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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EDWARD WELLS,
Appellant No. 2570 EDA 2013
Appeal from the Judgment of Sentence July 23, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005989-2008
BEFORE: BOWES, JENKINS, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 12, 2015
Edward Wells appeals from the aggregate judgment of sentence of
nine and one-half to twenty-two years incarceration after a jury found him
guilty of aggravated assault, possession of an instrument of crime (“PIC”),
carrying a concealed firearm without a license, and carrying a firearm on the
public streets of Philadelphia. After careful review, we affirm.
On April 9, 2008, Appellant and two other men approached an
individual named Jarrett Williams and shot at him. Appellant was wearing a
hooded sweatshirt with his hood up and his cohorts were wearing ski masks.
The victim, Ronald Green, was nearby at a local Chinese store. Mr. Green
knew Appellant, who had lived in the area the previous summer. As
Appellant approached him, Mr. Green asked Appellant if he was “Butter
Roll,” Appellant’s nickname. Appellant responded in the affirmative and
*
Retired Senior Judge assigned to the Superior Court.
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stated he had words for the victim. Appellant then raised his weapon and
fired a shot at Mr. Green. Police responded to the area for shots fired. Mr.
Green told police that “Butter Roll” shot at him and described him as being
five foot five inches in height. Appellant is five foot five inches tall. In
addition, Mr. Green and Mr. Williams both selected a photograph of Appellant
as “Butter Roll.”
Police arrested Appellant on April 10, 2008, and filed the original
criminal complaint in this matter on April 11, 2008. The case was listed for
trial on April 14, 2010, but was continued to the next day at the
Commonwealth’s request after three Commonwealth witnesses, including
Mr. Green, failed to appear. Efforts to locate Mr. Green proved unsuccessful,
and the court continued the case upon motion of the Commonwealth, with
jury selection to begin on August 24, 2010. Appellant filed a Rule 600
motion, alleging that the Commonwealth had not timely brought Appellant to
trial. The court denied that motion on August 24, 2010, and the parties
selected eleven jurors that day. Still unable to locate Mr. Green, on August
25, 2010, the Commonwealth requested a continuance. Upon the court
denying that request, the Commonwealth asked the court to nolle prosse the
matter without prejudice. The trial court granted that request over
Appellant’s objection. Appellant appealed, arguing that the trial court erred
in issuing a nolle prosse and declining to grant his Rule 600 motion.
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This Court addressed Appellant’s claim on the merits and affirmed,
finding that no Rule 600 violation had occurred as of August 25, 2010.
Commonwealth v. Wells, 50 A.3d 248 (Pa.Super. 2012) (unpublished
memorandum). The Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal on February 28, 2013. The record, then lodged with
this Court, was returned to the trial court on April 10, 2013 and received by
that court on April 11, 2013. However, prior to the physical record being
returned to the court of common pleas, and over Appellant’s objection, the
court granted the Commonwealth’s motion to vacate the nolle prosse on
March 20, 2013. The court then scheduled a scheduling conference before a
different judge for April 3, 2013. That judge then set this matter for trial on
May 20, 2013.
Mr. Green and another witness, Nalene Gravely, failed to appear. The
court issued bench warrants for those individuals and continued the case to
the following day. Appellant renewed his motion to dismiss under Rule 600,
and the court denied that request. The following day, the Commonwealth,
having apprehended Mr. Green, asked for and received permission to hold
him in custody as a material witness. Trial began that same date and
concluded on May 23, 2013. At trial, Mr. Green denied that it was Appellant
who fired the shot at him. The prosecution then introduced a signed written
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statement Mr. Green provided to police in which he identified Appellant as
the perpetrator and selected him from a photographic array as the shooter.
The jury found Appellant guilty of the aforementioned offenses.1 The
court sentenced Appellant to nine and one-half to twenty-two years
imprisonment. Appellant filed a post-sentence motion, which the court
denied. This timely appeal ensued. Appellant raises twenty-eight issues for
our review.
1. Did the trial court err in ruling while the appellate courts still
had the record from a previous appeal?
2. Did the trial court violate the due process and law-of-the-land
clauses by making up her mind before argument?
3. Did the trial court deny Mr. Wells his constitutional rights to
be present for the determination of the [C]ommonwealth’s
motion to vacate the judgment of nolle prosequi?
4. Did the trial court abuse its discretion in denying the weight
of the evidence claim presented in ground 2 of the August 2,
2013, post-sentence motion?
5. Was the sentence (and denial of modification) an abuse of
discretion?. [sic]
6. Did the sentencing court err in denying the merger claims,
including constitutional challenges to Pennsylvania’s statutory
construction rules, as set forth in ground 4 of the August 2,
2013, post-sentence motion?
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1
The jury acquitted Appellant of attempted murder.
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7. Is consideration of a prior juvenile adjudication
unconstitutional after Alleyne v. United States?
8. Did the sentencing court err in considering hearsay in the
PARS report from 2006?
9. Did the trial court deny the defendant’s rights under the state
and federal constitutions to remain silent, and to the
assistance of counsel, and violating his attorney-client
privilege as to related communications, by conducting a
colloquy regarding his decision to exercise his constitutional
rights to a jury trial?
10. Did the sentencing court err in considering unproven
allegations post-dating this alleged incident?
11. Did the trial court err in granting the continuance and denying
the [R]ule 600(G) motion to dismiss where Ronald Green had
been a reluctant witness for five (5) years.
12. Did the trial court err in striking venire person number 25
(Tanya Upchurch) for cause, when she made clear that
allegations against her son and nephew would not affect her
deliberations in this trial?
13. Did the trial court err in permitting any testimony at all about
how Mr. Wells was arrested?
14. Did the trial court err in overruling the defendant’s multiple
objections to the prosecutorial misconduct in opening to the
jury with unsubstantiated claims of witness intimidation and
retaliation?
15. Did the trial court err in overruling the hearsay objection to
Anthony Comitalo testifying about the out-of-court
statements of Ronald Green?
16. Did the trial court err in overruling the defendant’s relevance
objection to Ronald Green’s testimony about whether people
in the neighborhood like it when people testify?
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17. Did the trial court err in overruling the hearsay objection to
Robert Donnelly’s testimony about the out-of-court
statements of Jarrett Williams?
18. Did the trial court err in overruling the hearsay objection to
Jarret Williams testifying to anything Ronald Green told him?
19. Did the trial court err in overruling the hearsay objection to
exhibits C-1 through C-9?
20. Did the trial court err in denying the constitutional challenge
under article V, section 10(c), to 18 Pa.C.S.A. § 6104 and any
jury instruction based thereon?
21. Did the trial court err in denying the prudential challenge to a
§ 6104 charge.
22. Did the trial court err in overruling the defense objection to
instructions regarding Jarrett Williams.
23. Did the trial court err in ruling that Mr. Wells’s juvenile
adjudication would be admitted if Mr. Wells took the stand to
testify?
24. Did the trial court err in overruling the objection the
prosecution’s closing argument, without any evidence, as to
what Ronald Green “knows” and “can’t tell” the jury, and
referring to a “snitch”?
25. Did the trial court err in overruling the objection to the
prosecutor’s personal vouching in his closing argument?
26. Did the trial court err in overruling the objection to the
prosecutor’s unsubstantiated “code of the street” argument?
27. Did the trial court violate the public trial right of the [S]ixth
[A]mendment by closing the courtroom doors during a short
jury charge?
28. Was the evidence insufficient for any VUFA offense because
there was no evidence of barrel length?
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Appellant’s brief at 2-4.
Although Appellant raises twenty-eight issues, most of his claims are
waived due to insufficient development. Specifically, Appellant’s issues four
through six, issues eight through ten, issues twelve through nineteen, issues
twenty-one and twenty-two and issues twenty-four through twenty-six are
all waived. We address the grounds for waiver of those claims in more detail
infra. Appellant has developed argument for his first three issues and issues
seven, eleven, twenty-three and twenty-eight. In addition, his twenty-
seventh issue, though not thoroughly developed, does cite to pertinent legal
authority. We begin with Appellant’s initial claim.
Appellant maintains that the trial court lacked jurisdiction to enter an
order vacating its earlier nolle prosse and reinstating the criminal charges
against him. Specifically, he asserts that, because the physical record had
not been returned to the trial court after the Pennsylvania Supreme Court
denied allowance of appeal, the trial court did not yet have jurisdiction and
its order was void. From this premise, he asserts that the trial proceedings
that occurred while the court had jurisdiction are null and void.
In support, Appellant relies on Pa.R.A.P. 1763, Pa.R.A.P. 2571(a)(5),
Pa.R.A.P. 2572(e), Pa.R.A.P. 2591(a), and a long line of decisional law
holding that a trial court lacks jurisdiction to act when the record is with an
appellate court. Commonwealth v. Salley, 957 A.2d 320 (Pa.Super.
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2008); Stanton v. Lackawanna Energy, Ltd., 915 A.2d 668 (Pa.Super.
2007); Bell v. Kater, 839 A.2d 356 (Pa.Super. 2003); Corace v. Balint,
210 A.2d 882 (Pa. 1965); Gilbert v. Lebanon Valley St. Ry. Co., 154 A.
302 (Pa. 1931); Drabant v. Cure, 118 A. 30 (Pa. 1922); Baldwin’s
Appeal, 5 A. 732 (Pa. 1886); Ewing v. Thompson, 43 Pa. 372 (1862).
Rule 1763 does not apply to the specific facts of this case. By way of
analogy, however, Appellant points out that jurisdiction is returned to a
lower court when the record is received by that court. Specifically, Rule
1763 provides in relevant part, “Unless otherwise ordered pursuant to this
chapter, upon the remand of the record in any matter in which the judgment
of sentence was affirmed a defendant who has been released pending appeal
shall appear in the lower court at such time as the defendant may be there
called[.]”
In addition, Rule 2571(a)(5) reads, “The record, as remanded to the
lower court or other tribunal, shall consist of the record as certified to the
appellate court and, unless the appellate court shall otherwise order, a
certified copy of: In a criminal matter, a copy of the docket entry under
Rule 2572(e) (docket entry of remand).” Rule 2572(e) sets forth that, “The
prothonotary of the appellate court shall note on the docket the date on
which the record is remanded and give written notice to all parties of the
date of remand.” Further, Rule 2591(a) provides, “On remand of the record
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the court or other government unit below shall proceed in accordance with
the judgment or other order of the appellate court and, except as otherwise
provided in such order, Rule 1701(a) (effect of appeals generally) shall no
longer be applicable to the matter.”
Pa.R.A.P. 1701(a) sets forth, “Except as otherwise prescribed by these
rules, after an appeal is taken or review of a quasijudicial order is sought,
the trial court or other government unit may no longer proceed further in the
matter.” Rule 1701(a), of course, was merely a codification of well-
ensconced common law principles. Gilbert, supra at 304 (“At common law,
a court of first instance was without jurisdiction to proceed with a cause
after the record thereof had been removed to an appellate court (Kountze
v. Omaha Hotel Co., 107 U.S. 378, 381; Sheerer v. Grier, 3 Wh. 14; 2
R.C.L. 122), for the obvious reason that it had no record upon which it could
proceed.”); Harwood v. Bruhn, 170 A. 144 (Pa. 1934); Drabant, supra at
30 (“while the record of the case was under the control of this court, the
only power existing in the court below was to comply with our order.”);
Ewing, supra at 376-37; see also Commonwealth v. Hollis, 450 A.2d 70
(Pa.Super. 1982).
Most recently, in Salley, supra, this Court decided an earlier appeal
by remanding for resentencing on August 3, 2007. Prior to the record being
returned to the trial court, the court resentenced the defendant on August
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17, 2007. The defendant alleged in his subsequent appeal that the trial
court lacked subject matter jurisdiction because the Superior Court had not
yet remanded the record. Discussing Pa.R.A.P. 2572(a)(2) and Pa.R.A.P.
2591, this Court agreed, holding that “Rule 2591, thus, authorizes a trial
court to proceed with the directives of the appellate court after remand of
the record.” Salley, supra at 323 (emphasis in original).
The Salley Court relied principally on Stanton, supra. In Stanton,
parents of an injured child sued a power company. The power company filed
a motion for summary judgement, which the trial court denied. The
company filed a petition for permission to appeal, which this Court granted.
The panel, on February 26, 2003, concluded that the trial court erred in
denying the motion. Five days after that decision, on March 3, 2003, and
before the record was returned to the trial court, the court entered an order
granting the company’s motion for summary judgment. The parents,
however, filed a petition for allowance of appeal fifteen days after this Court
filed its opinion. This appeal stayed the return of the record to the trial
court. Our Supreme Court ultimately granted that appeal and affirmed on
November 23, 2005. However, in doing so, the High Court noted an issue
remained to be decided.
Again, before the record was returned, on December 3, 2005, the trial
court purported to grant the power company’s summary judgment motion.
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In the subsequent appeal to this Court, we held both the March 2003 and
December 2005 orders granting summary judgment were void because the
trial court lacked jurisdiction. Ultimately, we quashed the appeal as
premature. In finding that the trial court lacked jurisdiction, the Stanton
Court relied on Bell, supra, Commonwealth v. Bishop, 829 A.2d 1170
(Pa.Super. 2003), and Pa.R.A.P. 1701, 2572, and 2591.
In Bell, Andrea Kater struck Edward Bell with her car in a parking lot.
The case proceeded to trial and the jury returned a verdict in favor of Bell
and his wife in the amount of two million dollars. Kater filed a post-trial
motion that the court denied on November 1, 2002. The court entered
judgment that same day and Kater filed an untimely appeal to this Court on
December 3, 2002. The next day, Kater also filed with the trial court a
petition requesting the reinstatement of her appellate rights nunc pro tunc.
The court granted that petition on January 15, 2003. That same day, this
Court quashed Kater’s original appeal. Thereafter, on January 27, 2003,
Kater filed a second notice of appeal. This Court quashed the appeal as
untimely. In doing so, we reasoned that the trial court lacked jurisdiction to
enter the order reinstating Kater’s appellate rights because at that time the
record was with the Superior Court due to her original appeal. The Bell
panel relied on Pa.R.A.P. 1701 and Bishop, supra.
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The Bishop case involved a PCRA matter and request for bail. A
Superior Court panel initially reversed the denial of PCRA relief and awarded
Bishop a new trial on March 1, 2002. The Commonwealth sought allowance
of appeal. Before the Supreme Court decided that petition, Bishop filed a
petition seeking a bail hearing and bond. The PCRA court denied that
petition on August 9, 2002, based on its lack of jurisdiction. We affirmed.
Specifically, the Bishop Court ruled that based on Rule 1701, until the
record was remanded to the PCRA court, the lower court lacked jurisdiction
to act.
Despite this overwhelming body of law, the Commonwealth initially
responds that the physical record was “unnecessary to resolve any issues
underlying the lifting of the nolle prosequi[.]” Commonwealth’s brief at 11.
It also contends that Appellant’s original interlocutory appeal was not
properly before this Court and argues that Commonwealth v. Rega, 856
A.2d 1242 (Pa.Super. 2004), was wrongly decided. Where an appeal is
improper, the trial court may not lose jurisdiction. See Commonwealth v.
McPherson, 533 A.2d 1060, 1062 (Pa.Super. 1987); Pa.R.A.P. 1701(b)(6);
but see Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa.Super. 1984).
The prior panel in this matter relied on Rega in reaching the merits of
Appellant’s appeal. The Rega panel concluded that an interlocutory appeal
from the entry of a Rule 600 claim was properly before it based on the
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Pennsylvania Supreme Court decision in Commonwealth v. Reinhart, 353
A.2d 848 (Pa. 1976). Reinhart involved a constitutional speedy trial
challenge after the entry of a nolle prosse and not Rule 600 or its
predecessor Rule 1100. The Commonwealth, as it did in the prior appeal,
argues that Rega incorrectly extended Reinhart. Accordingly, it posits that
the law of the case doctrine should not apply and the trial court never lost
jurisdiction in the first instance.
The Commonwealth continues that, despite the trial court not
possessing the record, the trial court was not precluded from “lifting the
nolle prosse as [Appellant] had no further avenue for review.”
Commonwealth’s brief at 15. It notes that Appellant did not raise any
federal constitutional issues in the previous appeal and could not have
sought review with the United States Supreme Court.2 Further, the deadline
for requesting the Pennsylvania Supreme Court to reconsider its denial of
allowance of appeal had passed. According to the Commonwealth, under
Pennsylvania law, a nolle prosse can be retracted at any time.
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2
Appellant in his reply brief erroneously maintains that he could have
successfully sought a writ of certiorari with the United States Supreme
Court. However, Appellant’s only issue in his original appeal to this Court
was specific to Rule 600. He did not raise a separate federal constitutional
speedy trial right claim. The United States Supreme Court has no
jurisdiction to consider purely state law rulings.
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The Commonwealth also distinguishes Salley, Stanton, and Bell. It
points out that in Salley, this Court had vacated a judgment of sentence
and remanded for resentencing and in Stanton had reversed the denial of
summary judgment and remanded. The courts then took action relative to
sentencing and the entry of summary judgment before the record was
returned. The Commonwealth submits that it is significant in this case that
this Court had affirmed the trial court’s order in the prior appeal and was
“not required to correct an improper order[.]” Commonwealth’s brief at 17.
With respect to Bell, the Commonwealth maintains that the decision therein
precluded the trial court from entering an order during a pending and
undecided appeal. It posits that the trial court order here did not interfere
with a pending appeal.
Lastly, the Commonwealth argues that even if the trial court lacked
jurisdiction at the time it entered the order reinstating the charges against
Appellant, the remedy of a new trial is not required. The Commonwealth
submits that any error was harmless because the trial occurred when the
court did have jurisdiction. It analogizes a defect in the removal of a nolle
prosse to a defect at a preliminary hearing. The Commonwealth reasons
that the purpose of a preliminary hearing and reinstating charges is to
provide notice that the defendant will proceed to trial. Thus, “a defect in the
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proceeding that did not undermine the notice should not result in reversal.”
Commonwealth’s brief at 18.
Instantly, we agree with Appellant that generally a court loses
jurisdiction over a matter after a party files an appeal. Pa.R.A.P. 1701(a).
The court resumes jurisdiction once the record has been remanded and is in
the possession of the trial court. See Pa.R.A.P. 2591; Salley, supra;
Stanton, supra; Bell, supra; Bishop, supra; Gilbert, supra; Drabant,
supra; Ewing, supra. Here, contrary to the Commonwealth’s positions,
the trial court did not have jurisdiction to enter the order lifting the nolle
prosse at the time it filed the order. See id. However, the question is
whether the court’s lack of jurisdiction when it entered the order reinstating
the charges requires a new trial where the court clearly had jurisdiction at
the time of trial. Appellant’s position is that since the order lifting the nolle
prosse is null, no charges were pending at the time of the trial and the trial
itself was void. We disagree.
Since Appellant was arraigned and tried after jurisdiction returned to
the trial court, we find that the error in reinstating Appellant’s charges prior
to the physical return of the record does not warrant a new trial. Although
the initial order lifting the nolle prosse was a legal nullity when it was
entered, the subsequent arraignment of Appellant on the same charges
when the court had jurisdiction effectively reinstated those criminal counts
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against him. None of the cases relied on by Appellant involved the entry of
an interlocutory order without jurisdiction followed by a subsequent trial that
transpired when the court had jurisdiction. Hence, those cases do not
compel reversal.
Appellant’s second issue is that the trial court denied him due process
under the Pennsylvania and federal constitutions by lifting the nolle prosse.
He argues that the trial court’s statement prior to his argument that counsel
“can argue all he wants; I’m lifting it[,]” shows that the court had decided
the Commonwealth’s motion before hearing his position. Appellant’s brief at
11 (citing N.T., 3/20/13, at 3). In support, he relies on Commonwealth v.
Lowery, 419 A.2d 604 (Pa.Super. 1980), and Commonwealth v.
Richman, 1 A.2d 578 (Pa.Super. 1938).
Lowery, however, does not aid Appellant. Relevant hereto, the
defendant claimed that the trial court had demonstrated bias during a
suppression hearing by determining that the defendant’s testimony was
incredible prior to counsel’s argument at that hearing. Lowery alleged that
the court erred in making its decision before listening to counsel’s closing
suppression argument. We rejected the defendant’s position, opining, “The
court may have expressed doubts about defendant's credibility at side-bar
but we have no record of what was actually said. More importantly[,] the
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court did not forbid the defendant's counsel from presenting oral argument .
. . . nor did it discourage oral argument[.]” Lowery, supra at 610.
Richman is also inapposite. There, the defendant was on trial for
receiving stolen property. The defendant was a pawnbroker who purchased
a stolen watch. During the course of the trial, before the defendant had
completed calling his witnesses, the trial court commented, “I do not
understand counsel or the defendants in this case. If you want me to sit as a
judge and jury and ask me to believe testimony like that you are making a
big mistake. I am telling all of you that. Think of it, a boy like that walks into
a pawnshop and a transaction takes place and you want me to believe the
man did not know it was stolen?" Richman, supra at 579. We concluded
that the trial judge’s determination of guilt prior to the completion of the
trial was error.
In this case, as the Commonwealth points out, the trial court
permitted Appellant to present his arguments. It contends that because
Appellant was given an opportunity to object and set forth his positions,
Appellant was not deprived of due process. We agree. Generally, our courts
have maintained that federal and state due process claims are coextensive.
Commonwealth v. Sims, 919 A.2d 931, 941 n.6 (Pa. 2007). Although the
Pennsylvania Constitution does not utilize the term “due process,” the
phrase “law of the land,” used in Article I, § 9, is synonymous with that
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term. Craig v. Kline, 65 Pa. 399, 413 (1870); Murray v. Hoboken Land
& Imp. Co., 59 U.S. 272, 276 (1855); see also Commonwealth v.
Kratsas, 764 A.2d 20, 49 n.5 (2001); Commonwealth v. Rose, 81 A.3d
123, 126 n.2 (Pa.Super. 2013), allowance of appeal granted on other
ground, 95 A.3d 274 (Pa. 2014); Commonwealth v. Harrell, 65 A.3d 420,
448 n.10 (Pa.Super. 2013) (Donohue, J., dissenting)).
The hallmarks of due process are notice and an opportunity to be
heard. Fiore v. Bd. of Fin. & Revenue, 633 A.2d 1111, 1114 (Pa. 1993)
(“due process ‘requires at a minimum that the deprivation of life, liberty or
property by adjudication must be preceded by notice and opportunity for
hearing appropriate to the nature of the case.’”). Since Appellant was given
both notice and the opportunity to present his arguments, we find that the
trial court did not deny him due process for the reasons argued, i.e.,
purportedly deciding the Commonwealth’s request before Appellant
articulated his objections.3 See Lowery, supra.
The third issue Appellant levels on appeal is that the trial court denied
him his constitutional right to be present at the hearing on the
Commonwealth’s motion to vacate the nolle prosse. Appellant argues that
the motion to lift the nolle prosse was a critical stage of the criminal
____________________________________________
3
Appellant does not advance a due process position based on the trial
court’s lack of jurisdiction.
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prosecution. He then collects an array of cases, none of which involve a
motion to reinstate charges after a nolle prosse, for the settled proposition
that a defendant must be present during critical stages of a criminal case.
The Commonwealth responds that the hearing to reinstate the charges
was not a critical stage of the prosecution. It maintains that Appellant could
not preserve or lose substantive rights at the proceeding, nor was the
hearing related to defending against the charges. Accordingly, it asserts
that a hearing to lift a nolle prosse is not required and Appellant was not
constitutionally entitled to be present.
We have already determined that the trial court acted without
jurisdiction at the challenged hearing. Thus, its actions were a legal nullity
at that time. Nonetheless, Appellant was present when he was arraigned
and at trial. Therefore, even assuming arguendo that Appellant should have
been present, his absence did not result in prejudice warranting a new trial.
Cf. Commonwealth v. Lyons, 568 A.2d 1266 (Pa.Super. 1989) (absence of
preliminary hearing, which is considered a critical stage of the prosecution,
due to unavailability of defendant, did not require a new trial where no
prejudice could be shown).
Appellant’s fourth and fifth issues are waived. The entirety of
Appellant’s argument on his fourth claim is that “[t]he court abused its
discretion in denying the weight of the evidence presented in ground 2 of the
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August 2, 2013, post-sentence motion, which is incorporated by reference.”
Appellant’s brief at 14. Incorporation by reference is improper.
Commonwealth v. Briggs, 12 A.3d 291, 342 (Pa. 2011). Similarly,
Appellant’s fifth issue reads “[d]enial of the motion to modify sentence (and
impose that sentence initially), as set forth in ground 3 of the August 2,
2013, post-sentence motion, which is incorporated herein by reference.”
Appellant’s brief at 14. For the same reason that his prior argument is
waived, this issue fails.
In his sixth position raised on appeal, Appellant provides at least a
citation to case law after attempting to incorporate his arguments below by
reference. Appellant maintains that, based on Chief Justice Castille’s
concurring opinion in Commonwealth v. Baldwin, 985 A.2d 830 (Pa.
2009), Pennsylvania’s merger statute violates the separation of powers
doctrine and the double jeopardy clause of the Pennsylvania Constitution.
In this latter regard, Appellant maintains that Pennsylvania’s prohibition
against double jeopardy precludes multiple sentences even where the
merger statute would not prohibit such sentences.
While Appellant cites to a non-binding concurring opinion in Baldwin,
he fails to develop any comprehensive argument on the claim. As noted, his
attempt to incorporate by reference arguments made in the trial court is
improper appellate advocacy. Moreover, in Commonwealth v. Wade, 33
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A.3d 108, (Pa.Super. 2011), this Court rejected a claim that the merger
statute violated Pennsylvania’s constitutional prohibition against double
jeopardy. In addition, since Appellant has not adequately developed his
separation of powers argument, his claim does not entitle him to relief. See
Wade, supra (holding that failure to develop separation of powers position
relative to merger statute resulted in issue failing).
The seventh claim Appellant forwards on appeal is that the trial court’s
consideration of his prior juvenile adjudication at sentencing is
unconstitutional following the United States Supreme Court’s decision in
Alleyne, supra. The Supreme Court in Alleyne held that the federal jury
trial right requires facts necessary to increase a mandatory minimum
sentence, except prior convictions, to be proven beyond a reasonable doubt.
In this case, Appellant was not sentenced based on a mandatory minimum
statute involving his prior juvenile adjudication. Alleyne has no application.
Further, this Court has held that prior juvenile adjudications may be
considered in sentencing a defendant within a permissible range of
sentences. See Commonwealth v. Hale, 85 A.3d 570, 585 (Pa.Super.
2013) allowance of appeal granted on other ground, 2014 Pa. LEXIS 1623.
Since consideration of Appellant’s juvenile adjudication did not result in an
increased mandatory sentence, his claim is without merit.
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Appellant’s eighth, ninth, and tenth issues are waived due to his failure
to develop those positions. Specifically, Appellant in advancing his eighth
claim baldly states that the court erred in considering hearsay in a PARS
report during sentencing. He provides no argument and his position is
contained in one incomplete sentence. Furthermore, Appellant’s position
relates to the discretionary aspects of his sentence and he has utterly
neglected to follow the applicable rules for presenting such claims. Finally,
the only citation to authority Appellant provides relates to a trial court’s use
of a nolle prossed charge to increase the defendant’s sentence. Appellant’s
brief at 15 (citing Commonwealth v. Stewart, 867 A.2d 589 (Pa.Super.
2005)). As Appellant has completely failed to develop his position, the issue
is waived.
The ninth claim Appellant raises is that the trial court denied him his
state and federal constitutional rights to remain silent and the assistance of
counsel and violated his attorney-client privilege by conducting an on-the-
record colloquy regarding his decision to proceed to trial on a separate rape
charge. Appellant has not set forth a single case in support of his untenable
assertions. The sole citation he provides is to Commonwealth v. Grant,
813 A.2d 726 (Pa. 2002), which relates to deferral of ineffectiveness claims
to collateral review. Appellant’s position is frivolous.
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In his tenth issue, Appellant’s entire argument is that “[t]he
sentencing court erred in considering unproven allegations post-dating this
alleged incident.” Appellant’s brief at 16. Accordingly, his claim is waived
and fails due to the lack of advocacy and citation to authority.
Appellant’s next claim is that the trial court erred in denying his Rule
600(G) motion after remand. Appellant acknowledges the law of the case
doctrine and our prior ruling relative to his original Rule 600(G) motion.
However, he contends that based on this Court’s earlier decision, as of the
date the trial court granted the nolle prosse, the Commonwealth had 39
days to try him. Omitting the period between the grant of the nolle prosse
on August 25, 2010, and the filing of his earlier appeal, as well the period
between March 15, 2013 and April 10, 2013, when the court did not have
jurisdiction, Appellant posits that forty days elapsed between April 10, 2013
and May 20, 2013.
The Commonwealth responds that Appellant’s newest Rule 600 claim is
waived because Appellant failed to supply the notes of testimony from the
May 20, 2013 hearing on the issue. Further, it contends that Appellant has
waived his position because the written motion he filed on May 20, 2013,
was “hopelessly vague, asserting only that the Commonwealth lacked due
diligence but specifying no continuance or other delay attributable to the
Commonwealth.” Commonwealth’s brief at 34. The Commonwealth also
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disputes Appellant’s issue on the merits. Relying on former Rule 600(D)(2)
and Commonwealth v. Sisneros, 692 A.2d 1105 (Pa.Super. 1997), it
submits that a new 365 day period began from when the trial court lifted the
nolle prosse.
Rule 600(D)(2) did provide that, upon remand from an appellate court,
the Commonwealth has 120 days to try a defendant who is incarcerated and
365 days to try the case if the defendant is on bail. In Sisneros, the
defendant had twice successfully appealed his judgment of sentence. After
his second successful appeal, this Court remanded for a new trial concluding
that his guilty plea was not knowing, intelligent and voluntary. The
defendant filed a Rule 1100 motion for discharge, which was denied. He
then entered a guilty plea and was again sentenced, but failed to appeal.
This Court then reversed the lower court’s failure to reinstate the
defendant’s appeal rights. In Sisneros’ reinstated direct appeal, we decided
that the failure to retry the defendant within 120 days of the date of the
remand after his second appeal did not compel reversal. Rather, the
Sisneros Court opined that, after 120 days, the defendant was subject to be
released on nominal bail, but the Commonwealth had 365 days to try the
case.
This case is materially different from Sisneros insofar as the case was
not remanded to be tried. Moreover, Appellant was neither released on bail
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nor incarcerated on the case because the charges had been nolle prossed.
Hence, Rule 600(D)(2) did not apply. We find this situation more akin to the
scenario in which the Commonwealth withdraws a complaint and files a
second complaint. Cf. Peterson, supra; see also Commonwealth v.
Meadius, 870 A.2d 802 (Pa. 2005).
In this case, the Commonwealth withdrew the charges. Although it did
not re-file those charges via a second complaint, its motion to lift the nolle
prosse was intended to have the same effect. The critical inquiry where
charges have been reinstated is whether the Commonwealth exercised due
diligence in prosecuting the original complaint. Meadius, supra; compare
also Peterson, supra. Where the Commonwealth exercises due diligence
during the initial prosecution, the clock is restarted when charges are
reinstituted. Peterson, supra. In contrast, the Commonwealth cannot
evade Rule 600 by withdrawing charges and refiling when it has not acted
with diligence in the first instance. See Peterson, supra at 1140 n.14.
This Court in our prior panel decision held that the Commonwealth exercised
diligence and made reasonable efforts in its attempt to produce Mr. Green.
Accordingly, we find that the clock was reset upon the Commonwealth’s
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attempt to re-file the charges.4 Since Appellant was brought to trial well
within 365 days of the Commonwealth’s request to reinstate the charges, no
Rule 600 violation occurred.
As with so many of Appellant’s claims, issues twelve through nineteen
are waived. The twelfth position set forth by Appellant is that the court
erred in striking a venire person for cause. He cites no case law or legal
authority in support. Appellant’s inadequate development is fatal. Similarly,
Appellant’s thirteenth issue is waived as the entire argument is, “[t]he trial
court erred in permitting any testimony at all about how Mr. Wells was
arrested.” Appellant’s brief at 19-20. Issue fourteen fares no better,
although Appellant offers two sentences in support thereof. Appellant’s
fifteenth claim is a one sentence assertion that “[t]he trial court erred in
overruling the hearsay objection to Anthony Comitalo testifying about the
out-of-court statements of Ronald Green.” Appellant’s brief at 20.
The sixteenth issue Appellant avers is also one sentence: “The trial
court erred in overruling the defendant’s relevance objection to Ronald
____________________________________________
4
We are aware that Rule 600 would not generally begin to run before
jurisdiction returned to the trial court. See Commonwealth v. Sisneros,
692 A.2d 1105 (Pa.Super. 1997) (discussing date of remand). However, we
agree with Appellant to the limited extent that the Commonwealth is
estopped from arguing that such a period cannot count against it when it
was vigorously attempting to begin the prosecution despite the trial court’s
lack of jurisdiction.
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Green’s testimony about whether people in the neighborhood like it when
people testify.” Id. Appellant’s seventeenth, eighteenth, and nineteenth
“arguments” are also devoid of citation to legal case law and are,
respectively, one, two, and one sentence boilerplate statements. Those
claims, therefore, do not entitle him to relief.
Appellant does develop an argument relative to his twentieth position.
According to Appellant, the trial court erred in not finding that 18 Pa.C.S. §
6104 and the jury instruction relative thereto violate the Pennsylvania’s
Supreme Court’s rule-making authority. Section 6104 provides:
In the trial of a person for committing or attempting to commit a
crime enumerated in section 6105 (relating to persons not to
possess, use, manufacture, control, sell or transfer firearms),
the fact that that person was armed with a firearm, used or
attempted to be used, and had no license to carry the same,
shall be evidence of that person's intention to commit the
offense.
18 Pa.C.S. § 6104. Appellant avers that Article V, § 10 of the Pennsylvania
Constitution confers exclusive procedural rule-making authority with the
Pennsylvania Supreme Court. He maintains that § 6104 is a procedural
evidentiary rule, which the legislature had no authority to pass. The
Commonwealth counters that the statute is substantive because it defines
conduct necessary to prove intent. Article V § 10(c) provides, in relevant
part, as follows:
(c) The Supreme Court shall have the power to prescribe general
rules governing practice, procedure and the conduct of all courts,
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justices of the peace and all officers serving process or enforcing
orders, judgments or decrees of any court or justice of the
peace, including the power to provide for assignment and
reassignment of classes of actions or classes of appeals among
the several courts as the needs of justice shall require, and for
admission to the bar and to practice law, and the administration
of all courts and supervision of all officers of the judicial branch,
if such rules are consistent with this Constitution and neither
abridge, enlarge nor modify the substantive rights of any
litigant, nor affect the right of the General Assembly to
determine the jurisdiction of any court or justice of the peace,
nor suspend nor alter any statute of limitation or repose. . . .
Thus, the Pennsylvania Constitution has expressly authorized our Supreme
Court to promulgate rules governing the practice, procedure, and conduct of
all of the courts in the Commonwealth. See also Commonwealth v.
McMullen, 961 A.2d 842, 847 (Pa. 2008) (“T[he] [Supreme] Court retains
exclusive rule-making authority to establish rules of procedure.”).
The Pennsylvania Supreme Court has defined procedural and
substantive law by opining, “substantive laws are those which affect rights,
while procedural laws are those which address methods by which rights are
enforced. The demarcation between substantive and procedural laws is,
however, at times shadowy and difficult to determine.” Morabito's Auto
Sales, 715 A.2d 384, 386 (Pa. 1998) (internal citations omitted); see also
Commonwealth v. Estman, 915 A.2d 1191, 1195 (Pa. 2007) (quoting
Commonwealth v. Morris, 771 A.2d 721, 738 (Pa. 2001), and stating,
“substantive law is that part of the law which creates, defines and regulates
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rights, while procedural laws are those that address methods by which rights
are enforced.”).
We add that our Supreme Court in Commonwealth v. Fisher, 741
A.2d 1234, 1241 (Pa. 1999), declared that a statutory provision relative to
aggravating factors for the death penalty statute was not substantive;
however, it did not declare the law to be an unconstitutional invasion of its
procedural rule-making authority. Importantly, the Supreme Court has sua
sponte ruled that statutes unconstitutionally violate its rule-making power.
In re Suspension of Capital Unitary Review Act, 722 A.2d 676 (Pa.
1999). Therefore, it is immaterial whether or not a party raises this concern
before that Court.
To the extent Appellant suggests that a statutory provision that
operates in a procedural manner can never be passed by the legislature, we
believe that position is legally untenable. See Fisher, supra. Here, we find
that § 6104 is not purely procedural. The law defines a means of
establishing an element of a crime charged. Therefore, it is substantive in
nature. The legislature had authority to pass § 6104.
Appellant’s twenty-first and twenty-second issues are waived for the
same reasons outlined with respect to issues twelve through nineteen. The
twenty-third position Appellant advances is that the trial court erred in
authorizing the Commonwealth to introduce Appellant’s juvenile adjudication
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for hindering apprehension if he elected to testify. Appellant’s argument is
cursory. He maintains that the hindering apprehension adjudication was for
a violation of 18 Pa.C.S. § 5105(a)(4),5 which has been held not to be a
crimen falsi crime. See Commonwealth v. Harris, 658 A.2d 811
(Pa.Super. 1995). In addition, in a fundamental misunderstanding of the
case law, he asserts that use of the hindering apprehension charge violates
Alleyne.
The Commonwealth rejoins that Appellant was not adjudicated for a
violation of § 5105(a)(4). Instead, the trial court ruled that the juvenile
petition in question alleged that Appellant intimidated or attempted to
intimidate a witness in a homicide by instructing the witness to alter his
testimony. The Commonwealth submits that these facts supported an
adjudication under § 5105(a)(3), which is a crimen falsi crime. See Harris,
supra at 813-814 (stating in dicta that § 5105(a)(1)-(3), and (5) are crimen
falsi crimes). With respect to Appellant’s Alleyne claim that because a
juvenile adjudication is not a conviction it cannot be introduced at trial, the
Commonwealth contends that the issue is waived because Appellant did not
object on this ground.
____________________________________________
5
At trial, Appellant objected to an adjudication “as to a 6105 juvenile
matter.” N.T., 5/23/13, at 22. This appears to have been an inadvertent
slip, as immediately prior the parties had been discussing 18 Pa.C.S. § 6104
and 6105, relative to a jury instruction.
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Alleyne, of course, has no application regarding admission of a
juvenile adjudication where the evidence does not mandatorily increase the
individual’s sentence. For this reason, it is unnecessary to decide whether a
juvenile adjudication falls under the Apprendi/Alleyne prior conviction
exception to those cases. Moreover, Appellant’s citation to Justice Scalia’s
dissent in Almendarez-Torres v. United States, 523 U.S. 224, 248
(1998), betrays his understanding of the law. Justice Scalia therein was
opining that, to be in accord with the jury trial right, prior convictions must
be introduced and proven beyond a reasonable doubt if they increased the
defendant’s maximum sentence. Thus, the case law Appellant relies on
actually supports the opposite result if the prior adjudication automatically
increases the defendant’s sentence.
Further, we agree with the Commonwealth that Appellant’s prior
juvenile adjudication was for violating 18 Pa.C.S. § 5105(a)(3), and would
have been admissible to impeach his testimony as crimen falsi evidence. The
record contains the juvenile petition in question. The petition did not specify
which subsection of § 5105 was applicable. However, the delinquent act was
described as follows:
On or about 7/12/06 while at or near 1301 Filbert Street, the
Defendant, with the intent to hinder the apprehension,
prosecution, conviction or punishment of another charged with
murder, the Defendant did intimidate/attempt to
intimidate/retaliate against the complainant, [D.O.], by
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repeatedly approaching him in the courtroom and telling him to
change his testimony.
Juvenile Petition, 7/12/06.
At an August 24, 2010 hearing, the court concluded that the
allegations, which Appellant admitted, did not fall under § 5105(a)(4), and
plainly were encompassed by § 5105(a)(3). Section 5105(a)(4) prohibits a
person from “warn[ing] the other of impending discovery or apprehension,
except that this paragraph does not apply to a warning given in connection
with an effort to bring another into compliance with law[.]” 18 Pa.C.S. §
5105(a)(4). It is beyond cavil that this subsection does not apply. In
contrast, § 5105(a)(3) makes it illegal to conceal or destroy evidence of a
crime, or tamper “with a witness, informant, document or other source of
information, regardless of its admissibility in evidence.” 18 Pa.C.S. §
5105(a)(3). The trial court did not err.
Appellant’s next three claims are waived due to inadequate
development. In issue twenty-seven, although Appellant offers only a one
sentence argument, he does cite to non-binding case law from other
jurisdictions. He posits that the trial court violated his right to public trial by
closing the courtroom doors during its jury instruction. Nonetheless, he
does not develop his argument in any meaningful fashion. We will not do his
work for him. This claim fails.
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The final claim Appellant levels on appeal is to the sufficiency of the
evidence relative to his carrying an unlicensed firearm and carrying a firearm
on the public streets of Philadelphia charges. Specifically, Appellant
contends that the Commonwealth did not establish the length of the barrel
of the firearm. The Commonwealth replies that the jury could have inferred
that Appellant used a handgun based on the evidence it received and that
the weapon used was less than twenty-six inches in length.
In conducting a sufficiency of the evidence review, we view all of the
evidence admitted, even improperly admitted evidence. Commonwealth v.
Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such
evidence in a light most favorable to the Commonwealth as the verdict
winner, drawing all reasonable inferences from the evidence in favor of the
Commonwealth. Id. When evidence exists to allow the fact-finder to
determine beyond a reasonable doubt each element of the crimes charged,
the sufficiency claim will fail. Id.
The evidence “need not preclude every possibility of innocence and the
fact-finder is free to believe all, part, or none of the evidence presented.”
Id. In addition, the Commonwealth can prove its case by circumstantial
evidence. Where “the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the combined
circumstances[,]” a defendant is entitled to relief. Id. This Court is not
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permitted “to re-weigh the evidence and substitute our judgment for that of
the fact-finder.” Id.
Here, the Commonwealth introduced into evidence Mr. Green’s
statement to police after he testified and denied that Appellant was the
culprit. In his statement to police, Mr. Green was asked what type of gun
Butter Roll possessed and he responded, “All I know, it was a black
handgun.” N.T., 5/22/13, at 118. The jury could have reasonably
determined from this testimony and the remaining testimony that the
weapon was not a rifle or a gun in excess of twenty-six inches. Appellant’s
issue does not entitle him to relief.
Judgment of sentence affirmed.
Judge Jenkins joins the memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015
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Com. v. Wells, E.
Combined Opinion