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[U] Commonwealth v. Aiello

Superior Court of Pennsylvania

January 24, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DANIEL A. AIELLO Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DANIEL A. AIELLO Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DANIEL A. AIELLO Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence September 24, 2012 In the Court of Common Pleas of Elk County Criminal Division at No(s): CP-24-CR-0000084-2011, CP-24-CR-0000206-2011, CP-24-CR-0000268-2011

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM

MUNDY, J.

Appellant, Daniel A. Aiello, appeals from the September 24, 2012 aggregate judgment of sentence of 11 years and three months' to 30 years' imprisonment, with 337 days' credit for time-served, imposed after a jury found him guilty of multiple counts of burglary, criminal conspiracy, and theft by unlawful taking or disposition.[1] After careful review, we affirm the judgment of sentence.

The trial court briefly summarized the relevant facts of this case as follows.

The testimony of the 23 camp owners who appeared in court established that in late 2010 or early 2011 their camps were not open to the public, that [Appellant] had no license or privilege to be present in the camps, and that the camps sustained damage and/or items of personalty [sic] were taken from the camps. The stipulations introduced in lieu of the testimony of 73 camp owners who did not appear at trial provided likewise. However, the stipulations regarding camps in Cameron County included a longer time frame from December 2009 to January 2011. While [Appellant's co-defendant and stepbrother, Mark Aiello, ] was unable to specifically identify all the camps, he did relate times and locations consistent with that of the owners of the camps burglarized.

Trial Court Opinion, 1/31/13, at 4-5.

Appellant was subsequently arrested in connection with these incidents, and charged with multiple counts of burglary and related offenses in Elk County (docket number CP-24-CR-84-2011), Cameron County (docket number CP-24-CR-206-2011), and McKean County (docket number CP-24-CR-268-2011). The Cameron and McKean County cases were transferred to the Court of Common Pleas of Elk County on August 3, and September 14, 2011, respectively. On October 28, 2011, the Commonwealth filed a motion to join these three criminal informations for trial, pursuant to Pennsylvania Rule of Criminal Procedure 582. Following a hearing on November 7, 2011, the trial court entered an order granting the Commonwealth's motion for joinder on November 17, 2011.

On July 30, 2012, Appellant proceeded to a jury trial. Following a three-day trial, Appellant was found guilty of multiple counts of burglary, criminal conspiracy, and theft by unlawful taking or disposition. Specifically, at docket number CP-24-CR-84-2011, Appellant was found guilty of 61 counts of burglary, 61 counts of criminal conspiracy (to commit burglary), and 25 counts of theft by unlawful taking or disposition. At docket number CP-24-CR-206-2011, Appellant was found guilty of eight counts each of burglary, criminal conspiracy (to commit burglary), and theft by unlawful taking or disposition. Lastly, at docket number CP-24-CR-268-2011, Appellant was found guilty of 14 counts of burglary and four counts of theft by unlawful taking of disposition. See N.T., 9/24/12, at 2, 28-37.

As noted, on September 24, 2012, the trial court sentenced Appellant to an aggregate term of 11 years and three months' to 30 years' imprisonment, with 337 days' credit for time-served. Id. On October 4, 2012, Appellant filed timely post-sentence motions that sought, inter alia, a judgment of acquittal and/or a new trial on the basis that the trial court erred in granting the Commonwealth's motion for joinder, and that the verdicts were against the weight of the evidence. Following a hearing, the trial court filed an opinion and order on January 31, 2013, denying Appellant's post-sentence motions.

On March 4, 2013, Appellant filed a timely notice of appeal.[2]Thereafter, on March 7, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b), within 21 days. On March 27, 2013, Appellant filed a timely Rule 1925(b) statement. On April 4, 2013, the trial court filed a one-page Rule 1925(a) opinion indicating that Appellant's claims were addressed in its January 31, 2013 opinion, and that it was adopting this rationale for purposes of further review. See Trial Court Opinion, 4/4/13, at ¶ 2.

On appeal, Appellant raises the following issues for our review.

1. Is Appellant entitled to a judgment of acquittal or a new trial relative to the Cameron and Elk County cases when the evidence as to every element charged regarding the camp burglaries is so insufficient or lacking that no probability of fact may be drawn or where certain evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred when:
a. The State Trooper testifying for Cameron County camp burglaries testified that the co-defendant could not identify all the camps [] Appellant was charged with in Cameron County, and moreover, when the record is devoid of any evidence as what Cameron County camps were identified by the co-defendant such that there being no evidence connecting [] Appellant to the specific camps [] Appellant was found guilty of burglary and conspiracy relative thereto?
b. The State Trooper who testified for the Elk County burglaries never actually answered the question as to whether he prepared his complaint with the list of complaining camp owners as a result of the camps identified by the co-defendant thereby there being no evidence to connect each of the camp ...

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