J-S55035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES LEE MOODY,
Appellant No. 2202 EDA 2015
Appeal from the Judgment of Sentence March 16, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007262-2013
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 18, 2016
James Lee Moody (“Appellant”) appeals, pro se, from the judgment of
sentence entered in the Court of Common Pleas of Montgomery County,
which, following a bench trial, convicted Appellant of theft-related offenses
relating to his employment as a consultant/bookkeeper for a church.
Sentenced to serve an aggregate sentence of six to twenty-seven years’
incarceration and pay over $150,000 in restitution, Appellant challenges
various evidentiary rulings, the sufficiency of the evidence, and the
constitutional adequacy of counsel’s assistance. We affirm.
The trial court provides an apt summary of the factual and procedural
history of the case as follows:
Victory Christian Fellowship (“VCF” or “the church”), located in
Audubon, Montgomery County, retained defendant in 2010 as a
consultant to provide bookkeeping duties. (N.T. 10/8/14 at pp.
22-23). His negotiated income was $18 per hour for an
*Former Justice specially assigned to the Superior Court.
J-S55035-16
anticipated annual income of $32,832. Id. at 24-25, 79. Unlike
salaried VCF employees who received their pay through direct
deposit, defendant received payment for his consulting services
by check after submitting an invoice. Id. at 40.
At some point after his hiring, VCF became aware that defendant
had a prior conviction arising from his employment with the
Special Olympics. Id. at 40. Defendant did not disclose the
prior conviction to VCF officials during the hiring process. Id.
VCF did not terminate him at that time, wanting to give him a
chance. Id. at 40-41.
Defendant’s supervisor, Pastor Dan Cross, left his position in the
summer of 2011 and no replacement was hired, leaving
defendant essentially without direct supervision. Id. at 32.
Defendant subsequently began acting as VCF’s business
administrator, managing its financial transactions, but he
received no additional income. Id. at 35-36, 43. Although the
VCF board discussed an increase in his pay, it was not approved
because of church finances. Id. at 36, 96. Defendant, however,
received a $1,000.00 bonus from VCF in recognition of his
increased responsibilities. Id. at 65.
First Niagara Bank in Audubon eventually contacted VCF’s senior
pastor about the church’s finances. Id. at 72. VCF officials
learned of a number of insufficient fund fees. Id. A subsequent
review of VCF’s finances revealed that defendant had added
himself without authorization to the church’s payroll and was
receiving income via direct deposit. Id. at 37-38, 87-88, 95;
Exh. C-6. This income was in addition to the payments he was
receiving by check after submitting invoices for his services. Id.
at 38. VCF also learned that defendant had added himself,
without authorization, to its health insurance plan. Id. at 97.
VCF officials decided to terminate defendant’s services. He
received a severance payment because the church wanted to
part quickly with him and did not want to tip off defendant that it
suspected wrongdoing on his part. Id. at 106. Police learned
during a subsequent investigation that defendant had given VCF
the social security number of a Delaware man and the driver’s
license number of a Montgomery County man when the church
had requested his identifying information to conduct a
background check. Id. at 135-137.
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The matter proceeded to a trial by judge. The Commonwealth
withdrew approximately 100 charges and proceeded with two
counts of dealing in the proceeds of unlawful activity, one count
of theft by unlawful taking, one count of receiving stolen
property, two counts of securing execution of documents by
deception, one count of theft by deception and two counts of
identity theft. [The trial court] found defendant guilty of those
counts.
Defendant subsequently fired his attorney and announced his
desire to represent himself. After a hearing on February 6,
2015, [the trial] court permitted defendant to represent himself
with appointed stand-by counsel.
[The trial] court sentenced defendant on March 16, 2015, to
consecutive terms of imprisonment of two to ten years on count
1, two to seven years on count 109, one to five years on count
110 and one to five years on count 111. Restitution also was
ordered in the amount of $156,041.75. (N.T., Sentencing,
3/16/15 at 39-41).
Defendant filed a post-sentence motion on March 25, 2015,
which this court denied in an Order dated June 12, 2015. He
filed a notice of appeal, which prompted [the trial] court to issue
an Order dated July 22, 2015, granting defendant 21 days in
which to file and serve on the undersigned a concise statement
of errors in accordance with Pennsylvania Rule of Appellate
Procedure 1925(b). [The trial] court later granted defendant an
extension until September 15, 2015, to produce a concise
statement.
The Pennsylvania Superior Court subsequently directed [the
trial] court to conduct a Grazier hearing regarding defendant’s
choice to represent himself on appeal. [The trial] court originally
scheduled that hearing for September 30, 2015.
In the interim, defendant’s concise statement was docketed on
September 16, 2015. The certificate of service included with the
concise statement indicates defendant mailed it only to the
Montgomery County Clerk of Courts. The [trial court judge] has
no record of being served with a copy of the concise statement,
despite having ordered defendant to do so.
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At the Grazier hearing ultimately held on October 6, 2015, [the
trial] court advised defendant of the error he committed by not
serving the undersigned with a copy of his concise statement.
(N.T., Grazier Hrg., 10/6/15, at 3-4). [The trial] court did so to
highlight for defendant the potential pitfalls of representing one’s
self. Id. at 5-6. Defendant, nevertheless, reiterated his desire
to proceed pro se and, after a thorough colloquy, [the trial] court
found defendant made a knowing, voluntary and intelligent
decision to represent himself on appeal. Id. at 12.
***
Defendant filed an 18-page statement of issues that appears to
assert discovery violations and misconduct by the
Commonwealth, trial court errors, ineffective assistance of trial
counsel, challenges to the weight and sufficiency of the evidence
and challenges to his sentence. Each area of contention contains
numerous subparagraphs. [The trial court expressed its
difficulties in discerning the discrete issues from
Defendant/Appellant’s Rule 1925(b) statement, but it identified
11 issues and addressed each one in its Rule 1925(a) opinion.].
Trial Court’s Pa.R.A.P. 1925(a) Opinion, filed October 20, 2015, at 1-5.
In his pro se Appellate brief, Appellant presents the following questions
for our review:
1. Was Appellant falsely convicted of criminal charges for a civil
matter in accordance with Pennsylvania Civil Law—Contracts?
2. Were Appellant[’]s rights under Pa.R.Crim.P. § 704 violated
when the trial court denied him the opportunity to present
information/evidence at sentencing?
3. Why did the trial court allow Commonwealth’s evidence that
was a contradiction to the material facts of parol evidence
(implied-in-fact and express contracts), as well as relied on
their evidence to support the verdict?
4. Is the premeditated, deliberate, deplorable and
misrepresentation by Appellant’s former counsel during pre-
trial aspect of his case cognizable under the PCRA statue
[sic]—way before a determination of his innocence? Could
this be classified as Collateral Consequence?
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5. Were Appellant’s rights under the Sixth Amendment violated?
Did the Appellant’s claim of ineffective assistance meet all of
the prongs under Strickland and Pierce?
6. Why did the trial court condone the prosecutorial misconduct,
extraneous influence, former counsel legal malpractice—after
receiving documented evidence that contradicted the guilty
verdict? Also why didn’t the trial court conduct an evidentiary
hearing on these said matters, as well as conduct a hearing
for after-discovered evidence?
Appellant’s brief at 5.
Initially, we address the trial court’s position that Appellant has waived
his issues for appellate review by failing to serve the trial court with a copy
of the concise statement despite having been ordered to do so. Rule 1925
generally requires that a court-ordered statement must be filed in the trial
court and served on the trial judge. See Pa.R.A.P.1925(b), (b)(2); Forest
Highlands Community Ass'n v. Hammer, 879 A.2d 223, 228–29
(Pa.Super. 2005). The failure to serve the trial judge may warrant waiver.
See Forest Highlands, 879 A.2d at 228–29. However,
there are caveats to a finding of waiver. First, the trial court
must issue a Rule 1925(b) order directing an [a]ppellant to file a
response [in a timely manner]. Second, the Rule 1925(b) order
must be filed with the prothonotary. Third, the prothonotary
must docket the Rule 1925(b) order and record in the docket the
date it was made. Fourth, the prothonotary shall give written
notice of the entry of the order to each party's attorney of
record, and it shall be recorded in the docket the giving of
notice. If any of the procedural steps set forth above are not
complied with, [an a]ppellant's failure to act in accordance with
Rule 1925(b) will not result in a waiver of the issues sought to
be reviewed on appeal.
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Id. at 227 (citation omitted); see also Commonwealth v. Hooks, 921
A.2d 1199, 1202 (Pa.Super. 2007)).
Here, the order directed Appellant to serve a copy of the concise
statement upon the trial judge, the order was filed with the clerk of courts,
the clerk of courts docketed the order and provided the date on which the
order was made, and the order indicates that written notice of the order was
given to each party. However, the docket does not contain an entry,
mandated by Pa.R.Crim.P. 114, recording the giving of such notice to the
parties. Accordingly, we decline to find Appellant’s issues raised in this
appeal waived based on a failure to serve his Pa.R.A.P. 1925(b) statement
on the trial court. See Commonwealth v. Hooks, 921 A.2d 1199, 1202
(Pa.Super. 2007) (deeming Rule 1925 waiver unavailable where fourth
requirement, docket indication of date and manner of service of order, was
unmet).
Turning, therefore, to the merits of the present appeal, we are
persuaded by our review of the record, party briefs, and the cogent
expression of rationale in the Rule 1925(a) opinion to affirm judgment of
sentence entered below for the reasons offered by the trial court. In this
regard, we recognize the court’s careful distillation of Appellant’s protracted
Rule 1925(b) statement into clearly identifiable issues which fairly represent
Appellant’s questions raised in both his concise statement and, ultimately,
his pro se brief. The opinion correctly disposes of a majority of the issues by
application of waiver doctrine for Appellant’s failure to offer timely and
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specific objections before the trial court. So, too, does the record support
the remaining instances where the trial court rejects claims as either belied
by the record or contradicted by authority, and the court appropriately
declines to review Appellant’s ineffective assistance of counsel claims on
direct appeal. Accordingly, discerning no merit to any issue raised in the
present appeal, we affirm on the basis of the trial court’s opinion.
Judgment of sentence is affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2016
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Circulated 08/04/2016 10:51 AM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
PENNSYLVANIA·
CRIMINAL DIVISION
COMMONWEALTH OF NO. 7262-13
PENNSYLVANIA
v.
JAMES LEE MOODY
OPINION
SILOW, J. OCTOBE~, 2015
James Lee Moody ("defendant") appeals from the judgment of sentence imposed
after he was found guilty at a trial by judge of theft-related offenses. For the reasons
set forth below, the judgment of sentence should be affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Victory Christian Fellowship ("VCF'' or "the church"), located in Audubon,
Montgomery County, retained defendant in 2010 as a consultant to provide
bookkeeping duties. (N.T. 10/8/ 14, pp. 22-23) His negotiated income was $18 per
hour for an anticipated annual income of $32,832. Id. at 24-25, 79. Unlike salaried
VCF employees who received their pay through direct deposit, defendant received
payment for his consulting services by check after submitting an invoice. Id. at 26-28.
At some point after his hiring, VCF became aware that defendant had a prior
conviction arising from his employment with the Special Olympics. Id. at 40.
Defendant did not disclose the prior conviction to VCF officials during the hiring
process. Id. VCF did not terminate him at that time, wanting to give him a chance.
Id. at 40-41.
Defendant's supervisor, Pastor Dan Cross, left his position in the summer of
2011 and no replacement was hired; leaving defendant essentially without direct
supervision. Id. at 32. Defendant subsequently began acting as VCF's business
administrator, managing its financial transactions, but he received no additional
income. Id. at 35-36, 43. Although the VCF board discussed an increase in his pay, it
was not approved because of church finances. Id. at 36, 96. Defendant, however,
received a $1,000.00 bonus from VCF in .recognition of his increased responsibilities.
Id. at 65.
First Niagara Bank in Audubon eventually contacted VCF's senior pastor about
the church's finances. Id. at 72. VCF officials learned of a number of insufficient fund
fees. Id. A subsequent review of VCF's finances revealed that defendant had added
himself without authorization to the church's payroll and was receiving income via
direct deposit. Id. at 37-38, 87-88, 95; Exh. C-6. This income was in addition to the
payments he was receiving by check after submitting invoices for his services. Id. at
38. VCF also learned that defendant had added himself, without authorization, to its
health insurance plan. Id. at 97.
VCF officials decided to terminate defendant's services. He received a severance
payment because the church wanted to part quickly with him and did not want to tip
off defendant that it suspected wrongdoing on his part. Jd. at l 06. Police learned
during a subsequent investigation that defendant had given VCF the social security
number of a Delaware man and the driver's license number of a Montgomery County
man when the church had requested his identifying information to conduct a
background check. Id. at ·135-137.
2
The matter proceeded to a trial by judge. The Commonwealth withdrew
approximately 100 charges and proceeded with two counts of dealing in the proceeds
of unlawful activity, 1 one count of theft by unlawful taking.? one count of receiving
stolen property,3 two counts of securing execution of documents by deception,4 one
count of theft by deceptions and two counts of identity theft.> This court found
defendant guilty of those counts.
Defendant subsequently fired his attorney and announced his desire to
represent himself. After a hearing on February 6, 2015, this court permitted ..,
defendant to represent himself with appointed stand-by counsel.
This court sentenced defendant on March 16, 2015, to consecutive terms of
imprisonment of two to ten years on count 1, two to seven years on count 109, one to
five years on count 110 and one to five years on count 111. Restitution also was
ordered in the amount of $156,041.75. (N.T., Sentencing, 3/ 16/ 15, pp. 39-41)
Defendant filed a post-sentence motion on March 25, 2015,7 which this court
denied in an Order dated June 12, 2015.8 He filed a notice of appeal,9 which
1 Counts 1 and 2, graded as felonies of the first degree.
2 Count 5, graded as a felony of the third degree.
3 Count 55, graded as a felony of the third degree.
4 Counts 107-108, graded as misdemeanors of the second degree.
s Count 109, graded as a felony of the third degree.
6 Counts 110 and 111, graded as misdemeanors of the first degree.
7 The motion is dated March 18, 2015.
3
prompted this court to issue an Order dated July 22, 2015, granting defendant 21
days in which to file and serve on the undersigned a concise statement of errors in
accordance with Pennsylvania Rule of Appellate Procedure l 925(b). This court later
granted defendant an extension until September 15, 2015, to produce a concise
statement.
The Pennsylvania Superior Court subsequently directed this court to conduct a
Grazier hearing regarding defendant's choice to represent himself on appeal. This
court originally scheduled that hearing for September 30, 2015.
-
In the interim, defendant's concise statement was docketed on September 16,
2015.IO The certificate of service included with the concise statement indicates
defendant mailed it only to the Montgomery County Clerk of Courts. The undersigned
has no record of being served with a copy of the concise statement, despite having
ordered defendant to do so.!!
BAfter filing the initial post-sentence motion, defendant filed a series of additional
motions. Defendant, however, neither requested nor received authorization to file
supplemental post-sentence motions. See Pa. R.Crim.P. 720 (b)(l)(b).
9 The notice of appeal was docketed July 16, 2015, however the envelope docketed
along with it bears the post-mark July 1, 2015.
10The envelope attached to the concise statement bears the post-mark September 11,
2015.
11 As such, defendant's appeal should be quashed. See Pa.R.A.P. l 925(b) (stating that
failure to file and serve concise statement results in waiver of issues on appeal); see
also Commonwealth v. Fletcher, 986 A.2d 759, 778 (Pa. 2009) (prose defendant cannot
raise his own ineffectiveness as a basis for relief). This court, nevertheless, will
address the issues contained in the concise statement in the event the appeal is
permitted to proceed.
4
6. Whether this court erred by condoning prosecutorial misconduct during
closing arguments?
7. Whether this court erred by allowing ex parte communications between
the prosecutor and purported defense witnesses?
8. Whether trial counsel rendered ineffective assistance?
9. Whether the evidence was insufficient to support all the. charges?
10. Whether this court erred by not allowing defendant to offer defense
evidence at the sentencing hearing?
11. Whether the sentence imposed constituted cruel and unusual
punishment, was ill~gal and resulted from an abuse of discretion?
III. DISCUSSION
1. The Commonwealth did not withhold mandatory discovery.
Defendant contends the Commonwealth withheld mandatory discovery
requested pre-trial by his counsel. This unpreserved claim fails.
Pennsylvania Rule of Criminal Procedure 573, relating to pre-trial discovery,
states, relevantly:
(A) Informal. Before any disclosure or discovery can be sought
under these rules by either party, counsel for the parties shall
make a good faith effort to resolve all questions of discovery,
and to provide information required or requested under these
rules as to which there is no dispute. When there are items
requested by one party which the other party has refused to
disclose, the demanding party may make appropriate motion.
Such motion shall be made within 14 days after arraignment,
unless the time for filing is extended by the court. In such
motion the party must set forth the fact that a good faith
effort to discuss the requested material has taken place and
proved unsuccessful. Nothing in this provision shall delay the
disclosure of any items agreed upon by the parties pending
resolution of any motion for discovery.
(B) Disclosure by the Commonwealth.
6
(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall
disclose to the defendant's attorney all of the following
requested items or information, 'provided they are material to
the instant case. The Commonwealth shall, when applicable,
permit the defendant's attorney to inspect and copy or
photograph such items.
(a) Any evidence favorable to the accused that is
material either to guilt or to punishment, and is within
the possession or control of the attorney for the
Commonwealth;
(b) any written confession or inculpatory statement, or
the substance of any oral confession or inculpatory
statement, and the identity of the person to whom the
confession or inculpatory statement was made that is in
the possession or control of the attorney for the
Commonwealth;
(c) the defendant's prior criminal record;
(d) the circumstances and results of any identification of
the defendant by voice, photograph, or in-person
identification;
(e) any results or reports of scientific tests, expert
opinions, and written or recorded reports of polygraph
examinations or other physical or mental examinations
of the defendant that are within the possession or
control of the attorney for the Commonwealth;
(fj any tangible objects, including documents,
photographs, fingerprints, or other tangible evidence;
and
(g) the transcripts and recordings of any electronic
surveillance, and the authority by which the said
transcripts and recordings were obtained.
(2) Discretionary With the Court.
(a) In all court cases, except as otherwise provided in
Rules 230 (Disclosure of Testimony Before Investigating
Grand Jury) and 556.10 (Secrecy; Disclosure), if the
7
defendant files a motion for pretrial discovery, the court
may order the Commonwealth to allow the defendant's
attorney to inspect and copy or photograph any of the
following requested items, upon a showing that they are
material to the preparation of the defense, and that the
request 'is reasonable:
(i) the names and addresses of eyewitnesses;
(ii) all written or recorded statements, and substantially
verbatim oral statements, of eyewitnesses the
Commonwealth intends to call at trial;
(iii) all written and recorded statements, and
substantially verbatim oral statements, made by co-
defendants, and by co-conspirators or accomplices,
whether such individuals have been charged or not; and
(iv) any other evidence specifically identified by the
defendant, provided the defendant can additionally
establish that its disclosure would be in the interests of
justice.
Pa. R.Crim.P. 573 (A), (B)(l)-(2)(a). "[W]here the evidence is equally accessible or
inaccessible to both the Commonwealth and the defense, the. defense cannot use the
discovery rules against the Commonwealth for its failure to produce the evidence."
Commonwealth v. Dent, 837 A.2d 571, 585 (Pa. Super. 2003).
Here, trial counsel did not raise the issue of an alleged discovery violation either
before or during trial. As such, this issue is waived on direct appeal. See Pa. R.A.P.
302(a) ("Issues not raised in the lower court are waived and cannot be raised for the ·
first time on appeal."). In addition, the five categories of documents defendant
references in paragraph A (a)-(e) of his concise statement would have been equally
accessible to him. Concise Statement, 9 / 16 / 15, unnumbered page 1. As such, he
cannot demonstrate that the Commonwealth withheld evidence from him.
8
2. This court did not decline a request to compel the enforcement of
subpoenas for favorable defense witnesses.
Defend ant next claims this court erred by not compelling the enforcement of
subpoenas for favorable defense witness. This claim lacks merit.
The docket in this case contains no indication that this court was asked to
compel the enforcement of any witness subpoenas. The only reference to a subpoena
during the trial occurred during the cross-examination of James Edward Crenshaw:
MR. FOGLE: Your Honor, a lot of this goes to Pastor
Cross's location out in Oklahoma. He was subpoenaed, but
he has counsel. He couldn't be here and is unavailable in the
colloquial sense of the word. I didn't hold him to that
subpoena just because of practicalities....
(N.T. Trial, 10/8/ 14, p. 56)
The record is barren of any evidence that this court declined a request to enforce
a witness subpoena. As such, defendant's claim must fail. See Pa. R.A.P. 302(a),
supra.
3. This court did not permit the Commonwealth to withhold
exculpatory material until the day of trial.
Defendant claims this court permitted the Commonwealth to withhold
exculpatory discovery materials until the day of trial. He makes the related assertion
that this court erred by not granting a continuance to allow exculpatory evidence to be
obtained. Neither claim warrants relief.
As discussed supra, Pennsylvania Rule of Criminal Procedure 573 sets forth the
Commonwealth's discovery obligations. The only suggestion during trial that certain
discovery materials allegedly had not presented to the defense occurred at the
conclusion of the direct examination of Detective Sergeant Terrence Kennedy:
9
[MR. LATZER:] I would move for the introduction of that
document [C-lOJ and any other exhibits I have not addressed
up through C-10.
THE COURT: Any objection?
MR. FOGLE: Well, I would like a copy of any exhibit that
is admitted. But other than that, no.
MR. LATZER: Okay. Fair enough.
THE COURT: Did you receive this during discovery?
MR. FOGLE: I did not see all of the police report in full,
no.
MR. LATZER: I should add that - -
MR. FOGLE: I assumed that it was work product, to be
honest. But that was - -
THE COURT: Well, for whatever reason, you didn't file a
motion to compel or anything like that, did you?
MR. FOGLE: No, Your Honor.
THE COURT: Okay. All right. They're admitted.
(N.T., Trial, 10/8/14, pp. 142-143)
Trial counsel did not assert that exculpatory evidence had been withheld by the
Commonwealth. He made a general statement about wanting copies of the
Commonwealth exhibits and made a vague reference to a police report. Moreover,
defendant never requested a continuance to allow for the discovery of allegedly
unavailable exculpatory evidence. As such, defendant's undeveloped and unpreserved
claim about alleged exculpatory evidence must fail. See Pa. R.A.P. 302(a), supra.
10
4. Defendant did not preserve a challenge to the admission of'bad acts
evidence.
Defendant contends this court erred in admitting evidence of his prior bad acts.
The claim does not warrant relief.
The Commonwealth filed a motion in Iimine to admit evidence that defendant
had pleaded nolo contendere and was sentenced in 2001 to theft-related offenses
arising from his prior employment with the Special Olympics. Trial counsel did not
object to the admission of the certified copy of conviction. (N.T., Trial, 10/8/14, p.
145). Moreover, trial counsel first broached the issue of the plea during his cross-
examination of Commonwealth witness James Edward Crenshaw. (N.T. 10/8/ 14, p.
40) As such, the claim is waived on appeal. See Pa. R.A.P. 302, supra. In any event,
the ample evidence produced by the Commonwealth demonstrated defendant's guilt,
even had the prosecution not offered without objection a certified copy of defendant's
nolo contendere plea. See, e.q., Commonwealth v. Kearney, 92 A.3d 51 (Pa. Super.
2014) (quoting Commonwealth v. Fears, 836 A.2d 52, 71 n. 19 (2003) (trial courts are
presumed to be able to disregard objectionable material)).
5. This court did not err by not allowing defendant to offer into .
evidence parol documents as part of his defense and to refute the
charges of theft.
Defendant claims this court erred by not allowing him to enter into evidence
parol documents as part of his defense. The record does not support this claim.
It 'is well-established that the admission of evidence generally:
is a matter vested within the sound discretion of the trial
court, and such a decision shall be reversed only upon a
showing that the trial court abused its discretion. In
determining whether evidence should be admitted, the trial
11
court must weigh the relevant and probative value of the
evidence against the prejudicial impact of the evidence.
Evidence is relevant if it logically tends to establish a material
fact in the case or tends to support a reasonable inference
regarding a material fact.
Commonwealth u. Gonzalez, 109 A.3d 711, 726 (Pa. Super. 2015) (citation omitted).
Pennsylvania Rule of Evidence 901, entitled "Authenticating or Identifying Evidence,"
states that "[t]o satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that "the
item is what the proponent claims it is." Pa. R.Evid. 90l(a).
Defendant attempted during the cross-examination of Commonwealth witness
James Edward Crenshaw to admit a hard copyof an email to the witness with a
separate attachment purported to be a chart showing defendant's updated income.
(N.T., Trial, 10/8/ 14, p.45) Crenshaw testified that he recognized the email but not
the attachment. Id. at 46-4 7. Indeed, the witness stated he had never seen the
attachment before. The Commonwealth objected, arguing no foundation had been
established for the attachment. Id. at 47-48. This court gave defendant an
opportunity to lay a proper foundation and counsel chose to move on from that
inquiry. Id. at 49. Trial counsel then questioned Crenshaw about the separation
agreement between defendant and VCF. The Commonwealth again objected on the
ground of lack of foundation and this court gave trial counsel the opportunity to lay a
foundation. Id. at 50-51. He turned to a separate issue.
As amply depicted in the record, a proper foundation was not established for the
documentary evidence defendant attempted to admit at trial. As such, this court
properly sustained the Commonwealth's objections.
12
6. This court did not condone prosecutortal misconduct during
closing arguments.
Defendant accuses this court of condoning prosecutorial misconduct when the
attorney for the Commonwealth, during closing arguments, referenced defendant's
bank accounts, statements of which had been admitted as Exhibit C-10, and
characterized him as living a lavish lifestyle. The argument did not raise an objection
from trial counsel. As such the claim is waived. See Pa. R.A.P. 302(a), supra. In any
event, the challenged comments did not deprive defendant of a fair trial.
Our Supreme Court has stated that "[cJomments by a prosecutor constitute
reversible error only where their unavoidable effect is to prejudice the jury, forming in
their minds a fixed bias and hostility toward the defendant such that they could not
weigh the evidence objectively and render a fair verdict." Commonwealth v. Tedford,
960 A.2d 1, 32 (Pa. 2008) (citations omitted). A prosecutor's statements are not
objectionable when "based on the evidence, or proper inferences therefrom, or
represent mere oratorical flair." Tedford,960 A.2d at 33. Thus, "as long as a
prosecutor does not assert his personal opinions, he or she may, within reasonable
limits, comment on the credibility of a Commonwealth witness." Tedford, 960 A.2d at
31-32 (citations omitted).
Here, the- prosecutor's statements were based proper inferences from. the record
evidence. Moreover, this matter proceeded to a bench trial andthis court was not
rendered unable to return an objective verdict based on the prosecutor's comments.
See, e.g. Kearney, supra (trial courts are presumed to be able to disregard
1
objectionable material).
13
7. This court did not allow ex parte communications between
the prosecutor and purport ed defense witnesses.
Defendant asserts that this court allowed the Commonwealth to engage in
communications with certain purported fact witnesses outside the presence of his trial
counsel. He appears to suggest, however, that trial counsel was aware of the alleged
communications, but that the prosecutor somehow influenced trial counsel not to alert
the court to them. Indeed, no mention was made to this court prior to or during trial
of any alleged improper communications. Additionally, as discussed supra, this court
never received a defense request to enforce a witness subpoena. The claim, therefore,
has not been preserved for appeal. See Pa. R.A.P. 302(a). Moreover, the alleged
communications do not constitute after-discovered evidence because defendant has
intimated that he and trial counsel knew of them prior to trial. See, e.g.,
Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010) (stating that a
defendant seeking a new trial on the basis of after-discovered evidence must prove,
inter alia, that the evidence could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence). As such, defendant is not entitled to
relief on this claim.
8. Defendant/s claims of trial counsel ineffectiveness are not ~ipe.
Defendant raises a host of claims of trial counsel ineffectiveness. Those claims,
however, are not ripe for review on direct appeal. See, e.g., Commonwealth v. Britt, 83
A.3d 198, 203-204 (Pa. Super. 2013) (stating that direct appeal consideration of
ineffectiveness claims generally must await collateral review).
14
9. Defendant has waived a challenge to the sufficiency of the evidence.
Defendant asserts in his concise statement that "the evidence was insufficient as
a matter of law to establish his guilty beyond a reasonable doubt because there was no
transaction to promote any illegal activity." Concise Statement, unnumbered page 14.
He also claims "he did not conceal 'and/ or disguise any of his payments from [the
church] .... " Id. He does not identify, however, which elements of the various offenses
were not supported by sufficient evidence.
In Commonwealth v. Garland, 63 A.3d 339 (Pa. Super. 2013), the defendant
produced a concise statement asserting that "[t]he evidence was legally insufficient to
support the convictions." Id. at 344. The Superior Court held that such a generic
statement ran afoul of the requirement that a concise statement must assert with
specificity the element or elements upon which the appellant alleges that the evidence
was insufficient. Id. (citing Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
2009), appeal denied, 3 A.3d 670 (Pa. 2010). The Superior Court further explained
that "[s]uch specificity is of particular importance in cases where, as here, the
appellant was convicted of multiple crimes each of which contains numerous elements
that the Commonwealth must prove beyond a reasonable doubt." Id.
Here, as in Garland, defendant was convicted of "multiple crimes each of which
contains numerous elements." Id. Defendant also has not specified the elements he is
challenging on appeal. He has included with his sufficiency claim a recitation of his
version of certain events, but this court should not have to guess at which elements of
each offense defendant is challenging. Therefore, as in Garland, defendant should be
found to have waived a challenge to the sufficiency of the evidence.
15
In any event, even had defendant preserved a challenge to the sufficiency of the
evidence, no relief would be due. When reviewing a challenge to the sufficiency of the
evidence, the Superior Court:
evaluate(s] the record in the light most favorable to the.
Commonwealth as the verdict winner, giving the prosecution
the benefit of all reasonable inferences to be drawn from the
evidence. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a
reasonable doubt. However, the Commonwealth need .not
establish guilt to a mathematical certainty, and it may sustain
its burden by means of wholly circumstantial evidence.
Moreover, this Court may not substitute its judgment for that
of the factfinder, and where the record contains support for
the convictions, they may not be disturbed. Lastly, we note
that the finder of fact is free to believe some, all, or none of
the evidence presented.
Commonwealth v. Taylor,33 A.3d 1283, 1287-1288 (Pa. Super. 2011) (quoting
Commonwealth v. Yasipour, 957 A.2d 734, 745 (Pa. Super. 2008) (internal quotations
marks and citations omitted).
As detailed in the factual backgrCom. v. v. Moody, J.
Combined Opinion