Opinion
J-A03027-16 No. 1017 EDA 2015
03-01-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. EDWARD FEIERSTEIN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 30, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0001241-2012 BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J. MEMORANDUM BY MUNDY, J.:
Appellant, Edward Feierstein, appeals from the March 30, 2015 judgment of sentence of twenty-three months of intermediate punishment, with the first thirty days on house arrest and electronic monitoring, followed by five years' probation, imposed after the trial court convicted Appellant of insurance fraud and perjury. After careful review, we affirm on the basis of the trial court's June 12, 2015 opinion.
18 Pa.C.S.A. §§ 4117(a)(2) and 4902, respectively.
The trial court recited the relevant factual and procedural history as follows.
On May 13, 2006, [Appellant] was driving home from Germantown Cricket Club when his car was struck from behind. The driver of the second
car was insured by Chubb Indemnity Insurance Co. ("Chubb"). Two days after the accident, [Appellant] filed a claim with Chubb seeking reimbursement for his bodily injuries. On February 1, 2008, nearly two years later, [Appellant] filed suit [] for $125,000 against Chubb's insured, seeking damages for his medical bills and for his pain and suffering. Specifically, [Appellant] complained of the re-tear of the rotator cuff of his right shoulder.
Chubb assumed defense of the action and hired a private investigation firm, Stumar Investigations, to conduct surveillance to determine the extent of [Appellant's] injuries. In August and September of 2008, one of Stumar's investigators, Brian Foster, recorded video footage of [Appellant] at Aquatic Fitness Center in Bala Cynwyd and at Germantown Cricket Club in Philadelphia on six different occasions. [Appellant] was seen stretching, exercising on an elliptical machine and a weight-lifting machine, and on at least two of the dates, playing tennis.
On January 28, 2009, Chubb's attorney, Carol Comeau, took [Appellant's] deposition in preparation for the civil suit. Unaware of the surveillance showing the contrary, [Appellant] stated during the deposition that he had not played tennis at all since the accident, that he had not worked out in any gyms since the accident, that the only exercise equipment he had used since the accident was his in-home treadmill, that he attends Germantown Cricket Club only for meals, and that he can no longer serve overhand. In the weeks following the deposition, [Appellant] was not made aware of the surveillance footage, although Chubb had provided [Appellant's] attorney with a copy. [Appellant] continued to pursue his suit until withdrawing it on July 12, 2011.
On December 15, 2011, a criminal complaint was filed against [Appellant], charging him with insurance fraud (18 Pa.C.S.A. § 4117), perjury (18 Pa.C.S.A. § 4902), attempted theft by deception (18 Pa.C.S.A. § 901 with § 3922(a)), and false swearing
(18 Pa.C.S.A. § 4903).1 [Appellant] filed "Defendant's Amended and Superseding Omnibus Pre-Trial Motion" on December 28, 2012, which argued, amongst other things, that the charge of insurance fraud was barred by the statute of limitations, and that the video surveillance should be suppressed at trial. A hearing on the motion was held on January 11, 2013, before the Honorable Joseph A. Smyth. Judge Smyth denied [Appellant's] motion on February 25, 2013.Trial Court Opinion, 6/12/15, at 1-3 (footnotes in original).
[Appellant] acted pro se at his bench trial [] on November 3, 4, 5, and 6, 2014.2 During trial, [Appellant] renewed his objection to the video surveillance, and also objected to the introduction of the attendance records of Aquatic Fitness Center. (These records showed all the dates between January 1, 2006, and January 26, 2009, on which [Appellant] had entered the gym. Without obtaining a subpoena, Special Agent Mark Sabo of State Attorney General's office had requested the records from Aquatic Fitness Center, and the records were subsequently provided.) [Appellant's] motions were denied and the evidence was admitted.
At the conclusion of the trial, the [trial court] found [Appellant] guilty of insurance fraud and perjury. [Appellant] was sentenced on March 20, 2015, to twenty-three months of intermediate punishment, the first thirty days of which were to be spent on house arrest with electronic monitoring, in addition to five years of consecutive probation, three years of concurrent probation, $1,000 in restitution, and the costs of prosecution. [Appellant] filed a post-sentence motion on March 23, 2015.
1 The false swearing charge was later dropped.
2 The pro se representation occurred after th[e trial c]ourt allowed two other attorneys, both privately retained, leave to withdraw their appearance and representation.
On March 30, 2015, the trial court modified Appellant's sentence and ordered Appellant "to serve the first thirty days of his Intermediate Punishment as house arrest with electronic monitoring." Order, 3/30/15. The trial court otherwise denied Appellant's post-sentence motion. Appellant filed a timely appeal April 13, 2015.
Appellant and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Appellant presents four issues for our review.
1. Was the evidence insufficient as a matter of law to support [Appellant's] convictions for perjury and insurance fraud, where the Commonwealth failed to prove the element of materiality?Appellant's Brief at 5.
2. Even if the evidence were sufficient to support [Appellant's] convictions, were the guilty verdicts nevertheless against the weight of the evidence?
3. Should the trial court have suppressed video, photographic, and documentary evidence obtained in violation of [Appellant's] Fourth Amendment rights?
4. Should this matter be remanded for a hearing on after-discovered evidence?
In summarizing his four issues on appeal, Appellant first asserts that the Commonwealth "failed to prove the element of materiality" with respect to his convictions, stating, "all the Commonwealth proved here is that Chubb effectively knows how to spring a perjury trap." Appellant's Brief at 10. Appellant vigorously argues that the Commonwealth's own evidence demonstrating Appellant's mistaken deposition testimony was material to nothing. Id. at 13. Appellant additionally assails the weight of the evidence and says, "[i]t is uncontested that at the time [Appellant] gave his deposition testimony, multiple ailments caused him to be confused, and as such, incapable of forming the requisite intent." Id. at 10. Appellant further contends that the "video, photographic, and documentary evidence obtained in this case should have been suppressed as [Appellant's] reasonable expectation of privacy in those items was violated." Id. Finally, Appellant maintains "at a minimum, [the Superior Court] should remand this case for a hearing on after discovered evidence pursuant to Pa.R.Cr.P. 720, as a key witness has recanted and corrected his testimony from trial." Id.
We note the statutory definitions of insurance fraud and perjury as follows.
§ 4117. Insurance fraud
(a) Offense defined.-- A person commits an offense if the person does any of the following:
18 Pa.C.S.A. § 4117.
...
(2) Knowingly and with the intent to defraud any insurer or self-insured, presents or causes to be presented to any insurer or self-insured any statement forming a part of, or in support of, a claim that contains any false, incomplete or misleading information concerning any fact or thing material to the claim.
§ 4902. Perjury
(a) Offense defined.--A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true.Id. § 4902.
We are further mindful of our appellate standards of review. In examining Appellant's first issue challenging the sufficiency of the evidence, we are bound by the following.
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not reweigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proof of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all the evidence actually received must be considered. Finally, the trier of fact[,] while passing on the credibility of the witnesses and the weight of the evidence produced, is free to believe all, part[,] or none of the evidence.Commonwealth v. Yong , 120 A.3d 299, 311 (Pa. Super. 2015) (citation omitted).
As to Appellant's second issue challenging the weight of the evidence, we recognize that a challenge to the weight of the evidence "concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice." In re J.B., 106 A.3d 76, 95 (Pa. 2014) (citation omitted). "A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court." Commonwealth v. Weathers , 95 A.3d 908, 910-911 (Pa. Super. 2014), appeal denied, 106 A.3d 726 (Pa. 2015), citing Commonwealth v . Diggs , 949 A.2d 873, 879 (Pa. 2008). Therefore, on appeal, the reviewing court "reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence." Id. "A new trial is not warranted because of a mere conflict in the testimony and must have a stronger foundation than a reassessment of the credibility of witnesses." Commonwealth v. Gonzalez , 109 A.3d 711, 723 (Pa. Super. 2015) (citation and internal quotation marks omitted), appeal denied, 125 A.3d 1198 (Pa. 2015). "[O]nly where the facts and inferences disclose a palpable abuse of discretion will the denial of a motion for a new trial based on the weight of the evidence be upset on appeal." Commonwealth v. Morales , 91 A.3d 80, 91 (Pa. 2014) (emphasis in original; citation omitted), cert. denied, Morales v . Pennsylvania , 135 S. Ct. 1548 (2015).
Our standard of review from an order denying a suppression motion is as follows.
[W]e may consider only the Commonwealth's evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.Commonwealth v. Russo , 934 A.2d 1199, 1203 (Pa. 2007) (citation omitted).
Finally, in his fourth issue Appellant seeks relief based on after-discovered evidence, but failed to raise this claim in his March 23, 2015 post-sentence motion. We therefore agree with the trial court that Appellant's proper recourse for this claim is with collateral review pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Trial Court Opinion, 6/12/15, at 17; see also 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).
Having reviewed Appellant's issues, in conjunction with the foregoing facts of record and pertinent legal authority, we conclude that the Honorable Garrett D. Page, sitting as the trial court, has authored a comprehensive opinion which thoroughly discusses Appellant's claims, such that further commentary by this Court would be redundant. In sum, Appellant's first three issues are without merit, and his fourth issue is not properly before us on direct appeal. Accordingly, we affirm Appellant's judgment of sentence on the basis of the trial court's June 12, 2015 opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/1/2016
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