Com. v. Picone, A.

• Court: Superior Court of Pennsylvania
• Decided: February 23, 2018
• Docket: 2039 MDA 2016
• Status: Unpublished

Opinion

J-A32020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALFONSO PICONE : : Appellant : No. 2039 MDA 2016

Appeal from the Judgment of Sentence November 28, 2016 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0002089-2015

BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 23, 2018

Appellant, Alfonso Picone, appeals from the Judgment of Sentence of

18 to 60 months’ incarceration entered in the Schuylkill County Court of

Common Pleas following his jury conviction of one count each of Theft by

Unlawful Taking and Receiving Stolen Property.1, 2 We affirm.

The facts, as gleaned from the record, including the trial court’s March

1, 2016 Opinion, are as follows. In December 2014, Brian Campbell, a

Protective Services Caseworker for the Schuylkill County Office of Senior

Services, received a report that Appellant was financially exploiting an ____________________________________________

1 18 Pa.C.S. § 3921(a), and 18 Pa.C.S. § 3925, respectively.

2 The jury also convicted Appellant of one count of Dealing in Proceeds of Unlawful Activities, 18 Pa.C.S. § 5111. Before sentencing, however, the court granted Appellant’s Motion for Judgment of Acquittal with respect to that conviction.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-A32020-17

elderly couple in their nineties, John and Ella Burnard. Campbell

investigated the report by conducting a visit with Mr. and Mrs. Burnard in

their home on December 23, 2014. When Campbell informed Mr. Burnard of

the reason for his visit, Mr. Burnard reported that he and his wife ate at the

restaurant Appellant owned almost daily, and that Appellant helped them

with their finances, but that he was not aware of any large changes in his

bank accounts. Mr. Burnard signed a release of information allowing

Campbell to check his bank records, and it soon became apparent to

Campbell that Appellant had transferred a large amount of money to himself

from the Burnards’ accounts.

In January 2015, Campbell called the police and met with the Burnards

again at their home, this time with Officer Thomas Fort of the Rush

Township Police Department, and the Burnards’ son, Kurt Burnard. At this

meeting, Mr. Burnard indicated that he never intended Appellant to transfer

this amount of money to himself, and that Appellant did not have the

Burnards’ permission to use their funds for his personal expenses. 3 Mr.

Burnard explained that the couple had sought Appellant’s help in managing

their finances because Mrs. Burnard, who had always maintained the

couple’s finances, had begun to decline mentally and was no longer able to

____________________________________________

3 Campbell and Officer Fort both later testified that at their visits to the Burnards’ home, Mrs. Burnard was incoherent and seemed very confused and she was unable to provide a statement to the investigators. N.T., 9/19/16, at 141, 147-48, 153, 166-67

-2- J-A32020-17

do so. In addition, according to Campbell’s review of the Burnards’ financial

records, Appellant had made himself a co-owner of the Burnards’ bank and

brokerage accounts, a fact the Burnards seemed not to understand fully.

Dennis Houser, a certified forensic public accountant, reviewed

Appellant’s and the Burnards’ bank records. He testified at Appellant’s

Preliminary Hearing that Appellant had transferred $319,501.60 from the

Burnards’ accounts to Appellant over the course of 2014.4 In July 2014,

Appellant became a co-signor of the Burnards’ Wells Fargo bank account.

Appellant had transferred funds from the Burnards’ brokerage account to the

Wells Fargo account, where Appellant then transferred the funds to his

personal accounts. Houser observed that the funds were going primarily

into Appellant’s business account for two restaurants and Appellant was

using them for, inter alia, payroll, expenses, and operating costs. Appellant

also wrote out three checks to himself to cover his personal expenses.

Houser testified that there was no evidence that Appellant ever returned

these funds to the Burnards. There was likewise no evidence that Appellant

used the money to pay the Burnards’ bills, as they paid most of their bills by

automatic debit.

4 Appellant’s defense against the charges ultimately filed against him was that the Burnards transferred funds to him as loans and gifts.

-3- J-A32020-17

Houser examined the Burnards’ bank records as far back as 2008.

First, he found no history of giving gifts to anyone prior to the time of

Appellant’s involvement in the management of the Burnards’ finances,

particularly at these high amounts. Second, he identified inconsistencies in

the transactions, including a number of bounced checks, which suggested to

him that the Burnards had not intended the transactions to be gifts or loans.

In particular, he detected a pattern whereby Appellant wrote out checks and

Mrs. Burnard signed them, but there were insufficient funds to cover the

checks when they were cashed. Houser found it unusual that the Burnards

would have written a check for a loan or gift, but not have had sufficient

funds in the bank to cover it.

On May 27, 2015, Police charged Appellant with two counts of Dealing

in Proceeds of Unlawful Activities, and one count each of Theft by Unlawful

Taking, Receiving Stolen Property, Theft by Deception—False Impression,

Theft by Deception—Preventing Acquisition of Information, and Theft by

Deception—Failure to Correct.5

On October 8, 2015, the court held a Preliminary Hearing. At the

hearing, the Commonwealth presented the testimony of Campbell, Houser,

and Officer Fort. John and Ella Burnard did not testify. Following the

518 Pa.C.S. § 5111(a)(1); 18 Pa.C.S. § 3921(a); 18 Pa.C.S. § 3925(a); 18 Pa.C.S. § 3922(a)(1); 18 Pa.C.S. § 3922(a)(2); and 18 Pa.C.S. § 3922(a)(3), respectively.

-4- J-A32020-17

hearing, the court dismissed the three Theft by Deception charges, and

bound over the remaining charges for trial.

On December 4, 2015, Appellant filed a Pretrial Motion in which he

moved the court to dismiss the remaining charges, averring that the

Commonwealth failed to establish a prima facie case. Appellant argued that,

because the Commonwealth failed to present the victims to testify at his

Preliminary Hearing as to whether they had given their consent for Appellant

to take their money, and presented no testimony regarding the victims’

alleged incapacity, the Commonwealth’s evidence was insufficient to satisfy,

in particular, the intent element of the charges against him. Pretrial Motion,

12/4/15, at ¶¶ 6-8. The trial court denied this Motion on March 1, 2016.

On May 3, 2016, Appellant filed a Motion to Obtain an Independent

Medical Examination of John Burnard and Ella Burnard and a separate Motion

pursuant to Pa.R.Crim.P. 500 for Leave of Court to Preserve the Testimony

of John Burnard and Ella Burnard. The court held a hearing on Appellant’s

Motions on May 16, 2016. At the hearing, the Commonwealth represented

that it would not be presenting any expert testimony on the competence or

cognitive abilities of the Burnards. Relying on this representation, Appellant

withdrew his Motion for Independent Medical Exams. The trial court denied

Appellant’s Motion to Preserve, and scheduled a date for trial.

On July 15, 2016, Appellant filed a new Motion for mental health

evaluations of John Burnard and Ella Burnard. On July 26, 2016, the court

-5- J-A32020-17

held a hearing on the Motion after which it denied the Motion and deferred

the matter for the time of trial.6

On August 5, 2016, the Commonwealth filed a Notice of Intent to use

an expert witness, Dr. Kenneth Carroll, a psychologist, to testify about

cognitive disorders generally, and Alzheimer’s specifically. On August 9,

2016, Appellant filed a Motion to exclude that testimony.

On September 2, 2016, the court heard argument on Appellant’s

Motion to Exclude. The court ordered the Commonwealth’s expert to

produce a new report if he could make expert conclusions without relying on

hearsay statements about Ella Burnard. Dr. Carroll produced an amended

report, and, on September 13, 2016, Appellant filed an additional Motion to

Exclude the amended report and Dr. Carroll’s testimony. The court held a

hearing on the Motion the next day, after which it granted Appellant’s

Motion, but permitted the Commonwealth to introduce first-hand lay witness

testimony regarding Ella Burnard’s mental state.

Appellant’s four-day jury trial commenced on September 19, 2016. At

trial, Campbell and Houser testified to the facts recounted supra. The

Commonwealth also presented the testimony of other witnesses, including

Nancy Kevilly, a friend of the Burnards, and the Burnards’ son Kurt. Both

witnesses testified about, among other things, Mrs. Burnard’s failing mental

6 Appellant learned at the hearing of Mrs. Burnard’s June 13, 2016 death.

-6- J-A32020-17

health, her deteriorating memory, and her strange behavior. See Trial Ct.

Op, 2/16/17, at 4-5. Another witness, Kim Thomas, testified that she knew

both of the Burnards and Appellant and that Appellant told her that he was

“helping the Burnards pay their bills because they were older, becoming

forgetful and not altogether there.” Id. at 5.

Ultimately, the jury found the Commonwealth’s evidence sufficient to

prove that Appellant was aware of the Burnards’ lack of mental capacity to

make gifts and loans of their money to him, and convicted Appellant of

Dealing in Proceeds of Unlawful Activities, Theft by Unlawful Taking, and

Receiving Stolen Property. The court granted Appellant’s Motion for

Judgment of Acquittal with respect to the Dealing in Proceeds of Unlawful

Activities conviction. On November 28, 2016, the court sentenced Appellant

to concurrent terms of 18 to 60 months’ incarceration, and ordered

Appellant to pay restitution in the amount of $319,501.60. This appeal

followed.7

Appellant raises the following six issues on appeal:

1. Was the evidence sufficient for convictions of [T]heft and/or [R]eceiving [S]tolen [P]roperty?

2. Were the verdicts against the weight of the evidence such that Appellant should be granted a new trial?

3. Was [it] error for the trial court to deny Appellant preservation of the testimony of the alleged complainant Ella Burnard[,] who died prior to trial? ____________________________________________

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

-7- J-A32020-17

4. Was Appellant denied Due Process and his right to confront witnesses when the trial court denied his motion of Habeas Corpus?

5. Was cross[-]examination limited by the trial court in such a way as to deprive Appellant of due process and right to fair confrontation?

6. Was Appellant denied a fair trial and should re-prosecution be barred when the prosecutor committed prosecutorial misconduct in suggesting before the jury that a key defense witness should be “advised of his rights.”

Appellant’s Brief at 4 (reordered for ease of disposition).8

In his first issue, Appellant challenges the sufficiency of the

Commonwealth’s evidence of his guilt of Theft by Unlawful Taking and

Receiving Stolen Property.9

To begin, we note our standard of review of a challenge to the

sufficiency of the evidence:

In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Additionally, we may not reweigh the ____________________________________________

8 Although not included in the Statement of Questions Involved, Appellant has also challenged the legality of the restitution portion of his sentence. See Appellant’s Brief at 35-36. Claims directed to the trial court’s authority to impose restitution concern the legality of sentence and cannot be waived. Commonwealth v. Oree, 911 A.2d 169, 172-73 (Pa. Super. 2006). Thus, notwithstanding this omission, we will address this claim infra.

9 Appellant presents both insufficiency arguments in one argument section. We remind Appellant that our Rules require that an appellant divide the argument into as many parts as there are questions to be argued. Pa.R.A.P. 2119(a). Notwithstanding this error, we decline to find waiver on this basis.

-8- J-A32020-17

evidence or substitute our own judgment for that of the fact finder. The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted).

Evidentiary sufficiency presents a question of law, thus, our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Johnson, 107 A.3d 52, 66 (Pa. 2014) (citation omitted).

A person commits the offense of Theft by Unlawful Taking “if he

unlawfully takes, or exercises unlawful control over, movable property of

another with intent to deprive him thereof.” 18 Pa.C.S. § 3921(a). To

sustain a conviction of Receiving Stolen Property, the Commonwealth’s

evidence must establish that the defendant intentionally acquired possession

or control, retained, or disposed of the movable property of another with

knowledge that it was stolen or the belief that it was probably stolen. 18

Pa.C.S. § 3925.

Appellant argues that the testimony of John Burnard established that

the “only reasonable interpretation of the evidence is that [Appellant] was

gifted and loaned money by the Burnards[.]”10 Appellant’s Brief at 17, 18-

10 Appellant also “expressly incorporate[d] the previously filed Motion for Judgment of Acquittal and for New Trial previously filed with the trial court as though fully presented herein” and notes that, since “this case turns on the testimony of John Burnard, he “urges this Court to read it in its entirety.” Appellant’s Brief at 16. Our Supreme Court has categorically (Footnote Continued Next Page)

-9- J-A32020-17

21. Appellant contends that the Commonwealth failed to present any

evidence that he deceived the Burnards; rather the testimony of Mr. Burnard

indicates that the Burnards intentionally and willfully transferred their money

to Appellant. Id. at 18-19.

The trial court has authored a comprehensive, thorough, and well-

reasoned Rule 1925(a) Opinion addressing Appellant’s challenge to the

sufficiency of the Commonwealth’s evidence, including extensive references

to the evidence upon which the jury could have relied in reaching its verdict.

See Trial Ct. Op., 2/16/17, at 2-14 (concluding that, when viewed in the

light most favorable to the Commonwealth as verdict winner, there was

“sufficient evidence for the jury to find that [Appellant] took the Burnards’

money by taking advantage of Ella Burnard’s confusion and inability to

understand what she was doing when she signed the checks. . . .The

evidence established that [Appellant] intended to deprive the Burnards of

their money when he took it, and he was aware that it was stolen when he

received it”). We adopt that portion of the trial court’s Opinion as our own,

and affirm Appellant’s first issue on the basis of that Opinion.

(Footnote Continued) _______________________

rejected incorporation by reference as a means of presenting an issue. See Commonwealth v. Briggs, 12 A.3d 291, 342–43 (Pa. 2011) (citations omitted) (stating that, where an appellant incorporates prior arguments by reference in contravention of Pa.R.A.P. 2119(a) and (b), he or she waives such claims on appeal). Thus, we will consider only the argument presented to this Court in Appellant’s Brief.

- 10 - J-A32020-17

In his second issue, Appellant challenges the weight the jury gave to

the Commonwealth’s 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

Appellant argues in this issue that the court erred in denying his

Motion for a New Trial because the evidence at trial “clearly demonstrates

that all of the money received from the Burnards represented either a gift or

a loan.”11 Appellant’s Brief at 23.

Over the course of Appellant’s four-day trial, the Commonwealth

presented the testimony of many witnesses who attested to the

diminishment of Mrs. Burnard’s memory and mental acuity. In fact, the

11As with his sufficiency of the evidence claim, Appellant has incorporated by reference the arguments he raised in his Motion for a New Trial. As noted supra, Pa.R.A.P. 2119(a) and (b) prohibit this practice, and we, thus, shall address only the arguments set forth in Appellant’s Brief.

- 11 - J-A32020-17

evidence indicates that this is precisely the reason underlying Appellant’s

involvement in “assisting” the couple with their finances in the first place.

Appellant’s spare argument highlights the parts of Mr. Burnard’s testimony

that are favorable to Appellant, and omits any discussion of the ample

evidence of Mrs. Burnard’s incapacity provided by the Commonwealth’s

other witnesses. The jury decision to credit the testimony of the

Commonwealth’s witnesses and evidence is not shocking to this Court. The

jury’s verdict was far from manifestly unreasonable. Thus, we conclude the

trial court did not abuse its discretion in denying Appellant’s Motion for a

New Trial.

In his third issue, Appellant claims that the trial court erred in denying

his Motion for Leave to Preserve the Testimony of John Burnard and Ella

Burnard. Appellant’s Brief at 23-24.

Appellant’s argument is significantly underdeveloped as he has failed

to support this theory with citation to any case law in violation of Pa.R.A.P.

2119(a). Appellant’s failure to develop this issue precludes this Court’s

meaningful review. See Commonwealth v. Johnson, 895 A.2d 915, 924-

25 (Pa. Super. 2009) (appellant waives issue on appeal if he fails to present

claim with citations to relevant authority or develop issue in meaningful

fashion capable of review). Accordingly, we find this argument waived.

In his fourth issue, Appellant avers that the trial court erred in denying

his Motion for Habeas Corpus. Appellant complains that the court should

- 12 - J-A32020-17

have granted his Motion because the Commonwealth’s “strategic decision”

not to present Mrs. Burnard’s testimony at his Preliminary Hearing deprived

him of his right to confront his alleged victim. Appellant’s Brief at 27.

Appellant included this issue in his Rule 1925(b) Statement. In it, he

claimed: “The trial court erred when it denied [Appellant’s] Omnibus Motion

for Habeas Corpus; [Appellant] was denied right of confrontation and Due

Process.” Rule 1925(b) Statement, 1/19/17, at 2 (unpaginated). In

declining to address this issue, the trial court noted that Appellant failed to

“explain the manner in which his rights were denied.” Trial Ct. Op. at 16.

When the trial court directs a defendant to file a concise statement of

matters complained of on appeal, any issues that are not raised will be

waived for appellate review. Commonwealth v. Dowling, 778 A.2d 683,

686 (Pa. Super. 2001). Similarly, if a defendant raises an issue in his Rule

1925(b) statement in a way that is too vague for the trial court to identify

and address, the statement is the functional equivalent of no statement at

all. Id.

Here, the trial court found Appellant’s statement of this allegation of

error too vague and imprecise to address with any specificity, and summarily

concluded that “[t]he ultimate right to confront the witnesses and test the

sufficiency of the evidence was afforded at trial.” Trial Ct. Op. at 16. We

agree with the trial court that Appellant failed to raise this issue in his Rule

- 13 - J-A32020-17

1925(b) Statement with the requisite specificity to have preserved it. Thus,

we find this issue also waived.

In his fifth issue, Appellant avers that the trial court deprived Appellant

of his due process rights and right to confront his adverse witnesses when it

limited the scope of his counsel’s cross-examination of Dennis Houser and

John Burnard by sustaining the Commonwealth’s objections to counsel’s

questions. Appellant’s Brief at 27, 29, 30-31.

With respect to Houser, Appellant alleges that the trial court erred in

preventing his counsel from questioning Houser about evidence of checks

totaling more than $100,000.00 written by the Burnards between May and

July 2014 to Mikey Stocker, the son of the Burnards’ investment advisor.

Id. at 29. Appellant argues that evidence of these checks contradicts

Houser’s testimony that the Burnards’ records did not indicate a pattern of

giving large financial gifts, like those Appellant alleges the Burnards gave to

him. Id.

Appellant also claims that the trial court limited cross-examination of

John Burnard by not permitting Appellant’s counsel to ask specific questions

related to the sale of the Burnards’ Reston, Virginia home. Id. at 30-31.

Appellant argues that John Burnard’s answers to questions about details of

this transaction were relevant to illustrate that the Burnards had been

monitoring their financial transactions. Id. at 31.

- 14 - J-A32020-17

Preliminarily, we note that “[i]t is an appellant’s duty to present

arguments that are sufficiently developed for our review.” Commonwealth

v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007). Appellant alleges that

during cross-examination the trial court erroneously sustained an objection

by the Commonwealth to Houser’s testimony. However, Appellant has not

included in his Brief a citation to the place in the Notes of Testimony where

the Commonwealth made such an objection, the specific objection he alleges

the Commonwealth made, or a citation to the place in the record where the

trial court resolved the objection.12 This is unacceptable and a clear

violation of Pa.R.A.P. 2119(c).13 This Court has consistently held that failure

to comply with Rule 2119(c) results in the wavier of the issue on appeal.

See, e.g., Commonwealth v. Hetzel, 822 A.2d 747, 765 (Pa. Super.

2003). We are, thus, compelled to find this issue, as it pertains to Houser’s

testimony, waived.

With respect to Appellant’s claim that the court improperly limited John

Burnard’s testimony, we note that the scope of cross-examination is largely

12 In its Opinion addressing this issue, the trial court indicated that Appellant failed to provide “transcript references where the objections were raised” in his Pa.R.A.P. 1925(b) Statement. Trial Ct. Op. at 18.

13 Pa.R.A.P. 2119(c) requires that “[i]f reference is made to the pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears[.]”

- 15 - J-A32020-17

within the discretion of the court and we will not reverse the trial court’s

decision absent a clear abuse of discretion or error of law. Commonwealth

v. Begley, 780 A.2d 605, 627 (Pa. 2001).

The right to cross-examine witnesses, though fundamental, is not

absolute. See Commonwealth v. Rosser, 135 A.3d 1077, 1088 (Pa.

Super. 2016) (en banc). The Confrontation Clause of the Sixth Amendment

of the United States Constitution provides a defendant with a constitutional

right to conduct cross-examination that reveals any motive that a witness

may have to testify falsely. Commonwealth v. Bozyk, 987 A.2d 753, 756

(Pa. Super. 2009). However, “trial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on such

cross-examination based on concerns about, among other things,

harassment, and prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.” Id.

Appellant argues in his Brief that, with this line of inquiry, his counsel

sought to show that the Burnards were regularly reviewing their investment

and bank account statements as the “Burnards’ understanding of giving

money to Appellant is the central issue in this case[.]” Appellant’s Brief at

31.

The trial court explained that it sustained the Commonwealth’s

objection to the scope of Appellant’s cross-examination of Mr. Burnard

because Appellant had already elicited the testimony it was seeking from Mr.

- 16 - J-A32020-17

Burnard—that the Burnards were reviewing their investments—without

inquiring into the specifics of sale of the Burnards’ Reston, Virginia home,

which was not at issue in this case.14 See Trial Ct. Op. at 19.

Following our review, we conclude that the trial court did not abuse its

discretion in limiting the scope of Appellant’s cross-examination of Mr.

Burnard to issues immediately relevant to this matter. At the time the

Commonwealth objected to the scope of Appellant’s cross-examination, Mr.

Burnard had already testified that he and his wife were reviewing their

financial records and aware of their contents. The trial court did not abuse

its discretion in determining that, given the possibility of jury confusion of

the issues and unnecessary repetitiveness, the details of the Reston, Virginia

real estate transaction were not relevant to the instant charges. Thus, we

conclude Appellant is not entitled to relief on this issue.

In his sixth issue, Appellant claims that the court erred in denying his

Motion for a Mistrial when the Commonwealth committed prosecutorial

misconduct when asking the court, in the presence of the jury, to advise Leo

Howell, Esquire, a defense witness, of “certain of his rights.” Appellant’s

Brief at 31.15 Appellant’s claim is based on the following occurrence at trial.

14 N.T., 9/19/16, at 95. 15 Here, again, Appellant incorporates by reference the arguments set forth at the time of trial in support of his Motion for a Mistrial. To the extent that those arguments are not included in Appellant’s Brief, we will not consider them.

- 17 - J-A32020-17

After Appellant called Leo Howell, Esquire, to testify regarding a

document pertaining to an inter vivos gift that Mr. Howell had prepared at

Appellant’s request for Mrs. Burnard’s signature, the prosecutor asked that

the witness be advised of his rights before testifying. Appellant’s counsel

objected. At sidebar, Appellant indicated that he was “tempted” to ask for a

mistrial. The court admonished the prosecutor and the sidebar ended. The

court then excused the jury. The court advised Howell of his right against

self-incrimination, after which Howell indicated he wanted to consult with

counsel. After a brief interlude, Appellant’s counsel stated that Howell no

longer wished to testify and he was “renewing” the Motion for a Mistrial. A

colloquy ensued where Howell informed the court that he felt threatened by

the Attorney General’s office. Appellant’s counsel then requested that the

court dismiss the case.

The court denied Appellant’s Motion for a Mistrial and his request for a

dismissal, and recessed for lunch to allow Howell to consult further with

counsel. After the lunch break, Appellant’s counsel indicated Howell had

changed his mind and would testify, which he did shortly thereafter. See

Trial Ct. Op. at 21-22 (citing N.T., 9/21/16, at 542-64).

Appellant avers the trial court should have granted a Motion for a

Mistrial because the prosecutor’s statement prejudiced his ability to have a

fair trial. Appellant’s Brief at 33-34. We review the denial of a motion for a

- 18 - J-A32020-17

mistrial for an abuse of discretion. Commonwealth v. Tejada, 834 A.2d

619, 623 (Pa. Super. 2003).

A mistrial upon motion of one of the parties is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial. It is within the trial court’s discretion to determine whether a defendant was prejudiced by the incident that is the basis of a motion for a mistrial. On appeal, our standard of review is whether the trial court abused that discretion.

An abuse of discretion is more than an error in judgment. On appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised by the trial court was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Id. at 623 (citations and quotations omitted).

Prosecutorial misconduct will justify granting a mistrial only where the

unavoidable effect of the conduct is to prejudice the jury to the extent that it

is rendered incapable of fairly weighing the evidence and entering an

objective verdict. Commonwealth v. Pierce, 645 A.2d 189, 196 (Pa.

1994). See also Commonwealth v. Chmiel, 777 A.2d 459, 464 (Pa.

Super. 2001) (noting a mistrial is appropriate where the “unavoidable effect

of the contested comments was to prejudice the jury, forming in their minds

fixed bias and hostility towards the accused so as to hinder an objective

weighing of the evidence and impede the rendering of a true verdict.”).

Further, “the double jeopardy clause of the Pennsylvania Constitution

prohibits retrial of a defendant [ ] when prosecutorial misconduct is intended

to provoke the defendant into moving for a mistrial, [and] when the conduct

- 19 - J-A32020-17

of the prosecutor is intentionally undertaken to prejudice the defendant to

the point of the denial of a fair trial.” Commonwealth v. Smith, 615 A.2d

321, 325 (Pa. 1992).

Appellant avers that the prosecutor’s statement was “clearly an

attempt to prejudice the jury into conjecture as to possible prior misconduct

of the witness and thus deny due process.” Appellant’s Brief at 34.

The trial court addressed the issue as follows:

It was my judgment that the suggestion that the witness should be advised of his rights before testifying, followed by the witness’ decision to do so[,] did not render the jury incapable of entering an objective verdict or even objectively weighing Mr. Howell’s testimony. Had I advised the jury that advising a witness of his rights does not reflect a judgment on his credibility, I believe that a question of credibility may have been planted in the jurors’ minds. However, merely taking [ ] an extended recess before he testified might very well have suggested to the jury that the witness had considered his rights and felt no concern about providing testimony.

Trial Ct. Op. at 23.

Our review of the record supports the trial court’s denial of the Motion

for a Mistrial. The record does not support Appellant’s averment that the

prosecutor “intended to provoke the defendant into moving for a mistrial.”

Moreover, the prosecutor’s comment was not of such a nature as “to hinder

an objective weighing of the evidence and impede the rendering of a true

verdict.” Chmiel, supra at 464. Thus, we conclude that the trial court did

not abuse its discretion denying Appellant’s Motion for a Mistrial.

- 20 - J-A32020-17

In his final issue, which he omitted from his Statement of Questions

Involved, Appellant claims that the trial court erred in ordering him to pay

restitution in the amount of $319,501.60 because the Commonwealth failed

to prove what portion of the funds transferred from the Burnards’ accounts

were either a gift or a loan. Appellant’s Brief at 35. Appellant argues that

the restitution portion of his sentence was, thus, entirely speculative and

unsupported by the record. Id. at 35-36.

An appeal from an order of restitution based upon a claim that a

restitution order is unsupported by the record challenges the legality of

sentencing. Commonwealth v. Redman, 864 A.2d 566, 569 (Pa. Super.

2004). Our standard of review in cases dealing with questions of law is

plenary. Commonwealth v. Hughes, 986 A.2d 159, 160 (Pa. Super.

2009).

The statute governing restitution for injuries to person or property, 18

Pa.C.S. § 1106, provides that:

(a) General rule.--Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.

18 Pa.C.S. § 1106(a). The statute defines restitution as “[t]he return of the

property of the victim or payments in cash or the equivalent thereof

pursuant to an order of the court.” 18 Pa.C.S. § 1106(h).

- 21 - J-A32020-17

“In computing the amount of restitution, the court shall consider the

extent of injury suffered by the victim and such other matters as it deems

appropriate.” Commonwealth v. Dohner, 725 A.2d 822, 824 (Pa. Super

1999) (quoting 18 Pa.C.S. § 1106(c)(2)(i)). Because restitution is a

sentence, the record must support the amount ordered, and the amount of

restitution must not be speculative or excessive. Id. at 824. “The amount

of a restitution order is limited by the loss or damages sustained as a direct

result of defendant's criminal conduct and by the amount supported by the

record.” Id. (citation omitted). To determine the correct amount of

restitution for injuries to a person or property, the court should employ a

‘but for’ test to ascertain which damages occurred as a direct result of the

defendant’s criminal conduct. Commonwealth v Oree, 911 A.2d 169, 174

(Pa. Super. 2006).

Appellant avers that the restitution portion of his sentence is

speculative and unsupported by the evidence of record. We disagree.

Our review of the record indicates that the Commonwealth presented

evidence that amply supports the court’s conclusion that all of the money

transferred to Appellant was transferred as a result of his criminal conduct.

The Commonwealth presented Mr. Burnard’s testimony that: (1) Appellant

did not have permission to transfer to himself over $300,000.00 of the

Burnards’ money; (2) to his knowledge, Mrs. Burnard did not give Appellant

permission to take their money; and (3) any money “given” to Appellant was

a loan which the Burnards intended Appellant to repay. The Commonwealth

- 22 - J-A32020-17

also presented evidence that at no time prior to 2013, when Mrs. Burnard’s

mental capacity began to diminish and Appellant became involved in

managing the Burnards’ finances, did the Burnards ever make financial gifts

or loans to Appellant. The Commonwealth presented further evidence of

Appellant’s suspicious pattern of writing checks against the Burnards’

checking account on temporary checks and failing to record them in the

Burnards’ check register. Last, and critically, the Commonwealth presented

voluminous evidence from which “the jurors could have, and apparently did

conclude that [Mrs. Burnard] was not capable of forming the donative intent

to give [the Burnards’] money to [Appellant].” Trial Ct. Op. at 24. Thus,

given this robust evidence in support of the court’s restitution award, we

conclude that Appellant’s claim lacks merit.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/23/2018

- 23 - Circulated 02/05/2018 04:28 PM

COURT OF COM:MON PLEAS OF SCHUYLKILL COUNTY--CRIMINAL

COMMONWEALTH OF PENNSYLVANIA NO. CR-2089-2015

vs.

ALFONSO PICONE, Defendant

Michelle A. Laucella, Deputy Attorney General - for the Commonwealth Ross Miller, Esquire - for the Defendant

OPINION OF COURT PURSUANT TO Pa.R.A.P. 1925

BALDWIN, P.J.

Following a trial by jury, the defendant was found guilty of one count each of

Dealing in Proceeds of Unlawful Activities, 1 Theft by Unlawful Taking,2 and Receiving

Stolen Property.3 Before sentencing, the defendant's motion for judgment of acquittal ,...... ·.. ·= � was granted with respect to the charge of dealing in proceeds of unlawful activities. � .. , '!'': .. C�J . ) ·:·) was given concurrent sentences of 18 to 60 months for theft by unlawful takingand ;: ...· ··-1

'. 1J (..')

receiving stolen property. ·.¥ ·.:) -q ·-ri C) rT1

1 18 Pa.C.S. §5111 2 18 Pa.C.S. §392l(a) 3 18 Pa.C.S. §3925

1815 a Following the defendant's timely notice of appeal, he was ordered to file a

statement of matters complained of on appeal. His statement was filed on January 19,

2017.

Sufficiency of Evidence

The first issue raised in that motion questions the sufficiency of evidence to

support the convictions for theft by unlawful taking and receiving stolen property. To

sustain a conviction of theft by unlawful taking, the Commonwealth's evidence must

establish that the defendant took, or exercised unlawful control over the movable

property of another with the intent to deprive the other of the property. 18 Pa.C.S.

§392l(a). To sustain a conviction of receiving stolen property, the Conunonwealth's

evidence must establish that the defendant intentionally acquired possession or control,

retained, or disposed of the movable. property of another with knowledge that it was

stolen or the belief that it probably was stolen. 18 Pa.C.S. §3925.

Reviewing a sufficiency claim, a court must view all the evidence submitted at

trial, as well as all reasonable inferences that may be drawn therefrom, in the light most

favorable to the Commonwealth as the verdict winner; and through that lens, the court

must determine whether each element of the offense has been proven beyond a

reasonable doubt. Commonwealth v. Woodruff, 447 Pa. Super. 222, 668 A.2d 1158

(1995).

1816 a John Burnard testified that, at the time of the offenses, he and his wife Ella,

resided at Lake Hauto in Schuylkill County. He was born in Bangor, Pennsylvania, and

lived there until he joined the Navy at age eighteen. He was a boatswain's mate in an

LST during the D-Day invasion. After the war, he worked as a research chemist before

returning to East Bangor, where he settled down and married his first wife, Elizabeth.

They adopted a son and daughter.

Mr. Burnard was then employed by a group that did research for the newspaper

industry. It was at this job that he met Ella, who was employed by the same company.

Eventually, Mr. Burnard and his first wife were divorced, and he and Ella were married

in 1950. After both Bumards retired, they moved to Lake Hauto.

Dennis Houser, a forensic accountant, testified that the money the Bumards had

accumulated during their work life was deposited into a checking account at Wells Fargo

Bank, two investment accounts with Stifel Nicolaus, and two Stifel Nicholas accounts

that each held only a single life insurance policy, one each for Mr. and Mrs. Burnard.

The investment accounts had a related cash account, into which funds deposited by the

Bumards or dividends earned on investments would be deposited until the cash was used

to buy more securities. The Bumards could write checks on the cash account, but if the

amount of the check exceeded the cash account balance, the difference would be treated

as a loan to the Burnards. They would be charged interest on the loan until enough of

their securities could be liquidated to satisfy the loan balance.

1817 a ·--·· - _ --- --------- ----- ····-· _ . John Burnard testified that over the years, Ella was in charge of paying their bills

and managing the checkbook. He described how, as they aged, Ella began to have

memory problems and could no longer manage their financial affairs.

At the time of the offenses, John Burnard was ninety-one. He testified that Ella

sought help in paying their bills. Their children lived away from them. It was not clearly

explained how the defendant got involved in managing the Bumards' finances, but John

testified that Ella had turned to the defendant for help in doing so.

The defendant was the owner-operator of a popular Italian restaurant in nearby

Tamaqua, and the Bumards were frequent patrons, as Mrs. Burnard could no longer

prepare meals at home. The defendant, who was known to everyone as "Alfie," was very

friendly toward the Burnards. Their son, Kurt, described accompanying his parents to the

restaurant during his visits and how the defendant treated the Burnards like celebrities

when they entered the restaurant, fussing over them and letting everyone in the restaurant

know that the Burnards were there.

John Burnard was not the only one who saw how Ella had slipped mentally.

Nancy Kevilly testified that she and her husband had retired to Lake Hauto as the

Burnards had. The Kevillys and the Burnards were part of a senior group that gathered

weekly at the community center to play cards. She testified that Ella Burnard was a good

card player, but by 2013, Ella had forgotten the rules of the game and could not

remember what she had done on her last play. Her memory had deteriorated to the point

1818 a that no one wanted to sit at Ella's table except for her husband and a friend who patiently

instructed Ella what she was permitted to do on each play.

Kurt Burnard described how Ella's mental capacity was fading and how she was

acting strangely. When he visited his parents for the Fourth of July in 2014, instead of

sitting with her family, Ella was wondering around the other people's tables and eating

their food.

The defendant also was aware that Ella had slipped mentally. Kim Thomas

testified that, during 2014, she and her husband were dining in the defendant's restaurant

and seated nearby the Bumards' table. They saw the defendant with the Bumards, and he

came to their table to talk. Mrs. Thomas was the office manager at the Lake Hauto Club

and knew the Bumards. She asked the defendant ifhe knew them, and he told her be was

helping the Burnards pay their bills because they were older, becoming forgetful and not

altogether there.

Kurt Burnard also testified whenever he and his parents were at the restaurant

toward the end of 2014, the defendant would comment to Kurt how Ella was having a

bad day and was not with it.

Brian Campbell is a protective service investigator for the Schuylkill County

Office of Senior Services. In December of 2014, his office had received a report of

possible financial abuse of the Bumards by the defendant. On December 23 of that year,

he made an unannounced visit to the Bumards' home. John Burnard answered the door,

1819 a _____ . invited Mr. Campbell in, and yelled into another room for Ella to come out because they

had company. When Mrs. Burnard joined them, she was not wearing pants and did not

seem to realize it. Mr. Burnard had to tell her to get dressed. Campbell testified that

while he spoke to John Burnard, Ella just sat quietly looking ahead until she stood up

and, for no reason, handed Mr. Campbell a photo of her brother. At another point, she

went to the kitchen and returned with a Christmas cake in a box and tried to hand it to

Campbell without explanation.

Brian Campbell returned to the Burnard residence on January 12, 2015, and

obtained a statement from John Burnard. He took no statement from Ella Burnard

because she appeared to not understand what was being discussed regarding the

Bumards' bank records.

Campbell's next visit to the Burnard residence was with Assistant Attorney

General Laucella in August of 2015. This was a prearranged visit, and yet Ella Burnard

again received them in a state of undress and had to be told by Kurt Burnard to get

dressed. During attempts to question Mrs. Burnard, her answers were not responsive to

the questions.

Dennis Houser had examined the Burnards' financial records and those of the

defendant and of his restaurant. Mr. Houser testified that prior to 2014, the Bumards'

income exceeded their expenses by about $1,000 per month. Beginning in late 2013, he

began to see a pattern of checks written to the defendant in large amounts.

1820 a Mr. Houser testified regarding numerous transactions involving both the Bumards'

checking account at Wells Fargo Bank and their retirement account at Stifel Nicholas

which transactions benefited only the defendant or his restaurant. The first was on

August 26, 2013, when Ella Burnard signed a cash withdrawal in the amount of$10,000.

There was no specific proof of where the money was spent, but the defendant had been

helping Ella Burnard to pay her bills at that time. This transaction was not made part of

the charges against the defendant.

Mr. Houser had examined the Burnard's check register and observed that each

check and deposit was meticulously recorded until 2013. At that point, the checks that

were recorded were done by a different hand with abbreviations. Some payments were

made with temporary checks that were not recorded in the register. Two temporary

checks were written in January and February of 2014, totaling $40,000. Both were

signed by Ella Burnard, made payable to Defendant, and deposited into a joint account of

the defendant and his mother.

In March of 2014, there was a check drawn on the Bumards' Wells Fargo account

for $7,500 and, a week later, another drawn on their retirement account for $10,000.

Both were signed by Ella Burnard, made payable to the defendant, and deposited into his

joint account with his mother. Ten days later, on April 1, there was another check drawn

on the retirement account for $35,000, signed by Ella, made payable to the defendant, and

deposited into the same joint account.

1821 a In May, a temporary check was drawn on the Wells Fargo account in the amount

of $6,500, signed by Ella, payable to Alfonso Picone, and deposited into the restaurant

business account. Just five days later, a check was drawn on the retirement account, in

the amount of$30,000, signed by Ella, payable to the defendant, and deposited into the

joint account of the defendant and his mother. Nine days later, another check was drawn on the retirement account in the amount of $30,000, payable to the defendant, and

In June of 2014, two more checks were drawn on the retirement account. The

first, in the amount of $30,000, was payable to the defendant and deposited into the joint

account. The second, three days later, in the amount of $15,000, was payable to the

restaurant, and deposited into the restaurant's business account Both were signed by

Ella Burnard.

In July, another check, in the amount of$35,000, was drawn on the retirement

account. It was signed by Ella, made payable to the defendant, and deposited into the

same joint account.

In August, Stifel Nicholas returned a $35,000 check payable to Alfonso Picone in

the amount of $35,000 because the cash account was too overdrawn. It was redeposited

and returned a second time. Later in August, a checkin the amount of$15,000 was

drawn on the retirement account. It was signed by Ella, made payable to the defendant,

1822 a ····-·····-··-·--- and deposited into his joint account. Fifteen days later a $10,000 check was drawn on the

retirement account. That too was returned because the cash account was overdrawn.

Throughout the trial, the defense sought to portray the checks drawn on the

Bumards' accounts as gifts from Ella Burnard. Mr. Houser had examined the Burnards'

gifting patterns. He found no pattern of large gifts. Kurt Burnard testified that his

parents never gave large gifts, even to their children. Houser further pointed out that

people do not make gifts by writing checks on accounts with insufficient funds, referring

to the checks that had been returned by Stifel Nicholas.

By September of 2014, the defendant had convinced the Burnards to add his name

as an authorized signatory on their Wells Fargo account. He used that power to make a

cash withdrawal of $7 ,500 on September 17. Five days later the defendant wrote a

$5,000 check on that account to the restaurant. Three days after that a $35,000 check was

drawn on the retirement account but was returned for insufficient funds.

In October through December of 2014, the defendant wrote checks on the

Bumards' Wells Fargo account totaling $32,001.16. The money was used to remodel the

defendant's home. Also in December, the defendant withdrew another $9,000 in cash

from the account.

Mr. Houser had examined casino records that indicated sizable buy-ins by the

defendant in 2014: $27,450 in April, $39,920 in May, $39,020 in June, $17,840 in July,

$33,160 in August, $47,770 in September, $19,050 in October, $36,950 in November,

1823 a $30,920 in December, and $48,590 in January of 2015. The restaurant business records

showed its account to be consistently overdrawn during 2014. Food suppliers were

returning checks for insufficient funds. Without the Bumards' money, paid either

directly to the restaurant or transferred to the restaurant from the defendant's joint

account using funds acquired from the Bumards' accounts, the restaurant could not have

paid its bills. Although the restaurant was very popular, according to its business records,

it received not one dollar of cash receipts during July of 2014.

When the records of the Bumards accounts, the defendant's personal bank records,

the financial records of the restaurant, and the records of the defendant's gambling

activity are considered together, there is ample evidence from which the jury could infer

that the defendant had been draining cash from the business for his gambling activities.

Mr. Houser described how, throughout 2014, the business account of this popular

restaurant was consistently overdrawn to the extent that its checks to suppliers were being

returned for insufficient funds. The jury could readily have concluded that cash was

being removed from the business and not appearing on its books, particularly when the

records showed zero cash receipts for an entire month. The business was a family

operation, and the defendant's family members would have been financially harmed if

the restaurant's cash receipts were not replenished by money from the Bumards.

Throughout the trial, the defense sought to establish that the checks drawn on the

Burnards' accounts were gifts from Ella Burnard to Alfonso Picone. There was no

1824 a evidence that the Burnards made any gifts to the defendant before he began to help Ella

with the bills. The jury clearly did not believe that they gifted over $300,000 to Alfonso

Picone in one year.

Ella Burnard was not capable of paying their normal household bills. She had

forgotten how to play card games at which she had been a good player. She did not even

realize that she was not fully clothed when receiving visitors at her home. The defendant

acknowledged to others that the Burnards needed his help because they were not

altogether with it.

There was sufficient evidence from which the jury could conclude that Ella

Burnard lacked the mental capacity to consciously give away so much of the assets she

and her husband had accumulated over their working lives. The defendant needed cash

to support his gambling and his business. Ella Burnard could be easily tricked into giving

him the money for both and even to remodel his house.

John Burnard, while more aware than Ella, clearly did not feel capable of stepping

in to pay the bills when Ella began to falter, or there would have been no reason to

involve the defendant with their bills. John did testify that he saw the check register, but

many of the checks to Picone were not recorded in the register, and no running balance

was kept after the defendant took over paying their bills. Occasionally a check to Picone

was recorded in the register with a notion that it was a loan. A number of the payments

to Picone were written on temporary checks obtained from the bank, even though the

i825 a Bumards had regularly numbered checks available. These temporary checks were not

recorded in the check register.

During cross-examination, John Burnard acknowledged knowing that his wife had

made some gifts to the defendant, but when asked by defense counsel about three of the

transactions, he said that he understood that his wife had given that money to Picone as a

no interest loan to be repaid. After receiving that response, defense counsel asked him

about no other transactions.

The jury clearly concluded that the "loans" were never intended to be repaid. In

fact the defendant offered the testimony of Leo Howell, an attorney who had represented

the defendant and another family member. Howell was retained by the defendant to

prepare a document for Ella Burnard to sign by which Ella purports to verify that she had

the mental capacity to make a gift, was under no undue influence, and intended that five

of the checks which the defendant had cashed were gifts. He met with her and the

defendant at the restaurant. Howell testified that Ella Burnard read the document before

signing it and appeared to understand it. It was brought out during cross-examination

that Howell attended Picone's preliminary hearing, although he was not representing

Picone criminally. There was no explanation as to why John Burnard was not included in

the meeting or asked to sign the document involving checks drawn on an account of

which he was a joint owner. Although the document included signature lines for

witnesses, they were left blank; however one of the defendant's employees notarized

1826 a -----·····- ,,_ .. , .. -, . Ella's signature. It would appear that the jury did not find Mr. Howell's testimony to be

credible.

The thrust of the defendant's arguments is that Ella Burnard, as one of the joint

owners of the Burnard accounts, was so fond of Alfonso Picone that she voluntarily

chose to give him over $300,000 of her and her husband's life savings. However, as

discussed, there is evidence to support a conclusion by the jury that Ella Burnard, at the

time she signed the checks to the defendant and his restaurant, lacked the mental capacity

to understand what the defendant was asking her to do. There is also evidence from

which the jury could conclude that John Burnard was told that any money given to the

defendant was as a loan; that the defendant never intended to repay the money; and that

the defendant concealed the full amount he was taking by using temporary checks and not

recording the checks in the check register.

There was sufficient evidence for the jury to find that Picone took the Burnards'

money by taking advantage of Ella Burnard's confusion and inability to understand what

she was doing when she signed the checks. She took her checkbook to him because she

was no longer capable of figuring out how to write checks to pay their monthly expenses.

She was depending on the defendant to make out the checks and tell her what to sign.

The evidence established that he intended to deprive the Bumards of their money when

he took it, and he was aware that it was stolen when he received it.

1827 a .................. -----· -----------------'·········--·· There was also evidence that some of the checks were represented to John Burnard

as loans, but which the defendant did not intend to repay, instead getting Ella Burnard to

sign a document purporting to convert the loans to gifts. While the charge of theft by

deception was not pursued at trial, the charge of receiving stolen property requires only

that the perpetrator receive and retain property of another with knowledge it was stolen.

The statute does not require that the property be stolen in any specific way.

Weight of Evidence

The defendant challenges the decision of this court to deny his motion for new

trial based on the assertion that the verdict was against the weight of the evidence. There

is nothing to suggest that the jury's verdict was manifestly unreasonable or that it was the

result of bias or prejudice. The evidence established that the defendant took advantage of

the cognitive limitations of an elderly couple to take over $300,000 of their life savings.

Preservation of Testimony

The defendant asserts that the Court erred by denying his motion to depose the

Burnards pursuant to Pa.R.Crim.P. 500. That motion was filed on May 3, 2016, along

with a request to have the Burnards' submit to a mental health examination. By that time,

the defendant's case had been attached for trial three times.

The case was first attached for trial on December 28, 2015. Jury selection was to

begin on January 26, 2016. The case was removed from the trial list because the

defendant filed an omnibus motion in the form of a petition for a writ of habeas corpus.

1828 a ---------------··-· .. ··------- � . The Bumards had not testified during the preliminary hearing, and defense counsel from

the outset was suggesting that they were not competent to testify because of dementia.

The evidence presented at trial established that Ella Burnard certainly would not have

been competent to testify. By 2014, she was no longer capable of paying the couple's

bills, had forgotten how to play cards, was receiving household guests without being

aware that she was only partially clothed, could not follow the conversation between

Brian Campbell and her husband, and had begun acting strangely.

When the defendant's omnibus motion was denied, the case was again attached for

trial with jury selection to begin March 29, 2016. The defendant's response was to

petition the court to certify the denial of the omnibus motion for interlocutory appeal and

seek a continuance to allow additional time to prepare for trial. Only the continuance was

granted.

On April 1, 2016, the case was again attached for trial for the next term of

Criminal Court with jury selection to begin June 1. On May 3, the defendant filed both a

request to submit the Bumards to a mental health examination and a motion to preserve

their testimony by deposition.

By this time, I became concerned that the defendant was engaging in delay tactics

with the hope that Mr. Burnard, who was then 93, would expire before trial. Both

defense motions were heard on May 16. The defendant withdrew his motion for a mental

health examination, and the motion to depose Mr. Burnard was denied because the trial

1829 a was scheduled to start just three weeks later. There was no indication that John Burnard

was having any health problems. Defense counsel stated that he was just concerned

about Mr. Burnard's age. Unfortunately, Ella Burnard was already in hospice care and

died before trial. She had been admitted to the Alzheimer's Unit at the nursing home

where she was staying before her death. Testimony at the preliminary hearing indicated

she had been having cognitive problems since 2014 to the extent that she would not have

been competent to testify.

It was not possible to depose Ella Burnard when the defendant requested to do so,

and John Burnard actually testified at trial even though there were two more continuances

granted before the trial began on September 19, 2016. When the trial was delayed for the

additional continuances, the defendant made no further requests to depose John Burnard.

Habeas Corpus

The defendant asserts the court denied him the right of confrontation and due

process by denying his omnibus motion for habeas corpus. He does not explain the

manner in which his rights were denied. The ultimate right to confront the witnesses and

test the sufficiency of evidence was afforded at trial.

Bank Records

Defendant next asserts the court erred by allowing the Commonwealth to

introduce banking and investment account records without authentication and compliance

with Pa.R.E. 902.

a 1830 -------------..···--·- The Commonwealth's expert accounting witness relied upon numerous banking

and investment account records for his testimony. When the records were referenced,

defense counsel objected that they had not been authenticated through a records

custodian. The Commonwealth asserted that the records were self-authenticating

pursuant to Pa.R.E. 902( 11 ).

Although trial counsel had been retained by the defendant only a short time before

trial, the Assistant Attorney General had served copies of all the records in question on

the defendant's prior counsel many months before trial, and the records had a custodian

of records certification attached. Defense counsel argues that a party intending to admit a

record under Rule 902(11) must give written notice of that intention to the other side.

Months before trial, the Commonwealth had supplied all the records and a copy of Mr.

Houser's report in which he refers to those records. The Commonwealth gave notice that

Houser would be testifying.

As such, I found that the Commonwealth had complied with the rule by giving the

defendant reasonable written notice of its intent to offer the records into evidence.

Certainly the defendant had a fair opportunity to challenge their accuracy. If defense

counsel wanted to ask questions of the records custodian, he could have subpoenaed the

custodian. The possible defense questions to which counsel referred did not relate to the

accuracy of the records, but instead to their interpretation.

1831 a

--·-·-·-··-- -··-···---- Reference to the Stockers

The court's knowledge of the Stockers is based on sidebar conversations, since

neither testified. The defendant's statement of matters complained of on appeal refers to

Mike Stocker, Sr., and Mickey Stocker. It is my understanding that Mike Stocker, Sr. is

Mickey Stocker's father.

The defendant complains of the court sustaining Commonwealth objections but

provides no transcript references where the objections were raised. I will discuss the

objections related to either Stocker which I was able to find in the transcript.

The initial reference to one of the Stockers occurred during the defense cross-

examination of John Burnard. (N.T. pp. 69-74). In response to defense counsel's

questions, Mr. Burnard testified that he had not called the police to bring charges against

the defendant. Then counsel asked if Mr. Burnard initially believed that the folks from

Senior Services were approaching him because of something Mike Stocker had done.

The Commonwealth objected at that point and a sidebar conference occurred so defense

counsel could explain the relevance of his questions.

Defense counsel stated that Mike Stocker was handling the Bumards' investment

account and that some of the checks from that account went to Stocker's son and some

went to the defendant. The Commonwealth represented that no checks going to the

Stocker's son were part of the allegations against Picone, and that any checks going to the

Stockers may well be the subject of a separate prosecution against them. I found that

1832 a --------·----········ ·-··-·······-----···-------- evidence of someone else having improperly accessed other funds from the Burnards'

account to be irrelevant as long as none of those funds were included in the

Commonwealth's evidence. Defense counsel insisted that Mr. Houser' s report included

funds accessed by one of the Stockers and that Mike Stocker, Sr. was going to be called

as a witness. The conference ended with defense counsel reserving the right to recall

John Burnard after this other evidence was presented. Mr. Heuser's testimony made no

mention of funds that were allegedly accessed by either Stocker, and the defense failed to

call Mike Stocker as a witness.

Later during the cross-examination of John Burnard (N.T. pp. 94-97), defense

counsel asked Mr. Burnard ifhe had concerns toward the end of2014 about the way his

house in Virginia was sold. The Commonwealth objected to relevance. Defense counsel

promised to tie in this line of questioning. When Mr. Burnard was asked about the

specifics of the sale of the house, the Commonwealth again objected, and a sidebar

occurred.

At sidebar, defense counsel offered that he wanted to show that the Burnards,

toward the end of 2014, were examining what was occurring with their investments to

show that both Bumards had the mental alertness to understand and evaluate what was

happening with their money. I ruled that he could show they were reviewing their

investments without getting into the specifics of the sale of the Virginia house, which was

not an issue in the case.

1833 a The first Commonwealth objection I have found during Mr. Rouser's testimony

that related to one of the Stockers appears in the trial transcript starting at page 444.

(N.T. pp. 443�448). Defense counsel referred Houser to his direct testimony that the

Bumards had no history of writing large checks for gifts and then referred to a couple of

checks in the Burnards' check register written to Mickey Stocker. The Commonwealth objected, and counsel came to sidebar.

The Commonwealth's objection was that anything written to Mickey Stocker was

not a gift, but a theft of money not included in the charges against the defendant and,

therefore, not relevant. In response, defense counsel referred to Mr. Hauser's testimony

that there was no history of large gift giving, but I pointed out that Mr. Houser had said

there was no history of such gift giving before the period of the subject transactions in

2014. Counsel also argued the checks to Stocker were in Rouser's log book which had

been admitted into evidence, but I agreed with the Commonwealth that the log book had

not been admitted. I asked counsel to explain how he would show the checks to Stocker

were gifts. He said that he was not going to show they were gifts, only that the checks

appeared in the check register. I then asked how that would be relevant.

Defense counsel then seemed to change direction and assert that Houser listed

Stocker as a vendor and indicated that he was going to ask additional questions to clarify

the issue, to which I agreed. There was no ruling at that time on the Commonwealth's

objection, and the sidebar ended.

1834 a ···-- ·•····--·· ... --------------------- Defense counsel returned to the issue later during his cross-examination. (N.T. pp.

467-469). He asked Mr. Houser whether, in his report, he identified Mickey Stocker as a

vendor. The Commonwealth made a relevancy objection. At sidebar, defense counsel

stated that he wanted to show that Houser had mistakenly identified Stocker as a vendor

as a way of challenging the accuracy of his report.

Houser had testified that he was retained to examine the transactions between the

Burnards and Picone, and that identifying the vendors was just a by-product of that

process. (N.T. p. 467). Potentially misidentifying a vendor had no relevance to Rouser's

testimony regarding the transactions between the Burnards and Picone, and so the

objection was sustained.

Reviewing the transcript, I could find no other objections raised by the

Commonwealth that related to either one of the Stockers.

Mistrial Denied

Next, the defendant asserts error in the denial of his counsel's motion for a

mistrial. As previously discussed in reviewing the evidence at trial, Leo Howell is an

attorney whom the defendant retained to draft a document for Ella Burnard to sign by

which she was to affirm that she was of sound mind and judgment and intended that five

of the checks made out to the defendant were intended as gifts. Immediately after

defense counsel announced he was calling Howell to the stand, Ms. Laucella, for the

1835 a

--------------· . Commonwealth, asked that the witness be advised of his rights before testifying. This

request was made in front ofthe jury, and defense counsel objected. (N.T. pp. 542-564).

At sidebar, defense counsel said that he was tempted to ask for a mistrial, but did

not ask for one at first. After admonishing counsel at sidebar for raising this issue in

front of the jury, the sidebar ended. The jury was told that a recess was needed to discuss

a matter with counsel. With the jury out, Howell was advised of his right against self-

incrimination, and he indicated a desire to consult with counsel. After a brief recess, but

still outside the presence of the jury; defense counsel said he was "renewing" his motion

for a mistrial, informing me that Howell no longer wished to testify, and asking to

colloquy the witness.

Howell testified, outside the jury's presence, that he was not going to testify

because he felt threatened by the Attorney General. Defense counsel requested a

dismissal of the case based upon prosecutorial misconduct. The motions for mistrial and

dismissal were denied. An early lunch break was then called to give Mr. Howell ninety

minutes to attempt consulting with counsel.

When we returned after lunch, defense counsel informed me that Howell had

decided to testify after all but asked to first insert a short witness. That was done

followed by Howell's testimony.

Prosecutorial misconduct will justify granting a mistrial only where the

unavoidable effect of the conduct is to prejudice the jury to the extent that it is rendered

1836 a incapable of fairly weighing the evidence and entering an objective verdict,

Commonwealth v. Pierce, 537 Pa. 514, 645 A.2d 189 (1994). It was my judgment that

the suggestion that the witness should be advised of his rights before testifying, followed

by the witness' decision to do so did not render the jury incapable of entering an

objective verdict or even objectively weighing Mr. Howell's testimony. Had I advised

the jury that advising a witness of his rights does not reflect a judgment on his credibility,

I believe that a question of his credibility may have been planted in the jurors' minds.

However, merely taking of an extended recess before he testified might very well have

suggested to the jury that the witness had considered his rights and felt no concern about

providing testimony.

Restitution

The defendant asserts that the amount of restitution ordered is incorrect because

the Commonwealth failed to establish what part of the funds transferred to the defendant

from the Burnards' accounts were either a gift or a loan.

John Burnard testified that he was aware that his wife had made some gifts to the

defendant, and that there was other money transferred to the defendant which he

understood to be interest free loans. He spoke in general terms about gifts, but identified

none of the transactions as a gift. When defense counsel specifically asked Mr. Burnard

about the checks given to the defendant by his wife, he repeatedly stated his

understanding that the money given to the defendant by check was intended as a loan.

1837 a The defendant argued to the jury that Ella Burnard had given over $300,000 of the

Burnards' money in the form of gifts. However, the jury also heard testimony that Ella

Burnard had cognitive problems at the time the alleged gifts were made. From that

testimony the jurors could have, and apparently did conclude that she was not capable of

forming the donative intent to give their money to the defendant. Getting an individual

who is not aware of what she is doing to sign a check by which her money is taken from

her bank account is a taking. That clearly is what the jury concluded happened here.

John Burnard testified that he was being informed that the transfers of funds to

Picone, to the extent Mr. Burnard was aware of such transfers, were loans. That

testimony was actually supported by the document Howell prepared for Ella Burnard to

sign at the defendant's request, purporting to convert checks which has previously been

designated as loans to gifts.

The defendant argues that a loan is not a taking; however, borrowing money with

no intention of repaying the loan constitutes theft by deception. See, Commonwealth v.

Atwood, 411 Pa. Super. 137, 601 A.2d 277 (1991); Commonwealth v. Grife, 444 Pa.

Super, 362, 664 A.2d 116 (1995). There was no evidence that the defendant repaid any

money to the Burnards even though he continued to take more of their money while

expending large sums at casinos, remodeling his house and funding his business.

The defendant was not tried on theft by deception charges, but he was convicted of

receiving stolen property, which requires that the defendant receive, retain, or dispose of

1838 a another's property with knowledge that it was stolen. It makes no distinctions about the

manner in which the property was stolen. The evidence supports the conclusion that the

defendant received, retained, and disposed of$319,501.60 ofthe Burnards money with

knowledge that he stole it from them.

BY THE COURT,

Dated: fe.bn,.arJ l(,1 ),()J 7

1839 a ... ----····· , .. , .. -------········-··-·---------