Com. v. Pouliczec, M.

J. A25037/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
:
Appellee :
v. :
:
MAIKEL POULICZEK, :
: Nos. 1061 EDA 2014
Appellant : 1340 EDA 2014

Appeal from the Judgment of Sentence March 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0009772-2009, CP-51-CR-0009774-
2009, CP-51-CR-0013166-2010, CP-51-CR-0006021-2011

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 24, 2015

Appellant, Maikel Pouliczek,1 appeals from the judgment of sentence of

thirty-seven to eighty-one years’ imprisonment entered in the Philadelphia

County Court of Common Pleas after a jury trial on the above captioned

cases. Appellant claims (1) the trial court erred in denying his Pa.R.Crim.P.

600 motion to dismiss the charges, (2) the court erred in denying his motion

for mistrial after the Commonwealth confronted its witness, Luis Gonzalez,

with a letter purporting to solicit Gonzalez’s murder, (3) the court erred in

permitting the Commonwealth’s witness, Barbara Zangerl, to testify about

*
Former Justice specially assigned to the Superior Court.
1
We have amended the caption to reflect the spelling of Appellant’s name as
reflected in the record.
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uncharged incidents of domestic abuse, (4) the court erred in denying his

motion for mistrial after Zangerl referenced his arrest for an unrelated

incident, (5) the evidence was insufficient to sustain his conviction for

soliciting the murder of Gonzalez, (6) the evidence was insufficient to prove

the date he assaulted Zangerl, and (7) the trial court erred in rejecting

Appellant’s guilty plea and ordering that he proceed to trial. We affirm the

convictions, find an illegal sentence in CR-6021-2011, vacate the judgment

of sentence, and remand for resentencing.

The procedural history of this appeal follows. On December 23, 2008,

Appellant was charged in CR-9774-2009, with terroristic threats, simple

assault, recklessly endangering another person, and intimidation of a

witness.2 Those charges arose from an incident involving Zangerl, his

former wife, at their home. The following day, December 24th, Appellant

was charged in CR-9772-2009 with simple assault, recklessly endangering

another person, and terroristic threats3 for attacking Zangerl, while the two

were traveling in a car. The complaints and informations indicated the

offenses in CR-9774-2009 occurred on October 3, 2008, and the offenses in

CR-9772-2009 occurred on December 3, 2008.

2
18 Pa.C.S. §§ 2701(a), 2705, 2706(a)(1), 4952(a)(1).
3
18 Pa.C.S. §§ 2701(a), 2705, 2706(a)(1).

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Appellant was incarcerated and housed in a Philadelphia County

Correctional Facility.4 Luis Gonzalez, a fellow inmate, reported that

Appellant asked him to arrange the murder of Zangerl to prevent her from

testifying against Appellant. On August 17, 2009, he was charged in CR-

13166-2010 with solicitation of murder, terroristic threats, intimidation of a

witness, retaliation against a witness, and obstruction of administration of

law.5 Subsequently, prison officials discovered a letter allegedly threatening

the death of Gonzalez and referring to Gonzalez’s adverse testimony against

the author. An investigation into the letter indicated Appellant authored the

letter. On March 1, 2011, Appellant was charged in CR-6021-2011, with

solicitation of murder, terroristic threats, six counts of intimidation of a

witness, and retaliation against a witness, and obstruction of administration

of law.6

The four cases were consolidated.7 Appellant filed a Pa.R.Crim.P. 600

motion seeking discharge, which the trial court denied. Immediately before

4
As discussed below, Appellant was initially incarcerated on a separate
matter.
5
18 Pa.C.S. §§ 902(a), 2502, 2706(a)(1), 4952(a)(1), 4953(a), 5101.
6
18 Pa.C.S. §§ 902(a), 2502, 2706(a)(1), 4952(a)(1)-(6), 4953(a), § 5101.
7
The trial court, on March 11, 2011, granted the Commonwealth’s motion to
consolidate the charges in CR-9772-2009, CR-9774-2009, and CR-13166-
2010. The trial court states that CR-6021-2011 was “linked” to the other
cases on April 27, 2012. Appellant did not challenge the consolidation of the
cases.

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jury selection on January 7, 2014, the parties appeared before the court with

a proposed guilty plea agreement. During the colloquy, and before entering

his plea, Appellant asked to speak with a foreign embassy to determine

whether he was eligible for immediate deportation. The court thereafter

rejected the plea and ordered that jury selection begin and the case proceed

to trial.

On January 23, 2014, the jury rendered its verdict. In CR-9772-2009

and CR-9774-2009, it found Appellant guilty of two counts each of terroristic

threats and simple assault against Zangerl, but acquitted him of recklessly

endangering another person and intimidation of a witness. In CR-13166-

2010, it found Appellant guilty of solicitation of Zangerl’s murder, retaliation

against a witness, obstruction of the administration of law, but acquitted him

of intimidation of a witness and terroristic threats. In CR-6021-2011, it

found Appellant guilty of solicitation of Gonzalez’s murder, two counts of

intimidation of a witness,8 and retaliation against a witness.

The Honorable Earl W. Trent initially presided over this matter until
approximately November 30, 2012. The Honorable Gwendolyn N. Bright
presided over the remaining pretrial matters, as well as trial and sentencing.
8
In CR-6021-2011, the jury found Appellant guilty of two counts of
intimidation of a witness under 18 Pa.C.S. § 4952(a)(2) and (a)(3). The
jury, however, acquitted Appellant on two other counts under subsections
(a)(1) and (a)(6). Two additional counts of intimidation of a witness under
subsections (a)(4) and (6), were withdrawn.

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The trial court, on March 21, 2014, sentenced Appellant to an

aggregate thirty-seven to eighty-one years’ imprisonment. The individual

sentences in each case were: (1) in CR-9772-2009, one to two years’

imprisonment each for terroristic threats and simple assault against Zangerl,

concurrent to each other, but consecutive to the remaining sentences; (2) in

CR-9774-2009, one to two years’ imprisonment for terroristic threats and

simple assault against Zangerl, concurrent to each other, but consecutive to

the remaining sentences; (3) in CR-13166-2010, ten to twenty years’

imprisonment for solicitation of Zangerl’s murder, three and a half to seven

years’ imprisonment for retaliation against a witness, and one to two years’

imprisonment for obstruction of justice, all consecutive; and (4) in CR-6021-

2011, seven and a half to fifteen years’ imprisonment for solicitation of

Gonzales’ murder, five and a half to fifteen years’ imprisonment for

intimidation of a witness (subsection (a)(2)), a five and a half to eleven

years’ imprisonment for intimidation of a witness (subsection (a)(3)), and a

two to seven years’ imprisonment for retaliation against a witness, all

consecutive.

Appellant timely filed notices of appeal in each case and after receiving

an extension of time, complied with the trial court’s order to submit

Pa.R.A.P. 1925(b) statements. The appeals were docketed separately in this

Court, and this Court granted Appellant’s application to consolidate.

Appellant presents the following questions for review:

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[1.] Did the trial court err in denying the [A]ppellant’s
Motion to Dismiss Pursuant to Pennsylvania Rule of
Criminal Procedure 600(a), and subsequent motions to
reconsider that denial, where [A]ppellant’s trials did not
commence within 365 days of the filing of the complaints,
and periods of delay in excess of 365 days were caused by
the Commonwealth’s failure to exercise due diligence?

[2.] Did the trial court err in denying [A]ppellant’s request
for a mistrial after the Commonwealth questioned Luis
Gonzalez regarding [A]ppellant’s alleged letter requesting
that Mr. Gonzalez be killed (Commonwealth exhibit 42)
because:

i. The Assistant District Attorney testified and
expressed her own opinion as to the truth and source of
the letter in response to a question by Mr. Gonzalez,
and

ii. By showing it to Mr. Gonzalez, implicitly asked him
to make an opinion as to its truth, both of which
fundamentally invaded the province of the jury?

[3.] Did the trial court err in overruling [A]ppellant’s
objection and denying [A]ppellant’s request for a mistrial
after the Commonwealth questioned Luis Gonzalez
regarding [A]ppellant's alleged letter requesting that Mr.
Gonzalez be killed (Commonwealth exhibit 42) because it
was outside of the scope of cross?

[4.] Did the trial court err[ ] in allowing complainant
Zangerl to discuss other crimes evidence not raised on the
Commonwealth’s Motion in Limine, such as allegations of
threats and physical violence which did not occur on
October 3, 2008 or December 3, 2008, resulting in unfair
prejudice to the [A]ppellant?

[5.] The trial court erred in denying [A]ppellant’s motion
for a mistrial where complainant Barbara Zangerl
mentioned an independent arrest after the court’s
instruction not to, and where the comment suggested that
[A]ppellant had been arrested for conduct outside of that
charged.

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[6.] Was the evidence sufficient to convict [A]ppellant of
the charge of solicitation to commit murder (. . . Luis
Gonzalez) where the document alleged to be solicitation
was undated, vague, unsigned, and without a specified
intended recipient?

[7.] Was the evidence sufficient to convict [A]ppellant of
the charge of terroristic threats and simple assault (CP-51-
CR-0009772-2009 and CP-51-CR-0009774-2009) where
the bills of information correspond to the dates of the
complaints, not any incident, and the complainant failed to
testify as to when the incident occurred?

[8.] Did the court abuse its discretion and err in rejecting
[A]ppellant’s guilty plea because there was no valid or
reasonable justification to do so after it was shown to be a
knowing and voluntary plea and the court failed to place
any such reasons on the record?

Appellant’s Brief at 6-8.

Appellant first contends the trial court erred in denying his

Pa.R.Crim.P. 600 motion to dismiss the charges. He focuses on the single

delay due to the Commonwealth’s request for a continuance on April 27,

2012. Id. at 27. He asserts that although the Commonwealth stated

Zangerl was out of the country due to a death in the family, she appeared in

the Philadelphia County Family Court on May 7, 2012. Id. Specifically, he

relies on a Family Court docket entry which read:

07-May-2012 09:16:36 Case Continued . . . .

BOTH PARTIES PRESENT. PLTF WITH ATTORNEY. DEFT
INCARCERATED. SEE LETTER IN FILE. CRIMINAL CASE
PENDING. CONT’D TO 12/10/12 . . . .

Docket, Zangerl v. Pouliczek, 0809V8012, 2/25/13, at 3. Appellant also

argues the death of Zangerl’s new husband did not explain her absence. Id.

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Specifically, he proffers exhibits showing her new husband died October 14,

2011, and notices of the distribution of the estate were published December

15, 2011. He thus argues the Commonwealth failed to exercise due

diligence. Id. at 29. No relief is due.

The following precepts govern our review:

“In evaluating Rule 600 issues, our standard of review
of a trial court’s decision is whether the trial court abused
its discretion.” Further, we review “the facts in the light
most favorable to the prevailing party.” Our scope of
review is “limited to the evidence on the record of the Rule
600 evidentiary hearing, and the findings of the trial
court.” The Commonwealth has the burden of establishing
by a preponderance of the evidence that it exercised due
diligence throughout the prosecution.

Commonwealth v. Roles, 116 A.3d 122, 125 (Pa. Super. 2015) (citations

omitted).

Pennsylvania Rule 6009 is designed to implement a defendant’s

constitutional right to a speedy trial and, inter alia, permits a defendant to

seek dismissal of the charges if trial is not commenced within 365 days of

the filing of a complaint. See id.; Commonwealth v. Goldman, 70 A.3d

874, 879 (Pa. Super. 2013), appeal denied, 85 A.3d 482 (Pa. 2014). The

“mechanical” 365-day deadline, however, must be adjusted by the following:

“Excludable time” is defined in [former] Rule 600(C) as the
period of time between the filing of the written complaint
and the defendant’s arrest, provided that the defendant

9
Because the complaints in this case were filed before July 1, 2013—the
effective date of the current version of Rule 600—we apply the former
version of the rule. See Roles, 116 A.3d at 124 n.4.

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could not be apprehended because his whereabouts were
unknown and could not be determined by due diligence;
any period of time for which the defendant expressly
waives Rule 600; and/or such period of delay at any stage
of the proceedings as results from: (a) the unavailability of
the defendant or the defendant’s attorney; (b) any
continuance granted at the request of the defendant or the
defendant’s attorney. “Excusable delay” is not expressly
defined in Rule 600, but the legal construct takes into
account delays which occur as a result of circumstances
beyond the Commonwealth’s control and despite its due
diligence.

Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa. Super. 2004)

(citations, footnote, and emphasis omitted). “If the defense . . . indicate[s]

approval or acceptance of the continuance, the time associated with the

continuance is excludable under Rule 600 as a defense request.” Id.

(citation omitted).

Instantly, the docket entries for April 27, 2012, listed the following

disposition of the Commonwealth’s request for continuance:

Advance Commonwealth request—Commonwealth
witness will be out of town for months due to death in
family; case can not go to trial on previously scheduled
date of 4/30. Defense stipulates time to next trial
listing can be ruled extendable. List next for jury
trial on earliest possible date of December 3, 2012 in
Rm. 1002 and for pretrial conference on 11/30/12 in
Rm. 1002.

See Docket, CP-51-CR-0006021, 11/12/14, at 11 (emphasis added).

Thus, Appellant’s argument on appeal ignores his counsel’s assent to

the continuance as “extendable” time. He presents no meaningful argument

to distinguish the principle that defense counsel’s assent is akin to a request

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for a continuance that constitutes “excludable time.” See Hunt, 858 A.2d at

1241. Accordingly, his reliance on the “excusable time” paradigm to

complain that the Commonwealth failed to exercise due diligence is

misplaced. See id. Further, Appellant does not argue the Commonwealth

acted in bad faith when it requested the continuance or misrepresented

Zangerl’s whereabouts or the duration of her unavailability. There is no

indication that Zangerl’s affairs abroad permitted her to be available for an

extended trial during the period of the challenged continuance.10 Thus, no

relief is due.

Appellant next contends the trial court erred in denying his request for

a mistrial when the Commonwealth, on redirect examination, presented

Gonzalez with a copy of the letter in which Appellant allegedly solicited

another inmate to kill Gonzalez. He initially asserts the examination of

Gonzalez with the letter was improper because the Commonwealth vouched

for the source and truth of the contents of the letter, i.e., that Appellant in

fact solicited of Gonzalez’s murder. Appellant’s Brief at 30. He also asserts

Gonzalez was incompetent to testify about the letter because he lacked

10
We note Appellant indicates the Commonwealth introduced an exhibit
purporting to be the Commonwealth’s request for a continuance at the May
7, 2012 Family Court hearing. However, Appellant did not include that
request in the certified record. Additionally, he does not indicate whether a
hearing determining his Rule 600 motion was held, and neither the record
nor his reproduced record contains a transcript of such a hearing.
Accordingly, Appellant’s arguments could also be deemed waived. See
Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa. Super. 2012).

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personal knowledge of it before trial. Id. at 31-32. These issues have been

waived.

As noted above, Gonzalez was a witness in CR-13166-2010 for the

solicitation of Zangerl’s murder, and the subject of the charges in CR-6021-

2011 for solicitation, intimidation, and retaliation. At trial, the

Commonwealth called Gonzalez as its first witness. During direct

examination, the Commonwealth questioned Gonzalez regarding Appellant’s

alleged request to arrange Zangerl’s murder, which Gonzalez had reported

to prison officials and a police detective. N.T. Trial, 1/8/14, at 31. Gonzalez

testified that he “made up a story” that Appellant “wanted me to do

something to somebody” and emphasized “[i]t was all a lie.”11 Id.

Appellant’s counsel cross-examined Gonzalez to bolster the credibility

of Gonzalez’s trial testimony. Gonzalez repeated hat he fabricated his report

11
Specifically, the Commonwealth, during direct examination confronted
Gonzalez with his prior, signed statement to Detective Joseph Baird. N.T.
Trial, 1/8/14 at 33. Gonzalez admitted he told the detective that “a guy
wants me to get their girlfriend or a guy dealt with.” Id. at 35. However,
he again explained he made up his prior statement because Appellant was
annoying him. Id. at 37. Gonzalez recanted his prior statements that
Appellant “told [him] he wanted somebody to get hurt” and “it[ was] his
wife.” Id. at 44-45. He also recanted his statement that Appellant offered
him “$50,000 to do the job.” Id. at 50. The Commonwealth obtained a
ruling that Gonzalez was an adverse witness and elicited his admission that
his preliminary hearing statement was consistent with his prior statement to
Detective Baird. Id. at 77-78, 94.

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to the detective because he did not like Appellant. Id. at 101. Gonzalez

insisted that Appellant did not solicit him to murder his wife. Id. at 101.

On redirect examination by the Commonwealth, the following

exchange occurred:

[Commonwealth]. Were you aware that one of the—

[Appellant’s counsel]: I’m going to object. That’s
outside the scope of cross-examination.

THE COURT: Overruled. I’ll allow it.

[Commonwealth]. Were you aware that one of the cases
that’s here today is for the allegations that [Appellant]
solicited another inmate to murder you?

[Gonzalez]. No, I didn’t.

[Commonwealth]. Is this the first time you’re hearing this?

[Gonzalez]. Yes, it is.

[Commonwealth]. How does that make you feel to hear
that?

[Appellant’s counsel]: Objection.

THE COURT: Overruled.

You may answer.

* * *

[Gonzalez]. Very shocked. Murder me. Is there proof of
that, ma’am?

[Commonwealth]. Yes. Your Honor, if this witness could
please be shown what’s previously been marked as C-42
for identification.

[Sidebar held off the record]

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[Commonwealth]. . . . You indicated that you were
shocked when I told you that this defendant put a murder
hit out on you in custody. Why is that?

[Appellant’s counsel]: Objection to the form of the
question. A murder hit?

THE COURT: Well, overruled.

[Appellant’s counsel]: Someone was hired to murder
him.

THE COURT: Rephrase the question.

[Commonwealth]. Sir, when I asked you if you were
aware that one of the allegations in this case is that this
defendant solicited another inmate to have you murdered,
you replied that you were shocked to hear that. Can you
explain why?

* * *

[Gonzalez]. This is news to me. I didn’t even know my
life was on a hit. I didn’t know that ma’am. Now you try
to kill me?

* * *

[Commonwealth]. Sir, hearing this new information, are
there any changes that you would have made to your
testimony today had you known this information before
taking the stand.

[Appellant’s counsel]: I’m going to object to the
testimony. I’m going to ask for a mistrial. May I see
the Court in chambers?

Id. at 103-05. The trial court excused the jury for the day.

Appellant’s counsel argued Appellant was entitled to a mistrial, noting

that he objected because the “subject matter brought up by the district

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attorney was not [a part] of cross-examination of this witness.” Id. at 107.

He asserted “what [the Commonwealth] did was [use] something that [it]

should have brought out on direct examination to obviously upset the

witness with the hopes now that he’ll change his testimony, and I’m

suggesting to the Court that that’s improper redirect and to do so is

inappropriate.” Id. The trial court denied the motion for mistrial. Id.

The following day, Gonzalez retook the stand for redirect examination,

adopted his prior statement to Detective Baird, and asserted his trial

testimony on direct and cross examination was false. N.T. Trial, 1/9/14, at

5-6. On recross-examination by Appellant’s counsel, Gonzalez again

admitted the falsity of the previous day’s testimony, but asserted he “was

coerced by [Appellant].” Id. at 7. Gonzalez further provided details

regarding Appellant’s alleged attempts to arrange for his wife’s murder. Id.

at 10-12, 19.

It is well settled that

[i]ssues not raised to the trial court are waived and cannot
be raised for the first time on appeal. “In order to
preserve an issue for review, a party must make a timely
and specific objection.” Also, an appellant may not raise a
new theory for an objection made at trial on his appeal.

Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003)

(citations omitted); see also Pa.R.A.P. 302(a).

As the record reveals, Appellant’s counsel requested a mistrial, arguing

(1) the scope of redirect examination was beyond the scope of cross-

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examination and (2) the Commonwealth should have presented the evidence

during direct examination. N.T. Trial, 1/8/14, at 107. Appellant’s present

claims—that the prosecutor impermissibly “vouched” for the truth of the

contents of the letter and Gonzalez was not competent to testify about the

letter—were not fairly included in his request for a mistrial. Accordingly,

those arguments are waived. See Duffy, 832 A.2d at 1136.

Appellant next contends that the above-recited exchange between the

Commonwealth and Gonzalez constituted improper redirect examination.

This issue falls within the scope of his objections and request for mistrial.

See id.; N.T. Trial, 1/8/14, at 107. Therefore, we will address the merits of

this claim.

It is well settled that:

“[t]he scope of redirect examination is largely within the
discretion of the trial court.” “An abuse of discretion is not
a mere error in judgment but, rather, involves bias, ill will,
partiality, prejudice, manifest unreasonableness, or
misapplication of law.” “Moreover, when a party raises an
issue on cross-examination, it will be no abuse of
discretion for the court to permit re-direct on that issue in
order to dispel any unfair inferences.”

Commonwealth v. Fransen, 42 A.3d 1100, 1177 (Pa. Super. 2012) (en

banc) (citations omitted).

Our review of the record reveals Appellant’s counsel, on cross-

examination, emphasized the incredibility of Gonzalez’s prior statements

implicating Appellant and bolstered the substance and credibility of his

retraction. N.T. Trial, 1/8/14, at 101. As the trial court noted, the

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Commonwealth’s subsequent confrontation of Gonzalez with the letter

purporting to solicit his murder tested the substance and credibility of the

recantation emphasized during cross-examination. See Trial Court Op.,

11/12/14, at 10. We discern no abuse of discretion in the trial court’s

rationale for overruling Appellant’s objection and request for a mistrial based

on the scope of redirect examination. See Fransen, 42 A.3d at 1177.

Appellant’s fourth contention is that the trial court erred in permitting

Zangerl to testify about incidents of domestic violence unrelated to the

charged offense dates of October 3, 2008, and December 3, 2008. We have

reviewed the entirety of Zangerl’s trial testimony and find Appellant’s

counsel did not object on that basis.12 See N.T. Trial, 1/9/14, at 62-63, 65,

67. Therefore, this claim is waived. See Pa.R.A.P. 302(a); Duffy, 832 A.2d

at 1136.

Appellant next contends the trial court erred in refusing his request for

a mistrial when Zangerl referenced Appellant’s arrest on unrelated charges.

The record provides the following context to this claim. Before Zangerl was

called to testify, the Commonwealth sought to admit prior bad acts evidence,

namely, that Appellant was arrested and charged with “threatening with a

12
Although Appellant’s counsel did object throughout the Commonwealth’s
direct examination of Zangerl, he did so to “the form of the question,” see,
e.g., N.T., 1/9/14, at 64, “leading,” id. at 66, and improper opinions or
speculation in her responses, id. at 66.

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firearm.”13 N.T. Trial, 1/9/14, at 46. The Commonwealth argued the

evidence provided a history of the case because Zangerl had seen Appellant

with the gun, which, in turn, explained “why she was threatened by

[Appellant].” Id. Counsel for the Commonwealth and Appellant agreed that

a motion to admit prior bad acts evidence was litigated before they became

involved in this case. Id. at 45-46. The court observed there was no

indication of other crimes evidence in the Commonwealth’s motion in limine

and ruled the testimony inadmissible. The Commonwealth stated it would

advise Zangerl not to mention that case. Id. at 48-49.

However, the following exchange occurred during the Commonwealth’s

direct examination of Zangerl:

[Commonwealth]: Do you remember what drove you to
the point that you decided to contact the police?

[Zangerl]: Yes. It was almost a year later [Appellant] had
been arrested for an independent event and it was the first
two days where he wasn’t constantly around. I bailed him
out—

[Appellant’s counsel]: Your Honor, may we see the
Court at sidebar . . . .

Id. at 68.

13
We take notice that Appellant was charged with violations of the Uniform
Firearms Act, simple assault, recklessly endangering another person, and
terroristic threats in MC-51-CR-0049276-2008, but was acquitted. The date
of the not guilty verdicts in that case, August 13, 2009, was referenced by
Appellant’s counsel at trial. See N.T. Trial, 1/8/14, at 99. We also observe
the Municipal Court case was filed on October 2, 2008.

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At the sidebar conference, Appellant’s counsel requested a mistrial

because the testimony violated the court’s in limine ruling and was “purely

prejudicial.” Id. at 68-69. The Commonwealth noted that Appellant’s

counsel raised the issue of Appellant’s prior arrest and acquittal when cross-

examining Gonzalez. Id. at 69; see also N.T. Trial, 1/8/14, at 99. The

Commonwealth stated it had complied with the trial court’s order to caution

Zangerl not to reference that matter. N.T. Trial, 1/9/14, at 69. Further, the

Commonwealth asserted, “[I]t was not intentional or malicious.” Id. The

court denied the request for a mistrial. Id. at 70. Appellant’s counsel stated

he did not want a curative instruction. Id.

It is well settled that

the trial court is vested with discretion to grant a mistrial
whenever the alleged prejudicial event may reasonably be
said to deprive the defendant of a fair and impartial trial.
In making its determination, the court must discern
whether misconduct or prejudicial error actually occurred,
and if so, . . . assess the degree of any resulting prejudice.

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (citation

and quotation marks omitted). This Court reviews an order denying a

mistrial for an abuse of discretion. Id.

Instantly, the trial court observed the testimony was improper in light

of its ruling. Trial Ct. Op., 11/12/14, at 12. However, it concluded the

testimony “did not inure prejudice to Appellant such that it would deprive

him of a fair trial.” Id. We have reviewed the entire trial transcript and

agree with the trial court that the passing reference to the arrest was not so

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prejudicial as to require the declaration of a mistrial. See Judy, 978 A.2d at

1019.

Appellant next contends the letter found by prison officials was

insufficient to sustain his convictions in CR-6021-2011 for solicitation of

Gonzalez’s murder and the related offenses. Appellant’s Brief at 45-46. He

asserts there was no “supporting evidence to connect” him to the document

and thus prove each element of solicitation to commit Gonzalez’s murder.

Id. at 46. Appellant does not discuss the elements of the offense, but

emphasizes that “the document was undated, vague, unsigned, and without

a specific intended recipient.” Id.

Our standards of reviewing a challenge to the sufficiency of the

evidence are well settled:

Our standard when reviewing the sufficiency of the
evidence is whether the evidence at trial, and all
reasonable inferences derived therefrom, when viewed in
the light most favorable to the Commonwealth as verdict[-
]winner, are sufficient to establish all elements of the
offense beyond a reasonable doubt. We may not weigh
the evidence or substitute our judgment for that of the
fact-finder. Additionally, the evidence at trial need not
preclude every possibility of innocence, and the fact-finder
is free to resolve any doubts regarding a defendant’s guilt
unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the
combined circumstances. When evaluating the credibility
and weight of the evidence, the fact-finder is free to
believe all, part, or none of the evidence. For purposes of
our review under these principles, we must review the
entire record and consider all of the evidence introduced.

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Commonwealth v. Bohonyi, 900 A.2d 877, 881-82 (Pa. Super. 2006)

(citation omitted).

Section 902 of the Crimes Code defines solicitation as follows:

A person is guilty of solicitation to commit a crime if with
the intent of promoting or facilitating its commission he
commands, encourages or requests another person to
engage in specific conduct which would constitute such
crime or an attempt to commit such crime or which would
establish his complicity in its commission or attempted
commission.

18 Pa.C.S. § 902(a).

Instantly, the Commonwealth presented the following evidence

regarding the letter purportedly soliciting the murder of Gonzalez. The letter

was found during a search of a cell shared by Alexander Danazina and

Antonio Peterson. Danazina denied knowing about the letter, where it was

from, or why it was in his cell. N.T. Trial, 1/13/14, at 9, 12. He averred a

prison official planted the letter during a search of his cell. Id. at 22.

Peterson also denied seeing the letter before its discovery by prison

officials. Id. at 33. The Commonwealth confronted Peterson with his

January 7, 2011 statement to Detective Christopher Casee. In that

statement, Peterson alleged Danazina told him “the Iraqi boy in 32 cell was

going to have someone tucked.” Id. at 47. Peterson identified the “Iraqi

boy” as “Mike,” as having “a long name” beginning with a “P,” and as the

“only white guy” in “32 cell.” Id. at 68-69. Peterson, on February 14, 2011,

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identified a picture of Appellant as the individual he previously described.

Id. at 77.

Detective Casee subsequently read the subject letter into the record:

Yo, I already hollad (sic) at that bitch before we went to
court and he gave his word that he will say it’s not me and
he would not point me out and when we went to court all
of a sudden bitch point me out in courtroom and testified
against me one hour long. Real shit. That bitch was a
whole hour on the stand. They already charge me with
intimidating a witness. Yo, make sure your man make him
sign a counter affidavit. Let main man write the affidavit
with his own handwriting, you understand? And then send
him out. I mean, you know how, fire rescue.[14] Point
blank rats die slow. PP No. 868683. Yo, I do not know
how to write his name. Luis Gonzalez. I think this is how
as (sic) supposed to be written. Correct me when I’m
wrong. PP number is correct. He is on X-1 cell 23. That I
know for fact. Yo, I do not here (sic) much time. Yo, in
the affidavit he went in my papers and made up that story
up to get a deal. You feel me? Do you feel me? That rat
shit is out of order. Loyalty over everything. Real
recognize real. Kick back ASAP. Don’t let me wait you I'm
stressed.

Id. at 92.

Officer Kevin Dwyer was qualified as an expert in handwriting analysis.

Id. at 116. Officer Dwyer obtained numerous documents seized from

Appellant’s cell under a search warrant, as well as the above letter. Id. at

118, 120. The officer compared the handwriting on the documents and

concluded the letter was written by Appellant. Id. at 124.

14
The Commonwealth previously elicited testimony that a “fire rescue . . .
means somebody get hurt.” N.T. Trial, 1/13/14, at 70.

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Following our review, and mindful of the standard of review, we find

no merit to Appellant’s argument that the evidence was insufficient for the

jury to find he authored the letter. The text of the letter provided

circumstantial evidence that it was written after Appellant was charged with

intimidation of a witness and Gonzalez testified against him at a court

proceeding. Moreover, the phrase “rats die slow” was not so vague that the

jury had to speculate regarding Appellant’s intent. Similarly, there was

evidence for the jury to infer that the letter was received by Danazina.

Thus, no relief is due.

Appellant next challenges the sufficiency of the evidence in CR-9772-

2009 and CR-9774-2009 related to threats and assaults against Zangerl. He

argues Zangerl failed to specify when the incidents occurred and the

Commonwealth’s evidence did not prove the dates of the charges.

Appellant’s Brief at 47. For the reasons that follow, we find this issue

waived.

Preliminary, we note the record reveals confusion regarding the dates

of the offenses in CR-9772-2009 and CR-9774-2009. The complaints and

informations listed December 3, 2008, as the offense date in CR-9772-2009

and October 3, 2008, as the offense date in CR-9774-2009. However, at the

March 11, 2011 hearing to consolidate CR-9772-2009, CR-9774-2009, and

CR-13166-2010, the Commonwealth averred the assaults against Zangerl

“all occurred on one day” but “in two different police districts.” N.T., Mot. to

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Consolidate/Mot. to Withdraw, 3/11/11, at 4. The Commonwealth, however,

then proceeded to trial as if the offenses in CR-9772-2009 and CR-9774-

2009 occurred on two separate days. See Commonwealth’s Trial

Memorandum at 3.

At trial, Zangerl testified in relevant part as follows. The first incident

of physical abuse occurred in her daughter’s presence sometime before

November 2007. N.T., 1/9/14, at 64. Approximately a year later, Appellant

was arrested for the “independent event”—presumably, the firearms case

discussed above. Id. at 68. He was away for a couple days and came back

in a “very agitated” state. Id. at 71.

After Appellant’s return, Zangerl and Appellant planned to attend a

“meeting” in downtown Philadelphia. Id. at 72. Appellant picked up Zangerl

at the University of Pennsylvania and took her home. Id. At her home,

Appellant accused her of undermining his immigration status and “launched

a fairly severe physical assault,” pushing her over a car seat in the house

and threatening to call his friends in Austria to have her mom killed. Id. at

72-73. He pinned her against a wall, choked her, and kneed her in her neck

and underneath her ribs. Id. at 73. Appellant then demanded she attend

the meeting. Id. at 74. They drove downtown, and the meeting “appeared

to have gone fairly well.” Id. However, when driving back toward the

University of Pennsylvania, Appellant “wound himself up in more and more

of a furry [sic]” and attacked her. He elbowed and “slammed” her, twisted

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her arm saying he would break it, and “slammed” her against the window.

Id. She returned to work and arranged to stay at a coworker’s apartment.

Id. at 75-76. Appellant discovered where she was and tried to break into the

building, at which time a third party called the police. Id. at 76.

The next day, a Saturday, Zangerl filed for an emergency protection

order. Id. at 77. She then filed a police report regarding these incidents on

December 8, 2008. Id. The Commonwealth marked the December 8, 2008

police report as an exhibit. It adduced no additional evidence regarding

when Zangerl sought the emergency protection order.15

At the close of the Commonwealth’s case, Appellant raised motions for

judgment of acquittal but did not challenge any of the charges in CR-9772-

2009 and CR-9774-2009. See N.T. Trial, 1/15/14, at 3-7. Further,

Appellant did not object when the trial court instructed the jury on the

elements of the relevant crimes in CR-9772-2009 and 9774-2009, but did

not refer to the alleged dates of the offense. Id. at 35-36, 37-42.

During its deliberations, the jury requested a clarification regarding the

dates of offenses in CR-9772-2009 and CR-9774-2009. The trial court

recited the jury’s question as follows: “Does [CR-9772-2009] correspond to

the incident in the car? Or does this bill pertain to the incident at the

friend’s house? Looking for clarification on which events pertain to [CR-

15
We note Appellant’s exhibit in support of his Rule 600 claim indicates an
emergency protection from abuse was filed in Family Court on October 6,
2008. See Docket, Zangerl v. Pouliczek, 0809V8012, 2/25/13, at 1.

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J.A25037/15

9772-2009 and CR-9774-2009].” Id. at 54. The Commonwealth informed

that court that CR-9772-2009 “is the event dated 12/3/2008. That’s the

incident in the car.” Id. It further averred that CR-9774-2009 “was dated

10/3/2008. That’s the incident that took place at the house . . . pushing her

over a seat of a car that was in the house.” Id. Appellant’s counsel did not

object to the Commonwealth’s assertions regarding the time of the offenses.

The trial court, however, did not immediately answer the question, and

deliberations were delayed for inclement weather. On the next full day of

deliberations, Appellant’s counsel averred that Appellant “was in custody

from 11/19/08” and requested that the charges in CR-9772-2009, which

bore the offense date of December 3, 2008, be “stricken.” N.T. Trial,

1/23/14, at 5. The Commonwealth objected noting Appellant did not adduce

evidence of his incarceration. It also suggested October 3rd and December

3rd were not the dates of the incidents, but the dates when Zangerl reported

the incidents. Id. at 5. The court denied Appellant’s motion to strike the

charges in CR-9772-2009, and answered the jury’s question as follows: “As

to the bill ending in 9772-2009 that relates to the alleged car incident. As to

the bill ending in 9774, that relates to the alleged incident at the wife’s

house.” Id. at 8. The jury returned three hours later with its verdicts.

Thus, the record evinces the trial court elected to clarify the confusion

regarding the dates of the offenses as charged and as proved at trial by

charging the jury to render verdicts without references to the dates. Our

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J.A25037/15

review reveals that the charges in CR-9772-2009 and CR-9774-2009 should

have listed an offense date bearing the same date, a fact which the

Commonwealth concedes in its appellee’s brief.

In Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), the

Pennsylvania Supreme Court held, “A criminal prosecution . . . requires

proof beyond a reasonable doubt that the accused committed the offense

charged at the time specified within the indictment.” Id. at 1170. However,

the Pennsylvania Supreme Court has also acknowledged that “[i]n general,

the Commonwealth need not prove that the crime occurred on the date

alleged in the indictment, except where the date is an essential issue in the

case, e.g., where the defendant presents an alibi defense.”

Commonwealth v. Young, 748 A.2d 166, 182 (Pa. 1999) (holding “the

trial court did not err in instructing the jury that they could find [defendant]

guilty even if they found that the murder took place on a date other than

that alleged in the indictment” where Commonwealth “eviscerated”

defendant’s alibi defense). Similarly, when addressing the effect of a

variance between a date charged and that proven at trial, this Court has

held, “Unless a variance could mislead the defendant at trial, impairs a

substantial right, or involves an element of surprise that would prejudice the

defendant’s efforts to prepare a defense, it is not fatal.” Commonwealth v.

Hacker, 959 A.2d 380, 390 (Pa. Super. 2008) (citation omitted), rev’d on

other grounds, 15 A.3d 333 (Pa. 2011).

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In light of the foregoing, we reiterate:

In an appellate brief, parties must provide an
argument as to each question, which should include
a discussion and citation of pertinent authorities.
Pa.R.A.P. 2119(a). This Court is neither obliged, nor
even particularly equipped, to develop an argument
for a party. To do so places the Court in the
conflicting roles of advocate and neutral arbiter.
When an appellant fails to develop his issue in an
argument and fails to cite any legal authority, the
issue is waived.

Moreover, “mere issue spotting without analysis or legal
citation to support an assertion precludes our appellate
review of a matter.”

In re S.T.S., Jr., 76 A.3d 24, 42 (Pa. Super. 2013) (some citations

omitted), appeal denied, 91 A.3d 163 (Pa. 2014).

Instantly, Appellant’s argument on this issue consists of two

paragraphs that amount to less than one page. See Appellant’s Brief at 46-

47. He cites Karkaria for the proposition that a conviction may not rest

upon speculation or conjecture. See id. at 46. His argument, however,

does not address the record or threshold legal issues regarding the trial

court’s resolution of the variance between the charging instruments and the

proofs at trial. See id. at 46-47. Accordingly, this failure to present an

argument in support of his request for relief results in waiver. See In re

S.T.S., Jr., 76 A.3d at 42.

Appellant’s final claim is that the trial court abused its discretion by

rejecting a plea agreement that was presented to the court immediately

before trial. He asserts the court erred by failing to place its reasons for the

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rejection on the record and argues the court displaced an essential

prosecutorial function by rejecting a plea agreement without a sound basis.

Appellant’s Brief at 51-52. In support, Appellant cites United States v.

Ammidown, 497 F.2d 615 (D.C. Cir. 1973), and State v. Bilse, 581 A.2d

518 (N.J. Super Ct. Law Div. 1990).16 Id. at 49. He claims he was forced to

go to trial against his will and suggests he was entitled to the benefit of

Commonwealth’s agreement on charges, which would have reduced his

maximum sentencing exposure to fifty-one years. Id. at 50-51; see also

N.T., 1/7/14, at 8.

The following principles govern our review.

[T]he trial court has broad discretion in approving or
rejecting plea agreements. The court may reject the plea
bargain if the court thinks it does not serve the interests of
justice. If the court is dissatisfied with any of the terms of
the plea bargain, it should not accept the plea; instead, it
should give the parties the option of proceeding to trial
before a jury.

Commonwealth v. Parsons, 969 A.2d 1259, 1268 (Pa. Super. 2009).

Pennsylvania Rule of Criminal Procedure 590(A)(3) states: “The judge

may refuse to accept a plea of guilty or nolo contendere, and shall not

accept it unless the judge determines after inquiry of the defendant that the

16
We recognize that federal court decisions and decisions from other
jurisdictions are not binding on this Court, but we may adopt their analysis
as it appeals to our reason. See Commonwealth v. Arthur, 62 A.3d 424,
429 n.9 (Pa. Super.), appeal denied, 78 A.3d 1089 (Pa. 2013);
Commonwealth v. Vergilio, 103 A.3d 831, 835 n.9 (Pa. Super. 2014),
appeal denied, 114 A.3d 416 (Pa. 2015).

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plea is voluntarily and understandingly tendered. Such inquiry shall appear

on the record.” Pa.R.Crim.P. 590(A)(3). Neither Rule 590 nor its comments

require a statement of reasons for rejecting a plea agreement.

There is a dearth of case law in Pennsylvania regarding the procedural

and substantive requirements for a court to reject a plea agreement. Under

Rule 590(A)(3), a trial court must reject an agreement if it appears the plea

is not knowingly, intelligently, or voluntarily entered. Pa.R.Crim.P.

590(A)(3). However, the United States Supreme Court has recognized that

“defendants have ‘no right to be offered a plea . . . nor a federal right that

the judge accept it.”” Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012)

(citation omitted). The trial court’s authority to reject a plea agreement is

thus broad, but bound by the precept that a court may not do so out of

“bias, ill will, partiality, prejudice, manifest unreasonableness, or

misapplication of law.” Cf. Parsons, 969 A.2d at 1268; Commonwealth v.

Hebert, 85 A.3d 558, 562 (Pa. Super. 2014).

Instantly, the following exchange occurred in court, following a lengthy

colloquy on January 7, 2014, and with a jury pool assembled outside:

THE COURT: First of all, do you wish to proceed with your
guilty pleas?

[Appellant]: I need to talk to the embassy first. If they
can take and deport me immediately.

THE COURT: Sir, we have a jury panel ready to go. So we
are going to—either if you want to proceed with the guilty
plea or we’ll proceed to trial.

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[Appellant’s counsel]: Your Honor, my client wishes me to
contact the embassy to see if they can grant him
immediate deportation.

THE COURT: Okay. We’re going to trial. Bring the panel
in.

* * *

THE COURT: All right. Sir, you’re in a courtroom. We are
proceeding. We have a jury. We are going to trial.

[Appellant]: Okay.

THE COURT: All right.

N.T., 1/7/14, at 21.

The trial court did not provide an explanation of its reasons for

rejecting the plea either at the hearing or in its Pa.R.A.P. 1925(b) statement.

However, under the manifest circumstances set forth in the record, we find it

apparent that the trial court’s decision to reject the plea was not the product

of “bias, ill will, partiality, prejudice, manifest unreasonableness, or

misapplication of law.” See Parsons, 969 A.2d at 1268; see also Hebert,

85 A.3d at 562. The court repeatedly emphasized the case was ready for

trial. The Commonwealth informed the court that Zangerl had flown in from

abroad for trial. Appellant steadfastly refused to enter a plea before learning

whether he could obtain immediate deportation. The obvious gamesmanship

engaged in by Appellant cannot be condoned.17 Thus, no relief is due.

17
We emphasize that it was Appellant’s desire for immediate deportation.
Therefore, this is not a case where a defendant was unaware that his plea

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Lastly, we address sua sponte the sentences imposed in CR-6021-

2011, for crimes committed against Gonzalez, specifically, the five and a half

to fifteen years’ imprisonment for intimidation of a witness (subsection

(a)(2)) and the consecutive five and a half to eleven years’ imprisonment for

intimidation of a witness (subsection (a)(3)). We may address sua sponte

the propriety of the sentences for two different subsections of the same

statute based on the same conduct as a legality-of-sentence challenge. See

Commonwealth v. Shannon, 608 A.2d 1020, 1024 (Pa. 1992);

Commonwealth v. Provenzano, 50 A.3d 148 (Pa. Super. 2012).

Commonwealth v. Williams, 871 A.2d 254, 262 (Pa. Super. 2005).

We consider whether the General Assembly intended to the definitions

of the crime to create alternative bases of liability or authorize separate and

consecutive punishments for each subsection. Cf. Commonwealth v.

Rhoads, 636 A.2d 1166, 1168 (Pa. Super. 1994).

Section 4952 defines the crime of intimidation as follows:

(a) Offense defined.--A person commits an offense if,
with the intent to or with the knowledge that his conduct
will obstruct, impede, impair, prevent or interfere with the
administration of criminal justice, he intimidates or
attempts to intimidate any witness or victim to:

(1) Refrain from informing or reporting to any law
enforcement officer, prosecuting official or judge
concerning any information, document or thing relating
to the commission of a crime.

carried immigration consequence and sought advice. See Padilla v.
Kentucky, 559 U.S. 356 (2010).

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(2) Give any false or misleading information or
testimony relating to the commission of any crime
to any law enforcement officer, prosecuting
official or judge.

(3) Withhold any testimony, information,
document or thing relating to the commission of a
crime from any law enforcement officer,
prosecuting official or judge.

(4) Give any false or misleading information or
testimony or refrain from giving any testimony,
information, document or thing, relating to the
commission of a crime, to an attorney representing a
criminal defendant.

(5) Elude, evade or ignore any request to appear or
legal process summoning him to appear to testify or
supply evidence.

(6) Absent himself from any proceeding or
investigation to which he has been legally summoned.

18 Pa.C.S. § 4952(a)(1)-(6) (emphasis added).

Instantly, the text of the statute evinces an intent to impose liability

based on the actus reus—i.e., “intimidates or attempts to intimidate”—

undertaken with required mens reus—i.e., knowledge that “his conduct will

obstruct, impede, impair, prevent or interfere with the administration of

criminal justice.” See 18 Pa.C.S. § 4952(a). Subsections (a)(1) through

(a)(6), in turn, list a range of alternative results that give rise to the offense.

Appellant’s convictions in CR-6021-2011 under 18 Pa.C.S. 4952(a)(2) and

(3) arose from a single act, namely, his letter to Danazina regarding

Gonzalez. Therefore, we conclude the separate sentences under subsection

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(a)(2) and (a)(3) violate double jeopardy and must be vacated. See

Provenzano, 50 A.3d at 157; Williams, 871 A.2d at 262. Because this

affects the trial court’s sentencing scheme, we vacate the judgment of

sentence and remand for resentencing. See Provenzano, 50 A.3d at 157.

Convictions affirmed. Judgment of sentence vacated. Case remanded.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/24/2015

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