J. A06008/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
TIMOTHY ALLEN ROWBOTTOM :
:
Appellant :
: No.1009 MDA 2015
Appeal from the Judgment of Sentence April 21, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000725-2014
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 06, 2016
Appellant, Timothy Allen Rowbottom, appeals from the Judgment of
Sentence entered April 21, 2015. After careful review, we affirm on the
basis of the trial court’s Opinion, in which the trial court found that (i)
Appellant failed to establish that the allegedly exonerating evidence now in
his possession was after-discovered evidence he could not have obtained
prior to trial using reasonable diligence; (ii) the trial court properly denied
Appellant’s request for a continuance; and (iii) Appellant failed to preserve
any objection to the investigating detective’s testimony at trial.
The trial court’s Rule 1925(a) Opinion includes a thorough and
complete narrative of the facts and procedural history in this case, and we
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adopt its recitation for purposes of this Appeal. See Trial Court Opinion,
filed 10/6/15, at 1-6. We summarize as follows.
Appellant was charged with one count of Theft by Receiving Stolen
Property1 after an eight-foot fiberglass rooster statue was recovered from a
warehouse building that served as Appellant’s residence and place of
business. Id. at 3-4. The owner of a local restaurant and bar had reported
the rooster stolen from the rear parking lot in late December of 2011. Id.
At trial, Appellant’s former wife testified that Appellant told her he paid
someone $100 to steal the rooster from a bar. Id. at 4-5.
On April 14, 2015, a jury in the Dauphin County Court of Common
Pleas convicted Appellant of Theft by Receiving Stolen Property. On April
21, 2015, the Honorable Richard A. Lewis sentenced Appellant to a $1,500
fine and twenty-four months of intermediate punishment consisting of a
combination of work release, house arrest, and probation.
Appellant filed a Post-Sentence Motion for a New Trial Pursuant to
Pa.R.Crim.P. 720(C) and a Motion to Stay Execution of Sentence on May 20,
2015. Appellant requested a new trial, claiming to have a newly-discovered
receipt that purported to prove he purchased the rooster. On June 2, 2015,
Judge Lewis denied Appellant’s Post-Sentence Motion.
Appellant filed a Notice of Appeal on June 11, 2015. Upon Judge
Lewis’s Order, Appellant filed a Pa.R.A.P. 1925(b) Statement raising ten
1
18 Pa.C.S. § 3925(A)
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errors. In his Brief to this Court, Appellant has re-worded his claims into the
following three issues:
1. In a trial for Theft By Receiving Stolen Property, where it was
discovered for the first time after trial that the defendant's
accountant had a receipt for the purchase of the alleged stolen
property (thereby making him a bona fide purchaser for value)
and where the receipt for the rooster statue from his accountant
was unavailable due to the accountant's various health-related
issues, did the trial court err in denying Rowbottom's post-
sentence motion for a new trial on after-discovered evidence?
2. When the defendant immediately, prior to trial, complained in
open court that he was feeling "little foggy" that he didn't "really
feel comfortable proceeding" due to following his doctor's post-
surgery orders to take a narcotic opioid for pain, where he
complained that he was not of full cognitive function due to this,
where there was no finding at the time of trial that his request
for delay would prejudice the government, and where the record
is devoid of any questioning by the Court as to the nature, the
extent or the existence of any impairment, did the trial court err
in denying a continuance when Rowbottom could not participate
fully in his own defense with a clear mind?
3. In a jury trial case where an experienced prosecutor asked an
experienced detective "Did he provide any explanation at all [as
to where he got the rooster statue]?" and where the experienced
detective answered "...he told us that he had been in contact
with his attorney and he was advised to surrender himself but
not talk to us. So we didn't question him any further" and then
later in the prosecutor's closing argument that prosecutor
repeatedly referenced that post- arrest silence, did the trial court
err in not granting the objection of trial counsel and by allowing
into evidence those statements and references to his post- arrest
federal and state constitutional rights against self-incrimination.
Appellant’s Brief at 6-8.
We begin our review by considering the timeliness of Appellant’s Post-
Sentence Motion and Notice of Appeal. See generally Commonwealth v.
Trinidad, 96 A.3d 1031, 1033-35 (Pa. Super. 2014) (discussing timeliness
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requirements for a Post-Sentence Motion and Notice of Appeal). Ordinarily
an appellant must file a Post-Sentence Motion within ten days of the
imposition of sentence. See id. at 1034. See also Pa.R.Crim.P. 720(A)(1).
However, this Court has held that a Post-Sentence Motion filed more than
ten days after sentencing will nonetheless be considered timely where
Appellant is “alleging after-discovered evidence pursuant to Rule 720(C)[.]”
See Trinidad, 96 A.3d at 1034 (emphasis added).
In the instant case, Appellant filed his Post-Sentence Motion more than
ten days after his sentence was imposed. Importantly, however, Appellant’s
Motion raised an after-discovered evidence claim pursuant to Rule 720(C),
requesting a new trial on the grounds he had discovered a receipt that would
prove the rooster was purchased, not stolen. Although Appellant’s after-
discovered evidence may ultimately fail on the merits, we agree with the
trial court’s determination that Appellant’s allegation of newly discovered
evidence makes this appeal timely. See Trial Court Opinion, at 12.
In his first issue, Appellant argues that the trial court erred in denying
him a new trial based on the newly discovered evidence of a receipt
purporting to prove Appellant was a bono fide purchaser. Although we agree
with Appellant that the alleged receipt for the purchase of the rooster statute
could persuade the fact-finder that there was no fowl play, we nonetheless
find Appellant is not entitled to relief on this issue.
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To prevail on a motion for a new trial on the basis of after-discovered
evidence, Appellant was required to produce admissible evidence, discovered
after trial, that:
(1) could not have been obtained prior to the end of trial with
the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative evidence; (3) is not merely
impeachment evidence; and (4) is of such a nature that its use
will likely result in a different verdict on retrial.
Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013) (citation
omitted). As the reviewing court, “this Court affirms unless the
determination constitutes abuse of discretion.” Id.
Based on our review of the record, the arguments presented by
Appellant, and the relevant case law and statutes, we agree with the trial
court that Appellant failed to establish that the evidence was in the nature of
after-discovered evidence. See Trial Court Opinion, at 10-14. Appellant
was aware of the receipt prior to trial and knew that his accountant had the
receipt in his possession. Id. at 14. Moreover, Appellant failed to exercise
due diligence in obtaining the receipt. Id. at 14-16. Even if we were to
accept Appellant’s assertion that his accountant’s illness made him
unavailable in the three months prior to trial, Appellant presents no evidence
which would explain why he was not able to obtain the receipt in the nine
months between when he was charged with theft and when his accountant’s
illness rendered him unavailable. Id.
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Accordingly, we grant no relief on this issue. Furthermore, as the trial
court has thoroughly addressed the issue in its opinion, we adopt the trial
court’s discussion as dispositive of Appellant’s claim. Id. at 10-16.
In his second issue, Appellant argues that the trial court should have
granted his motion for a continuance when Appellant informed the court that
he was on opioid pain medication and therefore did not feel comfortable
proceeding. “It is well settled that the grant of a continuance rests within
the sound discretion of the trial court and that the decision to deny the
continuance will not be reversed unless a clear abuse of discretion is shown.”
Commonwealth v. Melendez, 474 A.2d 617, 619 (Pa. Super. 1984)
(footnote and citation omitted).2 See also Pa.R.Crim.P. 106(D) (governing
continuance requests by a defendant).
Based on our review of the record, the arguments presented by
Appellant, and the relevant case law and statutes, we find no abuse of
discretion in the trial court’s denial of a continuance. As the trial court
notes, although Appellant had advance notice that he would be taking
narcotics, Appellant waited until the morning of trial to request a
continuance. See Trial Court Opinion, at 6-8. Furthermore, the trial court
2
In Melendez, supra, at 619, this Court affirmed a trial court’s denial of a
continuance where the appellant, suffering from heroin withdrawal,
requested a continuance the day before trial. Id. In that case, the trial
court was able to observe the appellant’s testimony and demeanor and
determined that she was “able to participate knowingly and intelligently” in
spite of her claims that the heroin withdraw was causing physical illness and
cognitive impairment. Id.
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was able to observe Appellant prior to jury selection, and found that the
answers Appellant gave to questions on the record “leave no doubt that he
clearly understood” the proceedings. Id. As the trial court has thoroughly
addressed the issue in its opinion, we adopt the trial court’s discussion as
dispositive of Appellant’s claim.
In his final issue, Appellant’s Brief to this Court argues that the trial
court improperly permitted the Commonwealth and its witnesses to discuss
Appellant’s post-arrest silence. This claim does not explicitly appear
anywhere in Appellant’s Rule 1925(b) Statement. Instead, as best as this
Court can determine, Appellant attempted to raise this claim in his Rule
1925(b) Statement with the following language: “The court erred with
respect to the testimony at N.T. 61; see also N.T. 80:4-11.”
Our Supreme Court has held that “[a]ny issues not raised in a [Rule]
1925(b) statement will be deemed waived.” Commonwealth v. Castillo,
888 A.2d 775, 780 (Pa. 2005) (quoting Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998). Similarly, issues that are only generally raised in an
overly broad Rule 1925(b) Statement will be deemed waived. See also
Pa.R.A.P. 1925(b)(4)(ii) (“The [1925(b)] Statement shall concisely identify
each ruling or error that the appellant intends to challenge with sufficient
detail to identify all pertinent issues for the judge.”). A Rule 1925(b)
statement “which is too vague to allow the court to identify the issues raised
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on appeal is the functional equivalent of no [Rule 1925(b)] Statement at all.”
Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006).
In the instant case, the trial court reviewed the section of the record at
issue, but was not able to determine with any specificity the basis for
Appellant’s objection to the testimony at issue. The trial court opined in its
Rule 1925(a) Opinion that this issue is waived, and, therefore, did not
substantively address the issue. Based on our independent review of the
record, the arguments presented by Appellant, and the relevant case law
and statutes, we agree with the trial court that Appellant failed to preserve
this issue for our review. See Trial Court Opinion, at 8-9. Furthermore, the
trial court has thoroughly addressed the issue of waiver in its opinion, and
we adopt the trial court’s discussion as dispositive of Appellant’s claim. See
id. Accordingly, no relief is due.
Therefore, after a careful review of the parties’ arguments, and the
record, we affirm on the basis of the trial court Opinion.
The parties are instructed to attach a copy of the trial court’s opinion
to all future filings.
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Judgment of Sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2016
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