Opinion
J-S79012-16 No. 1071 EDA 2016
11-02-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. DONALD M. BROWN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 15, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000544-2015 BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Donald M. Brown, appeals from the judgment of sentence entered in the Delaware County Court of Common Pleas, following his jury trial conviction for retail theft. We affirm.
The relevant facts and procedural history of this case are as follows. On December 29, 2014, Appellant and an accomplice, Mr. Williams, entered a Home Depot in Marple Township through a service door labeled "Contractors." Mr. Williams was pushing a flat cart with a cardboard window box on top. Appellant and Mr. Williams loaded a French door refrigerator on the cart and proceeded to the customer service desk. Mr. Williams showed the store clerk a receipt for the window and asked about the store's return policy. Mr. Williams claimed he purchased both the window and the refrigerator at a different Home Depot store. While Mr. Williams spoke with the clerk, Appellant stood nearby. After the clerk informed Mr. Williams that he would have to return the items where they were purchased, Appellant and Mr. Williams took the flat cart from the store without paying for the refrigerator. As Appellant and Mr. Williams loaded the refrigerator into a U-Haul truck outside of the store, Cesar Evangelista, a loss prevention officer for Home Depot, recognized Mr. Williams from a prior retail theft. Mr. Evangelista became suspicious when he saw the refrigerator was a special order item that the store would typically ship to a purchaser's home. Mr. Evangelista called the police, who stopped Appellant and Mr. Williams in the U-Haul near the store. Mr. Williams told officers that he and Appellant had attempted to return the refrigerator, while Appellant stated he had accompanied Mr. Williams to Home Depot to help him pick up a refrigerator. The police arrested both Appellant and Mr. Williams. The Commonwealth charged Appellant with retail theft, receiving stolen property, and two counts of conspiracy.
Appellant proceeded to a jury trial on April 23, 2015. Mr. Williams, who had previously pled guilty to charges stemming from the Home Depot incident, testified on Appellant's behalf at trial. Mr. Williams stated Appellant was a friend, with whom he attended religious prayers, and Appellant knew of Mr. Williams' criminal history. Mr. Williams claimed he told Appellant the refrigerator had already been paid for, in order to dupe Appellant into renting the U-Haul and unknowingly assisting in the retail theft. Mr. Williams also testified Appellant was aware that Mr. Williams did not have a credit card. After prosecution had an opportunity for cross-examination, the court asked Mr. Williams several clarifying questions. In addition, the court asked Mr. Williams, "Did you ever tell [Appellant] that 'I'm going to steal this refrigerator, you're going to help me, but if we get caught I'll take the fall'?" (N.T. Trial, 4/23/15, at 120). Mr. Williams denied he and Appellant had any agreement that Mr. Williams would take responsibility if they were caught and insisted he alone had planned the theft from Home Depot. At the conclusion of all testimony, the court gave the jury the following cautionary instruction:
During the trial of the case, I did ask questions of Mr. Williams. I don't think I did any other witness, but the fact that I asked these questions as opposed to [the Commonwealth] or [Appellant's attorney] doesn't matter. My questions have no greater weight, or relevance, or anything else because I asked them. They're simply questions that I thought were necessary to clarify the witness' testimony and you should accept that. Don't say "well, that must be more important than the other evidence because the judge asked the questions." That is not the case. They are no different from the questions that either counsel asked during the trial.( Id. at 146).
On April 24, 2015, the jury convicted Appellant of retail theft. The court ordered a pre-sentence investigation ("PSI") report. On June 15, 2015, the court sentenced Appellant to twelve and one-half (12½) to twenty-five (25) months' imprisonment, plus three (3) years' probation. Appellant timely filed a post-sentence motion on June 24, 2015. The court denied Appellant's motion on September 8, 2015. Appellant did not file a direct appeal.
On November 17, 2015, Appellant timely filed a pro se PCRA petition seeking reinstatement of his direct appeal rights nunc pro tunc. The court appointed counsel on November 20, 2015, and Appellant's counsel filed an amended PCRA petition on March 4, 2016. The court granted Appellant's petition and reinstated Appellant's direct appeal rights nunc pro tunc on March 18, 2016. On April 8, 2016, Appellant filed a notice of appeal. The court ordered Appellant on April 19, 2016, to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on May 6, 2016.
Appellant raises a single issue for our review:
WHETHER IT IS REASONABLY POSSIBLE THAT THE TRIAL COURT'S PROTRACTED INTERROGATION OF THE ONLY DEFENSE WITNESS DEPRIVED [APPELLANT] OF A FAIR AND IMPARTIAL TRIAL WHEN THE COURT (I) ADVOCATED ON BEHALF OF THE COMMONWEALTH, DRASTICALLY SHIFTING THE MOMENTUM OF THE TRIAL; (II) POSED TWENTY-FIVE QUESTIONS THAT DID NOT SERVE THE PURPOSE OF CLARIFYING AN IMPORTANT ISSUE; (III) REPEATEDLY AND STRONGLY IMPUGNED THE CREDIBILITY AND CHARACTER OF THE DEFENSE'S ONLY WITNESS; AND (IV) REACTED NEGATIVELY AND EXPRESSED INCREDULITY REGARDING THE PLAUSIBILITY OF THE DEFENSE.(Appellant's Brief at 7).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable James P. Bradley, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed June 7, 2016, at 8-10) (finding: Mr. Williams testified in manner that was confusing and contradictory at times; Mr. Williams claimed to enjoy "honest" six-year friendship and religious connection with Appellant, and at same time testified that he twice duped Appellant into unknowingly committing thefts; court expressed no opinion regarding Mr. Williams' credibility; court simply reviewed Mr. Williams' earlier testimony and ultimately asked Mr. Williams if he had agreement with Appellant that, in event theft led to arrest, Mr. Williams would take full responsibility; Mr. Williams denied any such agreement existed; court did not act as advocate for prosecution; court did not engage in pervasive pattern of questioning that by method or in content deprived Appellant of fair and impartial trial; Appellant was not deprived of fair trial as result of court's limited inquiry). Accordingly, we affirm on the basis of the trial court opinion.
Moreover, the court gave the jury a cautionary instruction. The court advised the jury not to give undue or additional weight to the questions the court asked of Mr. Williams. "[T]he law presumes that the jury will follow the instructions of the court." Commonwealth v. Rega , 593 Pa. 659, 692, 933 A.2d 997, 1016 (2007), cert. denied, 552 U.S. 1316, 128 S.Ct. 1879, 170 L.Ed.2d 755 (2008).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/2/2016
Image materials not available for display.