J-S34027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KEVIN WILSON
Appellant No. 3537 EDA 2014
Appeal from the Judgment of Sentence Dated July 17, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008471-2011
CP-51-CR-0008472-2011
BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED SEPTEMBER 27, 2017
Appellant, Kevin Wilson, appeals from the judgment of sentence
imposed after the trial court convicted him of aggravated assault,
conspiracy, simple assault, and recklessly endangering another person.1 We
affirm.
Appellant’s convictions arose from an altercation in a Philadelphia
neighborhood, where two brothers, Jesus Nieves and Alberto Nieves, were
attacked and beaten by a group of men that included Appellant “and at least
two or three” others. N.T., 5/15/14, at 11, 27. Christina Koch testified that
Jesus Nieves was her fiancé, and she and Jesus Nieves lived with their
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 2702, 903, 2701 and 2705, respectively.
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children, as well as Ms. Koch’s brother, William Keith. Jesus Nieves’ brother,
Alberto, came to their home on the evening of June 15, 2011. Ms. Koch
explained the ensuing altercation:
My brother William was selling drugs on the porch next door to
my house. And we have children. And I don’t approve of my
children seeing that. So we kept asking him not to do it there.
And he proceeded to. And that’s what it was all about.
Id. at 30. That evening, Alberto Nieves confronted William Keith about the
drug dealing. Alberto Nieves subsequently exited the home and was
attacked by the group of men who “kicked and stomped” him and rendered
him unconscious. Id. at 11, 14, 22, 80. Alberto Nieves sustained a
fractured skull, a broken jaw, and permanent scarring. N.T., 5/14/14, at 66.
Jesus Nieves, too, exited the home and was beaten unconscious. Id. at
106. He stated that others, “at least five,” were involved in the assault, but
Appellant was the main assailant. Id. at 111.
On July 17, 2014, the trial court sentenced Appellant to 6 to 12 years’
incarceration. Appellant filed a post-sentence motion seeking a new trial on
the basis that the verdict was against the weight of the evidence. The trial
court denied the motion on November 20, 2014. Appellant filed a timely
appeal on December 18, 2014.
Appellant presents three issues for our review:
1. Did the trial court err when it denied the defense motion to
dismiss pursuant to Pa.R.Crim.P. 600(A) as, even after taking
excludable time into consideration, Appellant Kevin Wilson
was not brought to trial within 365 days of the filing of the
criminal complaint (June 15, 2011)?
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2. Did the trial court err when it found that the Commonwealth
disproved the defense of self-defense/defense of others
beyond a reasonable doubt?
3. Did the trial court err when it found Appellant Kevin Wilson
guilty of the criminal offense of criminal conspiracy as there
was insufficient evidence to prove this crime beyond a
reasonable doubt?
Appellant’s Brief at 2.
With regard to Appellant’s first issue asserting that he was denied a
prompt trial as mandated by Pa.R.Crim.P. 600, we note that a written
motion to dismiss is absent from the record. Commonwealth v. Brock, 61
A.3d 1015, 1019 (Pa. 2013) (to preserve a claim for relief under Rule 600,
an appellant must file and serve upon the Commonwealth a written motion
requesting such relief). Our Supreme Court has explained:
In [Commonwealth v.] Drake, [489 Pa. 541, 414 A.2d 1023
(1980)], the defendant made an oral motion for dismissal
pursuant to former Pa.R.Crim.P. 1100, now Rule 600. The trial
court denied the motion on the merits. On appeal, the Superior
Court affirmed, but concluded the defendant had waived his Rule
1100 claim by failing to file a written application to dismiss.
Upon further appeal, this Court affirmed the Superior Court's
decision, explaining that Rule 1100(g):
requires a copy of an application to dismiss the charges be
served upon the attorney for the Commonwealth. This
clearly indicates the Rule mandates a written application.
The same purposes of providing the trial courts with
specific facts and issues for determination and providing
certainty in the record on appeal which were advanced by
our ruling in Commonwealth v. Blair, [460 Pa. 31, 331
A.2d 213 (1975)], will be served by enforcement of the
written application requirement under Rule 1100(f).
Id. at 544, 414 A.2d at 1024–25 (footnotes omitted).
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Commonwealth v. Brock, 61 A.3d 1015, 1017–18 (Pa. 2013) (footnote
omitted). The record contains the trial court’s May 14, 2014 order denying
“A Motion by the Attorney for the Defendant.” However, there is no
indication that the referenced motion was in writing and properly filed. This
issue therefore appears to have been waived.
In any event, apart from waiver, we find no merit to this claim or to
Appellant’s other claims for the reasons detailed in the trial court’s opinion.
See Trial Court Opinion, 7/11/16, at 1-3, 10-15 (addressing Rule 600 issue).
In addition to Appellant’s Rule 600 issue, the trial court properly addressed
Appellant’s two remaining issues assailing the Commonwealth’s disproof of
self-defense and the sufficiency of the evidence to support his conviction of
criminal conspiracy. The trial court amply cites to the notes of testimony,
and states the relevant standards of review and prevailing legal authority in
its analysis and ultimate determination that Appellant’s judgment of
sentence should be affirmed. See id. at 15-19. Accordingly, we adopt and
incorporate the trial court’s July 11, 2016 opinion, in its entirety, as our own
in disposing of this appeal. The parties shall attach a copy of the trial court
opinion when relevant to any future proceedings.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2017
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