January 24, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
DANIEL A. AIELLO Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
DANIEL A. AIELLO Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
DANIEL A. AIELLO Appellant
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,
BEFORE: BENDER, P.J.E., LAZARUS, J., and 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. 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.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 burglaries or conspiracies in Elk County to  Appellant that he was found guilty for?
2. Was  Appellant prejudiced such that he suffered a clear injustice as a result of the [trial c]ourt having granted the joinder of three different County's cases, with each County having several counts charged against  Appellant, such that the evidence of the additional crimes infer criminal disposition led to a finding of guilt on the basis of this inference or if the jury may have cumulated evidence of the various crimes to find guilt, when it would not have so found had it considered the evidence of each offense separately?
Appellant's Brief at 5-6.
We begin by addressing Appellant's claim that there was insufficient evidence to sustain his convictions with respect to docket numbers CP-24-CR-84-2011 (Elk County) and CP-24-CR-206-2011 (Cameron County). Id. at 17-21. Specifically, the crux of Appellant's sufficiency claim is that the Commonwealth failed to establish he "entered the camps" he was alleged to have burglarized in Elk and Cameron Counties, or "committed some act in furtherance of that goal." Id. at 20. For the following reasons, we disagree.
When reviewing a sufficiency of the evidence claim, our standard of review is well settled. We must "review the evidence admitted during the trial along with any reasonable inferences that may be drawn from that evidence in the light most favorable to the Commonwealth." Commonwealth v. Crawford, 24 A.3d 396, 404 (Pa.Super. 2011) (citation omitted). "Any doubts concerning an appellant's guilt [are] to be resolved by the trier of fact unless the evidence was so weak and inconclusive that no probability of fact could be drawn therefrom." Commonwealth v. West, 937 A.2d 516, 523 (Pa.Super. 2007), appeal denied, 947 A.2d 737 (Pa. 2008). Moreover, "[t]he Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Commonwealth v. Perez, 931 A.2d 703, 707 (Pa.Super. 2007) (citations omitted). "[T]he trier of fact, in passing upon the credibility of the witnesses, is free to believe all, part, or none of the evidence." Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009) (citation and internal quotation marks omitted), cert. denied, Rivera v. Pennsylvania, 560 U.S. 909 (2010).
A person will be found guilty of the crime of burglary "if, with the intent to commit a crime therein, the person … enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense no person is present[.]" 18 Pa.C.S.A. § 3502(a)(2). A person will be found guilty of theft by unlawful taking or disposition "if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof." 18 Pa.C.S.A. § 3921(a).
Lastly, we note that "to sustain a conviction for criminal conspiracy, the Commonwealth must establish that the defendant (1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent and (3) an overt act was done in furtherance of the conspiracy." Commonwealth v. McCall, 911 A.2d 992, 996 (Pa.Super. 2006); see also 18 Pa.C.S.A. § 903(a).
The essence of a criminal conspiracy is the common understanding that a particular criminal objective is to be accomplished. Mere association with the perpetrators, mere presence at the scene, or mere knowledge of the crime is insufficient. Rather, the Commonwealth must prove that the defendant shared the criminal intent, i.e., that the [defendant] was an active participant in the criminal enterprise and that he had knowledge of the conspiratorial agreement. The defendant does not need to commit the overt act; a co-conspirator may commit the overt act.
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002) (internal citations and quotation marks omitted), appeal denied, 805 A.2d 521 (Pa. 2002).
Viewing the evidence in the light most favorable to the Commonwealth, as the verdict winner, we conclude there was overwhelming evidence to support Appellant's convictions for burglary, criminal conspiracy (to commit burglary), and theft by unlawful taking or disposition in Elk and Cameron Counties. The evidence adduced at trial establishes that the Commonwealth presented the testimony of 23 different individuals who indicated that their camps in Elk, Cameron, and/or McKean Counties had been burglarized between late 2010 to early 2011. N.T., 7/30/12, at 23-143. Additionally, stipulations were introduced from 73 camp owners who did not appear at trial indicating the same. Id. at 143-149.
The record further reveals that Appellant acknowledged during an interview with Pennsylvania State Trooper Matthew Higgins that he had entered two camps in Elk County, during Christmas 2010 without permission. N.T., 7/31/12, at 133. Additionally, Commonwealth witness Paul Kimes, Jr., who was involved in a relationship with Appellant's mother at the time, testified that Appellant admitted to him to burglarizing camps in the Elk County area, and that Appellant had given him a John Deere collectible license plate and two handheld portable radios. N.T., 7/30/12, at 150, 155-158. The John Deere license plate in question was later identified to have been stolen from the camp of Robert Simpson, Jr. in Cameron County. N.T., 7/31/12, at 85. Likewise, the portable radios were subsequently identified as having been reported stolen from Robert Young, Jr. during a burglary of his camp in Cameron County. Id. at 91.
Moreover, Appellant's brother and co-defendant, Mark Aiello, testified that he voluntarily accompanied Trooper Higgins in his vehicle and pointed out various camp locations in Elk, Cameron, and McKean Counties that he and Appellant burglarized between 2010 and 2011. Id. at 15-28. Trooper Higgins echoed this testimony, and stated he made contemporaneous notes as Mark Aiello was pointing out said camps and compared them to the incident reports taken from the victims. Id. at 110, 113-114, 123.
Lastly, Mark Aiello also provided similar information to Troopers with regards to McKean and Cameron Counties. Specifically, Pennsylvania State Police Corporal Tim Lencer testified that he accompanied Mark Aiello during a trip to McKean County, in which Mark Aiello pointed out various camp locations that he and [Appellant] had burglarized. Id. at 74-79. Likewise, State Police Trooper Bryan Keith Goodrow testified with regards to information in a report filed by Trooper Barnes, wherein Mark Aiello identified a number of various camps he and Appellant burglarized in Cameron County. Id. at 85-87.
Based on the foregoing, we conclude that Appellant's claim there was insufficient evidence to sustain his convictions for burglary, criminal conspiracy (to commit burglary), and theft by unlawful taking or disposition must fail.
Appellant next argues, albeit in the alternative, that the verdict was against the weight of the evidence. Appellant's Brief at 21-22. This Court has long recognized that "[a] true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but questions which evidence is to be believed." Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa.Super. 2006) (citation omitted). Where the trial court has ruled on a weight claim, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, "[our] review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim." Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003), cert. denied, Tharp v. Pennsylvania, 541 U.S. 1045 (2004).
In the instant matter, Appellant argues that the jury's verdict was against the weight of the evidence because his co-defendant, Mark Aiello, and the Troopers investigating the respective burglaries were unable to specifically identify each camp that was alleged to have been burglarized in Elk and Cameron Counties. Appellant's Brief at 18-19, 21. Appellant maintains that "to conclude that because the element of a few camps were [identified] out of approximately 68 is good enough … to carry the weight for all the camps charged with, is a serious miscarriage of justice." Id. at 21. For the reasons that follow, we conclude that Appellant's weight claim must fail.
It is well established that this Court is precluded from reweighing the evidence and substituting our credibility determination for that of the fact-finder. See Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted) (stating, "[t]he weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses"), cert. denied, Champney v. Pennsylvania, 542 U.S. 939 (2004). Additionally, "the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding a defendant's guilt unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances." Commonwealth v. Emler, 903 A.2d 1273, 1276 (Pa.Super. 2006).
Instantly, the trial court rejected Appellant's weight claim, concluding that,
while [Mark Aiello] was unable to specifically identify all the camps, he did relate the times and locations consistent with that of the owners of the camps burglarized. … [T]he verdict was amply supported by relevant and competent evidence of adequate weight.
Trial Court Opinion, 1/31/13 at 5. The jury, in turn, found this credible, and elected not to believe Appellant's version of the events. As noted, we are precluded from reweighing the evidence and substituting our judgment for that of the fact-finder. Champney, supra. Accordingly, we decline to disturb these credibility determinations on appeal.
Lastly, Appellant argues that he is entitled to a new trial because he was prejudiced by the trial court's decision to grant the Commonwealth's motion for joinder. Appellant's Brief at 22-24. We disagree.
Our standard of review of a trial court's decision to grant a motion for joinder is well settled.
Whether or not separate indictments should be consolidated for trial is within the sole discretion of the trial court and such discretion will be reversed only for a manifest abuse of discretion or prejudice and clear injustice to the defendant. Consolidation of separate offenses in a single trial is proper if the evidence of each of them would be admissible in a separate trial for the others and is capable of separation by the jury so that there is no danger of confusion. Evidence of distinct crimes is inadmissible solely to demonstrate a defendant's criminal tendencies. Such evidence is admissible, however, to show a common plan, scheme or design embracing commission of multiple crimes, or to establish the identity of the perpetrator, so long as proof of one crime tends to prove the others. This will be true when there are shared similarities in the details of each crime.
Commonwealth v. Andrulewicz, 911 A.2d 162, 168 (Pa.Super. 2006) (citations omitted), appeal denied, 926 A.2d 972 (Pa. 2007).
The Pennsylvania Rules of Criminal Procedure govern joinder and provide, in relevant part, as follows.
Rule 582. Joinder -- Trial of Separate Indictments or Informations
(1) Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.
Additionally, our Supreme Court has held that, "[u]nder Rule 583, the prejudice the defendant suffers due to the joinder must be greater than the general prejudice any defendant suffers when the Commonwealth's evidence links him to a crime." Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa.Super. 2010) (citations omitted), appeal denied, 5 A.3d 818 (Pa. 2010); accord Pa.R.Crim.P. 583.
Instantly, the trial court concluded that Appellant did not suffer undue prejudice as a result of docket numbers CP-24-CR-84-2011, CP-24-CR-206-2011, and CP-24-CR-268-2011 being joined for trial. In support of this decision, the trial court reasoned as follows.
[Appellant] has promoted nothing more in this case but a passing reference that joinder may not have been proper. He has demonstrated no prejudice whatsoever and has not shown any discretionary abuse. On the contrary, consolidation in this case reflects the proper application of discretion. The offenses for which [Appellant] was tried in this case are substantially, if not entirely, similar to the charges in the other two cases. All involved burglaries of camps in remote areas of rural Elk, Cameron, and McKean Counties. The offenses occurred in a relatively short time period of two to three months in late 2010 and early 2011, and the modus operandi was consistent, with [Appellant] and his co-defendant, Mark Kimes Aiello, kicking in doors or using an implement such as a crowbar to force their way into unoccupied camps and removing various and sundry articles of personal property. The charges evidenced a common scheme, plan or design, the common identity of the perpetrators, and common motive and intent, and consolidation was entirely appropriate.
Trial Court Opinion, 1/31/13, at 7-8.
Upon careful review of the evidentiary record, we discern no abuse of discretion on the part of the trial court in granting the Commonwealth's motion for joinder on these grounds. See Andrulewicz, supra. Accordingly, we adopt the aforementioned rationale of the trial court as our own for purposes of this appellate review.
For all the foregoing reasons, we conclude that Appellant is not entitled to relief in the instant appeal. Accordingly, we affirm Appellant's September 24, 2012 judgment of sentence.
Judgment of sentence affirmed.