Com. v. McKissick (memorandum)
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J-S78043-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DEBORAH K. MCKISSICK, Appellant No. 1022 MDA 2012 Appeal from the Judgment of Sentence entered February 13, 2012, in the Court of Common Pleas of Snyder County, Criminal Division, at No(s): CP-55-CR-0000344-2010 BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and ALLEN, JJ. MEMORANDUM BY ALLEN, J.: Filed: January 4, 2013 Deborah K. McKissick ( Appellant ) appeals from the judgment of sentence imposed following her convictions of theft by unlawful taking, receiving stolen property, and unauthorized use of an automobile.1 We affirm. We have gleaned the following facts from our review of the record. In 2010, Appellant was a paralegal at a law office handling Shelly Walter s bankruptcy petition. Ms. Walter s car, a Ford 150 pickup truck, was scheduled to be repossessed by GMAC, its lienholder. Appellant instructed Ms. Walter to leave her keys inside the truck, so it could be voluntarily ____________________________________________ 1 18 Pa.C.S.A. §§ 3921(a), 3925(a), and 3928, respectively. J-S78043-12 surrendered to GMAC. Appellant then went to Ms. Walter s home while she was at a court hearing, and took possession of Ms. Walter s truck for Appellant s personal use. Appellant never made arrangements for GMAC to repossess Ms. Walter s vehicle. Instead, Appellant began making payments on Ms. Walter s vehicle. When Ms. Walter learned that the truck registration was renewed, she became suspicious. Ms. Walter contacted law enforcement, and their investigation led to Appellant being charged with the above-referenced offenses. Prior to Appellant s trial, a jury array was convened, and five potential jurors appeared wearing traditional Amish/Mennonite clothing. The five prospective jurors indicated that their religious beliefs barred them from serving on juries because they would not sit in judgment of their fellow man. The trial court dismissed the five Amish/Mennonite jurors prior to any formal voir dire by Appellant s counsel or the Commonwealth, and the case proceeded to trial. On December 19, 2011, the jury convicted Appellant of theft by unlawful taking, receiving stolen property, and unauthorized use of an automobile. On February 13, 2012, the trial conducted a sentencing hearing, and assigned Appellant a record score of five, instead of Appellant s requested score of four. The trial court determined that Appellant s convictions for theft by unlawful taking and receiving stolen property merged, and sentenced Appellant to 12 to 24 months of incarceration, followed by 36 months of probation. The trial court made the foregoing -2- J-S78043-12 sentence consecutive to Appellant s sentence of 3 to 12 months for her conviction of unauthorized use of an automobile. Further, Appellant s minimum aggregate sentence was reduced to 11¼ months because the trial court determined that Appellant was eligible for the Recidivism Risk Reduction Initiative. On February 23, 2012, Appellant filed timely post-sentence motions requesting a judgment of acquittal and challenging the sufficiency of the evidence supporting her convictions. Appellant also assigned error to the trial court for its dismissal of the five prospective Amish/Mennonite jurors, and for miscalculating Appellant s prior record score. On May 10, 2012, the trial court denied Appellant s post-sentence motions. Appellant filed a timely notice of appeal. Both the trial court and Appellant have complied with Pa.R.A.P. 1925. Appellant presents the following issues for our review: I. Whether the court should enter a judgment of acquittal on Counts 1 and 3 of the information because the Commonwealth's evidence is legally insufficient to sustain the jury's guilty verdicts on those counts? II. Whether the Appellant is entitled to a new trial on the basis that the court erred by excusing five jurors based on their religious faith without allowing defense counsel to conduct voir dire of those jurors to determine whether they should have been excused for cause thereby denying Appellant a representative cross-section of persons on her jury panel? III. Whether the court erred in calculating Appellant's prior record score thereby rendering the sentenced imposed illegal? Appellant s Brief at 8. -3- J-S78043-12 With regard to Appellant s first issue, we recognize: A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge. The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the 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. Abed, 989 A.2d 23, 26-27 (Pa. Super. 2010) (internal citation omitted) (emphasis in original). As to Appellant s request for a new trial because the trial court dismissed five potential Amish/Mennonite jurors, we note that: [O]ur standard of review when faced with an appeal from the trial court s denial of a motion for a new trial is whether the trial court clearly and palpably committed an error of law that controlled the outcome of the case or constituted an abuse of discretion. In examining the evidence in the light most favorable to the verdict winner, to reverse the trial court, we must -4- J-S78043-12 conclude that the verdict would change if another trial were granted. Schmidt v. Boardman, 958 A.2d 498 (Pa. Super. 2008), affirmed, 11 A.3d 924 (Pa. 2011) (internal citations omitted). Moreover: The test for determining whether a prospective juror should be disqualified is whether he is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor.... It must be determined whether any biases or prejudices can be put aside on proper instruction of the court....[]... The decision on whether to disqualify [a juror] is within the discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion.... Commonwealth v. Wilson, 672 A.2d 293, 299 (Pa. 1996) citing Commonwealth v. Colson, 490 A.2d 811, 818 (Pa. 1985). Appellant s last issue challenges the trial court s calculation of her prior record score. A challenge to the calculation of the Sentencing Guidelines raises a question of the discretionary aspects of a defendant's sentence. Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa. Super. 2000) (internal citation omitted). When a defendant raises an issue that implicates the discretionary aspects of his sentence, the defendant must petition this Court for permission to appeal and demonstrate that there is a substantial question that the sentence imposed was not appropriate under the Sentencing Code. Id. referencing 42 Pa.C.S.A. §9781(b); and Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987). Here, Appellant has not filed a Pa.R.A.P. 2119(f) statement petitioning this Court for -5- J-S78043-12 permission to appeal her sentence, and showing that there is a substantial question that her sentence was improper. However, since the Commonwealth did not object to the absence of Appellant s Pa.R.A.P. 2119(f) statement, we may reach the issue of whether Appellant has raised a substantial question regarding the appropriateness of her sentence. See generally Commonwealth v. Gould, 912 A.2d 869 (Pa. Super. 2006). We have previously determined that [a] claim that the sentencing court misapplied the Sentencing Guidelines presents a substantial question. Johnson, supra, at 1216 (internal citation omitted). Mindful of the foregoing standards of review, we carefully examined the record and found Appellant s issues on appeal to be without merit. The Honorable Louise O. Knight, sitting as the trial court, has filed a comprehensive opinion, which we adopt and incorporate as our own. In her May 10, 2012 opinion, Judge Knight ably addressed Appellant s challenges to the sufficiency of the evidence, the dismissal of the five potential jurors, and the calculation of Appellant s prior record score. We therefore adopt the trial court s May 10, 2012 opinion as our own, and affirm Appellant s judgment of sentence. Judgment of sentence affirmed. -6-
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