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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JASON LEE HOOVER,
Appellant No. 55 WDA 2013
Appeal from the Judgment of Sentence of December 4, 2012
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000541-2012
BEFORE: PANELLA, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 10, 2015
Appellant, Jason Lee Hoover, appeals from the judgment of sentence
entered on December 4, 2012. We affirm.
We have previously outlined the factual background of this case as
follows.
On April 5, 2012, RES Coal Company (“RES”) noticed that
several items were missing from its jobsite along Knobs Road in
Goshen Township, Pennsylvania. Pennsylvania State Police
Trooper Adam Gibson responded to the call. Kevin Adams, an
employee of RES, provided a list of stolen items to Trooper
Gibson. Trooper Gibson also observed that there was a set of
tire tracks near the location of the stolen items.
Trooper Gibson believed that it was likely the thieves would take
the stolen property to Novey’s Recycling (“Novey’s”) in
Clearfield, Pennsylvania. Therefore, Trooper Gibson went to
Novey’s to investigate the theft. Trooper Gibson’s instincts were
correct as earlier that day two loads of stolen materials had been
sold to Novey’s. However, Barry Martell (“Martell”) and D.M., a
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juvenile, Appellant’s co-conspirators, had left prior to Trooper
Gibson arriving.
Martell and D.M., this time accompanied by Appellant, returned
to Novey’s later on April 5, 2012 with a third load of stolen
items. Novey’s refused to pay them for the items. Pennsylvania
State Police Trooper Dewaine R. Kephart, Jr. responded to
Novey’s and spoke with D.M., Martell, and Appellant. Trooper
Kephart took photographs of the materials that were in
Appellant’s truck. He also took photographs of the truck’s tires.
Commonwealth v. Hoover, 93 A.3d 510 (Pa. Super. 2013) (unpublished
memorandum), at 1-2, rev’d, 2014 WL 7392244 (Pa. Dec. 30, 2014).
The procedural history of this case is as follows. Appellant was
charged via criminal complaint on April 20, 2012. On June 27, 2012,
Appellant waived arraignment. On July 12, 2012, Appellant was charged via
criminal information with theft by unlawful taking - value of property at least
$2,000.00,1 criminal conspiracy to commit theft by unlawful taking - value of
property at least $2,000.00,2 receiving stolen property - value of property at
least $2,000.00,3 criminal conspiracy to commit receiving stolen property -
value of property at least $2,000.00,4 and corruption of minors.5
1
18 Pa.C.S.A. § 3921(a).
2
18 Pa.C.S.A. §§ 903(a)(1), 3921(a).
3
18 Pa.C.S.A. § 3925(a).
4
18 Pa.C.S.A. §§ 903(a)(1), 3925(a).
5
18 Pa.C.S.A. § 6301(a)(1)(i).
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On October 1, 2012, the Commonwealth provided Appellant with a
written statement from D.M. alleging that Appellant was with D.M. and
Martell on the night that the items were stolen from RES. Jury selection
occurred on October 4, 2012. That same morning, Appellant filed two
motions in limine. The first sought exclusion of the tire track evidence. The
second sought to preclude the introduction of Appellant’s prior crimen falsi
conviction. The trial court heard oral argument on the motion in limine
regarding tire tracks on October 15, 2012. Ultimately, the trial court denied
both motions in limine.
On October 22, 2012, the morning of trial, Appellant filed a notice of
alibi, informing the Commonwealth and trial court that he intended to call his
girlfriend, Angel Cole, to testify as to his whereabouts on the night of April
4-5, 2012. The Commonwealth objected to this testimony, and the trial
court sustained the objection. Appellant orally moved for reconsideration
and the trial court denied the motion for reconsideration. The jury found
Appellant guilty of all charges. On December 4, 2012, Appellant was
sentenced to an aggregate term of 21 to 60 months’ imprisonment. This
timely appeal followed.6
6
On January 3, 2013, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). Appellant filed his concise statement on January 18,
2013. The trial court filed its Rule 1925(a) opinion on March 21, 2013.
(Footnote Continued Next Page)
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On March 31, 2014, we vacated Appellant’s judgment of sentence after
concluding that the trial court abused its discretion by admitting into
evidence Appellant’s prior crimen falsi conviction. Commonwealth v.
Hoover, 93 A.3d 510 (Pa. Super. 2013) (unpublished memorandum), at 10-
15. Our Supreme Court reversed, holding that the trial court did not abuse
its discretion by admitting Appellant’s prior crimen falsi conviction.
Commonwealth v. Hoover, 2014 WL 7392244 (Pa. Dec. 30, 2014). Our
Supreme Court remanded this case to us for consideration of Appellant’s
other issue on appeal, which we did not reach in our prior memorandum.
The lone issue for our review is:
Did the [trial] court abuse its discretion when it prohibited the
testimony of Angel Cole as an alibi witness when the
Commonwealth only advised the [Appellant] that it was calling
[D.M.] as a witness less than [30] days before the trial and
Angel Cole was to rebut the testimony of [D.M.]?
Appellant’s Brief at 6.7
Appellant’s lone remaining issue on appeal challenges a discretionary
evidentiary ruling made by the trial court. Our “standard of review of a trial
_______________________
(Footnote Continued)
Appellant’s lone remaining issue on appeal was included in his concise
statement.
7
Appellant’s brief also included an issue relating to the legality of his
sentence; however, he stated that he was withdrawing that issue. See
Appellant’s Brief at 6. Counsel for Appellant confirmed at oral argument that
Appellant was withdrawing that issue as counsel had determined that the
sentence imposed was legal.
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court’s evidentiary ruling is limited to determining whether the trial court
abused its discretion.” Commonwealth v. Prendes, 97 A.3d 337, 356 (Pa.
Super. 2014) (ellipsis and citation omitted). “Where the evidentiary
question involves a discretionary ruling, our scope of review is plenary, in
that the appellate court may review the entire record in making its decision.”
Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013), appeal
denied, 80 A.3d 775 (Pa. 2013) (citation omitted).
Pennsylvania Rule of Criminal Procedure 567 provides, in relevant
part:
(A) Notice by Defendant. A defendant who intends to offer the
defense of alibi at trial shall file with the clerk of courts not later
than the time required for filing the omnibus pretrial motion
provided in Rule 579 a notice specifying an intention to offer an
alibi defense, and shall serve a copy of the notice and a
certificate of service on the attorney for the Commonwealth.
***
(B) Failure to File Notice.
(1) If the defendant fails to file and serve the notice of alibi as
required by this rule, the court may exclude entirely any
evidence offered by the defendant for the purpose of proving the
defense, except testimony by the defendant, may grant a
continuance to enable the Commonwealth to investigate such
evidence, or may make such other order as the interests of
justice require.
Pa.R.Crim.P. 567.
We note that Appellant waived his arraignment on June 27, 2012.
Therefore, his notice of alibi was due on or before July 27, 2012. See id.
(notice of alibi due no later than the date required for the filing of the
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omnibus pretrial motion); Pa.R.Crim.P. 579 (omnibus pretrial motion due 30
days after arraignment); Commonwealth v. Light, 2010 WL 9513220, *2
(Pa. Cmwlth. Jan. 25, 2010) (period for filing of omnibus pretrial motion
begins to run on the date a defendant waives arraignment). As Appellant
did not file his notice of alibi until October 22, 2012, it was patently
untimely.
Appellant argues that the trial court should have granted him a
continuance of trial, pursuant to Rule 567(B)(1), when he belatedly filed his
notice of alibi. Appellant’s counsel, who has represented Appellant
throughout these proceedings, conceded at oral argument that the word
continuance did not “escape [his] lips” before the trial court. Nonetheless,
he argues that the motion for reconsideration served as a quasi-motion for a
continuance. Furthermore, he contends that the Commonwealth’s delay in
providing D.M.’s statement excused the late filing of the notice of alibi.
Finally, he contends that he did not have time to seek a continuance. The
Commonwealth, on the other hand, contends that the trial court did not
abuse its discretion be choosing to exclude Cole’s testimony because of the
belatedly filed notice of alibi.
In Commonwealth v. Anthony, 546 A.2d 1122, 1124 (Pa. Super.
1988), this Court held that a trial court did not abuse its discretion in
prohibiting an alibi witness from testifying when the notice of alibi was filed
on the morning of trial. This Court reached that conclusion because
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Anthony failed to seek a continuance from the trial court after filing his
belated notice of alibi. Id.
The same facts are present in the case sub judice. Appellant
presented his notice of alibi on the morning of trial. When the trial court
determined that he had violated Rule 567, Appellant failed to seek a
continuance. Appellant attempts to distinguish Anthony in two respects.
First, Appellant contends that he did not have an opportunity to seek a
continuance. Appellant, however, had sufficient time to seek reconsideration
and, therefore, certainly had the time necessary to request a continuance.
Second, Appellant contends that he was not aware of the need for an alibi
witness until the day of trial. This argument is without merit. Appellant was
provided with a copy of D.M.’s statement, alleging that Appellant was with
him on the evening in question, 21 days prior to trial. Furthermore, one
week prior to trial, and two weeks after receiving D.M.’s statement, the trial
court heard argument on Appellant’s motion in limine with respect to the tire
track evidence. At that time, Appellant could have given notice of his alibi
defense and, if necessary, requested a continuance instead of the exclusion
of Cole’s testimony. Appellant chose instead to wait until the morning of
trial to file his notice of alibi.
At oral argument, Appellant argued that his motion for reconsideration
should have been considered a quasi-request for a continuance. This
argument is without merit. A request for a continuance is obviously different
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than a motion for reconsideration. There may be strategic reasons why
counsel would seek reconsideration of a trial court’s order barring testimony
but not want to seek a continuance of trial. For example, Appellant may
have wanted to have the case disposed of quickly or may have believed that
the jury seated for the case was favorable to him. The trial court does not
have an obligation to read counsel’s mind when he or she makes a motion.
Instead, the trial court is only required to dispose of the question put before
it. In this case, the trial court did so by denying Appellant’s motion for
reconsideration. Accordingly, as in Anthony, we conclude that the trial court
did not abuse its discretion in excluding Cole’s testimony.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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