Com. v. Reyes, C.



                                               :        PENNSYLVANIA
                v.                             :
    CESAR ANTONIO REYES                        :
                       Appellant               :   No. 175 MDA 2020

       Appeal from the Judgment of Sentence Entered December 17, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0002342-2019

                                               :        PENNSYLVANIA
                v.                             :
    CESAR ANTONIO REYES                        :
                       Appellant               :   No. 176 MDA 2020

       Appeal from the Judgment of Sentence Entered December 17, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0004974-2019


MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 26, 2021

        Appellant Cesar Antonio Reyes appeals from the judgment of sentence

imposed following his convictions for theft by unlawful taking, receiving stolen

property (RSP), stalking, and two counts of witness intimidation.1 Appellant

*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3921(a), 3925(a), 2709.1 (a)(2), 4952 (a)(3), and (a)(2),

raises several claims related to the trial court’s evidentiary rulings, severance,

the weight and sufficiency of the evidence, and his sentence. We affirm.

      The trial court summarized the facts and procedural history of this

matter as follows:

      On January 7, 2019, Pablo Ramos asked [Appellant] for a ride to
      the Queen of Angels Apartments in Muhlenberg Township, Berks
      County. The men were part of the same social circle and attended
      the same treatment clinic. Ramos had received a letter about an
      available apartment he applied for, but Ramos did not drive.
      [Appellant] agreed to drive Ramos. [Appellant] parked outside
      Queen of Angels and went inside with Ramos.

      At the same time[,] Queen of Angels Apartment Manager,
      Jeannine English, was busy processing tenants’ payments in her
      office on the ground floor of the building around 10:30 a.m.
      English was startled to see [Appellant] standing directly over her
      desk, having entered without knocking. English quickly tried to
      collect herself and conceal private tenant information. She placed
      the checks and money orders into an envelope and placed the
      envelope on the left side of her desk.

      Ramos stayed in the hallway, leaving [Appellant] alone in the
      office with English. English and [Appellant] talked about whether
      he might qualify for a room, including whether he fell below
      income cap. [Appellant] was elusive and gave inconsistent

      English explained to [Appellant] that she had a guide that, “would
      be really beneficial to him and would help him get organized and
      he really needed to get a handle on what his gross income number
      was, whether that was his income alone or whether income
      included his girlfriend.” As a courtesy, English decided to give
      [Appellant] a housing brochure/guide that details low income
      housing options. To make the copy[,] English had to walk across
      her office and turn her back to [Appellant] and her desk. It took
      her one or two minutes to copy the double-sided document. As
      soon as English handed him the copy, [Appellant] said goodbye
      and left without any further discussion.

      Ramos then stepped into the office doorway for a moment, said
      he forgot his letter and application information, and left the


     building with [Appellant]. On the drive back home, [Appellant]
     showed Ramos an envelope and admitted taking it from on top of
     English’s desk.

     English realized the payments were missing shortly after
     [Appellant] left the building. After an exhaustive search of the
     entire office—including filing cabinets she knew she had not
     opened and the trash bins—English called the Muhlenberg
     Township police. The payments, totaling $11,334, were never
     redeemed, cashed, or recovered. Surveillance video from the
     Queen of Angels lobby shows [Appellant] entering and leaving
     English’s office.

     On February 28, 2019, a criminal complaint was filed, charging
     [Appellant] with theft by unlawful taking and [RSP]. On May 20,
     2019, the charges against [Appellant] were waived for court. On
     October 7, 2019, the court entered an order[ ] scheduling the case
     for a jury trial on November 13, 2019, with a back-up date of
     December 9, 2019. The Commonwealth called a different case on
     November 13, 2019, thereby rescheduling [Appellant’s] trial for
     December 9, 2019.

     [Appellant] ran into Ramos outside the courthouse after trial was
     continued. [Appellant] approached Ramos and displayed a photo
     on his phone of the sworn statement Ramos gave to Officer Ramon
     Caraballo. [Appellant] asked Ramos to retract his statement and
     say, “that I had [made this statement] because [Appellant] kicked
     my lady out of the house and that I was not thinking straight.

     On November 15, 2019, Ramos contacted the affiant in the theft
     action, Officer Caraballo, and told him that for each of the past
     three days (beginning November 13, the original trial date)
     [Appellant] approached him and tried to intimidate him into
     changing his testimony or not showing for trial. A witness
     corroborated Ramos’ allegation, and Officer Caraballo watched
     video of [Appellant] approaching Ramos inside the clinic and
     talking on November 15th.

     The same day, November 15, 2019, Officer Caraballo filed a
     criminal complaint charging [Appellant] with stalking and
     intimidation of a witness. The Information covers [Appellant’s]
     conduct over a three-day period (November 13-15). [Appellant]
     was arrested November 19, 2019. He waived his preliminary
     hearing on November 25, 2019 and the charges were held for


       On Wednesday, December 4, 2019, the Commonwealth filed a
       notice to consolidate the theft and intimidation of witness dockets.
       Trial in the theft case was scheduled to take place the following
       Monday[, on December 9, 2019.] [Appellant] filed a motion to
       sever the dockets on December 5, 2019. The [c]ourt heard and
       denied [Appellant’s] motion to sever on December 9, 2019, and
       the cases proceeded to a consolidated jury trial.

       Following a two-day jury trial[,] [Appellant] was found guilty on
       all counts, and on December 17, 2019 the court sentenced
       [Appellant] to an aggregate prison term of 21 to 60 months.[2]

Trial Ct. Op., 6/26/20, 1-8 (some formatting altered).

       Appellant filed a post-sentence motion, which the trial court denied.

Appellant subsequently filed a timely notice of appeal and a court-ordered

Pa.R.A.P. 1925(b) statement at each trial court docket number. The trial court

issued a Rule 1925(a) opinion briefly addressing the sufficiency of the

evidence, but noting that Appellant waived his sufficiency claims by failing to

comply with Pa.R.A.P. 1925(b)(4)(ii).

       On appeal, Appellant raises the following issues, which we have

reordered as follows:

       1. Whether the Commonwealth presented sufficient evidence to
          the alleged offenses beyond a reasonable doubt, pertaining to
          the charges of theft by unlawful taking, receiving stolen
          property as well as stalking and intimidation of witnesses.

       2. Whether the trial court abused its discretion when it permitted
          guilty verdicts that were against the weight of the evidence,

2  Specifically, the trial court sentenced Appellant to twelve to thirty-six
months’ incarceration for theft and nine to twenty-four months’ incarceration
for stalking, to be served consecutively. The trial court also imposed a
concurrent term of twelve to twenty-four months’ incarceration for witness
intimidation. All three sentences were within the standard guideline range for
the offenses.


        particularly verdicts that were wholly reliant on circumstantial,
        inconsistent, and vacuous evidence.

     3. Whether the trial court abused its discretion when it permitted
        the Commonwealth to consolidate its cases against Appellant
        for trial, when additional evidence proved substantially
        prejudicial against Appellant and not based on the same
        incident or conspiracy.

     4. Whether the trial court misapplied the law when it permitted
        evidence not relevant to the proceeding—notably testimony
        about the businesses’ elderly and disabled clientele—and that
        evidence was not harmless error.

     5. Whether the trial court entered an illegal sentence when it
        sentenced Appellant on a felony-three theft, and ran another
        offense consecutive, when the evidence supported a lesser-
        graded offense.

     6. Whether the trial court’s sentence of twelve (12) to thirty six
        (36) months[‘] incarceration and order to pay two-thousand
        eighty-two U.S. dollars ($2,782.00) in restitution, which was
        followed by nine (9) months to twenty four (24) months in a
        state correctional institution was manifestly unjust and
        unreasonable, considering Appellant suffers from life-
        threatening immunosuppressant disease and was sole
        caretaker for his long-term girlfriend and elderly mother; as
        well as the court’s use of an improper offense gravity score that
        resulted in a compromise of the sentencing process.

Appellant’s Brief at 19-21 (some formatting altered).

                       Sufficiency of the Evidence

     Initially, we note that Appellant included a sufficiency claim in both of

his Rule 1925(b) statements. In the theft case, Appellant claimed that there

was insufficient evidence because the Commonwealth “failed to show that [he]

unlawfully took or exercised unlawful control over the rental payments with

intent to permanently deprive Queen of Angels Apartment.” See Rule 1925(b)

Statement (Theft Case), 1/24/20, at 2. In the stalking case, Appellant also


claimed that there was insufficient evidence for stalking because (1) the

Commonwealth      failed   to   prove   a   course   of   conduct;   and   (2)   the

Commonwealth did not show intent. See Rule 1925(b) Statement (Stalking

Case), 1/24/20, at 2. Appellant also challenged the sufficiency of the evidence

for witness intimidation, claiming that (1) the Commonwealth failed to

establish intent, (2) the Commonwealth failed to prove that Appellant

intimidated or attempted to intimidate Ramos into providing misleading

information or testimony; and (3) the Commonwealth failed to prove that

Appellant intimidated or attempted to intimidate Ramos into withholding

testimony. See

id. at 2.

      The trial court initially noted that Appellant failed to comply with the

specificity requirements of Rule 1925(b) by challenging the sufficiency of the

evidence “without any reference to specific testimony or other evidence from

trial to support his claim.” See Trial Ct. Op. at 14; Pa.R.A.P. 1925(b)(4)(ii)

(noting that an appellant “shall concisely identify each error that the appellant

intends to assert with sufficient detail to identify the issue to be raised for the

judge,” but “[t]he judge shall not require the citation to authorities or the

record . . .”). Nevertheless, the trial court addressed the sufficiency of the

evidence supporting Appellant’s convictions in its Rule 1925(a) opinion. In

any event, because it appears that Appellant’s Rule 1925(b) statement

adequately preserved his instant claims, we will briefly address them.

                                   Theft Case


       Appellant first challenges the sufficiency of the evidence supporting his

theft convictions.     Appellant contends that “no person witnessed Appellant

take the envelope” containing the rent checks and “[a]t no time was Appellant

apprehended in possession of the rental payments nor did evidence exist

showing he attempted to cash them or benefit to the tune of $11,344.00.”3

Id. at 67.

    Further, Appellant contends that there were equally plausible

explanations for the missing checks, including “(1) Ms. English simply losing

the envelope herself and benefiting from the proceeds herself; (2) someone

else took it; and (3) Mr. Ramos took it and lied for some other reason about

having seen the envelope in Appellant’s possession.”

Id. Appellant argues


“[s]ince the testimony presented by the Commonwealth to establish

Appellant’s guilt is at least equally consistent with Appellant’s innocence, there

is insufficient evidence to sustain [his] conviction[s].”

Id. at 58.

       The Commonwealth responds that “[d]espite Appellant’s assertions,

there was clear evidence that Appellant stole the envelope of checks off Ms.

English’s desk, tucked it into a sweatshirt, and walked out of the building.”

Commonwealth’s Brief at 21.            Specifically, the Commonwealth refers to

testimony from Ms. English, video surveillance footage, and testimony from

Ramos, who stated that Appellant “showed him the envelope” containing the

stolen checks after Appellant and Ramos were back in the car.

Id. at 22.


3 Appellant’s sufficiency claim is based, in part, on the trial court’s valuation
of the theft under 18 Pa.C.S. § 3903(c)(2)(i), which increased the grading of
the offense to a felony. However, because we address that argument below,
we do not discuss it here.


Commonwealth also asserts that the “jury could reasonably infer that

Appellant intended to permanently deprive Queen of Angels of their rent

checks based on the secretive circumstances of their taking.”

Id. Further,

the Commonwealth

adds that “there is simply no evidence to support any

inference that Appellant would have returned them.”

Id. Therefore, the


asserts that “even before considering the intimidation as

consciousness of guilt, or the inconsistencies in Appellant’s own testimony

about the events at the Queen of Angels, [the evidence] is more than sufficient

for a jury to convict Appellant” of theft.


In reviewing a

challenge to the sufficiency of the evidence, our standard

of review is as follows:

      Because a determination of evidentiary sufficiency presents a
      question of law, our standard of review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      [T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the

Commonwealth v. Palmer, 

192 A.3d 85

, 89 (Pa. Super. 2018) (citation



      Here, the trial court concluded that there was sufficient evidence to

support Appellant’s theft convictions based on the testimony from Ramos and

Ms. English. See Trial Ct. Op. at 13.     We agree. Therefore, we affirm on the

basis of the trial court’s conclusion on this issue. We add that, to the extent

Appellant asserts that there were alternative explanations for the missing

rental checks, that claim does not warrant relief. See

id. (reiterating that the

Commonwealth’s case “need not preclude every possibility of innocence”).

                      Stalking/Witness Intimidation Case

      Appellant also challenges the sufficiency of the evidence supporting his

convictions for stalking and witness intimidation. With respect to stalking,

Appellant contends that his conversations with Ramos “individually or

collectively do not rise to the level of causing harassment or causing

substantial emotional distress,” nor was there any testimony from Ramos that

he suffered “great concern or alarm.” Appellant’s Brief at 78. As to witness

intimidation, Appellant contends that there was no testimony that “Appellant

asked [Ramos] to change or withhold testimony in this case.”

Id. at 80.

Therefore, Appellant concludes that the evidence was insufficient to establish

his convictions for either offense.


Here, following our

review of the record, the parties’ briefs, and the well-

reasoned conclusion of the trial court, we affirm on the basis of the trial court’s

analysis of this issue. See Trial Ct. Op. at 13 (noting that Ramos testified that

he was in fear of Appellant, who approached him multiple times and attempted


to prevent him from participating in the Commonwealth’s case). Therefore,

Appellant is not entitled to relief on this claim.

                            Weight of the Evidence

      Appellant also argues that his convictions were against the weight of the


      With respect to the theft convictions, Appellant asserts:

      There are numerous inconsistencies with the different versions of
      events as told by Ms. English, Mr. Ramos, and Det. Caraballo. Ms.
      English provided additional details not supported by Det.
      Caraballo’s testimony or Mr. Ramos’s. Mr. Ramos’s testimony also
      is not supported by the testimony of other Commonwealth
      witnesses with respect to material details. Notably, Mr. Ramos’s
      testimony is the least credible of all the Commonwealth’s
      witnesses, and he’s directly contradicted by Appellant’s version of
      events and insistent denial of taking anything from Queen of

Appellant’s Brief at 88.    As to stalking and witness intimidation, Appellant

argues that “Ramos’s allegations were not corroborated by any testimony or

additional    evidence.     His    credibility    throughout    the   proceeding   was

contradicted by Commonwealth and Appellants’ witnesses.”

Id. at 89.

Therefore, Appellant concludes that “[t]he testimony presented by Mr. Ramos

and Ms. English should so offend this Court’s sensibilities that it should reverse

and remand for a new trial.”


The Commonwealth responds

that the trial court properly denied

Appellant’s challenge to the weight of the evidence, as it was the jury’s

prerogative    to   weigh    the    credibility    of   the    witnesses’   testimony.

                                         - 10 -

Commonwealth’s Brief at 35.        Therefore, the Commonwealth argues that

Appellant is not entitled to relief.


“The weight of

the evidence is exclusively for the finder of fact, who is

free to believe all, none or some the evidence and to determine the credibility

of the witnesses.”    Commonwealth v. Roane, 

204 A.3d 998

, 1001 (Pa.

Super. 2019) (citation omitted).

      Further, we have explained that

      [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. Rather, the role of
      the trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.
      On appeal, our purview is extremely limited and is confined to
      whether the trial court abused its discretion in finding that the jury
      verdict did not shock its conscience. Thus, appellate review of a
      weight claim consists of a review of the trial court’s exercise of
      discretion, not a review of the underlying question of whether the
      verdict is against the weight of the evidence.

Commonwealth v. Gonzalez, 

109 A.3d 711

, 723 (Pa. Super. 2015)

(quotation marks and citations omitted).

      Finally, we note that when a weight claim “is predicated on the credibility

of trial testimony, our review of the trial court’s decision is extremely limited.

Generally, unless the evidence is so unreliable and/or contradictory as to make

any verdict based thereon pure conjecture, these types of claims are not

cognizable on appellate review.” Commonwealth v. Gibbs, 

981 A.2d 274


282 (Pa. Super. 2009) (citation omitted).

                                      - 11 -

      Here, Appellant filed a post-sentence motion preserving his challenge to

the weight of the evidence, which the trial court rejected. In it’s Rule 1925(a)

opinion, the trial court noted that “[t]he jury obviously believed the

Commonwealth’s witnesses, and the verdicts are not so contrary to the

evidence as to shock one’s sense of justice.” See Trial Ct. Op. at 15.

      Our review of the record confirms that, other than challenging the

credibility of the witnesses based on alleged “inconsistencies” in their trial

testimony, Appellant did not specify how the witness testimony was so vague

or tenuous that the verdict shocks one’s sense of justice or the conscience of

the court. As noted by the trial court, the jury was free to assess the credibility

of the Commonwealth’s witnesses in rendering its verdict, and we will not

disturb that credibility determination on appeal.    See 

Gonzalez, 109 A.3d at


; see also 

Gibbs, 981 A.2d at 282

. Therefore, we discern no abuse of

discretion by the trial court in denying Appellant’s claim. See 

Gonzalez, 109

A.3d at 723

. Further, to the extent Appellant invites this Court to re-weigh

the evidence presented at trial, that is not the role of our appellate review.


Gibbs, 981 A.2d at 282

. Accordingly, Appellant is not entitled to relief.

                                Motion to Sever

      Appellant next argues that the trial court erred in denying his motion to

sever the stalking and witness intimidation charges from the original charges

of theft and RSP. Appellant’s Brief at 49. Specifically, Appellant claims that

the evidence of the stalking and witness intimidation charges would not have

been not admissible in a separate trial for the theft charges, as “the evidence

                                      - 12 -

of stalking/intimidation was so far removed in time from the theft offense that

it failed to show state of mind or intent of [A]ppellant at the commission of

the crime being tried.”

Id. at 50.

Appellant contends that “[w]ith a nearly

11-month gap, the [trial c]ourt and jurors are left confounded or even worse

left speculating as to Appellant’s state of mind at the time of the alleged theft.”

Id. Further, Appellant contends

that the cases had different victims, as the

theft case involved Queen of Angels, a housing complex, while the

stalking/intimidation case involved Ramos, and that “[t]he two cases also do

not share any issues of law or similar facts.”

Id. Appellant also claims


“[a]s a result of this consolidation, the jury heard additional evidence of

Appellant’s bad acts and found him guilty on all counts” and therefore suffered

undue prejudice.

Id. at 50-51.

      The Commonwealth responds that the trial court properly denied

Appellant’s motion to sever, as “[t]he two incidents were easily distinguishable

by the jury, and the evidence presented was not so prejudicial that it was

likely to result in a guilty verdict based on something other than proper

consideration of the evidence.”         Commonwealth’s Brief at 39.            The

Commonwealth further asserts that the evidence of each offense would have

been admissible at the trial on the other offenses and that, had the trial court

granted the severance motion, “each trial would have ended up looking

remarkably similar, as the same incidents would have been talked about in

both trials.”

Id. Finally, with respect

to prejudice, the Commonwealth asserts

that “although evidence of the fact that [Appellant] attempted to intimidate a

                                      - 13 -

witness against him into changing his story or not showing at all is ‘bad’ for

Appellant, there is no prejudice of the type necessary” to demonstrate that

the trial court abused its discretion.


“Joinder and severance

      of    separate    indictments   for   trial   is   a

discretionary function of the trial court; consequently, the trial court’s decision

is subject to review for abuse of that discretion.”             Commonwealth v.


10 A.3d 1251

, 1255 (Pa. Super. 2010). “The critical consideration

is whether the appellant was prejudiced by the trial court’s decision not to

sever.   The appellant bears the burden of establishing such prejudice.”

Commonwealth v. Dozzo, 

991 A.2d 898

, 901 (Pa. Super. 2010) (citation

omitted and some formatting altered).

         Where the defendant moves to sever offenses not based on
         the same act or transaction . . . the court must . . .
         determine: [1] whether the evidence of each of the offenses
         would be admissible in a separate trial for the other; [2]
         whether such evidence is capable of separation by the jury
         so as to avoid danger of confusion; and, if the answers to
         these inquiries are in the affirmative, [3] whether the
         defendant will be unduly prejudiced by the consolidation of

                                   *          *      *

      “Evidence of crimes other than the one in question is not
      admissible solely to show the defendant’s bad character or
      propensity to commit crime.” See Pa.R.E. 404(b)(1) . . . .

         [E]vidence of other crimes is admissible to demonstrate (1)
         motive; (2) intent; (3) absence of mistake or accident; (4)
         a common scheme, plan or design embracing the
         commission of two or more crimes so related to each other
         that proof of one tends to prove the others; or (5) the

                                            - 14 -

         identity of the person charged with the commission of the
         crime on trial. Additionally, evidence of other crimes may
         be admitted where such evidence is part of the history of
         the case and forms part of the natural development of the

Brookins, 10 A.3d at 1256

(some citations omitted).

      Here, at the pretrial hearing, the trial court explained its reasons for

denying Appellant’s motion to sever as follows:

      Under the law, there is no doubt that [the evidence in each case]
      would be admissible during the course of [trial in the] other
      because you have to have testimony that the only reason that
      [Appellant] intimidated this gentleman is because there was a
      pending matter. It seems to me that 12 reasonable people could
      discern one case from the other, so I don’t really think that it
      would be so complicated that it would confuse the jury. I mean,
      [Appellant is] charged with telling someone not to testify in [the
      theft] case, although it is months and months later. . . . And I also
      don’t think that he would be prejudiced by this because it’s going
      to come out in the trial anyway.

N.T. Trial, 12/9/19, at 10.

      Based on our review of the record, we discern no abuse of discretion by

the trial court. See 

Brookins, 10 A.3d at 1255-56


Dozzo, 991 A.2d at 901


As discussed previously, the stalking and witness intimidation charges arose

from Appellant’s efforts to prevent Ramos from testifying in the theft case. As

such, the evidence in each case would be admissible at a separate trial for the

other. See 

Brookins, 10 A.3d at 1255-56

. Further, given that the matters

are easily separable by the jury, there was no danger of confusion. See


Finally, Appellant failed

to demonstrate the potential for undue prejudice

based on the joint trial. See

id. Therefore, the trial

court properly denied

                                     - 15 -

Appellant’s motion to sever.     See Pa.R.Crim.P. 582(A)(2), 583; see also

Brookins, 10 A.3d at 1255-56

. Accordingly, Appellant is not entitled to relief.

                          Ms. English’s Testimony

      Appellant next claims that the trial court erred in allowing Ms. English

to testify about the type of housing offered at Queen of Angels, as it was “not

only irrelevant to the underlying allegations but also extremely prejudicial.”

Appellant’s Brief at 32.     Specifically, Appellant refers to Ms. English’s

testimony that the property caters to “elders that are 62 and above who meet

the criteria for low income housing, which means they qualify for rent subsidy

. . . and that certain complexes are designed predominantly for seniors and

younger adults with handicapped disabilities.”

Id. at 54-55.

Appellant argues

that the “details elicited by the Commonwealth suggested to the jury that

Appellant was someone who preyed upon the elderly and disabled, who are

some of the most vulnerable members of the community.”

Id. at 55.

Appellant concludes that “the prejudicial impact of the irrelevant testimony

was fatally prejudicial.”

Id. at 56.

      The Commonwealth responds that Ms. English’s testimony “was relevant

because it explains the nature of her interaction with Appellant and it tells the

complete story of the theft.”    Commonwealth’s Brief at 41.        Further, the

Commonwealth contends that although the residents are “vulnerable

members of the community, there is no requirement that the judge sanitize

unpleasant facts for the jury.”

Id. In any event,

the Commonwealth asserts

that any potential error in the trial court’s ruling was harmless, as there was

                                       - 16 -

overwhelming evidence to establish Appellant’s guilt for the charged offenses.

Id. at 42.

Therefore, even if the trial court erred in allowing Ms. English to

testify about the type of residents at Queen of Angels, the Commonwealth

concludes that “it could not possibly have contributed to the verdict.”


In reviewing a

challenge to the admissibility of evidence, our standard

of review is as follows:

      Questions concerning the admissibility of evidence are within the
      sound discretion of the trial court and we will not reverse a trial
      court’s decision concerning admissibility of evidence absent an
      abuse of the trial court’s 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. If in reaching a
      conclusion the trial court overrides or misapplies the law,
      discretion is then abused and it is the duty of the appellate court
      to correct the error.

Commonwealth v. Belknap, 

105 A.3d 7

, 9-10 (Pa. Super. 2014) (citations

omitted and formatting altered).

      “Relevance      is   the   threshold     for   admissibility   of   evidence.”

Commonwealth v. Tyson, 

119 A.3d 353

, 358 (Pa. Super. 2015) (en banc)

(citation omitted).

      Evidence is relevant if it logically tends to establish a material fact
      in the case, tends to make a fact at issue more or less probable,
      or tends to support a reasonable inference or proposition
      regarding a material fact. Relevant evidence may nevertheless be
      excluded if its probative value is outweighed by the danger of
      unfair prejudice, confusion of the issues, or misleading the jury,
      or by considerations of undue delay, waste of time, or needless
      presentation of cumulative evidence.

                                      - 17 -

Commonwealth v. Danzey, 

210 A.3d 333

, 342 (Pa. Super. 2019) (citation

and quotation marks omitted), appeal denied, 

219 A.3d 597

(Pa. 2019).

      However, our Supreme Court has emphasized that “[e]vidence will not

be   prohibited   merely   because    it   is   harmful   to   the    defendant.”

Commonwealth v. Dillon, 

925 A.2d 131

, 138–39 (Pa. 2007). “[E]xclusion

is limited to evidence so prejudicial that it would inflame the jury to make a

decision based upon something other than the legal propositions relevant to

the case.” Commonwealth v. Page, 

965 A.2d 1212

, 1220 (Pa. Super. 2009)

(citation omitted).

      Here, the trial court addressed Appellant’s claim as follows:

      Residency at Queen of Angels is generally restricted to very low-
      income persons who are at least 62 years old or have a qualifying
      disability. The Commonwealth alleged that [Appellant] took an
      envelope containing thirty-eight uncashed rental checks from on
      top of [Ms.] English’s desk. English is the Queen of Angels
      Apartment Manager, and she maintains an office on the first floor.

      English testified that she was entering the monthly payments into
      the apartment’s records when [Appellant] entered her office
      without knocking.       English and [Appellant] engaged in a
      conversation about whether he qualified for housing at Queen of
      Angels. [Appellant] told English that he was under 62 but had a
      disability.    [Appellant] could not provide enough financial
      information to determine whether he qualified, so English made
      him a copy of a guide that, “detail[s] low income housing options.”
      The Commonwealth argued to the jury that [Appellant] took the
      envelope while English was across the office copying the housing
      guide, with her back to the [Appellant] and her desk.

      The entire discussion between the two, and the reason English left
      her desk and turned her back to [Appellant], centered on figuring
      out whether [Appellant] was a qualifying “low-income” person.
      The fact that Queen of Angels provides housing for low-income
      persons tends to make English’s testimony about copying a low

                                     - 18 -

      income housing guide more probable than it would be without
      knowing that.

Trial Ct. Op. at 8-9.

      Based on our review of the record, we discern no abuse of discretion or

error of law in the trial court’s ruling. See 

Belknap, 105 A.3d at 9-10

. As

noted by the trial court, Ms. English’s testimony was relevant to establish the

facts surrounding the theft. Further, there is no indication that Ms. English’s

testimony was “so prejudicial that it would inflame the jury to make a decision

based upon something other than the legal propositions relevant to the case.”


Page, 965 A.2d at 1220

. Therefore, Appellant is not entitled to relief.

                           Grading of Theft Offense

      Appellant next claims that the trial court erred in grading the theft

conviction as a third-degree felony, rather than a third-degree misdemeanor.

Appellant’s Brief at 83.    Appellant contends that although the checks and

money orders had a face value of $11,344, they were made out to Queen’s

Angels and, therefore, they “had no value to him.”

Id. at 33.


continues that, because he did not have the ability to cash the checks, they

were worth “no more than the paper on which they were printed[,] and the

Commonwealth did not introduce any evidence to the contrary.”

Id. Further,

although Appellant

acknowledges that the jury found specifically found that

the value of the stolen checks exceeded $2,000, he asserts that “there was

legally insufficient evidence, specifically no evidence at all, to support the

jury’s finding that the purloined rental payments were worth anything at all,

                                    - 19 -

let alone [more than] $2,000.”

Id. at 62-63.

As such, Appellant concludes

that the theft offense should have been graded as a misdemeanor.

Id. at 34.

      The Commonwealth responds that it presented sufficient evidence to

establish the felony grading based on testimony from Ms. English and an

exhibit that listed the value of each check.       Commonwealth’s Brief at 24.

Based on that evidence, the Commonwealth asserts that “it was legally

appropriate for the jury to use the amount written on the checks and money

orders to find the value of the theft.”

Id. at 23

(relying on 18 Pa.C.S. § 3903

(c)(2)(i)). Further, the Commonwealth adds that Appellant’s ability to cash

the checks, “and thereby receive the cash value of the various instruments, is

not an element of the crime.”

Id. at 24.

     Therefore, the Commonwealth

argues that Appellant is not entitled to relief.

      An error in the grading of an offense implicates the legality of a

sentence.   Commonwealth v. Sanchez, 

848 A.2d 977

, 986 (Pa. Super.

2004). “[T]he determination as to whether the trial court imposed an illegal

sentence is a question of law; our standard of review in cases dealing with

questions of law is plenary.” Commonwealth v. Williams, 

868 A.2d 529


532 (Pa. Super. 2005) (citation omitted).

      Section 3903 of the Crimes Code governs the grading of theft offenses

and provides, in relevant part, as follows:

      (a.1) Felony of the third degree.—Except as provided in
      subsection (a) or (a.2), theft constitutes a felony of the third
      degree if the amount involved exceeds $2,000, or if the property
      stolen is an automobile, airplane, motorcycle, motorboat or other
      motor-propelled vehicle, or in the case of theft by receiving stolen

                                      - 20 -

      property, if the receiver is in the business of buying or selling
      stolen property.

                                *         *       *

      (b) Other grades.—Theft not within subsection (a), (a.1) or
      (a.2), constitutes a misdemeanor of the first degree, except that
      if the property was not taken from the person or by threat, or in
      breach of fiduciary obligation, and:

         (1) the amount involved was $50 or more but less than $200
         the offense constitutes a misdemeanor of the second
         degree; or

         (2) the amount involved was less than $50 the offense
         constitutes a misdemeanor of the third degree.

      (c) Valuation.—The amount involved in a theft shall be
      ascertained as follows:

                           *        *         *

         (2) Whether or not they have been issued or delivered,
         certain written instruments, not including those having a
         readily ascertainable market value such as some public and
         corporate bonds and securities, shall be evaluated as

            (i) The value of an instrument constituting an evidence
            of debt, such as a check, draft or promissory note, shall
            be deemed the amount due or collectible thereon or
            thereby, such figure ordinarily being the face amount of
            the indebtedness less any portion thereof which has been

                           *        *         *

         (3) When the value of property cannot be satisfactorily
         ascertained pursuant to the standards set forth in
         paragraphs (1) and (2) of this subsection its value shall be
         deemed to be an amount less than $50.

18 Pa.C.S. § 3903(a.1), (b), (c).

                                        - 21 -

      Further, this Court has held that in order to increase the grading of a

theft offense, the Commonwealth must “present the jury with the essential

questions necessary” from which they can determine the dollar amount of the

theft beyond a reasonable doubt. Commonwealth v. Nellom, 

234 A.3d 695


704 (Pa. Super. 2020) (discussing Apprendi v. New Jersey, 

530 U.S. 466



      Here, the trial court addressed Appellant’s claim as follows:

      The Commonwealth presented evidence that the sum of the thirty-
      eight rent payments was $11,334. The jury made a specific
      finding regarding the amount of the stolen property, and it
      indicated on the verdict sheet that it “found beyond a reasonable
      doubt” that the amount was $11,334. [Appellant’s] conviction for
      [RSP] merged with theft by unlawful taking at sentencing and was

      [Appellant’s] focus upon the fact that the checks and money
      orders had not yet been cashed when he took them from English’s
      desk is misplaced. . . . [Appellant’s] suggestion that an uncashed
      check or money order is of no value cannot be squared with the
      language of subsection 3903(c)(2), which specifically addresses
      checks and other written instruments . . . .

      Thus, the jury could properly find that the value of the stolen
      checks and money orders was $11,334, and the court did not err
      in grading [Appellant’s] theft by unlawful taking as a felony of the
      third degree at sentencing.

Trial Ct. Op. at 10-11.

      Based on our review of the record, we agree with the trial court that

there was sufficient evidence to establish that the value of the stolen property

exceeded $2,000 for purposes of grading Appellant’s theft conviction as a

third-degree felony. See 

Nellom, 234 A.3d at 695

. Further, the fact that

                                     - 22 -

Appellant did not attempt to cash the checks does not affect the valuation of

the theft. See 18 Pa.C.S. § 3903(c)(2)(i); see also Commonwealth v. Lee,

434 A.2d 1182

, 1184 (Pa. 1981) (rejecting an appellant’s claim that “a forged

check is not a legal claim to money and, hence, of no value” and concluding

that the “argument cannot be squared with the language of the statute

controlling the grading of thefts, which specifically addresses checks and other

written instruments”). Therefore, Appellant’s claim is meritless.

                       Discretionary Aspects of Sentence

       In his final claim, Appellant argues that the trial court imposed an

excessive sentence and failed to consider mitigating factors. Appellant’s Brief

at 92. Specifically, Appellant contends that the trial court failed to “adequately

consider Appellant’s mental health, dire health concerns, current family

situation, or future plans.”

Id. at 39.

Further, he asserts that “he should have

been given a chance at electronic monitoring or in the alternative then

confinement and supervision at a county level.”

Id. Under these


Appellant asks this Court to vacate his sentence and remand

for resentencing.4


The Commonwealth responds

that the trial court properly considered

the relevant sentencing factors when fashioning Appellant’s sentence.


4  Appellant also reiterates his earlier claim that the trial court imposed an
illegal sentence because there was insufficient evidence to establish that his
theft conviction was a third-degree felony.

Id. However, as noted

Appellant is not entitled to relief on this issue.

                                          - 23 -

Commonwealth’s Brief at 50.         In addition to reviewing a PSI report, the

Commonwealth       notes    that   counsel      provided   extensive    background

information about Appellant and also presented testimony from Appellant’s


Id. at 51.

The Commonwealth contends that “[g]iven the extensive

information provided from multiple sources describing the factors Appellant

feels justify mitigation . . . there is no legitimate basis to believe that the trial

court did not weigh those factors[.]”

Id. at 52.

Therefore, the Commonwealth

argues that “the trial court did not manifestly abuse its discretion in imposing

standard range sentences.”

Id. at 52-53.

      “[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Derry, 

150 A.3d 987


991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits

of such claims, we must determine:

         (1) whether the appeal is timely; (2) whether [the
         a]ppellant preserved his issues; (3) whether [the
         a]ppellant’s brief includes a concise statement of the
         reasons relied upon for allowance of appeal with respect to
         the discretionary aspects of sentence; and (4) whether the
         concise statement raises a substantial question that the
         sentence is inappropriate under the [S]entencing [C]ode.

Commonwealth v. Corley, 

31 A.3d 293

, 296 (Pa. Super. 2011) (citation


      “To preserve an attack on the discretionary aspects of sentence, an

appellant must raise his issues at sentencing or in a post-sentence motion.

Issues not presented to the sentencing court are waived and cannot be raised

                                       - 24 -

for the first time on appeal.” Commonwealth v. Malovich, 

903 A.2d 1247


1251 (Pa. Super. 2006) (citations omitted).

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Battles, 

169 A.3d


, 1090 (Pa. Super. 2017) (citation omitted).       “A substantial question

exists only when the appellant advances a colorable argument that the

sentencing judge’s actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.” Commonwealth v. Grays, 

167 A.3d


, 816 (Pa. Super. 2017) (citation omitted).

      Here, Appellant filed a timely notice of appeal, preserved his issue in a

post-sentence motion, and included a concise statement of the reasons relied

upon for allowance of appeal in his brief.     See 

Corley, 31 A.3d at 296


Malovich, 903 A.2d at 1251

. Further, Appellant’s claim raises a substantial

question for our review. See Commonwealth v. Caldwell, 

117 A.3d 763


770 (Pa. Super. 2015) (holding that an excessive sentence claim, together

with an assertion that the court failed to consider mitigating factors, presents

a substantial question). Therefore, we will address Appellant’s claim.

      Our well-settled standard of review is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its

                                     - 25 -

      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Raven, 

97 A.3d 1244

, 1253 (Pa. Super. 2014) (citation


      “A sentencing court need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender.”

Commonwealth v. Crump, 

995 A.2d 1280

, 1283 (Pa. Super. 2010) (citation

omitted).   Further, where a PSI exists, “we shall . . . presume that the

sentencing judge was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Conte, 

198 A.3d 1169

, 1177 (Pa. Super. 2018)

(citation omitted), appeal denied, 

206 A.3d 1029

(Pa. 2019).

      Where a sentence is imposed within the guidelines, we may only reverse

the trial court if we find that the circumstances of the case rendered the

application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).

Our review of the reasonableness is based upon the factors contained in 42

Pa.C.S. § 9781(d), and the trial court’s consideration of the general sentencing

standards contained in 42 Pa.C.S. § 9721(b).         See Commonwealth v.


72 A.3d 652

, 663 (Pa. Super. 2013). However, “[w]e cannot re-weigh

the sentencing factors and impose our judgment in the place of the sentencing

court.” Commonwealth v. Macias, 

968 A.2d 773

, 778 (Pa. Super. 2009)

                                     - 26 -

(citation omitted). Further, it is well settled that “Pennsylvania law affords

the sentencing court discretion to impose its sentence concurrently or

consecutively to other sentences being imposed at the same time or to

sentences already imposed.” Commonwealth v. Austin, 

66 A.3d 798

, 808

(Pa. Super. 2013) (citation omitted).

      Here, at sentencing, the trial court indicated that it had reviewed

Appellant’s PSI report “several times” prior to the hearing. N.T. Sentencing

Hr’g, 12/17/19, at 7.     The trial court also heard additional background

information about Appellant from counsel, as well as testimony from

Appellant’s girlfriend. See

id. Nonetheless, the trial

court noted that it was

particularly concerned with Appellant’s attempts to intimidate Ramos and

prevent him from testifying at trial.

Id. at 15-16.

Under these circumstances,

where the record reflects the trial court’s due consideration of the appropriate

sentencing factors, Appellant is not entitled to relief. See 

Macias, 968 A.2d

at 778


      Judgment of sentence affirmed.

      Judge Strassburger did not participate in the consideration or decision

of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Date: 03/26/2021

                                     - 27 -

Add comment

By Tucker

Recent Posts

Recent Comments