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

v.

JOHN LLEWELLYN DAVIS, III

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 454 WDA 2022 Appeal from the Judgment of Sentence Entered April 5, 2022 In the Court of Common Pleas of Fayette County Criminal Division at

No(s): CP

- 26

- CR

- 0000451

- 2021

BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.: FILED: MAY 11, 2023 John Ll ewellyn Davis, III, appeals from the judgment of sentence entered on his convictions for burglary , criminal trespass, criminal mischief , and theft by unlawful taking. 1 Davis argues the conviction s were against the weight of the evidence and the trial court improperly admitted evidence . We affirm. The trial court accurately summarized the facts as follows:
T he case involves an incident at the Yogi Bear Campground on November 7, 2020. An individual entered the laundry room at the Campground in the middle of the night, vandalized several lottery m achines , a change machine [,] and a soap dispenser. The individual entered the laundry room [,] turned off the lights, and smashed a fake camera and t hen began to destroy the other machines. The individual was seen on an operating camera beating on the machines with bolt cutters [,] taking $27.00 from

_________________ __________ ______ ____ _______
1 18 Pa.C.S.A. §§ 3502(a)(4), 3503(a)(1)(i), 3304(a)(5), and 3921, respectively.J

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the lottery machines and causing $9,00 0 .00 worth of damage to the machines in the room. The operating surveillance camera showed a man with a mustache , wearing a black ball cap, converse sneakers and a tattoo on his right hand do ing the damage in the laundry room. Two days prior to the incident at Yogi Bear , at a gas station near the campgrounds, another t heft occurred. Two me n went into the gas station, one began talking with the cashier and the other began playing o n the coin dozer machine

. The ma n who began talking with the cashier identified himself as John Davis and was very friendly with her. After ta lking with the cashier, [Davis ] went over to the game machine and began shaking it. The machine, when shaken, makes a sound like a car alarm [. T] he cashier told him to stop shaking the machine [. H] e did finally stop shaking the machine. While [Davis] distracted the cashier, the other m an broke into the other game machine. The cashier gave descriptions of the two men and identified [Davis] as one of the two men who were involved in the incident in th e gas station. She testified that he had a tattoo on his right hand. The cashier reviewed the surveillance footage and testified that it was a fair and accurate depiction of the events that occurred at the gas station on November 5, 2020. The cashier turne d the surveillance video over to the State Police. [The video also contained images of a white Ford Fusion vehicle, which was reg ist ered to Davis’s father .] Initially, the State Police were unable to determine the identity of the person on the surveillance video. The surveillance video from the two incidents were reviewed and shared with the operations manager at Yogi Bear. She was able to identify the individual f rom the gas station video as the same individual observed damaging the machines in the laundry room by the tattoo on the back of his hand . [Davis] had been at the campground as the guest of another person who was registered there. Video surveillance showed [Davis] entering the campground from the woods after being dropped off at the front ga te of the campgrounds. The operations manager turned over all the video to the Trooper investigating the case. Trial Court Opinion , filed June 7, 2022, at 2

- 3 ( citations to trial transcript omitted).J

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The jury found Davis guilty of the aforementioned off enses. He was sentenced to 18 to 36 months’ incarceration . Davis filed a post

- sentence motion, which was denied. This appeal followed. 2 Davis raises the following two issues:
1. Whether the guilty verdicts were against the weight of the evidence; t hus , warr anting a new trial? 2. Whether the trial court committed an error of law in permitting the Commonwealth to present testimony regarding an alleged incident at another location for which [Davis] was not charged?
Davis’s Br. at 5. Davis first argues the ve rdicts were against the weight of the evidence. Id. at 8. He contends that his father credibly testified he was at his father’s house on the night of November 6, 2020

– the night of the Yogi Bear Campground incident

– and therefore could not have committed the crime. Id. at 9. According to Davis, he is entitled to a new trial because “[t] he jury either ignored this testimony or ga ve it equal weight to the Commonwealth ’ s evidence in rendering its guilty verdicts and because of this occurring Davis was denied justice and a fair trial. ” Id.

_________________ __________ ______ ____ _______ 2 While Davis’s post

- sentence motion was pending, Davis filed a pro se notice of appeal on April 25, 2022. The court thereafter denied the post

- sentence motion on June 7, 2 022. We treat this appeal as filed as of the date of the denial of the post

- sentence motion, and therefore it is timely and not premature. See Pa.R.A.P. 905(a)(5) (stating “[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof ” ).J

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When reviewing a weight challenge on appeal, we do not determine ourselves whether the verdict was against the weight of the evidence. Rather, we review the trial court ’ s exercise of its discre tion in determining, in the first instance, whether to sustain the challenge. Commonwealth v. Johnson , 192 A.3d 1149, 1152

- 53 (Pa.Super. 2018). “ To successfully challenge the weight of the evidence, a defendant must prove the evidence is so tenuous, vague and uncertain that the verdict shocks the conscience of the court.” Commonwealth v. Windslowe , 158 A.3d 698, 712 (Pa.Super. 2017) ( internal quotation marks and citation omitted). Further, “ [t] he weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses.” Commonwealth v. Champney , 832 A.2d 403, 408 (Pa. 2003) (quoting Commonwealth v. Small , 741 A.2d 666, 672 (Pa. 1999)). “ W hen the challenge to the w eight of the evidence is predicated on the credibility of trial testimony, our review of the trial court ’ s decision is extremely limited.” Commonwealth v. Bowen , 55 A.3d 1254, 1262 (Pa.Super. 2012) (citation omitted). Usually, “unless the evidence is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, these types of claims are not cognizable on appellate review.” Id. (citation omitted). Here, Davis’s father testified that at the time of the Yogi Bear Campground incident, Davis was living with him but “he came and went.” N.T ., 4/4/22

- 4/5/22, at 105. He stated that Davis came home in the evening o f November 6, 2020 and left the next morning on November 7, 2020. Id. atJ

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107. He testified that he did not see Davis , but he knew he was there because he “makes noises” and “is not the quietist.” Id. He also stated he was “pretty sure” that two troopers cam e to his house on November 7, 2020 to talk to
him

. Id. The Commonweal th challenged Davis’s father’s testimony by offering rebuttal evidence. Trooper Seth Thomas Jarzynka testified that he spoke to Davis’s father on November 6, 2020 regarding the gas station incident because his vehicle was identified on the surveillance video. Id. at 115. Davis’s father told him that Davis had borrowed his car and “was gone for the past few days [.]” Id. at 116. The father stated that Davi s returned the car to
h i m on November 5, 2020. Id. at 115. Trooper Kalee Wiet rzykowski testified that she spoke to Davis’s father

on November 10, 2020 , by telephone

. Id. at 118. He related to her he last
saw Davis about a week prior to that date , which was around November 3,
2020

. Id. at 118

- 19. She testified that the father said he ha d a white Fo r d Fusion and he occasionally let Davis drive it. Id. Trooper Wietrzykowski stated
Da vis’s father did not t ell her that Davis was at his house on the evening of November 6, 2020

. Id. at 120. She stated that she would have included such information in her report

. Id.
T he trial court found the verdict s w ere not against the weight of the evid ence . By virtue of the verdict s , it is clear that the jury, as the fact

- finder and sole judge of credibility, did not believe Davis’s father’s alibi testimony. The jury was free to believe all, part, or none of the evidence presented inJ

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judging the credibility of the witnesses, and presumably did not find Davis’s father to be credible. Champney , 832 A.2d at 408

. The jury ’ s choice not to believe his testimony was purely within its discretion and will not be disturbed on appeal. Davis essentially asks this Court to reassess and reweigh the evidence presented at trial, which we will not do. Our review of the record indicates that the evidence supporting the jury verd ict s wa s not tenuous, vague, or uncertain. Therefore, we discern no abuse of discretion in the trial
court ’ s denial of Davis’ s weight challenge. Davis next argues the trial court erred in admitting evidence of the gas station incident that occurred t w o da ys before the instant crime at Yogi Bear Campground

. Citing Pennsylvania Rule of Evidence 404 (b)(2), Davis concedes the use of such evidence to prove identity was permissible , but argues its prejudicial effect clearly outweighed its probative value. Davis’s Br. at 10.
Davis emphasizes that the “testimony and video evidence were regarding a theft crime similar to the one for which Davis was on trial and within days of the subject crime

. ” I d. According to Davis, “[t] he introduction of such evidenc e clearly would allow the jury to speculate that i f Davis was a party to and committed that crime then he most likely committed the subject crime which is extremely prejudicial. ” Id. Before address ing the merits of this issue, we must determine whether
Davis has preserved it. The Commonwealth argues the issue is waived because Davis objected to evidence of the gas station incident only on the basis of relevanc e, and not prejudice

. Commonwealth’s Br. at 10. We disagree.J

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A review of the record demonstrates that Davis’s counsel made the following objection s immediately prior to the gas station surveillance video being played: [Davis’s Counsel]: Your Honor, I am going to object on the b asis of relevancy and the basis of Rule 404k [sic] , Pennsylvania Rules of Evidence, and, also, I object on the lack of foundation for the surveillance and video unless [the witness] can testify about the equipment

. N.T. at 19. After the court ordered the C ommonwealth to lay a foundation , the video was played for the jury. Although there is no subsection “k” under Pennsylvania Rule of Evidence
404 , it is evident that Davis’s counsel lodged an objection under Rule 404

. That Rule, discussed below, contains a non

- exhaustive list of purposes, other than proving character, for which a person ’ s other crimes, wrongs, or acts may be admissible , but “ only if the probative value of the evidence outweighs its potential for unfair prejudice. ” Pa. R.E. 404(b)(2). The Commonwealth, in fact, recognizes that Davis’s counsel’s objection “was premised on the surveillance video being evidence of a prior bad act not permissible under Rule 404” and the reference to subsection “k” in the trial transcript was likely a typographical error. Commonwealth’s Br. at 10 n.3. W e decline to find waiver. The admissibility of evidence is within the discretion of the trial court. Commonwealth v. Saez , 225 A.3d 169, 177 (Pa.Super. 2019). “An abuse of discre tion occurs when the law is overridden or misapplied, or the judgment exercised was either manifestly unreasonable or the product of partiality,J

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prejudice, bias, or ill will.” Commonwealth v. Rogers , 250 A.3d 1209, 1215 (Pa. 2021). Rule 404(b) of the Penn sylvania Rules of Evidence bars admission of evidence of prior bad acts to establish a person ’ s character and to prove that the person acted on a particular occasion in conformity with that character. Pa.R.E. 404(b)(1). However, evidence of prior bad acts is permissible for some other, proper purpose, such as to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2). In criminal case s , as previously stated, “this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.” Id.
T he Commonwealth submitted Davis’s prior act at the gas station to establish his identity. One of the recogni zed exceptions to the rule prohibiting evidence of other crimes is where the evidence establishes “the identity of the perpetrator when the crimes are so similar that logically the same person has committed both acts.” Commonwealth v. Rush , 646 A.2d 557, 5 60 (Pa. 1994); see Pa.R.E. 404(b)(2). To use Rule 404(b)(2) evidence to establish identity , the other crimes and the underlying crime must “share a method so distinctive and circumstances so nearly identical as to constitute the virtual signature of the de fendant.” Commonwealth v. Weakley , 972 A.2d 1182, 1189 (Pa.Super. 2009). What is required is “such a high correlation in the details of the crimes that proof that a person committed one of them makes it very unlikely that anyone else committed the others.” Id. (citation omitted).J

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“ To establish similarity, several factors to be considered are the elapsed time between the crimes, the geographical proximity of the crime scenes, and the manner in which the crimes were committed.” Rush , 646 A.2d at 56 1. Here, the trial court found that the introduction of the video to establish identification was more probative than prejudicial. Trial Ct. Op. at 5. It opined that “[t] he introduction of the video was to establish the identity of an individual who had ident ified himself with the same name as [Davis] , had the same tattoo, and similar clothing as the individual who da maged the machines at the campgroun d

. ” Id. We find no abuse of discretion. As noted above, Davis concedes that the Commonwealth’s use of the video to prove identity was permissible

. As the identity of the perpetrator was a threshold issue in th is case, it was highly probative. T he two incidents each involved thefts of lottery machines and occurred within two days of ea ch other and near to each other

. N.T. at 72. The individual in the gas station video was wearing the same black baseball hat and converse shoes as the indi vidual in the Yogi Bear C ampground incident. Id. at 71

- 72 , 81

. Further, the individual in both videos had the same build , same facial ha i r , and , most signi ficantly, the same large tattoo on his right hand. Id. at 72 , 82

. The Commonwealth also emphasized in both its opening and closing
statements that the gas station occurrence was not at issue in this case and Davis was not charged in that incident

. Id. at 8, 139. Rather, it was only introduced for identification purposes. Id. Moreover, Davis failed to request aJ

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limiting instruction on this issue. See Pa.R.E. 404 cmt. ( “ When evidence is admitted for this purpose, the party against whom it is offered is entitled, upon request, to a limiting instruction ”)

. We therefore agree with the trial court that t he probative value of the evidence outweigh ed any alleged prejudice. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/11/2023