J-S26018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARGARET M. FITZPATRICK :
:
Appellant : No. 1489 MDA 2021
Appeal from the Judgment of Sentence Entered October 13, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0001040-2018
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 20, 2023
Margaret M. Fitzpatrick (Appellant) appeals from the judgment of
sentence entered in the York County Court of Common Pleas, following her
jury convictions of theft by deception, receiving stolen property, and theft by
failure to make required disposition of funds.1 Appellant avers the trial court
abused its discretion in: (1) denying her Pa.R.Crim.P. 600 speedy-trial motion;
(2) admitting Pa.R.E. 404(b) evidence of prior bad acts; and (3) imposing
aggravated-range sentences and running them consecutively, for an
aggregate sentence of two to four years’ imprisonment. We affirm.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 3922(a)(1), 3925(a), 3927(a).
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I. Facts & Procedural History
The underlying facts are not in dispute. Appellant falsely held herself
out to the public as an attorney, and she headed a non-profit organization,
Mediation Ministries and Litigation Alternatives, which purported to help
vulnerable individuals. See Trial Ct. Op., 1/4/22, at 21. She met the victim
in this matter, John Nicholson (the Victim), at church. Id. at 2.
The Victim previously worked
as a manual laborer until 2008 when he became physically
disabled as the result of multiple back, elbow, and neck surgeries
for which he continues to take prescribed Fentanyl to manage the
physical pain. [The Victim’s] inability to work . . . led to
depression and financial hardships, and [he] takes different
psychotic medications to manage his depression.
[The Victim’s] disabilities and dire financial situation
prompted him to obtain help from Appellant to manage his money
as he was not thinking clearly at the time and could not mentally
manage his money by himself due to his depression and different
prescribed medications.
After being out of work for several years, [the Victim] applied
for Social Security Disability with Appellant’s assistance in June of
2012.
Trial Ct. Op., 1/4/22, at 1-2 (footnotes omitted & paragraph breaks added).
At that time, the Victim was approximately 47 years old. See N.T. Jury Trial,
9/7-9/21, at 116.
The trial court summarized:
Appellant [executed] an “Appointment of Representative”
document, which appointed [her] as the payee of [the Victim’s]
Social Security benefits. [The Victim] believed that Appellant, as
the assigned payee of his benefits and an attorney, would manage
his funds on his behalf and trusted that she would appropriately
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handle his finances. Appellant told [the Victim] she would use his
Social Security money to pay his bills, including rent and utilities.
In 2013, [the Victim] was awarded Social Security benefits[,
as well as] $23,000 in back pay for the time that he waited for his
application to be approved, which was deposited into Appellant’s
account for the purposes of paying [the Victim’s] bills.
However, [the Victim] began receiving eviction notices, his
electricity was turned off, and his medical bills and car insurance
were not paid. [The Victim] reassigned Pastor James McCoy . . .
as his . . . new representative payee, and [the Victim’s] bills were
paid on time by Pastor McCoy with [the Victim’s] Social Security
monies.
However, neither Pastor McCoy nor [the Victim] ever received
the $23,000 in back pay from Appellant, despite [the Victim]
confronting Appellant and asking for his money. . . . At the time
of trial, Appellant had still not returned [the Victim’s] $23,000 . . .
nor provided an explanation of what she had done with that
money.
Trial Ct. Op., 1/4/22, at 2-3 (footnotes omitted & paragraph break added).
On January 5, 2018, the Commonwealth filed an information, charging
Appellant with theft by deception, receiving stolen property, and theft by
failure to make required disposition of funds. A jury trial was scheduled for
August 2, 2021.
On July 29, 2021, four days before the scheduled trial, the
Commonwealth filed a motion in limine to admit evidence of Appellant’s prior
bad acts under Pa.R.E. 404(b). First, Appellant had another pending York
County criminal case2 (York County Charges), in which she was charged with
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2 This case was docketed at York County docket CP-67-CR-0007490-2018.
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theft by failure to make required disposition of funds. Second, in Cumberland
County, Appellant had pleaded nolo contendere to theft by unlawful taking
(Cumberland County Plea).3 In both matters, Appellant was alleged to: have
held herself out to be an attorney; promoted Mediation Ministries as a non-
profit that assisted the elderly and others in need; have been named as the
attorney-in-fact for the elderly victims, who suffered from dementia or
cognitive issues; and acquired the victims’ funds — $182,000 and $17,500,
respectively — but failed to use those funds for the victims’ benefit, as she
had agreed to. The Commonwealth argued the evidence was admissible to
show Appellant uses a common scheme, plan, or design, as well as Appellant’s
intent to deceive. See N.T., 8/5/21, at 128.
On August 2, 2021, the instant case was called for trial, as scheduled.
N.T., 8/2/21, at 2. However, the trial court and parties addressed the
Commonwealth’s outstanding motion in limine, and the court determined it
would conduct a hearing, and thus trial would not commence that day. See
id. at 15. Appellant then stated that both parties agreed the Pa.R.Crim.P. 600
adjusted run date would fall “possibly [that] week.” Id. Appellant argued this
new delay should be attributed to the Commonwealth, who had “filed the
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3 This other Cumberland County matter was docketed at trial docket CP-21-
CR-0000497-2019. This Court affirmed the judgment of sentence on direct
appeal. Commonwealth v. Fitzpatrick, 1318 MDA 2020 (unpub. memo.)
(Pa. Super. May 24, 2021) (rejecting Appellant’s claim her nolo contendere
plea was not voluntarily entered).
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incredibly late” Rule 404(b) motion and notice. Id. at 16. The assistant
district attorney responded she “came in late to the [case]” and did not “find
out about the” Cumberland County Plea until the prior week, when she
“Googled [Appellant’s] name[.]” Id. at 14, 23. The Commonwealth further
argued Appellant had no credible notice argument, as Appellant knew of her
own criminal cases and thus there was no surprise. Id. at 23. The trial court
indicated it would find, contrary to Appellant’s argument, the additional time
to be excludable. Id. at 29.
Three days thereafter, on August 5, 2021, the trial court conducted a
hearing on the Commonwealth’s motion in limine.4 By this time, the York
County Charges had been nolle prossed by the Commonwealth, for Rule 600
reasons.5 Nevertheless, relatives of the victims in both cases, as well as police
detectives and county agency employees who investigated claims of the
elderly abuse, testified. Appellant did not present any witnesses or evidence.
The trial court issued its decision on August 30th, granting the motion
in part and denying it in part. With respect to the York County Charges — in
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4We note the motion in limine was heard by the Honorable Maria Musti Cook,
President Judge. Thereafter, the Honorable Harry Ness presided over trial and
sentencing.
5 See N.T., 8/2/21, at 4-5 (Commonwealth acknowledging York County
Charges “will be dismissed by the Commonwealth due to due diligence
issues”); Trial Ct. Op., 1/4/22, at 19 (Appellant was not convicted on the York
County charge “due to Rule 600”).
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which there was no conviction and no proof of the offense charged — the trial
court limited the admission of evidence to Appellant’s: (1) holding herself out
in the community as an attorney and prior judge; and (2) founding Mediation
Ministries, a faith-based organization, to assist the elderly and disabled. Trial
Ct. Op., 8/30/21, at 4-5. With respect to the Cumberland County plea, the
trial court permitted the same evidence, as well as evidence that the victim
was elderly and suffered from early onset of Alzheimer’s disease, and
Appellant acquired more than $17,500 of the victim’s funds, but failed to use
the funds for the benefit of the victim. See id. at 5.
Thereafter, a jury trial commenced on September 7, 2021. Appellant
also filed a Rule 600 motion, which was denied. The Victim testified to the
underlying facts, as summarized above. Pertinently, witnesses also testified
about Appellant’s Cumberland County Plea and York County Charges, as
permitted by the trial court’s Rule 404(b) ruling. Appellant did not testify or
present any evidence. The jury found her guilty of all three charges: theft by
deception, receiving stolen property, and theft by failure to make required
disposition of funds.
On October 13, 2021, the trial court imposed the following aggravated-
range sentences, to run consecutively: (1) one to two years’ imprisonment for
theft by deception; and (2) one to two years’ imprisonment for theft for failure
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to make required disposition of funds.6 Appellant filed a timely post-sentence
motion, which was denied. She then took this timely appeal and complied
with the court’s order to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.7
II. Statement of Questions Presented
Appellant presents the following issues for our review:
1. Did the trial court abuse its discretion in denying [Appellant’s]
Motion to Dismiss Pursuant to Pa.R.Crim.P. 600 where, even if it
had not already violated Rule 600, the Commonwealth filed a
complex motion requiring testimony from eight witnesses only
four days before trial was scheduled to begin and offered no
evidence of due diligence?
2. Did the trial court abuse its discretion in allowing extensive
evidence of the allegations from one case at [Appellant’s] trial on
another case, as the court misconceived the “common scheme”
exception to Rule 404(b), the evidence in question fit no exception
to the rule, and the evidence was more prejudicial than probative
in any event?
3. Did the sentencing court abuse its discretion in running two
aggravated-range terms of incarceration consecutively despite the
fact that both convictions were premised on taking the same
money from the same person?
Appellant’s Brief at 4.
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6 The sentence for receiving stolen property merged.
7 Appellant requested bail pending appeal, which the trial court denied.
Shortly after filing her notice of appeal, she filed, on November 12, 2021, in
this Court a petition for review of that decision. The trial court issued an
opinion setting forth its reasoning, and this Court denied relief on December
27th. See Order, 73 MDM 2021 (Pa. Super. Dec. 27, 2021).
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III. Rule 600 – Speedy Trial
In his first issue, Appellant avers the trial court abused its discretion in
denying her Rule 600 motion. We first note the relevant standard of review
and guiding Rule 600 principles:
In evaluating Rule [600] issues, our standard of review of a trial
court’s decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused.
Commonwealth v. Carl, 276 A.3d 743, 748 (Pa. Super. 2022) (citation
omitted), pet. appeal filed, Aug. 8, 2022, 337 MAL 2022 (Pa.).
This Court has explained:
[Rule] 600 provides that “[t]rial in a court case in which a written
complaint is filed against the defendant shall commence within
365 days from the date on which the complaint is filed.”
Pa.R.Crim.P. 600(A)(2)(a). In computing the Rule 600 deadline,
however, we do not necessarily count all time following the filing
of the complaint. Rather, “periods of delay at any stage of the
proceedings caused by the Commonwealth when the
Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial must
commence. Any other periods of delay shall be excluded from the
computation.” Pa.R.Crim.P. 600(C)(1).
The Rule 600 analysis thus entails three steps:
First, Rule 600(A) provides the mechanical run date.
Second, we determine whether any excludable time
exists pursuant to Rule 600(C). We add the amount of
excludable time, if any, to the mechanical run date to
arrive at an adjusted run date.
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If the trial takes place after the adjusted run date, we
apply the due diligence analysis set forth in Rule
600([D]). . . . Rule 600[ ] encompasses a wide variety
of circumstances under which a period of delay was
outside the control of the Commonwealth and not the
result of the Commonwealth’s lack of diligence. Any such
period of delay results in an extension of the run date.
Addition of any Rule 600[ ] extensions to the adjusted
run date produces the final Rule 600 run date. If the
Commonwealth does not bring the defendant to trial on
or before the final run date, the trial court must dismiss
the charges.
Carl, 276 A.3d at 749 (some citations omitted). “The Commonwealth bears
the burden of proving, by a preponderance of evidence, that it acted with due
diligence throughout the proceedings.” Id. at 748 (citation omitted).
We also consider the dual public policy concerns behind Rule 600:
Rule [600] serves two equally important functions: (1) the
protection of the accused’s speedy trial rights, and (2) the
protection of society. . . .
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy trial
rights of an accused, Rule [600] must be construed in a manner
consistent with society’s right to punish and deter crime. In
considering [these] matters . . . , courts must carefully factor into
the ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous law
enforcement as well.
Carl, 276 A.3d at 748 (citations omitted).
We reiterate the Commonwealth filed a complaint on January 5, 2018,
and trial commenced three years and eight months later, on September 7,
2021. On appeal, Appellant sets forth four periods of excludable delay,
totaling 674 days. Pertinently, she included the period between March 2
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through November 2, 2020 (245 days), which we note overlaps with both the
statewide and York County judicial emergencies declared for the COVID-19
pandemic.8 Appellant’s Brief at 35. Based on her figures, Appellant contends
the adjusted run date was November 9, 2020. Id. In this argument, Appellant
emphasizes the 18 day-span between November 2 and 20, 2020, should not
be excluded. Id. at 35-37. She acknowledges “Rule 600 was suspended due
to the COVID-19 pandemic at certain points in 2020 and 2021[, but argues it]
was not suspended under the [October 8, 2020,9] declaration in effect at
[that] time.” Id. at 36. Appellant also reasons “the Commonwealth [sic]
conducted numerous trials during this period.” Id. at 35 (citation omitted).
In the alternative, Appellant asserts the adjusted run date was August
9, 2021, if the court were to include an additional 273 days of delay
(November 2, 2020, through August 2, 2021,) due to “the re-suspension of
jury trials in York County, followed by two defense continuances.”10 See
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8 See 531 Jud. Admin. Docket (order) (Pa. Mar. 16, 2020); 19th Judicial
District, M 2020 (order) (York Co. Mar. 17, 2020); Appellant’s Brief at 35.
On appeal, Appellant does not cite a reason why this period should be
excluded. See Appellant’s Brief at 35. In her Rule 600 motion, however,
Appellant attributed this period to two defense requests for a trial continuance.
Appellant’s Motion for Dismissal Pursuant to Pa.R.Crim.P. 600, 9/7/21, at 6
(Rule 600 Motion).
9 See Declaration, 19th Judicial District, 31 MM 2020 (York Co. Oct. 8, 2020).
10In her appellate brief, Appellant arrives at the August 9, 2021, adjusted run
date by: (1) starting with the November 9, 2020, date; and (2) adding 18
(Footnote Continued Next Page)
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Appellant’s Brief at 37; Appellant’s Rule 600 Motion at 7. Appellant maintains,
however, the Commonwealth’s July 29th, “last-second filing” of its motion in
limine showed a lack of due diligence, especially where the York County
Charges were filed years earlier, in 2018. Appellant’s Brief at 39, 40.
Appellant contends: “the Commonwealth never provided any reason for [its]
11th-hour filing[;]” and “the needlessly belated filing . . . prevented trial from
[commencing] as scheduled.” Id. at 39, 41. We conclude no relief is due.
We summarize that on March 16, 2020, the Pennsylvania Supreme
Court declared a general statewide judicial emergency due to the COVID-19
pandemic. The Court authorized President Judges to declare judicial
emergencies in their respective judicial districts, and to suspend the operation
of Rule 600 within their districts. 531 Jud. Admin. Docket (order at 1, 2) (Pa.
Mar. 16, 2020). The following day, York County/19th Judicial District
President Judge, the Honorable Joseph Adams, declared a local judicial
____________________________________________
days — the period from November 2 to 20, 2020. Appellant’s Brief at 35-36
(“[T]he adjusted run date would be November 9, 2020, if [the 18 days
between November 2 and 20, 2020,] were included in the Rule 600
calculations, but would be August 9, 2021 if this period were excluded.”). This
calculation, however, is mistaken, as: (1) there are 273 days between
November 9, 2020, and August 9, 2021; and (2) the starting date, November
9th, falls within the November 2nd to 20th period.
On the other hand, Appellant’s Rule 600 motion referred to a 273-day
“additional period of delay,” which resulted from the suspension of jury trials
in York County, followed by two defense continuances. Appellant’s Rule 600
Motion at 7. We incorporate this argument into our discussion above.
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emergency, and specified the operation of Rule 600 would be suspended for
the duration. No. M 2020 (order) (19th Judicial District, Mar. 17, 2020).
The general statewide judicial emergency ended on June 1, 2020. See
531 & 532 Jud. Admin. Docket (order at 1) (Pa. May 27, 2020). However, the
Pennsylvania Supreme Court provided that local emergencies would continue
to remain in full force and effect. Id. Accordingly, through multiple York
County orders issued from May of 2020 through April of 2021, the York County
judicial emergency continued through at least June 30, 2021.11 Pertinently,
most of these orders specified the operation of Rule 600 would be suspended.
____________________________________________
11We note that on February 11, 2021, the York County President Judge
declared the local judicial emergency was extended through June 30, 2021.
On April 7th, the President Judge issued a declaration extending the judicial
emergency through September 30th.
On July 1, 2021, however, the President Judge filed a “Request for
Emergency Judicial Order” with the Pennsylvania Supreme Court, requesting,
inter alia: (1) acknowledgment of the declaration of judicial emergency
through August 31, 2021; and (2) permission to use advance communication
technology to conduct court proceedings through August 31, 2021. On July
2nd, the Supreme Court allowed the use of advanced communication
technology through August 31, 2021, but denied relief “[i]n all other respects.”
No. 31 MM 2020 (order) (Pa. July 2, 2021).
In light of the foregoing, an issue could be raised as to when the
Pennsylvania Supreme Court ceased to recognize or authorize a judicial
emergency in York County. We emphasize, however, that Appellant has not
raised such a question for our review, and thus we do not reach it. Instead,
we note the trial court found August 9, 2021, to be the adjusted run date —
to which Appellant agrees in her alternative argument. See Trial Ct. Op.,
1/4/22, at 9; Appellant’s Brief at 37. We limit our review to the arguments
presented in her appellate brief.
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Additionally, declarations, issued November 24, December 9, and December
21, 2020, and January 7, 2021, stated jury trials would be suspended through
February 28, 2021.
This Court has had occasion to review one such York County order,
issued May 27, 2020, which stated in pertinent part:
. . . I declare a judicial emergency in the 19th Judicial District
through August 31, 2020. During the emergency, the following
shall apply:
* * *
(3) Suspend statewide rules pertaining to the rule-based
right of criminal defendants to a prompt trial.
Any postponement caused by the judicial emergency shall be
considered a court postponement and shall constitute excludable
time for purposes of the application of Rule 600. . . .
Carl, 276 A.3d at 747, quoting No. 31 MM 2020 (order) (19th Judicial District,
May 27, 2020). This Court held the plain language of this order “clearly and
simply direct[ed] that rule-based, ‘prompt trial’ time computations [were]
suspended for the duration of the judicial emergency at hand.” Carl, 276 A.3d
at 750.
In light of the foregoing, we disagree with Appellant’s contention that
the adjusted run date was November 9, 2020. This argument ignores the
ongoing, extended COVID-19 judicial emergency that was declared in York
County through at least June 30, 2021, along with the specific pronouncement
that the operation of Rule 600 would be suspended. See Carl, 276 A.3d at
750.
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Accordingly, we consider Appellant’s alternative proposed date of
August 9, 2021 — which the trial court found to be the adjusted run date.12
See Trial Ct. Op., 1/4/22, at 9; Appellant’s Brief at 37. The trial court
reasoned: the Commonwealth had filed its July 29, 2021, motion in limine
before that date; Appellant’s case was called to trial on August 2nd; but the
“court decided to postpone the commencement of trial to hear the [motion]
just three days later on August [5th], which was before the August [9th] run
date.” Trial Ct. Op., 1/4/22, at 9. The court thus found the delay was caused
by the court itself, and not any lack of due diligence on the part of the
Commonwealth. Id.
The trial court’s reasoning, however, does not address Appellant’s
challenge to the late timing of the Commonwealth’s motion. See Appellant’s
Rule 600 Motion at 8 (“There is no valid explanation consistent with diligence
for why the Motion in Limine could not have been filed and litigated any time
in the past year.”). The assistant district attorney’s representation, at the
August 2, 2021, hearing, that she “came in late to the [case]” and “happened
to do a Google search” one week earlier, does not explain why prior assigned
prosecutors could not discover, with due diligence, Appellant’s two criminal
matters — one of which was in the same county. See N.T., 8/2/21, at 23.
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12This argument is consistent with Appellant’s statements at the August 2,
2021, hearing. See N.T., 8/2/21, at 15 (Appellant’s counsel stating, “We both
agree that this case is pushing Rule 600 possibly this week.”).
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Nevertheless, we also consider, as the trial court pointed out, that the
court conducted a hearing on the motion in limine on August 5, 2021, merely
three days after the initial call of the case for trial, and still within the adjusted
run date of August 9th. The court did not issue a decision until 14 days later,
on August 30th, and trial commenced one week after that, on September 7th.
Furthermore, Appellant has not established the timing of the Commonwealth’s
filing was intentional and undertaken “in an effort to evade [her] fundamental
speedy trial rights.” See Carl, 276 A.3d at 748. We must also “carefully
factor . . . the collective right of the community to vigorous law enforcement,”
an issue that Appellant has not addressed. See id. Finally, we observe that
a large portion of the excludable time resulted from the COVID-19 judicial
emergency. On balance, we decline to find the trial court abused its
discretion — that it overrode or misapplied the law or acted with partiality,
prejudice, bias, or ill will. See Carl, 276 A.3d at 748. Accordingly, we do not
disturb the order denying Appellant’s Rule 600 motion.
IV. Admission of Rule 404(b) Prior Bad Acts
Next, Appellant claims the trial court erred in admitting the Rule 404(b)
evidence of prior bad acts. We note “the admissibility of evidence is within
the discretion of the trial court,” and an appellant bears a “heavy burden” to
show the court abused its discretionary power. Commonwealth v. Saez,
225 A.3d 169, 177 (Pa. Super. 2019) (citations omitted).
This Court has explained:
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Rule 404(b) of the Pennsylvania Rules of Evidence provides that
“evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith.” [Pa.R.E. 404(b)(1).] However, “evidence
of other crimes, wrongs, or acts may be admitted for other
purposes, such as proof of motive, intent, preparation, plan, or
knowledge . . . .” [Pa.R.E. 404(b)(2).]
Therefore, evidence of other crimes or acts may be admitted if
such evidence proves “a common scheme, plan or design
embracing commission of two or more crimes so related to each
other that proof of one tends to prove the others.” A common
scheme may be relevant to establish any element of a crime,
where intent may be shown through a pattern of similar acts.
The degree of similarity is an important factor in determining the
admissibility of other crimes or bad acts under this exception.
Saez, 225 A.3d at 178 (some citations omitted & paragraph break added).
Additionally, Rule 404(b) “evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E.
404(b)(2). With respect to the common plan exception,
[r]elevant . . . will be the habits or patterns of action or conduct
undertaken by the perpetrator to commit crime, as well as the
time, place, and types of victims typically chosen by the
perpetrator. Given this initial determination, the court is bound
to engage in a careful balancing test to assure that the common
plan evidence is not too remote in time to be probative. . . .
[T]he court must balance the potential prejudicial impact of the
evidence with such factors as the degree of similarity established
between the incidents of criminal conduct, the Commonwealth’s
need to present evidence under the common plan exception, and
the ability of the trial court to caution the jury concerning the
proper use of such evidence by them in their deliberations.
Saez, 225 A.3d at 180 (citation omitted & paragraph break added). Finally,
we note, “In balancing the probative value of the evidence against its
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prejudicial impact, . . . a trial court ‘is not required to sanitize the trial to
eliminate all unpleasant facts from the jury’s consideration.’” Id. at 180-81
(citation omitted).
Here, Appellant challenges the admission of the evidence relating to her
Cumberland County Plea.13 She first claims the trial court “misconceived the
‘common scheme’ exception,” which she maintains applies to acts that are a
part of the same single, overarching plan. Appellant’s Brief at 45, 47.
Appellant contends that while the instant case and the Cumberland County
Plea share “similarities,” “they were not part of single plan or a common
scheme.” Id. at 47, citing Commonwealth v. Hicks, 156 A.3d 1114, 1143
(Pa. 2017) (Donahue, J., dissenting). Instead, Appellant asserts, the two
cases have “glaring differences.” Appellant’s Brief at 49. For example, she
reasons, in the other case, she “took complete control of [that victim’s]
medical care and placement[,] prevent[ed her] family members and others
from seeing her[,]” and engaged in “a baroque scheme involving the sale of
properties [and] thefts masquerading as donated real estate
commissions[.]”14 Id. at 49. However, the instant charges reflect a “more
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13 Appellant presents no argument concerning the admission of the limited
evidence pertaining to the York County Charges.
14 Additionally, in the Cumberland County Plea, as part of the police
investigation, an individual wore a wire during a conversation with Appellant.
See Appellant’s Brief at 49.
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pedestrian character,” where Appellant allegedly “acted as a representative
payee in order to intercept a 48-year-old’s retroactive disability payment and
use it for her own purposes.” Id. at 49-50.
Finally, Appellant argues the trial court abused its discretion in finding
the prior bad acts evidence was more probative than prejudicial. Appellant’s
Brief at 51. She contends the evidence against her “was not overwhelming,”
and indeed, “the jury never heard any explanation of what did ultimately
happen to [the Victim’s] retroactive payment[.]” Id. at 55. Furthermore,
Appellant claims, where testimony about the Cumberland County Plea “took
up almost 100 pages of” the trial transcript, it produced “a second mini-trial”
as to those charges. Id. at 53-54. No relief is due.
Here, the trial court found the prior bad acts evidence was admissible
to establish a common scheme, plan, or design. In comparing this case to the
Cumberland County Plea, the court reasoned:
What this Court finds distinctive is that [Appellant] holds herself
out to the purported victims and their families, as a lawyer and
judge or former judge, who created a non-profit organization,
namely Mediation Ministries, to assist the elderly and homeless
veterans. [Appellant] persuades the elderly or disabled individual
to name [her] as joint attorney-in-fact and then eventually
becomes the sole attorney-in-fact with power and control over the
purported victim’s finances.
Trial Ct. Op., 8/30/21, at 5. We agree with the trial court that Appellant’s
conduct in both cases was “distinctive,” where there were so many
overlapping or identical details. See id.
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Furthermore, we disagree with Appellant’s reasoning that the common
scheme exception applies only to incidents or conduct that is a part of a single
criminal act. See Appellant’s Brief at 47. In support, Appellant cites the
dissenting opinion in Hicks, 156 A.3d 1114, which has no binding authority.
Instead, as stated above, evidence may be admitted under Rule 404(b) to
prove a common scheme, plan, or design: (1) to “establish any element of a
crime, where intent may be shown through a pattern of similar acts;” or (2)
to show the perpetrator’s habits, patterns of action, or conduct “to commit
crime, as well as the time, place, and types of victims typically chosen by the
perpetrator[.]” Saez, 225 A.3d at 178, 180. Indeed, in affirming the
admission of Rule 404(b) evidence in Hicks, the majority considered that the
evidence “present[ed] a ‘virtual signature’ for purposes of proving common
scheme, intent and identity. They are not mere insignificant details of crimes
of the same class, where there is nothing distinctive to separate them from,
for example, common street crimes.” Hicks, 156 A.3d at 1128.
Finally, we disagree with Appellant’s contention that the trial court erred
in finding the probative value of the evidence outweighed the potential for
prejudice. See Appellant’s Brief at 51. Here, the court found Appellant’s
“repeated acts” were relevant to the case. Trial Ct. Op., 8/30/21, at 7. As
stated above, a court “is not required to sanitize the trial to eliminate all
unpleasant facts from the jury’s consideration.” Saez, 225 A.3d at 180.
Accordingly, we do not disturb the court’s Rule 404(b) ruling.
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V. Discretionary Aspects of Sentence
In her final issue, Appellant challenges the discretionary aspects of her
aggregate sentence of two to four years’ imprisonment. She avers the
imposition of consecutive, aggravated-range sentences, where the offenses
were “based on theft of the same money from the same person,” resulted in
an unduly harsh sentence. Appellant’s Brief at 58 (Pa.R.A.P. 2119 statement).
We first consider whether she has properly preserved this issue.
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
. . . To reach the merits of a discretionary sentencing
issue, we conduct a four-part analysis to determine: (1)
whether appellant filed a timely notice of appeal,
Pa.R.A.P. 902, 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f);
and (4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code[.]
A substantial question will be found where an appellant
advances a colorable argument that the sentence
imposed is either inconsistent with a specific provision of
the Sentencing Code or is contrary to the fundamental
norms which underlie the sentencing process. At a
minimum, the Rule 2119(f) statement must articulate
what particular provision of the code is violated, what
fundamental norms the sentence violates, and the
manner in which it violates that norm.
Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010)
(some citations omitted). Generally, a challenge to the imposition of
consecutive sentences, as opposed to concurrent, does not raise a substantial
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question. Id. at 586, citing Commonwealth v. Marts, 889 A.2d 608, 612
(Pa. Super. 2005). However, a claim, that “the decision to sentence
consecutively raises the aggregate sentence to, what appears upon its face to
be, an excessive level in light of the criminal conduct at issue[,]” may raise a
substantial question. Mastromarino, 2 A.3d at 587.
Here, Appellant filed a timely post-sentence motion, which raised the
issues she now presents, as well as a timely notice of appeal. See
Mastromarino, 2 A.3d at 585. Additionally, her brief includes a Rule 2119(f)
concise statement of the reasons relied upon for allowance of appeal. See
Pa.R.A.P. 2119(f). The Rule 2119(f) statement relies on Mastromarino and
avers the consecutive sentences in this case was excessive in light of the
criminal conduct at issue — namely, that the two theft convictions were “based
on theft of the same money from the same person[.]” Appellant’s Brief at 58.
However, we conclude Appellant has not raised a substantial question
invoking this Court’s review. Her Rule 2119(f) statement fails to “articulate
what particular provision of the [Sentencing C]ode is violated, what
fundamental norms the sentence violates, and the manner in which it violates
that norm.” See Mastromarino, 2 A.3d at 586. Indeed, nowhere in her brief
does Appellant address any provision of the Sentencing Code or sentencing
guidelines. Furthermore, we disagree that her aggregate two to four-year
sentence was “excessive level in light of the criminal conduct at issue[.]” See
id. at 585, 587-88 (reviewing in detail the particular facts of case in
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considering whether appellant raised a substantial question in challenging
consecutive imposition of 53 sentences, for aggregate term of 25 to 58 years’
imprisonment). The trial court extensively addressed its reasons for the
sentence: Appellant preyed on elderly individuals, who were unable to manage
their finances; she gained access to these victims through a nonprofit
organization; her manipulation, dishonesty, and “egregious behavior of
deceitfully taking substantial amounts of money” “has significantly worsened
the [Victim’s life] by leaving [him] barely able to financially support [his] basic
needs[;]” the Victim suffered “financial stress, mental stress, and heartache
as a result of Appellant’s” conduct; and her “actions have caused substantial
irreparable harm and ongoing damage to the Victim[.]” Trial Ct. Op., 1/4/22,
at 18. The trial court emphasized that Appellant has not returned the Victim’s
$23,000 funds “nor provided an explanation of what she has done with that
money.” Id. at 3. We decline to find Appellant’s total sentence of two to four
years falls within the “extreme cases” where the imposition of consecutive
sentences supports a substantial question. See Mastromarino, 2 A.3d at
587, citing Commonwealth v. Dodge, 859 A.2d 771 (Pa. Super. 2004)
(appellant did raise substantial question in claiming imposition of consecutive
sentences, for aggregate 58½ to 124 years’ imprisonment, for “numerous,
largely property offenses”). See also Mastromarino, 2 A.3d at 587 (noting
Dodge’s own acknowledgment that “its decision is not to be read [as a] rule
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that a challenge to the consecutive nature of a standard range sentence
always raises a substantial question or constitutes an abuse of discretion”).
As we conclude Appellant has failed to argue the violation of any
particular Sentencing Code provision and has not raised a substantial
question, we do not review the merits of her sentencing challenge. See
Mastromarino, 2 A.3d at 585.
VI. Conclusion
In sum, we deny relief on Appellant’s challenges to the denial of her
Pa.R.Crim.P. 600 motion, the admission of Pa.R.E. 404(b) prior bad acts
evidence; and the discretionary aspects of her sentence. We thus affirm the
judgment of sentence.
Judgment of sentence affirmed.
President Judge Emeritus Stevens joins the memorandum.
Judge Kunselman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/20/2023
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