J-A13007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DAVID J. MCCLELLAND Appellant No. 1776 WDA 2013

Appeal from the Judgment of Sentence June 6, 2013 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0001884-2011
BEFORE: PANELLA, J., SHOGAN, J., and OTT, J. MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 21, 2015 Appellant, David J. McClelland, appeals from the j udgment of sentence entered June 6, 2013, in the Court of Common Pleas of Washington County, following his conviction of Second Degree Murder, D ealing in Proceeds of Unlawful Activity, Receiving Stolen Property, and C riminal Conspiracy to Commit Criminal Homicide, Dealing in Proceeds of Un lawful Activity, Robbery, Burglary, and Theft by Unlawful Taking or Disposition. No relief is due. We take the underlying history of this case from t he trial court’s opinion. Following a trial by jury, [Appellant], David J. M cClelland, was convicted of [the above-mentioned crimes]. Dur ing the trial, the jury heard evidence that [McClelland] an d his codefendants, his father and his step-mother, were en gaged in numerous burglaries and thefts of cash from the hom e of Evelyn Stepko, their elderly neighbor, who lived alone, be ginning inJ-A13007-15

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August 2009 and continuing through July 18, 2011, w hen Evelyn Stepko was found murdered in her home. During the period of time the burglaries were occu rring, [McClelland] was a municipal police officer, workin g for several local departments. [McClelland] made at least one deposit of stolen cash into his co-conspirators’ account while dressed in his police uniform. Although [McClelland] gave conflic ting statements to police and attempted to minimize his involvement in the burglaries, he admitted that he received lar ge amounts of cash from his co-defendant father, knowing that the money had been stolen from Evelyn Stepko, and knowing that hi s father had no other means to give him money. Despite this kno wledge, [McClelland] admitted asking his father for additio nal monies. [McClelland] further admitted that after one of the burglaries, his father called him at work while he was working as a police officer and asked if he had heard anything about the burgla ries. The Commonwealth also introduced telephone records, whi ch showed that [McClelland] would receive calls from his co-d efendant father immediately before and immediately after at least one of the burglaries. Although the Commonwealth had direct evidence, thr ough DNA, that his co-defendant had been in the house at the time of the murder, there was circumstantial evidence intro duced at trial from which the jury could infer that the Defendant had been in Mrs. Stepko’s home and had participated in the burg laries as well: the basement window from which the perpetrat ors gained entry to the home was difficult to traverse; member s of the state police found it difficult to enter unassisted, infe rring that it was unlikely that the co-defendant father, who was on d isability, could have entered the home without help; during hi s statement to police, [McClelland] described in considerable d etail Mrs. Stepko’s armoire from which cash was stolen; a neig hbor testified that he saw a white male, fitting [McClel land’s] description, leaving Mrs. Stepko’s home carrying a white bag and moving toward [McClelland’s] home, following a burg lary. As was the case with his co-conspirators, [McClell and] admitted to using cash stolen from the burglaries a t the casino. [He] also acknowledged spending stolen cash on fire arms, tools and improvements to his property. [McClelland] als o received from his co-conspirators the house he was living in and a vehicle, which were purchased with stolen cash. [M cClelland] further admitted that he discussed with his co-defe ndant fatherJ-A13007-15

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how and where they might hide the unspent cash that had been stolen from Mrs. Stepko. Like his co-conspirators, at no time did [McClella nd] report the criminal activity to police or attempt to aband on the conspiracy. Even after M[r]s. Stepko’s murder was discovered, [he] did not come forward. Trial Court Opinion, 4/29/14 at 5-7 (record citatio ns omitted). Following McClelland’s conviction by a jury of all charges, the trial court imposed an aggregate sentence of life impriso nment. McClelland thereafter filed timely post-sentence motions, whic h the trial court denied. This timely appeal followed. McClelland raises the following issues for our rev iew:
1. Did the trial court err in allowing the Commonwealt h to introduce evidence of Appellant’s former employment as a police officer in contradiction of the Pennsylvania Rules of Evidence and the jurisprudence of this Commonwealth ? 2. Did the trial court err in sustaining the verdict w here the verdict was against the weight of the evidence? 3. Did the trial court err in sustaining the verdict w here there was insufficient evidence to convict Appellant of C riminal Homicide, Dealing in Proceeds of Unlawful Activity, or Criminal Conspiracy? 4. Did the trial court err by incorrectly instructing the jury on the applicable law? Appellant’s Brief at 11. McClelland first challenges the trial court’s decis ion to admit evidence of his former employment as a police officer. “[T] he admission of evidence is within the sound discretion of the trial court a nd will be reversed only upon a showing that the trial court clearly abused its discretion.”J-A13007-15

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Commonwealth v. Fransen , 42 A.3d 1100, 1106 (Pa. Super. 2012), appeal denied , 76 A.3d 538 (Pa. 2013) (internal citations omitte d). “An abuse of discretion is not merely an error of judgm ent, but is rather the overriding or misapplication of the law, or the exe rcise of judgment that is manifestly unreasonable, or the result of bias, pre judice, ill-will or partiality, as shown by the evidence of record.” Commonwealth v. Mendez , 74 A.3d 256, 260 (Pa. Super. 2013), appeal denied , 87 A.3d 319 (Pa. 2014) (citation omitted). An appellant cannot prove an abuse of discretion un less he shows how he was prejudiced by the court’s decision. See Commonwealth v. Ogrod , 839 A.2d 294, 324 (Pa. 2003). “All relevant evidence is admissible, except as oth erwise provided by law. Evidence that is not relevant is not admissib le.” Pa.R.E. 402. Relevant evidence is defined as “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evide nce.” Pa.R.E. 401. However, “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair pr ejudice.” Pa.R.E. 403. “‘Unfair prejudice’ supporting exclusion of relevan t evidence means a tendency to suggest decision on an improper basis o r divert the jury's attention away from its duty of weighing the eviden ce impartially.” Commonwealth v. Wright , 961 A.2d 119, 151 (Pa. 2008) (citation omitted).J-A13007-15

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McClelland argues that evidence of his prior employ ment as a police officer was unfairly prejudicial as it suggested to the jury that he should answer to a higher standard than any other defendan t. See Appellant’s Brief at 24-25. Notably, McClelland does not cite any case law to support his assertion. While we can certainly envision that so me prejudice might result from the admission of evidence that McClelland was a police officer, whose duty it was to protect the public, at the time he c ommitted the crimes, we find no danger that the contested evidence would “s tir such passion in the [finder of fact] as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial.” Commonwealth v. Sherwood , 982 A.2d 483, 498 n. 25 (Pa. 2009), (citation omitted). We further agree with the trial court’s determination that the evidence of Mc Clelland’s occupation as a police officer did not reflect upon the ultimate is sue of McClelland’s guilt or innocence such that it denied him of a fair trial. See Trial Court Opinion, 4/29/14 at 11. Therefore, we find the trial court did not abuse its discretion when it admitted evidence of McClelland’s employmen t. McClelland next argues that the jury’s verdict was against the weight of the evidence. We note that [t]he finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibili ty of the witnesses. As an appellate court we cannot substitute our judg ment for that of the finder of fact. Therefore, we will reverse a jury’s verdict and grant a new trial only where the verdic t is so contrary to the evidence as to shock one’s sense of justice. AJ-A13007-15

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verdict is said to be contrary to the evidence such that it shocks one’s sense of justice when “the figure of Justice totters on her pedestal,” or when “the jury’s verdict, at the time of its rendition, causes the trial judge to lose his breac h, temporarily and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience.” Furthermore, where the trial court has ruled on the weight claim below, an appellate court’s role is not to co nsider the underlying question of whether the verdict is again st the weight of the evidence. Rather, appellate review is limite d to whether the trial court palpably abused its discretion in r uling on the weight claim. Commonwealth v. Boyd , 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (quoting Commonwealth v. Cruz , 919 A.2d 279, 281-82 (Pa. Super. 2007)). The trial court explained its reasons for rejectin g McClelland’s weight of the evidence claim as follows. The evidence presented at trial ... overwhelmingly supported the verdict rendered by the jury. The Commonwealth’s witnesses testified in a credible ma nner to the facts of the case. [McClelland], on the other hand , claimed in his defense that the allegations of his involvement in the burglaries and thefts were unfounded. The defense put forth t hat [McClelland], although unaware that his co-defendan t father was stealing from the home of the victim, did not commi t, plan or participate in any burglaries and that the only thi ng that [he] was guilty of was receiving stolen property. The j ury justifiably rejected this defense. Simply put, based on the ev idence elicited during trial, it would be impossible for the [t]ria l [c]ourt to find the evidence was so contrary to the verdict as to s hock the conscience of the [t]rial [c]ourt or to determine t hat [McClelland] was denied justice. Trial Court Opinion, 4/29/14 at 21.J-A13007-15

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Upon review, we find no abuse of discretion by the trial court in determining that the verdicts were not against the weight of the evidence. The trial court’s determinations are supported by t he record, and the jury acted well-within its discretion to credit the cons istent testimony of the Commonwealth’s witnesses and not McClelland. See Commonwealth v. Bullick , 830 A.2d 998, 1000 (Pa. Super. 2003) (“[T]he trie r of fact while passing upon the credibility of witnesses and the w eight of the evidence produced, is free to believe all, part or none of t he evidence.” (citation omitted)). Thus, we find this claim to be without merit. McClelland alternatively challenges the sufficiency of the evidence to support his convictions. We review a challenge to the sufficiency of the evidence as follows.

The standard we apply when reviewing the sufficienc y of the evidence is whether viewing all the evidence ad mitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to fi nd every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and subst itute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth n eed not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finde r unless the evidence is so weak and inconclusive that as a matt er of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its bur den of proving every element of the crime beyond a reasona ble doubt by means of wholly circumstantial evidence. Moreove r, 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 beli eve all, part or none of the evidence. Furthermore, when reviewing a sufficiencyJ-A13007-15

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claim, our Court is required to give the prosecutio n the benefit of all reasonable inferences to be drawn from the evid ence. However, the inferences must flow from facts and circumstances proven in the record, and must be of such volume and quality as to overcome the presumption of innocence and satisfy the jury of an accused’s guilt beyond a rea sonable doubt. The trier of fact cannot base a conviction on conje cture and speculation and a verdict which is premised on susp icion will fail even under the limited scrutiny of appellate review

. Commonwealth v. Slocum , 86 A.3d 272, 275-276 (Pa. Super. 2014) (citation omitted). “In order to preserve a challenge to the sufficienc y of the evidence on appeal, an appellant's Rule 1925(b) statement must state with specificity the element or elements upon which the appellant allege s that the evidence was insufficient.” Commonwealth v. Garland , 63 A.3d 339, 344 (Pa. Super. 2013) (citation omitted). “Such specificity is of particular importance in cases where, as here, the appellant was convicted o f multiple crimes each of which contains numerous elements that the Commonwea lth must prove beyond a reasonable doubt.” Id . (citation omitted). In his Rule 1925(b) statement, McClelland argued on ly that “there was insufficient evidence to convict Defendant of any c ount besides Receiving Stolen Property[.]" Concise Statement, 11/19/13. a t ¶ 5. This sweeping, generic statement fails to satisfy the requirement that an appellant must
state with specificity the elements of the crimes for which there is alle gedlyJ-A13007-15

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insufficient evidence. 1 This violation is especially significant here, giv en that McClelland challenges the sufficiency of the eviden ce to support his conviction of multiple crimes, but his Rule 1925(b) statement utterly fai ls to pinpoint any specific crime or any elements of his convicted crimes that lacked sufficient evidence. We therefore are const rained to find McClelland’s sufficiency claims to be waived. See Garland , supra . Lastly, McClelland argues broadly that the trial c ourt erred by “incorrectly instructing the jury on the law.” App ellant’s Brief at 54. Preliminarily, we note that we agree with the trial court’s conclusion that McClelland has waived any challenge to the jury ins tructions on appeal. “[T]o preserve an issue for appellate review, a par ty must make a timely and specific objection at the appropriate stage of the proceedings.” Commonwealth v. Williams , 91 A.3d 240, 252 (Pa. Super. 2014) (citation omitted). Our review of the trial transcript revea ls that defense counsel did not raise a contemporaneous objection to any allege dly improper jury instruction—either during or immediately after the c ourt issued its

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1 Nor does McClelland detail his challenge to the su fficiency of the evidence with greater specificity in the statement of questi ons involved contained in his appellate brief. Therein, he argues only broad ly that “there was insufficient evidence to convict Appellant of Crimi nal Homicide, Dealing in Proceeds of Unlawful Activity, or Criminal Conspira cy[.]” Appellant’s Brief at 11.J-A13007-15

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instructions to the jury. 2 Accordingly, this claim is waived. See Commonwealth v. May , 887 A.2d 750, 761 (Pa. 2005) (holding that the “absence of a contemporaneous objection renders” an appellant’s claims waived). Having found no merit to McClelland’s issues raise d on appeal, we affirm the judgment of sentence. Judgment of sentence affirmed. Judge Shogan joins the memorandum. Judge Ott files a concurring/dissenting memorandum

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/21/2015

____________________________________________ 2 Although defense counsel lodged an objection to a sentence contained on the verdict slip, he did not challenge the jury ins tructions issued by the court at any time. See N.T., Jury Trial, 4/9/13 at 1183, 1187-1193. The i ssue concerning the language contained on the verdict sl ip is obviously altogether different from the challenge to the jury instructio ns now raised on appeal.