Commonwealth v. Weaver

1

COMMONWEALTH OF PENNSYLVANIA v. SCOTT ALAN WEAVER Appellant

No. 371 MDA 2022

No. J-A13002-23

Superior Court of Pennsylvania

August 11, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered September 2, 2021 In the Court of Common Pleas of Perry County Criminal Division at No(s): CP-50-CR-0000209-2019

Joseph D. Seletyn, Esq.

BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

BOWES J.

Scott Alan Weaver appeals from his judgment of sentence of an aggregate term of five to eighteen months of incarceration plus two years of probation imposed after a jury convicted him of several crimes in connection with the misuse of his power as manager of Marysville Borough. We affirm.

Between 2015 and 2018, Appellant ordered on behalf of and for the Borough nearly $30,000 in maintenance supplies that were overpriced and/or unnecessary from two companies in Florida.^[1] In turn, the companies sent gift cards to Appellant at his Borough office for amounts ranging from $40 to $125. Appellant gave some of the cards away as gifts and redeemed $520 worth for himself in October 2018.

On May 24, 2019, Appellant was charged by criminal complaint with violating § 1103(a) and (c) of the Public Official and Employee Ethic Act,^[2] theft by unlawful taking, and commercial bribery. Appellant pled guilty to one count of theft by unlawful taking and eight counts of commercial bribery on January 14, 2020, but successfully moved to withdraw his plea prior to sentencing. He proceeded to a jury trial and was convicted of all four counts in the original complaint.

Following a pre-sentence investigation, Appellant, represented by new counsel, was sentenced as indicated above on September 2, 2021. His post-sentence motion was denied by order of February 3, 2022. This timely appeal followed, and both Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant presents the following questions for our consideration:

[1.] Did the trial court err in denying [Appellant's] post-sentence motion when the jury instruction in [Appellant]'s case resulted in a verdict that incorporated irreconcilable and necessarily erroneous conclusions of law and fact - that the same property was both the property of [Appellant], received as a kickback, and the property of Marysville Borough stolen by [Appellant] - and is [Appellant] entitled to a new trial because of this clear and fundamental error?

[2.] Did the trial court abuse its discretion in concluding that the jury's verdict was not against the weight of the evidence when the verdict was necessarily founded on irreconcilable and erroneous conclusions of law and fact?

[3.] Did the trial court err in denying [Appellant]'s [claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963),] when the court found that the first element of a Brady claim requires that the evidence in question be exculpatory, and further found that the evidence at issue in [Appellant]'s case was exculpatory, but nevertheless ruled that the claim did not warrant further consideration, and should this Court remand [Appellant]'s case for further proceedings regarding the Brady claim if it declines to grant relief on his other claims on appeal?

Appellant's brief at 5 (cleaned up).

Appellant's first issue concerns the trial court's instructions to the jury. Accordingly, the following principles guide our review:

When reviewing a challenge to a jury instruction, we review the charge as a whole to determine if it is fair and complete. The trial court commits an abuse of discretion only when there is an inaccurate statement of the law. A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error.

Commonwealth v. Lake, 281 A.3d 341, 347 (Pa.Super. 2022) (cleaned up). Critically, in order to preserve an appellate challenge to jury instructions, the objections must be made at trial before the jury begins deliberations. See Pa.R.Crim.P. 647(C) ("No portions of the charge nor omissions from the charge may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate."); Pa.R.A.P. 302(b) (providing that, to preserve an exception to the jury charge for appeal, "[s]pecific exception shall be taken to the language or omission complained of").

Here, Appellant argues that the jury instructions were fundamentally erroneous insofar as they advised the jury that it could conclude both (1) that Appellant owned the gift cards because he received them as a kickback, and (2) that Appellant stole gift cards that were owned by the Borough. See Appellant's brief at 15. However, as Appellant acknowledged in his post-sentence motion, his "trial counsel failed to object to the [c]ourt's jury instruction and otherwise failed to address this error at trial[.]" Post-Sentence Motion, 9/13/21, at 15. See also N.T. Trial, 4/22/21, at 178 (Appellant's trial counsel responding in the negative when the trial court asked whether the parties had "any additions or corrections or requests as far as the jury instructions"). Therefore, the claim of error is waived.^[3] See Commonwealth v. Hamilton, 329 A.2d 212, 213 (Pa. 1974) (holding that even "basic and fundamental" error in a jury charge cannot serve as a basis for appellate relief "where no exception or only a general exception was taken to the charge, or on a ground not raised in or by the court below"); Commonwealth v. Messersmith, 860 A.2d 1078, 1087 (Pa.Super. 2004) (same).

Appellant next asserts that the trial court abused its discretion in holding that the jury's verdict was not against the weight of the evidence. The following law applies to our review of Appellant's weight claim:

A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. 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. Rather, the role of 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.

An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court. Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence.

Commonwealth v. Arias, 286 A.3d 341, 352 (Pa.Super. 2022) (cleaned up). Consequently, our task is to determine whether the trial court, in rejecting Appellant's weight challenge, "abused its discretion by reaching a manifestly unreasonable judgment, misapplying the law, or basing its decision on partiality, prejudice, bias, or ill-will." Commonwealth v. Clay, 64 A.3d 1049, 1056 (Pa. 2013) (cleaned up).

Appellant's weight claim rests upon the same foundation as his waived challenge to the jury instructions, namely that he could not have both personally accepted the gift cards as an improper influence upon his purchasing power as Borough Manager and also have stolen them from the Borough. See Appellant's brief at 25. He maintains that reaching the conclusion that the Borough was the rightful owner of the gift cards and that they were paid to Appellant as a kickback was a result "premised upon necessarily irreconcilable and erroneous findings of law and fact[.]" Id. at 30. Appellant argues it was therefore manifestly unreasonable for the trial court to deny his weight claim and grant him a new trial. Id. at 30-31.

In Pennsylvania, jury verdicts are presumed to be consistent "unless there is no reasonable theory to support the jury's verdict." McDermott v. Biddle, 674 A.2d 665, 667 (Pa. 1996). Nonetheless, "even where two verdicts are logically inconsistent, such inconsistency alone cannot be grounds for a new trial or for reversal." Commonwealth v. Miller, 35 A.3d 1206, 1213 (Pa. 2012). "[C]onsistency in a verdict in a criminal case is not necessary or required if there is evidence to support each verdict." Commonwealth v. Barkman, 295 A.3d 721 (Pa.Super. 2023).

Appellant does not assert that the evidence was insufficient to sustain each verdict. Instead, he contends that the result is not supported by any reasonable theory. We consider Appellant's argument mindful of the elements of the crimes of which he was convicted. The provisions of the Public Official and Employee Ethic Act at issue are as follows:

(a) Conflict of interest.--No public official or public employee shall engage in conduct that constitutes a conflict of interest.

. . . .

(c) Accepting improper influence.--No public official, public employee or nominee or candidate for public office shall solicit or accept anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment, based on any understanding of that public official, public employee or nominee that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby.

65 Pa.C.S. § 1103. Appellant's commercial bribery conviction was based upon the following statute:

An employee, agent or fiduciary commits a misdemeanor of the second degree when, without the consent of his employer or principal, he solicits, accepts, or agrees to accept any benefit from another person upon agreement or understanding that such benefit will influence his conduct in relation to the affairs of his employer or principal.

18 Pa.C.S. § 4108(a). Finally, a...