Com. v. Gadaleta, P.

• Court: Superior Court of Pennsylvania
• Decided: January 16, 2015
• Docket: 49 EDA 2014
• Status: Unpublished

Opinion

J-S75016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

PATRICIA E. GADALETA

Appellant No. 49 EDA 2014

Appeal from the Judgment of Sentence November 22, 2013 In the Court of Common Pleas of Carbon County Criminal Division at No(s): CP-13-CR-0000746-2010

BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.: FILED JANUARY 16, 2015

Patricia E. Gadaleta appeals from her judgment of sentence, imposed

by the Court of Common Pleas of Carbon County, following Gadaleta’s

convictions for theft by deception,1 receiving stolen property,2 and two

counts of issuing a bad check.3 Upon review, we affirm Gadaleta’s judgment

of sentence based on the opinion of the Honorable Joseph J. Matika.

In July 2010, Gadaleta contacted Cheri Conway, a dog breeder, to

inquire about purchasing a dog. Using the pseudonym Meg Kippler,

____________________________________________

1 18 Pa.C.S. § 3922(a)(1). 2 18 Pa.C.S. § 3925(a). 3 18 Pa.C.S. § 4105(a)(1). J-S75016-14

Gadaleta negotiated the purchase of two Labrador retrievers4 from Conway

for the price of $5,018.00.5 Gadaleta signed the agreement of sale as Meg

Kippler and returned it to Conway. After Conway received two bad checks

from Gadaleta, she notified her local police, who in turn contacted the

Pennsylvania State Police in Leighton. On September 23, 2010,

Pennsylvania State Trooper Nicolas De La Iglesia obtained and executed a

search warrant at Gadaleta’s residence.

While searching Gadaleta’s home, Trooper De La Iglesia found the two

dogs and their shipping crates as well as the agreement of sale signed by

“Meg Kippler.” The Trooper also found FedEx shipment slips with the name

“Kippler” on them in addition to email correspondences between “Kippler”

and Conway.

On September 9, 2013, the jury convicted Gadaleta of the

aforementioned offenses. On November 22, 2013, the court sentenced

Gadaleta to 12 to 24 months’ incarceration, followed by one year of

probation. This timely appeal followed.

On appeal, Gadaleta presents the following issues for our review:

1. Did the court err in allowing testimony over objection concerning the contents of the cell phones received from ____________________________________________

4 Gadaleta agreed to purchase Romeo, a yellow Labrador retriever, and Winston, a chocolate Labrador retriever. Both dogs were micro-chipped. 5 This price included the two dogs, airfare to ship the dogs from Sacramento to Philadelphia, two new shipping crates, and health certificates.

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Anthony Gadaleta months after the search of the residence?

2. Is the verdict contrary to the law in that there was no evidence connecting the person known to the victim as Meg Kippler with Patricia Gadaleta?

3. Is the verdict contrary to the law in that there is absolutely no evidence the party that issued the checks with insufficient funds was Patricia Gadaleta?

4. Is the verdict contrary to the law in that there is absolutely no evidence the email address referenced in the communications between seller and buyer was that of Patricia Gadaleta?

Brief of Appellant, at 7.

Gadaleta’s first issue on appeal implicates the admissibility of

evidence. Our standard of review is as follows:

The admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.

Commonwealth v. Dent, 837 A.2d 571, 577 (Pa. Super. 2003) (citations

and quotations omitted).

Gadaleta’s remaining issues challenge the sufficiency of the evidence

sustaining her convictions. Our standard of review for sufficiency of the

evidence claims is well settled:

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every

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element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth’s burden may be met by wholly circumstantial evidence and any doubt about the defendant’s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citations

omitted).

We have reviewed the record on appeal and the relevant law, and find

that the well-reasoned opinion of Judge Matika thoroughly, comprehensively

and correctly disposes of the issues Gadaleta raises on appeal. Specifically,

the trial court did not abuse its discretion when it admitted testimony

regarding the contents of Gadaleta’s cell phones because the evidence of

calls placed to Conway was relevant to establishing who placed the calls to

Conway. See Pa.R.E. 401. Additionally, the evidence connecting Gadaleta

to the identity of “Meg Kippler” was overwhelming. Accordingly, we affirm

based on Judge Matika’s opinion. Counsel is directed to attach a copy of the

trial court opinion in the event of further proceedings in this matter.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/16/2015

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COURT OF

COMMONWEALTH OF PENNSYLVANIA

vs. No. 746 CR 2010

PATRICIA E. GADALErA, : Defendant/Appellant

Jean A. Bngler, Esquire Counsel for Commonwealth Assistant District Attorney Kent D. Watkins, Esquire Counsel for Defendant

MEMORANDUM OPINION

Matika, J. - March 13 , 2014

On September 10, 2013, a jury found the Defendant, Patricia

E. Gadaleta, guilty of one count of theft by deception,1 one

count of receiving stolen property,2 and two counts of issuing a 3 bad check. After a pre-sentence investigation was prepared,

this Court imposed a total sentence upon the Defendant of not

less than twelve month~ nor more than twenty-four months in a

state correctional institution, followed by one year of state

probation. The Defendant did receive one hundred sixty-nine

days credit against her sentence for time already served.

Subsequently, Defendant appealed the jury verdict. This

memorandum opinion is submitted in accordance with Pennsylvania

1 1B Pa.C.S.A. § 3922(a)(1).

118 Pa.C .S.A. § 3925(a). APPENDIX B l 18 Pa.C.S.A. § 4105{a) (1).

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Rule of Appe l late Procedure 1925 (a) . For the reasons stated

be l ow t this Court requests the Honorable Superior Court to

affirm the judgment of sentence .

FACTUAL AND PROCEDURAL BACKGROUND

On September 10 1 2013, Defendant was found guilty of

intentionally obtaining the · property of Kevin and Cheri Conway,

more specifically two male Labrador dogs and two shipping

crates, by intentional ly creating the false impression that she

was an individual by the name of Meg Kippler. Defendant was

also found guilty of two counts of issuing a bad check in the

amounts of five thousand forty dollars ($5,040.00) and five

thousand one hundred ninety dol lars ($5,190.00), respectively.

The evidenced proffered at trial establish that Cheri

Conway, (hereinafter "Conway"), owned ·a nd operated a kennel from

which she breed and Bold dogs. (N.T. 9/9/13 at 86-87). In July

of 2010, Conway was contac~ed, via telephone, by an individual

identifying herself as Meg Kippler in regards to purchasing a

Labrador retriever. 4 This individual, Meg Rippler, informed

Conway that her and her husband Ron wanted a family pet that was

already housebroken and about a year old. rd. at 88 - 89. After

various phone calls and email correspondences between the

parties , Defendant, th:rough the use of the identity of Meg

4 At all times relevant to this matter, the Defendant communicated with Conway under the false perception that she, the Defendant, ~a6 ao individual by the name of Meg Xippler.

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Kippler, agreed to purchase from Conway a male chocolate

Labrador retriever named Winston and a yellow male Labrador

retriever named Romeo for the price of two thousand dollars per

retriever. Id. at 91, 94.

Upon reaching an oral agreement, Conway prepared and

emailed the Defendant the agreement of sale. The agreement of

sale was between Conway and "Meg and/or Ron Kippler" with an

email address of 1265chase®gmail.com. Add! tionally, the sales

contract included the purchase price for the two dogs of five

thousand eighteen dollars ($5 , 018.00),5 along with a description

of the dogs, and their respective micro - chip numbers.

Conway testified that . her standard practice in breeding

dogs was to place a micro-chip under the skin of the dog's

shoulder. Id. at 92. This micro-chip is permanently imbedded

in the dog and it operates similarly to a scanner at a

supermarket. Id. Each micro-chip is assigned a certain number

that on ly correlates with that micro-chip. Id. at 93.

Moreover, Conway stated. that she placed a micro-chip in each of

the subject dogs involved in this litigation with the yellow

Labrador retriever having a micro-chip number of 012769333. and

the male chocolate Labrador ret.riever having a micro-chip number

S Conway arrived at a total amount of five thousand eighteen dollars baaed upon the cost of each dog, the coat of airfare, two new Shipping crates, and health certificates. (N".T. 9/9/13 at 97). Circulated 12/30/2014 08:40 AM

of 045259601. Id~ at 96-97.6"

After receiving the agreement of sale, Defendant signed

said agreement ae "Meg Kippler", Bcanned it I and emailed the

agreement back to Conway. Per the terms of the agreement of

sale, Defendant was required to tender payment, by way of a

cashier's or certified check, before Conway would ship the dogs

and crates. (N. T . 9/9/13 at 99). However , Conway stated that

she never rece i ved said payment. Id. at 101. As a result,

Conway contacted Defendant to arrange an alternative method of

payment as it was already orchestrated that the two Labrador

retrievers would be shipped, via air I from Sacramento to

Philadelphi a in two "days. Id. at 102 . A day later, Conway

received a personal check from Defendant . 7 The check was made

payable to Conway in the amount of five thousand forty dollars

($5,040 . 00) •

The Commonwealth proffered a copy of the $5 . 040 . 00 check at

trial. In the upper left-hand corner of the check was a sticker

that read: ~Kipple r , Waterford, New Jer8ey.~

, conway test ified chat the micro-chip number is also referred to as an ~ AVID number".

7 Conway received this check late Saturday afternoon after her bank, Sterling Bank was closed for the day . Since Conway' B drive to Sacramento Airport wou l d take her five hou rs, Dbe had to leave early Monday morning before her bank would open, thus Conway test i f i ed she did not have a chance to deposit tbe check before shipping the two dogs in the Shipping crates. (N.T. 9/9/13 at 101).

I At tbe trial, Conway was perplexed 88 to why this check was written out for five r.housand · forty dollars when t.he agreed purchase price was for t:lve thousand eighteen dollars.

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Upon returning home from Sacramento, Conway tried to

deposit the check but was informed by her bank, Sterling Bank,

that there were insufficient funds in the account to cover ,t he

check. Id. at 104. Conway thereafter contacted Defendant who

agreed to send a cashier's check, by way of FedEx, overnight;

however, Conway never received said check . Id. at 106.

Accordingly, Conway contacted Defendant again who aSBured Conway

that she would send a personal check via FedEx. This check was

sent to and received by Conway' a bank, however it was sent to

her bank's branch in Spokane, Washington. 9 The check was made

payable to Conway in the amount of five thousand one hundred

ninety dollars ($5,190.00) . Like the previous check tendered by

Defendant, this aecond check was also not honored based upon

insufficient funds in the account. Id. at 108.

Thereafter, the Bank sent this second check to Conway.

This check was admitted into evidence by the Commonwealth as

"Commonweal th' s Exhibi t 6." The printed writing in the upper

left-hand corner of the check was covered with yellow "whi te-

out." Conway testified that upon receipt of the check, she held

the check up to a window with a bright light shining through and

was able to read the printed writing .covered up by the "white-

out." She deciphered the printed writing to say: "Anthony

9 Conway testified that her "home" bank branch was located in Or egon . (N. T. 9/9/13 at 108).

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Gadaleta, Pohopoco Drive, Lehighton, pennsylvania."lo

Subsequently , Conway went to her local police department

who in turn contacted the Pennsylvania State Police in

Lehighton, and more specifically, Pennsylvania State Trooper

Nicolas De La Iglesia. After receiving the information supplied

to him by Conway, Trooper De La Igle~ia, (hereafter "Trooper"),

obtained a search warrant and executed this warrant at

Defendant' 9 residence on September 23, 2010 . (N.T . 9/9/13 at

136) . The Trooper brought a micr.o -chip scanner to Defendant' s

residence, located at 974 Pohopoco Drive, Franklin Township, for

the purpose of trying to find the two Labrador retrievers. Id.

at 137.

When the Trooper executed the search warrant I 11 the only

person present at the residence, besides the police, was the

Defendant. The Trooper accordingly approached the Defendant and

informed her that he h ad a search warrant and is looking for two

dogs from Oregon . Id . at 139 . Despite t h e Defendant inSisting

that the dogs were not at her property, the Trooper began

scanning all the dogs located on the property. The Trooper

began his search for the dogs in t he kennels located outside of

10 Conway did seate ehat she never received payment for the ewo Labrador retrievers and two shipping crates. (N.T . 9/9/13 at 112).

11 The Trooper testified that he was not alone when be executed the searcb warrant as Corporal Gross, Trooper Patrick Finn, Corporal Kathleen Tamerantz, and the Chief Police of Franklin Township Thomas Beltz were also present::. at Defendant's residence. (N.T. 9/9/13 at 137).

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the residence. Eventually. the Trooper found a chocolate

Labrador retriever inside the building and ran the micro-chip

scanner over the back shoulder area of the dog. Id. at 140 .

The micro-chip number of this chocolate ·L abrador matched the

number Conway provided the Trooper for the chocolate Labrador

Conway sent to Defendant, that being 045259601. Id. at 141.12

After finding the chocolate Labrador, the Trooper walked

outside with the dog and informed the other officers that he

found one of the dogs. Id. at 141-42. Upon hearing this, the

Defendant led the Trooper to the yellow Labrador, which the

Trooper confirmed through a positiv~ micro-chip match as the

other Labrador in question. 1 ]

Thereafter, Defendant informed the Trooper that the call

name for the chocolate Labrador was Winston, and Romeo for the

yellow Labrador retriever. (N . T. 9/9/13 at 146). Further, the

Defendant directed the Trooper to the shipping crates for each

dog.

The Trooper testified that subsequent to finding the dogs

and shipping crates. he entered Defendant's reSidence and went

to her office in the den. Id . at 148 . In the top drawer of the

12 The Trooper also took a picture of the micro-chip scanner depicting the micro-chip number. This picture was admitted into evidence as Commonwealth's Exhibit 9 . II As the Trooper did with the chocolat~ Labrador, the Troop~r took a picture of the micro - chip scanner that showed that the micra-Chip number matched the number Conway provided the Trooper for the yellow Labrador . (See, Commonwealth's Exh. 10).

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desk inside the office, the :rrooper found FedEx shipment slips

with the name "Kippler" inscribed on them. U Moreover , the

Trooper discovered email correspondences from the Defendant,

under the pretense of Meg Kippler, addressed to Conway herself,ls

Further, the Trooper found a deposit slip for an account in the

name of Defendant' s hus~and, Anthony Gadaleta. Id. at 153. The

account number of the deposit slip matched the account number of

the two personal checks Conway received from Defendant as

payment for the dogs.

Lastly, the Trooper stated he found the sales contract

between Conway and Defendant in Defendant's desk, along with

U The Trooper found three FedEx shipment air bills dated August 6, 2010, Au']Ust 18, 2010, and August 24, 2010, respectively. The shipment bills had the sender' a name as "Meg Kippler" or "Kippler" and Conway as the recipient for two of the packages and Sterling Savings Bank in spokane, Washington as the recipient of the third package. (N.T. 9/9/13 at 155-56).

U Commonwealth's exhibit 15 is an email dated July 30, 2010, from Conway sent to the email addreas ' of 1265chase@gm;J.il.com. This email address of l265chasecigmaiLcom is the email addreSS listed for "Meg Kippler n in the agreement of sale . See, Common.....ealth's EXb. 4. The email is titled: "Guess you and Ron have decided yes???" . The email was verified as being sent by Conway herself as the email address of the sender was forlabs@centurytel.net, which is Conway's email address. (N .T . 9/9/13 at 90). In this email, addressed to KMeg~, conway setG forth all the relevant information the Defendant would need in order eo retrieve the two Labrador dogs at Philadelphia . Airport. Additionally, this email reiterates the total cost of the dogs and how payment must be made. Lastly, the email ends with "Best, Cheri" and Conway's phone number. The Commonwealth a160 admitted into evidence another email found in Defendant's desk, labeled Conunonwealth's exhibit 20 . This email, dated August 24, 2010, is from Conway, a9 evidenced by the email address of forlabs®Centurytel.net, and the ceClplent is "apple N with a corresponding email address of 1265chase@mail.com. The contents of this email are in regards to Conway not receiving the payment sent via FedEx. The email contains a FedEx tracking number, 848489106264, which is the tracking number for the Fedex shipment bill found on Defendant'G desk, labeled Commonwealth's exhibit 18. Below this email is the original message from "apple N , with an email addreL'lS of 1265chase~ail. com, to Conway regarding the FedEx shipment of. payment. Said email is signed "Ron.-

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documents relating to the dogs themselves, namely their pedigree

and medical records. Ld. at 158.

At trial, the Commonwealth also called Defendant's ex-

husband, Anthony Gadaleta who testified that only he and the

Defendant resided in the residence during the timeframe at issue

in this case. (N. T. 9/10/13 at 24)." Moreover, Anthony

Gadaleta asserted that he had no involvement with Defendant's

breeding business, and where the Trooper found the FedEx

shipment bills and email correspondences was Defendant's private

office, an office he never used. Id. at 25-26. Further,

Anthony Gadaleta avowed that he never entered into a sales

contract with Conway I nor ever heard of her before this criminal

case.

Further I Mr. Gadaleta acknowledged that the deposit slip

found in Defendant's desk was a deposit slip from a bank account

he had with First Commonweal th Bank: and the account number of

this deposit slip corresponded to the account number on the two

personal checks Conway received as payment for the two dogs and

shipping crates, However, Anthony Gadaleta asserted that he

never authored these checks nor authorized anyone to issue these

checks on his behalf. Id. at 29-30.17 In addition, the

!6 During the timeframe at issue in this case Defendant and Anthony Gadaleta were married; however, subsequently their marriage dissolved.

17 Anthony Oadaleta also stilted that Defendant's sister lives in Waterford. New Jersey. (N.T. 9/10/13 at 40). The sticker placed in the upper left-hand

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signature on the two checks at issue are not the signatures of

Anthony Gadaleta as stated by him and supported by

Commonwealth's exhibit 25, which ~B a copy of Anthony's Gadaleta

driver's license depicting his true signature.

Lastly, Anthony Gadaleta stated that subsequent to

Defendant's arrest in this matter he found six cell phones

around Defendant's desk~ When Anthony Gadaleta met with Trooper

De La .Iglesia on March 17, 2011, he turned over these cell

phones to the Trooper. Thereafter , the Trooper applied for and

received a search warrant to examine the contents of the phones.

On one of the cell phones t~e Trooper discovered a phone number,

labeled as an outgoing call, made to a phone number belonging to

Conway.

As a result of the investigation conducted by the

Commonwealth, a criminal complaint was filed against the

Defendant on August 24, 2010. The Defendant was charged with

one count of theft by ~eceptlon, one count of receiving stolen

property, and two counts of issuing a bad check. A jury trial

began on September 9, 2013, and after hearing the above stated

evidence, a jury found the Defendant guilty on all charges.

Thereafter, a pre-sentence investigation report was

ordered. Upon completion of this report, the Court sentenced

of the first check Conway received from Defendant, the check in the amount of $5,040 . 00, listed Meg Kippler's address Waterford, New Jersey.

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Defendant on November 22, 2013, to a total sentence of not less

than twelve months nor more than twenty-four months in a state

correctional institution, followed by one year of probation.

Subsequently, on December 16, 2013, Defendant appealed her

judgment of sentence with her Concise Statement of Matters

Complained of on Appea l being filed on January 6, 2014 . In her

Concise Statement, Defendan"t raises four issues. These issues

are:

1) That the court erred in allowing testimony over objection concerning the contents of the cell phones received from Anthony Gadaleta months after the search of the residence; 2) That the verdict is contrary to law in that there was no evidence" connecting the person known to the victim as Meg Kipler (sic) with Patricia Gadaleta; 3) That the verdict is contrary to law in that there is absolute no evidence the party that iesued the checks with insufficient funds was Patricia Gada l etai and 4) That the verdict is contrary to the law in that there is absolutely no evidence the email address referenced in the communications between seller and buyer was that of the defendant Patricia Gadaleta. The party with that email address was never identified.

The Court will address these issues according l y.

DISCUSSION

In evaluating Defendant's issues raised on appeal, three of

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the four issues presented are of the same legal issue, that

being challenges to the sufficiency of the evidence presented by

the Commonwealth. Accordingly, the Court will address these

three issues together after first undertaking the merits, or

lack thereof, of Defendant's first issue raised on appeal.

I . ADMI SSION OF TES'rIMONY

Defendant's first issue raised on appeal contends that the

Court erred in allowing testimony, over Defendant ' s obj ection,

regarding the contents of certain cell phones received by the

Trooper from Anthony Gadaleta months after executing the search

warrant . Anthony Gadaleta testified that on March 17/ 2011, he

met with Trooper De La Iglesia at his and Defendant's residence.

At this meeting, Anthony Gadaleta handed the Trooper six cell

phones that he found around Defendant's desk. Moreover, Anthony

Gadaleta asserted that none of these cell phones belonged to

him .

The Trooper , upon receiving the cell phones I placed them

into a sealed envelope. Thereafter he applied for and obtained

a search warrant in an effort to ascertain certain information

that may be on the phones. In examining the dialed calls of one

of the phones the Trooper found a call was placed to Conway.

Defendant'S Concise Statement informs the Court that

Defendant is challenging the admissibility of the testimony

regarding the cell phones . In evaluating this iSBue, the Court

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finds itself speculating as to the specific nature of

Defendant's appeal . The Court is unsure if Defendant's

objection to the testimony of the cell phone is founded upon a

chain of custody issue, foundation or lack thereof a~ument, or

if Defendant is claiming that the testimony about the cell phone

was irrelevant and thus should have been prohibited.

The courts have previously addressed the effect of a "too

general" concise statement. ~When the trial court has to guess

what issues an appellant is appealing, that is not enough for

meaningful review. " Commonwealth v. Butler, 756 A.2d 55, 57

(Pa. Super. Ct. 2000) (brackets and quotation marks omitted).

"When an appellant fails adequately to identify in a concise

manner the issues sought to be pursued on appeal, the trial

court is impeded in its preparation of a legal analysis which is

pertinent to those issues." In re Estate of Daubert, 757 A.2d

962, 963 (Pa. Super. Ct. 2000) In other words, a concise

statement which is too vague to allow the court to identify the

issue raised on appeal is the functional equivalent of no

concise statement at all.

Since Defendant has appealed the testimony in general as it

relates to the ce ll phones, this Court is left conjecturing as

to the specific· nature of the exact issue Defendant is raising

on appeal. Consequently, this Court finds that Defendant's

fi rst issued raised in her Concise Statement too vague and

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therefore should be deemed waived.

Notwithstanding such, and if the Honorabl e Superior Court

finds Defendant was specific enough in her Concise Statement,

the Appellate Court should still dismiss Defendant's first issue

raised based upon a lack of merit . During the trial, the Court

conducted sidebar conversations with the Assistant District

Attorney and Defense Counsel in regards to the cell phones. For

purposes of this appeal, the Court surmises that Defendant is

appealing the admission of the cell phones based upon three

legal principles : relevancy, foundation, and chain of custody.

The Court will address each issue accordingly .

The standard of review on the challenge of the

admissibility of evidence is as follows:

Admission of evidence is within the sound discretion of the trial court ano. will be reversed only upon a showing that the trial court clearly abused its discretion. Admissibility depends on relevance and probative value. Bvidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact . Commonwealth v. Levanduski, 907 A. 2d 3, 13-14 (pa . Super. Ct.

2006) (quoting Commonweal t h v. Drumheller , 570 Pa. 117, 808 A.2d

893, 904 ( 2002), certi o rari denied, 539 U.S. 919, 123 S.ct.

2284. 156 L . Ed.2d 137 (2003».

Defendant's relevancy and foundation objections at trial

were grounded upon the same argument, that being the

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Commonwealth cannot establish that the cell phones found by

Anthony Gadaleta belonged to the Defendant. Moreover, Defense

Counsel argued to the Court that the Commonwealth cannot prove

that Defendant made any of the dialed calls.

Pennsylvania Rule of Evidence 901 mandates that

authentication is required prior to the admission of evidence.

Pa.R.E. 901. The proponent of the evidence must introduce

sufficient evidence that the matter is what it purports to be.

In re F.P., B78 A.2d 91 (Pa. Super. Ct. 2005). Pennsylvania

Rule of Evidence 901 also states that the foundational

requirement of authentication or identification is satisfied by

evidence sufficient to support a finding that the matter in

question is what its proponent claims. Pa.R.E. 901(a). When a

party offers evidence contending either expressly or impliedly

that the evidence is connected with a person, place, thing, or

event, the party must provided evidence sufficient to support a

finding of the contended connection. Commonwealth v. Hudson,

414 A.2d 1381 (Pa. 1980). Evidence can be authenticated by

circumstantial evidence. Commonwealth v. Collins, 957 A.2d 237

(Pa. 200B).

In matters of authentication, if the court finds enough

support in the record to cause a reasonable person to believe

that the evidence is what it purports to be, Pennsylvania Rule

of Evidence 901 is satisfied and the weight to be given to the

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evidence is left to the jury. Commonwealth v. Nally, 138 A. 836

(Pa. 1927); Commonwealth v. Pollock, 606 A.2d sao (Pa. Super.

Ct. 1992).

The Commonwealth, in establishing a foundation that the

cel l phones were those of the Defendant, proffered the testimony

of Anthony Gadaleta. Mr. ' Gadaleta testified that after the

Defendant was arrested he found the cell phones in Defendant' s

office and more specifically around Defendant's desk area.

Moreover, Anthony Gadaleta asserted that none of the ce l l phones

were his nor did he ever use any of these phones. 18

Additionally, it was stated by Anthony Gadaleta that the only

persons to have access' to Defendant's off ice was the De fendant

and himself, although he never used that office . Based upon

such test imony , the Court found a proper foundation was

established by the Commonwealth.

Consequently, the Court disagreed wi th Defendant's argument

that such testimony regarding the cell phones was irrelevant

because the jury could only speculate as to who placed such

calls. By establishing that the cell phones belonged to the

Defendant and that only oefendant had access to said phones, it

was within the jury's province to infer that Defendant placed

those calls. The fact . that the Commonwealth could not present

11 Anthony Gadalcta statcd hc only had onc cell phone, which was L:i~d to h i s employment.

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direct evidence demonst:!:'ating that Defendant placed the call to

Conway or the fact that the cell phones were turned over to the

Trooper months after the police executed the search warrant go

to the weight of the testimony, not its admissibility .

After f i nding that the Commonwealth established a proper

foundation to authenticate and identify the cell phones, the

Court also ruled that the testimony regarding these cell phones

was relevant. Evidence is relevant if it logically t ends to

establish a material fact i n the case , tends to make a fact at

issue more or less probable, or supports a reasonable inference

or presumption regarding a material fact. Pa.R . E . 401;

Commonwealth v. Lesko, 15 A·.3d 345 CPa . 2011). The crux of the

Commonwealth' 8 case was establishing that Meg Kippler was in

reality the Defendant. A phone call made to Conway herself f r om

a cell phone found in Defendant's personal office that only her

and Anthony Gadaleta had access to, along with Mr. Gadaleta

asserting that he never used t h at cell phone f are facts that

assists the Commonwealth in establishing, albeit

circumstantially, that the Defendant portrayed herself to Conway

a8 Meg Kippler.

Notwithstanding that evidence might be relevant, evidence

can be inadmis9ible if such evidence is unfairly prejudicial .

Pennsylvania Rule of Evidence 403 states that relevant evidence

may be excluded "if its probative value is outweighed by .

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unfair prejudice . " Pa.R.E. 403(a}. Defendant argued at

trial that permitting the testimony about the cell phones would

be unfairly prejudicial due to the speculative nature of the

testimony. As just stated above, this Court did not find the

testimony regarding the cell phones to be speculative; the

phones were found in Defendant's "personal office where only she

and Anthony Gadaleta had access. Additionaily, Anthony Gadaleta

avowed that he never us"e d the cell phones he found at

Defendant's desk. Although this Court does not disagree with

Defendant's claim that such testimony may be prejudicial, as the

Court would presume any evidence offered by the Commonwealth

would be prej udicial to a defendant, the Court does not concur

with Defendant's assertion that the testimony was unfairly

prejudicial such that t 'he probative value was outweighed by the

prejudicial nature of the testimony. Consequently, the Court

ruled that such testimony was relevant and perm4tted.

Defendant's other objection at trial to the testimony

regarding the cell phones "being permitted was founded upon a

chain of custody objection. The "chain of custody" rule comes

from the principle that real evidence must be authenticated

prior to its admission into evidence. UGI Utilities, Inc. v.

Unemployment Compensation Board of Review, 851 A.2d 240 (Pa.

Cmwlth . Ct. 2004). The rationale for this threshold requirement

is the need to establish that the item to be introduced is what

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it purports to be. The ultimate . question is whether the

authenticat i on testimony is sufficiently complete so as co

persuade the court that it is improbable that the original item

has been exchanged with another or altered in any material

aspect. See, In re D.Y., 34 A. 3d 177 (Pa . Super. Ct.

20 1 1) (chain of custody refers to the manner in which evidence

was maintained from the time it was collected to its submission

at trial).

While the offering party bears the burden of demonstrating

some reasonable connection between the proffered exhibit and t he

true evidence, it need not establish the sanctity of its exhibit

beyond a moral certaint y . Commonwealth v. Cugnini, 452 A.2d

1064 (Pa. Supe r . Ct . 1982). A complete chain of custody is not

required sa long as the evidence, direct and circumstantial,

establishes a reasonable inference that the identity and

condition of the exhibit has remained the same from the time it

was first obtained until the time of trial. Hudson, 4 1 4 A.2d at

1387. Any gaps in testimony regarding the chain of custody go

to the weight to be given to the testimony, not to its

admissibility . Commonwealth v. Bolden, 406 A.2d 333 (pa. 1979).

In the case at bar, Anthony Gadaleta testified that upon

finding the cell phones around Defendant's desk he turned them

over to Trooper De La Iglesia on March 17, 2011 . The Trooper,

upon receiving these phones, placed them in an envelope and

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sealed the envelope. The Trooper thereafter obtained a search

warrant and examined the contents of the phones. From his

examination of the cell phones, the Trooper found that a phone

call was made to a number later determined to be Conway's phone

number. Accordingly, the Commonwealth set forth a proper chain

of custody to permit the Trooper to testify r egarding the

contents of the phones. Thus Defendant· s first issue raised on

appeal should be dismissed. 1 '

II. SUFFICIENCY OF THE EVIDENCE

Defendant's second, third, and fourth issues raised on

appeal are all challenges to the sufficiency of the evidence.

The standard of review to a challenge of the sufficiency of the

evidence is well-settled:

l' If the Appellate Court does determine that such evidence regarding the cell phones shOUld have been prohibited, this court seee such error as harmless error . In Commonwealth v. Moore, ~37 A. 2d 1062 (Pa . 2007), the Supreme Court of chis Commonwealth reaffirmed that an error may be considered harmless only when the Commonwealth proves beyoml a reasonable doubt that the er.ror could not have contributed to the verdict. Whenever there is a reasonable possibility that an error could have contributed to the verdict. the error is not barml.ess. Commonwealch v. Passmore, 857 A. 2d 697, 711 (Pa. Super. Ct. 2004) . An error may be deemed harmless. incer alia, where the properly admitted and uncontradicted evidence of guilty was so overwhelming and the prejudicial effect of the error was insignificant by comparison t:hat: t:he error could not have contributed · t o the verdict. Moore, 937 A.2d at 1073. Harmless error exists when the error did not prejudice the defendant, the prejudice was de mi nimis, or the erroneously admitted evidence was merely cumulative of other untainted evidence, which was substantially similar to the erroneously admitted evidence. Passmore. 857 A.2d at 711. As set forth below in Defendant's second, third, and fourth issues raised on appeal, the evidence presented by the Commonwealth was of such an overwhelming nature that if the Appellate court were to rule that the admission of the testimony regarding the cell· phones was an error such error was only de minimis. In examining the record as a whole, the testimony about the cell phone was merely cumulative in the Commomlealth' B pursuit in proving that Defendant falsely portrayed herself to Conway as an individual named Meg Kippler. There.fore, Defendant'S tirQt issue raised on appe3.1 should be dismissed.

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A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when ' it establ ishes each materi al element o f the crime charged and the commission t hereof by t he accused, beyond a reasonable doubt. Where t he evidence offered to support t he verdict is in contradiction to the physical facts, i n contravention to humah experience and the laws of nature, then the evidence is insufficient as a matter of law . When reviewing a suf ficiency claim the court is required to view the evidence in the light most favorable to the verdict wi nner giving the prosecution the benefit of a ll reasonable in"ferences to be drawn from the evidence. Commonweal th v. Widmer , 744 A.2d 745 . 751-52 (Pa . 2000)

(internal c itations, foot notes, and quotat i on marks omitted ).

Given the standard the ,Court must apply to a sufficiency of the

evidence challenge, the Court will now address each issue raised

by Defendant .

a ) Lack of evidence connectin g t:he pers on known to the victim as M8g ~p'pl er with Pa tricia Ga daleta

Defendant's first challenge to the suffic i ency of the

evidence argues that the Commonwealth failed to present any

evidence establishing t hat t he person known to Conway as Meg

Kippler was in fact the Defendant hersel f . In essence,

Defendant's chal lenge goes to the core of the Commonwealth's

case : that the Defendant intentionally and fa l sely dece i ved

Conway into believing that she, the Defendant, was an individual

named Meg Kippl er. Notwithstanding Defendant ' s contention, the

Commonwealth presented overwhelming evidence to establish that

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the person Conway though t was Meg Kippler was in reality the

Defendant.

In evaluating the testimony proffered by the Commonwealth,

in conjunction with the evidenced submitted, it was established

that in July of 2010 Conway spoke to an individual who

identified herself as Meg Kippler about the purchase of a

Labrador retriever. After several conversations, Conway and

this individual, identifying herself as Meg Kippler, reached an

agreement whereby Conway would sell one male chocolate Labrador

retriever named Winston and one yellow male Labrador retriever

named Romeo to this individual purporting to be Meg Kippler.

Conway stated that her customary practice in breeding and then

selling dogs was to place a micro-chip under the skin of the

dog's shoulder, which .she did with both dogs. The micro-chip

has a specific identification number that only correlates with

that micro-chip. The yellow Labrador retri ever had a micro -chi p

number of 012769333, and the male chocolat e Labrador retriever

had a micro-chip number of 045259601.

Trooper De La Iglesia testified that in executing a search

warrant upon Defendant's residence on the report that two stolen

Labrador r etrievers were located at Defendant's home, he located

a chocolate Labrador retriever with a micro-chip number matching

the number Conway provided him for the chocolate Labrador she

sold to the individual claiming to be Meg Kippler. Thereafter,

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the Defendant lead the Trooper to the yellow Labrador and the

Trooper subsequently confirmed that this was the other Labrador

in question after scanning the dog with the micro -chip scanner.

Furthermore, after finding both Labrador dogs the Defendant

told the Trooper that the call name for the chocolate Labrador

is Winston, and Romeo is the call name for the yellow Labrador

retriever.

The Commonwealth , in supporting its case that the

individual identifying herself to Conway as Meg Kippler was in

fact the Defendant herself, introduced into evidence the sales

agreement between the parties. Conway testified that she

emailed the person she thought was Meg Kippler a copy of the

sales agreement. conway verified that the copy of the sale

agreement found in Defendant's desk was in fact the agreement

she sent "Meg Kippler." Moreover, the agreement of sale sets

forth a description of the " two dogs including their micro-chip

numbers, and was signed by "Meg Kippler."

In addition, the Commonwealth presented both checks that

Conway received as purported payment for the two dogs and

shipping crates in an attempt to prove that f'.1eg Kippler was in

fact the Defendant Patricia Gadaleta. The firs t check Conway

received as payment had " a sticker in the upper left -hand corner

that read: "Kippler, Waterford , New Jersey." As testified by

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Anthony Gadaleta, Defendant's sister resides in Waterford, New

Jersey. Moreover, this check was made payable to Conway.

The second check the Commonwealth introduced into evidence

was the check received by Conway's bank branch in Spokane,

Washington. In the upper left-hand corner of this check, a

check also made payable to Conway, was yellow white-out. Per

Conway' 8 testimony, upon receiving this check from her bank

branch, she held it up to a bright light and was able to read

the printed writing underneath the whi.te-out. Conway deciphered

the printed writing to say: "Anthony Gadaleta, Pohopoco Drive,

Lehighton, Pennsylvania. n

Anthony Gadaleta testified that only he and the Defendant

resided in the residence during the timeframe at issue in this

case. More importantly, upon acknowledging that the checks

received by Conway were checks written from his Dank account

with First commonwealth Bank, Anthony Gadaleta declared he never

authored the checks received by Conway, nor did he authorize

anyone to issue such checks on his behalf. Further. Anthony

Gadaleta asserted that the signature on both checks at issue is

not his signature. I n support of Anthony Gadaleta' s assertion

that the signature on the two checks was not his signature, the

Commonwealth introduced a copy of Anthony Gadaleta's driver's

li cense depicting his correct signature.

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Further evidence in support of the Commonwealth's

contention that Meg Kippler was in reality the Defendant was

established by the Trooper testifying that he found three FedEx

shipment bills inside the top drawer of Defendant' B desk. The

name scribed as the sender for all three shipment bills is

\\Kippler" with Conway being the designated recipient on two ' of

the bills and Conway's bank in Spokane, Washington the recipient

of the third package. Moreover, the date of the first check

Conway received as payment for the dogs corresponds wi th the

date of the first FedEx shipment bill, a bill that lists Conway

as the recipient. Conway testified that ahe did in fact receive

this check.

Similarly, the thi·rd FedEx shipment bill was dated August

24, 2010, which matches the date on the second check in this

case. Additionally, as just stated, the recipient on this FedEx

shipment bill was Sterling savings Bank in Spokane, Washington.

Conway testified that the second check was received by her bank,

Sterling Savings Bank in Spokane, Washington.

Lastly, the Trooper stated he found in Defendant's desk

documents relating to the dogs themselves, more specifically the

pedigree of the dogs and their corresponding medical records.

The jury, upon listening to the testimony of Conway and

Anthony Gadaleta found their testimony to be credible. The

determinacion of credibility of a witness is within the

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exclusive province of the jury . Commonwealth v. Seese, 517 A.2d

920. 923 (Pa. 1986).

Defendant's argument that the Commonwealth has failed to

establish that the Defendant portrayed herself t o Conway as Meg

Kippler intimates that the Court should examine the testimony

and evidence presented by these two witnesses mutually exclusive

of each other. Although Defendant sought of the jury. and now

seeks on - appeal to have the Appellate Court evaluate each piece

of evidence in a vacuum, the jigsaw puzzle the Commonwealth

presented in establishing its case was not complete until all

evidence and testimony was presented and the jury was able to

review such evidence in concert with one another. In other

words, a j igsa,:" puzzle is -complete once all the pieces are in

place and the puzzle depicts the picture on the box. Here, once

all the pieces of evidence were presented by the Commonwealth,

the jigsaw puzzle, as a whole, depicts the Defendant falsely

portraying- herself to Conway as an individual named M.e g Kippler.

b) No Evidence that the De£endant was the party t1:zat issued the checks wi th insufficient £unds

Conway testified that throughout her various modes of

corresponding with the Defendant, she, Conway, believed she was

communicating with a woman named Meg Kippler and her husband

Ron. Such testimony is supported by the agreement of sale

between Conway and the Kipplers where in the agreement of sale

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the Kipplers' address is listed as 1613 Conrad Avenue,

Waterford, New Jersey 08089; in addition, the agreement of sale

sets forth the contract price for the two Labrador dogs,

shipping crates, and other expenses necessary to ship the dogs

from Sacramento to Philadelphia. This agreement of sale was

admitted into evidence .

At the trial, the Commonwealth presented both checks Conway

received as payment for the two Labrador dogs and shipping

crates. The firs t check, issued to Conway, had a sticker in the

upper left -hand corner that contained the name "Kippler" and a

Waterford, New Jersey address. As stated by Anthony Gadaleta,

Defendant's sister resides in Waterford. New Jersey.

The second check proffered by the Conunonwealth,

Commonwealth's exhibit six, was also made out to Conway ~.D-d .. hac;i

yellow white-out covering the printed writing in the uppe r left-

hand corner . Per Conway's testimony, upon receiving the second

check from her bank's branch in Spokane, Washington r she was

able to hold it up to a bright light and read the printed

writing the white-out was covering. Said printed writing under

the white-out stated: Anthony Gadaleta, 97~ Pohopoco Drive,

Lehighton, PA 18235.

In proving that the Defendant issued these two checks, the

commonwealth offered the testimony of Anthony Gadaleta , who was

Defendant: s husband during the timeframe in question.

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Gadaleta testified that he did not issue either of the checks

nor did he authorize anyone to issue such checks on his behalf.

Moreover, Anthony Gadaleta stated that the signature on both

checks was not his; such testimony was supported by a copy of

Anthony Gadaleta' s driver's license depicting his actual

signature. Further, the jury in finding Anthony Gadaleta

credible, accepted his test imony as true insofar as he never

entered into a contract with Conway for the purchase of two

Labrador dogs and shipping crates.

Additionally, Anthony Gadaleta asserted that where the

Trooper found a deposit slip from his bank account with Fi rst

Commonwealth Bank, that being in Defendant's desk, only the

Defendant and he had access to this area of the home.

Lastly, Trooper De La Iglesia testified that he found three

FedEx shipment bills located in Defendant' B desk. The listed

recipient on Commonwealth's exhibit seventeen is Conway herself,

with the shipment bill being dated August 8 I 2010. The first

check at issue in this case is date August a, 2010, a check that

Conway herself received.

Commonwealth's exhibit nineteen, another FedEx shipment

bill dated August 24, 2010, indicated that the recipient was

Sterling Savings Bank located in Spokane, washington. The

second check the Defendant sent Conway is dated August 24, 2010,

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with said check being received by Conway 's bank, Sterling

Savings Bank., in Spokane, Washington. :10

For these reasons stated, this Court finds there is

voluminous evidence to support the jury's finding that the

Defendant i ssued the two checks without insuffic ient funds to

cover them.

0) Lack of evidence that the email address referenced in the cODIIIZUIlications between sel~&r and buyer was tbat o~ the Defendant

Defendant's final issue raised on appeal suggests that

there was insufficient evidence to establish that the email

address referenced in the communications between Conway and who

she believed was Meg Kippler belonged to the Defendant herself.

Upon examining the evidence proffered by the Commonwealth, in

conjunction wi th the testimony, the Court finds this issue

meritleSB.

The · Court first notes that the correspondences Defendant is

referring to are t he emaila the Trooper found in Defendant's

desk. Anthony Gadaleta testified that this desk was located in

Defendant's office . Moreover, he never did work i n Defendant's

20 Although both checks were not written for the exact contract price, such checks were only written for an amount slightly greater than the original contract price . This Court £indo the two issued checks to be within such a price range to al low the jury to conclude that both checks were written by the Defendant for payment of the two dogs, shipping cr~tee, and other expenses associated wich shipping the dogs.

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office and no one besides the Defendant or him had access to

t hi s room.

Further, the two email addresses reflected on these

correspondences are: forlabs@centurytel.net, and

1265chase®gmail.com. Conway testified that her email address is

forlabs @centurytel.net. The agreement of sale lists the buyer's

email address for an individual named Meg Kippler as

1265chase®gmail.com. The testimony proffered established tha t /

Conway sent the agreement of sale to Defendant by way of an

email thinking she, Conway, was sending the agreement to Meg

Kippler. Defendant, upon receiving the agreement of sale signed

the agreement as Meg Kippler, scanned it, and emailed the

agreement back to Conway. A copy of the agreement of sale was

found by the Trooper in Defendant's desk.

Lastly, the contents of the correBpondences led the jury to

conclude that the email address of 126Schase®gmail.com was the

email address Defendant used in communicated wi th Conway. The

first email admitted into evidence by the Commonwealth, .,.- . - Commonwealth's exhibit 15, is from Conway. In this email,

addressed to "Meg" , Conway sets forth all the relevant

information the Defendant would need in order to retrieve the

two Labrador dogs from ' the Philadelphia Airport. Further, the

price listed in this email mirrored the total cost for the dogs

and shipping crates as stated in the agreement of sale.

[FM-1l-14) 30 Circulated 12/30/2014 08:40 AM

The Commonwealth also .admitted into evidence another email

found in Defendant's desk, labeled Commonwealth's exhibit

twenty. This email, dated August 24, 2010 I is from conway as

evidenced by the sender's email address of

forlabs@centurytel .net. The recipient of this email was :"apple"

with a corresponding email address of 1265chase®mail.com. The

contents of this email . are in regards to Conway not receiving

the payment that was supposed to be delivered by FedEx. The

email contains a FedEx tracking number, 848489106264, which is

the tracking number for the FedEx shipment bill labeled

Commonwealth's exhibit eighteen. Said FedEx shipment bill was

also found on Defendant's desk.

Taking into consideration the standard the Court must

apply, that being examining. the evidence in the light most

favorable to the Commonwealth, and in consideration cif the

totality of the evidence presented by the Commonwealth in

establishing that Defendant used the email address of

1265chase®gmail.com in communicating with Conway, Defendant's

issue is meritless and should be dismi~sed.

CONCLUSION

Based upon the foregoing, this Court respectfully asks that

Defendant's issues raised on appeal be dismissed as being

fabricated from whole cloth and meritless. Accordingly, this . _... .. .

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Court respec tfully recommends that the jury verdict be allowed

to stand and that this order of Court dated November 22, 2013,

imposing upon Defendant a period of incarceration in a state

correction al institution of not less than twelve months nor more

than twenty - four months, followed by one year of state

probation, with the Defendant receiving one hundred sixty-nine

days credit against her B~ntence for time a lready served, be

affirmed.

BY THE COURT:

J~

" ,'

. ' ,

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