Com. v. Wilson, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

KEVIN WILSON

Appellant No. 59 EDA 2013

Appeal from the Judgment of Sentence November 16, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012880-2010

BEFORE: MUNDY, J., OLSON, J., and WECHT, J. MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 22, 2014

Appellant, Kevin Wilson, appeals from the November 16, 2012 attempt murder of the first degree, aggravated assault, robbery, possession of a firearm without a license, carrying a firearm without a license, and possession of an instrument of a crime (PIC).1 After careful review, we affirm.

The trial court has set forth the relevant facts and procedural history as follows.

____________________________________________ 1 18 Pa.C.S.A. §§ 901(a) (to commit 18 Pa.C.S.A. § 2502(a)), 2702(a), 3701(a)(ii), 6105(a)(1), 6106(a)(1), and 907(a), respectively.

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At 12:30 a.m. on July 12, 2008, the

side seat of his motor vehicle and conversed with a friend through the open front passenger window. After a s friend left. Approximately ten seconds later, []

leaned in the open window, and held a black gun

told the Complain

chain, watch, and one thousand dollars. [] Appellant then told the Complainant his name. The

name was Scar Face Kev and if I wanted any trouble,

shot the Complainant in the stomach, and walked away.

While the robbery was occurring, Kendall McGill was approximately 40 feet away playing dice with other males. McGill saw [] Appellant at the

McGill heard a gunshot and saw [] Appellant quickly

gun in his left waistband with his right hand. [] Appellant then walked past McGill and around the corner.

After [] Appellant walked around the corner, the Complainant started driving to Temple University Hospital. While driving, the Complainant called his mother and told her that he had been shot. When the Complainant arrived at the emergency room, doctors performed surgery.

After approximately four days, the Complainant left the hospital without permission because he feared for his safety. After leaving the hospital, the Complainant went home. However, the Complainant still did not tell the police that [] Appellant had shot him because he feared for his life and did not want to be labeled a rat. However, while the Complainant was home recovering, he informed

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his mother and friends that [] Appellant had shot him. Three months later, the Complainant finally told the police who had shot him.

In March 2010, detectives attempted to arrest Appellant but they could not locate him. On April 9, 2010, the Commonwealth learned that [] Appellant was in custody at State Correctional Institution (SCI) Greene. In April 2010, Officer Timothy Simpson of the East Division Warrant Unit faxed a writ to SCI Green[e] to bring [] Appellant to court. However, [] Appellant was not brought down. Although the Commonwealth faxed additional requests on May 4, 2010, May 21, 2010[,] and June 2, 2010, [] Appellant was still not brought down. Finally, the Commonwealth paid approximately $2[,]000[.00] to extradite [] Appellant to Philadelphia. On June 8,

Trial Court Opinion, 9/25/13, at 2-4 (footnotes omitted).

On June 29, 2011, Appellant filed a motion to dismiss pursuant to Pa.R.Crim.P. 600(G).2 court appointed new counsel to represent him. New counsel filed a renewed Rule 600(G) motion on June 29, 2012. The trial commenced with jury selection on August 22, 2012. On August 28, 2012, following its charge to day the jury convicted Appellant of the previously mentioned charges. On

November 16, 2012, the trial court sentenced Appellant to an aggregate ____________________________________________ 2 Rule 600, as applicable in this case, was rescinded on October 1, 2012, effective July 1, 2013, and replaced by the new Rule 600 on July 1, 2013. Under the new version of Rule 600, the paragraphs have been reorganized. However, for purposes of our review, we apply and cite to the version of

pursuant to Rule 600 was denied.

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3 term of 20 to 40 y On

December 10, 2012, Appellant filed a timely notice of appeal.4

On appeal, Appellant raises the following three issues for our review.

1. [Whether] the jury verdict was against the weight and sufficiency of the evidence[?]

2. [Whether] the trial judge erred by denying the

trial, and abused his discretion in making this ruling that the Commonwealth was duly diligent in bringing this case to trial in a timely manner[?]

3. [Whether] the trial judge erred by allowing a Commonwealth witness, the mother of the victim to testify in the case about statements she overheard on a telephone or told someone on the phone about who was in fact the one who robbed [her] son[?]

to the weight and sufficiency of the evidence. Id. at 9. Before we address the merits of this issue, we must first determine if Appellant has preserved it

for appellate review. ____________________________________________ 3 Specifically, Appellant was sentenced at count 1, criminal attempt

probation consecutive to count 1; count 4, possession of a firearm, five

carried without a license and count 9, PIC, no further penalty was imposed. Sentencing Order, 11/16/12. 4 Appellant and the trial court have timely complied with Pennsylvania Rule of Appellate Procedure 1925.

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The plain text of Rule 1925(b)

identify each ruling or error that the appellant intends to in the Statement will be deemed to include every subsidiary issue contained

Id. at 1925(b)(4)(v). Finally, any issues not raised in accordance with Rule 1925(b)(4) will be deemed waived. Id. at 1925(b)(4)(vii). Our Supreme Court has held that Rule 1925(b) is a bright-line rule.

Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the

ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for

violations may be raised by the appellate court sua sponte, and the Rule applies notwithstanding an

1925 is not clear as to what is required of an appellant, on-the-record actions taken by the appellant aimed at compliance may satisfy the Rule. We yet again repeat the principle first stated in [Commonwealth v.] Lord, [719 A.2d 306 (Pa. 1998)] er to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) statement will b Id.] at 309.

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Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted). and th mother. See 1925(b) statement does not include any claim addressing the sufficiency of

ring that the verdict was against the weight of the evidence. See id. instructions in Hill for failure to include it in his Rule 1925(b) statement.

In his court erred in not attributing to the Commonwealth the time from March 5, 2010, when an arrest warrant for Appellant had been issued, to June 8, 2010, when Appellant was located at SCI Greene and arrested. Id. 8, 2010 and the Commonwealth knew or should have known that[,] thereby attributing these 95 days to the Commonwealth. Faxing a bring down

Id.

usion that only 363 days were attributable to the Commonwealth is incorrect, and that the 95 days

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between March 5 and June 8, 2010 should be attributed to the Commonwealth. Id. at 11-12.5 a Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012).

Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after [a] hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.

evidence on the record of the Rule 600 evidentiary hearing, and the findings of the trial court. An appellate court must view the facts in the light most favorable to the prevailing party.

So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 600 must be construed in a manner consistent

factor into the ultimate equation not only the ____________________________________________ 5 We note that Appellant has failed to cite any legal authority in support of his claim, and that this Court has long recognized that we will not consider issues where Appellant fails to cite to any legal authority or otherwise develop the issue. Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013); Pa.R.A.P. 2119.

claim, we decline to find waiver on this basis.

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prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well.

Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en banc), affirmed, 44 A.3d 655 (Pa. 2012) (citations omitted).

Relative to his subruling on his Rule 600 motion, Appellant claims the trial court erred in waiting to make a determination only after the charge to the jury was brought under the Rule. See generally Pa.R.Crim.P. 600. We also note that Appellant makes no averment that he was in any way prejudiced by the court notes in its Rule 1925(a) opinion that the timing of its ruling was occasioned by the late submissions made to it by the parties, containing their respective claims of excludable and includable time in the Rule 600 calculation, and by the need for judicial efficiency. Trial Court Opinion, 9/25/13, at 8-9, n.45. Accordingly, we discern no abuse of discretion by the Rule 600 motion, we recognize that the courts of this Commonwealth employ a three-step analysis to determine whether Rule 600 requires dismissal of the charges against a defendant.

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The first step in determining whether a to

run date is the date by which trial must commence under the relevant procedural rule. [T]he mechanical run date is ascertained by counting the number of days from the triggering event - e.g., the da - to the date on which trial must commence under Rule [600]. Pa.R.Crim.P. [600(A)(3)].

Commonwealth v. Preston, 904 A.2d 1, 11 (Pa. Super. 2006) (internal citations omitted), appeal denied, 916 A.2d 632 (Pa. 2007). In the second

Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa. Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008). Then, in the third

nt of excludable time, if any, to the mechanical run

Id.

It is well settled that any delay occasioned by a defendant is excludable time in the calculation of the adjusted run date. Pa.R.Crim.P. 600(C)(2), (3); Preston, supra. Furthermore, delays not attributable to a defendant but where the Commonwealth is found to have acted with due diligence in attempting to commence a timely trial but was prevented by circumstances beyond its control, is also considered excludable time. Pa.R.Crim.P. 600(G); accord Commonwealth v. Wholaver, 989 A.2d 883, 899 (Pa. 2010), cert. denied, Wholaver v. Pennsylvania, 131 S. Ct. 332 (2010). Any time prior to trial, a defendant may move the trial court for

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dismissal of the charges if the Commonwealth has violated the Rule. Pa.R.Crim.P. 600(G).

Applying the foregoing analysis to the facts of this case, we note that the criminal complaint was filed on March 5, 2010, establishing March 5, 2011 as the mechanical run date under Rule 600 for the commencement of Commonwealth and Appellant, the parties agreed that two periods, totaling 179 days were excludable as delays requested by Appellant. 6 See Trial Court Opinion, 9/25/13, at 8, n.45, Appendix B. The trial court ruled that two more disputed periods totaling 262 days were excludable as being respectively.7 Id. at 6-7, n.42. Appellant has not challenged those aspects their calculation sheets, trial was scheduled to commence on August 20, one-day continuances, to review the status of a possible plea, on August 20

and 21 respectively. Consequently, these two days are excludable and the ____________________________________________ 6 These periods included defense-requested continuances for November 17, 2010, to December 1, 2010, and for March 8, 2012, to August 20, 2012. Trial Court Opinion, 9/25/13, Appendix B. 7 These periods included a Commonwealth request for a continuance due to the unavailability of a witness in federal custody for August 17, 2010, to September 21, 2010, and a continuance ordered by the trial court due to its own unavailability for July 25, 2011 to March 8, 2012. Trial Court Opinion, 9/25/13, Appendix B.

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adjusted run date based only on these now uncontested exclusions would be May 21, 2012. Relevant to this appeal, the trial court also excluded a period of 95 days, being the time between the filing of the criminal complaint and Accordingly, if the trial court was correct to exclude the 95 days preceding Appe within the requirements of Rule 600. See Ramos, supra. of the period between March 5, 2010, when the criminal complaint was filed Relative to the period between the filing of a criminal complaint and the arrest of a defendant, Rule 600 provides as follows.

Rule 600. Prompt Trial

(C) In determining the period for commencement of trial, there shall be excluded therefrom:

(1) the period of time between the filing of the

provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;

Pa.R.Crim.P. 600(C)(1).

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contended that from March 5 to June 8, 2010 the Commonwealth should have known where Appellant was, and therefore that period of 95 days should be counted against the Commonwealth. N.T., 8/27/12, at 82. The Commonwealth acknowledged that the criminal complaint was filed on March 5, 2010, but proceeded to place into evidence documentation supporting its due diligence in locating and procuring Appellant during the period leading up to June 8, 2010, when Appellant was finally arrested. Id. at 84-96. The trial court aptly summa opinion, as follows.

First, the Commonwealth attempted to arrest [] Appellant in March 2010 by sending officers to various locations Appellant frequented. Second, the Commonwealth conducted a custody check and discovered that Appellant was in State Prison at SCI Greene. Third, after locating [] Appellant, the Commonwealth faxed a bring down request and a

at SCI Greene. Fourth, when the prison failed to respond, the Commonwealth made additional requests on May 4, 2010, May 21, 2010, and June 2, 2010. Finally, the Commonwealth paid approximately $2[,]000[.00] to have private contractors transport Appellant to Philadelphia. On June 8, 2010, [] Appellant arrived in Philadelphia. Upon his arrival, the Commonwealth immediately arrested [] Appellant and held him for trial.

Trial Court Opinion, 9/25/13, at 7 (footnotes omitted); see also N.T., 8/27/12, at 92-96.

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This Court has held that the Commonwealth by utilizing the traditional w Commonwealth v. Jefferson, 741 A.2d 222, 224 (Pa. Super. 1999), appeal denied, 758 A.2d 1196 (Pa. 2000). The Jefferson Court further held that the circumstances in Jefferson were beyond the control of the Commonwealth because in Commonwealth v. Nellom we stated clearly that a delay resulting from a failure to bring down a defendant despite a writ was not

Jefferson, supra. In the instant arrest warrant and the writ signed by the Honorable Rayford Means to bring Appellant down to be arrested. N.T., 8/27/12, at 91-92. These exhibits support the tri diligence in locating and securing Appellant for arrest, but was prevented

red. See Pa.R.Crim.P. 600(C)(1), and (G). excludable time under Rule 600, and Appellant was brought to trial before the adjusted run date. Accordingly, we conclude the trial court did not abuse its . See Bradford, supra.

Finally, in his third issue, Appellant argues the trial court erred in

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ents she overheard the [C]omplainant 8

admitted into the trial and that by doing so was more prejudicial than

Id. to the prohibition against hearsay as relied on by the trial court. Id. Accordingly, Appellant asserts the trial court abused its discretion

Id.

In considering this issue, we are guided by the following principles.

rulings is narrow. The admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion. 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.

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation

omitted), appeal denied, 87 A.3d 319 (Pa. 2014). In order to be entitled to ____________________________________________ 8 We again note with disfavor that Appellant has failed to adequately develop this claim in his appellate brief, and therefore a finding of waiver would not be improper. McLaurin, supra; Pa.R.A.P. 2119. Notwithstanding, as with

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relief based on a showing of a clear abuse of discretion in an evidentiary ruling, actual resulting prejudice must be established. Commonwealth v.

, 897 A.2d 1234, 1240 (Pa. Super. 2006) (citation omitted).

The subject testimony, elicited on direct examination of Dennison by the Commonwealth, is as follows.

Q. And [] when people were looking for [Complainant], how much time had passed between the time he had been shot and the people were coming around looking for him?

A. I would say about a month and a half.

Q. Okay.

Now at any point when [Complainant] got home and was staying with you did you hear him talking about the circumstances of getting shot?

A. Yes.

I asked [Complainant], while he was in the hospital, who shot him. And he said, I d

So I said, Okay.

But in the process after he came home, I overheard his conversation, and he said that the guy --

[Defense Counsel]: Objection. Move to strike.

[The Commonwealth]: Your Honor, if we may see you at sidebar, briefly.

The Court: Okay.

---

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(There was a brief sidebar discussion held off the record).

---

[The Commonwealth]: May I proceed?

The Court: Yes.

Q. Ms. Dennison, when you were talking about a conversation you heard, can you please tell the ladies and gentlemen of the jury what you heard?

A. Well, what I heard, I also questioned him about it.

Q. Start off with what you heard.

A. I heard him tell someone over the phone that when the bull came to his car, he asked him for his jewelry.

The Court: Did he have a statement of

The Witness: Yes.

The Court: Just indicate what he said.

The Witness: He said that the person told him my name is Scar Face Kev, and shot him.

Q. And you said you questioned him about it.

Did you have a conversation about what you had heard?

A. Yeah, I asked him about it.

I said, I overheard you talking about this person. I said, who is that?

--

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[Defense Counsel]: Objection. Move to strike.

The Court: Sustained.

Q. Okay. But did you discuss with him what he had said about Scar Face Kev?

[Defense Counsel]: Objection.

Asked and answered.

The Court:

Q. Did you then have a conversation with [Appellant], your son, about Scar Face Kev shooting him?

A. Yes.

N.T., 8/24/12, at 10-13.9

The Commonwealth sought the foregoing testimony as evidence of a prior consistent statement made by Complainant about the identity of the person who shot him. Trial Court Opinion, 9/25/13, at 10. The trial court permitted Den

____________________________________________ 9 Our Rules of Evidence provide that a claim of trial court error cannot be predicated on admission of evidence, absent a timely objection or motion asserting specific grounds for inadmissibility unless that ground is apparent from the context. Pa.R.E. 103(a)(1)(A), (B). As the sidebar following he record, the specific grounds for the objection have not been stated. Nevertheless, we conclude the hearsay

light of the later discussion between defense counsel and the trial court about its cautionary charge respecting the testimony. Accordingly, we

appeal.

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provide a cautionary instruction to the jury regarding the limited purpose for which the jury could consider the testimony.

The Court:

The only other issue that will be outstanding is during the lunch break you have to make a decision on how you want to handle the hearsay objection.

[Defense Counsel]: I think a curative instruction is appropriate.

The Court: you what I have. And if you wish edit [sic] it or tweak it, we can reach a mutual agreement.

[Defense Counsel]: Fine. N.T., 8/27/12, at 61.

Accordingly, the trial court gave the jury the following special

The next charge instruction, and I want you to pay attention to it very carefully.

Under the doctrine of limited admissibility[,] evidence can be permissible for one purpose but inadmissible for another purpose. You heard testimony from th mother, Ruth Anne Dennison, in which she testified that she overheard her son Terrence Savage, speaking to an unknown individual on the phone. She further testified that she overheard her son say on the phone that Scar Face Kev shot him, meaning Terrence. You are to totally disregard this portion of

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Savage, her son, told Ms. Dennison directly after this phone conversation that Scar Face Kev shot me.

Now this testimony was offered by the Commonwealth, not for the truth of the [sic] Ms.

Terrence Savage, the son, said to Ms. Dennison about who shot him. Rather, this portion of Ms.

Terrence Savage allegedly identified [Appellant] as the shooter before Terrence Savage himself was involved with the feds or was federally indicted for his own criminal cases.

N.T., 8/27/12, at 125-126.

Our Rules of Evidence outline the set of circumstances that are a prerequisite to the admissibility of prior consistent statements.

Rule 613. Prior statements of witnesses

(c) Evidence of prior consistent statement of witness. Evidence of a prior consistent statement by a witness is admissible for rehabilitation purposes if the opposing party is given an opportunity to cross-examine the witness about the statement, and the statement is offered to rebut an express or implied charge of:

(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; []

Pa.R.E. 613(c), a prior consistent statement is always received for

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Commonwealth v. Handfield, 34 A.3d 187, 208 (Pa. Super. 2011) (citation omitted), appeal denied, 54 A.3d 347 (Pa. consistent statement is admissible only if it is made before the declarant has

Id. (citations omitted).

The trial court explained the circumstances pertaining to the admission

At trial, the Complainant testified that the Appellant robbed and shot him. During cross-

information that the Complainant (Savage) was federally indicted and was "cooperating with federal officials by identifying the Appellant as the person who had shot him. Counsel also brought out on cross-examination that the Complainant was facing a federal sentence of 37 years to life, and that if he testified favorably for the government, the Complainant could receive a mitigated federal sentence. Hence, it was through cross-examination

identification. In fairness to the Commonwealth, the blish that the Complainant had made a prior consistent statement identifying the Appellant prior to his being federally indicted.

Trial Court Opinion, 9/25/13, at 11 (citation to record omitted).

gs. Thus, the Commonwealth was permitted to support the credibility of Complainant from Appellant as being motivated to gain favor from federal authorities, with

onsistent identification made before Complainant faced

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federal indictment. See Pa.R.E. 613(c)(1); Handfield, supra. Additionally, Appellant was afforded full opportunity to cross-examine Dennison and the trial court gave a pertinent special instruction to the jury, defining the limited relevance of the testimony, to which Appellant offered no objection. In light of these circumstances, we discern no abuse of discretion by the trial consistent statements identifying Appellant as his assailant. Thus, waived or devoid of merit. Accordingly, we affirm the November 16, 2012 judgment of sentence.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/22/2014

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