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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KENYELL WORRELL,
Appellant No. 3070 EDA 2012
Appeal from the Judgment of Sentence October 15, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011927-2010
BEFORE: BOWES, SHOGAN, and OTT, JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 07, 2014
Kenyell Worrell appeals from the judgment of sentence of ten to
twenty years imprisonment imposed by the trial court after a jury convicted
) sexual
assault, and indecent assault. We affirm.
The trial court comprehensively outlined the evidence adduced by the
Commonwealth at trial:
On August 25, 2010, the Complainant was walking in the
area of 20th and Federal Streets at approximately 2 a.m. The
Complainant noticed the Defendant following her on a yellow
bike. Defendant approached and asked the Complainant what
she was carrying in her bag. She replied that she was carrying
boots and would sell them for $10.00. Defendant replied that he
did not have money to purchase the boots for his girlfriend, but
he had [crack cocaine] that he could give her in exchange for the
boots. Defendant instructed Complainant to cross the street to
an empty field because he did not want the police to see the
exchange.
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The Complainant crossed the street and Defendant
instructed her to get close to him near some bushes. When she
refused and turned to walk away he told her that he was [joking]
with her and she returned, in the belief that he would exchange
the drugs for the boots. When the Complainant moved closer to
Defendant, he grabbed her arm and raised his fist. The
Complainant believed he was [joking] and asked if he was going
to rape her. Defendant responded in the affirmative and
restrained the Complainant by the arm, raised his fist, and
pinned her down. Defendant penetrated the Complainant with
his penis, both orally and vaginally. Defendant punched the
Complainant in her face to stop her from yelling. Defendant
then left on his bike and the Complainant left on foot. Within
five minutes, the Complainant flagged down a police car
operated by Officer Brandon Ruff. Officer Ruff and the
Complainant drove through the area, to search for Defendant.
The Complainant described Defendant as a black male wearing a
red shirt and dark shorts with a full beard, riding a blue and
yellow mountain bike. Defendant wasn't located and the
Complainant was transported to her home. Officer Ruff
continued to survey the immediate area and apprehended
Defendant. Officer Ruff brought Defendant to the Complainant's
home and she identified him without hesitation.
Trial Court Opinion, 7/18/13, at 2-3 (footnotes and citations to record
omitted).
On appeal, Appellant presents these challenges:
1. Did not the lower court err in granting the Commonwealth's
motion to present "other acts" evidence, as the non-propensity
evidentiary purposes asserted by the Commonwealth for which
the evidence might have been admitted were either not
supported by the record or were outweighed by the potential
prejudicial impact of the "other acts" evidence upon the jury?
2. Did not the court err in denying the defendant's motion to
dismiss pursuant to Pa.R.Crim.P. 600 because more than 365
days of non-excludable and/or non-excusable time had elapsed
for the Commonwealth to bring the defendant to trial and
because the Commonwealth had not exercised due diligence in
bringing the defendant to trial?
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3. Should not this matter have been remanded by this Court for
an evidentiary hearing involving after-discovered evidence
pursuant to Pa.R.Crim.P. 720(c)?
meritorious, Appellant would be entitled to discharge, which would render
the remaining two issues moot. We analyze the denial of a Rule 600
discharge motion pursuant to the following standard of review:
In evaluating Rule 600 issues, our standard of review of a
trial court's decision is whether the trial court abused its
discretion. Judicial discretion requires action in conformity with
law, upon facts and circumstances judicially before the court,
after 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.
Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super. 2013).
Rule 6001 requires a defendant to be tried within certain time
Commonwealth v. Goldman, 70 A.3d 874, 879
(Pa.Super. 2013). Thereafter, an adjusted Rule 600 run date is computed,
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1
On October 1, 2012, our Supreme Court ordered that, effective July 1,
2013, Rule 600 was rescinded and a new Rule 600 was adopted.
Commonwealth v. Brock, 61 A.3d 1015, 1016 n.2 (Pa. 2013). The new
rule reflects prevailing case law. Pa.R.Crim.P. 600, Comment. The events in
question occurred prior to the alteration; therefore, we apply the former
rule. Brock, supra.
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and the defendant is entitled to discharge under Rule 600 only where trial
started after the adjusted run date. Id.
charges only in cases in which the defendant has not been brought to trial
within the term of the adjusted run date, after subtracting all excludable and
The adjusted run date is calculated by adding to the
mechanical run date both excludable and excusable delay. Id. Excludable
delay is delay caused by the defendant or his lawyer. Id.
is delay that occurs as a result of circumstances beyond the
Id. See former
Rule 600(G). Excusable delay encompasses a wide variety of situations
Armstrong, supra. Additionally, -specific concept
that must be determined on a case-by-case basis. Due diligence does not
require perfect vigilance and punctilious care, but rather a showing by the
Id. at 236
(citation omitted).
g, we remain
mindful that the Rule has two purposes. It is designed not just to guard a
prosecuting crime. When taking into account the latter consideration, we
ministrative mandate of Rule 600 was not designed to
insulate the criminally accused from good faith prosecution delayed through
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Id. at 235 (citation omitted). Thus, if
nwealth in an effort
to evade the fundamental speedy trial rights of an accused, Rule 600 must
be construed in a manner consistent with society's right to punish and deter
Id.
Trial commenced on June 19, 2012. Trial was originally set for June 3,
2011. Prior to trial, the Commonwealth filed a motion to permit the
introduction of a prior bad of act of Appellant. On June 3, 2011, Appellant
asked for a continuance to respond to the motion. That continuance was
under advisement on July 1, 2011, and it scheduled trial for July 8, 2011.
While Appellant suggests that this delay is attributable to the
Commonwealth, we disagree. The Commonwealth did not exhibit bad faith
in seeking to admit inculpatory evidence that required a court ruling as to
motion subsequently was granted and we affirm that ruling infra. Thus, the
delay from June 3, 2011 to July 8, 2011 is excusable, resulting in 35 days of
extension of the run date to October 14, 2011.
On July 8, 2011, trial could not proceed since the Commonwealth had
not been able to obtain discovery from the hospital or the laboratory that
was performing DNA testing. The district attorney stated that it had
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subpoenaed the medical records three times, in September 2010, January
2011, and February 2011, and the hospital had yet to respond. N.T.
Hearing, 7/8/11, at 3. The DNA laboratory also failed to forward the results
of testing, and personnel from the laboratory told the district attorney that it
would take another fourteen to eighteen weeks to obtain the results. Id. at
6. The court
compliance with the records request. Id. at 7.
provide prompt test results was precipitated by normal delay in the DNA
testing process as well as the fact that the first DNA sample from Appellant
was degraded and a second sample had to be procured. N.T. Hearing,
7/11/11, at 27-30. On July 11, 2011, the court granted a continuance,
scheduled a trial for October 17, 2011, and issued a ruling that that time
was excusable since trial could not be completed based upon the inability to
obtain evidence from third-party sources.
his run date for the time period from July 11, 2011, to October 17, 2011.
However, the Commonwealth is not responsible, under Rule 600, for delay
held that such delay constitutes excusable delay. Commonwealth v. Frye,
909 A.2d 853 (Pa.Super. 2006). The Commonwealth does not control how
long a laboratory test takes. Hence, the period from July 11, 2011 to
October 17, 2011 was excusable. That means that the Rule 600 run date
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was extended by ninety-eight days from October 14, 2011 to January 20,
2012.
The docket indicates that on October 17, 2011, both sides were ready
to proceed to trial. On October 18, 2011, the trial court issued an order
stating that, even though both sides were ready, the trial court was not
available since it was in trial on another case. That order further provided
that the case was re-listed for trial on December 12, 2011, that the date was
the earliest possible date on its calendar and that the time was excusable
ument on this
subject, any delay caused by the trial court constitutes excusable delay
extending the run date. Armstrong, supra.2 This ruling added fifty-six
days of excusable delay to the run date and extended it to March 16, 2012.
The trial court then issued a continuance: 1) on December 12, 2011,
scheduling trial for December 14, 2011; 2) on December 14, 2011,
scheduling trial for January 9, 2012; and 3) on January 10, 2012, scheduling
trial for June 11, 2012. In each instance, the order indicated that the court
was in trial in another matter, that both sides were ready, that the next
assigned trial date was the earliest one possible, and that the time extended
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2
While Appellant lumps the Commonwealth and the judiciary together in
analyzing his Rule 600 claim, these entities are distinct. It is well
established under Rule 600 jurisprudence that when trial is delayed based
upon judicial unavailability, such a postponement constitutes excusable
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the Rule 600 run date. The court continuances amount to 170 days of
excusable delay, ext
June 19, 2012, was well within the time frame permitted under Rule 600.
His request for dismissal under Rule 600 properly was denied.
Commonwealth to present evidence about a prior incident that involved an
attempted rape. He maintains that the proof in question violated the
prohibition against introduction of prior bad acts. See Pa.R.E. 404(b).3 Our
Supreme Court has noted:
Evidence of prior bad acts is inadmissible to prove character or
to show conduct in conformity with that character. Such
evidence is, however, admissible when offered to prove some
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3
That rule provides:
(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).
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other relevant fact, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. We have also recognized that prior bad acts evidence
may be admissible as res gestae when relevant to furnish the
complete story or context of events surrounding the crime.
Commonwealth v. Weiss, 81 A.3d 767, 798 (Pa. 2013). Thus, the prior-
bad-acts proscription essentially applies only when that prior bad act is
admitted
the crime in question, but such evidence is admissible where there is some
legitimate reason for its introduction. Id.
ute
who consensually engaged in the sex in return for consideration. The trial
court admitted into evidence the fact that in 2008, Appellant pled guilty to
an attempted rape committed under circumstances similar to the one at bar.
Specifically, the 2008 assault involved a middle-aged African American
woman, and the victim herein was a middle-aged African American woman.
Both crimes occurred after midnight, and Appellant grabbed the victims and
told them that he planned to rape them. The other woman was able to
escape after screaming and running down the sidewalk. In this case,
Appellant managed to isolate his victim before informing her of his scheme.
The crimes occurred within four blocks of each other in the same South
Philadelphia neighborhood. The present rape occurred soon after Appellant
was granted release from prison.
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was admissible at trial herein. Commonwealth v. Elliott, 700 A.2d 1243
(Pa. 1997), abrogated on other grounds, Commonwealth v. Freeman, 827
A.2d 385, 400 (Pa. 2003), is instructive. In that case, the Commonwealth
introduced evidence of three prior sexual assaults of other women, in part,
sex and that her injuries were the result of an agreement to engage in rough
assaults were improperly admitted. It noted that, due to similarities among
the various assaults, they were admissible under the common scheme or
plan exception to the prohibition against prior bad acts. It additionally
observed that the evidence in question was properly admitted to rebut the
rough sex.
In Commonwealth v. Kjersgaard, 419 A.2d 502 (Pa.Super. 1980),
the defendant also complained that the court erred in admitting proof of a
prior rape offense during his trial for the rape of a sixteen-year-old girl. The
victim had voluntarily gone to the
modus
operandi of the two assaults were similar, and we held that the prior offense
was admissible to show a common scheme, plan or design as well as to
Id. at 504; see also Commonwealth v.
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Rough,
arguments that the victim consented to appellant's ac
request. The two sexual assaults shared many common characteristics and
intercourse at issue herein was a consensual transaction. Hence, we affirm.
on an after-discovered evidence claim. Pa.R.Crim.P. 720 -
A post-sentence motion for a new trial on
the ground of after-discovered evidence must be filed in writing promptly
Unlike ineffective counsel claims, which are the subject of
Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002),
paragraph (C) requires that any claim of after-discovered
evidence must be raised promptly after its discovery.
Accordingly, after-discovered evidence discovered during the
post-sentence stage must be raised promptly with the trial judge
at the post-sentence stage; after-discovered evidence
discovered during the direct appeal process must be raised
promptly during the direct appeal process, and should include a
request for a remand to the trial judge[.]
Pa.R.Crim.P. 720, comment. Hence, the issue was properly raised in this
Court in the first instance.
this Court on appeal, counsel received information regarding a witness
whose testimony potentially constituted after-discovered
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instructed on how to describe the alleged sexual assault of the complainant
Id. at 44. The anonymous individual also supposedly
told counsel that, when the complainant indicated that she did not want to
testify, another man urged her to do so since it was his money that was at
issue. Appellant does not ask us to rule on the claim, but suggests that a
remand is appropriate so his entitlement to a new trial can be evaluated
after a record is developed.
remand.
The four-prong test for awarding a new trial because of after-
discovered evidence is well settled. The evidence: (1) could not
have been obtained prior to trial by exercising reasonable
diligence; (2) is not merely corroborative or cumulative; (3) will
not be used solely to impeach a witness's credibility; and (4)
would likely result in a different verdict.
Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014).
While a defendant need not produce an affidavit from a witness to be
entitled to a hearing on a after-discovered-evidence claim, id., he must at
least establish the proposed new evidence is producible and admissible. Id.
benchmarks necessary to warrant a new trial based upon after-discovered
evidence. Appellant fails to name the witness, even though counsel
purportedly investigated the matter. Appellant neglects to explain why he
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could not have obtained the evidence prior to trial by exercising diligence.
For example, if the unnamed witness is a close friend or relative, there
discovered at the time they were made.
testimony is insufficient to warrant a hearing. Even if the prosecutor was
urged her to testify in court when she was not inclined to do so, this type of
evidence would merely cast some doubt upon her credibility. Thus, it is
considered impeachment evidence and is insufficient to warrant a new trial.
Commonwealth v. Trinidad, 2014 WL 3672917, 4-5 (Pa.Super. 2014).
While Appellant says that the conversation between the prosecutor
mediately after the sexual
assault, the victim flagged down a police officer and reported the rape. Her
initial description of the incident was consistent with her trial testimony.
See nary
hearing, a transcript of which is not included in the certified record, charges
of rape, IDSI, sexual assault, indecent assault, and simple assault were all
bound over for trial. This result from the preliminary hearing supports that
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timony at that proceeding also was consistent with her trial
testimony.
that the prosecutor was eliciting fabricated testimony from the victim that
she was raped, then that proposed
he had consensual sex with the victim, and his attempted rape of another
woman under similar circumstances discredited this position. Hence, the
-discovered unnamed witness would not
likely have produced a different verdict at trial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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