Com. v. Lilliock

• Decision Date: 23 September 1999
• Citation: 1999 PA Super 244,740 A.2d 237
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Andrew E. LILLIOCK, Appellant.
• Court: Pennsylvania Superior Court

740 A.2d 237

1999 PA Super 244

COMMONWEALTH of Pennsylvania, Appellee, v. Andrew E. LILLIOCK, Appellant.

Superior Court of Pennsylvania.

Submitted June 1, 1999.

Filed September 23, 1999.

Eric E. Bononi, Greensburg, for appellant.

John W. Peck, II, Dist. Atty., Greensburg, for Com., appellee.

Before KELLY, JOYCE and OLSZEWSKI, JJ.

OLSZEWSKI, J.:

¶ 1 Appellant, Andrew E. Lilliock, appeals from the judgment of sentence entered on December 4, 1997. After a careful review of the record and relevant case law, we find appellant's contentions to be meritless and thus affirm.

¶ 2 The relevant facts underlying this case are as follows. On March 4, 1995, a fire erupted at the mobile home of Sandra Lilliock. On June 26, 1996, Sandra Lilliock's estranged husband, Andrew Lilliock, was arrested and charged with arson, risking a catastrophe, recklessly endangering another person, burglary, and criminal trespass. During the jury trial, the Commonwealth presented the testimony of an eyewitness, Judy Dutchko. Ms. Dutchko testified that, on March 4, 1995, she observed a white male, approximately thirty years old and with no noticeable facial hair, driving a white Volkswagon Rabbit or Plymouth Horizon arrive at Sandra Lilliock's mobile home. The person entered the mobile home, remained there for a few minutes, and then departed. Several minutes later, Ms. Dutchko noticed flames inside of the home. The Commonwealth also adduced evidence that Sandra Lilliock had recently separated from appellant and that there was a history of physical abuse by appellant towards his wife. Additionally, the Commonwealth presented the testimony of Jay Whitfield, a former friend of appellant, who testified that he was with appellant at a bar on the night of the fire. According to Mr. Whitfield, appellant left the bar after he learned that his wife was with another man. Later that night, appellant admitted to Mr. Whitfield that he set his wife's mobile home on fire and that he made it look like a furnace fire by placing rags around the furnace.

¶ 3 After deliberating upon the evidence presented, the jury returned a verdict of guilty on all counts. Appellant was sentenced to eighteen to thirty-six months' incarceration. Appellant filed a post-sentence motion, which was denied by the lower court. This timely appeal followed.

¶ 4 Appellant presents ten questions for our review:

I. Were the verdicts against the weight of the evidence?

II. Did the trial court err in permitting the jurors to take a magnifying glass into [the] courtroom to examine photographs?

III. Did the trial court err in not permitting introduction of all of Sandra Lilliock's bank records?

IV. Did the trial court err in not instructing the jury with the "false in one, false in all" standard jury instruction?

V. Should the defendant's sentence be modified?

VI. Was trial counsel ineffective for failing not to object to the admission of "prior bad acts"?

VII. Was trial counsel ineffective for not calling alibi witnesses?

VIII. Was trial counsel ineffective for failing to raise post trial motions on the trial court's hearsay determination of the police report?

IX. Was trial counsel ineffective for failing to raise post trial motions on the trial court's limitation of defense witness testimony?

X. Was trial counsel ineffective for failing to raise post trial motions on the inflammatory closing remarks of the district attorney?

Appellant's brief, at 6 (suggested answers omitted).

WEIGHT OF THE EVIDENCE

¶ 5 Appellant first argues that the verdict was against the weight of the evidence for four reasons: (1) the Commonwealth did not present evidence that established that there was any forcible or unprivileged entry into Mrs. Lilliock's home in order to sustain the burglary conviction; (2) Ms. Dutchko's testimony was insufficient to identify appellant as the perpetrator; (3) the two expert witnesses provided conflicting testimony regarding the origin of the fire; (4) the testimony of Mr. Whitfield was inconsistent with other evidence presented by the Commonwealth; and (5) a portion of Mrs. Lilliock's testimony was refuted at trial.

¶ 6 The decision to grant a new trial based on a challenge to the weight of the evidence is within the sound discretion of the trial court. Absent an abuse of discretion, we will not reverse the trial court's ruling. Commonwealth v. Eddowes, 397 Pa.Super. 551, 580 A.2d 769 (1990). It is well established that the trial court should award a new trial on the basis requested by appellant only where a verdict is so contrary to the evidence so as to shock one's sense of justice and make the award of a new trial imperative. Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991). An appellate court may review the trial court's decision to determine whether there was an abuse of discretion, but it may not substitute its judgment for that of the lower court. Commonwealth v. Ables, 404 Pa.Super. 169, 590 A.2d 334 (1991).

¶ 7 We find that appellant's first argument is meritless. Forcible entry is not an element of the crime of burglary. In order to be convicted of burglary, the Commonwealth must establish that the defendant "enter[ed] a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter." 18 Pa.C.S.A. § 3502. The Commonwealth presented evidence to satisfy all elements of the crime of burglary. The Commonwealth need not have presented evidence of forcible entry.

¶ 8 As to appellant's second claim, we find that Ms. Dutchko's description of the assailant was sufficient. Ms. Dutchko testified that she witnessed a white Volkswagon Rabbit or Horizon pull up to the mobile home on the night of the fire. She observed a white male, approximately six feet tall, with short hair and no apparent facial hair, exit the car and walk towards the front door. A light went on in the mobile home and then minutes later, the light went off. The man exited the mobile home and attempted to hide from Ms. Dutchko's view. Soon after he left the premises, Ms. Dutchko saw that the mobile home was on fire. Appellant is a white man, is five feet, eleven inches tall, has brown hair, and owned a white Volkswagon Rabbit at the time of the fire. When we consider Ms. Dutchko's testimony, together with other evidence presented by the Commonwealth, we find that the evidence was sufficient to identify appellant as the assailant.

¶ 9 Appellant next challenges the weight of the evidence on the ground that the two expert witnesses presented by the Commonwealth provided contradictory testimony as to the origin and cause of the fire. Trooper Brian Craig examined the mobile home shortly after the fire was extinguished. Agent William J. Petraitis of the Bureau of Alcohol, Tobacco and Firearms, however, based his opinion upon his review of Trooper Craig's report, witness statements, and photographs of the scene. While appellant is correct in stating that the experts provided differing opinions as to the origin and cause of the fire, both experts did conclude that the fire was a result of arson. The experts' testimony, particularly concerning their opinion as to the fire being a result of arson, support the conviction, especially when considered together with the other evidence presented at trial. In any event, where evidence is conflicting, the issue of credibility of witnesses and a resolution of the conflict is a matter solely of the trier of fact. Commonwealth v. Russell, 445 Pa.Super. 510, 665 A.2d 1239, 1247 (1995).

¶ 10 Appellant also challenges the weight of the evidence on the ground that the testimony of Jay Whitfield was contradictory and inconsistent with other evidence presented by the Commonwealth. Mr. Whitfield testified as to the statements made to him by appellant about how appellant started the fire. His testimony as to appellant's statements admitting how he started the fire differed from the experts' analysis of the origin and cause of the fire. Nevertheless, this does not render the verdict against the weight of the evidence because both the experts' and Mr. Whitfield's testimony support a finding that appellant started the fire. We reiterate that any inconsistencies in the evidence are a matter for the trier of fact to resolve, and we will not disturb the verdict on that basis. Russell, supra.

¶ 11 Finally, appellant argues that Mrs. Lilliock's testimony regarding appellant's motive was refuted at trial. Mrs. Lilliock testified that appellant stated that he needed a tragedy to reunite his family. This statement had been made in the context of a discussion about the terminal illness of a family friend. Ms. Lilliock testified that appellant's statement was made after the friend's death. On cross-examination, however, the defense presented evidence establishing that the friend did not die until after the fire occurred. Appellant now asks us to disturb the verdict because of this minor inaccuracy. "As the phenomenon of lying is within the ordinary capacity of jurors to assess, the question of a witness's credibility is reserved exclusively for the jury." Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315, 317 (1988). We find that the record amply supports the jury's determination, and thus we will not disturb the verdict.

JUROR USE OF A MAGNIFYING GLASS

¶ 12 Appellant argues that the trial court erroneously permitted the jurors to take a magnifying glass into the courtroom to examine photographs that were admitted into evidence. At trial, both parties used a visual presenter, a video machine that enlarges a regular photograph on a video monitor, to assist them in presenting photographic evidence to the jury. A video presenter is not available to the jury in the jury room. As a result, the jury requested a magnifying glass in order to view the photographic evidence. According to appellant, the juror's use of the...