Com. v. Brown, W., Jr.

J-S17007-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

WALTER BROWN JR.

Appellant No. 29 MDA 2021

Appeal from the Judgment of Sentence Entered November 18, 2020

In the Court of Common Pleas of Berks County

Criminal Division at No.: CP-06-CR-0002487-2019

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED OCTOBER 05, 2021

Appellant Walter Brown Jr. appeals from the November 18, 2020,

judgment of sentence entered in the Court of Common Pleas of Berks County

(“trial court”), following his jury convictions for burglary, criminal trespass,

and theft by unlawful taking or disposition.1 Upon review, we affirm.

The facts and procedural history of this case are undisputed. As

recounted by the trial court:

On June 4, 2018, employees of Distribution Services

Company (“DSC”) discovered that some power tools batteries and

a charger were missing from a building on the property. Upon this

discovery, the employees checked recorded video footage from

security cameras that were installed on the property and found

that an individual unlawfully entered the building and stole the

battery packs and charger, as well as a pair of work gloves. The

employees then contacted a nearby police officer who reviewed

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3502(a)(4), 3503(a)(1)(ii), and 3921(a), respectively.

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the security footage with the employees. The officer recognized

the individual on the video recording as Appellant, with whom the

officer had prior contact. The officer notified the affiant [(another

officer)] in this matter, who compared screenshots from the

security footage with Appellant’s driver’s license photograph, and

determined that Appellant was the perpetrator. Appellant was

thereafter charged with [the above-mentioned crimes].

At trial, the Commonwealth first called George Dronick

(“Dronick”), the owner of DSC, located at 1601 North Sixth Street

in Reading, Pennsylvania (“the Property”), as a witness. Dronick

testified that DSC provides distribution of rock salt for American

Rock Salt Company and described the Property as a large paved

area of several acres upon which is located a scale house (“the

Scale House”), a garage, and several other ancillary buildings.

On June 3, 2018, Dronick indicated that the Scale House

was locked, and that video surveillance was installed, including

approximately eight security cameras, two of which were located

inside the Scale House. Dronick continued that the security

cameras were all connected to a central recording unit and that,

on June 3, 2018, the cameras and central unit were in proper

operating condition and recording.

The Commonwealth presented portions of the surveillance

recording from June 3, 2018, during Dronick’s testimony. The

First clip from the video footage was from just outside the Scale

House and depicted an individual dressed in a hooded sweatshirt

and jeans approach the single entrance to the Scale House, which

was locked. The next video excerpt was time-stamped

approximately fifteen minutes later, and the same individual was

seen leaving the Scale House with a bag containing something.

Dronick testified that he did not know the individual shown in the

video, nor did he give the perpetrator permission to enter the

Scale House or take anything from inside. The Commonwealth

then presented video surveillance footage from inside the Scale

House in which the intruder is seen walking through the Scale

House.

Dronick was notified by several of his employees that a

burglary had occurred and that items from inside the Scale House

were missing. Upon his inspection of the Scale House, Dronick

noticed evidence that the door to the Scale House had been pried

open. When he reviewed the surveillance video, Dronick took an

inventory of items inside the Scale House and found that several

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cordless power tool batteries and charger, valued in excess of

$500.00, were missing, as well as some beer from the

refrigerator.

On cross-examination, Dronick acknowledged that he did

not know the individual seen on the surveillance video burglarizing

the Property. Likewise, Dronick admitted that he did not know

Appellant.

Brandon Weaver (“Weaver”), an employee of DSC, testified

that on June 4, 2018, he arrived at the Property with his brother-

in-law, Jordan Miranda (“Miranda”), but did not immediately

notice anything unusual. Weaver stated that he went to look for

the batteries and found that they were missing. After looking

around the Scale House, Weaver checked the security cameras

and discovered that the batteries had been stolen. Weaver did

not recognize the person seen in the surveillance video

burglarizing the Scale House. Weaver and Miranda then flagged

down a Reading Police Officer, who then viewed the security

camera footage.

Officer Christian Morar (“Officer Morar”), a police officer with

the Reading Police Department, testified that on June 4, 2018, he

was on regular patrol when he was waved down by two employees

of DSC. Upon arriving at the Property, Officer Morar spoke with

the employees, and then briefly viewed some of the surveillance

footage. Officer Morar immediately recognized the individual

depicted on the surveillance footage as Appellant with whom

Officer Morar had dealt with approximately two weeks prior to the

burglary. Officer Morar then contacted Officer Adam Babbitt.

On cross-examination, when asked whether there were any

distinguishing features of Appellant’s appearance that he could

remember, Officer Morar responded that he recognized

Appellant’s gray beard. Officer Morar then continued that he

recalled no other distinguishing features of Appellant from his

previous encounter.

Officer Adam Babbitt (“Officer Babbitt”). of the Reading

Police Department, testified that he reviewed the surveillance

video during his investigation of the case and spoke with Officer

Morar about his observations. Officer Babbitt then returned to the

station and pulled Appellant’s driver’s license photograph from the

N.C.I.C. database and compared it with the video images he

reviewed from the security cameras. The Commonwealth

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introduced Appellant’s PennDOT driver’s license photograph into

evidence at trial, and it was published to the jury. Officer Babbitt

observed that the photograph from Appellant’s driver’s license

was taken more than a year prior to the burglary. However, when

comparing Appellant’s driver’s license photograph with some

screenshots from the surveillance video footage, Officer Babbitt

identified Appellant as the individual in both.

Officer Babbitt admitted on cross-examination that

Appellant, in his driver’s license photograph, had a substantially

shorter beard than the individual represented on the security

camera footage. Officer Babbitt also acknowledged that he did

not request that any DNA evidence collected, and no fingerprints

were taken from the scene. Officer Babbitt explained that the

perpetrator wore gloves during the burglary, but did acknowledge

that, based on the video footage, the burglar did not have gloves

on the entire time.

At the conclusion of the trial, the jury found Appellant guilty

of all charges. The same day, November 18, 2020, this court

sentenced Appellant on the burglary conviction to a period of

incarceration of three to six years in a state correctional facility.

The remaining charges merged for sentencing purposes.

On November 25, 2020, Appellant, through trial counsel,

filed post-sentence motions challenging the weight and sufficiency

of the evidence as to all charges and modification of sentence.

Th[e trial] court denied Appellant’s post-sentence motions by

order dated December 1, 2020.

Trial Court Opinion, 2/9/21, at 1-4 (record citations, footnotes and

unnecessary capitalizations omitted). Appellant timely appealed. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant raises two issues for our review.

[I.] Whether the evidence was insufficient to support the

conviction of burglary, criminal trespass, and theft by unlawful

taking as there was insufficient evidence that Appellant was the

perpetrator?

[II.] Whether the verdicts of guilt went against the weight of the

evidence?

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Appellant’s Brief at 6.

At the core, Appellant’s issues are interrelated as they both challenge

his identification as the perpetrator.2 In this regard, he first contends that the

officers’ trial testimony was unreliable and incredible, as it revealed only

“general physical characteristics of a beard” for purposes of identifying

Appellant. Id. at 12. We treat this contention as challenging the weight and

credibility determination of the fact-finder.

As we have explained:

On this issue, our role is not to consider the underlying question

of whether the verdict was against the weight of the evidence.

Rather, we are to decide if the trial court palpably abused its

discretion when ruling on the weight claim. When doing so, we

keep in mind that the initial determination regarding the weight

of the evidence was for the factfinder. The factfinder was free to

believe all, some or none of the evidence. Additionally, a court

must not reverse a verdict based on a weight claim unless that

verdict was so contrary to the evidence as to shock one’s sense of

justice.

Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007)

(internal citations omitted), appeal denied, 954 A.2d 575 (Pa. 2008). “[A]

trial court’s denial of a post-sentence motion ‘based on a weight of the

evidence claim is the least assailable of its rulings.’” Commonwealth v.

Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting Commonwealth v.

Diggs, 949 A.2d 873, 880 (Pa. 2008)).

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2 Although he couched his first issue as one implicating the sufficiency of the

evidence, Appellant does not identify any element of any crime upon which

the Commonwealth’s evidence was insufficient.

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Instantly, Appellant essentially attacks the jury’s weight and credibility

determinations, and invites us to accept his version of events. We decline the

invitation. It is settled that we may not substitute our judgment for that of

the factfinder—whether a jury or the trial court—because it is the province of

the factfinder to assess the credibility of the witnesses and evidence. See

Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004);

Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) (“an appellate

court is barred from substituting its judgment for that of the finder of fact.”);

Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa. Super. 2005) (stating

that “[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 witnesses. An appellate court cannot substitute its judgment for

that for the finder of fact.”). As the jury was free to believe all, part or none

of the Commonwealth’s evidence, Appellant’s claim lacks merit.

Next, Appellant challenges his in-court identification by Officer Morar.

We, however, decline to address this issue because Appellant failed to

preserve it for our consideration. As we have often stated, with respect to

preserving a challenge to the admission or exclusion of evidence, Rule 103 of

the Pennsylvania Rule of Evidence provides in pertinent part:

(a) Preserving a Claim of Error. A party may claim error in a

ruling to admit or exclude evidence only:

(1) if the ruling admits evidence, a party, on the record:

(A) makes a timely objection, motion to strike, or

motion in limine; and

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(B) states the specific ground, unless it was apparent

from the context[.]

Pa.R.E. 103(a)(1). In Pennsylvania, it is well-settled that a party must make

a timely and specific objection at trial in order to preserve an issue for

appellate review. See Pa.R.A.P. 302(a); see also Commonwealth v.

Montalvo, 641 A.2d 1176, 1185 (Pa. Super. 1994) (citation omitted) (“In

order to preserve an issue for review, a party must make a timely and specific

objection at trial.”). Failure to do so results in waiver of that issue on appeal.

See Pa.R.A.P. 302(a); see also Commonwealth v. Schoff, 911 A.2d 147,

158 (Pa. Super. 2006).

Instantly, the trial transcript reveals that Appellant’s counsel failed to

object to Appellant’s in-court identification by Officer Morar.

Q. So you knew this person prior to June 3rd of 2018?

A. Yes.

Q. Did you know his name at the time, at the time you watched

the video, did you know his name?

A. I did.

Q. And what was his name?

A. Walter Brown.

Q. How – how far before June 3rd of 2018 did you have prior

dealings with –

A. I would say maybe two weeks.

Q. Two weeks before?

A. Yeah.

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Q. Okay. Officer, I’m going to ask you to look around the room

today and if you see – if you see Walter Brown in the courtroom?

A. I do.

Q. You do?

A. Yes.

Q. Could you point to him? You can stand up and point to him and

describe what he’s wearing right now.

A. He is wearing an off-white buttoned-collar shirt (indicating).

[Assistant District Attorney]: I’ll ask that the record reflect that

the witness has identified [Appellant], Walter Brown.

[The trial court]: It shall.

Q. Even though the person you identified right now has a face

mask on, does that impair your ability to have the identification

without any doubt?

A. Yes, it doesn’t impair. I’m sorry. It doesn’t, no.

Q. Is that him? Do you have any doubt that that is the person in

the video?

A. No.

Q. Even with the face mask on today?

A. Yeah.

N.T. Trial, 11/18/20, at 35-36. Accordingly, we conclude that Appellant’s

evidentiary challenge to his in-court identification by Officer Morar is waived.

See Commonwealth v. Ballard, 80 A.3d 380, 400 (Pa. 2013), (holding

appellant’s arguments were waived because appellant failed to object at trial),

cert. denied, 134 S. Ct. 2842 (2014); see also Pa.R.E. 103(a).

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In sum, Appellant neither obtains relief on his weight claim that the

officers’ trial testimony was unreliable and incredible, nor on his evidentiary

challenge to the in-court identification by Officer Morar.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/05/2021

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