at_ 183. She. denied having told Trooper Wingard that
20
Fortney or Sterling was driving a bright red Volkswagen. Id at 184. She denied telling the
trooper that she received cameras from Fortney. Id. She testified, "I don't remember a lot." Id
The Court admonished Buttons to answer the prosecutor's questions about where Button got the
cameras and jewels. Id. at 185. Ultimately,' Belinda Button was not credible and her testimony
did not provide any basis for exculpating Sterling or Fortney. Once again, it does not. "shock
one's sense of justice" that the finder of fact did not swallow Button's hazy and inconsistent
version of the facts.
C. The trial court properly adm'itted evidence of the Ashtabula,
Ohio bu�glary. ·
The burglary committed in Ashtabula, Ohio by Fortney and Sterling on the same day as ·
the last burglary in Southern Erie County, was· relevant, admissible; ·and its probative value
outweighed any prejudice. Evidence of prior bad acts is inadmissible to prove character or to
show conduct in conformity with that character, however such evidence is admissible to prove
some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, Commonwealth v. Weiss, si A. 3d 767 (Pa. 2013).
The inimical facts of the Ohio burglary and the four Erie County burglaries, of which
Appellant was convicted, clearly showed a common plan or scheme; a signature modus operandi
linking the Appellant to the crimes in both states. Moreover, the Ohio burglary was relevant to
show the co�plete story or context of the events surrounding the Erie County crimes. The trial
evidence showed that after committing 'a string of identical day time, March 2016, robberies in a
borrowed red VW Jetta, which was available to them on Mondays, Wednesdays and Fridays, the
perpetrators pulled one last job, closer to their home in Ashtabula, Ohio. This time, they got
21
caught "red handed" in the signature red car and with Appellant wearing his signature red Air
Jordans: a perfect "Study in Scarlet. "12
Here, the Commonwealth admitted into evidence the fact that Fortney and Sterling were
apprehended while committing a burglary in Ashtabula, Ohio. Jeff C. Brown, a detective with ·
the Ashtabula County Ohio Sheriff's office testified, based on an incident report for a burglary
committed on March 28, 2016, in Ashtabula, Ohio. The suspects· were Patrick Fortney and
Walter Sterling. N.T. (Day2) at 75. Fortney and Sterling were apprehended in a red VW Jetta,
registration plate GQM7408, registered to Yvette Santiago. (Commonwealth Exhibit 26). The
driver was Patrick Fortney. Fortney was found wearing a pair ofred Air Jordan sneakers as
identified in Commonwealth Exhibit 34-1. Both Fortney and Sterling pled guilty to that Ohio
burglary. N.T. (Day 2) at 72-88.
Prior to admitting the evidence of the Ohio burglary, 'the court addressed the issue with
trial counsel:
THE COURT: AU tight. Now, the Conneaut [Ohio] matter. What am I going to
do with this burglary in Conneaut? And the answer is O Pm going to reserve
, judgment on that motion until I see the Commonwealth's case in its entirety and
then you can, at the last - I: want to make sure that there are these elements of
commonality that you say Ohio links to and I want to see them in the record
flushed out with some detail hanging on the bones of this allegation. And then
when I see the Commonwealth's case as it occurred in Pennsylvania, I'll be able
to make an attempt - a determination - a careful determination of whether Ohio is
just an attempt to prejudice because of a weak case or whether it's proper because
there were things that actually show this plan, scheme or design,
N.T. (Day 1) at. 21�22. Later, during the trial, it became apparent that there were elements of a
common scheme and design in both the Ohio and Erie County crimes. These common elements
were relevant to the case.
12
All due credit given to sir Arthur Conan Doyle.
22
Relevance is the threshold for admissibility of evidence. Commonwealth v. Cook, 95.2 A.
..
2d 594, 612 (2008). Pennsylvania Rule of Evidence 401.Provides:
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 . .
(b) The fact is of consequence in determining the action.
Pa.RE. 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. Tyson, 119 A.3d 353, 358 (Pa. Super.
2015); citing Commonwealth v. Drumheller, 808 A. 2d 893., 904 (Pa. 2002).
Pennsylvania Rule of Evidence402 provides that, generally, "[ajll relevant evidence is
admissible" and "[e]vidence that is not relevant is not admissible." Pa.RE. 402. Relevant
evidence is that which has "any tendency to make a fact more or less probable than it would be
without the evidence [,] and the fact is of consequence in determining the action." Pa.RE.
401 (a), (b). Thus, the rules of evidence preclude testimony and evidence if it "does not tend to
prove or disprove a material fact in issue, or to make such a fact more or less probable, or if it
does not afford the basis for a logical or reasonable inference or presumption as to the existence
of a material fact in issue." Commonwealth v. Thompson. 779 A.2d 1195. 1200-01 (Pa.Super.
2001)(quota�ion marks, quotation, and citation omitted).
Pa. R.E. 404(b)(2), provides, in relevant part:
'Rule 404. Character Evidence; Crimes or Other Acts
***
(b) Crimes, Wrongs or Other Acts
23
(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.RE. 404(b)(l)M(2).· "[E]vidence of prior crimes is· not admissible for the sole purpose of
demonstrating a criminal defendant's propensity to commit crimes." Commonwealth v.
Melendez-Rodriguez, 856 A.2d 1278, 1283 (Pa:Super.2004). Nevertheless, "[ejvidence may be
admissible in certain circumstances where it is relevant for some other legitimate purpose and
not utilized solely to blacken the defendant's character." Id. Specifically, other crimes evidence is
admissible if offered for a nonMprop�nsity purpose, such as proof of an actor's knowledge, plan,
motive, identity, or absence of mistake or accident. Commonwealth v. Chmiel, 585 Pa. 547, 889
A.2d 501 (2005). When offered for a legitimate purpose, evidence of prior crimes is admissible if
its probative value outweighs its potential for unfair prejudice. Commo�wealth v. Hairston, 84
A.3d 657(2014).
One of the exceptions to the inadmissibility of other acts or crimes falls under the
umbrella Of evidence demonstrating that the defendant employed a "common �Cheme or plan" in
the perpetration of similar crimes. The Pennsylvania Superior Court has noted that:
When ruling upon the admissibility of evidence under
thecommon plan exception, the.trial court must-first examinethe details and
surrounding circumstances of each criminalincident to assure that the evidence
reveals criminal conduct which is distinctive and so nearly identical as to become
the signature of the same perpetrator. Relevant to. sucha finding will be the habits
or patterns of action or conduct undertaken by the perpetrator to commit crime, as
. well as thetime, place, and types of victims typically chosen by the perpetrator,
fyson,119 A.3d at 358M359.
24
In Commonwealth v. Morris, 425 A.2d 715 (Pa. 1981), the Pennsylvania Supreme Court
allowed evidence of a second robbery where the two crimes bore very similar facts, robberies in
an elevator in the same building, five days apart, at the same time in the evening and the victims
were women with small children. The Morris court noted:
The similarity in the timing, implementation and event he plan of escape of each
robbery provides the distinctive and unusual modus operandi which would justify
of
the conclusion that the perpetrator onewas the perpetrator of the other.:
Morris, 425 A.2d at 721.
Furthermore, the Superior 'Court requires a balancing test to assure the common crimes
are not too remote in time and . that· the probative value is not outweighed by the potential
prejudice to the defendant. Tyson, 119 A.3d at 359-360. In Tyson, the
[T]he issue is whether there was a logical· connection between the two crimes in
question that would allow admission of this evidence to prove the identity of the
perpetrator. The probative value of the degree of similarity of the crimes is
inversely proportionalto the· time period separating the crimes.
Commonwealth v. Bronshtein, 69f A.�d. 907, 916 (1997).
"Additionally, 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." Hairsion,84 A.3d at 666. Here, the trial court issued a
cautionary statement to the jury, not once, but twice:
THE COURT: Ml right. Ladies andgentlemen, a little bit of a cautionary
instruction before I exclude.this witness. Now, I've allowed the prosecution, the
Commonwealth, to put in evidence of what happened in Ohio where these two
young men were picked up in a burglaryand you're going to hear more about that
and that led to· certain evidence. But you need to be mindful of certain things.
This evidence is not �dmltted · to. show these people are guilty of this offense or
bad people. Okay? You c_ap.'t concludebecause.they did a burglary in Ohio
they're guilty here. But elementsof what occurred in Ohio are properly for your
consideration on what was found in Ohio. , .But rm not admitting the evidence to
prove they're bad people ·C?t because they did it in Ohio they did these.
·25
N.T. (Day 2) at 68. Again, prior to closing statements, the court addressed the jury on this issue:
THE COURT: ... Remember what I said about the Ohio matter. That's not
admitted to show they're bad people or because there was a crime committed by
them in Ohio they necessarily committed it. It may have probative value that you
can consider, but consider for that, not a general badge of badness or to generalize
between one and the other. · ·
N.T. (Day 2) at l i 0-111. Furthermore, even the prosecutor, in her closing statement, cautioned
the jury to use the Ohio burglary evidence properly:
Now, there's been some talk about Ohio and the Judge has cautioned you all, and
I would caution you again.please don't say, "Oh, they committed the crime in
Ohio, therefore they must be guilty of these Pennsylvania crimes," because that is ·
not what thatevidence is for
arid that is not what Pm arguing here today."
N.T. (Day 2) at 134.
Ultimately, there was clearly a similar modus operandi in the Erie County and Ashtabula
burglaries: (1) daytime burglaries, (2) on a Monday (Wednesday or Friday), (3) involving two
Caucasian men, (4) ina red VW Jetta (or small red sedan); (5) one of the men was wearing red·
and white Air Jordan sneakers (6) the sneakers bore a tread similar to the footprints f6UI1:d at the
Cafardi residence in Erie County.
In addition to the common plan or scheme exception, the evidence of the Ohio burglary
was also admissible under the res gestae exception as relevant to furnish the "complete story" or
context of events the surrounding crimes. Commonwealth v. Weiss, 81 A. 3d 767 (Pa, 2013).
Evidence of other crimes may be relevant and· admissible where such· evidence was part of the
chain or sequence of events which became part of the history of the case and formed· part of the
natural development of the facts. Weiss, 81 A.3d at 798(citations omittcd)(wife's statement that
she always found beer cans and. marijuana in the car after defendant had driven it was not
reversible error). Here, Appellant's final burglary in Ashtabula was the last in a string of four or
five burglaries committed in Erie County in March of .2016.
26
(-.
D. The trial court properly did not sever the trials co-of
conspirators Wa.lter Sterling and Patrick Fortney.
Appellant's next claim of error is that the court erred in allowing the Conunonwealth to
consolidate Appellant's trial with the trial of Co-Defendant after the Conunonwealth failed to
provide notice of consolidation or file a motion for consolidation, "depriving Appellant 'of a fair
trial as the vast majority of the evidence produced in this case inculpated Co-Defendant Walter·
Sterling and not Appellant." Appellant's Concise Statement, �11. Appellant similarly claims
error in consolidating the trial of the co-defendants because "the jury was allowed to bear
witness to the evidence of the Commonwealth's
.
case in chief. against Co-Defendant Walter
Sterling to such an extent that Appellant was deprived of his due process rights under the Federal
Constitution and Pennsylvania Constitution to a fair trial by an impartial jury." Appellant's
Concise Statement, � 11.
First, we note that the Commonwealth notified Appellant of its intention to try both cases
together. The information, filed on·February23, 2017, contains a checked box at the end stating,
"Notice is hereby given, per Pa.R.Crim.P. 582 (B)(l), that your case will be tried together with
all co-defendant(s) since y�u are alleged to have participated in the same act or transaction.')
Counsel for Appellant admits he received the information, at the latest, on March 7, 2017, which
was several days after the February 27, 201? arraignment, waived by Appellant'. However, even
after his March 7, 2017 service of notice, Appellant did not file a motion opposing the join:der
until June 22, 2017, when he filed· his 'pre-trial motions. · Appellant waived the right to object.
However, even had he objected immediately, the objection would have been meritless, as joinder
was appropriate.
According to the Rules of Civil Procedure, the joinder of defendants charged in separate
informations is appropriate as follows:
27
Rule 582. Joinder - Trial of Separate Indictments of Informations
(A) Standards
***
(2) 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. S82(A)(2). The defendant "bears the burden of proving that he was prejudiced by
the decision not to sever, and he must show real potential for prejudice rather than mere
speculation."·Commonwealth v. Rivera, J 11 A.2d 131, 137 (Pa. 2001). Joint trials are favored
when judicial economy will be served· by avoiding the expensive and time-consuming
duplication of evidence, and where the defendants are charged with conspiracy." Commonwealth
v. Birdsong, 24 A.3d 319, 336 (Pa: 201 i). The Court must balance the need to minimize potential
prejudice against the general policy. of encouraging Judicial economy. Commonwealth v. Janda,
14 A.3d 147, 155�56 (Pa. Super. 2011).
Here, the defendants were charged. with conspiracy and, as discussed at length above,
there.was a quantity of evidence against Appellant, as well as his co-defendant. .There was no
abuse of discretion to economize court and witness resources here since the same circumstances
· gave rise to the charges against both co-conspirators. Not only is the narrative common to both
co-defendants, but the fact finder was undoubtedly aided in its understanding by hearing the full
story of the string of burglaries and bothmen's involvement.
The great majority of the evidence. presented at trial was certainly relevant to both
defendants, who were present together ateach burglary. Appellant points to no specific evidence ·
that would have been. inadmissible in an independent trial. However, even· if such evidence
. .
exists, Appellant would have to show "real potential for prejudice, rather than mere speculation."
Commonwealth v. Rivera, 773 A.2d 131, l37(Pa. 2001). In this case, the evidence was not so
28
complex that it would have rendered the jury. incapable of separating the evidence against one
defendant or the other. The bottom line, however, is that these two men were joined at the hip in
committing the string of robberies in this case. Appellant was not prejudiced by the evidence
pertaining to 'Walter Sterling, because much of that evidence was relevant to him as well, both
individually and under the theory of conspiracy liability.
ID. CONCLUSION
Based on the above, this Court respectfully requests that Appellant's judgment of
sentence be affirmed. The Clerk of Court is hereby directed to submit the record to the
Pennsylvania Superior Court for its review.
THE COURT:
cc: 'District Attorney's Office
Michael Harmon, Esq.
. 29