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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHELLE MARTIN

                            Appellant                  No. 594 WDA 2015


             Appeal from the Judgment of Sentence March 26, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000907-2014


BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 17, 2016

        Michelle Martin appeals from the judgment of sentence entered in the

Court of Common Pleas of Erie County after a jury found her guilty of false

statements under the Public Welfare Code.1 Upon careful review, we affirm.

        This case stems from Martin’s failure to report the employment wages

of her son, Matthew Malone, and, as a result, receiving an overpayment of

food stamps in the amount of $2,487. After a two-day jury trial, Martin was

convicted of the foregoing offense and, on March 26, 2015, the trial court

sentenced her to five years’ probation. Martin filed a timely notice of appeal,



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    62 P.S. § 481.
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followed by a court-ordered statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

      Martin raises the following issues for our review:

      1. Whether the trial court abused its discretion in overruling the
      defense’s objection and permitted testimony regarding routine
      practice?

      2. Whether the trial court abused its discretion in permitting the
      Commonwealth to present testimony regarding [Martin’s] prior
      welfare charge from 2001 when that was resolved through entry
      and completion of the [Accelerated Rehabilitative Disposition
      (“ARD”)] program?

Brief of Appellant, at [4].

      Martin first claims that the trial court erred in allowing Harry Harbst, a

continuing eligibility caseworker with the Department of Public Welfare, to

testify to his “routine practice” in conducting benefits reviews. This claim is

waived.

      The failure by an appellant to develop an argument with citation to and

analysis of relevant authority waives the issue on appeal. Bombar v. West

Am. Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007).           Here, the argument

section of Martin’s brief begins by setting forth the standard of review for

claims involving the admission of evidence. However, Martin fails to develop

and support her claim with citation to pertinent caselaw or other authority

regarding the admission of “routine practice” evidence.       Accordingly, this

claim is waived.




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      Martin next asserts that the trial court abused its discretion by

permitting the Commonwealth to present testimony regarding her prior

welfare fraud charge, which was resolved through the ARD program. Martin

claims that the prejudicial nature of this evidence outweighed its probative

value because the prior charges, from 2001, were too remote in time. The

2001 charges stemmed from Martin’s failure to report a change in household

composition when she separated from her husband because it would have

reduced her benefits. For the following reason, this claim is meritless.

      We begin by noting that the admission of evidence is within the sound

discretion of the trial court and will be reversed only upon a showing that the

trial court clearly abused its discretion.    Commonwealth v. Tyson, 119

A.3d 353, 357 (Pa. Super. 2015) (citations omitted). “An abuse of discretion

is not merely an error of judgment, but is rather the overriding or

misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown

by the evidence of record.” Id. at 357-58 (citation omitted).

      Relevance    is   the      threshold   for   admissibility   of   evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). Pennsylvania Rule

of Evidence 401 provides as follows:

      Rule 401. Test for Relevant Evidence

      Evidence is relevant if:

      (a) it has any tendency to make a fact more or less probable
      than it would be without the evidence; and


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     (b) the fact is of consequence in determining the action.

Pa.R.E. 401.   “Evidence is relevant if it logically tends to establish a material

fact in the case, tends to make a fact at issue more or less probable or

supports a reasonable inference or presumption regarding a material fact.”

Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002).                      All

relevant evidence is admissible, except as otherwise provided by law.

Pa.R.E. 402.   However, “[t]he court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.

     Nonetheless,

     [e]vidence will not be prohibited merely because it is harmful to
     the defendant. This Court has stated that it is not required to
     sanitize the trial to eliminate all unpleasant facts from the jury’s
     consideration where those facts are relevant to the issues at
     hand and form part of the history and natural development of
     the events and offenses for which the defendant is charged.
     Moreover, we have upheld the admission of other crimes
     evidence, when relevant, even where the details of the other
     crime were extremely grotesque and highly prejudicial.

Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007).

     Finally, “when examining the         potential for undue       prejudice, a

cautionary jury instruction may ameliorate the prejudicial effect of the

proffered evidence. . . . Jurors are presumed to follow the trial court’s

instructions.” Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014).




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      In this case, the challenged evidence consists of testimony regarding a

past crime committed by Martin. Regarding the admission of such evidence,

P.R.E. 404(b) provides as follows:

      Rule 404. Character Evidence; Crimes or Other Acts

                                     ***

      (b) Crimes, Wrongs or Other Acts.

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person’s character in order to show
      that on a particular occasion the person acted in accordance with
      the character.

      (2) Permitted Uses. This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent,
      preparation, plan, knowledge, identity, absence of mistake, or
      lack of accident. In a criminal case this evidence is admissible
      only if the probative value of the evidence outweighs its potential
      for unfair prejudice.

Pa.R.E. 404(b)(1)-(2).

      The trial court concluded that the challenged evidence was relevant

and probative because Martin’s defense was that she had mistakenly and/or

accidentally failed to report her son’s employment status. The court further

noted that the potential for undue prejudice was mitigated by the cautionary

instructions provided to the jury. The first instruction, provided immediately

following the challenged testimony, stated as follows:

      THE COURT: All right, ladies and gentlemen, let me give you an
      instruction here. First of all, when this type of evidence is
      admitted about a prior act, a prior act here involving a false
      statement to the Department of Public Welfare, I’m not
      admitting it to show that the person is bad, evil, criminal or
      criminally disposed, but you’re entitled to have that information
      in my view, and you may use it only for a limited purpose. You
      may use it to decide in judging this case whether what occurred

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     here under the totality of the circumstances is a result of either
     absence of mistake, or mistake or an accident, okay? When
     you’re looking at why [son’s employment] isn’t on there, on the
     form, you’re entitled to judge what happened in the past to look
     at the statement about why this here, was it an accident, was it
     a mistake, was there a motive here. You can consider that for
     those purposes, but you cannot just conclude, problem in the
     past, guilty today. That would be wrong, okay?

N.T. Trial, 1/13/15, at 95-96.   The court’s second cautionary instruction

came during the jury charge and provided as follows:

     THE COURT: The defendant had a prior episode where she was
     charged with making a false statement to welfare.        That’s
     relevant here, but only for a limited purpose, only for the
     purpose of determining whether what happened here is a
     mistake – result of a mistake or accident. Okay? It’s not here
     and can’t be used to determine that she is necessarily guilty of
     this offense or that she[] is a bad person. It has limited
     relevancy. Use it that way.

Id. at 146.

     In this case, Martin’s prior conviction involved her failure to report a

change in household composition; her current charges involved failure to

report income earned by a household member. The two crimes were similar,

in that they involved a failure to report information to the Department of

Public Welfare that was pertinent to determining the amount of benefits to

which Martin was entitled.   The evidence of Martin’s prior conviction was

admitted solely to demonstrate that it was unlikely she had forgotten or

made some other mistake in failing to report her son’s income. A violation

of 62 P.S. § 481 requires that the defendant’s representation be willful. The

evidence of Martin’s prior crime tends to make it more likely than not that

her misrepresentation in the instant matter was willful, rather than


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negligent, as she would have learned from her prior experience the

consequences of failing to report pertinent information to the Department.

     Moreover, Martin’s bald assertion that “the act was too remote in time

to have probative value,” Brief of Appellant, at [7], is unpersuasive and

lacking in any support, in the form of caselaw or otherwise.         Indeed,

remoteness in time is merely one factor to be considered in determining the

admissibility of prior bad acts evidence. Commonwealth v. Aikens, 990

A.2d 1181, 1186 (Pa. Super. 2010).

     Here, the trial court provided two curative instructions regarding the

limited purpose for which the evidence was to be used by the jury. The jury

is presumed to have followed those instructions. Hairston, supra. Upon

review of the record as a whole, we cannot conclude that the evidence of

Martin’s prior welfare fraud conviction was so unfairly prejudicial as to

“divert the jury’s attention away from its duty of weighing the evidence

impartially.” Dillon, 925 A.2d at 141.

     Judgment of sentence affirmed.

     STABILE J., Joins the memorandum.

     FITZGERALD J., Concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2016




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