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[U] Commonwealth v. Hackley

Superior Court of Pennsylvania

March 10, 2014



Appeal from the Judgment of Sentence Entered July 12, 2012, In the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. CP-51-CR-0008012-2011; CP-51-CR-0008013-2011; CP-51-CR-0008994-2011; CP-51-CR-0009931-2011.




Appellant, Charles Hackley, appeals from the judgment of sentence entered on July 12, 2012, in the Philadelphia County Court of Common Pleas. We affirm.

The relevant factual history is set forth below:
This case involved four incidents that occurred on the campus of Drexel University in Philadelphia. The first incident took place on March 9, 2011, at approximately 11:55 a.m. in Randall Hall, a Drexel University building located at 3117-23 Chestnut Street. (N.T. 4/30/12, pp. 13-14). Henry Disston, the director of a high school outreach program, was in his office in Randall Hall talking on the telephone when he heard a noise. Mr. Disston looked over and saw a black male grabbing his computer bag. (N.T. 4/30/12, p. 14). When Mr. Disston yelled "Hey", the male fled empty-handed. (N.T. 4/30/12, p. 15). Mr. Disston chased the male down the hallway across to the next building but lost sight of him. When Mr. Disston returned to his office, he noticed that his computer, which he normally kept open, had been closed down and disconnected from its power source. (N.T. 4/30/12, pp. 15-16). Police dusted the computer for fingerprints in the area where the perpetrator would have touched the computer in order to close it. (N.T. 4/30/12, p. 18). One of the fingerprints found on the computer belonged to Appellant. (N.T. 5/4/12, pp. 60-65).
On May 12, 201[1] at approximately 1:00 p.m., Drexel student Ian Woskey was lying in bed when someone came into his apartment in the University Crossings Building located at 3175 JFK Boulevard. (N.T. 4/30/12, p. 28). The door to the apartment was unlocked. The apartment building houses students at Drexel University. When Mr. Woskey asked if anyone was there, a male who looked like Appellant2 said he was looking for someone named Aaron. Mr. Woskey told him he had the wrong apartment. (N.T. 4/30/12, pp. 30-31). Mr. Woskey did not see the intruder leave but heard the door close. (N.T. 4/30/12, pp. 30-31). Shortly thereafter he noticed a number of items missing from the apartment including two laptops, two X Box games, an X Box controller and a PSP. (N.T. 4/30/12, p. 35). The two laptops taken from the living room belonged to his roommate, Robert Speck. (N.T. 4/30/12, pp. 63-65). All of Mr. Woskey's property[,] with the exception of a memory stick and the two laptop computers[,] was recovered by police at Appellant's residence. N.T. 4/30/12, pp. 41, 65).
2 Mr. Woskey attended a lineup where he identified someone other than appellant, but did identify appellant at the subsequent preliminary hearing. N.T. 4-30-12, pp. 42, 44.
On May 17, 2011, at around noon, Drexel roommates James Miller and Matthew Schwalm left their apartment in the University Crossings Building to get some lunch. (N.T. 4/30/12, pp. 96-97). They did not lock the door when they left because another roommate was asleep in his bedroom. When Mr. Miller and Mr. Schwalm returned approximately twenty minutes later, they noticed two laptop computers, an external hard drive, an iPod Touch, an X Box game, and various other electronics were missing. (N.T. 4/30/12, pp. 98-100, 108-111). Fingerprints were lifted from the area where the items had been taken. One of those prints belonged to Appellant. (N.T. 5/4/12, pp. 18-19, 66-68).
At approximately 12:28 p.m. on May 17, 2011, Drexel student Rhaeana Gamber was in the bathroom of her residence in the University Crossings Building when she heard someone in the apartment. (N.T. 4/30/12, pp. 85-86). Ms. Gamber had left the door unlocked when she came home. When she emerged from the bathroom Ms. Gamber observed the door wide open and items knocked over. (N.T. 4/30/12, pp. 87-88). Her laptop computer which had been sitting on her bed was gone. The laptop was later recovered by police in Appellant's residence and returned to her. (N.T. 4/30/12, pp. 88-91). When Amy Ascuitto, Ms. Gamber's roommate, returned to the apartment shortly thereafter, she also discovered her laptop computer as well as its case were missing. Unlike her roommate's computer, Ms. Ascuitto's laptop was never recovered. (N.T. 4/30/12, pp. 73-76). Surveillance video from the hallway during the time period of the burglary showed a male wearing a jacket with a distinctive white "V" stripe pattern.
On June 1, 2011, police executed a search warrant for Appellant's residence located at 2416 Corlies Street in Philadelphia. In the second floor middle bedroom police found a black Nike track jacket with a white V-shaped pattern on the front and multiple pieces of property taken in the burglaries including various X Box games, X Box controllers, a Sony Playstation and Sony Playstation games, an Assas[s]ins Creed Brotherhood case and a silver Macbook computer. (N.T. 5/4/12, p. 32). Mail and a Visa debit card in Appellant's name were also found in the bedroom. (N.T. 5/4/12, p. 32). On the computer stolen from Ms. Gamber were the Appellant's fingerprints, multiple pictures of Appellant, and a video of Appellant engaging in sexual activity with a female. (N.T. 5/4/12, p. 34). The Assas[s]ins Creed Brotherhood case was identified as having been taken from Mr. Miller's and Mr. Schwalm's apartment. The X Box games and a PSP had been taken from Mr. Woskey's and Mr. Speck's apartment.

Trial Court Opinion, 4/2/13, at 3-5.

The trial court explained the procedural history as follows:

On April 2, 2012, the Commonwealth litigated a Motion to Consolidate the above-captioned cases before this Court. On that date, this Court granted the Motion to Consolidate. Appellant waived his right to a jury and a bench trial commenced on April 30, 2012. On May 8, 2012, the Court found Appellant guilty of Burglary, Criminal Trespass and Theft on CP-51-CR-0008012-2011, CP-51-CR-0008994-2011 and CP-51-CR-0009931-2011, and Attempted Theft on CP-51-CR-0008013-2011.1 On July 12, 2012, the Court sentenced Appellant to twelve to twenty-four months incarceration and a total of $4659 restitution on CP-51-CR-0008012-2011; five years reporting probation on CP-51-CR-0008013-2011; twenty-four to forty-eight months incarceration and $1400 restitution on CP-51-CR-0008994-2011 and twenty-four to forty-eight months incarceration and $1860 restitution on CP-51-CR-0009931-2011. The sentences were ordered to run consecutively for an aggregate sentence of five to ten years imprisonment plus five years [of] probation.
1 The Court found appellant not guilty of burglary and criminal trespass on CP-51-CR-0008013-2011.

Trial Court Opinion, 4/2/13, at 1-2. On July 20, 2012, Appellant filed a timely appeal. Both the trial court and Appellant have complied with Pa.R.A.P. 1925.

On appeal, Appellant raises two issues for this Court's consideration:
1. Did not the trial court err in granting the Commonwealth's motion to consolidate three contemporaneous burglaries of college dorm rooms with one burglary of a college office that occurred two months earlier?
2. Was not the evidence insufficient for conviction of the office burglary at CP-51-CR-008013-2011? Appellant's Brief at 4. We will address these issues in the order in which they were presented.

First, Appellant avers that the trial court erred in granting the Commonwealth's motion to consolidate the case at CP-51-CR-0008013- 2011, concerning the attempted theft of Mr. Disston's computer from his office in Randall Hall on March 9, 2011, with the three other cases that occurred two months later. We conclude that Appellant is entitled to no relief.

The standard of review we apply in cases concerning the trial court granting a motion to consolidate is as follows:

In reviewing a trial court decision to consolidate or to sever offenses for trial, our standard is abuse of discretion. Commonwealth v. Collins, 550 Pa. 46, 54, 703 A.2d 418, 422 (1997), cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d 447 (1998). Offenses charged in separate informations may be tried together if they are "based on the same act or transaction" or if "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." Pa.R.Crim.Pro. 582(A)(1). The court has discretion to order separate trials if "it appears that any party may be prejudiced" by consolidating the charges. Pa.R.Crim.Pro. 583.
Our Supreme Court has established a three part test, incorporating these two rules, for deciding the issue of joinder versus severance of offenses from different informations. The court must determine whether the evidence of each of the offenses would be admissible in a separate trial for the other; 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, whether the defendant will be unduly prejudiced by the consolidation of offenses. Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 497 (1988) (quoted in Collins, supra at 55, 703 A.2d at 422).

Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005).

With respect to the first part of the aforementioned test, we conclude that evidence of each offense would have been admissible in a separate trial for the other offenses. Pa.R.E. 404(b)(2) allows evidence of other crimes, wrongs, or acts when that evidence is relevant for a purpose other than showing criminal propensity, including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Commonwealth v. Dillon, 925 A.2d 131, 137 (Pa. 2007) (citing Pa.R.E. 404(b)(2)). Additionally, evidence of other crimes may be relevant and admissible to show res gestae, a chain or sequence of events that became part of the history of the case and formed part of the natural development of the facts. Id. Some of the factors to be considered in determining similarity and a common scheme or plan are the time between the crimes, the geographical proximity of the crime scenes, and the manner in which the crimes were committed. Commonwealth v. Cain, 29 A.3d 3, 7 (Pa. Super. 2011) (citation omitted).

Here, the attempted theft was similar to the other crimes in preparation and plan, i.e., the perpetrator entered unlocked rooms on Drexel's campus in the early afternoon and removed or attempted to remove only computer or electronic equipment. Moreover, many of the items stolen were found at Appellant's residence and/or had his fingerprints on them. This includes the computer Appellant attempted to steal from Mr. Disston, which was shown to have Appellant's fingerprints on it. Additionally, with respect to prongs two and three of the test set forth in Thomas, there was little chance of confusion in the fact-finder viewing the evidence or in Appellant being unduly prejudiced, because this was a bench trial. As the trial court explained:

The numerous similarities among the incidents and the presence of Appellant's fingerprint on the computer in the first incident tended to establish a common scheme, plan and design and Appellant's identity as the perpetrator. Additionally, the court, sitting as fact-finder, was able to separate the evidence for each case and found Appellant not guilty of the burglary and criminal trespass charges in [the] first incident involving the unsuccessful theft of the computer from the office. Accordingly, Appellant suffered no undue prejudice as a result of the consolidation of the cases and his judgment of sentence should be affirmed.

Trial Court Opinion, 4/2/13, at 8.

After review, we conclude that there was no abuse of discretion in the trial court consolidating these four cases for trial. Accordingly, Appellant is entitled to no relief.

In his second issue on appeal, Appellant claims that the evidence was insufficient for conviction of the office burglary at CP-51-CR-008013-2011. Appellant's Brief at 4. Initially, we must point out that Appellant was not convicted of burglary at that docket number. Appellant's conviction at CP-51-CR-008013-2011 was criminal attempt (theft by unlawful taking – movable property). In the argument portion of Appellant's brief, he focuses on the correct conviction, however, and we will address the merits of this claim of error.

In determining whether the evidence was sufficient to support a conviction, this Court reviews the evidence admitted at trial along with any reasonable inferences that may be drawn from that evidence in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Murphy, 844 A.2d 1228, 1233 (Pa. 2004) (citations omitted). If we conclude, based on that review, that the finder of fact could have found every element of the crime beyond a reasonable doubt, we must sustain the conviction. Id. Additionally, it is the responsibility of the trier of fact to assess the credibility of the witnesses and weigh all of the evidence presented. Commonwealth v. Pruitt, 951 A.2d 307, 313 (Pa. 2008). "In doing so, the trier of fact is free to believe all, part, or none of the evidence." Id.

Criminal attempt is defined as follows: "A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S.A. § 901(a). Additionally, the Pennsylvania Crimes Code states that "[a] person is guilty of theft 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).

Appellant claims that the only evidence of a crime was the mere presence of his fingerprints on the computer. Appellant's Brief at 18. Appellant argues that this is insufficient to support a conviction for attempted theft. Appellant argues that the facts of this case are similar to Commonwealth v. Cichy, 323 A.2d 817 (Pa. Super. 1974) and In re M.J.H., 988 A.2d 694 (Pa. Super. 2010). Appellant's Brief at 20-21.

In Cichy, the appellant was convicted of burglarizing a gasoline service station, taking tools, and prying open a cigarette vending machine. Cichy, 323 A.2d at 818. The evidence presented at trial showed that the police uncovered fingerprints from objects in the service station, including one print from the cellophane wrapper on a pack of Marlboro cigarettes that was found on the floor. Id. The fingerprint on the cigarette wrapper was the only print found that was not smudged and, thus, was identifiable. Id. The fingerprint was matched to the appellant, and this was the only evidence linking the appellant to the burglary. Id.

On appeal, the appellant argued that he had visited the service station on a prior occasion before the date of the burglary. Cichy, 323 A.2d at 819. No fingerprints were found near the point of entry or on the cigarette machine. Id. There was no evidence that any cigarettes were taken from the machine, that there were Marlboro cigarettes in the machine, or that the particular package of cigarettes was in the machine. Id. In addition, the owners of the service station discovered the pack of Marlboro on the floor between the cigarette machine and the wall, and neither could state that the pack was not present prior to the burglary. Id. Moreover, the Commonwealth's expert did not offer an opinion as to when the fingerprint was made. Id.

Upon review, this Court held that the Commonwealth failed to establish the appellant's guilt beyond a reasonable doubt as the print could have been left there through "legitimate contact", i.e., while the appellant was a patron of the store. Cichy, 323 A.2d at 819. We concluded that "[t]he discovery of the print on a movable object in a public place was insufficient to establish his presence at the scene of the crime at the time it was committed." Id.

Similarly, in the case of In re M.J.H., a clothing store was burglarized. In re M.J.H., 988 A.2d at 695. The responding police officer testified that the glass in the store's front door had been shattered and that two metal clothing racks inside the store had been knocked over. Id. The officers concluded that the perpetrator had entered the store through the front door because no other points of entry had been disturbed. Id. The only evidence linking the appellant to the crime was a fingerprint found on one of the clothing racks. Id. The owner of the store testified that the appellant had been in the store on prior occasions. Id. at 696. Upon review, a panel of this Court concluded that the mere presence of the appellant's fingerprint on a clothes rack, with which he could have had "legitimate contact," was insufficient to adjudicate the appellant delinquent. Id. at 697, 699.

We conclude that Cichy and In re M.J.H. are distinguishable. What separates the instant case from Cichy and In re M.J.H., is that in those cases, there was the possibility that the accused's fingerprint was left as a result of legitimate contact.

It is well settled that "in numerous cases, we have upheld the sufficiency of the evidence supporting a conviction premised solely on the fact that the defendant's fingerprints were at the scene of the crime." Commonwealth v. Pettyjohn, 64 A.3d 1072, 1076 (Pa. Super. 2013). In light of said case law, "imprints constitute sufficient evidence so long as the facts of the crime eliminate an innocent explanation for the presence of the defendant's fingerprints on an object." Id. Here, the record reveals that Mr. Disston's laptop computer was inside his office in the open position, and it was connected to the internet and a power source. N.T., 4/30/12, at 16-18. Mr. Disston saw a black male grabbing his computer bag, and the perpetrator fled. Id. at 15-16. Mr. Disston chased the perpetrator, but he lost sight of him and returned to his office. Id. at 16. Upon his return, Mr. Disston noticed that his computer was disconnected from the internet and power source, and it was now in the closed position. Id. The fingerprint that was then taken from the computer, the part one would touch when closing it, belonged to Appellant. Id. at 61.

We conclude that, just as in Pettyjohn, there was no innocent explanation for the presence of Appellant's fingerprint on Mr. Disston's computer. Mr. Disston testified that he did not know Appellant and that he never gave Appellant permission to enter his office or touch his computer. N.T., 4/30/12, at 23-24. Therefore, there is no basis upon which the finder of fact could conclude that Appellant had legitimate contact with Mr. Disston's computer. These facts, coupled with the evidence of the common scheme Appellant employed whereby he would enter unlocked rooms on Drexel's campus, regardless of whether the room was occupied, and steal computer and electronic equipment, when viewed in the light most favorable to the Commonwealth as the verdict winner, are sufficient to sustain Appellant's conviction for the attempted theft.

For the reasons set forth above, Appellant is entitled to no relief on appeal. Thus, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

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