Com. v. Whispell, R.

• Court: Superior Court of Pennsylvania
• Decided: December 2, 2014
• Docket: 66 MDA 2014
• Status: Unpublished

Opinion

J-A26022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RONALD LEE WHISPELL

Appellant No. 66 MDA 2014

Appeal from the Judgment of Sentence August 21, 2013 In the Court of Common Pleas of Columbia County Criminal Division at No(s): CP-19-CR-0000078-2012

BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.: FILED DECEMBER 02, 2014

Appellant, Ronald Lee Whispell, appeals from the August 21, 2013

aggregate judgment of sentence of two to 23 months’ imprisonment,

imposed after a jury found him guilty of four counts of altered or illegally

obtained property, and one count each of deceptive business practices,

prohibited activities relating to odometers, and false swearing. 1 After careful

review, we affirm the judgment of sentence.

The certified record discloses the following facts and procedural history

of this case. Appellant owns Quality Collision Services, an auto body repair

business. In February 2009, Richard Thursby, an adjuster for Allstate

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1 18 P.S. § 1.4(a) and (b) (repealed on October 25, 2012 and replaced by 18 Pa.C.S.A. §§ 7703 and 7704), 18 Pa.C.S.A. § 4107(a)(2), 75 Pa.C.S.A. § 7132(b), and 18 Pa.C.S.A. § 4903(a)(2), respectively. J-A26022-14

Insurance Company, inspected a red 2008 Volkswagen R32 (R32) with a

vehicle identification number (VIN) of WVWKC71K78W018819 at Quality

Collision Services. N.T., 7/16/13, at 2-5. Thursby determined that following

a collision, the damage to the vehicle exceeded its actual cash value, so it

was “totaled.” Id. at 6. Following this inspection, the vehicle remained at

Quality Collision Services.

On May 6, 2009, Appellant purchased an orange 2007 Volkswagen GTI

Fahrenheit (GTI) (VIN WVWFV71K27W167276) through Salvage Direct, an

online broker for salvage vehicles sold at auction for parts and

reconstruction. Id. at 14-18. The previous owner’s insurance company

deemed the GTI a salvage vehicle because it had been stolen. Id. at 16. As

such, the Pennsylvania Department of Transportation issued a Certificate of

Salvage for the vehicle instead of a Certificate of Title. Id. at 17. The

Certificate of Salvage enabled ownership of the GTI to be transferred, but

provided that the GTI needed a reconstructed title before it could be

operated on a highway. Id. at 18. The vehicle had sustained front and

rear-end damage, but the remainder of the vehicle was largely intact. Id. at

16.

Following this purchase, Appellant obtained a court order, dated May

29, 2009, awarding him ownership of the red 2008 Volkswagen R32 in

satisfaction of a mechanic’s lien for a towing and storage bill of $3,250.00.

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Id. at 47.2 Appellant’s petition for certificate of title, which was part of

Commonwealth’s Exhibit C-9 but not admitted at trial, averred that the value

of the vehicle was less than the cost of repair, storage, and towing. Id.;

N.T., 7/17/13, at 55. Despite Thursby’s conclusion that the R32 was totaled,

Appellant obtained a standard Certificate of Title, i.e., “clean title”, for the

vehicle. N.T., 7/16/13, at 27, 42, Commonwealth’s Exhibit C-6, Certificate

of Title, at 1.

In June 2009, Appellant presented a vehicle to Jack Metzgar

Volkswagen for repairs. N.T., 7/16/13, at 76. The service invoice, which

was introduced at trial as Commonwealth’s Exhibit C-14A but not admitted

into evidence, described the vehicle as an orange 2008 Volkswagen R32.

Id. The VIN plate attached to the dashboard and visible through the front

windshield (public VIN) displayed a VIN of WVWKC71K78W018819, which

was identical to that of the red 2008 Volkswagen R32 to which Appellant had

obtained clean title. Id. The repair invoice also referred to a parts car,

which is a vehicle used to supply parts for another vehicle, with a VIN of

WVWFV71K27W167276 that matched the orange 2007 Volkswagen GTI

Appellant purchased from Salvage Direct. Id. at 77.

In July 2009, Appellant sold a vehicle he represented as an orange

2008 Volkswagen R32 (Subject Vehicle) to Danyelle Pontius for $23,000.00.

2 This testimony pertained to Commonwealth’s Exhibit C-9. This exhibit is part of the certified record sent to this Court, but it was not admitted at trial.

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N.T., 7/16/13, at 24-25. Pontius testified that Appellant told her the Subject

Vehicle had been repaired and repainted after an accident, but he did not

state that it had been totaled or salvaged. Id. at 25. Pontius tendered to

Appellant the proceeds of a bank loan in the form of a check for

$24,000.00.3 Id. at 27. Pontius noted that the purchase price on the title

transfer documents was listed as $10,000.00. Id. at 28. While she did not

write that purchase price on the document, she signed it, even though the

purchase price was incorrect, because she wanted to pay less sales tax. Id.

In January 2010, Pontius traded the Subject Vehicle toward the

purchase of a 2010 Mitsubishi Lancer from Motor World in Wilkes-Barre, PA.

Id. at 34-36. Motor World gave her a trade-in credit of $20,000.00 based

on the assumptions that the Subject Vehicle was a 2008 R32 with clean title

and no accident history. N.T., 7/17/13, at 8. Motor World then took the

Subject Vehicle to an auction where York Volkswagen purchased it. Id. at 5;

N.T., 7/16/13, at 56. Following the auction, one of the technicians at York

Volkswagen discovered VIN issues with the Subject Vehicle. N.T., 7/16/13,

at 58-63. These VIN concerns caused York Volkswagen to return the

Subject Vehicle. Id. at 63-64. In March 2010, a sheriff informed Pontius

3 While the purchase price of the Subject Vehicle was $23,000.00, Pontius explained that the bank loan was for $24,000.00 to cover the cost of tax and tags. N.T., 7/16/13, at 27.

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that she had to return the Lancer to Motor World and take back possession

of the Subject Vehicle. Id. at 37.

The Pennsylvania State Police Auto Theft Task Force then initiated an

investigation into the mismatched VIN numbers on the Subject Vehicle.

Four witnesses who examined the Subject Vehicle testified regarding their

conclusions as to the VIN of the Subject Vehicle, which we consolidate as

follows. The Subject Vehicle had a VIN in four separate locations. The

public VIN plate of the Subject Vehicle displayed the VIN of the red 2008

Volkswagen R32. N.T., 7/16/13, at 69, 90. A second VIN had been

scratched out from the federal weight certification label attached to the

driver’s doorpost. Id. at 69-70, 91. The label, however, also contained a

barcode that was not defaced. Id. When scanned, the barcode revealed a

VIN that matched the 2007 Volkswagen GTI Fahrenheit. Id. A third VIN

number was stamped into body of the unibody vehicle under the rear seat.

Id. at 83, 89. It was identical to the VIN of the 2007 Volkswagen GTI

Fahrenheit. Id. A fourth VIN was spot-welded to the passenger-side

quarter panel in the engine compartment. Id. at 72, 92. The welding was

not performed at the factory. Id. at 92. This VIN was the same as the 2008

Volkswagen R32. Id. at 72, 92. The investigators concluded, “[S]ome of

the parts of the [Subject V]ehicle were from an R32 2008, and … the

majority of the parts of the [Subject V]ehicle itself were 2007 GTI

Fahrenheit.” Id. at 71.

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At trial, Appellant admitted that he removed the public VIN plate from

the dashboard of the R32 and installed it on the instrument panel of the GTI.

N.T., 7/17/13, at 57. He also confirmed that he removed the passenger-

side quarter panel with the VIN from the R32 and welded it onto the body of

the GTI. Id. at 58.

Robert Metzger, general manager of Jack Metzger, Inc., testified to the

discrepancy in value between a 2008 R32 with clean title and a 2007 GTI

Fahrenheit with reconstructed title. N.T., 7/16/13, at 98-99. In March

2011, the fair market value of a 2008 R32 with clean or standard title was

$19,000.00. Id. at 98. In contrast, the fair market value of a 2007 GTI

Fahrenheit with reconstructed title was $5,000.00. Id. at 99.

On March 1, 2012, the Commonwealth filed a nine-count criminal

information charging Appellant with four counts of altered or illegally

obtained property, and one count each of deceptive or fraudulent business

practices, washing vehicle titles, theft by deception, prohibited activities

relating to odometers, and false swearing. Appellant proceeded to a two-

day jury trial on July 16, 2013. At the conclusion of the trial, the jury found

Appellant not guilty of washing vehicle titles, not guilty of theft by deception,

but guilty of all other charges. On August 22, 2013, the trial court imposed

an aggregate sentence of two to 23 months’ imprisonment.

On August 28, 2013, Appellant timely filed a post-sentence motion.

On November 7, 2013, the trial court heard oral argument on the motion.

Thereafter, on December 20, 2013, the trial court granted Appellant’s

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motion for judgment of acquittal on the charge of prohibited activities

relating to odometers.4 The trial court denied Appellant’s requests for relief

with respect to all other charges. On January 9, 2014, Appellant filed a

timely notice of appeal.5

On appeal, Appellant raises the following four issues for our review.

1. Whether the evidence is sufficient to sustain the jury’s guilty verdicts on the charges of altered or illegally obtained property?

2. Whether the evidence is sufficient to sustain the jury’s guilty verdict on the charge of deceptive or fraudulent business practices?

3. Whether the evidence is sufficient to sustain the jury’s guilty verdict on the charge of false swearing?

4. Whether the [trial ]court erred in denying Appellant’s [m]otion for a [n]ew [t]rial on the basis that the verdicts were against the weight of the evidence?

Appellant’s Brief at 16.

In his first three issues, Appellant argues that the evidence was not

sufficient to sustain the jury’s verdict on the charges of altered or illegally

4 This did not affect Appellant’s aggregate sentence, except the trial court vacated the fine levied for that count. The trial court entered an amended sentencing order to reflect that change. The Commonwealth has not filed a cross-appeal. 5 The trial court ordered, and Appellant timely filed, a Pa.R.A.P. 1925(b) concise statement. Thereafter, the trial court timely filed its 1925(a) opinion.

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obtained property, deceptive or fraudulent business practices, and false

swearing. Appellant’s Brief at 21-30.

We begin by noting our well-settled standard of review. When

reviewing a sufficiency of the evidence claim, we must “review the evidence

admitted during the trial along with any reasonable inferences that may be

drawn from that evidence in the light most favorable to the Commonwealth.”

Commonwealth v. Crawford, 24 A.3d 396, 404 (Pa. Super. 2011)

(citation omitted). “Any doubts concerning an appellant’s guilt [are] to be

resolved by the trier of fact unless the evidence was so weak and

inconclusive that no probability of fact could be drawn therefrom.”

Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007), appeal

denied, 947 A.2d 737 (Pa. 2008). 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.”

Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super. 2007) (citations

omitted). “[T]he trier of fact, in passing upon the credibility of the

witnesses, is free to believe all, part, or none of the evidence.”

Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009) (citation and

internal quotation marks omitted), cert. denied, Rivera v. Pennsylvania,

560 U.S. 909 (2010).

Before addressing the merits of Appellant’s claim, we must determine

whether Appellant has complied with Pennsylvania Rule of Appellate

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Procedure 1925(b) to preserve this issue for our review. By its text, Rule

1925(b) requires that concise statements “identify each ruling or error that

the appellant intends to challenge with sufficient detail to identify all

pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii); see also

Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006) (stating

“[w]hen a court has to guess what issues an appellant is appealing, that is

not enough for meaningful review[]”), appeal denied, 919 A.2d 956 (Pa.

2007). Any issues not raised in accordance with Rule 1925(b)(4) will be

deemed waived. Pa.R.A.P. 1925(b)(4)(vii). Our Supreme Court has made

clear that Rule 1925(b) is a bright-line rule. Commonwealth v. Hill, 16

A.3d 484, 494 (Pa. 2011). Additionally, with regard to claims pertaining to

the sufficiency of the Commonwealth’s evidence, we have stated as follows.

In order to preserve a challenge to the sufficiency of the evidence on appeal, an appellant’s Rule 1925(b) statement must state with specificity the element or elements upon which the appellant alleges that the evidence was insufficient. Such specificity is of particular importance in cases where, as here, the appellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt.

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal

quotation marks and citations omitted; emphasis added). Further, this

Court has concluded that other documents may not be incorporated by

reference into the 1925(b) statement. Commonwealth v. Osteen, 552

A.2d 1124, 1126 (Pa. Super. 1989); see also Commonwealth v. Smith,

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955 A.2d 391, 393 n.5 (Pa. Super. 2008); Commonwealth v. Dodge, 859

A.2d 771, 774 (Pa. Super. 2004) (expressing disapproval of the appellant’s

incorporation by reference of post sentence motions in his 1925(b)

statement), vacated on other grounds, 935 A.2d 1290 (Pa. 2007).

In this case, on January 23, 2014, Appellant timely filed his Rule

1925(b) statement, which raised a challenge to the sufficiency of the

evidence but did not refer to the individual elements of the crimes for which

he was convicted.

2. [Appellant] filed a timely [p]ost- [s]entence [m]otion seeking a judgment of acquittal on all counts on the basis of insufficiency of the evidence ….

…

4. On appeal[,] the [Appellant] will argue that the [trial c]ourt erred in denying his motions for judgment of acquittal as well as his motion for a new trial. These matters were raised in the post- sentence motion. Both parties briefed the issues and the [trial c]ourt heard oral argument. The matters to be raised on appeal were thoroughly discussed by the [trial c]ourt in its opinion denying the post- sentence motion.

Appellant’s Rule 1925(b) Statement, 1/23/14, at 1-2.

Based on our cases, we are constrained to conclude that Appellant has

not complied with Rule 1925(b) because his concise statement fails to

specify which elements of which offenses the Commonwealth did not prove

beyond a reasonable doubt. See Garland, supra (concluding that

Garland’s bald Rule 1925(b) statement that “[t]he evidence was legally

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insufficient to support the convictions[]” was non-compliant with Rule

1925(b)); Commonwealth v. Williams, 959 A.2d 1252, 1256 (Pa. Super.

2008) (concluding that Williams’ bald Rule 1925(b) statement that “[t]here

was insufficient evidence to sustain the charges of Murder, Robbery, VUFA

no license, and VUFA on the streets … [t]hus [Appellant] was denied due

process of law[]” was non-compliant with Rule 1925(b)). Moreover, despite

Appellant’s reference in his 1925(b) statement to his post-trial motions, the

parties’ briefs in the trial court, and the trial court opinion, said documents

cannot be incorporated by reference. See Osteen, supra. Therefore, we

deem Appellant’s sufficiency of the evidence challenges waived. 6 See

Garland, supra.

In his fourth issue, Appellant argues that the verdict was against the

weight of the evidence. Appellant’s Brief at 30-33. For the reasons that

follow, we conclude Appellant’s weight claim is meritless.

We begin by noting, “[a] claim alleging the verdict was against the

weight of the evidence is addressed to the discretion of the trial court.”

6 Even if we were to reach the merits of Appellant’s sufficiency claims, he would not be entitled to relief. The Commonwealth presented sufficient evidence to support the above-mentioned charges. After careful review of the record and the applicable law, we agree with the thorough analysis of the law and facts as developed by the Honorable Robert J. Eby in his December 20, 2013 opinion. See Trial Court Opinion, 12/20/13, at 7-13. Specifically, we conclude that reviewing the evidence admitted during the trial, along with any reasonable inferences in the light most favorable to the Commonwealth, supports the jury’s verdict. See Crawford, supra at 404.

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Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation

omitted). An argument that the jury’s verdict was against the weight of the

evidence concedes that the evidence was sufficient to sustain the

convictions. Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013),

cert. denied, Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014). Our

Supreme Court has recently admonished that “[a] new trial should not be

granted because of a mere conflict in the testimony or because the judge on

the same facts would have arrived at a different conclusion.”

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).

Instead, “the trial judge is to determine that notwithstanding all the facts,

certain facts are so clearly of greater weight that to ignore them or to give

them equal weight with all the facts is to deny justice.” Id. (internal

quotation marks and citation omitted). “[A] new trial should be awarded

when the jury’s verdict is so contrary to the evidence as to shock one’s

sense of justice ….” Id.

As an appellate court, it “is not [our role] to consider the underlying

question of whether the verdict is against the weight of the evidence.”

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (quoting

Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003)). A trial court’s

determination that the jury’s verdict was or was not against the weight of

the evidence remains “[o]ne of the least assailable reasons for granting or

denying a new trial ….” Id. (citation omitted). “Thus, only where the facts

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and inferences disclose a palpable abuse of discretion will the denial of a

motion for a new trial based on the weight of the evidence be upset on

appeal.” Id. (citation omitted; emphasis in original).

Here, Appellant first argues that the verdict was against the weight of

the evidence because Pontius is the “real culprit, … [and] has gone

unprosecuted.” Appellant’s Brief at 32 (contending “[h]ad [Pontius] revealed

to Motorworld [sic] that the vehicle in question had been in an accident and

had been repaired using parts from another vehicle, no harm would have

come to any party[]”). Appellant also claims that his status as a convicted

felon should have shocked the trial court’s sense of justice. Appellant’s Brief

at 31.

It is axiomatic that the jury is the ultimate finder of fact at trial.

[T]he veracity of a particular witness is a question which must be answered in reliance on the ordinary experiences of life, common knowledge of the natural tendencies of human nature, and observations of the character and demeanor of the witness. As the phenomenon of lying is within the ordinary capacity of jurors to assess, the question of a witness’s credibility is reserved exclusively for the jury.

Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted).

Likewise, “[t]he trier of fact while passing upon the credibility of witnesses

and the weight of the evidence produced, is free to believe all, part or none

of the evidence.” Commonwealth v. Feese, 79 A.3d 1101, 1122 (Pa.

Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014).

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In this case, the jury heard evidence of Appellant’s conduct in

constructing and selling the Subject Vehicle, and found Appellant guilty of

seven of the nine counts with which he was charged. We agree with the trial

court that Appellant’s attempts to divert the focus from his conduct are not

persuasive.

Neither of these arguments address[es] the weight of the evidence against [Appellant]. Instead, they seek to negate [Appellant’s] personal responsibility by pointing to the lack of prosecution of another and by lamenting the consequences of [Appellant’s] criminal activity upon his future life. Neither of these arguments is relevant to the inquiry before us: What was the evidence against [Appellant]?

We find that [Appellant’s] remaining convictions for Altered or Illegally Obtained Property, Deceptive or Fraudulent Business Practices, and False Swearing are amply supported by the weight of the evidence.

Trial Court Opinion, 12/30/13, at 14-15 (emphasis in original). Based on

these considerations, we conclude the trial court did not commit a palpable

abuse of discretion in deciding the jury’s verdict was not against the weight

of the evidence. See Morales, supra.

Based on the foregoing, we conclude all of Appellant’s issues are

waived or devoid of merit. Accordingly, the trial court’s August 21, 2013

judgment of sentence is affirmed.

Judgment of sentence affirmed.

Judge Jenkins joins the memorandum.

Judge Bowes concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/2/2014

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