Opinion
J-S16009-14 No. 1235 MDA 2013
04-28-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. KYLE ZACHARY HILL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered February 20, 2013
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000979-2012
BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Kyle Zachary Hill, appeals from the judgment of sentence of eight months' to two years' incarceration, imposed after he was convicted of burglary, criminal trespass, unlawful use of a computer, computer theft, computer trespass, theft by unlawful taking, and receiving stolen property. Appellant challenges the sufficiency of the evidence to sustain his convictions, and also asserts that he discovered new evidence entitling him to a new trial. After careful review, we affirm.
The trial court set forth the facts of Appellant's case as follows:
On or about March 22, 2012, the Palmyra Borough Police Department received a phone call from Caitlin Oliver (hereinafter "Oliver") that her I-Mac laptop had been stolen from her residence sometime during the period of March 19 throughTrial Court Opinion (TCO), 6/28/13, at 3.
March 21, 2012. Oliver testified at trial that she last saw her laptop on her coffee table located near the back sliding glass door to her residence. Oliver's neighbor, Jeanne Trump, told the police that she saw a male on a bicycle with a yellow bar across the front at Oliver's house near the time of the burglary. Oliver knew [Appellant] ... had a similar bicycle. Oliver's father, Steven Oliver, then confronted [Appellant] about the laptop.
On March 30, 2012, [Appellant's] Godmother, Sandra Chandler (hereinafter "Chandler"), contacted the police department and informed them she had discovered a laptop at her residence. At the time of the burglary, [Appellant] resided with Chandler. Officer Jared Henry retrieved the laptop and Oliver was able to positively identify it as hers. Officer Henry then turned the laptop on in Oliver's presence...[.] Oliver testified that her wallpaper had been altered; her file folders were deleted, along with her i-Tunes and pictures. Multiple photographs of [Appellant] were on the laptop, including two that were taken with the computer's webcam. When questioned about knowing [Appellant], Oliver stated that [Appellant] had been at her residence on March 18, 2012.
The trial court's opinion accompanied its order denying Appellant's post-sentence motion. The trial court relied on this opinion to satisfy Pa.R.A.P. 1925(a), as Appellant presented the same issues in his Rule 1925(b) statement as proffered in his post-sentence motion.
Appellant was charged with the above-stated offenses and, following a jury trial on November 6, 2012, he was found guilty on all counts. On February 20, 2013, Appellant was sentenced to the aggregate term stated supra. He filed a timely post-sentence motion, which the court denied. Appellant then filed a timely notice of appeal and a concise statement of errors complained of on appeal pursuant to Rule 1925(b). Herein, he raises the following issues for our review:
A. Whether Appellant should be acquitted because there was not sufficient evidence presented at trial to prove beyond a reasonable doubt that she committed the crimes of Harassment?Appellant's Brief at 4.
B. Whether Appellant should be entitled to a new trial due to newly discovered evidence, which was obtained after trial?
Appellant's first issue is waived for several reasons. First, his "Statement of the Issues Presented" clearly does not relate to the facts of this case. Not only does Appellant refer to himself as "she," but he also states that the evidence was insufficient to convict him for a crime (harassment) for which he was never even charged, let alone convicted. Thus, Appellant has failed to preserve his claim that the evidence was insufficient to support his convictions for the multiple offenses discussed supra. See Pa.R.A.P. 2116(a) ("No question will be considered unless it is stated in the statement of the questions involved or is fairly suggested thereby.").
Second, Appellant has also waived his challenge to the sufficiency of the evidence due to his deficient Rule 1925(b) statement. Therein, he presented this issue as follows: "There was insufficient evidence for [Appellant] to be found guilty of the charges of burglary, criminal trespass, unlawful use of a computer, computer theft, computer trespass, theft by unlawful taking and receiving stolen property." Rule 1925(b), 7/17/13. Appellant's boilerplate language fails to specify the ostensibly unproven element(s) of the numerous offenses for which he was convicted. Accordingly, his claim is waived for this reason, as well. See Commonwealth v. Williams, 959 A.2d 1252, 1256-57 (Pa. Super. 2008) (finding waiver of sufficiency claim where Rule 1925(b) stated: "There was insufficient evidence to sustain the charges of Murder, Robbery, VUFA no license, and VUFA on the streets. Thus [Appellant] was denied due process of law."); Commonwealth v. Flores, 921 A.2d 517, 522 (Pa. Super. 2007) (stating that "[i]f Appellant wants to preserve a claim that the evidence was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient").
Lastly, Appellant's challenge to the sufficiency of the evidence is waived based on his underdeveloped argument. Again, Appellant does not set forth the elements of the offenses for which he was convicted or state which element(s) the Commonwealth failed to prove. Moreover, his entire argument regarding how the evidence was insufficient to support his multiple convictions encompasses one paragraph without a single citation to any legal authority. See Appellant's Brief at 8-9. Consequently, his first issue is waived on this basis as well. See Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (stating "it is a well settled principle of appellate jurisprudence that undeveloped claims are waived and unreviewable on appeal") (citation omitted). For all of these reasons, we decline to address the merits of Appellant's challenge to the sufficiency of the evidence to support his convictions.
In Appellant's second issue, he avers that after his trial, he discovered a video that constitutes new evidence warranting a new trial. Curiously, Appellant does not provide this Court with a description of what the video allegedly depicts. However, the trial court concisely summarizes Appellant's "new evidence" claim as follows: "[Appellant] alleges that a few days prior to sentencing he informed his counsel that he had a video of an identified third party who confessed to breaking into Oliver's residence and taking the laptop." TCO at 7.
We disagree with Appellant that this ostensibly "new evidence" entitles him to another trial. As this Court has explained,
[t]o be granted a new trial based on the basis of after-discovered evidence:Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010) (citation omitted).
[Defendant] must demonstrate that the evidence: (1) could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted.The test is conjunctive; the defendant must show by a preponderance of the evidence that each of these factors has been met in order for a new trial to be warranted.
Appellant has failed to satisfy the after-discovered evidence test for the simple fact that the video he purportedly discovered is not contained in the certified record, and Appellant offers no proof (such as a sworn affidavit) of what the video depicts. "It is black letter law in this jurisdiction that an appellate court cannot consider anything which is not part of the record in [the] case." See Bennyhoff v. Pappert, 790 A.2d 313, 318 (Pa. Super. 2001). Without anything in the record verifying Appellant's claim that the video shows a third party confessing to stealing Oliver's computer, we cannot possibly determine whether this "new evidence" would satisfy all of prongs of after-discovered evidence test. Accordingly, Appellant's second issue is meritless.
Judgment of sentence affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary