Com. v. Henderson, L.

Opinion

J-A26010-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LAVET I. HENDERSON,

Appellant No. 68 MDA 2014

Appeal from the Judgment of Sentence November 6, 2013 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005221-2011

BEFORE: BOWES, MUNDY, and JENKINS, JJ.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 22, 2014

Lavet I. Henderson appeals from the aggregate judgment of sentence

of eighteen months probation imposed by the trial court after the court

found her guilty of criminal mischief and harassment by communication.

After review of the record, the parties’ briefs, and the applicable law, we

affirm on the basis of the well-reasoned opinion of the learned Judge Andrew

H. Dowling.

The facts underlying this matter are as follows. The victim herein is

the paternal grandmother of Appellant’s child. Appellant and the father of

the child are unmarried. The father of Appellant’s child resided at 2350

Berryhill Street, across the street from the victim. On September 17, 2011,

the victim was renting a 2011 Ford 150 pick-up truck from Budget Rent-A-

Car. Appellant visited the father of her child on that date to ask him to J-A26010-14

support his newborn child. She and the father then had a verbal

disagreement. Afterward, a neighbor of the victim informed her that

Appellant had thrown a cinderblock through the driver’s side window of the

truck in question.1 The neighbor, Heather Elliot, identified Appellant at trial

as the culprit. Appellant also telephoned the victim approximately twenty-

five times over a ten-day period, harassing the victim. In one of those calls,

she admitted to throwing the block through the truck window.

The president of the Budget Rent-A-Car that owned the vehicle in

question, Solomon Cramer, testified to the damage to the vehicle based on a

record prepared by an appraiser named Vance Veith. According to Mr.

Cramer, Mr. Veith regularly prepares appraisals of vehicles for his company

and that Mr. Cramer himself observed the damage to the truck. The

damage to the vehicle was $3,094 and an additional $1,200 in labor costs.

The victim’s insurance company paid approximately $4,200 to Budget Rent-

A-Car for the damage. Based on this evidence, the court found Appellant

guilty of criminal mischief and harassment. The court sentenced Appellant

to eighteen months probation. This appeal ensued. The court directed

Appellant to file and serve a concise statement of errors complained of on

appeal. Appellant complied, and the trial court authored an opinion. The

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1 There was also significant damage to the front windshield. The neighbor testified that she saw Appellant throw the cinderblock at the truck twice.

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matter is now ready for our review. Appellant presents three issues for this

Court’s consideration.

I. Whether the trial court erred in admitting the Commonwealth’s evidence regarding the amount of damage caused to a rental car where such evidence constituted inadmissible hearsay?

II. Whether the Commonwealth failed to present sufficient evidence to sustain Appellant’s convictions where it failed to prove that Appellant committed the crimes charged?

III. Whether the Commonwealth failed to present sufficient evidence to sustain Appellant’s convictions where it failed to prove the amount of damage caused to the rental car?

Appellant’s brief at 5.

Appellant’s latter two issues relate to the sufficiency of the evidence.

Since sufficiency claims entitle a person to discharge, we address those

issues at the outset. We view all of the evidence admitted, even improperly

admitted evidence, in conducting a sufficiency review. Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such

evidence in a light most favorable to the Commonwealth as the verdict

winner, drawing all reasonable inferences from the evidence in favor of the

Commonwealth. Id. When evidence exists to allow the fact-finder to

determine beyond a reasonable doubt each element of the crimes charged,

the sufficiency claim will fail. Id.

The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

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Id. In addition, the Commonwealth can prove its case by circumstantial

evidence. Where “the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined

circumstances[,]” a defendant is entitled to relief. This Court is not

permitted “to re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id.

Much of Appellant’s argument is premised on disbelieving the

testimony of Heather Elliott and the victim, which we are not permitted to

do. In addition, Appellant disregards that we must consider the damage

estimate since it was admitted into evidence. She argues that, since this

testimony was inadmissible, the Commonwealth did not prove damages of

$5,000. However, the Commonwealth was not required to establish

damages of $5,000. Rather, it amended the criminal information to a

misdemeanor of the second degree and accordingly was required to show

damages between $1,000 to $5,000. Hence, Appellant’s position that the

Commonwealth only proved damages in the amount of $4,924.05 is

meritless. We add that, based on the reasons outlined by the trial court in its

opinion, Appellant’s sufficiency issues fail.

Appellant’s initial claim pertains to the admission of evidence. We

evaluate evidentiary issues under an abuse of discretion standard.

Commonwealth v. Stephens, 74 A.3d 1034 (Pa.Super. 2013). Appellant

argues that the third party damage estimate used in this matter was

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inadmissible hearsay and did not fall within the business records hearsay

exception. In this latter regard, she contends that because no one

authenticated the damage estimate, nor did an individual from the company

that appraised the vehicle testify, the criteria for meeting the business

records exception was not met. We disagree. First, we note that Appellant

did not object based on any lack of authentication. Moreover, as the trial

court ably detailed in its opinion, the person who keeps or produces the

record is not required to testify. For the reasons outlined by the trial court,

we find that Appellant’s hearsay issue does not entitle her to relief.

Judgment of sentence affirmed.

Judge Mundy joins the Memorandum.

Judge Jenkins Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/22/2014

-5- Circulated 09/29/2014 10:32 AM