Com. v. Hinton, G.

• Court: Superior Court of Pennsylvania
• Decided: December 8, 2017
• Docket: 628 MDA 2017
• Status: Unpublished

Opinion

J-S64001-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : GARY JOSEPH HINTON : : No. 628 MDA 2017 Appellant

Appeal from the Judgment of Sentence February 6, 2017 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000479-2016

BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J. FILED DECEMBER 08, 2017

Appellant, Gary Joseph Hinton, appeals from the judgment entered in

the Adams County Court of Common Pleas following a jury trial. Appellant

contends the trial court erred in consolidating his trial with his co-defendant,

and denying his requests for an acquittal. We affirm.

The relevant facts and procedural history for this matter are as follows.

On November 19, 2015, the windows of three vehicles owned by Patricia

Ivimey, Diane Lenhart, and Yanessa Kaserman, respectively, were smashed

in the parking lot of the Spirit Trust Lutheran Home1 in Adams County,

Pennsylvania. The victims reported missing items, including purses with credit

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 Former Justice specially assigned to the Superior Court.

1 It appears that at the time of the incident, the business was referred to as the Gettysburg Lutheran Home. See Trial Court opinion, 4/10/17, at 1 n.1. J-S64001-17

cards inside, from their vehicles. Ivimey later reported to the police that

someone used her stolen Chase Amazon Visa Card without her permission at

the Gettysburg Walmart, the Gettysburg Sheetz, and the Fayetteville Rutter

on the night of November 19, 2015.

Based upon this information, Trooper Jonathan Wolfe of the

Pennsylvania State Police contacted the Gettysburg Walmart and the

Gettysburg Sheetz for surveillance photographs from that night. Once he

received photographs for the relevant times, Trooper Wolfe determined the

use of Ivimey’s credit card to purchase fuel for co-defendant’s vehicle on

November 19. Trooper Wolfe brought co-defendant in for questioning. During

the interview, co-defendant admitted to using Ivimey’s credit card, but

claimed he received it from another person and did not know about its illegal

status. Trooper Wolfe later interviewed Appellant, who admitted to being

present in the Walmart when co-defendant used Ivimey’s credit card, but

denied knowledge of its impermissible use.

Ultimately, through a criminal complaint, the Commonwealth charged

Appellant with two counts of access device fraud,2 five counts of theft by

2 18 Pa.C.S.A. § 4106(a)(1)(ii). The two counts arose from the alleged unauthorized use of the credit cards of Westbrook and Ivimey, respectively. See Criminal Complaint, 12/14/15, at 1.

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unlawful taking-moveable property,3 and six counts of criminal mischief.4

Presumably, at approximately the same time, co-defendant was charged for

his part in the November 19 offenses. The Commonwealth moved to join

Appellant and co-defendant for trial. After a hearing, the trial court granted

the Commonwealth’s request for joinder over Appellant’s objections.

Appellant and co-defendant proceeded to a joint trial. By the

commencement of trial, Appellant only faced five of the original thirteen

charges—one count of access device fraud, three counts of theft by unlawful

taking-moveable property, and one count of criminal mischief. 5 See N.T.,

12/7/16, at 8. Ivimey, Kaserman, Lenhart, Trooper Wolfe, Tracie Clevenger,

and Jose Vega, all testified on behalf of the Commonwealth. Ivimey testified

that someone used her credit card at the Gettysburg Sheetz and Walmart on

3 18 Pa.C.S.A. § 3921(a). The five counts arose from allegations that Appellant exercised unlawful control over purses belonging to five separate victims. See id.

4 18 Pa.C.S.A. § 3304(a)(5). The six counts arose from allegations that Appellant damaged the vehicle windows of six separate victims. See id., at 2.

5 The Commonwealth dropped five of the six counts of criminal mischief at Appellant’s arraignment. See Criminal Information, 5/19/16. Further, through the Criminal Information, the Commonwealth specified the charges filed in relation to each specific victim. See id. (count 1: access device fraud (Westbrook); count 2, access device fraud (Ivimey); count 3, theft (Ivimey); count 4, theft (Westbrook); count 5, criminal mischief (all victims); count 6, theft (Martinez); count 7, theft (Lenhart); and count 8, theft (Kaserman)). Further, on the day of trial, the Commonwealth dropped counts 1, 4 and 6 from the criminal information. See Criminal Information, 5/19/16. Thus, the remaining charges against Appellant were count 2, access device fraud (Ivimey), count 3, theft (Ivimey), count 7, theft (Lenhart), and count 8, theft (Kaserman).

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November 19 without her permission. See id., at 38-39. Clevenger, a loss

prevention agent with Sheetz, confirmed that photographic evidence placed

co-defendant’s vehicle at the gas pump where Ivimey’s credit card, as

confirmed by Trooper Wolfe, was used. See id., at 59, 62. Vega, an assistant

manager at the Gettysburg Walmart, testified photographic evidence from the

store’s security cameras placed two men in the checkout lane at Walmart who

then used Ivimey’s credit card. See id., at 68-71. Trooper Wolfe provided

testimony related to his investigation, and the information received during the

pre-arrest interviews with co-defendant and Appellant. See id., at 78-98.

At the close of the Commonwealth’s case, Appellant’s counsel, citing

insufficient evidence, moved for an acquittal on all of Appellant’s remaining

charges. See id., at 98-100. The trial court granted Appellant’s request as to

the counts of theft by unlawful taking-moveable property and criminal

mischief, but denied Appellant’s request as to the count of access device fraud

in relation to the unauthorized use of Ivimey’s credit card. See id., at 103-

Appellant did not testify at trial, but co-defendant did. Co-Defendant

admitted he used Ivimey’s credit card at both the Sheetz and the Walmart,

but claimed he received the credit card from Appellant and did not know it

belonged to Ivimey or that he used it without the owner’s permission. See

id., at 109-111. Further, co-defendant testified that he did not place all of the

items purchased using Ivimey’s credit card on the conveyor belt at Walmart.

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See id. After the close of evidence, the jury convicted Appellant of access

device fraud. See id., at 185.

Appellant appeared for sentencing on February 6, 2017, and once again,

motioned the trial court for an acquittal based upon insufficient evidence. The

trial court denied this request, and sentenced Appellant to a term of 24 months

to 48 months’ imprisonment. This timely appeal follows.

Prior to addressing Appellant’s issues on the merits, we must first

determine whether he has properly preserved one of them for our review. In

his third issue, Appellant contends the trial court erred in joining his case with

the case of his co-defendant. While Appellant provides several arguments to

support his claim of inappropriate joinder, he has failed to ensure that the

certified record contains the information necessary for our review. Specifically,

he has failed to provide us with a transcript of the September 26, 2016 hearing

in which the Commonwealth presented its joinder motion.

“The fundamental tool for appellate review is the official record of events

that occurred in the trial court.” Commonwealth v. Preston, 904 A.2d 1, 6

(Pa. Super. 2006) (en banc) (citation omitted). We cannot consider on appeal

any item that is not in the official, or certified, record. See id.

“Our law is unequivocal that the responsibility rests upon the appellant

to ensure that the record certified on appeal is complete in the sense that it

contains all of the materials necessary for the reviewing court to perform its

duty.” Id., at 7 (citation omitted). “With regard to missing transcripts, the

Rules of Appellate Procedure require an appellant to order and pay for any

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transcript necessary to permit resolution of the issues raised on appeal.” Id.

(citing Pa.R.A.P. 1911(a)).

Here, a review of the order for transcript attached to Appellant’s notice

of appeal reveals Appellant did not order the transcript from the September

26 hearing. Appellant only ordered the trial transcript and the sentencing

transcript.6

When the appellant … fails to conform to the requirements of Rule 1911, any claims that cannot be resolved in the absence of the necessary transcript or transcripts must be deemed waived for the purpose of appellate review. It is not proper for either the Pennsylvania Supreme Court or the Superior Court to order transcripts nor is it the responsibility of the appellate courts to obtain the necessary transcripts.

Id. (citation to case law omitted).

Without this transcript, the certified record contains no information

related to the charges of the co-defendant at the time of the hearing and/or

the arguments the trial court considered when ruling on the Commonwealth’s

joinder motion. Thus, because we cannot resolve this claim in the absence of

the September 26 hearing, we must deem this argument waived for our

review.

Moving to the issues Appellant has preserved for our review, Appellant

challenges the trial court’s decision to deny his requests for an acquittal, both

at trial and prior to sentencing. Appellant’s claims of error amounts to a

6The docket entries reveal the transcript for the September 26 hearing was not filed in the trial court.

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challenge to the sufficiency of the evidence for his conviction of access device

fraud. See Commonwealth v. Hutchinson, 947 A.2d 800, 805 (Pa. Super.

2008) (“A motion for judgment of acquittal challenges the sufficiency of the

evidence to sustain a conviction on a particular charge, and is granted only in

cases in which the Commonwealth has failed to carry its burden regarding that

charge.”) Specifically, Appellant argues the Commonwealth failed to present

evidence to prove Appellant used Ivimey’s credit card. Appellant also contends

that accomplice liability cannot attach as the Commonwealth failed to show

Appellant’s “intent” to use Ivimey’s credit card without her permission.

When reviewing a sufficiency of the evidence claim:

Our standard for evaluating sufficiency of the evidence is whether the evidence, viewed in the light most favorable to the Commonwealth [as verdict winner], is sufficient to enable a reasonable [fact-finder] to find every element of the crime beyond a reasonable doubt. [T]he entire trial record must be evaluated and all evidence actually received must be considered, whether or not the trial court's rulings thereon were correct. Moreover, [t]he Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Shull, 148 A.3d 820, 844 (Pa. Super. 2016) (citation

omitted; brackets in original).

A person commits access device fraud if he or she “uses an access device

to obtain or in an attempt to obtain property or services with knowledge that

the access device was issued to another person who has not authorized its

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use.” 18 Pa.C.S.A. § 4106(a)(1)(ii). Further, “[a] person is an accomplice of

another person in the commission of an offense if […] with the intent of

promoting or facilitating the commission of the offense, he (i) solicits such

other person to commit it; or (ii) aids or agrees or attempts to aid such other

person in planning or committing it[,]” 18 Pa.C.S.A. § 306(c)(1). Also,

“[a]ccomplice liability may be establish wholly by circumstantial evidence.

Only the least degree of concert or collusion in the commission of the offense

is sufficient to sustain a finding of responsibility as an accomplice. No

agreement is required, only aid.” Commonwealth v. Mitchell, 135 A.3d

1097, 1102 (Pa. Super. 2016) (internal citations and quotations omitted).

The trial court appears to agree with Appellant’s claim that the

Commonwealth failed to prove that Appellant “actually used [Ivimey’s] card.”

See Trial Court opinion, 4/10/17, at 6. However, the trial court concluded the

Commonwealth presented sufficient evidence to convict Appellant under a

theory of accomplice liability. See id., at 6-8. We agree.

Ivimey testified someone used her credit card, without her permission,

to make a purchase at Walmart. Vega testified that photographs from Wal-

Mart’s security system showed two men making a purchase with, what

Trooper Wolfe later confirmed to be, Ivimey’s credit card. During interviews

with Trooper Wolfe, both Appellant and co-defendant admitted to being

present during the purchase made with Ivimey’s credit card. And Trooper

Wolfe testified that co-defendant admitted to using the card to make the

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purchases at Walmart, but claimed to have received the card from someone

else.

Co-defendant claimed Appellant gave him the credit card to use at both

Sheetz and Walmart, and that he gave the credit card back to Appellant after

the purchase at Walmart. Further, co-defendant denied having placed some

of the items purchased at Walmart on the conveyor belt.

In the light most favorable to the Commonwealth, as the verdict winner,

the evidence is sufficient to support Appellant’s conviction as an accomplice

for access device fraud. Co-defendant’s testimony alone, that Appellant gave

him the credit card to use, is enough to infer intention to aid another to commit

access device fraud. Thus, Appellant’s sole remaining allegation on appeal

fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/10/2017

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