J-A29007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMAR LEWIS :
:
Appellant : No. 2783 EDA 2015
Appeal from the Judgment of Sentence July 17, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007857-2013
BEFORE: LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 29, 2017
Lamar Lewis appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his convictions of
two counts of possession of firearms prohibited.1 After our review, we affirm.
The trial court summarized the facts as follows:
On December 8, 2012, [Lewis] and his then girlfriend[,] Veronica
Jackson[,] went to a gun store located in Feasterville. Jackson
bought a Beretta Nano nine-millimeter firearm, which she brought
back to her house at 6132 N. Lambert Street. On December 9,
2012, [Lewis] and Jackson attended a gun show. At the gun show,
Jackson bought a Beretta HiPoint nine-millimeter firearm and a
.40 caliber Smith and Wesson HiPoint firearm, which she brought
back to her house. At the time Jackson bought the firearms,
[Lewis] and Jackson had been living together at 6132 N. Lambert
Street for two years, and they had been dating for three and a
half years. Their relationship was periodically interrupted because
of [Lewis’s] relationship with another woman, Vikki Scott. On May
5, 2013, Jackson broke up with [Lewis] due to his relationship with
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1 18 Pa.C.S. § 6105.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Vikki Scott. Jackson told [Lewis] not to return to her house. The
next day, Jackson was out with her daughter when [Lewis] called
her to apologize. When Jackson returned home, she found [Lewis]
inside her house. Jackson asked [Lewis] for the keys to her house
and car that she previously gave to him. [Lewis] refused to give
her the keys and left the house. He then entered a vehicle that
they shared and was parked across the street. Before [Lewis]
drove away, Jackson observed several items that were loaded into
the vehicle and which [Lewis] had taken from the house.
On May 8, 2013, Jackson contacted police to report the vehicle as
stolen. On that same day, Jackson discovered that the nine-
millimeter HiPoint was missing from behind the sofa and that the
.40 caliber HiPoint, as well as [Lewis’s] clothes, were missing from
[Lewis’s] dresser drawer.
Trial Court Opinion, 4/28/16, at 1-2 (citations to record omitted).
Police obtained a search warrant for Vikki Scott’s residence at 433 W.
Hansberry Street; the warrant identified the items to be searched for and
seized as “A black Smith and Wesson 9mm, a black Beretta .45 caliber, and
correspondence addressed to Lamar Lewis or Vikki Scott, anything else of
evidentiary value.” Id. at 3. On May 10, 2013, police executed the search
warrant and recovered a black Smith and Wesson .40 caliber HiPoint handgun
and a black Beretta nine-millimeter HiPoint handgun, as well as ammunition,
a trigger lock, a gun wrench, and a letter from Philadelphia Gas Works to Lewis
with the address of 433 W. Hansberry Street, 2F. Lewis returned to 433 W.
Hansberry Street as police were executing the warrant, at which point Lewis
was arrested.
Lewis appeared for a preliminary hearing on June 18, 2013. On August
2, 2013 he filed a motion to suppress, which was denied. On September 6,
2013 he moved for modification of bail, on November 4, 2013 he moved for
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consolidation, and on December 2, 2013, he filed a Pa.R.Crim.P. 600 motion
to dismiss. On May 11, 2015, Lewis filed another motion to dismiss for lack
of personal and subject matter jurisdiction, which was denied. Following trial
on May 13, 2015, a jury convicted Lewis of two counts of possession of
firearms prohibited.
Lewis filed a post-trial motion, which was denied. On July 17, 2015, the
court sentenced Lewis to five to ten years’ incarceration on one count, and a
consecutive term of one day to ten years’ incarceration on the second count.
Lewis filed a timely motion for reconsideration of sentence, which was denied
on August 21, 2015. Lewis filed a timely notice of appeal and court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. He raises the
following issues for our review:
1. Whether the verdicts were against the weight of the
evidence?
2. Whether the court erred in denying [Lewis’s] motion to
dismiss under Rule 600(G)?
3. Whether there was prosecutorial misconduct during the
closing argument?
4. Whether the court abused its discretion in denying the
motion to suppress?
Appellant’s Brief, at 8.
First, Lewis argues the verdict is against the weight of the evidence.
This claim is waived.
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Pennsylvania Rule of Criminal Procedure 607 governs the procedure by
which weight of the evidence claims shall be considered by the trial court and
preserved for appellate review. Rule 607 provides, in relevant part:
(A) A claim that the verdict was against the weight of the evidence
shall be raised with the trial judge in a motion for a new trial: (1)
orally, on the record, at any time before sentencing; (2) by written
motion at any time before sentencing; or (3) in a post-sentence
motion.
Pa.R.Crim.P. 607(A). Here, Lewis filed a post-sentence motion, but he did not
include his weight of the evidence claim in that motion. See Post-Sentence
Motion, 7/22/15. Although Lewis did raise the issue in his Rule 1925(b)
Statement, and the trial court addressed it in its Rule 1925(a) opinion, the
claim, nonetheless, is waived. The question is not simply a matter of whether
the trial court addressed it, but, rather, the point at which the trial court was
able to grant a new trial based on the weight claim. The trial court had no
jurisdiction to do so after the notice of appeal was filed. In Commonwealth
v. Sherwood, 982 A.2d 483 (Pa. 2009), the Pennsylvania Supreme Court
explained:
The fact that Appellant included an issue challenging the verdict
on weight of the evidence grounds in his [Rule] 1925(b) statement
and the trial court addressed Appellant’s weight claim in its
Pa.R.A.P. 1925(a) opinion did not preserve his weight of the
evidence claim for appellate review in the absence of an earlier
motion. Pa.R.Crim.P. 607(A). . . . Appellant’s failure to challenge
the weight of the evidence before the trial court deprived that
court of an opportunity to exercise discretion on the question of
whether to grant a new trial. Because “appellate review of a
weight claim is a review of the exercise of discretion, not of the
underlying question of whether the verdict is against the weight
of the evidence,” Commonwealth v. Widmer, [] 744 A.2d 745,
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753 ([Pa.] 2000), this Court has nothing to review on appeal. We
thus hold that Appellant waived his weight of the evidence claim
because it was not raised before the trial court as required by
Pa.R.Crim.P. 607.
Id. at 494 (some citations omitted). We conclude, therefore, that Lewis has
waived his challenge to the weight of the evidence.
Next, Lewis argues that the court erred in denying his Rule 600 motion
to dismiss. This Court explained Rule 600 at length in Commonwealth v.
Ramos, 936 A.2d 1097 (Pa. Super. 2007) (en banc).
In evaluating Rule 600 issues, our standard of review of a trial
court’s decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused.
The proper scope of review is limited to the evidence on the record
of the Rule 600 evidentiary hearing, and the findings of the trial
court. An appellate court must view the facts in the light most
favorable to the prevailing party. Additionally, when considering
the trial court’s ruling, this Court is not permitted to ignore the
dual purpose behind Rule 600. Rule 600 serves two equally
important functions: (1) the protection of the accused’s speedy
trial rights, and (2) the protection of society. In determining
whether an accused’s right to a speedy trial has been violated,
consideration must be given to society’s right to effective
prosecution of criminal cases, both to restrain those guilty of crime
and to deter those contemplating it. However, the administrative
mandate of Rule 600 was not designed to insulate the criminally
accused from good faith prosecution delayed through no fault of
the Commonwealth. So long as there has been no misconduct on
the part of the Commonwealth in an effort to evade the
fundamental speedy trial rights of an accused, Rule 600 must be
construed in a manner consistent with society’s right to punish
and deter crime. In considering these matters, courts must
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carefully factor into the ultimate equation not only the
prerogatives of the individual accused, but the collective right of
the community to vigorous law enforcement as well.
Id. at 1100 (brackets, ellipses, and citation omitted).
Rule 600 provides that where a written complaint is filed against a
defendant, trial in a court case shall commence within 365 days from the date
on which the complaint is filed. Pa.R.Crim.P. 600(A)(2)(a). If trial takes place
beyond 365 days (plus excludable time as set forth in Rule 600(C)),2 then the
defendant is entitled to dismissal with prejudice. Pa.R.Crim.P. 600(D)(1).3
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2 Rule 600(C) provides that period of delay at any stage of the proceedings
caused by the Commonwealth when the Commonwealth has failed to exercise
due diligence shall be included in the computation of the time within which
trial must commence. Any other periods of delay shall be excluded from the
computation. Pa.R.Crim.P. 600(C).
3 Rule 600 takes into account both “excludable time” and “excusable delay.”
Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa. Super. 2004).
“Excludable time” is defined in Rule 600(C) as the period of time between the
filing of the written complaint and the defendant's arrest, provided defendant
could not be apprehended because his whereabouts were unknown and could
not be determined by due diligence; any period of time for which 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; and/or (b) any continuance granted at the request of
the defendant or the defendant's attorney. Id. (citing Pa.R.Crim.P. 600(C)).
The “due diligence” required under Rule 600(C)(1) pertains to the
Commonwealth's efforts to apprehend the defendant. Id. at 1241 n. 10. The
other aspects of Rule 600(C) defining “excludable time” do not require a
showing of due diligence by the Commonwealth. Id. “Excusable delay” is not
expressly defined in Rule 600, but the legal construct takes into account delays
that occur as a result of circumstances beyond the Commonwealth's control
and despite its due diligence. See id. at 1241–42 (explaining manner in which
excludable time, excusable delay and due diligence are to be determined).
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Here, the complaint against Lewis was filed on May 11, 2013, and thus
the mechanical run date was May 11, 2014. Pa.R.Crim.P. 600(A)(2)(a).
Because Lewis’ trial began on May 11, 2015, one year beyond the run date,
we must next examine whether any periods of excusable time existed, so as
to create an adjusted run date. Ramos, supra.
The trial court determined that there was excusable time attributable to
judicial delay of 371 days and excludable time attributable to the defense of
26 days,4 for a total of 397 days. The adjusted run date, therefore, was June
12, 2015. Trial commenced one month before that date, on May 11, 2015.
Lewis argues, however, that the time period between May 5, 2014 and
January 12, 2015 should not have been excluded because the Commonwealth
filed a “prior bad acts” motion on May 12, 2014, and thus was not duly diligent.
The Commonwealth, however, was ready to proceed to trial on May 5, 2014
without the benefit of a ruling on its motion. See Trial Court Opinion, supra
at 5. Further, the trial court was on trial in another case on May 5-6, 2014.
Lewis’s trial, therefore, was continued to January 12, 2015. On that date, the
court was conducting another unrelated trial, and Lewis’ trial was continued
to May 2015. See Commonwealth v. Malgieri, 889 A.2d 604, 607 (Pa.
Super. 2005) (judicial delay may serve as basis for extending time in which
Commonwealth may commence trial so long as prosecutor was prepared to
commence trial prior to expiration of mandatory period but court, due to
____________________________________________
4 Lewis concedes this time is excludable time attributable to the defense.
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scheduling difficulties, is unavailable). We find no abuse of discretion.
Ramos, supra.
In his third claim, Lewis argues the court erred in denying his objection
to the prosecutor’s remarks during closing arguments. He contends the
prosecutor’s statement amounted to prosecutorial misconduct and, therefore,
he was denied his right to a fair trial.
In accord with the long-standing principle that a “prosecutor must be
free to present his or her arguments with logical force and vigor,” this Court
has permitted vigorous prosecutorial advocacy “as long as there is a
reasonable basis in the record for the [prosecutor’s] comments.”
Commonwealth v. Robinson, 864 A.2d 460, 516–17 (Pa. 2004).
Prosecutorial comments based on the evidence or reasonable inferences
therefrom are not objectionable, nor are comments that merely constitute
oratorical flair. Commonwealth v. Tedford, 960 A.2d 1, 33 (Pa. 2008). Any
challenged prosecutorial comment must not be viewed in isolation, but rather
must be considered in the context in which it was offered. Robinson, supra
at 517.
The standard by which the court considers allegations of improper
prosecutorial comments is a stringent one:
Comments by a prosecutor constitute reversible error only where
their unavoidable effect is to prejudice the jury, forming in their
minds a fixed bias and hostility toward the defendant such that
they could not weigh the evidence objectively and render a fair
verdict.
Tedford, supra at 33.
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Here, Lewis points to the following statement by the prosecutor: “You
can possess something even if you don’t have it on your body, even if it’s just
in the house. So if he is in a house living with Veronica Jackson [on December
9, 2012] and he knows that the gun is there . . . .” Appellant’s Brief, at 22.
Lewis cites to the notes of testimony of trial, at 5/14/15, 90-92.5 He argues
that the prosecutor’s statement “urged the jury to consider facts to support
defendant’s conviction of 18 Pa.C.S. § 6105(A)(1) from December 9, 2012[,]
that formed the basis of acquittal under the statute.” Appellant’s Brief, at 22.
To state it more clearly, the prosecutor was referring to underlying facts from
a prior case at which Lewis was found not guilty of violating section 6105 for
possessing a gun on December 9, 2012 when Jackson bought the guns. The
prosecutor’s theory of the case was that Lewis knew where the guns were
when Jackson bought them while he lived with Jackson, and that he moved
the guns with him when he moved from Jackson’s home to 433 W. Hansberry
Street in May of 2013. This was evidence admitted at trial and the prosecutor
____________________________________________
5 We point out that the record before us does not contain the notes of
testimony from trial to which Lewis cites. See Pa.R.A.P. 1911(a) (“The
appellant shall request any transcript required under this chapter in the
manner and make any necessary payment or deposit therefor in the amount
and within the time prescribed by Rules 5000.1 et seq. of the Pennsylvania
Rules of Judicial Administration[.]”). See Commonwealth v. Williams, 715
A.2d 1101, 1103 (Pa. 1998); see also Commonwealth v. Steward, 775
A.2d 819, 833 (Pa. Super. 2001) (noting it was not responsibility of trial court
to order notes of transcript of defense counsel’s closing as Rule 1911 “makes
it abundantly plain that it is the responsibility of the Appellant to order all
transcripts necessary to the disposition of his appeal”). Because the parties
and the trial court do not dispute the content of the statement, or the court’s
curative instruction, we will not find waiver.
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could properly summarize it in closing. See Commonwealth v. Hutchinson,
25 A.3d 277, 307-08 (Pa. Super. 2011) (it is entirely proper for prosecutor to
summarize evidence presented, to offer reasonable deductions and inferences
from evidence and argue that evidence establishes defendant’s guilt).
Finally, Lewis claims the court erred in denying his motion to suppress.
A magistrate’s finding of probable cause “must be based on facts described
within the four corners of the affidavit[,]” Commonwealth v. Stamps, 427
A.2d 141, 143 (Pa. 1981), and “our scope of review of a suppression court’s
ruling [on a magistrate’s finding of probable cause] is confined primarily to
questions of law.” Id. (citing Commonwealth v. Sharp, 683 A.2d 1219,
1221 (Pa. Super. 1996)). See also Commonwealth v. Ryerson, 817 A .2d
510, 513 (Pa. Super. 2003); Pa.R.Crim.P. 203.
After our review of the parties’ briefs, the record, and the relevant law,
we conclude that the Honorable Daniel J. Anders has properly disposed of this
claim in his Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 4/28/16, at
6-7 (based on totality of circumstances, fact contained within four corners of
warrant were sufficient for magistrate to find probable cause; affidavit of
probable cause stated: complainant Jackson reported specific types of
firearms missing from her residence; only Jackson and Lewis knew of
firearms; Lewis was currently residing with Vikki Scott; search of motor
vehicle records confirmed Scott’s address; and, officer confirmed Lewis had
prior conviction and was prohibited from possessing firearm).
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For the foregoing reasons, we affirm the judgment of sentence. The
parties are directed to attach a copy of the trial court’s opinion in the event of
further proceedings.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2017
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11/16/2017 01:27 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COURretilated
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION-CRIMINAL
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0007857-2013
VS. = 2783 EDA 2015
FILED
LAMAR LEWIS APR 2 S 2016
OPINION Criminal Appeals Unit
First Judicial District at PA
Following a jury trial, Defendant Lamar Lewis was convicted of two counts of violating
Section 6105 of the Uniform Firearms Act. The trial court sentenced Defendant to a guideline
sentence of 5 years and I clay to 20 years of incarceration. Defendant filed a timely appeal in
which he argues: (I) the trial erred by denying his motion dismiss pursuant to Rule 600 of the
Pennsylvania Rules of Criminal Procedure, (2) the trial court erred in denying Defendant's
motion to suppress, (3) the evidence was insufficient to support the convictions, (4) the verdict
was against the weight of the evidence, and (5) the trial court erred by overruling the objection of
defense counsel to statements made by the prosecutor during closing arguments. For the reasons
stated below, the Superior Court should affirm the judgment of sentence.
FACTUAL BACKGROUND
Defendant's Former Girlfriend Purchases Two Firearms
On December 8, 2012, Defendant and his then girlfriend Veronica Jackson went to a gun
store located in Feasterville. Jackson bought a Beretta Nano nine millimeter firearm, which she
brought back to her house at 6132 N. Lambert Street N.T. 05/13/2015 at 8-13. 30. On December
9. 2012, Defendant and Jackson attended a gun show. At the gun show, Jackson bought a Beretta
HiPoint nine -millimeter firearm and a .40 caliber Smith and Wesson HiPoint firearm, which she
CP, 51-CR-CONa57-2011 Comm. v LEW S. LAMAR
Opatior
brought hack to her house_ Id. at 17-23, 25-29.
17.1],J1.17121J11111
At the time Jackson bought the firearms, Defendant and Jackson had been living together
at 6132 N. Lambert Street for two years, and they had been dating for three and a half years_
Their relationship was periodically interrupted because of Defendant's relationship with another
woman. Vikki Scott. Id. at 13-15.
On May 5, 2013, Jackson broke up with Defendant due to his relationship with Vikki
Scott. Jackson told Defendant not to return to her house. The next day, Jackson was out with her
daughter when Defendant called her to apologize. When Jackson returned home, she found
Defendant inside her house. Jackson asked Defendant for the keys to her house and car that she
previously gave to him. Defendant refused to give her the keys and left the house. He then
entered a vehicle that they shared and was parked across the street. Before Defendant drove
away, Jackson observed several items that were loaded into the vehicle and which Defendant had
taken from the house. Id. at 40-48.
2. Defendant's Former Girlfriend Reports The Two Firearms As Stolen
On May 8, 2013, Jackson contacted police to report the vehicle as stolen. On that same
day. Jackson discovered that the nine -millimeter HiPoint was missing from behind the sofa and
that the .40 caliber HiPoint, as well as Defendant's clothes, were missing from Defendant's
dresser drawer. Id at 48-50.
On May 8, 2013, Officer Brett Werner arrived at. Jackson's residence and wrote a police
report that included a description of the weapons and ammunition that were missing from her
home. Officer Werner then brought Jackson to Northwest Detectives to provide a full statement.
Jackson provided a written statement to Detective Sanders in which she stated that Defendant
had taken the .40 caliber HiPoint and the nine -millimeter HiPoint from her home. Jackson further
stated that Defendant was residing at his new girlfriend's residence (Vicki Scott's) locatedTat 433
W. Hansberry Street. Jackson told Detective Sanders that she believed Defendant brought the
guns to Scott's house. Jackson provided the sales receipts containing the serial numbers for the
two missing guns. Jackson reviewed, signed and dated the statement. Id at 50-54, 56, 63-64;
N.T. 05/12/2015 at 33-37, 53-55, 90.
Later that same night, Detective Sanders met with Jackson at her residence. Jackson then
provided a second statement to Detective Sanders wherein she positively identified a photograph
of Defendant. When shown the photograph, Jackson wrote on the photograph: my "ex -boyfriend
Lamar Lewis took my handguns." On May 9, 2013, based upon the information provided by
Jackson, Detective Sanders obtained a search warrant for 433 W. Hansberry Street. The search
warrant identified the items to be searched for and seized as "A black Smith and Wesson 9rnm,
black Beretta .45 caliber, and correspondence addressed to Lamar Lewis or Vikki Scott, anything
else of evidentiary value." The warrant confirmed Vikki Scott's residence as 433 W. Hansberry
Street, Apt. 2 as a result of a records check of the bureau of motor vehicles. N.T. 5/12/2015 at
44-47, 55-61; Affidavit No_ 174062.
3. The Search of Defendant's New Girlfriend's Home
On May 10, 2013, Detective Sanders executed the search wanant for 433 W. Hansberry
Street. From inside a closet in the laundry room, Detective Druding observed a black "ecco"
brand shoebox. Detective Druding opened the shoebox and recovered a black. Beretta nine -
millimeter HiPoint handgun, a black Smith and Wesson .40 caliber HiPoint handgun with a
cracked handle, two black nine millimeter magazines containing a total of 11 rounds, an empty -
black _40 caliber magazine, two boxes of .40 caliber ammunition containing a total of 90 rounds,
one box containing 50 rounds of nine-millimeter ammunition, a book titled "Exodus," one
polaroid photograph of Defendant and another female (not Jackson or Scott), a small white box
marked "HiPoint C9 Holster" containing a ghost ring sight and allcn wrench for a HiPoint
handgun, a trigger lock, and a gun wrench. From the master bedroom, police recovered a letter
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from Philadelphia Gas Works to Defendant with the address of 433 W. Hansberry Street, 2F. Id.
at 49-51, 76-85, 93, 98, 102-106.
As police searched the home, Defendant returned to 433 W. Hansberry Street. Instead of
parking in the available parking spaces outside of 433 W. Hansberry Street, Defendant parked on
the 5100 block of Morris Street, which was a block and a half away from his house. Upon his
arrest. Defendant told Officer Lally that his address was 433 W. Hansberry Street, 2nd Floor. Id
at 106-113.
DISCUSSION
1. The Trial Court Properly Denied Defendant's Motion To Dismiss
Defendant asserts that the trial court improperly denied his motion to dismiss pursuant to
Rule 600 of the Pennsylvania Rules of Criminal Procedure. The standard of review in an appeal
froth an order denying a motion to dismiss under Rule 600 is as follows:
When reviewing a trial court's decision in a Rule 600 case, an
appellate court will reverse only if the trial court abused its
discretion. An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or misapplied,
or the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill -will .discretion is abused. The
. .
appellate court's scope of review is limited to the record evidence
from the Rule 600 hearing and the findings of the lower court,
viewed in the light most favorable to the prevailing party.
Commonwealth v. Selenski, 994 A..2d 1083. 1087 (Pa. 2010).
Rule 600 has the "dual purpose of both protecting a defendant's constitutional speedy
trial rights and protecting society's interest to effective prosecution of criminal cases."
Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012). There is a three step analysis to
determine if there is a violation of Rule 600. First, the court calculates the mechanical run date,
which is 365 days from the date on which the criminal complaint is filed. Second, pursuanno
subsection (C) of Rule 600, the court excludes all periods of delay except delay "caused byg.he
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Commonwealth when the Commonwealth has failed to exercise due diligence." Third, the court
adds the "excludable time" under subsection (C) to the mechanical run date to produce an
adjusted run date. If the defendant has not been brought to trial within the adjusted run date, the
defendant may file a written motion requesting the charges be dismissed. Pa.R.Crim.P. 600(1)).
"Excludable time" generally includes (1) delay caused by or attributable to the defendant
or defense, (2) delay attributable to the judiciary I, and (3) delay that occurs "as a result of
circumstances beyond the control of the Commonwealth and despite its due diligence." See
Comments to Pa.R.Cr.P. 600 (entitled, computation of Time). The Commonwealth has the
burden of proving, by a preponderance of the evidence, that it exercised due diligence and that
the circumstances surrounding the delay of trial were beyond the Commonwealth's control.
Bradford, 46 A.3d at 701. Due diligence is a "fact-specific [inquiry,] to be determined case -by -
case; it does not require perfect vigilance and punctilious care, but merely a showing the
Commonwealth has put forth a reasonable effort." kl. (quoting Selenski, 994 A.2d at 1089).
Here, Defendant concedes that the time between May 28, 2013 through June 17, 2013
and that the time between August 13, 2013 and August 19, 2013 is excludable, which is a total of
26 days. On the trial dates of May 5, 2014, and January 12, 2015, the trial court was conducting
trials on unrelated matters and thus was unavailable to preside over Defendant's tria1.2 On both
May 5, 20143 and January 12, 2015, the Commonwealth was ready to proceed to trial. As a
Pennsylvania courts have held that "judicial delay may serve as a basis for extending the period of time
in which
'
the Commonwealth may commence trial so long as the prosecutor was prepared to commence trial prior to the
of scheduling difficulties or the like, was unavailable."
expiration of the mandatory period but the court. because
Commonwealth v, Malgieri, SS9 A.2d 604, 607 (Pa. Super. Ct. 2005).
v. Vaughn Robinson. On January
2 On May 5, 2014 and May 6. 2014, the trial court was on trial on Commonweatih
12, 2015. the quarter sessions file notes that the court was on trial and that time was ruled excludable..
5, 2014 without the
3The trial court determined that the Commonwealth was ready to proceed to trial on May
benefit of its Rule 404(b) motion. N.T. 05/11i2015 at 11.
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result, the excludable time attributable to judicial delay is 371 days. The total amount of
excludable time is 397 days_ N.T. 05/11/2015 at 10-14.
Because the criminal complaint was filed on May 11, 2013, the mechanical run date was
May 11, 2014_ Adding 397 days of excludable time to the mechanical run date produces an
adjusted run date oflune 12, 2015. Defendant's trial commenced on May 11, 2015, which was
within the adjusted run date. As a result, the trial court did not abuse its discretion in denying
Defendant's Rule 600 motion to dismiss.
2. The Trial Court Properly Denied Defendant's Motion To Suppress
Defendant asserts that the trial court improperly denied his motion to suppress because
the facts contained within the "four comers" of the warrant lacked probable cause that the
firearms would be located at the address searched. The standard of review in an appeal from an
order denying a motion to suppress is as follows:
Our standard of review in addressing a challenge to the denial of a
suppression motion is limited to determining whether the
suppression court's factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradieted when read in the context of the record as a
whole.. Where the suppression court's factual findings are
supported by the record, we are hound by these findings and may
reverse only if the court's legal conclusions are erroneous.
Commonwealth v. Jones, 988 A.2d 649.654 (Pa. 2010).
In reviewing a claim of whether a search warrant was invalid within its four corners,
appellate courts review whether the issuing magistrate had a substantial basis for concluding that
probable cause existed. Commonwealth v. Huntington 924 A.2d 1252 (Pa. Super. Ct. 2007). This
review is limited to the factual allegations contained within the four corners of the supporting
affidavit. Commonwealth v. Dukeman, 917 A.2d 338 (Pa. Super. Ct. 2007).
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Courts utilize the totality of the circumstances test to determine whether probable cause
exists for the issuance of a search warrant. Huntington; 924 A.2d at 1255. Courts recognize that
the issuing magistrate makes a "practical common sense assessment" of whether -- "given all the
circumstances set forth in the affidavit" -- a "fair probability" exists that contraband or evidence
of a crime will be found in a particular place. Id. Probable cause exists where there is only a
probability of criminal activity, not a prima facie showing. of such activity. Dukeman, 917 A.2d
at 341.
Here, based on the totality of the circumstances, the facts contained within the
"four corners" of the warrant were sufficient for the magistrate's finding of probable cause. The
affidavit of probable cause states that the complainant, Veronica Jackson, reported to Detective
Sanders the type of firearms that were missing from her residence and where in the residence
they were last seen. The affidavit of probable cause further states that (I) other than Jackson,
only Defendant knew about the firearms and that they were stored in his dresser drawer; (2)
Jackson discovered the firearms missing only two days after Defendant returned to take his
belongings; and (3) Defendant was currently residing with his other girlfriend Nikki Scott. Based
on the information provided by Jackson, Detective Sanders conducted a search of the bureau of
motor vehicle records and confirmed that Scott resided at 433 W. Hansherry Street, Apt. 2.
Detective Sanders also confirmed that Defendant had a prior conviction and was prohibited from
possessing a firearm. All of these facts were specifically set forth in the warrant.
Given all of these facts and circumstances set forth in the affidavit of probable cause,
there was sufficient probable cause contained in the four corners of the warrant that the stolen
firearms would be found at Scott's residence. Commonwealth v. Hernandez, 935 A.2d 1275,
1284 (Pa. 2007).
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3. There is Sufficient Evidence to Support the Convictions
Defendant claims the evidence was insufficient to prove the possession element of a
violation of Section 6105 of the Uniform Firearms Act. To sustain a conviction under Section
6105. there must be sufficient evidence to prove beyond a reasonable doubt that Defendant
possessed a firearm and that he was convicted of an enumerated offense that prohibited him from
possessing, using, controlling, or transferring a firearm. Section 6105 defines "firearm" as any
weapon that is "designed to or may readily be converted to expel any projectile by the action elan
explosive or the frame or receiver of any such weapon." 18 Pa.C.S. § 6105; Commonwealth v.
Thomas. 988 A.2d 669, 670 (Pa. Super. Ct. 2009).
Constructive possession is defined as "conscious dominion," which itself is defined as the
power to control the contraband and the intent to exercise that control. Commonwealth v.
Mudrick. 507 A.2d 1212, 1213 (Pa. 1986). Constructive possession may be established by the
totality of the circumstances. Id. "Individually, the circumstances may not be decisive; but in
combination, they may justify an inference that the accused had both the power to control and
the intent to exercise that control . ." Commonwealth v. DeCampli, 364 A.2d 454, 456 (Pa.
Super. Ct. 1976).
Here, there is sufficient evidence to prove beyond a reasonable doubt that Defendant
constructively possessed the firearms recovered from 433 W. Hansberry Street. Defendant
received a letter from a utility company addressed to him at 433 W. Hansberry Street. He told
Officer Lally that he resided at 433 W. Hansberry Street. The firearms recovered by police
matched the sales records that Jackson provided to police and that were previously stored at
Jackson's home. Defendant was the only person beside Jackson who knew where Jackson stored
the firearms in her residence and Defendant was the only person who could have accessed them
from her residence, i.e., Defendant possessed a key to Jackson's residence. Jackson twice stated
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to the police that she believed that Defendant stole her firearms_ And, last, when the firearms
were recovered from inside of 433 W. Hansberry, they were found inside a shocbox that also
contained a photo of Defendant with yet another female, i.e., not Scott or Jackson_
Viewing this direct and circumstantial evidence in the light most favorable to the
Commonwealth, there was sufficient evidence4 to support Defendant's convictions under Section
6105.
4. The Verdict Was Not Against The Weight Of The Evidence
Defendant asserts that the verdict was against the weight of the evidence. When
evaluating the weight of the evidence, the standard of review is as follows:
The weight of the evidence is exclusively for the finder of fact who
is free to believe all, part, or none of the evidence and to determine
the credibility of the witnesses. An appellate court cannot
substitute its judgment for that of the finder of fact. Thus, [the
Superior Court] may only reverse the lower court's verdict if it is
so contrary to the evidence as to shock one's sense of justice.
Moreover, where the trial court has niled on the weight claim
below, an appellate court's role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. Super. Ct. 2003).
The trial court presided over the entire trial and had the opportunity to observe the
demeanor of the witnesses who testified as well as their manner of testifying. Based upon those
observations and the consistency of their testimony, there is no basis to disturb the jury's
credibility determinations that are imbedded within their verdict. Moreover, in light of the
overwhelming evidence of Defendant's guilt discussed above, the verdict is not contrary to the
evidence and does not shock one's sense of justice.
4At trial Detective Walsh testified to the operability of both Firearms. N.T. 05/13/2015 at 128-131, 136-137.
Defendant stipulated that he was prohibited from possessing a firearm under Section 6105.
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5. The Trial Court Did Not Abuse Its Discretion by
Denying Defendant's Objection During Closing Statements
Defendant argues that the trial court erred by denying his objection to facts mentioned by
the prosecutor during his closing statement. Courts review claims of prosecutorial misconduct
under an abuse of discretion standard. Commonwealth v. Lopez, 57 A.3d 74, 84 (Pa_ Super. Ct.
2012). Consideration of this claim focuses on whether the defendant was deprived of a fair trial,
not a perfect trial_ Commonwealth v. Solomon. 25 A.3d 380, 383 (Pa. Super. Ct. 2011). A
prosecutor's statements to the jury do not occur in a vacuum and must be viewed in context. Id.
Not every inappropriate remark by a prosecutor constitutes reversible error. Commotnvealrh v.
Harris, 884 A.2d 920, 927 (Pa. Super. Ct. 2005). Evert if the prosecutor's arguments are
improper, they generally will not form the basis for a new trial unless the comments unavoidably
prejudiced the jury and prevented a true verdict. Commonwealth v. Rolan, 964 A.2d 398, 410
(Pa. Super. Cr. 2008).
Here, at the beginning of his closing argument, the prosecutor stated "you can possess
something even if you don't have it on your body, even if it's just in the house. So if he is in a
house living with Veronica Jackson [on December 9, 2012] and he knows that the gun is there."
N.T. 5/14/2015 at 90. Defendant objected that the prosecutor was improperly arguing facts that
formed the basis of an acquittal for an alleged violation of Section 6105 from December 9, 2012.
The trial court overruled Defendant's objection and later noted that the prosecution was
permitted to put forth its theory of the case - i.e., that Defendant moved the firearms from
Jackson's residence to 433 W. Hansbeny Street on or about May 10, 2013. Id. at 95. Such
argument is not improper because prosecutors are permitted to summarize the evidence admitted
at trial.. See Commonwealth v. Hutchinson, 25 A.3d 277 (Pa Super. Ct. 201 1) (it is entirely proper
for the prosecutor to summarize the evidence presented, to offer reasonable deductions and
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inferences from the evidence, and to argue that the evidence establishes defendant's guilt).
Additionally, after the prosecutor's closing and just before the jury retired to deliberate, the trial
court cured any potential prejudice by instructing the jury with the specific date of the alleged
violations of Section 6105, i.e., on or about May 13.2013 - not December 9, 2012. id. at 94;
Conunonwealth v. Linder, 425 A.2d 1126 (Pa. Super. Ct. 1981) (finding that no prejudice
occurred after the trial court provided a cautionary instruction to the jury following the
prosecutor's remark that there was no question the defendant was guilty).
As such, there was no prosecutorial misconduct. And, even if there were, any improper
argument was cured through the trial court's instruction to the jury.
CONCLUSION
For the fore easons, the appellate court should affirm the judgment of sentence.
DANIEL. J.. DERS, JUDGE
Dated: April 28, 2016
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