Opinion
J-S02018-17 No. 2123 EDA 2015
04-26-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOHN J.J. PREIMO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence imposed June 9, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0005257-2009, CP-51-CR-0005258-2009, CP-51-CR-0005256-2009 BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ. MEMORANDUM BY STABILE, J.:
Appellant, John J.J. Preimo ("Preimo"), appeals from the judgment of sentence imposed on June 9, 2011 in the Court of Common Pleas of Philadelphia County following his conviction on multiple counts of forgery, criminal conspiracy, theft by deception, and tampering with evidence. Preimo contends that the evidence was insufficient to support his convictions and that the trial court committed an evidentiary error. Following review, we affirm.
18 Pa.C.S.A. §§ 4101, 903, 3922, and 4910, respectively. These crimes are defined, in relevant part, as follows: Forgery: "A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor: (1) alters any writing of another without his authority; [or] (2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed[.]" 18 Pa.C.S.A. § 4101(a)(1)-(2). Conspiracy: "A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or 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[.]" 18 Pa.C.S.A. § 903(a)(1). Theft by deception: "A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally . . . creates or reinforces a false impression[.]" 18 Pa.C.S.A § 3922(a)(1). Tampering with evidence: "A person commits a misdemeanor of the second degree if, believing that an official proceeding or investigation is pending or about to be instituted, he: (1) alters, destroys, conceals or removes any record, document or thing with intent to impair its verity or availability in such proceeding or investigation; or (2) makes, presents or uses any record, document or thing knowing it to be false and with intent to mislead a public servant who is or may be engaged in such proceeding or investigation." 18 Pa.C.S.A. § 4910.
At the conclusion of an April 2011 waiver trial that spanned six days, the trial court found Preimo guilty. Preimo's convictions stemmed from a "fraudulent real estate scheme operated by [] Preimo in which he purported to buy and sell properties." Trial Court Rule 1925(a) Opinion, 4/28/16, at 3. As the trial court explained:
In some circumstances, Preimo took money from would-be purchasers and led them to believe that they had purchased a home, while in other circumstances, Preimo took money from investors seeking to flip properties bought at auction and never provided any return. As part of the scheme, Preimo used forged
and otherwise fraudulent documents and attempted to cover up his dealings with lies and deceit once the victims started to demand their money back. At trial . . . Preimo attempted to shift the blame to co-defendant Michelle Williams ("Williams"). While this [c]ourt found Williams guilty for some of the crimes, this [c]ourt found that Preimo was at the head of the conspiracy and that the scheme was his creation. While Preimo testified on his own behalf asserting his innocence, this [c]ourt found him to be wholly incredible and indicated so at the time he was found guilty of the [] charges.Id. at 3-4.
Ms. Williams elected not to testify at trial. N.T. Trial, 4/12/11, at 250-53.
On June 9, 2011, the trial court sentenced Preimo to an aggregate term of four to eight years in prison followed by ten years of reporting probation. Preimo did not file a direct appeal. On February 10, 2012, he filed a PCRA petition. Ultimately, by order entered on June 19, 2015, the PCRA court granted Preimo's petition requesting an appeal nunc pro tunc from the June 9, 2011 judgment of sentence.
Preimo timely filed the instant appeal as well as a Rule 1925(b) statement of errors complained of on appeal raising four issues, three of which he asks this Court to consider in this appeal:
I. Whether the verdict was contrary to law as being based on insufficient evidence[?]
II. Whether the trial court erred in finding that [Preimo] controlled the actions of Ms. Williams[?]Appellant's Brief at 9.
III. Whether the trial court erred in not allowing evidence of the property problem title with Patricia Bourke to be introduced into evidence[?]
In his Rule 1925(b) statement, Preimo identified seven subject areas of testimony in support of his insufficiency claim. Rule 1925(b) Statement, 8/10/15, at 1-2 (unnumbered). See also Trial Court Rule 1925(a) Opinion, 4/28/16, at 2-3.
Appellant's first two issues involve sufficiency of evidence. As this Court reiterated in Commonwealth v. Nypaver , 69 A.3d 708 (Pa. Super. 2013):
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 weigh 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 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 evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Id. at 714 (quoting Commonwealth v. Fabian , 60 A.3d 146, 150-51 (Pa. Super. 2013) (additional citation omitted)).
In its Rule 1925(a) opinion, the trial court examined the evidence and testimony in the context of the crimes of which Preimo was convicted, as well as Preimo's assertion regarding control over the actions of Ms. Williams. Trial Court Rule 1925(a) Opinion, 4/28/16, at 4-9. The trial court concluded that the testimony, as summarized in its opinion with citations to the record, "viewed in the light most favorable to the Commonwealth, was more than sufficient for this [c]ourt to find Preimo guilty, beyond a reasonable doubt," of the crimes with which he was charged. Id. at 9.
Again, this Court may not weigh the evidence or substitute our judgment for that of the trial court as fact-finder. Nypaver , 69 A.3d at 714. Further, we recognize that in passing upon the credibility of witnesses, the trial court as finder of fact was free to believe all, part or none of the evidence. Id. Based on our review of the record, we conclude that the evidence admitted at trial—viewed in the light most favorable to the Commonwealth—was sufficient to enable the trial judge, as fact-finder, to find every element of the crimes charged beyond a reasonable doubt. Therefore, the sufficiency challenges raised in Preimo's first two issues fail. We hereby incorporate by reference and adopt as our own the trial court's analysis of Preimo's sufficiency claims. See Trial Court Rule 1925(a) Opinion, 4/28/16, at 4-9.
In his third issue, Preimo contends that the trial court erred by not allowing evidence of a problem with the property title regarding 2619 Brown Street, one of the properties involved in Preimo's dealings with Patricia Bourke. As such, Preimo raises a challenge to an evidentiary ruling.
In his Rule 1925(b) statement, Preimo does not identify the property involved in his evidentiary challenge. The trial court surmised it was the Brown Street property. Trial Court Rule 1925(a) Opinion, 4/28/16, at 10. In his brief, Preimo does identify the Brown Street property as the one at issue. Appellant's Brief at 26. --------
In Nypaver , this Court explained:
[O]ur standard of review regarding the trial court's evidentiary rulings is deferential. Commonwealth v. Hernandez , 39 A.3d 406 (Pa. Super. 2012). Accordingly,
The admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.
Id., 69 A.3d at 716.
Id. at 411 (quoting Commonwealth v. Herb , 852 A.2d 356, 363 (Pa. Super. 2004)).
Preimo argues that the trial court abused its discretion "because the person behind the forgeries was a key contested fact that satisfied a required element of the charges directed at [Preimo]. The identity was at the heart of the inquiry." Appellant's Brief at 26.
In the course of Preimo's direct testimony, he testified that the signatures of three of the Brown Street property's sellers, the Marsh brothers, were already on the deed when he attended the closing for the property in 2002. N.T. Trial, 4/11/11, at 131-32. He stated that he expressed a concern about the deed to the attorney for William Singer, another one of the sellers. Id. at 131. When Preimo mentioned that Singer also had previously expressed concerns, the prosecutor objected. Id. After the trial court explained that Preimo could not testify about what either Singer or his counsel said, his counsel took a different approach, asking Preimo instead whether he signed the deed for the Marsh brothers. Id. at 132. He replied that he did not sign for them, did not know where the signatures came from, and did not receive any information about the signatures. Id.
Preimo's counsel asked questions about the location of the closing and then asked Preimo if he had inquired about the Marsh brothers. Id. at 133. In response to Preimo's reply of "Correct," the following exchange took place between his counsel and the trial judge:
Counsel: All right. And my understanding is that what was stated was objected to and you sustained that objection.Id. at 133.
The Court: Well, I understand that it came already signed. Other than hearsay, he doesn't know who did or didn't sign it.
Counsel: Right. But you don't want to hear the statements with regards to --
The Court: It's not that I don't want to hear it, it's how does it come in without it being hearsay?
Counsel: Very good.
We find no abuse of discretion in the trial court's ruling regarding the attempted hearsay testimony. Further, as the trial court noted, "Moreover, this [c]ourt found Preimo's testimony to be wholly incredible and, as such, any introduction of hearsay statements through Preimo would not have been believed by this [c]ourt." Trial Court Rule 1925(a) Opinion, 4/28/16, at 11. Preimo's third issue fails for lack of merit.
Preimo is not entitled to relief on his sufficiency claims or his evidentiary challenge. Therefore, we shall affirm his judgment of sentence. In the event of further proceedings, the parties shall attach a copy of the trial court's April 28, 2016 opinion to their filings.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/26/2017
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