Opinion
J-A32020-17 No. 2039 MDA 2016
02-23-2018
COMMONWEALTH OF PENNSYLVANIA v. ALFONSO PICONE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 28, 2016
In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0002089-2015 BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Alfonso Picone, appeals from the Judgment of Sentence of 18 to 60 months' incarceration entered in the Schuylkill County Court of Common Pleas following his jury conviction of one count each of Theft by Unlawful Taking and Receiving Stolen Property., We affirm.
18 Pa.C.S. § 3921(a), and 18 Pa.C.S. § 3925, respectively.
The jury also convicted Appellant of one count of Dealing in Proceeds of Unlawful Activities, 18 Pa.C.S. § 5111. Before sentencing, however, the court granted Appellant's Motion for Judgment of Acquittal with respect to that conviction.
The facts, as gleaned from the record, including the trial court's March 1, 2016 Opinion, are as follows. In December 2014, Brian Campbell, a Protective Services Caseworker for the Schuylkill County Office of Senior Services, received a report that Appellant was financially exploiting an elderly couple in their nineties, John and Ella Burnard. Campbell investigated the report by conducting a visit with Mr. and Mrs. Burnard in their home on December 23, 2014. When Campbell informed Mr. Burnard of the reason for his visit, Mr. Burnard reported that he and his wife ate at the restaurant Appellant owned almost daily, and that Appellant helped them with their finances, but that he was not aware of any large changes in his bank accounts. Mr. Burnard signed a release of information allowing Campbell to check his bank records, and it soon became apparent to Campbell that Appellant had transferred a large amount of money to himself from the Burnards' accounts.
In January 2015, Campbell called the police and met with the Burnards again at their home, this time with Officer Thomas Fort of the Rush Township Police Department, and the Burnards' son, Kurt Burnard. At this meeting, Mr. Burnard indicated that he never intended Appellant to transfer this amount of money to himself, and that Appellant did not have the Burnards' permission to use their funds for his personal expenses. Mr. Burnard explained that the couple had sought Appellant's help in managing their finances because Mrs. Burnard, who had always maintained the couple's finances, had begun to decline mentally and was no longer able to do so. In addition, according to Campbell's review of the Burnards' financial records, Appellant had made himself a co-owner of the Burnards' bank and brokerage accounts, a fact the Burnards seemed not to understand fully.
Campbell and Officer Fort both later testified that at their visits to the Burnards' home, Mrs. Burnard was incoherent and seemed very confused and she was unable to provide a statement to the investigators. N.T., 9/19/16, at 141, 147-48, 153, 166-67
Dennis Houser, a certified forensic public accountant, reviewed Appellant's and the Burnards' bank records. He testified at Appellant's Preliminary Hearing that Appellant had transferred $319,501.60 from the Burnards' accounts to Appellant over the course of 2014. In July 2014, Appellant became a co-signor of the Burnards' Wells Fargo bank account. Appellant had transferred funds from the Burnards' brokerage account to the Wells Fargo account, where Appellant then transferred the funds to his personal accounts. Houser observed that the funds were going primarily into Appellant's business account for two restaurants and Appellant was using them for, inter alia, payroll, expenses, and operating costs. Appellant also wrote out three checks to himself to cover his personal expenses. Houser testified that there was no evidence that Appellant ever returned these funds to the Burnards. There was likewise no evidence that Appellant used the money to pay the Burnards' bills, as they paid most of their bills by automatic debit.
Appellant's defense against the charges ultimately filed against him was that the Burnards transferred funds to him as loans and gifts.
Houser examined the Burnards' bank records as far back as 2008. First, he found no history of giving gifts to anyone prior to the time of Appellant's involvement in the management of the Burnards' finances, particularly at these high amounts. Second, he identified inconsistencies in the transactions, including a number of bounced checks, which suggested to him that the Burnards had not intended the transactions to be gifts or loans. In particular, he detected a pattern whereby Appellant wrote out checks and Mrs. Burnard signed them, but there were insufficient funds to cover the checks when they were cashed. Houser found it unusual that the Burnards would have written a check for a loan or gift, but not have had sufficient funds in the bank to cover it.
On May 27, 2015, Police charged Appellant with two counts of Dealing in Proceeds of Unlawful Activities, and one count each of Theft by Unlawful Taking, Receiving Stolen Property, Theft by Deception—False Impression, Theft by Deception—Preventing Acquisition of Information, and Theft by Deception—Failure to Correct.
18 Pa.C.S. § 5111(a)(1); 18 Pa.C.S. § 3921(a); 18 Pa.C.S. § 3925(a); 18 Pa.C.S. § 3922(a)(1); 18 Pa.C.S. § 3922(a)(2); and 18 Pa.C.S. § 3922(a)(3), respectively.
On October 8, 2015, the court held a Preliminary Hearing. At the hearing, the Commonwealth presented the testimony of Campbell, Houser, and Officer Fort. John and Ella Burnard did not testify. Following the hearing, the court dismissed the three Theft by Deception charges, and bound over the remaining charges for trial.
On December 4, 2015, Appellant filed a Pretrial Motion in which he moved the court to dismiss the remaining charges, averring that the Commonwealth failed to establish a prima facie case. Appellant argued that, because the Commonwealth failed to present the victims to testify at his Preliminary Hearing as to whether they had given their consent for Appellant to take their money, and presented no testimony regarding the victims' alleged incapacity, the Commonwealth's evidence was insufficient to satisfy, in particular, the intent element of the charges against him. Pretrial Motion, 12/4/15, at ¶¶ 6-8. The trial court denied this Motion on March 1, 2016.
On May 3, 2016, Appellant filed a Motion to Obtain an Independent Medical Examination of John Burnard and Ella Burnard and a separate Motion pursuant to Pa.R.Crim.P. 500 for Leave of Court to Preserve the Testimony of John Burnard and Ella Burnard. The court held a hearing on Appellant's Motions on May 16, 2016. At the hearing, the Commonwealth represented that it would not be presenting any expert testimony on the competence or cognitive abilities of the Burnards. Relying on this representation, Appellant withdrew his Motion for Independent Medical Exams. The trial court denied Appellant's Motion to Preserve, and scheduled a date for trial.
On July 15, 2016, Appellant filed a new Motion for mental health evaluations of John Burnard and Ella Burnard. On July 26, 2016, the court held a hearing on the Motion after which it denied the Motion and deferred the matter for the time of trial.
Appellant learned at the hearing of Mrs. Burnard's June 13, 2016 death.
On August 5, 2016, the Commonwealth filed a Notice of Intent to use an expert witness, Dr. Kenneth Carroll, a psychologist, to testify about cognitive disorders generally, and Alzheimer's specifically. On August 9, 2016, Appellant filed a Motion to exclude that testimony.
On September 2, 2016, the court heard argument on Appellant's Motion to Exclude. The court ordered the Commonwealth's expert to produce a new report if he could make expert conclusions without relying on hearsay statements about Ella Burnard. Dr. Carroll produced an amended report, and, on September 13, 2016, Appellant filed an additional Motion to Exclude the amended report and Dr. Carroll's testimony. The court held a hearing on the Motion the next day, after which it granted Appellant's Motion, but permitted the Commonwealth to introduce first-hand lay witness testimony regarding Ella Burnard's mental state.
Appellant's four-day jury trial commenced on September 19, 2016. At trial, Campbell and Houser testified to the facts recounted supra. The Commonwealth also presented the testimony of other witnesses, including Nancy Kevilly, a friend of the Burnards, and the Burnards' son Kurt. Both witnesses testified about, among other things, Mrs. Burnard's failing mental health, her deteriorating memory, and her strange behavior. See Trial Ct. Op, 2/16/17, at 4-5. Another witness, Kim Thomas, testified that she knew both of the Burnards and Appellant and that Appellant told her that he was "helping the Burnards pay their bills because they were older, becoming forgetful and not altogether there." Id. at 5.
Ultimately, the jury found the Commonwealth's evidence sufficient to prove that Appellant was aware of the Burnards' lack of mental capacity to make gifts and loans of their money to him, and convicted Appellant of Dealing in Proceeds of Unlawful Activities, Theft by Unlawful Taking, and Receiving Stolen Property. The court granted Appellant's Motion for Judgment of Acquittal with respect to the Dealing in Proceeds of Unlawful Activities conviction. On November 28, 2016, the court sentenced Appellant to concurrent terms of 18 to 60 months' incarceration, and ordered Appellant to pay restitution in the amount of $319,501.60. This appeal followed.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following six issues on appeal:
1. Was the evidence sufficient for convictions of [T]heft and/or [R]eceiving [S]tolen [P]roperty?
2. Were the verdicts against the weight of the evidence such that Appellant should be granted a new trial?
3. Was [it] error for the trial court to deny Appellant preservation of the testimony of the alleged complainant Ella Burnard[,] who died prior to trial?
4. Was Appellant denied Due Process and his right to confront witnesses when the trial court denied his motion of Habeas Corpus?Appellant's Brief at 4 (reordered for ease of disposition).
5. Was cross[-]examination limited by the trial court in such a way as to deprive Appellant of due process and right to fair confrontation?
6. Was Appellant denied a fair trial and should re-prosecution be barred when the prosecutor committed prosecutorial misconduct in suggesting before the jury that a key defense witness should be "advised of his rights."
Although not included in the Statement of Questions Involved, Appellant has also challenged the legality of the restitution portion of his sentence. See Appellant's Brief at 35-36. Claims directed to the trial court's authority to impose restitution concern the legality of sentence and cannot be waived. Commonwealth v. Oree , 911 A.2d 169, 172-73 (Pa. Super. 2006). Thus, notwithstanding this omission, we will address this claim infra.
In his first issue, Appellant challenges the sufficiency of the Commonwealth's evidence of his guilt of Theft by Unlawful Taking and Receiving Stolen Property.
Appellant presents both insufficiency arguments in one argument section. We remind Appellant that our Rules require that an appellant divide the argument into as many parts as there are questions to be argued. Pa.R.A.P. 2119(a). Notwithstanding this error, we decline to find waiver on this basis.
To begin, we note our standard of review of a challenge to the sufficiency of the evidence:
In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact finder. The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt.Commonwealth v. Koch , 39 A.3d 996, 1001 (Pa. Super. 2011) (citations omitted).
Evidentiary sufficiency presents a question of law, thus, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Johnson , 107 A.3d 52, 66 (Pa. 2014) (citation omitted).
A person commits the offense of Theft by Unlawful Taking "if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof." 18 Pa.C.S. § 3921(a). To sustain a conviction of Receiving Stolen Property, the Commonwealth's evidence must establish that the defendant intentionally acquired possession or control, retained, or disposed of the movable property of another with knowledge that it was stolen or the belief that it was probably stolen. 18 Pa.C.S. § 3925.
Appellant argues that the testimony of John Burnard established that the "only reasonable interpretation of the evidence is that [Appellant] was gifted and loaned money by the Burnards[.]" Appellant's Brief at 17, 18- 21. Appellant contends that the Commonwealth failed to present any evidence that he deceived the Burnards; rather the testimony of Mr. Burnard indicates that the Burnards intentionally and willfully transferred their money to Appellant. Id. at 18-19.
Appellant also "expressly incorporate[d] the previously filed Motion for Judgment of Acquittal and for New Trial previously filed with the trial court as though fully presented herein" and notes that, since "this case turns on the testimony of John Burnard, he "urges this Court to read it in its entirety." Appellant's Brief at 16. Our Supreme Court has categorically rejected incorporation by reference as a means of presenting an issue. See Commonwealth v. Briggs , 12 A.3d 291, 342-43 (Pa. 2011) (citations omitted) (stating that, where an appellant incorporates prior arguments by reference in contravention of Pa.R.A.P. 2119(a) and (b), he or she waives such claims on appeal). Thus, we will consider only the argument presented to this Court in Appellant's Brief.
The trial court has authored a comprehensive, thorough, and well-reasoned Rule 1925(a) Opinion addressing Appellant's challenge to the sufficiency of the Commonwealth's evidence, including extensive references to the evidence upon which the jury could have relied in reaching its verdict. See Trial Ct. Op., 2/16/17, at 2-14 (concluding that, when viewed in the light most favorable to the Commonwealth as verdict winner, there was "sufficient evidence for the jury to find that [Appellant] took the Burnards' money by taking advantage of Ella Burnard's confusion and inability to understand what she was doing when she signed the checks. . . .The evidence established that [Appellant] intended to deprive the Burnards of their money when he took it, and he was aware that it was stolen when he received it"). We adopt that portion of the trial court's Opinion as our own, and affirm Appellant's first issue on the basis of that Opinion.
In his second issue, Appellant challenges the weight the jury gave to the Commonwealth's evidence.
A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial court's discretion; it does not answer for itself whether the verdict was against the weight of the evidence. It is well settled that the jury is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the jury's verdict is so contrary to the evidence that it shocks one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.Commonwealth v. Houser , 18 A.3d 1128, 1135-36 (Pa. 2011) (citations omitted).
Appellant argues in this issue that the court erred in denying his Motion for a New Trial because the evidence at trial "clearly demonstrates that all of the money received from the Burnards represented either a gift or a loan." Appellant's Brief at 23.
As with his sufficiency of the evidence claim, Appellant has incorporated by reference the arguments he raised in his Motion for a New Trial. As noted supra , Pa.R.A.P. 2119(a) and (b) prohibit this practice, and we, thus, shall address only the arguments set forth in Appellant's Brief.
Over the course of Appellant's four-day trial, the Commonwealth presented the testimony of many witnesses who attested to the diminishment of Mrs. Burnard's memory and mental acuity. In fact, the evidence indicates that this is precisely the reason underlying Appellant's involvement in "assisting" the couple with their finances in the first place. Appellant's spare argument highlights the parts of Mr. Burnard's testimony that are favorable to Appellant, and omits any discussion of the ample evidence of Mrs. Burnard's incapacity provided by the Commonwealth's other witnesses. The jury decision to credit the testimony of the Commonwealth's witnesses and evidence is not shocking to this Court. The jury's verdict was far from manifestly unreasonable. Thus, we conclude the trial court did not abuse its discretion in denying Appellant's Motion for a New Trial.
In his third issue, Appellant claims that the trial court erred in denying his Motion for Leave to Preserve the Testimony of John Burnard and Ella Burnard. Appellant's Brief at 23-24.
Appellant's argument is significantly underdeveloped as he has failed to support this theory with citation to any case law in violation of Pa.R.A.P. 2119(a). Appellant's failure to develop this issue precludes this Court's meaningful review. See Commonwealth v. Johnson , 895 A.2d 915, 924-25 (Pa. Super. 2009) (appellant waives issue on appeal if he fails to present claim with citations to relevant authority or develop issue in meaningful fashion capable of review). Accordingly, we find this argument waived.
In his fourth issue, Appellant avers that the trial court erred in denying his Motion for Habeas Corpus. Appellant complains that the court should have granted his Motion because the Commonwealth's "strategic decision" not to present Mrs. Burnard's testimony at his Preliminary Hearing deprived him of his right to confront his alleged victim. Appellant's Brief at 27.
Appellant included this issue in his Rule 1925(b) Statement. In it, he claimed: "The trial court erred when it denied [Appellant's] Omnibus Motion for Habeas Corpus; [Appellant] was denied right of confrontation and Due Process." Rule 1925(b) Statement, 1/19/17, at 2 (unpaginated). In declining to address this issue, the trial court noted that Appellant failed to "explain the manner in which his rights were denied." Trial Ct. Op. at 16.
When the trial court directs a defendant to file a concise statement of matters complained of on appeal, any issues that are not raised will be waived for appellate review. Commonwealth v. Dowling , 778 A.2d 683, 686 (Pa. Super. 2001). Similarly, if a defendant raises an issue in his Rule 1925(b) statement in a way that is too vague for the trial court to identify and address, the statement is the functional equivalent of no statement at all. Id.
Here, the trial court found Appellant's statement of this allegation of error too vague and imprecise to address with any specificity, and summarily concluded that "[t]he ultimate right to confront the witnesses and test the sufficiency of the evidence was afforded at trial." Trial Ct. Op. at 16. We agree with the trial court that Appellant failed to raise this issue in his Rule 1925(b) Statement with the requisite specificity to have preserved it. Thus, we find this issue also waived.
In his fifth issue, Appellant avers that the trial court deprived Appellant of his due process rights and right to confront his adverse witnesses when it limited the scope of his counsel's cross-examination of Dennis Houser and John Burnard by sustaining the Commonwealth's objections to counsel's questions. Appellant's Brief at 27, 29, 30-31.
With respect to Houser, Appellant alleges that the trial court erred in preventing his counsel from questioning Houser about evidence of checks totaling more than $100,000.00 written by the Burnards between May and July 2014 to Mikey Stocker, the son of the Burnards' investment advisor. Id. at 29. Appellant argues that evidence of these checks contradicts Houser's testimony that the Burnards' records did not indicate a pattern of giving large financial gifts, like those Appellant alleges the Burnards gave to him. Id.
Appellant also claims that the trial court limited cross-examination of John Burnard by not permitting Appellant's counsel to ask specific questions related to the sale of the Burnards' Reston, Virginia home. Id. at 30-31. Appellant argues that John Burnard's answers to questions about details of this transaction were relevant to illustrate that the Burnards had been monitoring their financial transactions. Id. at 31.
Preliminarily, we note that "[i]t is an appellant's duty to present arguments that are sufficiently developed for our review." Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007). Appellant alleges that during cross-examination the trial court erroneously sustained an objection by the Commonwealth to Houser's testimony. However, Appellant has not included in his Brief a citation to the place in the Notes of Testimony where the Commonwealth made such an objection, the specific objection he alleges the Commonwealth made, or a citation to the place in the record where the trial court resolved the objection. This is unacceptable and a clear violation of Pa.R.A.P. 2119(c). This Court has consistently held that failure to comply with Rule 2119(c) results in the wavier of the issue on appeal. See , e.g., Commonwealth v. Hetzel , 822 A.2d 747, 765 (Pa. Super. 2003). We are, thus, compelled to find this issue, as it pertains to Houser's testimony, waived.
In its Opinion addressing this issue, the trial court indicated that Appellant failed to provide "transcript references where the objections were raised" in his Pa.R.A.P. 1925(b) Statement. Trial Ct. Op. at 18.
Pa.R.A.P. 2119(c) requires that "[i]f reference is made to the pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears[.]"
With respect to Appellant's claim that the court improperly limited John Burnard's testimony, we note that the scope of cross-examination is largely within the discretion of the court and we will not reverse the trial court's decision absent a clear abuse of discretion or error of law. Commonwealth v. Begley , 780 A.2d 605, 627 (Pa. 2001).
The right to cross-examine witnesses, though fundamental, is not absolute. See Commonwealth v. Rosser , 135 A.3d 1077, 1088 (Pa. Super. 2016) (en banc). The Confrontation Clause of the Sixth Amendment of the United States Constitution provides a defendant with a constitutional right to conduct cross-examination that reveals any motive that a witness may have to testify falsely. Commonwealth v. Bozyk , 987 A.2d 753, 756 (Pa. Super. 2009). However, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, and prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Id.
Appellant argues in his Brief that, with this line of inquiry, his counsel sought to show that the Burnards were regularly reviewing their investment and bank account statements as the "Burnards' understanding of giving money to Appellant is the central issue in this case[.]" Appellant's Brief at 31.
The trial court explained that it sustained the Commonwealth's objection to the scope of Appellant's cross-examination of Mr. Burnard because Appellant had already elicited the testimony it was seeking from Mr. Burnard—that the Burnards were reviewing their investments—without inquiring into the specifics of sale of the Burnards' Reston, Virginia home, which was not at issue in this case. See Trial Ct. Op. at 19.
N.T., 9/19/16, at 95.
Following our review, we conclude that the trial court did not abuse its discretion in limiting the scope of Appellant's cross-examination of Mr. Burnard to issues immediately relevant to this matter. At the time the Commonwealth objected to the scope of Appellant's cross-examination, Mr. Burnard had already testified that he and his wife were reviewing their financial records and aware of their contents. The trial court did not abuse its discretion in determining that, given the possibility of jury confusion of the issues and unnecessary repetitiveness, the details of the Reston, Virginia real estate transaction were not relevant to the instant charges. Thus, we conclude Appellant is not entitled to relief on this issue.
In his sixth issue, Appellant claims that the court erred in denying his Motion for a Mistrial when the Commonwealth committed prosecutorial misconduct when asking the court, in the presence of the jury, to advise Leo Howell, Esquire, a defense witness, of "certain of his rights." Appellant's Brief at 31. Appellant's claim is based on the following occurrence at trial.
Here, again, Appellant incorporates by reference the arguments set forth at the time of trial in support of his Motion for a Mistrial. To the extent that those arguments are not included in Appellant's Brief, we will not consider them. --------
After Appellant called Leo Howell, Esquire, to testify regarding a document pertaining to an inter vivos gift that Mr. Howell had prepared at Appellant's request for Mrs. Burnard's signature, the prosecutor asked that the witness be advised of his rights before testifying. Appellant's counsel objected. At sidebar, Appellant indicated that he was "tempted" to ask for a mistrial. The court admonished the prosecutor and the sidebar ended. The court then excused the jury. The court advised Howell of his right against self-incrimination, after which Howell indicated he wanted to consult with counsel. After a brief interlude, Appellant's counsel stated that Howell no longer wished to testify and he was "renewing" the Motion for a Mistrial. A colloquy ensued where Howell informed the court that he felt threatened by the Attorney General's office. Appellant's counsel then requested that the court dismiss the case.
The court denied Appellant's Motion for a Mistrial and his request for a dismissal, and recessed for lunch to allow Howell to consult further with counsel. After the lunch break, Appellant's counsel indicated Howell had changed his mind and would testify, which he did shortly thereafter. See Trial Ct. Op. at 21-22 (citing N.T., 9/21/16, at 542-64).
Appellant avers the trial court should have granted a Motion for a Mistrial because the prosecutor's statement prejudiced his ability to have a fair trial. Appellant's Brief at 33-34. We review the denial of a motion for a mistrial for an abuse of discretion. Commonwealth v. Tejada , 834 A.2d 619, 623 (Pa. Super. 2003).
A mistrial upon motion of one of the parties is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial. It is within the trial court's discretion to determine whether a defendant was prejudiced by the incident that is the basis of a motion for a mistrial. On appeal, our standard of review is whether the trial court abused that discretion.Id. at 623 (citations and quotations omitted).
An abuse of discretion is more than an error in judgment. On appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised by the trial court was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.
Prosecutorial misconduct will justify granting a mistrial only where the unavoidable effect of the conduct is to prejudice the jury to the extent that it is rendered incapable of fairly weighing the evidence and entering an objective verdict. Commonwealth v. Pierce , 645 A.2d 189, 196 (Pa. 1994). See also Commonwealth v. Chmiel , 777 A.2d 459, 464 (Pa. Super. 2001) (noting a mistrial is appropriate where the "unavoidable effect of the contested comments was to prejudice the jury, forming in their minds fixed bias and hostility towards the accused so as to hinder an objective weighing of the evidence and impede the rendering of a true verdict.").
Further, "the double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant [ ] when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, [and] when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial." Commonwealth v. Smith , 615 A.2d 321, 325 (Pa. 1992).
Appellant avers that the prosecutor's statement was "clearly an attempt to prejudice the jury into conjecture as to possible prior misconduct of the witness and thus deny due process." Appellant's Brief at 34.
The trial court addressed the issue as follows:
It was my judgment that the suggestion that the witness should be advised of his rights before testifying, followed by the witness' decision to do so[,] did not render the jury incapable of entering an objective verdict or even objectively weighing Mr. Howell's testimony. Had I advised the jury that advising a witness of his rights does not reflect a judgment on his credibility, I believe that a question of credibility may have been planted in the jurors' minds. However, merely taking [ ] an extended recess before he testified might very well have suggested to the jury that the witness had considered his rights and felt no concern about providing testimony.Trial Ct. Op. at 23.
Our review of the record supports the trial court's denial of the Motion for a Mistrial. The record does not support Appellant's averment that the prosecutor "intended to provoke the defendant into moving for a mistrial." Moreover, the prosecutor's comment was not of such a nature as "to hinder an objective weighing of the evidence and impede the rendering of a true verdict." Chmiel , supra at 464. Thus, we conclude that the trial court did not abuse its discretion denying Appellant's Motion for a Mistrial.
In his final issue, which he omitted from his Statement of Questions Involved, Appellant claims that the trial court erred in ordering him to pay restitution in the amount of $319,501.60 because the Commonwealth failed to prove what portion of the funds transferred from the Burnards' accounts were either a gift or a loan. Appellant's Brief at 35. Appellant argues that the restitution portion of his sentence was, thus, entirely speculative and unsupported by the record. Id. at 35-36.
An appeal from an order of restitution based upon a claim that a restitution order is unsupported by the record challenges the legality of sentencing. Commonwealth v. Redman , 864 A.2d 566, 569 (Pa. Super. 2004). Our standard of review in cases dealing with questions of law is plenary. Commonwealth v. Hughes , 986 A.2d 159, 160 (Pa. Super. 2009).
The statute governing restitution for injuries to person or property, 18 Pa.C.S. § 1106, provides that:
(a) General rule.--Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.18 Pa.C.S. § 1106(a). The statute defines restitution as "[t]he return of the property of the victim or payments in cash or the equivalent thereof pursuant to an order of the court." 18 Pa.C.S. § 1106(h).
"In computing the amount of restitution, the court shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate." Commonwealth v. Dohner , 725 A.2d 822, 824 (Pa. Super 1999) (quoting 18 Pa.C.S. § 1106(c)(2)(i)). Because restitution is a sentence, the record must support the amount ordered, and the amount of restitution must not be speculative or excessive. Id. at 824. "The amount of a restitution order is limited by the loss or damages sustained as a direct result of defendant's criminal conduct and by the amount supported by the record." Id. (citation omitted). To determine the correct amount of restitution for injuries to a person or property, the court should employ a 'but for' test to ascertain which damages occurred as a direct result of the defendant's criminal conduct. Commonwealth v Oree , 911 A.2d 169, 174 (Pa. Super. 2006).
Appellant avers that the restitution portion of his sentence is speculative and unsupported by the evidence of record. We disagree.
Our review of the record indicates that the Commonwealth presented evidence that amply supports the court's conclusion that all of the money transferred to Appellant was transferred as a result of his criminal conduct. The Commonwealth presented Mr. Burnard's testimony that: (1) Appellant did not have permission to transfer to himself over $300,000.00 of the Burnards' money; (2) to his knowledge, Mrs. Burnard did not give Appellant permission to take their money; and (3) any money "given" to Appellant was a loan which the Burnards intended Appellant to repay. The Commonwealth also presented evidence that at no time prior to 2013, when Mrs. Burnard's mental capacity began to diminish and Appellant became involved in managing the Burnards' finances, did the Burnards ever make financial gifts or loans to Appellant. The Commonwealth presented further evidence of Appellant's suspicious pattern of writing checks against the Burnards' checking account on temporary checks and failing to record them in the Burnards' check register. Last, and critically, the Commonwealth presented voluminous evidence from which "the jurors could have, and apparently did conclude that [Mrs. Burnard] was not capable of forming the donative intent to give [the Burnards'] money to [Appellant]." Trial Ct. Op. at 24. Thus, given this robust evidence in support of the court's restitution award, we conclude that Appellant's claim lacks merit.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/23/2018
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