Com. v. Moss, C.

J-S65005-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CRAIG EUGENE MOSS :
:
Appellant : No. 1533 MDA 2018

Appeal from the Judgment of Sentence Entered April 9, 2018
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001471-2017

BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 10, 2020

Appellant, Craig Eugene Moss, appeals, pro se, from the judgment of

sentence entered on April 9, 2018,1 of one year less one day to two years less

one day of imprisonment, in the Court of Common Pleas of York County,

following his conviction of one count each of possession of an instrument of

crime (PIC) and simple assault, and two counts of harassment.2 On appeal,

Appellant raises nine issues, claiming: (1) the Commonwealth failed to

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Although Appellant purports to appeal from the order denying his post-
sentence motions, an appeal properly lies from the judgment of sentence
made final by the denial of post-sentence motions. See Commonwealth v.
Dreves, 839 A.2d 1122, 1125 n. 1 (Pa. Super. 2003) (en banc). We have
corrected the caption accordingly.

2 18 Pa.C.S.A. §§ 907(a), 2701(a)(3), 2709(a)(1).
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disprove his claim of self-defense; (2) the evidence was insufficient to sustain

his conviction; (3) the Commonwealth violated his constitutional rights when

it used evidence at trial not stated in the indictment or bill of particulars; (4)

the trial court deprived him of his right to self-representation; (5) the trial

court erred when it sustained the Commonwealth’s objection to a question

asked during the cross-examination of witness Breanne Spangler; (6) the

Commonwealth wrongly destroyed evidence; (7) the trial court erred in

holding Appellant could not raise claims of ineffective assistance of counsel on

direct appeal; (8) the trial court erred in denying Appellant’s motion for an

expert witness; (9) the trial court erred in denying Appellant’s speedy trial

motion. Appellant’s Brief, at 2-3. After review, we affirm.3

As we write primarily for the parties, a detailed factual and procedural

history is unnecessary. However, we briefly note the following based upon our

review of the certified record.

____________________________________________

3 We deny Appellant’s application for a new trial based on after discovered
evidence without prejudice to his right to raise the issue in a collateral petition.
Further, we deny Appellant’s application to strike the Commonwealth’s
untimely brief. Appellant has not identified any prejudice he has suffered due
to the late filing. So while we do not condone the Commonwealth’s failure to
file a timely brief, we decline to impose the sanction of striking the
Commonwealth’s brief entirely.

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On March 16, 2017, the Commonwealth charged Appellant by way of a

criminal information with terroristic threats,4 PIC, simple assault, public

drunkenness,5 disorderly conduct,6 and three counts of harassment.7 The

charges arose out of an incident that took place on January 14-15, 2017, at

Kiro’s bar. At trial, although there were minor inconsistencies, the

Commonwealth witnesses testified consistently about the events of the

evening.

That night,8 Breanne Spangler, her fiancé Daniel Leiphart, and a group

of their friends, who included Brittany Graves, Bridget James, and Emily and

Devon Wallick, were at Kiro’s to celebrate its last night in business. Appellant

and his wife, Tara Moss, were also present but were not part of Spangler’s

group.

____________________________________________

4 18 Pa.C.S.A. § 2706(a)(1). Following the close of the Commonwealth’s case,
the trial court granted Appellant’s motion to dismiss this charge. N.T., 3/12-
13/18, at 246.

5 18 Pa.C.S.A. § 5505. The trial court found Appellant not guilty of public
drunkenness. N.T., 3/12-13/18, at 332.

6 18 Pa.C.S.A. § 5503(a)(1). The trial court held that this charge merged with
the verdict on simple assault. See id.

7 The trial court initially found Appellant guilty of all three counts of
harassment. See id. However, it dismissed one count as being unsupported
by the evidence during the hearings on Appellant’s post-sentence motions.
N.T. Post-Sentence Motions, 8/13/18, at 201.

8We take the underlying facts from the notes of testimony at Appellant’s
second trial. See N.T., 3/12-13/18, at 70-80, 97-107, 118-25, 133-42, 154-
61, 165-70, 175-87; 3/13/18, at 197-209, 212-226.

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At some point during the evening, Appellant and Tara Moss left.

Appellant returned alone a few minutes later and began to behave in an

increasingly belligerent and drunken fashion. He started to accost and grope

some of the women in Spangler’s group, ignoring their requests to stop.

When Leiphart became aware of the problem, he and Appellant engaged

in a verbal dispute, which ended when Leiphart punched Appellant on the chin.

The bar’s owner, Ronald Weagley, now aware of the complaints about

Appellant’s behavior, escorted him off the premises.

The group of friends remained in the bar. Immediately prior to closing,

at approximately 2:00 a.m., Tara Moss telephoned Weagley and informed him

Appellant had armed himself with knives and was returning to the bar.

Weagley locked the front door of the bar, called 911, and told the patrons not

to leave.

Despite this, Leiphart and several others exited the bar through the side

emergency exit. Although friends kept Leiphart and Appellant separated, a

quarrel ensued in the parking lot next to Kiro’s and continued into a nearby

alley.

Appellant brandished a knife, swinging it from side to side while taunting

the unarmed Leiphart. Spangler inserted herself between Appellant and

Leiphart, grabbed the knife-blade, and attempted to deescalate the conflict.

Appellant repeatedly told her he did not want to hurt her but wanted to hurt

Leiphart. Spangler pushed against Appellant backing him away from Leiphart

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while Appellant continued to swing the knife and state that he wanted to hurt

Leiphart.

Other bar patrons backed Leiphart away from Appellant. Appellant did

not leave the scene until he heard police sirens, at which point he allowed

Spangler to grab the knife. When police apprehended the fleeing Appellant,

they heard one knife fall off him, which they recovered under his body, and

found two other knives on his person. The police located several other knives

in the area where the altercation occurred.

Trial began on March 7, 2018, however, for reasons unrelated to this

appeal, the parties agreed to a mistrial on March 8, 2018. Appellant’s second

trial began the following week. On March 13, 2018, the jury and trial court

found him guilty of the aforementioned charges.

On April 9, 2018, the trial court sentenced Appellant as delineated

above. Appellant, now proceeding pro se, filed timely post-sentence motions;

the trial court held hearings on those motions and denied the motions on

August 27, 2018. The instant, timely appeal followed.

Initially, we mention the following concerns. While this Court

understands Appellant is proceeding pro se,

. . . we note that it has been held that when an appellant raises
an extraordinary number of issues on appeal, as in this case, a
presumption arises that there is no merit to them. In United
States v. Hart, 693 F.2d 286, 287 n.1 (3rd Cir. 1982), the court
had an opportunity to address this situation:

Because of the inordinate number of meritless
objections pressed on appeal, spotting the one bona

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fide issue was like finding a needle in a haystack. One
of our colleagues has recently cautioned on the
danger of “loquaciousness:”

With a decade and a half of federal
appellate court experience behind me, I
can say that even when we reverse a trial
court it is rare that a brief successfully
demonstrates that the trial court
committed more than one or two
reversible errors. I have said in open court
that when I read an appellant’s brief that
contains ten or twelve points, a
presumption arises that there is no merit
to any of them. I do not say that this is an
irrebuttable presumption, but it is a
presumption nevertheless that reduces
the effectiveness of appellate advocacy.
Appellate advocacy is measured by
effectiveness, not loquaciousness.

Aldisert, The Appellate Bar: Professional Competence
and Professional Responsibility—A View From the
Jaundiced Eye of One Appellate Judge, 11
Cap.U.L.Rev. 445, 458 (1982).

Estate of Lakatosh, 656 A.2d 1378, 1380 n.1 (Pa. Super. 1995).

Further, prior to analyzing the issues in Appellant’s brief, this Court must

determine whether Appellant properly preserved any issues for our review.

See Commonwealth v. Wholaver, 903 A.2d 1178, 1184 (Pa. 2006)(holding

that appellate courts may sua sponte determine whether issues have been

properly preserved on appeal).

Rule 1925(b)(4) provides, in pertinent part:

(ii) The 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. The judge shall not require the

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citation to authorities; however, appellant may choose to include
pertinent authorities in the Statement.

****

(iv) The Statement should not be redundant or provide lengthy
explanations as to any error. Where non-redundant, non-frivolous
issues are set forth in an appropriately concise manner, the
number of errors raised will not alone be grounds for finding
waiver.

Pa.R.A.P. 1925(b)(4)(ii), (iv).

Here, Appellant filed a Rule 1925(b) statement that was over thirty

pages in length. See Concise Statement of Errors Complained of on Appeal,

10/03/18, at 1-32. Given this, we would be well within our rights to find

Appellant has waived all issues on appeal. See Jiricko v. Geico Ins. Co., 947

A.2d 206, 210 (Pa. Super. 2008) (finding waiver appropriate remedy where

appellant filed five-page incoherent statement of errors); see also Kanter v.

Epstein, 866 A.2d 394, 401 (Pa. Super. 2004). However, the trial court

admirably attempted to address Appellant’s claims. See Trial Court Opinion,

4/26/19, at 14-45. Because of this, despite our grave reservations, we decline

to find waiver and will address the issues in Appellant’s appeal.

In his first two issues, Appellant challenges the sufficiency of the

evidence. Appellant’s Brief, at 3-10. Our standard of review is settled.

We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a light
most favorable to the Commonwealth as verdict winner, support
the conviction beyond a reasonable doubt. Where there is
sufficient evidence to enable the trier of fact to find every element
of the crime has been established beyond a reasonable doubt, the
sufficiency of the evidence claim must fail.

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The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute our
judgment for that of the fact-finder. The Commonwealth’s burden
may be met by wholly circumstantial evidence and any doubt
about the defendant’s guilt is to be resolved by the fact finder
unless the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined
circumstances.

Commonwealth v. Mobley, 14 A.3d 887, 889–90 (Pa. Super. 2011) (citation

omitted). Here, the jury convicted Appellant of PIC and simple assault, and

the trial court convicted him of harassment.

In his first claim, Appellant does not dispute the proof of the elements

of simple assault, therefore we will not address them at this point; instead,

he argues the Commonwealth did not disprove his claim of self-defense. See

Appellant’s Brief, at 3-6. We disagree.

The use of force against a person is justified when the actor
believes that such force is immediately necessary for the purpose
of protecting himself against the use of unlawful force by the other
person. See 18 Pa.C.S.[A.] § 505(a). When a defendant raises
the issue of self-defense, the Commonwealth bears the burden to
disprove such a defense beyond a reasonable doubt.

Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008).

In order for the Commonwealth to disprove self-defense, one of the

following elements must exist: (1) the defendant used more force than was

necessary to save himself from death, bodily injury, or the commission of a

felony; (2) the defendant provoked the use of force; or (3) the defendant had

a duty to retreat, which was possible to accomplish with complete safety. See

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Commonwealth v. Burns, 765 A.2d 1144, 1148–49 (Pa. Super. 2000),

appeal denied, 782 A.2d 542 (Pa. 2001). However, “[a]lthough the

Commonwealth is required to disprove a claim of self-defense arising from

any source beyond a reasonable doubt, a jury is not required to believe the

testimony of the defendant who raises the claim.” Bullock, supra at 824.

Based upon our review of the record, the Commonwealth’s evidence was

sufficient to negate the elements of self-defense. The evidence presented at

trial established, following the altercation with Leiphart, Weagley escorted

Appellant off the premises and Appellant left the area for at least thirty

minutes. See N.T., 3/12-13/18, at 74-75. Appellant then chose to return to

the bar and lay in wait for Leiphart armed with at least four knives. See id. at

89, 225-226.

When Leiphart exited the bar, Appellant stated several times that he

wanted to hurt him; Appellant swung the knife in the direction of of Leiphart

while acting in a violent and agitated manner. See id. at 77, 103. Appellant

ignored Spangler’s attempts to defuse the situation, repeatedly stating he

wanted to hurt Leiphart and did not retreat on his own. See id. at 141, 150.

Rather, Spangler pushed him back. See id. . Leiphart was unarmed. See id.

at 159.

Accordingly, the evidence was sufficient to establish that Leiphart was

not the aggressor. More importantly, the evidence was capable of establishing

Appellant, armed with at least one knife, could not have reasonably believed

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he was at any real risk from Leiphart. The only person who claims there was

an alternate version of the events was Appellant and the finder-of-fact was

free to disbelieve his arguments in light of the overwhelming evidence offered

by the Commonwealth. See Commonwealth v. Rivera, 983 A.2d 1211,

1222 (Pa. 2009) (jury free to discredit evidence offered by defendant relating

to self-defense); see also Commonwealth v. Jones, 332 A.2d 464, 466 (Pa.

Super. 1974) (en banc) (holding use of knife in response to fistfight is not

justified use of deadly force). Moreover, the record demonstrates Appellant,

who was on a public alley, had many opportunities to retreat. See

Commonwealth v. Gillespie, 434 A.2d 781, 784 (Pa. Super. 1981) (holding

opportunity to retreat existed because, “the fight occurred on a public

sidewalk, with several avenues of retreat available[]”). Appellant’s first claim

does not merit relief.

As Appellant’s second issue is actually a broad based challenge to each

of his convictions, see Appellant’s Brief, at 7-10, we will address each type of

crime individually. Initially, we note Appellant’s argument in its entirety

consists of citing to isolated bits of evidence he believes favors his argument

along with random citations to several United States Supreme Court cases and

one case from this Court, which, upon review, have no bearing upon the

instant matter. See id. He entirely disregards our standard of review, which

requires we view the evidence in a light most favorable to the Commonwealth

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as verdict winner. Further, Appellant overlooks the fact this Court does not re-

weigh the evidence nor do we engage in credibility determinations. See id.

We define simple assault by physical menace as, “attempts by physical

menace to put another in fear of imminent serious bodily injury.” 18 Pa.C.S.A.

§ 2701(a)(3). Serious bodily injury is “[b]odily injury which creates a

substantial risk of death, or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S.A. § 2301. “A person commits an attempt when, with intent

to commit a specific crime, he does any act which constitutes a substantial

step toward the commission of that crime.” 18 Pa.C.S.A. § 901(a). An

individual acts intentionally with respect to a material element of an offense

when, “it is his conscious object to engage in conduct of that nature or to

cause such a result.” 18 Pa.C.S.A. § 302(b)(1)(i).

Therefore, in order to sustain a conviction for simple assault by physical

menace, the Commonwealth must prove an appellant “intentionally plac[ed]

another in fear of imminent serious bodily injury through the use of menacing

or frightening activity.” Commonwealth v. Reynolds, 835 A.2d 720, 726

(Pa. Super. 2003) (citation omitted). The act of brandishing a knife at a person

is sufficient to sustain a conviction for simple assault by physical menace. See

Commonwealth v. Diamond, 408 A.2d 488, 489–90 (Pa. Super. 1979)

(finding sufficient evidence to sustain simple assault by physical menace

conviction where defendant approached and gripped door handle of victim’s

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car at 4:00 a.m., “especially since [defendant’s] friend was simultaneously

threatening [the victim] with a knife on the other side of the car”).

As set forth previously, the Commonwealth’s evidence at trial showed

Appellant swung the knife back and forth while threatening Leiphart. Appellant

repeatedly stated he wanted to hurt him. This evidence is sufficient to

establish that Appellant wanted to place Leiphart in fear of serious bodily

injury. A reasonable person, seeing the man whom he earlier hit in a bar fight

coming at him while shouting threats and waving a knife, “will quite likely fear

that such an injury is imminent.” Diamond, 408 A.2d at 490. Appellant must

“be held to have intended such a foreseeable consequence to his actions.” Id.

Accordingly, we find the evidence was sufficient to sustain Appellant’s

conviction for simple assault by physical menace.

In order to prove possession of an instrument of crime, the

Commonwealth must show the defendant “possesses any instrument of crime

with intent to employ it criminally.” 18 Pa.C.S.A. § 907(a). The statute defines

an instrument of crime as “[a]nything specially made or specially adapted for

criminal use” or “[a]nything used for criminal purposes and possessed by the

actor under circumstances not manifestly appropriate for lawful uses it may

have.” 18 Pa.C.S.A. § 907(d). Evidence a defendant used a knife to attempt

to perpetrate a crime is sufficient to sustain a conviction for PIC. See

Commonwealth v. Robinson, 874 A.2d 1200, 1208–09 (Pa. Super. 2005)

(holding use of knife to perpetrate robbery was sufficient evidence of PIC).

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“PIC, by its definition, is an inchoate crime, meaning that a defendant

only has to intend to employ the instrument of crime criminally; a defendant

need not actually employ it or complete an associated crime.”

Commonwealth v. Moore, 103 A.3d 1240, 1252 (Pa. 2014) (citation

omitted). “[R]ather, the focus is on whether the defendant possesses the

instrument for any criminal purpose.” Commonwealth v. Naranjo, 53 A.3d

66, 71 (Pa. Super. 2012) (emphasis in original). The defendant’s criminal

purpose provides the basis for his liability; we can infer purpose from the

circumstances surrounding the possession of the instrument of crime. See

Commonwealth v. Andrews, 768 A.2d 309, 318–319 (Pa. 2001).

“Intent can be proven by direct or circumstantial evidence; it may be

inferred from acts or conduct or from the attendant circumstances.”

Commonwealth v. Miller, 172 A.3d 632, 641 (Pa. Super. 2017) (citation

omitted), appeal denied, 183 A.3d 97 (Pa. 2018). Although a factfinder may

infer criminal intent beyond a reasonable doubt based on circumstantial

evidence, intent may not be inferred based on mere possession. See In re

A.V., 48 A.3d 1251, 1254 (Pa. Super. 2012).

Here, the evidence demonstrated Appellant used kitchen knives to

threaten Leiphart. Clearly, this was not in a manner appropriate for lawful use.

The evidence supporting Appellant’s conviction for simple assault is sufficient

to sustain his conviction for PIC. See Robinson, 874 A.2d at 1208-09.

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Appellant also challenges his two convictions for harassment. “A person

commits the crime of harassment when, with intent to harass, annoy or alarm

another, the person: [ ] strikes, shoves, kicks or otherwise subjects the

other person to physical contact, or attempts or threatens to do the

same[.]” 18 Pa.C.S. § 2709(a)(1) (emphasis added). “An intent to harass

may be inferred from the totality of the circumstances.” Commonwealth v.

Cox, 72 A.3d 719, 721 (Pa. Super. 2013).

At trial, multiple witnesses testified Appellant grabbed the buttocks of

several women, including Emily Wallick and Bridget James, thus subjecting

them to physical contact. See, e.g., N.T. 3/12-13/18, at 121-122. The

evidence also showed Appellant ignored the women’s request to stop. See id.

This is sufficient to show his intent to harass the women. See Cox, supra at

721; see also 18 Pa.C.S.A. § 2709(a)(1).

Accordingly, for the reasons discussed above, we find the evidence was

sufficient to sustain Appellant’s convictions. His second claim does not merit

relief.

In his third claim, Appellant avers the Commonwealth violated his

constitutional rights when “it used evidence at trial that was not stated in the

indictment bills of particulars.” Appellant’s Brief, at 10; see also Appellant’s

Brief, at 10-11. Specifically, Appellant complains the Commonwealth charged

him for holding the knife over his head in a stabbing position but the witnesses

at trial only testified he was either swinging the knife or brandishing it.

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This Court has stated:

A purported variance between the indictment and the offense
proved will not be fatal to the Commonwealth’s case unless it
could mislead the defendant at trial, involves an element of
surprise prejudicial to the defendant’s efforts to prepare his
defense, precludes the defendant from anticipating the
prosecution’s proof, or otherwise impairs a substantial right of the
defendant. Generally stated, the requirement is that a defendant
be given clear notice of the charges against him so that he can
properly prepare a defense.

Commonwealth v. Fulton, 465 A.2d 650, 653 (Pa. Super. 1983) (citations

omitted). Moreover, “a variance between the proof and the bill of particulars

does not require a reversal unless the defendant has been prejudiced by the

variance.” Commonwealth v. Delbridge, 771 A.2d 1, 4-5 (Pa. Super. 2001)

(citation omitted), affirmed, 859 A.2d 125 (Pa. 2004).

Here, the criminal information stated in pertinent part, “[Appellant]

attempted, by physical menace, to put Danny Leiphart, in fear of imminent

serious bodily injury, by holding a knife over his head in a stabbing position

and/or stating he was going to get victim.” Criminal Information, 3/16/17,

at unnumbered page 1 (emphasis added). At trial, as noted above, multiple

witnesses testified that, while holding the knife, Appellant repeatedly stated

he wanted to hurt the victim. Moreover, the difference between holding the

knife over his head and swinging the knife in the direction of the victim is de

minimis. Appellant has utterly failed to address how this minor discrepancy

between the information and the proof at trial prejudiced him. Therefore, his

third claim does not merit relief. See Delbridge, 771 A.2d at 4-5.

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In his fourth claim, Appellant contends that the trial court deprived him

of his right of self-representation. Appellant’s Brief, at 12-13. We disagree.

We review a trial court’s grant or denial of a defendant’s request to

proceed pro se for an abuse of discretion. Commonwealth v. El, 977 A.2d

1158, 1167 (Pa. 2009). The Pennsylvania Supreme Court has “defined a

court’s discretion as the foundation of reason, as opposed to prejudice,

personal motivations, caprice or arbitrary actions. An abuse of that discretion

is not merely an error of judgment, but . . . [a] manifestly unreasonable . . .

result of partiality, prejudice, bias or ill will.” Id. (quotations and citation

omitted).

In El, our Supreme Court explained,

A criminal defendant’s right to counsel under the Sixth
Amendment includes the concomitant right to waive counsel’s
assistance and proceed to represent oneself at criminal
proceedings. The right to appear pro se is guaranteed as long as
the defendant understands the nature of his choice. In
Pennsylvania, Rule of Criminal Procedure 121 sets out a
framework for inquiry into a defendant’s request for self-
representation. Pa.R.Crim.P. 121. Where a defendant knowingly,
voluntarily, and intelligently seeks to waive his right to counsel,
the trial court . . . must allow the individual to proceed pro se.

The right to waive counsel’s assistance and continue pro se is not
automatic however. Rather, only timely and clear requests trigger
an inquiry into whether the right is being asserted knowingly and
voluntarily. . . . Thus, the law is well established that in order to
invoke the right of self-representation, the request to proceed pro
se must be made timely and not for purposes of delay and must
be clear and unequivocal.

Id. at 1162-63 (most citations, quotation marks and footnotes omitted).

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Our review of the record reveals Appellant never made a clear and

unequivocal assertion of the right to proceed pro se. See N.T., 3/7/18, at 3-

23. Rather, the record shows the trial court made a yeoman’s effort in an

attempt to ascertain what Appellant wanted and to explain to him

Pennsylvania law does not allow his desire, which was clearly hybrid

representation. See id.; see also Commonwealth v. Padilla, 80 A.3d 1238,

1259 (Pa. 2013), cert. denied, 573 U.S. 907 (2014). The discussion concluded

as follows:

THE COURT: So how are you proceeding?

[Appellant]: I have no choice but to allow counsel to
represent me.

THE COURT: So Mr. Jefferis will be the lead counsel, and
you will be working with him or consult with him?

[Appellant]: That is correct, sir. However, it is my
understanding that a represented person is allowed to give
opening arguments. That is a Pennsylvania Rule of Criminal
Procedure.

THE COURT: Whoever the attorney is may make the
opening argument. In other words, what you can’t do is you can’t
cherry pick or break this up into pieces where you say, I’ll make
the opening statement, you make the closing statement, I’ll
examine this witness, you examine that witness. You can be pro
se, or you can be represented by an attorney. What you don’t get
to do is have this kind of hybrid representation.

[Appellant]: And I understand that, sir, and like I said, due
to my 14-month unjust incarceration, I would not be able to
represent myself.

****

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[THE COURT]: . . . are you still willing to have him proceed
as your counsel?

[Appellant]: Indeed, I am.

N.T., 3/07/18, at 17-18.

Appellant did subsequently indicate that he wished to represent himself.

See id. at 20. However, immediately thereafter he stated that it didn’t matter

who represented him. See id., at 23.

Appellant does not identify any other place in the record where he clearly

requested to proceed pro se. And our independent review has revealed none.

Therefore, the record does not contain a clear and unequivocal request to

proceed pro se. Accordingly, Appellant’s fourth claim does not merit relief.

See El, 977 A.2d at 1162-63.

In his fifth claim, Appellant complains the trial court denied him the right

to cross-examine Commonwealth witness Breanne Spangler effectively. The

court sustained the Commonwealth’s objection to a question about Spangler’s

desire not to press charges in the matter. See Appellant’s Brief, at 13-15.

Specifically, Appellant points to the following:

[Defense Counsel]: At first, you did not want to press
charges?

[The Commonwealth]: Objection, Your Honor.

[Defense Counsel]: I think this goes to the witness’s state
of mind.

[The Commonwealth]: Relevance, though.

[Defense Counsel]: Bias.

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[The Commonwealth]: Approach?

THE COURT: Come up here.

****

[Defense Counsel]: Your Honor, this would directly go to
her — this would directly go to her bias on why she’s testifying
here today. She changed her mind about pressing charges once
her boyfriend or fiancé was charged.

[The Commonwealth]: It was never her option to press
charges or not. It’s not that she could’ve said, well, I want to press
charges [sic] and this would’ve gone away.

[Defense Counsel]: I know, but she didn’t want to
cooperate or testify to what she testified to here today.

THE COURT: I’m going to sustain the objection.

N.T. Second Trial, 3/12/18, at 92-93.

This Court has held:

[w]ith regard to evidentiary challenges, it is well established
that [t]he admissibility of evidence is at the discretion of the trial
court and only a showing of an abuse of that discretion, and
resulting prejudice, constitutes reversible error. An abuse of
discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.
Furthermore, if in reaching a conclusion the trial court overrides
or misapplies the law, discretion is then abused and it is the duty
of the appellate court to correct the error.

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citations

and internal quotation marks omitted).

A criminal defendant has the constitutional right to confront witnesses

against him; this right includes the right of cross-examination. See

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Commonwealth v. Buksa, 655 A.2d 576, 578 (Pa. Super. 1995). Cross-

examination can be used to test a witness’s version of the events, to impeach

his credibility, or to establish his motive for testifying. See id.

However, even if we were to find error, an appellant must show that the

court’s decision prejudiced him. Our Supreme Court has stated:

An error will be deemed harmless where the appellate court
concludes beyond a reasonable doubt that the error could not
have contributed to the verdict. If there is a reasonable possibility
that the error may have contributed to the verdict, it is not
harmless. In reaching that conclusion, the reviewing court will find
an error harmless where the uncontradicted evidence of guilt is
overwhelming, so that by comparison the error is insignificant. . .

Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (Pa. 2003) (citation

omitted).

In the instant matter, we need not decide whether the trial court erred

in sustaining the objection because, if there was error, it was harmless. The

record reflects Spangler’s fiancée, Leiphart, admitted he threw the first punch

in the altercation in the bar; the Commonwealth charged him because of it;

and he pleaded guilty to harassment. N.T. Second Trial, 3/12/18, at 135-37,

142-43.

Moreover, there were multiple witnesses to the event, and the

witnesses’ testimony was consistent. See N.T., 3/12-13/18, at 70-80, 97-107,

118-25, 133-42, 154-61, 165-70, 175-87. Thus, regardless of whether

Spangler was reluctant to testify or was biased against Appellant, witnesses

Leiphart, James, Graves, Weagler, and the Wallicks all confirmed her

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J-S65005-19

testimony. See id. Given this, we find Appellant has not and cannot show the

absence of this cross-examination prejudiced him. Therefore, this claim does

not merit relief. See Mitchell, 839 A.2d at 214-15.

In his sixth claim, Appellant argues that the Commonwealth destroyed

evidence in violation of the United States Supreme Court’s decision in Brady

v. Maryland, 373 U.S. 83 (1963). See Appellant’s Brief, at 15-17. We

disagree.

Again, we note that we review evidentiary challenges under an abuse of

discretion standard. Serrano, 61 A.3d at 290.

The law governing alleged Brady violations is settled.

Under Brady and subsequent decisional law, a prosecutor has an
obligation to disclose all exculpatory information material to
the guilt or punishment of an accused, including evidence of an
impeachment nature. To establish a Brady violation, an appellant
must prove three elements: (1) the evidence at issue was
favorable to the accused, either because it is exculpatory or
because it impeaches; (2) the evidence was suppressed by the
prosecution, either willfully or inadvertently; and (3) prejudice
ensued. The burden rests with the appellant to prove, by reference
to the record, that evidence was withheld or suppressed by the
prosecution. The evidence at issue must have been material
evidence that deprived the defendant of a fair trial. Favorable
evidence is material, and constitutional error results from its
suppression by the government, if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.

Commonwealth v. Ovalles, 144 A.3d 957, 965 (Pa. Super. 2016) (citations

and quotation marks omitted) (emphasis added).

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J-S65005-19

In Commonwealth v. Feese, 79 A.3d 1101 (Pa. Super. 2013), this

Court discussed the appropriate standard to apply in cases where, as here,

the appellant alleges the Commonwealth destroyed potentially useful

evidence. The Feese court determined the standard announced by the United

States Supreme Court in Arizona v. Youngblood, 488 U.S. 51 (1988)

applies, and “unless a criminal defendant can show bad faith on the part of

the police, failure to preserve potentially useful evidence does not constitute

a denial of due process of law.” Feese, 79 A.3d at 1108 (citation omitted).

The Court further stated, “[w]hen the value of such evidence was not clear

before its destruction, the burden is on the defense to demonstrate bad faith.”

Id. at 115.

Here, Appellant alleges the Commonwealth destroyed an audio

recording made by the trial prosecutor during his initial interview with

Commonwealth witness Devon Wallick. See Appellant’s Brief, at 16-17. The

parties litigated the issue of the destroyed audio recording at the second

hearing on Appellant’s post-sentence motions. See N.T., Post-Sentence

Motions Hearing, 8/27/18, at 2-7.

At the hearing, the Commonwealth explained it had not previously

interviewed Wallick, but it subpoenaed him and he appeared to testify at

Appellant’s first trial. See id. at 2-4. The trial assistant district attorney

wanted Wallick to speak with a detective; because he did not have any paper

with him, he recorded Wallick’s contact information on his cell phone. See id.

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J-S65005-19

at 2, 4, 7. He later destroyed the recording. A detective conducted a

substantive interview with Wallick and the Commonwealth turned over the

notes of that interview to Appellant. See id. at 2-4.

We have reviewed the record in this matter. Appellant does not dispute

he received the interview notes. Further, the trial court specifically found the

recording was not exculpatory, and noted, “any exculpatory evidence would

have been contained in the actual interview with detectives, which produced

a report, which was turned over to the defense.” Trial Court Opinion, 4/26/18,

at 25. Appellant has not presented any evidence that would call this finding

into doubt. Moreover, Appellant has not argued any facts demonstrating the

Commonwealth acted in bad faith. Therefore, Appellant’s sixth claim does not

merit relief. See Feese, 79 A.3d at 1111.

In his seventh claim, Appellant contends he received ineffective

assistance of trial counsel and the trial court erred in finding that he could only

raise such claims in a Post-Conviction Relief Act Petition.9 See Appellant’s

Brief, at 18-32. This ineffectiveness claim, however, is premature.

In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the

Pennsylvania Supreme Court reaffirmed the general rule first set forth in

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), “claims of ineffective

assistance of counsel are to be deferred to PCRA review; trial courts should

____________________________________________

9 42 Pa.C.S.A. §§ 9541-9546.

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J-S65005-19

not entertain claims of ineffectiveness upon post-verdict motions; and such

claims should not be reviewed upon direct appeal.” Holmes, 79 A.3d at 576.

Although there are three recognized exceptions to that general rule, no

exception is applicable here.10,11 Accordingly, Appellant’s ineffective

assistance of counsel claim is not cognizable on direct appeal and must await

collateral review.

In his eighth claim, Appellant argues the trial court erred in denying his

motion for appointment of a neurological/head trauma expert. See Appellant’s

Brief, at 32-34. We disagree.

____________________________________________

10 The Holmes Court recognized two exceptions: (1) where the trial court
determines a claim of ineffectiveness is “both meritorious and apparent from
the record so that immediate consideration and relief is warranted[;]” or (2)
where the trial court finds “good cause” for unitary review, and the defendant
makes a “knowing and express waiver of his entitlement to seek PCRA review
from his conviction and sentence, including an express recognition that the
waiver subjects further collateral review to the time and serial petition
restrictions of the PCRA.” Holmes, 79 A.3d at 564, 577 (footnote omitted).
A third exception was recently adopted by our Supreme Court for “claims
challenging trial counsel’s performance where the defendant is statutorily
precluded from obtaining PCRA review.” Commonwealth v. Delgros, 183
A.3d 352, 361 (Pa. 2018) (“[W]here the defendant is ineligible for PCRA
review because he was sentenced only to pay a fine, we agree with Appellant
that the reasoning in Holmes applies with equal force to these
circumstances”).

11We note, in its 1925(a) opinion, the trial court did address Appellant’s claims
and found them to be meritless. Trial Ct. Op., at 25-39. However, this is of
no matter to our decision because Appellant did not and has not made any
waiver of his right to seek PCRA relief, let alone a knowing and express waiver.
See Holmes, 79 A.3d at 577.

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J-S65005-19

There are several procedural issues with Appellant’s motion. First,

Appellant filed this motion pro se on February 26, 2018. At that time, counsel

represented Appellant. As we have noted above, Appellant is not entitled to

hybrid representation. See Padilla, 80 A.3d at 1259. Therefore, courts in this

Commonwealth “will not accept a pro se motion while an appellant is

represented by counsel; indeed, pro se motions have no legal effect and,

therefore, are legal nullities.” Commonwealth v. Williams, 151 A.3d 621,

623 (Pa. Super. 2016) (citation omitted).

Secondly, at the time Appellant filed the motion, the court had not

granted him in forma pauperis status and retained counsel represented him.

Our rules only require the allocation of funds for an expert witness for indigent

defendants. See 50 P.S. § 7402(f). Lastly, the motion was untimely. The

Pennsylvania Rules of Criminal Procedure require a defendant give notice of a

defense of insanity or mental infirmity “not later than the time required for

filing an omnibus pretrial motion provided in Rule 579.” Pa.R.Crim.P.

568(a)(1). Here, that time expired in May 2017, approximately ten months

before Appellant filed his motion. See Pa.R.Crim.P. 579(A).

Further, as the trial court correctly notes, a diminished capacity defense

is only available if the Commonwealth charges a defendant with murder in the

first degree. See Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa.

Super. 2007) (citations omitted). Moreover, an insanity defense is generally

only available in cases where the defendant acknowledges commission of the

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J-S65005-19

act, not in a case such as this where a defendant asserts his innocence. See

Commonwealth v. Hughes, 865 A.2d 761, 788 (Pa. 2004) (stating, “[a]

defense of insanity acknowledges commission of the act by the defendant,

while maintaining the absence of legal culpability”).

In any event, Appellant’s claim is based on his unsupported contention,

“there [was] a reasonable probability that the Appellant was suffering from a

concussion due to the multiple blows to the head inflicted upon Appellant[,]”

during the altercation inside the bar and this probable concussion somehow

negated his ability to form the requisite intent. Appellant’s Brief, at 33. Our

review of the record shows Appellant has never claimed he sought medical

treatment following the incident and has never offered any medical

documentation to support his speculative contention he suffered a concussion

because of the altercation. For the reasons discussed above, Appellant’s eighth

claim does not merit relief.

In his final claim, Appellant argues the trial court erred in denying his

speedy trial motion. Appellant’s Brief at 34-37. To address this issue we

observe the following standards.

“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.”

Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa.2012). Moreover,

[t]he 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.

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****

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 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.

Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en

banc), affirmed, 44 A.3d 655 (Pa. 2012) (citations omitted).

We have reviewed the certified record, the briefs of the parties, and the

trial court’s opinion. The trial court ably and methodically addressed this issue

in its Rule 1925(a) opinion. Accordingly, we adopt the trial court’s reasoning,

found on pages 42-45 of its opinion, as our own for the disposition of this

issue. See Trial Court Opinion, 4/26/19, at 42–45 (holding mechanical run

date was January 15, 2018; trial was set for July of 2017 but defense counsel

requested continuance due to unavailability; next available trial date was in

September 2017; 57 days were attributable to defense; therefore trial started

before adjusted mechanical run date of March 13, 2018); see also N.T.,

3/7/18, at 24-27. Appellant’s ninth and final claim does not merit relief.

Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/10/2020

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B A T C H *

Defendant-Name:

Craig Eugene Moss

A P P E A L *

Case Number

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C R — O O 0 1 4 7 1 — 2 O 1 7 *

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Date:
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541991 April 26, 2019 02: 37: 46 PM
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IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
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COMMONWEALTH CP- 67- CR-0001471- 2017

v. 1533 MDA 2018
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CRAIG EUGENE MOSS,
Defendant/Appellant

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COUNSEL OF RECORD:

James E. Zamkotowicz, Esquire Craig E. Moss
Counsel for the Commonwealth Pro se

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OPINION IN SUPPORT OF ORDER PURSUANT TO RULE 1925( a) OF THE
RULES OF APPELLATE PROCEDURE

The Court received a Notice of Appeal, docketed on September 12, 2018, that Craig
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E. Moss, appeals to the Superior Court of Pennsylvania this Court' s Order that was entered
4

on August 27, 2018. The Court has reviewed the record. The Court now issues this Opinion

in support of our Order that was issued on August 27, 2018.

I. Procedural Historv

By an Information docketed on Marc i 16, 2017, the Appellant was charged in

count 1 with t rroristic threats, in count 2 with possession of instruments of crime,2 in count
I

3 with simple ! ssault,3 in count 4 with public drunkenness, 4 in count 5 with disorderly

1 18 Pa. C. S. A. § 2706 a)( I) a u .
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2 18 Pa. C. S. A. § 907( a) r.:p
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3 18 Pa. C. S. A. § 2701( a)( 3) R'

4 l8 Pa. C. S. A. 5 5505 r~

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conduct,s and in counts 6, 7, and 8 with harassment/ strike, shove, kick, etc.6 The matters
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were due to proyceed before our colleague, the Honorable Harry M. Ness; however, owing to
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the trial sched
ing system utilized by York County, the matters were transferred to this
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Court for trial on March 7, 2018. On March 8, 2018, by agreement of the parties and the

Appellant, a m; strial was granted. Trial commenced on March 12, 2018. Following the close

of the Commoriwealth' s case, this Court dismissed the terroristic threats charge. At the

conclusion of the trial, the jury returned verdicts of guilt on possession of instruments of

crime and on simple assault. Regarding the remaining summaries, this Court found the

defendant not uilty of public drunkenness and merged the disorderly conduct into the simple

assault convict n. The Court went on to find the defendant guilty of all three charges of

harassment. However, count 8, which covered harassment by the appellant of Brittany

Graves was later dismissed during post- sentence motions as being unsupported by the

evidence prese 1ted at trial. ( Notes of Testimony, 8/ 3/ 18, at 20.) Sentencing was set for April

2, 2018. Sentencing was continued to April 9, 2018 to accommodate Adult Probation' s
i
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request for mor time to complete a pre- sentence investigation. On Apri19, 2018, the

Appellant received one year less a day to two years less two days for possession of

instruments of crime and sim P le assault, which were to be served concurrentl Y.

Additionally, the Court ordered a$ 50. 00 fine on each of the harassments. Post- sentence
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5 18 Pa. C. S. A. § 5503( a)( 1)
6 18 Pa. C. S. A. § 2709( a)( 1)
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motions were filed on April 11, 2018 and were scheduled for May 31, 2018. An Order

granting a court stenographer an extension until July 4, 2018 to file a transcript was issued
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May 29, 2018. On May 31, 2018, the Appellant' s post-sentence motions hearing was
1
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F,:. continued until August 3, 2018. A number of the Appellant' s post- sentence motions were

denied on Aug st 3, 2018; however, the Appellant having raised a matter regarding the

r•= potential destruction of evidence, a continuance was granted for the Commonwealth to

ascertain if any evidence was destroyed. Via a motion docketed on August 13, 2018, the

Appellant requisted reconsideration of the denial of his post- sentence motions. The matter

regarding the destruction
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of evidence was denied on August 27, 2018.

On September 12, 2018, the Appellant filed his Notice of Appeal of this Court' s
I
Order of August 27, 2018. On October 3, 2018, pursuant to the Pennsylvania Rules of

Appellate Procedure, Rule 1925( b), the Appellant was directed to file a statement of matters

complained of.On October 3, 2018, the Appellant complied and submitted his Concise
I
Statement of Matters Complained of On Appeal, which lists nine matters complained of on

appeal. Those matters, stated by the Appellant, are as follows:

A. Commonwealth fail [ sic] to disprove Appellants [ sic] claim of self[-] defense[.]

B. Was the trial court' s decision not to grant Appellant post[-] sentencing relief under

insuffici ency of the evidence contrary to Jackson v[.] Vir inia

Stn, n, &
C. The Commonwealth deprived Appellant of his 6 14`' Amendment rights

when it used evidence at trial that was not stated in the Indictment or Bill of
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D. The trial court deprieved [ sic] Appellant of his 6t' and 14t" Amendment right to selff-
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representation

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examination when the trial court failed to allow defense counsel the right to show

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Commonwealths [ sic] witness Span lers [ sicl biases

F. Appellant was constructively deprieveved [ sic] of his right to a fair trial when the
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Commonwealth suppressed then destroyed requested video/ audio evidence

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G. The trial court abused its descretion [ sic] in ruling that Appellant could not raise

ineffective assistance of counseluntil [ sic] post[-] conviction

H. The trial courts [ sic] decision to deny Appellant motion for neurological/ head trauma

expert ontrary to clearly established law as decided by the United States Supreme

Court i Clark v. Arizona and McWilliams v[.] Dunn

I. The tri l court errored [ sic] when it denied Appellants [ sic] motion to dismiss for

violation of Appellants [ sic] 6' Amendment ri n
t to speedv trial.

Concise State ent of Matters Complained of On Appeal, at 1- 2. We turn next to a recitation

of the relevant facts.
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II. Facts

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The first witness, Breanne Spangler, took the stand and testified that late on January

14, 2017 and i to the early hours of January 15, 2017, she was with her fi nce at Kiro' s bar
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to celebrate its last night in business. ( Notes of Testimony, 3/ 12/ 18, at 71.) Ms. Spangler
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stated that everyone was having a good time until her friends told her that the defendant was
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groping them. Id., at 72. The defendant had been acting fine until his wife left and then he
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started touching women. Id., at 74. After the girls asked the defendant to stop touching them,

the defendant d Danny got into a scuffle. Id., at 73. Ms. Spangler had seen the defendant
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and Danny argue; however, Ms. Spangler went to the bathroom and, upon emerging from it,

Ms. Spangler testified that she witnessed chaos. Id., at 74. The bar owner, Ron, escorted the

defendant out f the bar and all was fine until the defendant returned about an hour later. ld.,
I

at 75. Ms. Sparigler and her group were about to leave when Ron told them that they could

not because th defendant was outside with a knife. lbid. Danny then left via a side door.

Ibid. On cross- examination, Ms. Spangler stated that Ron told them something to the effect
i
that the defend'ant' s wife, Tara, had called to warn the bar patrons that the defendant was

returning to the bar with a knife. Id., at 89.

Upon proceeding outside, Ms. Spangler saw her fiance and friends in an alley with
1
the defendant. Id., at 76. The defendant was swinging a knife, which caused Ms. Spangler to
i
get between the defendant and Danny and to grab the blade of the knife whilst telling the

defendant that he did not wish to act in this manner, that the defendant was behaving

stupidly, and that the defendant should go home. lbid. The defendant continuously replied

that he did not wish to hurt Ms. Spangler; but, rather, the defendant" just wanted [ to] get

Danny, he warited to hurt Danny." Id., at 77. The defendant was being aggressive and making

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r;;;° taunts along thei lines of look at my new knife. Ibid. Ms. Spangler did not know if the
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defendant specifically stated that he wanted to stab Daimy, she just knew that the defendant
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wanted to hurt Danny. ld., at 78. Ms. Spangler testified that the defendant and Danny had
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been circling oie another down the alley before she inserted herself between them and began

t;;:_ trying to push the defendant back towards 10`" Avenue. Id. at 78- 79. Later Ms. S P an g ler

admitted that both the defendant and Danny were angry. Id., at 90. The defendant eventually

dropped the knife, Ms. Spangler picked it up, and Ms. Spangler was told to drop the knife
i
when the police arrived. ld., at 80.
i

During ross- examination, defense counsel wished to query whether Ms. Spangler

deviated from her initial inclination not to press charges against the defendant and the
I
Commonwealtli objected. Id., at 92. Defense counsel offered this line of questioning to
F

demonstrate bias and the Commonwealth responded that the decision to charge the defendant

was never in M. Spangler' s hands. Id., at 92- 93. The defense proffered that Ms. Spangler

did not wish to cooperate or testify; however, this Court sustained the objection. Id., at 93.
i
The witness, Brittany Graves, testified that she was at Kiro' s for its last night of
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operations. Id., at 98. Ms. Graves told the jury that there were multiple occurrences of the

defendant toucliing her friends inappropriately, which resulted in a scuffle in the bar. Id., at
1
99. The defendant' s genial behavior deteriorated throughout the night as he continued

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imbibing. ld., af 99- 100. After the defendant ignored multiple warnings to keep his hands to

himself, Danny ended up defending his female friends and the defendant was then asked to
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leave. ld., at 100- 01. Ms. Graves did not see Danny throw a punch, but she attempted to

extricate him fr m the ensuing melee. ld., at 101. About an hour after the defendant was
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removed from the bar, the bar owner, Ron, warned the group that the defendant had returned
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F..•. with a knife an then Danny bolted out of a side door. ld., at 102. Ms. Graves also exited and

described a defendant who became increasingly belligerent as Danny and Ms. Graves

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approached him. ld., at 102- 03. Ms. Graves described the defendant as baiting them with the

knife and asking if they wanted a fight. ld., at 103. As Danny and Ms. Graves approached,

the defendant d ew closer before running down the alley. ld., at 104. On cross- examination,

Ms. Graves clarified
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that the defendant was never running for his life; rather, the defendant

was backing away whilst swinging a knife and threatening Danny. Id., at 114. And, on

redirect, it Ms. Graves testified that the defendant had not disengaged and was acting in a

dangerous manrier with the knife. ld., at 116. Ms. Graves confirmed Ms. Spangler' s account

of Ms. Spangler coming between the defendant and Danny and while offers to fight were

made. ld., at 105. Ms. Graves then described how she and the officers recovered multiple

i
knives from the lley. ld., at 106. Ms. Graves described the path of the altercation being

littered with kmves. ld., at 107.
I
Bridget James was the next witness and was a patron of Kiro' s on the night in

1
question. ld., at i119. Ms. James described how her night deteriorated following the defendant
1
grabbing herself and others. ld., at 119- 20. Ms. James stated that the defendant grabbed her
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buttock and that she told him not to do so. Id., at 121. Bridget James saw the altercation

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between Danny and the defendant in the bar. Icl., at 122. During the incident in the alley, Ms.
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James was attempfing to deescalate Danny who had nothing in his hands. Id., at 123- 24. On
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cross- examination, Ms. James agreed that Danny and the defendant were swinging at one
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The def ndant' s interlocutor, Danny Leiphart, was the next witness. Id., at 133.

Danny was in attendance to celebrate the closmg of Kiro' s. ld., at 134. Danny stated that the

defendant was grabbing women' s behinds, that they' d unsuccessfully sought to have the

defendant rem ed from the bar, and that he believed the situation was over when the
i

defendant left with his wife. Id., at 136. Later, when the defendant had, based upon Danny' s
I

testimony, returned to the bar, Danny confronted the defendant. lbid. Danny described a
I

quickly escalating situation that culminated in his punching the defendant and this first

incident ending quickly with people in between Danny and the defendant. Id., at 137. During

cross- examination, Danny admitted that he had wanted to hit the defendant again and was

being pushed back. Id., at 147. The defendant was removed from the bar and, ultimately,

Danny was cha'rged with harassment. Id., at 137. On cross- examination, defense counsel
i
elicited that Danny pleaded guilty to this charge. ld., at 143.

Turnin to the second incident, Danny agreed with earlier witnesses that Ron

attempted to k ep Danny in the bar when the defendant returned, but Danny exited to

confront the man he had been told was looking to stab him. Id., at 138. Danny perceived that

the defendant had returned to retaliate against him. Id., at 140. In response to the

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Commonwealth, Danny explained that the defendant could not have returned to apologize
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because apologies do not end with knives. Id., at 151. On cross- examination, Danny stated it
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was possible he wanted to hit the defendant again. Id., at 148. Danny recounted how Devon

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and Breanne g t between Danny and the defendant and that Breanne was attempting to stop
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the defendant. Id., at 141. Responding to defense counsel, Danny testified that he and the
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defendant were trying to get at one another and that Danny was pushing the defendant back

down the alley by causing the defendant to back away. Id., at 149. On redirect, Danny
f
clarified that hi girlfriend was forcing the defendant down the alleyway as she attempted to

deescalate the situation. Id., at 150. And on re- cross- examination, Danny agreed with defense
1

counsel that as Breanne
i
forced the defendant down the alleyway that he continued after the

defendant. ld., at 153.

Following Danny Leiphart' s testimony, the Commonwealth called Emily Wallick
I
who, along with her friends, was present to say goodbye to Kiro' s. ld., at 154- 55. Ms.

Wallick was not imbibing as she was the designated driver. ld., at 155. Ms. Wallick testified
E

that she was one of the females whose buttocks were grabbed by the defendant, which Ms.

Wallick did not wish to happen. Id., at 156. Pertaining to the first incident, Ms. Wallick saw

the defendant talking to Ms. Spangler, noticed some ensuing commotion, and then saw the

defendant removed from the premises. Id., at 158. Later, as her group was preparing to leave,

Ms. Wallick and her friends were told that they could not leave because the defendant had

returned with knives. ld., at 159. Upon exiting Kiro' s, Ms. Wallick observed Ms. Spangler

9

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attempting to stop the defendant from swiiiging his knife around by holding onto it. Id., at

159. She observed nothing in Danny' s hands. Ibid. Ms. Wallick was afraid that someone was
r:.,

going to be hurt because weapons and a lot of anger were involved. Id., at 160. Ms. Wallick

r-- went on to testify that Ms. Spangler, not the defendant, was attempting to deescalate the

situation and that she does not know that the defendant would have been backing up but- for

Ms. Spangler' s actions to deescalate. ld., at 161.

The next witness, Devon Wallick, was at the bar with the foregoing witnesses, to
1
hoist drinks to Kiro' s. ld., at 165. Mr. Wallick confirmed that the defendant was sneakily
i
grabbing women' s hindquarters and that the women were not appreciative of this. ld., at 166.
i
Though not entirely sure, Mr. Wallick testified that Danny approached the defendant and that

a fight broke out inside of the bar. ld., at 166. As with the other witnesses, Danny recounted

the defendant being removed from the bar and, later, the group being told not to leave the bar

and that Danny,nonetheless exited. Id., at 167. Upon exiting the bar, Mr. Wallick observed
i
Danny approacfiing the defendant who was waving a knife and " hollering a bunch of stuff'
I
that was threatening in nature Id., at 169. Mr. Wallick testified that he saw Danny approach

and the defendant back up before Danny caught up to the defendant and punch him. ld., at
i
170. Mr. Wallick could not remember precisely, but he believed that Ms. Spangler attempted

to break the fight up, that the police arrived, that Danny remained on scene, and that the

defendant had 1 ft prior to the arrival of officers. lbid.

10
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The Commonwealth then called Ron Weagley who was the owner of Kiro' s at the
I
time of the events giving rise to this case. Id., at 175. After the defendant had left with his

wife " the first time," Ron was made aware that the defendant was groping women. ld., at

177. The defendant later returned without his wife— whom Ron later discovered had been

outside of the bar during the first incident between Danny and the defendant. Ibid. When Ron
i
removed the defendant, the defendant paced outside for a while and was very upset and

agitated. ld., at 179. After the defendant had been cajoled into leaving the location, Ron
I
returned to the bar and, at some later point, received a phone call from the defendant' s wife

stating that the clefendant was returning to the bar with a knife. Id., at 180- 81. Ron took this

to be a warning! Id., at 182. Due to attending to a call he had placed to 911, Ron saw only

portions of the events outside of the bar, but he described the defendant' s demeanor as

i
v] ery agitated, screaming." Id., at 184- 85. Of what he saw, Ron did not view the defendant
f

as attempting to disengage or defuse the situation as he backed down the alley with his knife

displayed and with Danriy advancing. Id., at 185. Pushed by the Commonwealth, Ron was
1
unsure how to characterize the manner in which the defendant was holding the knife, but
I
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opined that" holding a knife out at somebody . . . I would say it' s an aggressive manner." Id.,

at 186.

Officer Noah Potteiger took the stand and testified that he was dispatched to Kiro' s
1
for a fight that had possibly involved a knife. Id., at 198- 99. Officer Potteiger spoke with Ms.
I
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Spangler, Ms. James, and Ms. Wallick who he testified were, despite two of them having

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consumed alcohol, not intoxicated. Id., at 201- 03. Officer Potteiger believed their stories to
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have been consistent with one another. Id., at 203.
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Officer Andrew Miller took the stand and testified that he was dispatched to a fight

call at Kiro' s Tavern. ld., at 213. Upon arrival, Ms. Spangler was observed to be holding a
i
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S;: i:=A. knife and pointing down lOt'' Avenue while proclaiming that a man running there had
5.:;,.

possessed the lc ife. Id., at 214. Ms. Spangler dropped the knife when ordered to do so and
I

the officer pursued and caught up to the individual who was walking briskly away from the

scene. Id., at 214- 15. Upon apprehension at a residence, two knives were found on the

defendant and a' third was found under where he had been ordered to the ground. Id., at 216.

The defendant told the officer that he had left the bar with his wife after being punched by a

man with a big black beard and that he was returning to the bar with knives to retrieve his

wife whose safety he was in fear of. ld., at 218- 19. The officer later spoke with the

defendant' s wife inside of the residence. Id., at 219. Though the officer had been speaking to

the defendant o the porch of this residence, the officer did not observe the defendant' s wife
I
enter the residerice in which she was found. Id., at 219- 20. Despite the defendant stating he

had been attempting to retrieve his wife, the officer encountered the wife coming from the

interior of the home, which led the officer to believe, to the best of his knowledge, that she

had been at home. Id., at 220. The defendant' s wife told the officer that she had left the bar

with the defendant. Id., at 221. Nothing indicated to the officer that the defendant' s wife had

returned to tlie ar. Id., at 221.

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During their case in chief, the defense called the defendant' s wife, Tara Moss. ld., at

254- 55. Ms. Moss testified that she and the defendant arrived at Kiro' s between 9: 00 and

9: 30 p.m. Ms. Moss described a pleasurable evening spent with Breanne before Ms. Moss

told the defendant to grab a six pack and to go home. Id., at 255- 56. This occurred around

1: 00 a.m. and Ms. Moss continued that they then proceeded to her mother s home. Id., at
i;;,;

256. Ms. Moss told the jury that, while home, she checked on the children during the time

that the defendant indicated to her that he was going to go to the bathroom and have a
I
cigarette. Id., at; 259. Thereafter, Ms. Moss was unable to locate the defendant. ld., at 260.

4
Figuring the defendant had returned to Kiro' s, Ms. Moss decided to go to Kiro' s around 1: 20.

a.m. Ms. Moss indicated that she found the defendant speaking to Ron about having been

struck in the face. lbid. Ms. Moss then stated that she and Ron convinced the defendant to

return home while Ms. Moss stayed and talked to Ron for a couple of minutes. ld., at 261.

Ms. Moss then,' according to her version of events, returned home again and was told by her
I

daughter that the defendant had returned to Kiro' s after stating that he had to retrieve
1
Mom." Id., at 261- 62. Ms. Moss testified that this was the point when she called Ron and

told him that th defendant was on his way back to the bar and not to let him in. Id., at 262.

During cross- examination, Ms. Moss testified that Breanne told her that the defendant

was grabbing girls' butts, which angered Ms. Moss. Id., at 265. When asked what else

Breanne had told her, Ms. Moss replied: " Just pretty much what happened, that they got into
i

a fight: I don' t really know the whole story. I wasn' t there." Ibid. This point was later

13
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reiterated by Ms.i Moss. ld., at 267. Ms. Moss further testified that she told Breanne that she
F:.;:

saw the defendant leave the house with knives but that she had not actually seen this occur.
F..,,..

Ibid. Ms. Moss ffered that she only related to Ron that her daughter told her that she had

F=
seen the defendant grab something; but, that, she never told Ron that the defendant had a

knife. Id., at 266.

IIL Matter Comnlained of on Appeal
i.

A. Self-Defense

The Appellant' s first matter complained of on appeal is that the Commonwealth

failed to dispro e the Appellant' s claim of self-defense. We disagree.

Where a defendant has invoked self-defense as justification for his conduct, the

Commonwealtli bears the burden of disproving this defense beyond a reasonable doubt.
i

Commonwealth v. Torres, 766 A.2d 342 ( Pa. 2001); see also Co nmonwealth v. Houser, 18

A. 3d 1128 ( Pa. 2011). To raise the issue, there must be some evidence submitted before the
I

Commonwealtli need confront the assertion. Torres, supra. 18 Pa. C. S. A. § 505 provides that

force ma Y be J' stified to p rotect against the unlawful use of force by another person. Even if

one is acting in'justifiable self-defense, recklessly or negligently creating a risk of injury to

innocent p erso s is disallowed. See Commonweulth v. Fowlin, 710 A.2d 1130 ( Pa. 1998).

Where non-deadly force threatens a defendant, the defendant' s self-defense must not be

excessive or el e it is unreasonable. 18 Pa. C. S. A. § 505( b)( 3); Commonwealth v. Jones, 332

A. 2d 464 ( Pa. Super. Ct. 1974); Commonwealth v. Presogna, 292 A.2d 476 ( Pa. Super. Ct.

14

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1972). The Commonwealth disproves self-deiense beyond a reasonable doubt by
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accomplishing } ne of the following:
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1. Demonstrating that the accused did not reasonably believe that he was in
danger of death or serious bodily injury.

2. Demonstrating that the accused provoked the use of force.

3. Demonstrating that the accused had a duty to retreat and the retreat was
possible with complete safety.
4
Commonwealth v. McClain, 587 A. 2d 798, 801 ( 1991), appeal denied 598 A.2d 993 ( Pa.

1991).

Turning to the case sub judice, The Appellant claimed, via his wife' s testimony, that

he returned to fetch her from an unsafe scenario. The jury clearly rejected this testimony,
which conflicted with evidence offered that the Appellant' s wife called the barkeep to warn

him of the Appellant' s return. The jury could only have believed that the Appellant was

worried for his wife by rejecting the testimony of others that indicated that the Appellant left

with his wife.

Per multiple witnesses, the Appellant returned to the bar with numerous knives after

the initial altercation. The Appellant taunted Danny Leiphart, a willing interlocutor, into

proceeding down to where the Appellant stood. The Appellant brandished a knife and stated

that he did not wish to hurt Ms. Spangler, but that he did wish to hurt Danny. The Appellant
i
seems to assert' that any backwards momentum on his part demonstrates that he was

retreating and defending himself. However, the jury may well have inferred from the
1

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voluminous testimony of others that the defendant was simply attempting to get at Danny and
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was being forced backwards by the throng of persons involved. In fact, Danny testified that
h'='+'
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he was pushing ithe defendant back, which, if believed, does not demonstrate that the
I
Appellant was retreating. Rather, the Appellant ignores the testimony, clearly credited by the

jury, that both lie and Danny were swinging at one another. The Commonwealth was able to
i
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demonstrate that the well- armed Appellant could not have reasonably believed he was at any

real risk by virtue of his aggressive words and actions. The Appellant certainly provoked the

use of force when multiple witnesses attested to his having taunted Danny upon Danny' s exit

from the bar. And any opportunity for the Appellant to retreat was rejected by an Appellant

that, according to Ms. Wallick, was not attempting to deescalate the situation. The

Commonwealth' disproved the Appellant' s claim of self-defense beyond a reasonable doubt

and we therefore pray for affirmance as to this matter complained of on appeal.

B. Sufficiency of the Evidence

The Appellant' s second matter complained of is that the evidence presented by the

Commonwealth was insufficient. For the reasons cited infra, we disagree.

In Commonwealth v. Fabian, the Superior Court laid out their standard of review for

sufficiency of tlie
i
evidence challenges as follows:
I
The standard we apply in reviewing the sufficiency of the evidence is whether
viewing' all the evidence admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable the fact- finder to find
every element of the crime beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute our judgment for the fact-
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finder. In addition, we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence. Any doubts
regardirig a defendant's guilt may be resolved by the fact-finder 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. The Commonwealth
may sustain its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and all evidence
actually received must be considered. Finally, the [ finder] of fact while
passing upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.
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60 A. 3d 146, 150- 51 ( Pa. Super. Ct. 2013) ( Commonwealth v. Jones, 886 A.2d 689, 704 ( Pa.

Super. Ct. 2005)):

l. Possession ofInstruments ofa Crime

Appellant was found guilty of possession of instruments of a crime under 18

Pa. C. S. A. § 907( a), which states in relevant parts:
I

a) Criminal instruments generally.— A person commits a misdemeanor of

the first degree if he possesses any instrument of crime with intent to employ
it criminally.

The jury heard that the Appellant possessed multiple knives and that he brandished one
i
whilst taunting Danny Leiphart, which satisfies the element of possession of an instrument of
I
crime. The jury heard that the Appellant indicated that he did not wish to harm anyone save

Danny. This is s fficient to demonstrate the Appellant' s intent to use the knife to threaten

and/ or assault Danny, which would mean that the knife was employed criminally. The

Commonwealth provided sufficient evidence to undergird the conviction of possession of

instruments of a crime and we ask for affirmance as a result.

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2. Simple Assault
a

The Appellant was convicted of simple assault, which is defined, in relevant part, as
f;,,:,.

follows:
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a) Offense defined.-- . . . a person is guilty of assault if he:
a::....
3) Attempts by physical menace to put another in fear of imminent serious
bodily injury[.]

18 Pa. C. S. A. § 2701( a)( 3). The facts speak for themselves. The Appellant wielded knives.

The jury heard that the Appellant stated that he did not wish to harm Breanne Spangler, but

that he " just wanted [ to] get Danny, he wanted to hurt Danny." ( N. T., 3/ 12/ 18, at 77.) These

facts were suffiicient for a jury to include that the Appellant attempted, by physical menace,
1
to put another ' n fear of imminent serious bodily injury. As such, we beg affirmance as to
4
this matter corriplained of on appeal.

3. Harrassment
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The Appellant was convicted of two counts of harassment, which are defined, in
1
relevant part, as follows:
1
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a) Offense defined.— A person commits the crime of harassment when, with
intent to harass, annoy or alarm another, the person:

1) strikes, shoves, kicks or otherwise subjects the other person to physical
contact, or attempts or threatens to do the same[.]

The jury heard from Bridget James that the Appellant grabbed her buttock and she told him
i
not to do so. Emily Wallick testified likewise that the Appellant had grabbed her buttocks.

They were subjected to physical contact that was not desired. Whenever a person imposes
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their unwanted,will upon another then it is impossible to construe the perpetrator' s intent as
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anything other than an intent to harass, annoy, or alarm. The elements of harassment were
F., .
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sufficiently made out by the Commonwealth and we would humbly request affirmance as a

result.

C. Trial bv Surprise
i.,,;
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The Appellant' s third matter complained of is that the Commonwealth utilized
f,,;' i

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evidence at trial that was not stated in the Information or Bill of Particulars. Arguing against

the Commonw alth' s assertion of waiver, the Appellant asserts that this claim attends his
I
sufficiency of the evidence claim. Concise Statement of Matters Complained of On Appeal,

at 8. To the extent that the Appellant is alleging insufficient evidence was adduced, we would
1

note that we have already addressed this contention above. The Appellant was only tried on

the charges list d in the Information. The Appellant alleges no evidenced was produced that

fits the assertion in the information that he held a knife above his head. The Appellant
1
ignores that the Commonwealth alleged in count 3 of the Information that"[ t] he Actor

attempted, by physical menace, to put Danny Leiphart, in fear of imminent serious bodily

injury, by holding a knife over his head in a stabbing position and/ or stating he was going to

get victim." ( emphasis added).
The Information sufficiently put the Appellant on notice that
I
the Commonwealth intended to introduce evidence that the Appellant had held a knife above

1
his head in a stabbing position or that the Appellant had stated that he was going to get the

victim. The jury' did, in fact, hear that the Appellant told Breanne Spangler that he wanted to
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get Danny. Even if a variance between the charging documents and the evidence presented

exists, reversal is only required where the Appellant was prejudiced by the variance.

Commonwealth v. Delbridge, 771 A. 2d 1 ( Pa. Super. Ct. 2001); Commonwealth v. Cannady,

t-- 590 A. 2d 356 ( Pa. Super. Ct. 1991). The Information charged and/ or conduct and the

t Commonwealtli presented evidence to support that the Appellant threatened Danny with a

knife and that the Appellant was swinging a knife about. This Court sees no variance and no
I

prejudice. As such, we dutifully request affirmance.

D. Right of Self-Representation

i
For his fourth matter complained of, the Appellant asserts that he was deprived of his

right of self-representation. We disagree.

In the interest of expediting the Appellant' s appeal, we would simply point to the

record. Prior to the start of the first trial, which resulted in a mistrial, this Court attempted at

length to colloquy the Appellant on his rights vis- a- vis self-representation. ( Notes of
i

Testimony, 3/ 7/ 18, at 1- 23.) The Appellant knowingly and voluntarily waived his right to
I
self-represeritation at trial. The Appellant was offered appellate counsel, which he seemingly
t
accepted. ( Notes of Testimony, 8/ 27/ 18, at 10.) The Appellant later rejected appellate counsel

and this Court did not foist counsel on him. (Notes of Testimony, 9/ 24/ 18, at 1- 4.) For
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support of the appropriateness of our actions in offering counsel to the defendant to act as an

intermediary of sorts that the Court could better understand, we point to Commonwealth v.
4

Tighe, 184 A. 3d 560 ( Pa. Super. Ct. 2018), which states, in part, "' logic . . . indicate[ s] that

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no absolute bar on standby counsel' s unsolicited participation is appropriate or was
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intended."' Id., at 569 ( citing McKaskle v. Wiggins, 465 U. S. 168, 176 ( 1984)). And,
f.,;.

i] n determining whether a defendant' s Faretta rights have been respected,
r:::: the primary focus must be on whether the defendant had a fair chance to
r'.• present his case in his own way. Faretta itself dealt with the defendant' s
affirmative right to participate, not with the limits on standby counsel' s
additional involvement. The specif c rights to make his voice heard that
s;:,: Wiggins;was plainly accorded, form the core of a defendant' s right of self-
representation."

Id., at 569- 70 ( quoting Wiggins, supra, at 177). So long as the Appellant' s case was
I
presented in its own way then we do not believe that the Appellant' s right of self-
1
i
representation was infringed. We believe that the Superior Court' s review of the transcripts
1
will demonstrate that the Appellant imposed his will at every step of the process and ably
I
prosecuted his arguments. The appointment of Appellate counsel was merely to help this

Court better engage the Appellant. We therefore pray for affirmance as to this matter
i
complained of on appeal.

E. Brearine Spangler' s Bias

The Appellant' s fifth matter complained of on appeal is that this Court erred in

denying his trial counsel the ability to effectively cross- examine Breanne Spangler and elicit
j
Ms. Spangler' s biases. We disagree.
I
When defense counsel attempted to ask Ms. Spangler whether she had wanted, at

first, to avoid pressing charges, the following sidebar conversation occurred as a result of the

Commonwealth' s objection:

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Defense: Your Honor, this would directly go to her- - this would
F""`
directly go to her bias on why she' s testifying here today. She
changed her mind about pressing charges once her boyfriend or
F., fiance was charged.
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Cmwlth: It was never her option to press charges or not. It' s not that she
t;- could' ve said, well, I want [ sic] to press charges and this case
would' ve gone away.
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Defense: I know, but she didn' t want to cooperate or testify to what she
I testified to here today.
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Court:
1
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I' m going to sustain the objection.

N.T., 3/ 12/ 18,' at 92- 93.) The Appellant alleges that Ms. Spangler testified in order to curry

favor for her fiancee and to avoid incarceration herself should she not testify. Concise
1
Statement of Matters Complained of On Appeal, at 11. As to the latter allegation, the
I
Appellant doesinot allege that Ms. Spangler was ever threatened with any penalty herself.

Regarding Ms. Spangler' s fiancee, Danny Leiphart, the jury heard that he had been charged

with harassme t and that he had pleaded guilty. On these facts, Ms. Spangler' s testimony

could not have garnered any leniency for her fiancee. While evidence of bias is generally

admissible, "[ t] he decision to permit or limit such examinations is a matter within the sound

discretion of the trial court." Commonwealth v. Murray, 83 A. 3d 137, 159 ( Pa. 2013). We

accept the Appellant' s well- reasoned contention that evidence of bias is admissible; however,

I
we reject its application in this case.

If the S perior Court were to disagree with our curtailing the defense' s questioning of
f
Ms. Spangler regarding any potential bias, then we would argue, in the alternative, that this

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amounts to no more than harmless error. As was stated recently by our Supreme Court in
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Common ealth v. Brown, harmless error exists in the following circumstances:
k;..

the error did not prejudice the defendant or the prejudice was de minimis;

F:. 2) the erroneously admitted evidence was merely cumulative of other
uritainted evidence which was substantially similar to the erroneously
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admitted evidence; or
t;,:-
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3) the properly admitted and uncontradicted evidence of guilt was so
overwh'elming and the prejudicial effect of the error was so insignificant by
comparison that the error could not have contributed to the verdict.

185 A.3d 316, 330 ( citing Common ealth v. Young, 748 A.2d 166, 193 ( Pa. 1999)). We

believe that the properly admitted and uncontradicted evidence of guilt was overwhelming.

Multiple witnesses testified regarding the Appellant being aggressive with a knife and
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threatening Danny Leiphart. Multiple Witnesses described how the Appellant returned to the

bar with multiple knives and how the Appellant enticed Danny to meet him in the parking

lot. Multiple witnesses described the scene as the Appellant was backed down the alley or

was backing d n the alley— yet multiple witnesses characterized the Appellant, whilst

being reversed or reversing, as trying to get at Danny. The evidence was overwhelming.
1
Admitting evidence of Ms. Spangler' s bias would not have overcome the overwhelming

evidence of the Appellant' s assault on Danny Leiphart, the Appellant' s possession of the
I

knife utilized to threaten Mr. Leiphart, or the Appellant' s harassment of two women earlier in

the evening. For all of the above reasons, we request affirmance as to this matter complained

of on appeal.

4 23
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t::;;. F. Destroved Evidence
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Far his sixth matter complained of on appeal, the Appellant argues that he was

deprived of a fair trial when the Commonwealth destroyed video or audio evidence of a
t:; I
meeting it had with
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Devon Wallick. The Appellant correctly cited Brady v. Maryland, 373

r.;;
U. S. 83 ( 1963) for the proposition that evidence favorable to the accused must be turned over
L
to the defense pon request when it is material either to guilt or punishment. This has been
E

codified in Pennsylvania and the rule can be found at: 42 Pa. C. S. A. § 9543. However, in

order for this Ciurt to have granted relief premised upon a Brady violation, we would have
I
had to have been satisfied that the evidence"' could not have been obtained by reasonable

diligence, that it is not cumulative or of such a nature that it merely impeaches credibility,

and that it would likely compel a different result."' Commonwealth v. Lambert, 765 A.2d

306, 324- 25 ( Pa. Super. Ct. 2000) ( quoting Commonwealth v. Carbone, 707 A.2d 1145, 1148

n. 6 ( Pa. Super. Ct. 1998) ( citation omitted)). The Appellant in this case has made a bald

assertion that such evidence existed and was exculpatory. The Commonwealth explained that

their trial A.D.A., Matthew R. Swisher, Esquire, who was no longer with the York County

District Attorney' s Office, had been contacted and he had explained that there had been a
i

recording on his personal phone. ( Notes of
Testimony, 8/ 27/ 18, at 2- 3). The
madei
Commonwealth asserted that the recording covered non-substantive issues and was utilized

to arrange a follow-up interview with detectives, which resulted in the generation of a police

report that was provided to defense counsel. Id., at 3. This would not be exculpatory
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evidence. Any exculpatory evidence would have been contained in the actual interview with
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detectives, which produced a report, which was turned over to the defense. For these reasons,
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we ask for affir ance as to this matter complained of on appeal.
S:'

G. PCR`A Claims

For his 'seventh matter complained of on appeal, the defendant argues that this Court

erred in disallo ing him to raise ineffective assistance of counsel claims under the Post-

Conviction Relief Act( hereinafter: PCRA) during the direct review stage of his case. We

disagree.
I

In Commonwealth v. Grant, the Supreme Court of Pennsylvania held that, " as a

i
general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel

until collateral review." 813 A. 2d 726, 738 ( Pa. 2002). This is the general rule under which
i

this Court decided not to hear the Appellant' s PCRA claims. It was only in hindsight that we

have identified Commonwealth v. Holmes, which reaffirmed the holding of Grant while

simultaneously; stating their trust that, " trial courts, in short sentence cases where a request is

made to Iitigate collateral claims in the post- verdict scenario, will recognize these practical

concerns and li erally allow for unitary review." 79 A.3d 562, 578 ( Pa. 2013). Owing to the

short remaining portion of the Appellant' s sentence, in evaluating whether this Court erred,
i
the issue becomes whether any of the Appellant' s PCRA claims had a chance of succeeding.
i

Thus, we turn to a recitation of basic PCRA law.

It is sta ed in Strickland v. Washington that, " the benchmark for judging any claim of
I

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ineffectiveness inust be whether counsel' s conduct so undermined the proper functioning of
r:,-=

the adversarial process that the trial cannot be relied on as having produced a just result."
F,.,..

1
466 U. S. 668, 686 ( 1984). Pennsylvania codified this principle in the Post- Conviction Relief

r:-- Act, which provides post- conviction relief for"[ i] neffective assistance of counsel which, in

the circumstances of the particular case, so undermined the truth- determining process that no

reliable adjudication of guilt or innocence could have taken place." 42 Pa. C. S. A. §

9543( a)( 2)( ii). Pennsylvania' s Supreme Court has interpreted this to mean that to show

i
ineffective assistance of counsel, a petitioner must show that:
1
1) the claim underlying the ineffectiveness claim has arguable merit; ( 2)

counsel' s actions lacked any reasonable basis; and ( 3) counsel' s actions
resulted' in prejudice to petitioner.

Commom ealth v. Cox, 983 A.2d 666, 678 Pa. 2009 citin g Commonwealth v. Collins 957
i
A.2d 237, 244 ( Pa. 2008)); See also, Commonwealth v. Rollins, 738 A.2d 435, 441 ( Pa. 1999)

citations omitted). " A chosen strategy will not be found to have lacked a reasonable basis
I

unless it is proven `that an alternative not chosen offered a potential for success substantially
I
greater than the' course actually pursued."' 983 A. 2d 666, 678 ( Pa. 2009) ( quoting
i
Commonwealthyv. Williams, 899 A. 2d 1060, 1064 ( Pa. 2006) ( quoting Commonwealth v.

Howard, 719 A 2d 233, 237 ( Pa. 1998))). In Commonwealth v. Pierce, the Pennsylvania
i

Supreme Court wrote that, "[ p] rejudice in the context of ineffective assistance of counsel
I

means demon:strating that there is a reasonable probability that, but for counsel' s error, the

outcome of the proceeding would have been different." 786 A.2d 203, 213 ( Pa. 2001) ( citing

26
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ff,i
I

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A: 1
i

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5 7.

Commonwealth v. Kimball, 724 A. 2d 326, 332 ( Pa. 1999)), abrogated on other grounds,

Commonwealth' v. Grant, 813 A.2d 726 ( Pa. 2002); See also, Commonwealth v. FletcheY, 986

A.2d 759, 772 ( Pa. 2009) ( citations omitted). Lastly, " the law presumes that counsel was

F a

effective and th'e burden of proving that this presumption is false rests with the petitioner."

S;, Y:::
983 A. 2d 666 678 ( Pa. 2009) ( citing Commonwealth v. Basemore, 744 A.2d 717, 728 ( Pa.
1

i` 2000)). The law restated, we turn to the individual claims.

False Statements by the Commonwealth During Opening Statements

The Appellant opines that the Commonwealth made false statements during its
a

opening statement that prejudiced the Appellant. Concise Statement of Matters Complained

of on Appeal, at 15. First, the Appellant argues that as this Court found him not guilty of

public drunkenness then it was false for the A.D.A. to label the Appellant as a drunk. The
1
first prong of tlie test for ineffectiveness queries whether there is any arguable merit to the

claim. Commo ivealth v. Cox, 983 A. 2d 666, 678 ( Pa. 2009) ( citation omitted). There is no
i
arguable merit to this claim. All juries are informed that opening statements are not evidence.

Whether or not the Appellant was in fact intoxicated has no bearing upon the charges that

were being decided by the jury. Brittany Graves described the Appellant' s behavior in a

manner that evidenced his decline as he imbibed. (N.T., 3/ 12/ 18, at 99- 100.) Danny Leiphart,

described the Appellant as drunk. Id., at 135. Just because the Court chose not to credit the

testimony does+not mean that the Commonwealth misled the jury in their opening statement.

Moreover, the prosecutor, at the time of these remarks, was pursuing a public drunkenness
27
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charge. It stands to reason that the Commonwealth believed that the evidence that would be

adduced would bear
j
out that charge. Additionally, the third prong of the test for
r_ E
ineffectiveness is also not met where there was no prejudice to the Appellant. As addressed

F"'''
supra, the Commonwealth presented sufficient evidence to convict the Appellant of the

charges that the jury found him guilty o£ Per Pierce, we cannot find that, but for any error on

r;;;: counsel' s part i not objecting to the Commonwealth' s opening, there was a reasonable

probability of a;different outcome to the proceeding. 786 A.2d, at 213. As the Appellant

cannot meet two of the prongs of the test for ineffectiveness, the claim cannot succeed.

Therefore, there would have been no merit to a hearing on this claim and we ask for

affirmance.

Regarding the Appellant' s second sub- claim, that the Commonwealth' s opening

misled the jury regarding the initial incident in which Danny Leiphart punched the Appellant,

we are unsure s to exactly what the Appellant is claiming. Ms. Spangler testified that the
I
t
Appellant' s wife left without him and prior to the Appellant being punched by Danny

Leiphart. This accords with the Commonwealth' s opening statement. It is true that Danny
1
Leiphart and Ron Weagley' s testimony support the Appellant' s contention that he left with
i
his wife and returned without her prior to the first instance of fisticuffs. However, an

objection by trial counsel would not have succeeded where the Commonwealth was allowed

to tell the jury what evidence they believed that they would elicit and so there is no merit to

the claim. Cox, supra. Moreover, the Appellant suffered no prejudice where the jury was

28

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c:;;; fully aware that Danny Leiphart had been charged and convicted for his conduct in punching
r.,,
I
the Appellant arid where Danny Leiphart testified himself that he confronted the Appellant

upon the Appellant' s return. Cox, supra. This seems like nothing more than an instance in
i
which some of the testimony slightly differed from the initial picture painted by the
i
Commonwealth It is a common occurrence in trials and not one for which we believe trial

counsel could h ve been found ineffective. We pray for affirmance as to this matter.

2. Solicitation ofKnown False Testimony

A PP ella t believes his trial counsel was ineffective for failin g to obJ ect to Officer

Miller testifying that he had no indication, beyond the Appellant' s statement to him, that the

Appellant' s wif had returned to the bar. Appellant submits that this is in direct contradiction

of the testimony offered by Ron Weagley that the A PP ellant' s wife was outside of the bar

after the first incident. We see no contradiction. Mr. Weagley testified that he discovered that

the Appellant' s wife had been outside the bar during the initial incident. Unless we are

wholly misunderstanding the Appellant' s point, A.D.A. Swisher, in questioning Officer
1

Miller, was seemingly referring to whether there was any evidence of the Appellant' s wife

having returned to the bar after having left with the Appellant. This could have encompassed
Mr. Weagley' s t stimony that the Appellant and his wife were outside of the bar together
i

after the first incident. Nothing in Mr. Weagley' s testimony indicated that the Appellant' s

wife stayed behind after she and Mr. Weagley convinced the Appellant to go home. ( N. T.,

3/ 12/ 18, at 181.) From this, Officer Miller might have gleaned that the Appellant' s wife did
I
29

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not return to the bar after this point. It is only the Appellant' s wife who indicated that she did

not accompany her husband home after he had spoken to Ron Weagley. The AppellanYs wife
r
testified after Officer Miller. We see no merit to the claim. Cox, supra. The Appellant cannot

F'' meet the first prong of the test for ineffectiveness— a test in which all three prongs must be

met. This PCRA claim would have failed and so we ask for affirmance.

S... i'; k 3.1 Use ofLies in Closing Arguments
i
The Appellant alleges ineffectiveness in his counsel' s failure to object to the

Commonwealtli attorney indicating that Ron Weagley testified that the Appellant and his
I
wife left together after the first incident. In support of this, the Appellant cites to Ron

Weagley testifying that he watched the Appellant proceed down the alley after the first
I
incident. Conci`se Statement of Errors Complained of On Appeal, at 19. This elides the fact

that Mr. Weagley, in the referenced section, was speaking of the Appellant and not of the

location of the ppellant' s wife. The jury was free to make inferences regarding the
i

testimoriy and decide for themselves what actually happened. In Commonwealth v. Koehler,

the Supreme C urt of Pennsylvania stated the following regarding prosecutorial misconduct:

A] claim of ineffective assistance grounded in trial counsel' s failure to object
to a prosecutor' s conduct may succeed when the petitioner demonstrates that
the prosecutor' s actions violated a constitutionally or statutorily protected
right, such as the Fifth Amendment privilege against compulsory self-
incrimination or the Sixth Amendment right to a fair trial, or a constitutional
interest such as due process. To constitute a due process violation, the
prosecutorial misconduct must be of sufficient significance to result in the
denial of the defendant' s right to a fair trial. The Touchstone is fairness of the
trial, not the culpability of the prosecutor. Finally, not every intemperate or
improper remark mandates the granting of a new trial; reversible error
30

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F:_,. occurs only when the unavoidable effect of the c/iallenged comrrients would
4;
prejudice tlze jurors andform in their minds afixed bias and Izostility
toward t/ze defendant such tlzat t/ie jurors could not weigh the evidence and
render i true verdict.

36 A. 3d 121, 144 ( Pa. 2012) ( internal citations and quotation marks omitted). We cannot find

a::;. that the jurors would have been so prejudiced by this potential mischaracterization by the

Commonwealtli attorney as to have been unable to render a true verdict. The Appellant, then,

cannot meet th third prong of the test for ineffectiveness outlined in Cox, supr•a. Counsel

could not have been found ineffective on this matter and so the Appellant suffered no harm
i
regarding his PCRA not having been heard on the matter. We request affirmance.

The Ap ellant also points to the Commonwealth attorney characterizing witness

testimony as supporting a view that the Appellant was swinging knives and ranting and
I

raving as an example of mischaracterization in his closing and to which defense counsel

should have objected. As recounted in our facts section above, various witnesses testified that
i
Ms. Spangler restrained Appellant' s knife- wielding hand or the blade itself and that the
f

Appellant was taunting Danny about the Appellant' s new knife. We see no

mischaracterization. There is neither merit to the claim, nor prejudice to the Appellant. We
i
ask for affirmance as to this matter complained of on appeal.

f4. Prosecution Vouching for Commonwealth Witnesses

The Appellant believes his counsel was ineffective for failing to object to the

prosecution' s rgument to not be confused by defense arguments about Danny Leiphart being

the actual aggressor. Ab initio, we believe the claim is waived for failure to develop it. Even
3l

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if it is sufficiently developed, there is no merit to this claim. Cox, supra. " A prosecutor `has
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great discretion during closing argument' and is ` free [ to present] his [ or her closing]

arguments with`logical force and vigor."' Commonwealth v. Cash, 137 A.3d 1262, 1273 ( Pa.

2016) ( quoting Commonwealth v. Eichinger, 108 A. 3d 821, 836 ( Pa. 2014)). And,

p] rosecutorial comments based on the evidence or reasonable inferences therefrom are not
t
i
k" nor that merely flair."'
objectionable, are comments constitute oratorical
Ibid. (quoting

Commonwealth+v. Chmiel, 30 A. 3d 1111, 1146 ( Pa. 2011). Additionally, the Commonwealth
i
is permitted, in its closing, to confront the arguments of the defense. See Commonwealth v.

Miller, 172 A.3d 632, 644 ( Pa. Super. Ct. 2017). The Commonwealth was merely

confronting the Appellant' s justification defense. It is facially apparent that the Appellant

cannot meet all three prongs of the test for ineffectiveness and this claim would have failed

following a PCRA hearing. We seek affirmance as to this matter complained of.

5. Jury Instructions
I
The Appellant submits numerous allegations of trial counsel ineffectiveness for

failing to garner the giving of instructions he wished the jury to have heard. We address them

as succinctly as' possible.
I
There is no merit to a claim that trial counsel was ineffective for not procuring an
t
1
instruction on the right to bear arms. The right to bear arms does not bear upon a charge of

I
simple assault. The right to bear arms does not grant a person the right to assault someone.

There is no merit to the claim. Trial counsel was not ineffective for failing to obtain
j
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instruction on tliis precept. The Appellant caiviot meet at least one of the prongs of a test in
i
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which he must meet all three and so the PCRA claim would have failed anyway.

a,' The Appellant was not prejudiced by trial counsel not requesting an instruction on
f
justification— defense of others. For, even if counsel erred in failing to request a needed
a
instruction, ineffectiveness will only be found where prejudice is also shown. See
M

5•
Commonwealth v. Knig ht, 611 A.2d 1199 Pa. Su P er. Ct. 1992 Commonwealth v. Potts 566

A. 2d 287 ( Pa. Super. Ct. 1989). The jury having heard that the Appellant was taunting Danny
i
Leiphart about Appellant' s new knife and making statements about wanting to hurt Danny
1

and not Ms. Spangler, we cannot find that a different result would have occurred had the
i
instruction been requested. The Appellant cannot meet at least one of the prongs of a test in

which he must meet all three and so the PCRA claim would have failed anyway.
The Appellant was not prejudiced by his counsel' s failure to request an instruction on

use of force to protect. property. As with his desired defense of others instruction, the force of

evidence adduced to show that the Appellant wished simply to assault Danny Leiphart

convinces this Court that the Appellant was not prejudiced. No different result would have

occurred had the jury been instructed on the defense of property. Counsel was not ineffective
I
on this charge. Moreover, though it is possible this Court has overlooked some evidence, we

do not find eviclence in the trial transcript regarding the Appellant having been robbed or
i

needing to defend property. Thus, he likely would not have been entitled to an instruction on

the defense of
property. See Commonwealth v. Butler, 533 A.2d 992 ( Pa. 1987). The
a

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Appellant cannot meet at least one of the prongs of a test in which he must meet all three and

so the PCRA claim would have failed anyway.

For the reasons already stated ( i. e. the Appellant taunted Danny Leiphart and stated
r;::::,

F"
his desire to hurt Danny Leiphart), the Appellant' s additional desired instructions on use of a
a:::..

device to protect property, use of force to pass a wrongful obstructer, and peace officer' s use

of force in mak ng an arrest also necessarily fail. The Appellant simply was not prejudiced by

any failure of his counsel to request his desired instructions where the overwhelming weight

of the evidence demonstrated that the Appellant was spoiling for a fight with Danny

Leiphart. Counsel' s actions did not preJudice the Appellant and a PCRA hearing would not
f
3
have developed any more useful evidence to support such a contention. We request

affirmance as tO these matters complained of on appeal.

Constructive Deprivation of Right to Counsel

The Appellant complains that his counsel did not file motions he wished to have been

filed. It must b noted, that the Appellant complains of the actions of his first trial counsel,
1
who was replaced following the mistrial. The Appellant ignores the ethical duty of lawyers
i
not to burden courts with motions they deem frivolous. Moreover, the Appellant filed
f
numeYous pretrial motions pro se, which were addressed by this Court prior to trial. As

addressed in o r response to the Appellant' s claim that he was deprived of his right to self-

represent, the transcripts bear out that the Appellant sought at all times to avail himself of all

of the advanta es of counsel and of being pro se. His pro se motions were addressed by this

34
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Court. Thus no prejudice accrued to the Appellant. The Appellant cannot meet at least one of

h..,
the prongs of a test in which he must meet all three and so the PCRA claim would have failed
t,;:,,,

anyway. We therefore humbly request affirmance on this matter.
t;..:..

The Appellant also complains that his first trial counsel admitted his guilt to certain

crimes in contravention of the holding in McCoy v. Louisiana, 138 S. Ct. 1500 ( 2018)

Holding in part that counsel could not cede defense of a charge without consent of the

accused). We agree wholeheartedly with the Appellant. However, the rub is that Appellant' s

first trial ended in a mistrial. Any failures of his first trial counsel did not harm the Appellant

on retrial. The Appellant has suffered no prejudice. The Appellant cannot meet at least one of

the prongs of a test in which he must meet all three and so the PCRA claim would have failed

anyway. We p ay for affirmance as to this matter complained of on appeal.

7. Preparedness of Counsel

T'he Appellant argues that his trial counsel was ineffective as a result of the limited

time that she and the Appellant spent in preparation together. We disagree.
f
I

To begin, we note that, at the conclusion of the mistrial, the following exchange
f
I

occurred with Appellant' s first trial counsel, whose firm supplied Appellant with retrial

counsel:

Court: Well, Pm noting that you indicated yesterday there was an
attorney prepared to take your place, so I' m kind of holding
you to that.

Defense: Absolutely, Your Honor.

35

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F: Notes of Testimony, 3/ 7/ 18, at 146.) Moreover, the Appellant was aware, at the time of trial,
1

F,,,;,
of the issues he,highlights as wishing to have discussed with his trial counsel— save for a

lack of time. Tliough the Appellant alleges he did not have enough time to prepare with
F;.: ,.
substitute counsel, the Appellant could have alerted counsel to these issues during trial.

Finally, this complaint lacks merit where it contradicts, in part, the Appellant' s earlier claim
1
s,. i<
that this Court denied his right to self-representation. By his own complaints, the Appellant
i

alleges that he was ready to steward his own case. It follows, then, that the Appellant was

perfectly capable of aiding his trial counsel and informing her of areas that he wished her to

delve into. Specifically, Appellant' s allegation that his $ 100. 00 bill and $ 200. 00 Carhartt

jacket were stolen at Kiro' s could have easily been discussed with his counsel during the

course of the trial and put to the test. Concise Statement of Matters Complained of On

Appeal, at 25. The Appellant' s allegation that his vehicle was parked at" T7S Trophies" is

incongruent with the testimony of the Appellant' s wife and Ron Weagley about the

Appellant walking home after the first altercation when Danny Leiphart and his cohort were
I

still inside Kiro' s. Ibid. The Appellant does not allege that counsel was unwilling to hear him

out; but, rather, that there was insufficient time with his trial counsel. This is patently false.
i
There is no merit to this claim of ineffectiveness.

In addition to failing to meet the first prong of the test for ineffectiveness, the

Appellant canriot meet the prejudice prong of the test for ineffectiveness. The overwhelming

evidence, as illustrated in the fact section of this opinion, indicates that the Appellant was

36

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taunting Danny Leiphart with a knife, was attempting to get at Danny, and proclaiming his
i

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desire to harm Danny. Moreover, the Appellant' s wife called Ron Weagley to warn him that

the Appellant was, depending on whose version of events is to be believed, returning with a
r "'

knife or" something" and not to allow the Appellant entry to the bar. This evidences the
I

Appellant' s wife' s state of mind regarding the Appelant' s return to Kiro' s. Additionally, the
c;;,;.

Appellant was carrying a kitchen drawers worth of knives. Though the Appellant is sure to

argue that not all of the knives located were found on him, some knives were found on the
I
Appellant and others were located along the Appellant' s path of travel. As a typical person
I
could defend tliemselves with, at most, two knives at one time, the jury could reasonably

infer nefarious ntent from the sheer number of knives the Appellant brought to an altercation

in which no one testified that Danny Leiphart displayed any weaponry. The Appellant

suffered no prejudice from lack of evidence being presented that he may have had some
I
legitimate reasons to return to the bar. The Appellant' s illegitimate reason was on full display

for the jury. Tlie Appellant cannot meet at least one of the prongs of a test in which he must
1
meet all three and so the PCRA claim would have failed anyway. We hope for affirmance on
1
this matter co plained of on appeal.

8. Selective Prosecution

The Appellant next alleges that he is the victim of selective prosecution. For the

following reasons, we disagree.
f

The Appellant alleges that this selective prosecution was evidenced by the following

37

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r..< testimony of Officer Andrew Miller:

Cmwlth; So after you spoke with the Defendant, after you spoke with his
I wife, what happened next?

Witness After I was speaking with his wife, the - - one of my superior

s officers came down, notified me the extent of the investigation
up on East l Oth at North Court, advised me of possible
charges, and at that point, we were instructed to transport Mr.
Moss to central booking.
F.,. . i.

N. T., 3/ 12/ 18, at 221.) The Appellant alludes to some vague accusation of impropriety

premised upon he granddaughter of the mayor being one of the persons involved with
t
speaking to police about his charges and the Appellant cites the above passage in support of
4
that contention. Concise Statement of Matters Complained of On Appeal, at 27. In

Commonwealt v. Tanner, our Superior Court outlined the test for establishing a prima facie
i
case of selective prosecution:
4

A] defendant must establish, first, that others similarly situated were not
prosecuted for similar conduct, and, second, that the Commonwealth' s
discriminatory prosecutorial selection was based on impermissible grounds
such as race, religion, the exercise of some constitutional right, or any other
such arbitrary classification. The burden is on the defense to establish the
claim; it is error to shift the burden to the prosecution to establish or refute the
claim. Because of the doctrine of separation of powers, the courts will not

lightly interfere with an executive' s decision of whom to prosecute.

A. 3d --- ( Pa. Super. Ct. 2019), 2019 WL 963243 ( quoting Commonwealth v. Murphy, 795
i
a
A. 2d 997, 1000 ( Pa. Super. Ct. 2002)). We recall no testimony regarding the mayor, nor do
1
we find mention of the mayor in the index of the trial transcript. We do not believe that
I
additional testimony at a PCRA hearing would have been helpful on this point as the

38
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t:.,. Appellant' s attendant accusation that he was the only person charged is patently false where
t,:

F:.:,..
Danny Leiphart,was charged and pleaded guilty to harassment. That other wrongdoers might

have escaped justice would be unfortunate but not, in our view, violative of the above-

reproduced test Another similarly situation person, Danny Leiphart, was charged. The

Appellant was riot charged with any theft-related charges. Ergo, any conduct by another
t,...

r,..= along those grounds would not have been similarly situated to the Appellant. Moreover,

having viewed footage of the initial altercation, within Kiro' s, this Court was unable to

determine if an one else, besides Danny Leiphart, punched the Appellant. We suppose better

or more attentive eyes might locate such activity; but, again, Danny Leiphart did face

criminal charg s. The officers made an independent decision to charge the Appellant that

may well have,'reflected the severity of fisticuffs versus dangerous weapons. As the

Appellant cannot meet the first part of the test, in the name ofjudicial economy, we decline
f
to analyze the second portion of the test. There is no merit to this claim. We hope for
affirmance.

H. Denial of Neurolo ical/ Head Trauma Expert
ti

For his' eighth matter complained of on appeal, the Appellant avers that this Court

7 This Court is conizant that we are not to cite unpublished cases or rely upon their holdings. See 210 Pa. Code
6537. Nonetheless, we may be guided by their persuasive analysis. The Appellant' s case is somewhat like
that of Commonwealth v. Jones, 2015 WL 6457983 ( Pa. Super. Ct. 2015), which cites to published law. There,
the defendant' s actions were adjudged more culpable fhan those who were not charged. The Jones court
recognized that"[t] he Commonwealth has the prerogative to recommend leniency in exchange for truthful
testimony. Id., at 3 ( citing Commonwealth v. Childress, 799 A. 2d 805 ( Pa. Super. Ct. 2002). And, as was stated
in Commonwealth v. Tanner,--- A3d---( Pa. Super. Ct. 2019), 2019 WL 963243,"[ b] ecause of the doctrine of
separation of powers, the courts will not lightly interfere with an executive' s decision of whom to prosecute."
39

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erred in denyingihis request for a neurological/ head trauma expert. The Appellant believes
k

that he was rendered incapable of possessing the requisite mens rea by virtue of a

concussion. We disagree.

F.' 8
The crime of sim P le assault b Y P h Y sical menace is a crime re q uirin g s P ecific intent.

Commonwealth v. Walker, 139 A. 3d 225, 234 ( Pa. Super. Ct. 2016). Though the Appellant

G
references " capacity," we are unclear if he is referring to the " diminished capacity defense,"

which is only available, in Pennsylvania, during the guilt phase, for a charge of first-degree

murder. See Commonwealth v. Garcia, 479 A.2d 473 ( Pa. 1984). Additionally, a diminished

capacity defense is unavailable to a defendant who asserts his innocence— as the Appellant
f

has. See Commonwealth v. Williams, 846 A. 2d 105 ( Pa. 2004). This issue aside, we start with

the presumption that criminal defendants are sane. Commonwealth v. Yasipour, 957 A.2d

734, 738 ( Pa. Super. Ct. 2008). Pennsylvania has rejected all standards, aside from the
i

M' Naghten Rule, for determining legal insanity. See, e. g., Commonwealth v. Zettlemoyer,

454 A. 2d 937 ( Pa. 1982); Commonwealth v. Weinstein, 451 A. 2d 1344 ( Pa. 1982). Codified

at 18 Pa. C. S. A§ 315, the M' Naghten Rule is applicable and enunciated as follows:
J
a) Gerieral Rule.– The mental soundness of an actor engaged in conduct

charged to constitute an offense shall only be a defense to the charged offense
when the actor proves by a preponderance of evidence that the actor was
legally insane at the time of the commission of the offense.
I
I
b) Definition. –For purposes of this section, the phrase " legally insane"
means that, at the time of the commission of the offense, the actor was

laboring under such a defect of reason, from disease of the mind, as not to
l
8 18 Pa. C. S: A. § 2701( a)( 3)
40
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know the nature and quality of the act he was doing or, if the actor did know
the quali'ty of the act, that he did not know that what he was doing was wrong.

F"'`
See also Commonwealth v. Woodhouse, 164 A.2d 98 ( Pa. 1960); Commonwealth v. Andre,

17 A.3d 951 ( P. Super. Ct. 2011). As with diminished capacity, which we discussed supra,
f,,,

a] defense of insanity acknowledges commission of the act by the defendant, while

maintaining the absence of legal culpability." Commonwealth v. Smith, 609 A.3d 873 ( Pa.
t

A''`
2011) ( citing, i ter alia, Commonwealth v. Hughes, 865 A. 2d 761, 788 ( Pa. 2004) ( citations

omitted)) ( emphasis added). The Appellant has steadfastly maintained that he did not act out

the elements of the crimes charged— and he continues to do so on appeal. Per

Commonwealth#v. Simms, 324 A.2d 365 ( Pa. Super. Ct. 1974), blows to the head may

establish insanity; however, the Appellant would have had to of admitted that the acts

occurred and c uld not be seeking to advance the inconsistent defenses that the elements of

the crimes were not met and that he lacked capacity to be liable for them.

Owing a duty of candor to the courts and all parties, we do not deny that, upon the
request of an iridigent defendant, reasonable funds should be made available for a psychiatrist
i

of the defendarit' s choice. See Commonwealth v. Plank, 478 A.2d 872 ( Pa. Super. Ct. 1984).
i

However; again, the Appellant did not acknowledge the commission of the acts alleged.

Moreover, no vidence from any witness, nor even the defendant' s wife, was adduced that
i

the Appellant was acting out of sorts, unlike himself, or that the defendant was exhibiting
neurological d ficiencies. We do not find anywhere in the record where the Appellant has

submitted medical records indicating that he suffered neurological damage as a result of Mr.
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Leiphart' s savagery. No doctor' s note or treating records, nor even any evidence that the
F`' ` defendant sou g h, out medical care followin g the incidents at Kiro' s were P rovided b Y the
F.,...:..

defendant to this Court. The Appellant made only a bald assertion without acknowledging the

a. commission of the acts alleged. Trusting that if we have erred then our judicial betters will

set us right, we request affirmance as to this matter complained of on a
pp eal.

I. Rule 600

For his inth matter complained of on appeal, the Appellant alleges that this Court

erred in denying his motion for dismissal of the charges based upon a breach by the

Commonwealth of the Appellant' s right to a speedy trial. We disagree.
l

In Commonwealth v. Riley, the Superior Court neatly summated the basics of Rule

600 as follows:

Rule 600 provides, inter alia, that a defendant on bail is entitled to have trial
commence no later than 365 days after the complaint date. When computing
the number of pretrial days attributable to the Commonwealth under this rule,
certain delays are excluded, such as those occasioned by defense
postponements, by express defense waivers of Rule 600, by the unavailability
of the defendant or defense counsel, and/ or by the fact that the defendant
could not be located and apprehended.
1
19 A. 3d l 146, 1148- 1149 ( Pa. Super. Ct. 2011) ( citing Pa. R.Crim.P. 600( A)(3) and

Pa. R.Crim.P. 6 0( C)).

Even when the defendant' s case has not been called for trial and the days subject to

the delay appe fr to be attributable to the Commonwealth, a Rule 600 motion will not
necessarily succeed. Such a motion should be denied if the Commonwealth demonstrated

42

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due diligence in attempting to bring the defendant to trial and the circumstances necessitating

a..
the delay were beyond Commonwealth' s control. Riley, 19 A.3d 1146, 1149 ( Pa. Super. Ct.

2011) ( citing Commonwealth v. Frye, 909 A.2d 853, 858 ( Pa. Super. Ct. 2006) and

Pa. R.Crim.P. b00( G)). This combination of due diligence and circumstances which are

found to be beyond Commonwealth' s control is referred to as " excusable time."
J
Commonwealth v. Frye, 909 A. 2d 853, 858 ( Pa. Super Ct. 2006) ( quoting Commonwealth v.
J
i
Hunt, 858 A.2d' 1234, 1241 ( Pa. Super. Ct. 2004)).

From our review of case law, there is no simple definition of due diligence.

Rather, "'[ d] ue diligence is a fact- specific concept that must be determined on a case-

by- case basis." Commonwealth v. Hunt, 858 A.2d 1234, 1241 ( Pa. Super. Ct. 2004)

quoting Commonwealth v. Hill, 736 A.2d 578, 588 ( Pa. 1999)). And, "'[ d] ue

1
diligence does not require perfect vigilance and punctilious care, but rather a showing

by the Commonwealth that a reasonable effort has been put forth."' Id. at 1241- 1242.
I

emphasis in original).

I
In Commonwealth v. Hunt, the Superior Court laid out instances in which

reasonable effort" was found, which included, " the Commonwealth listing the case

for trial prior to the run date ` to ensure that [ defendant] was brought to trial within the

time prescribed by Rule [ 600]."' 858 A.2d at 1242 ( quoting Commonwealth v. Aaron,
M
J

804 A. 2d 39, 43- 44 ( Pa. Super. Ct. 2002). And reasonable effort has been found

where the Commonwealth was ready to commence trial but was thwarted by an
43

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administrative error that resulted in a trial date three days past the time limits
r:..,..

provided by Rul 600. Id. (quoting Commonwealth v. Wroten, 451 A.2d 678, 681 ( Pa.
f:'.,,

Super. Ct. 1982)). Yet, reasonable effort was not found where a district justice' s staff

incorrectly filed#paperwork and Commonwealth, lacking a system to track case

processing, only became aware that a defendant' s case was in limbo as a result of
t 4
t defense counsel' s inquiries. ld. (citing Commonwealth v. McCutcheon, 488 A.2d 281
i

Pa. Super. Ct. 1985)).

i
The Appellant was charged on January 15, 2017, which means that the mechanical

run date was January 15, 2018. During his tenure overseeing this case, our colleague, the

Honorable Harry M. Ness, set trial to begin in the July term of court. (N.T., 8/ 3/ 18, at 37.)
lOth
The July jury term in 2017 was from July to July 21St. The Appellant' s counsel at the
I

time, seemingly, accepted a continuance to the September trial term, which began on
1

September 5, 2 17. Ibid. There is no indication on the record of the Appellant objecting to

the continuance request of his counsel. Attorney Jefferis had filed a motion to continue the

trial, docketed on July 5, 2017, due to his unavailability. Moreover, prior to the start of the
first trial, Atto ey Jefferis seemingly agreed that he had acquiesced that the time from the
i

start of the July 2017 term to the start of the September 2017 term should run against the

Appellant. ( N. T., 3/ 7/ 18, at 22.) Thus, the time from July 10, 2017 to September 5, 2017, a

total of 57 days, was attributable to the defense. Added to the mechanical run date the date by

which trial needed to begin was March 13, 2018.

44

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The June 21, 2017 Pre- Trial Order of Court, often referred to colloquially as clerk' s
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notes, does not indicate against whom Judge Ness assessed Rule 600. The transcript does not
i
i

reveal that Attorney Jason M. Jefferis was unavailable for all of the July term; but, rather,

that there was an outstanding discovery issue. ( Notes of Testimony, 6/ 21/ 17, at 2.) We

s::.:.
believe that the determinant issue is Attorney Jefferis' written motion for a continuance

r:
evidencing his unavailability for the originally scheduled July 10, 2017 date, which indicates
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agreement by tlie Appellant. Additionally, this Court cannot determine from the record

before it wheth r or not Attorney Jefferis might have been available during any portion of the

July term of court. Relying on the record we had available, we made a Rule 600 decision. We

humbly ask for affirmance as to this matter complained of on appeal.

IV. Conclusion

Based upon the reasons stated above, this Court respectfully urges affirmance of the

Order that was issued on August 27, 2018.

1

BY THE COURT,

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DATED: April', 2018 1VIICHAEL E. I ORTNER, J DGE

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