Com. v. Hoffman, J.

J-S33010-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JOHN E. HOFFMAN :

:

Appellant : No. 1188 WDA 2022

Appeal from the Judgment of Sentence Entered October 26, 2021

In the Court of Common Pleas of Cambria County Criminal Division at

No(s): CP-11-CR-0000308-2020

BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED: December 29, 2023

Appellant, John E. Hoffman, appeals from the aggregate judgment of

sentence of life imprisonment, without the possibility of parole, imposed after

a jury convicted him of first-degree murder, aggravated assault, and robbery.

After careful review, we affirm.

Following a jury trial in October of 2021, Appellant was convicted of the

above-stated offenses based on evidence that he beat a 74-year-old man,

Anthony Profaizer, to death with a club or pipe during a robbery at Profaizer’s

home. The court sentenced Appellant on October 26, 2021, to a term of life

imprisonment, without the possibility of parole, for his first-degree murder

conviction. The court also imposed concurrent terms of 5 to 10 years’

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* Former Justice specially assigned to the Superior Court.

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imprisonment, and 6 to 12 years’ imprisonment, for his aggravated assault

and robbery convictions, respectively.

Appellant filed timely, post-sentence motions, which the court denied.

He then filed a timely notice of appeal, and complied with the trial court’s

order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Herein, Appellant states the following five issues for our review:

I. Whether the trial court erred in failing to grant … Appellant’s

request for a continuance given the Commonwealth’s disclosure

of certain discoverable material only after the jury had been

selected?

II. Whether the trial court erred/abused its discretion by failing to

suppress the statement given by Appellant as part of a polygraph

test?

III. Whether the trial court erred in denying … Appellant’s motion

for judgment of acquittal on the weight of the evidence?

IV. Whether the trial court erred by failing to exclude improper

character evidence and prior bad acts evidence offered by the

Commonwealth against … Appellant in the form of videotaped

statements, as the statements were highly prejudicial, had little

probative value, and did not indicate … Appellant’s involvement in

the charged offenses?

V. Whether the trial court erred in failing to determine that the

offenses of aggravated assault and homicide merged for the

purposes of sentencing?

Appellant’s Brief at 5-6 (unnecessary capitalization omitted).

In Appellant’s first issue, he contends that the trial court erred by

denying his motion for a continuance when, “[o]n the very eve of the trial,

after the jury had been selected[,] the Commonwealth presented … Appellant

with additional discoverable materials.” Id. at 10. Appellant does not identify

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what, exactly, those ‘discoverable materials’ were, aside from confusingly

mentioning, without explanation, that “it was only at that time that the

Commonwealth disclosed that one of the persons … Appellant had supposedly

confessed to had recanted his statement not by a letter but by an ‘inmate

request form,’ which was not in the Commonwealth’s possession.” Id. at 13

(citation to the record omitted). According to Appellant, his “counsel was not

afforded the opportunity for a meaningful review of the materials provided on

such a late date….” Id. at 16.

Initially, we note:

The decision to grant or deny a continuance request rests with the

sound discretion of the trial court and we will not reverse the

decision absent a clear abuse of discretion. Commonwealth v.

McAleer, … 748 A.2d 670, 673 ([Pa.] 2000). This Court will not

find an abuse of discretion if the denial of the continuance request

did not prejudice the appellant. Commonwealth v. Pettersen,

49 A.3d 903, 914 (Pa. Super. 2012). In order to demonstrate

prejudice, the appellant “must be able to show specifically in what

manner he was unable to prepare his defense or how he would

have prepared differently had he been given more time.”

Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012)

(citation omitted).

Commonwealth v. Broitman, 217 A.3d 297, 299–300 (Pa. Super. 2019).

Here, Appellant’s vague argument waives his first issue for our review.

Appellant does not discuss what materials the Commonwealth provided ‘on

the eve of trial,’ or even name which Commonwealth witness allegedly

recanted. He also does not explain how his alleged inability to ‘meaningfully

review’ the information turned over by the Commonwealth hindered the

preparation of his defense. We will not develop these arguments for Appellant.

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See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“When

briefing the various issues that have been preserved, it is an appellant’s duty

to present arguments that are sufficiently developed for our review. This

Court will not act as counsel and will not develop arguments on behalf of an

appellant. Moreover, when defects in a brief impede our ability to conduct

meaningful appellate review, we may dismiss the appeal entirely or find

certain issues to be waived.”) (citations omitted). Therefore, we conclude that

Appellant has waived his challenge to the trial court’s denial of his motion for

a continuance.1

In Appellant’s second issue, he claims that the trial court erred by failing

to suppress statements he made during a polygraph test. Preliminarily, we

recognize that “[q]uestions regarding the admissibility of evidence rest within

the trial judge’s discretion, and an appellate court will reverse the judge’s

decision only for an abuse of discretion.” Commonwealth v. Vandivner,

962 A.2d 1170, 1179 (Pa. 2009) (citations omitted). Additionally,

[t]he general rule in this Commonwealth is that any reference to

a polygraph test that raises an inference concerning the guilt or

innocence of a defendant is inadmissible at trial.

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1 In any event, even if not waived, we would conclude that no relief is due.

The trial court provides a detailed explanation for its decision to deny

Appellant’s motion for a continuance in its Rule 1925(a) opinion. See Trial

Court Opinion (TCO), 5/1/22, at 2-6. Given the court’s discussion, and

Appellant’s wholly undeveloped argument on appeal, we would conclude that

he has not demonstrated any abuse of discretion by the trial court. See Ross,

57 A.3d at 91 (“A bald allegation of insufficient amount of time to prepare will

not provide a basis for reversal of the denial of a continuance motion.”)

(citation omitted).

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Commonwealth v. Hetzel, 822 A.2d 747, 767 (Pa. Super.

2003)…. This rule derives from the inherent unreliability of

polygraph examinations in the determination of innocence or guilt

in fact. Id.

Commonwealth v. A.R., 990 A.2d 1, 6 (Pa. Super. 2010). However,

there have been scenarios where our courts have admitted

statements made before, during, or after a polygraph

examination, without mention or reference to the actual results

of the polygraph examination. See, e.g., Commonwealth v.

Schneider, 562 A.2d 868 (Pa. Super. 1989) … (holding [that the]

court properly denied [a] motion to suppress [a] confession given

to police after [a] polygraph examination; explaining [that a]

statement given after being advised that one has failed [a] lie

detector test may be admitted into evidence). See also

Commonwealth v. Santiago, 591 A.2d 1095, 1104 n.15 (Pa.

Super. 1991) (en banc) … (noting [that the] trial court did not

admit [the] appellant’s second statement to police at trial “at least

in part because the trial court labored under the false

apprehension that such a statement was inadmissible merely

because it was made during a polygraph examination”) (emphasis

in original).

Commonwealth v. Javier Vasquez, 237 A.3d 462, 2020 WL 2537214, at

*4 (Pa. Super. 2020) (unpublished memorandum) (emphasis in original).2

In this case, Appellant acknowledges that the Commonwealth did not

seek to admit the results of his polygraph examination but, instead, it

“intended to use some of Appellant’s responses” to questions posed during

the test. Appellant’s Brief at 18 (emphasis added). Nevertheless, Appellant

contends that “[s]aid responses related to … Appellant’s dealings with the

____________________________________________

2 See Pa.R.A.P. 126(b) (stating that unpublished, non-precedential decisions

of the Superior Court filed after May 1, 2019, may be cited for

their persuasive value).

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alleged victim, illicit substances, and a situation in which Appellant was

allegedly taken hostage, all of which prejudiced … Appellant.” Id. He also

insists that,

[e]ven presenting the interview while excluding the examiner’s

determination of whether Appellant had ‘passed’ or ‘failed’ is still

prejudicial to Appellant, as the jury could infer that the reason it

was being presented to them was that … Appellant had failed the

examination. Further, the type of questioning conducted during

the polygraph examination could have allowed the jury to surmise

that it was a polygraph examination, even though the answers

were presented as a mere interview of … Appellant. … Appellant’s

answers cannot simply be divorced from the fact that they were

given as a result of a polygraph examination.

Id. at 18-19.

Again, Appellant’s vague and undeveloped argument does not

demonstrate an abuse of discretion by the trial court. Appellant does not fully

explain what his at-issue polygraph responses were, or provide any examples

of the ‘type of questioning’ that allowed the jury to not only infer that his

responses were provided during a polygraph examination, but that Appellant

had failed that test. Moreover, as the Commonwealth stresses, Appellant

cites to no portion of the record that contains any reference to a

polygraph examination, much less the results of the same. That

is because no such reference or even any inference was made

during trial. [Appellant] claims his “answers cannot be divorced

from the fact that they were given as a result of a polygraph

examination.” No authority is cited for this proposition because

[Appellant] pulls it out of thin air.

Commonwealth’s Brief at 11 (citation omitted). We agree with the

Commonwealth. The results of Appellant’s polygraph examination were not

admitted into evidence, and he has failed to demonstrate that the court

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abused its discretion by admitting certain responses he gave during that

interview.

In Appellant’s next issue, he argues that the court erred by denying his

motion for judgment of acquittal on the basis that the jury’s verdict was

contrary to the weight of the evidence.

A claim alleging the verdict was against the weight of the evidence

is addressed to the discretion of the trial court. Accordingly, an

appellate court reviews the exercise of the trial court’s discretion;

it does not answer for itself whether the verdict was against the

weight of the evidence. It is well settled that the jury is free to

believe all, part, or none of the evidence and to determine the

credibility of the witnesses, and a new trial based on a weight of

the evidence claim is only warranted where the jury’s verdict is so

contrary to the evidence that it shocks one’s sense of justice. In

determining whether this standard has been met, appellate review

is limited to whether the trial judge’s discretion was properly

exercised, and relief will only be granted where the facts and

inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

Here, Appellant argues that the jury’s verdict was contrary to the weight

of the evidence because “the Commonwealth presented no direct evidence

that [he] was involved in the [murder]. Rather, it relied upon conjecture and

supposition together with … Appellant’s purported confession to two inmates

who were housed in the Cambria County Prison with … Appellant.” Appellant’s

Brief at 21. Appellant stresses that “a third inmate, Robert Kratzer, to whom

… Appellant allegedly confessed, recanted his statement to the

Commonwealth.” Id. at 22. He also challenges the DNA evidence that linked

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him to the murder, contending that the DNA expert (whom Appellant fails to

name) “conceded that her testimony on direct examination was in error.” Id.

No relief is due. First, we note that Appellant misconstrues the record

regarding the testimony of the Commonwealth’s DNA expert, Rachel Ellerman.

See N.T. Trial, 10/8/21, at 160. Ms. Ellerman testified that Appellant’s DNA

was found on the pockets of the victim’s pants. Id. at 178-79; 183. On cross-

examination, Ms. Ellerman acknowledged that there was “a clerical error or

typographical error” in her report, but she indicated that the error was minor

and it did not change her opinion that Appellant’s DNA was on the victim’s

clothing. See id. at 188-91. Thus, Appellant’s claim that Ms. Ellerman

“conceded that her testimony on direct examination was in error” is misleading

and not supported by the record. Appellant’s Brief at 22.

In regard to the remainder of Appellant’s weight challenge, we discern

no abuse of discretion in the trial court’s rejecting it. The court aptly

summarized the evidence presented by the Commonwealth at trial, as follows:

The Commonwealth proffered the testimony of Richard Hall and

Jeffrey Norton, both of whom indicated that while incarcerated

with [Appellant] at Cambria County Prison, [Appellant] confessed

to harming 74-year old Anthony “Tony” Profaizer. More

specifically, Mr. Hall testified that [Appellant] went into a “tyrade”

about this case, stated that he went to Mr. Profaizer’s to obtain

drugs and money as he had frequently done over the years, beat

him with a club/pipe because he had no drugs/money, and rolled

him in a carpet. Mr. Norton stated that [Appellant] told him that

Tony was “the gift that kept on giving,” but when Tony would not

give anymore because [Appellant] owed him money, he hit him in

the head with a pipe and left him lying in the garage. Additionally,

Mr. Norton testified that [Appellant] solicited him to traffic

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narcotics with him, and he offered to be the “enforcer” because

he had already killed one person.

Additionally, in an interview with County detectives, [Appellant]

confirmed his long-term, lucrative relationship with Mr. Profaizer,

a.k.a. “the gift that keeps on giving,” and admitted to frequently

selling Mr. Profaizer’s prescription pills in exchange for pills and

money. Chief County Detective Kristy Freoni and District Attorney

Detective Scott Fye testified at the Preliminary Hearing that Mr.

Profaizer was known by all, including the [Appellant], to always

keep two prescriptions in his right front pocket, and his wallet in

his back right pocket. However, upon investigating the scene,

Chief Freoni indicated that these items could not be located, either

within Mr. Profaizer’s pockets, or at the residence in general,

which resulted in the filing of robbery charges. Forensic DNA

evidence identified the existence of both Mr. Profaizer’s and

[Appellant’s] DNA on swabs taken from Mr. Profaizer’s front and

back pants pockets. In conducting a welfare check at Mr.

Profaizer’s residence, Geistown Borough Police Chief Nicholas

Zuckicia observed Mr. Profaizer lying on the garage floor with his

underwear partially down, and his upper torso partially covered

by a carpet remnant. Deputy Coroner Charles Mahon pronounced

Mr. Profaizer deceased, and after working with a forensic

pathologist, concluded that Mr. Profaizer died on November 24 by

homicide caused by blunt force trauma to the head.

TCO at 7-9 (citations to the record omitted).

From this evidence, the trial court rejected Appellant’s argument that it

“erred by failing to grant a judgment of acquittal, as the verdict was against

the weight of the evidence, as there were no eyewitnesses, there was

unreliable DNA evidence, and the Commonwealth’s evidence pointed to the

identity of another person or persons as the perpetrator of the offenses." Id.

at 10 (citation omitted). The court stressed that,

defense counsel was afforded the full and fair opportunity to

explore these notions with numerous Commonwealth witnesses at

trial, who testified at length as to DNA evidence and various forms

of circumstantial evidence. The record clearly reveals that

defense counsel fully probed their testimony through rigorous

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cross-examination. We presume that the jury, inter alia,

considered the witness[es]’ responses to counsel’s questioning

during its deliberations, and utilized this information in assessing

witness credibility. In fact, we instructed the jury during both our

opening and closing charge that credibility was within its purview,

and have no reason to believe that the jury disregarded our

directives or that its verdict was based upon “pure conjecture.”

Id. at 11. Based on the record and the trial court’s analysis, we conclude that

Appellant has not established that the court abused its discretion in rejecting

his challenge to the weight of the evidence.

Next, Appellant argues that the trial court erred by permitting the

Commonwealth to introduce prior bad acts evidence. Pennsylvania Rule of

Evidence 404(b) states, in pertinent part:

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or act

is not admissible to prove a person’s character in order to show

that on a particular occasion the person acted in accordance with

the character.

(2) Permitted Uses. This evidence may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.

In a criminal case this evidence is admissible only if the probative

value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b)(1)-(2).

Appellant contends that,

[i]nstantly, the Commonwealth sought to admit portions of a

videotaped interview of [Appellant] in which he related he was

kidnapped because he owed drug dealers money, and they had

threatened him with physical harm, as well as evidence that he

intended to “rip off Joe from Westmont.” See N.T., [10/11/21],

at … 191-222; Commonwealth’s Exhibit 40; Court’s Exhibit 1

Video Segment Summary, segments 5, 6, 7, 8. Said portions of

the video were admitted over defense objection and narrated by

a police detective. See[] N.T., [10/12/21], at … 13-16, 19.

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Any statement beyond that Appellant owed a debt is prejudicial,

as it serves to associate him with violent criminals, which was an

entirely separate episode from the instant case. Furthermore, the

evidence of his supposed intention to “rip off Joe from Westmont”

is so scant that there simply cannot be any comparison made to

the instant facts. There is no indication of how or when this was

to occur, who Joe was, what he was going to “rip off” from “Joe,”

or even if he took any steps to follow through. [Commonwealth

v.] Shively[, 424 A.2d 1257 (Pa. 1981),] requires the

occurrences be more similar than simply repeated commission of

crimes of the same class to be admissible. []

The Commonwealth is impliedly asserting that Appellant simply

had a plan to rob another man, apparently. Thus, the occurrences

bear little similarity. There is little probative value to such

statements devoid of any detail. Presenting them to the jury

served only to portray Appellant as a criminal generally.

Finally, the Commonwealth offered no corroborative evidence —

no other witnesses or investigation — confirming that the events

in these statements occurred, undermining any indication they

served as a motive for the instant offenses. Therefore, the videos

should have been barred from evidence. Since they were not, the

Appellant requests this Honorable Court remand the case for a

new trial and bar the video segments/Appellant’s statements from

evidence.

Appellant’s Brief at 26-28.

The trial court permitted the Commonwealth to introduce the at-issue

video segments, agreeing with the Commonwealth that the evidence was

relevant to proving Appellant’s motive and intent. See Order, 10/12/21, at

1. For instance, as the Commonwealth explains on appeal, the at-issue video

segments

suggest that [Appellant] owed money and had a lot of pressure

on him. The Commonwealth relied on a theory that the victim in

this case was robbed (explaining why [Appellant’s] DNA was inside

the victim’s pockets). Evidence that [Appellant] claimed he really

needed money because he was being threatened with harm, gives

him reason to murder the victim in order to rob him. If this

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Honorable Court finds that this specific evidence does qualify as a

prior wrong, crime or bad act then it clearly is admissible to show

[Appellant’s] motive and intent to rob the victim. [Appellant]

referred to the victim as the “gift that kept on giving” and this

suggests he had a pattern of stealing from the victim. The

evidence that [Appellant] had planned a similar robbery from an

unidentified person further demonstrates that he needed money,

and had motive to commit robbery and, eventually, murder. The

trial court did not abuse its discretion in finding that the

Commonwealth’s evidence fell under a well-recognized exception

to Pennsylvania Rule of Evidence 404.

Commonwealth’s Brief at 13-14.

We discern no abuse of discretion in the court’s admitting the at-issue

evidence as demonstrative of Appellant’s motive and/or intent in committing

the robbery of the victim that ultimately led to his murder. Appellant does

not offer any direct response to the court’s determination that the evidence

was admissible under the motive and/or intent exceptions of Rule 404(b)(2).

As it is Appellant’s burden on appeal to demonstrate a clear abuse of the

court’s discretion in admitting the evidence, no relief is due. See

Commonwealth v. Aikens, 990 A.2d 1181, 1184 (Pa. Super. 2010) (“A trial

court's decision [on an evidentiary ruling] will not be reversed absent a clear

abuse of discretion.”) (citation omitted).

Finally, in his fifth issue, Appellant claims that the trial court erred by

not merging his sentences for his first-degree murder and aggravated-assault

convictions. Appellant stresses that the criminal complaint charged, with

respect to criminal homicide, that Appellant “did strike Anthony Profaizer in

the head with blunt force causing trauma and death.” Appellant’s Brief at 30-

31. Regarding aggravated assault, the criminal complaint charged that

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Appellant “did strike Athony Profaizer with blunt force causing trauma and

death.” Id. at 31. Thus, Appellant contends that his murder and aggravated

assault convictions were premised on the same criminal conduct, and his

sentences must therefore merge.

This Court has explained that,

merger is a nonwaivable challenge to the legality of the sentence.

The issue is a pure question of law, allowing for plenary review.

The merger statute states that:

No crimes shall merge for sentencing purposes unless the

crimes arise from a single criminal act and all of the

statutory elements of one offense are included in the

statutory elements of the other offense. Where crimes

merge for sentencing purposes, the court may sentence the

defendant only on the higher graded offense.

42 Pa.C.S. § 9765. … Our Courts have long held that where a

defendant commits multiple distinct criminal acts, concepts of

merger do not apply.

When considering whether there is a single criminal act or multiple

criminal acts, the question is not whether there was a break in the

chain of criminal activity. This issue is whether the actor commits

multiple criminal acts beyond that which is necessary to establish

the bare elements of the additional crime, then the actor will be

guilty of multiple crimes which do not merge for sentencing

purposes.

Pettersen, 49 A.3d at 911–12 (some internal citations and quotation marks

omitted).

Here, the trial court concluded that Appellant committed separate,

criminal acts of aggravated assault and murder and, thus, merger was not

warranted. It explained:

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Following imposition of sentence, defense counsel raised the issue

of merger relative to the … sentences [for aggravated assault and

first-degree murder]; however, the Commonwealth noted two

distinct acts, as the forensic evidence at trial confirmed that the

assault occurred first, and then the homicide. Adopting the

Commonwealth’s argument, we allowed the sentence to stand.

In his Post-Sentence Motions, [Appellant] again raised the issue

of merger, and we required the parties to file briefs. See Order

of 12/28/21. Upon consideration of the parties’ submissions, as

well as the evidence of record, we denied [Appellant’s] Motion.

See Order of 3/9/22. In doing so, we agreed with the

Commonwealth’s assertion as to [Appellant’s] commission

of two distinct crimes, separated in time. Particularly, we

believe that this is supported by the expert forensic opinion

of Dr. Kevin Whaley, who, based on the wounds and

physical evidence, testified that the initial assault occurred

within the victim’s house, and that fatal blows occurred in

the garage. N.T.[,] 10/11/21, [at] 141-[]43. Accordingly, we

again determined merger to be inappropriate, and believe that

this ruling should stand.

TCO at 12 (emphasis added).

Notably, aside from quoting the similar language of the charges in the

criminal complaint, Appellant makes no argument that the crimes arose from

a single criminal act. More specifically, he does not challenge the court’s

conclusion that he committed aggravated assault of the victim inside the

victim’s home, and then committed the separate act of murder in the victim’s

garage. The fact that the charging documents indicate the aggravated assault

and murder were accomplished by the same means, i.e., Appellant’s striking

the victim in the head with blunt force, does not necessarily prove that those

crimes were part of the same criminal act. Instead, the record supports the

court’s determination that the aggravated assault and murder occurred

separately, in separate locations of the victim’s house. “Appellant is not

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entitled to a volume discount for these crimes simply because he managed to

accomplish … the acts within a relatively short period of time.” Pettersen,

49 A.3d at 912. Thus, Appellant’s convictions did not merge for sentencing

purposes.

Judgment of sentence affirmed.

12/29/2023

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