Opinion
J-A07034-17 No. 127 WDA 2016
06-21-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. THADDEUS THOMAS CRUMBLEY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 28, 2012 in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002820-2012 BEFORE: OLSON, STABILE, and STRASSBURGER, JJ. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Thaddeus Thomas Crumbley (Appellant) appeals from the judgment of sentence imposed following his conviction for first-degree homicide and related offenses. We affirm.
Because we write only for the parties, a full recitation of the facts is unnecessary. Relevant to this appeal, Appellant and co-defendant Matthew Ebo (Ebo) (collectively, the co-defendants), were tried jointly in the Court of Common Pleas of Allegheny County on charges related to the May 16, 2011 shooting death of Todd Mattox. A jury found both men guilty of first-degree homicide; robbery - serious bodily injury; robbery of a motor vehicle; two violations of the Uniform Firearms Act: carrying a firearm without a license and possession of firearms by a prohibited person; conspiracy to commit criminal homicide; and conspiracy to commit robbery - serious bodily injury. On September 14, 2012, trial counsel filed a motion for extraordinary relief. The Commonwealth filed a response and, on October 4, 2012, Appellant filed an amended motion. Ebo made an oral motion to join Appellant's written one, and following a hearing on the co-defendants' claims, both motions for extraordinary relief were denied by the trial court by orders dated October 5, 2012.
On November 28, 2012, during the joint sentencing hearing, Appellant was sentenced to a term of life imprisonment for his homicide conviction, and an aggregate term of 48½ to 87 years of consecutive imprisonment on the remaining counts. No post-sentence motions were filed.
On December 19, 2012, Appellant's counsel timely filed a notice of appeal to this Court, which was docketed at 1997 WDA 2012. Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925. However, on January 5, 2015, while Appellant's case was pending on appeal before this Court, his counsel petitioned for remand on the basis of after-discovered evidence. This Court initially denied Appellant's request, as well as his request for reconsideration of the same, and oral argument was scheduled. However, before argument occurred, this Court remanded this case for an evidentiary hearing to determine whether Appellant's after-discovered evidence claim merited a new trial.
The docket evidences that Appellant sought and received multiple extensions of time to file his Pa.R.A.P. 1925(b) statement of errors complained of on appeal. In addition, there was a substantial delay while the transcripts were being prepared and filed.
Ebo's case followed a similar post-trial trajectory. On November 30, 2012, Ebo's trial counsel moved to withdraw from representation. The trial court granted this request by order dated December 12, 2012. After being appointed by the court, appellate counsel from the Allegheny County Public Defender's Office filed an emergency petition for leave to file post-sentence motions nunc pro tunc, which was granted. Ebo's post-sentence motion was subsequently denied by operation of law on June 26, 2013. On July 25, 2013, Ebo's counsel timely filed a notice of appeal to this Court, which was docketed at 1194 WDA 2013. However, before the appeal was heard, counsel filed an application for remand based upon a claim of after-discovered evidence. This Court granted Ebo's request and ordered the trial court to conduct a hearing to determine whether Ebo's claim merited a new trial.
On October 29, 2015, the trial court held a joint hearing on the co-defendants' claims of after-discovered evidence. On December 22, 2015, the trial court denied the requested relief. Appellant filed timely a notice of appeal, and both Appellant and the trial court have complied with the mandates of Pa.R.A.P. 1925.
Appellant raises the following issues for our review, which we have reordered for ease of disposition.
I. The trial court erred in admitting (and failing to suppress) the testimony and identification of Saday Robinson:
A. When the Commonwealth failed to provide full and timely discovery pursuant to Pa.R.Crim.P. 573;
B. The identification was inherently unreliable given the circumstances and failure to make identification on several occasions; and
C. Because the identification was the product of taint and /or bias.
II. The trial court erred by denying Appellant's motion for new trial based on [after-]discovered evidence.
III. The trial court erred by admitting improper Pa.R.E. 404(b) evidence:
A. Regarding a prior shooting in which the Appellant was the victim; the trial court failed to instruct the jury of the limited purpose of this evidence at the time of the testimony and in its final instruction to the jury.
B. Regarding a Ruger handgun found at the scene of the prior shooting in which the Appellant was the victim.
Appellant's Brief at 2-3 (unnecessary capitalization omitted).
IV. The trial court erred by failing to strike and/or to provide a curative instruction when the Commonwealth exceeded the reasonable bounds of advocacy in characterizing the Appellant as the "Angel of Death" in its closing argument; trial counsel was ineffective for failing to object to this argument and/or for failing to request a curative instruction.
V. The trial court erred by admitting the testimony of several jailhouse informants when the Commonwealth failed to timely provide discovery in violation of Pa.R.Crim.P. 573 regarding other instances in which the informants wrote letters offering to testify in other cases.
VI. The trial court erred by failing to give the missing witness instruction as to Richard Carpenter, a Commonwealth witness [whose] proposed testimony and consideration received in exchange for his cooperation [were] discussed at great length, but who failed to appear.
VII. Appellant was denied his right to a speedy trial pursuant to Pa.R.Crim.P. 600 and the Pennsylvania constitution when the trial court granted a Commonwealth continuance because of the unavailability of Commonwealth witnesses and the court made no finding that the Commonwealth had exercised due diligence in locating these witnesses.
VIII. The evidence presented was insufficient to sustain the verdict; the jury verdict was against the weight of the evidence.
Issues I and II - The Identification , Testimony, and Post-Trial
Statements of Eyewitness Saday Robinson
Appellant's first claim of error involves challenges to the admission of the pre-trial identification of the co-defendants by eyewitness Saday Robinson, her identification of the men at trial, and the credibility of her trial testimony. Appellant's Brief at 25-36. Specifically, Appellant claims that Robinson's pre-trial identification was irreparably tainted, and the trial court erred in denying a pre-trial motion to suppress those statements. Id. at 36. Appellant also argues that the Commonwealth violated Rule of Criminal Procedure 573 by failing to provide complete discovery to Appellant prior to trial. Id. at 27-28.
The May 16, 2011 shooting that resulted in Mattox's death occurred outside of Robinson's apartment. Robinson was presented with a number of photo arrays following the shooting, but did not identify Appellant as one of the shooters until July of 2012. At trial, Robinson made a positive in-court identification of both co-defendants, and noted that it was fear of retaliation that prevented her from identifying the men in any of the initial photo arrays shown to her in September of 2011. Robinson was cross-examined extensively as to the credibility of her identification.
As discussed in more detail below, Rule 573 governs disclosure of discovery in criminal cases, and permits the trial court a broad array of sanctions for non-compliance with a discovery request.
Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.
[W]e may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts. Moreover, it is within the lower court's province to pass on the credibility of witnesses and determine the weight to be given to their testimony.Commonwealth v. Jaynes , 135 A.3d 606, 610 (Pa. Super. 2016), appeal denied, 145 A.3d 724 (Pa. 2016) (citations and quotation marks omitted). Additionally, "[d]ecisions involving discovery matters are within the sound discretion of the trial court and will not be overturned absent an abuse of that discretion." Commonwealth v. Smith , 955 A.2d 391, 394 (Pa. Super. 2008) (en banc).
When determining the admissibility of identification testimony, this Court has held that suggestiveness in the identification process is a factor to be considered in determining the admissibility of such evidence, but suggestiveness alone does not warrant exclusion. A pretrial identification will not be suppressed as violative of due process rights unless the facts demonstrate that the identification procedure was so infected by suggestiveness as to give rise to a substantial likelihood of irreparable misidentification.
Due process does not require that every pretrial identification of witnesses must be conducted under laboratory conditions of an approved lineup. In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable.
Additionally, the purpose of a suppression order regarding exclusion of identification evidence is to prevent improper police action. Thus, where a defendant does not show that improper police conduct resulted in a suggestive identification, suppression is not warranted.
Following our review of the certified record, the parties' briefs, and the relevant law, we conclude that the opinion of the Honorable Beth A. Lazzara thoroughly and correctly addresses and disposes of Appellant's first issue and supporting arguments and evidences no abuse of discretion or errors of law. Accordingly, we adopt sections A and B of the trial court's June 25, 2014 opinion, pages 9 through 23, as our own and hold, based upon the reasons stated therein, that the trial court committed neither an error of law nor an abuse of discretion in (1) denying Appellant's motion to suppress Robinson's pre-trial identification of the co-defendants; (2) permitting Robinson to testify at trial; and (3) determining that the Commonwealth had not committed a violation of Pa.R.Crim.P. 573.
We next consider Appellant's argument that the trial court erred in denying his motion for a new trial based on after-discovered evidence. Appellant's Brief at 68-73. We address this claim mindful of the following.
To warrant relief, after-discovered evidence must meet a four-prong test: (1) the evidence could not have been obtained before the conclusion of the trial by reasonable diligence; (2) the evidence is not merely corroborative or cumulative; (3) the evidence will not be used solely for purposes of impeachment; and (4) the evidence is of such a nature and character that a different outcome is likely. At an evidentiary hearing, an appellant must show by a preponderance of the evidence that each of these factors has been met in order for a new trial to be warranted.Commonwealth v. Rivera , 939 A.2d 355, 359 (Pa. Super. 2007) (citation omitted).
The after-discovered evidence at issue is the unsworn statement of Robinson in which she recanted her pre-trial and in-court identifications of the co-defendants. In 2014, after both co-defendants had been sentenced, Robinson was interviewed by a defense investigator. This interview was recorded in writing and on video; however, Robinson was not sworn, nor did she give the statement under penalty of perjury. Robinson told the investigator that she did not witness the shooting, that her trial testimony was fabricated, and that her identification of the co-defendants was coerced by the police.
Robinson was called to testify at the October 29, 2015 evidentiary hearing. At that time, she recanted her statements to the investigator and claimed that her 2014 recorded statement was untruthful. When asked why she lied, she explained that she had been threatened by persons close to Appellant and Ebo and had been offered a large sum of money to recant her trial testimony. However, Robinson affirmed at the evidentiary hearing that she was telling the truth when she identified Appellant and Ebo as the shooters during their trial.
Appellant argues that he met his burden under Rivera and is entitled to a new trial based on Robinson's statement to the defense investigator because (1) the evidence of her recantation could not have been obtained before the conclusion of trial; (2) the evidence is not corroborative or cumulative; (3) the evidence would not be used solely for the purposes of impeachment; and (4) the recantation is of such "immense importance" that a new outcome would have resulted had the jury been permitted to hear it. Appellant's Brief at 71-72.
As our Supreme Court has explained,
[r]ecantation testimony is extremely unreliable. When the recantation involves an admission of perjury, it is the least reliable form of proof. The trial court has the responsibility of judging the credibility of the recantation. Unless the trial court is satisfied that the recantation is true, it should deny a new trial. An appellate court may not disturb the trial court's determination absent a clear abuse of discretion.Commonwealth v. Henry , 706 A.2d 313, 321 (Pa. 1997) (citations omitted).
Here, the trial court determined that a new trial was not warranted because, at the evidentiary hearing on the co-defendants' claims of after-discovered evidence, Robinson "credibly recanted her unsworn recantation statements" made to the investigator. Trial Court Opinion, 12/22/2015, at 5. In so holding, the court found credible Robinson's explanation for why she made false statements to the investigator only to later recant those statements at the hearing. Id. The court explained as follows.
As noted by the parties, [] Robinson provided testimony at the October 29, 2015 evidentiary hearing, during which she recanted the statements that she had made to [the] defense investigator ... in videotaped and handwritten form. The videotaped and handwritten statements served as the recantation evidence upon which the defendants have relied in seeking a new trial based on after-discovered [] evidence. It should be noted that [] Robinson never took an oath to tell the truth prior to giving the videotaped statement and did not write the handwritten statement under penalty of perjury. During her
testimony at the October 29, 2015 hearing, Ms. Robinson explained that the statements that she had made in video and written form were untruthful. She explained that she had lied to [the] defense investigator ... because she had been threatened by people associated with the defendants. Additionally, she had been offered a substantial sum of money -- $25,000 -- to recant her trial testimony.
The court paid extremely close attention to [] Robinson's demeanor throughout the evidentiary hearing, and it finds highly credible her explanation for why she initially attempted to recant her trial testimony to [the] defense investigator.... [] Robinson acknowledged that she is in fear for her life from the defendants. Her fear is due, in part, to her knowledge of the reputation of the defendants, their friends, associates and families, as well as the events she herself witnessed. She indicated, convincingly, that she would rather have lied than lost her life. [] Robinson was in fear from the defendants, given that people associated with them kept finding her despite several moves. Further, she testified credibly that she believed that, if she cooperated with the defense efforts, she would be left alone by the defendants. The court also found highly credible her explanation for why she recanted her post-trial recantation statements during the evidentiary hearing. [] Robinson indicated that she did not want guilty people to be let out of jail and that the defendants deserved to be in jail for what they had done. [] Robinson did not waver in her testimony at the evidentiary hearing and was adamant that her post-trial recantation statements were made out of fear and not as a result of any crisis of conscience that she was experiencing as to the certainty of her observations. At the October 29, 2015 hearing, [] Robinson very clearly, convincingly, and without hesitation, identified the defendants as the perpetrators of the murder. It must be noted that this was the second time that she made her identification of the defendants as murderers in a courtroom, in the presence of the defendants and under oath.
This court had the benefit of sitting through the original homicide trial, and it observed firsthand [] Robinson's demeanor when she provided her eyewitness account of the brutal murder and identified the defendants as the perpetrators. [] Robinson shook uncontrollably throughout her testimony and was clearly frightened to be involved in the case. As the Commonwealth noted in its brief, [] Robinson had nothing to gain and everything
to lose by testifying against the defendants during the homicide trial. This holds equally true with regard to her testimony at the evidentiary hearing related to her supposed recantation. [] Robinson has nothing to gain and everything to lose by recanting the unsworn recantation statements[.] She continues to place herself in danger of retribution by maintaining her position that the defendants were the perpetrators of the murder, which makes her identification testimony all the more credible. The fact that she maintains her identification of the defendants as murderers when under oath and forced to confront them face-to-face, and in light of her fear of the defendants based on their reputations, threats made to her, and her inability to remain hidden, makes [] Robinson's identification ring with truthfulness and credibility.Trial Court Opinion, 12/22/2015, at 2-4 (unnecessary capitalization omitted; emphasis in original).
Accordingly, after taking into account the strength of [] Robinson's identification testimony at trial and after finding [] Robinson's testimony at the evidentiary hearing credible in all respects, this court finds that a new trial is not warranted under these circumstances. Given that [] Robinson has consistently identified the defendants while under oath, and given that her identification testimony has been very credible each time, the court does not find that the purported recantation evidence would "likely result in a different verdict if a new trial were granted." Commonwealth v. Padillas , 997 A.2d 356, 363 (Pa. Super. 2010).
Based on our thorough review of the record, we conclude that the trial court did not abuse its discretion in determining that the unsworn statement offered to the defense investigator was not credible, and that Robinson had fabricated the statements out of fear of the co-defendants and their associates. Importantly, we agree that Appellant's argument fails as to the fourth prong of the applicable test. When presented with the purported recantation testimony, the circumstances surrounding Robinson's statement to the defense investigator, and Robinson's later recantation of those statements under oath, it is unlikely that the verdict would be rendered in Appellant's favor. As such, the trial court did not err in denying Appellant a new trial based upon this evidence.
Issue III - The Admission of Other Bad Acts Evidence Pursuant to
Pa.R.E. 404(b)
In his third issue, Appellant argues that the trial court erred in denying a motion in limine, filed by Appellant and joined by Ebo, which sought to exclude from the co-defendants' joint trial evidence regarding other bad acts attributable to Appellant. Appellant's Brief at 36-46. In order to address this claim, we provide the following background.
The police recovered seven .40 caliber shell casings and two 357 Sig shell casings from the scene of the May 16, 2011 shooting that resulted in the death of Mattox. Forensic testing showed that two of the recovered .40 caliber shell casings had been fired from one gun, while the other five had been fired from another. The presence of the two 357 Sig shell casings recovered from the scene evidenced the involvement of a third gun.
As explained during trial, "the 357 Sig caliber is a 40 caliber cartridge case which is bottlenecked down to fit a nine millimeter [bullet]." N.T., 8/20-9/4/2012, at 457.
On June 2, 2011, a few weeks after the Mattox shooting, Appellant was injured in a shootout in Swissvale, Allegheny County. When police arrived at that scene, they found a number of spent shell casings in and around the vehicle in which Appellant had been riding. Those shell casings were tested and determined to have come from two separate firearms: a 9mm and a .40 caliber. The 9mm casings were tested, and it was determined that all of them had been discharged from a Ruger P89 firearm recovered from the vehicle Appellant had been riding in prior to and during the June 2, 2011 shootout. Appellant's blood was found on the side of the Ruger and on the barrel.
Also present at the scene of the shootout was Asa Thompkins, who was released after a brief detention. On June 9, 2011, Thompkins was a passenger in a vehicle that was stopped by police. Police recovered a .40 caliber Springfield Armory pistol during a search of that vehicle.
Three bullets were recovered from Mattox's body during his autopsy, two 9mm rounds and one .40 caliber. At trial, the Commonwealth's firearms and tool marks expert, Raymond Everett, testified that his examination of the recovered bullets led him to conclude that the two 9mm bullets were fired from the same gun: either a 357 or a 9mm firearm; however, no definitive comparison could be made to any 357 or 9mm firearm tested in connection with this case. N.T., 8/20-9/4/2012, at 460-61, 471-72. Everett testified that the class characteristics present on the .40 caliber bullet recovered during Mattox's autopsy were similar to those made by Springfield Armory brand pistols. Id. at 452-53. Further, it was determined that the .40 caliber casings recovered from both the May 16, 2011 homicide matched those recovered from the .40 caliber casings recovered from the scene of the June 2, 2011 Swissvale shootout. Id. at 451-54.
On May 30, 2012, the Commonwealth filed notice of its intent to present evidence, pursuant to Pa.R.E. 404(b), of Appellant's involvement in the June 2, 2011 shootout. The Commonwealth averred that the Ruger and Springfield Armory firearms associated with the June shootout linked Appellant to the Mattox shooting. Thus, it sought to introduce testimony regarding the June 2 incident at the co-defendants' trial in order to prove identity. Following a hearing, the trial court ruled that the evidence was admissible at the joint trial, and denied the motion in limine.
"When reviewing the denial of a motion in limine, we apply an evidentiary abuse of discretion standard of review." Commonwealth v. Stokes , 78 A.3d 644, 654 (Pa. Super. 2013) (citation omitted). "The admissibility of evidence is a matter directed to the sound discretion of the trial court, and an appellate court may reverse only upon a showing that the trial court abused that discretion." Id. (citation omitted).
Pennsylvania Rule of Evidence 404(b) governs admissibility of evidence of other bad acts.
Generally, evidence of [other] bad acts or unrelated criminal activity is inadmissible to show that a defendant acted in conformity with those [other] acts or to show criminal propensity. However, evidence of [other] bad acts may be admissible when offered to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. In determining whether evidence of other ... bad acts is admissible, the trial
court is obliged to balance the probative value of such evidence against its prejudicial impact.Commonwealth v. Ross , 57 A.3d 85, 98-99 (Pa. Super. 2012) (en banc) (citations omitted).
The Commonwealth must prove beyond a reasonable doubt that a defendant has committed the particular crime of which he is accused, and it may not strip him of the presumption of innocence by proving that he has committed other criminal acts.
As the court explained, the prejudicial effect of the evidence related to the June 2, 2011 shootout was outweighed by its probative value with respect to the inference that Appellant was involved in the Maddox shooting a month earlier. See Trial Court Opinion, 6/25/2014, at 23-28. Thus, the trial court properly admitted the evidence related to the June 2, 2011 incident as probative of Appellant's identity as one of Maddox's assailants. Of significance, we note that the trial court offered a limiting instruction concerning this testimony, which was rejected by both Ebo and Appellant. N.T., 8/20-9/4/2012, at 1318-23, 1411-12.
In light of the forgoing, following our review of the certified record, the parties' briefs, and the relevant law, we conclude that the opinion of the Honorable Beth A. Lazzara thoroughly and correctly addresses and disposes of Appellant's third issue and evidences no abuse of discretion or errors of law. Accordingly, we adopt section C of the trial court's June 25, 2014 opinion, pages 23 through 28, as our own and hold, based upon the reasons stated therein, that the trial court committed neither an error of law nor an abuse of discretion in denying the co-defendants' motion in limine.
Issue IV - Error Regarding the Commonwealth's Closing Argument
During his closing argument, in reference to Robinson's credibility and her visible fear of the co-defendants, the assistant district attorney described Appellant to the jury as "the angel of death."
I want to talk to you first about Saday Robinson. Credibility and believability of a witness, you are the judges of the facts in this case, you are to determine the credibility. You listen to the young lady testify. You didn't just listen with your ears, you could watch her, especially if you were on this end of the jury box, she couldn't stop shaking the entire time. She is petrified. She said this is seared into her brain, she will never forget these faces. And why would she say she saw the lighter skinned male, which is Ebo, and say he looked at me, we locked eyes, I had seen him before. She wasn't afraid to say that and describe him, but the angel of the [(sic)] death over here, [Appellant], with his hoody up, that has what it takes to walk up to a man, stand over him and blow his brains out, she wasn't as hot on identifying. She told the police, hey, come on in here, get in my apartment, I don't want people to see me, snitches get stitches. She doesn't want to be next.N.T., 8/20-9/4/2012, at 1437.
Appellant argues on appeal that this comment constitutes prosecutorial misconduct. However, Appellant's trial counsel did not object to this statement, nor was a curative instruction requested or given, although, as appellate counsel points out, trial counsel did include this issue in her post-trial motion for extraordinary relief. Appellant's Brief at 49.
As our Supreme Court has held, "[t]he absence of a contemporaneous objection below constitutes a waiver of [an] appellant's [] claim [on direct appeal] respecting the prosecutor's closing argument." Commonwealth v. Powell , 956 A.2d 406, 423 (Pa. 2008) see also Commonwealth v. Butts , 434 A.2d 1216, 1219 (Pa. 1981) (holding that failure to object during or after summation constitutes waiver of prosecutorial misconduct claim). Moreover, inclusion of this issue in his motion for extraordinary relief does not excuse the failure to preserve the issue during trial. See Pa.R.Crim.P. 704(B)(3) ("A motion for extraordinary relief shall have no effect on the preservation or waiver of issues for post-sentence consideration or appeal."). Accordingly, this claim is waived.
Further, although Appellant alleges that his trial counsel was ineffective, absent circumstances not present here, "claims of ineffective assistance of counsel are to be deferred to PCRA review; trial courts should not entertain claims of ineffectiveness upon post-verdict motions; and such claims should not be reviewed upon direct appeal." Commonwealth v. Holmes , 79 A.3d 562, 576 (Pa. 2013). Nothing in Appellant's brief suggests that he wishes to waive his right to file a PCRA petition. Accordingly, to the extent that Appellant is attempting to litigate claims of ineffective assistance of counsel for failing to object to the prosecutor's comment or request a curative instruction, Appellant's Brief at 46, 49-50, those issues are not cognizable in this direct appeal and we decline to address them.
Issues V and VI - Error Regarding the Admission of Testimony
of Jailhouse Informants and Failure to Give a Missing Witness
Instruction
In his fifth claim of error, Appellant argues that the trial court erred in admitting the testimony of two jailhouse informants, Richard Carpenter and Thomas Brown, despite the Commonwealth's failure to provide complete discovery with respect to those witnesses, in violation of Pa.R.Crim.P. 573. Appellant's Brief at 50-54. We review these claims for an abuse of discretion. Smith , 955 A.2d at 394.
As discussed further below, Carpenter was subpoenaed for trial but did not appear. A bench warrant was issued for his arrest on August 23, 2012, three days after the Commonwealth had mentioned Carpenter's anticipated testimony in its opening statement. N.T., 8/20-9/4/2012, at 324-35. Brown testified on behalf of the Commonwealth.
The trial court's authority to sanction a party for a discovery violation is derived from Pa.R.Crim.P. 573(E), which states:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule[, which governs discovery matters,] the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.Commonwealth v. Jordan , 125 A.3d 55, 65 (Pa. Super. 2015).
On June 8, 2012, Appellant's counsel filed a motion to compel additional discovery specifically requesting information regarding potential Commonwealth witness Richard Carpenter and his participation in the witness protection program. Motion, 6/8/2012. On July 27, 2012, the trial court held a hearing in which it addressed all outstanding motions from both the Commonwealth and defense counsel. During that hearing, the issue of Carpenter's involvement in the witness protection program was addressed, with Appellant's counsel indicating that she wanted to confirm the information she had received on this issue. N.T., 7/27/2012, at 30-33. To that end, Appellant's counsel questioned Detective Anthony Perry regarding the details of Carpenter's involvement in the program, including when that participation ended and what compensation Carpenter received. Id. At the end of counsel's questioning, the court asked if that "answered all the questions about the witness protection," to which counsel replied "yes, I believe so." Id. at 32. The court then noted that "the June 8 motion then has been entirely dealt with," and counsel agreed. Id.
Discovery issues were raised again by [Appellant] on the morning of August 22, 2012, prior to the beginning of the jury trial. Defense counsel requested additional discovery on Thomas Julian Brown and [] Carpenter. [The trial court] advised the Commonwealth that, if this discovery was not provided to the [co-d]efendants, these witnesses would not be permitted to testify. Later that same afternoon, on August 22, 2012, [Appellant] again raised issues regarding discovery requests not being provided to the defense, specifically in relation to Mr. Brown's testimony in other cases on behalf of the Commonwealth. [The trial court] advised the Commonwealth that this discovery would have to be provided to the [co-d]efendants prior to [] Brown testifying at trial. Counsel received the requested discovery the following day, on August 23, 2012.
[] Brown took the witness stand and began his testimony on [Friday] August 24, 2012. On [Monday] August 28, 2012, after [] Brown's first day of testimony, [Appellant] requested
additional discovery related to [] Brown, including records from his prior criminal cases and detainers related to those cases. The Commonwealth indicated that it did not have these records, and [the trial] court instructed the Commonwealth to provide whatever it had related to [Appellant's] request to the [co-d]efendants. It should be noted that [] Carpenter ultimately failed to appear for trial and did not testify. Thus, any allegations of error to exclude his testimony are moot.Trial Court Opinion, 6/25/2014, at 33-34 (citations omitted.)
Despite these alleged discovery issues, defense counsel conducted a thorough cross-examination of a variety of witnesses regarding [] Carpenter and [] Brown. For example, Detective Perry was questioned extensively regarding money paid to Richard Carpenter as part of the witness protection program. Assistant District Attorney Mark Tranquilli, who was called as a Commonwealth witness regarding [] Carpenter's detainer on [an unrelated] case, was also subjected to a thorough cross-examination by defense counsel. Mr. Tranquilli, now Judge Tranquilli, was also questioned at length regarding [] Brown's involvement as a witness in other criminal cases. [Appellant] called as a witness Assistant District Attorney Christopher Stone to discuss [] Carpenter's sentence on the [unrelated] case and [] also called Brown's probation officer, Robert Tutko, who provided detailed information on his dealings with [] Brown, including the detainers that he had and the terms of his probation.
The trial court concluded that there had been no violation of Rule 573, explaining as follows.
Rule 573(e) provides that, if a party has failed to comply with a discovery request, the court may, inter alia, prohibit a party from introducing the evidence not disclosed, or may order any other remedy that it deems just under the circumstances. The Commonwealth does not violate Rule 573 when it fails to disclose to the defense evidence that it does not possess and of which it is unaware. Furthermore, a discovery violation does not automatically warrant relief in the form of a new trial. A defendant seeking relief from a discovery violation must demonstrate prejudice. Courts have held that discovery turned
over the day prior to trial is nonetheless admissible if the defendant is not otherwise prejudiced by the delay.Trial Court Opinion, 6/25/2014, at 34-36 (citations omitted).
Here, the appropriate remedy for any discovery violations was not to exclude the testimony of either witness. All information possessed by the Commonwealth was turned over to the [co-d]efendants, albeit late. The defense attorneys never complained that they had insufficient time to review the information, nor did they request additional time to do so. This court certainly would have granted any such requests. The attorneys for the [co-d]efendants were able to [question thoroughly] all witnesses after receiving this information. Additionally, given the lengthy and thorough cross-examinations of [] Brown and witnesses having knowledge of [] Brown, as well as the ability to call witnesses with knowledge of [] Brown on behalf of the [co-d]efendants, any delay in turning over discovery certainly did not hamper or adversely impact the defense in this case. Not every discovery violation justifies exclusion of witness testimony. [The trial] court ensured that discovery was turned over, and the [co-d]efendants' ability to effectively cross-examine and present witness testimony was not impeded by any delays.
Based on our review of the record, we hold that the trial court did not abuse its discretion in permitting Brown to testify. Significantly, the Commonwealth complied with counsel's request and, as noted by defense counsel, the day-of-trial discovery was not voluminous. N.T., 8/20-9/4/2012, at 325-36. Counsel acknowledged that she would look at the new discovery at lunch and would notify the court if she needed additional time. Id.
With respect to Carpenter, we find significant that he did not appear for trial in violation of his subpoena. Thus, any perceived discovery violation is moot. Moreover, the record shows that it was Appellant who put into evidence Carpenter's identification of the co-defendants during cross-examination of Detective Perry. N.T., 8/20-9/4/2012, at 364-68; 373-75. Thus, Appellant cannot, at this juncture, claim error on the part of the trial court in admitting this testimony.
In light of the forgoing, we agree with the trial court that the Commonwealth did not violate Rule 573; thus, sanctions were not warranted.
In his sixth issue, Appellant argues that the trial court erred in failing to give a missing witness instruction when Carpenter failed to appear for trial in violation of his Commonwealth-issued subpoena. Appellant's Brief at 54-61. This claim is waived. Although Appellant included the missing witness instruction in his proposed points for charge, see Appellant's Proposed Jury Instructions, 8/30/2012, counsel did not object or offer argument on Appellant's behalf when the court indicated it would not give the instruction. N.T., 8/20-9/4/2012, at 1310, 1350. As Rule of Criminal Procedure 647(C) makes clear, "[n]o portions of the charge nor omissions from the charge may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate." See also Commonwealth v. Pressley , 887 A.2d 220, 224 (Pa. 2005) (holding that "[t]he pertinent rules [of Criminal Procedure] ... require a specific objection to the charge or an exception to the trial court's ruling on a proposed point to preserve an issue involving a jury instruction"). Accordingly, because this claim was not preserved for our review, it is waived.
The missing witness adverse inference rule provides that
when a potential witness is available to only one of the parties to a trial, and it appears that the witness has special information material to the issues at trial, and the witness's testimony would not merely be cumulative, if such party does not produce the testimony of this witness, the jury may draw an inference that the witness's testimony would have been unfavorable to the party having control of the witness.
Issue VII - Violation of the Speedy Trial Rule
In his seventh claim of error, Appellant argues that he was denied his right to nominal bail under Rule of Criminal Procedure 600(B)(1) when "the trial court granted a Commonwealth continuance [on June 8, 2012] because of the unavailability of Commonwealth witnesses and the court made no finding that the Commonwealth had exercised due diligence in locating these witnesses." Appellant's Brief at 61.
We review challenges to Rule 600 rulings pursuant to the following standard and scope of review:
In evaluating Rule [600] issues, our standard of review of a trial court's decision is whether the trial court abused its discretion. Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.
The proper scope of review ... is limited to the evidence on the record of the Rule [600] evidentiary hearing, and the findings of the [trial] court. An appellate court must view the facts in the light most favorable to the prevailing party.Commonwealth v. Ramos , 936 A.2d 1097, 1100 (Pa. Super. 2007) (en banc).
Rule 600(B)(1) provides that "[e]xcept in cases in which the defendant is not entitled to release on bail as provided by law, no defendant shall be held in pretrial incarceration in excess of ... 180 days from the date on which the complaint is filed." However, the Pennsylvania Constitution provides that "[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment[.]" Pa. Const. Art. I, § 14 (emphasis added). See also 42 Pa.C.S. § 5701. Because Appellant was charged generally with the offense of criminal homicide, two grades of which are punishable by life imprisonment, he was not entitled to release on bail. Thus, Appellant's Rule 600 challenge is without merit.
Further, Appellant's argument that the court failed to make a determination as to the Commonwealth's due diligence is belied by the record. The court held a hearing on June 13, 2012, in which that issue was specifically addressed. See Trial Court Opinion, 6/25/2014, at 42-46; N.T., 6/13/2012, 29-44.. Accordingly, Appellant is not entitled to relief on this issue.
Issue VIII - The Weight and Sufficiency of the Evidence
In his final issue on appeal, Appellant challenges the weight and the sufficiency of the evidence presented to sustain the verdict. Appellant's Brief at 65-68.
With respect to his sufficiency-of-the-evidence claims, it is well-settled that, in order preserve the issue, the appellant's 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient, or the claim may be waived. Commonwealth v. Williams , 959 A.2d 1252, 1257-58 (Pa. Super. 2008). Here, Appellant was convicted of seven offenses, yet his four-page-long concise statement presents only a boilerplate challenge to the sufficiency of the evidence. Appellant's Concise Statement, 2/10/2016, at 4. Accordingly, we find this claim waived.
We address Appellant's weight-of-the-evidence claim mindful of the following.
The law pertaining to weight of the evidence claims is well-settled. The weight of the evidence is a matter exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. A new trial is not warranted because of a mere conflict in the testimony and must have a stronger foundation than a reassessment of the credibility of witnesses. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.
On appeal, our purview is extremely limited and is confined to whether the trial court abused its discretion in finding that the jury verdict did not shock its conscience. Thus, appellate review of a weight claim consists of a review of the trial court's exercise of discretion, not a review of the underlying
question of whether the verdict is against the weight of the evidence.Commonwealth v. Gonzalez , 109 A.3d 711, 723 (Pa. Super. 2015) (quotation marks and citations omitted).
Here, Appellant assails the credibility and admissibility of the testimony and witnesses presented by the Commonwealth. The substance of Appellant's argument asks this Court to reweigh the evidence in his favor. This we will not do. Our case law is clear that a jury sitting as finder of fact is "in the best position to view the demeanor of the Commonwealth's witnesses and to assess each witness' credibility." Commonwealth v. Olsen , 82 A.3d 1041, 1049 (Pa. Super. 2013) (citation omitted). The jury was free to find the Commonwealth's witnesses' testimony credible and resolve any inconsistencies in the Commonwealth's favor. See generally Commonwealth v. Horne , 89 A.3d 277, 286 (Pa. Super. 2014) (holding that Horne's weight of the evidence claim could not prevail as "the jury resolved the inconsistencies among the testimonies as it saw fit and reached a verdict"). Based on the foregoing, the trial court determined that the verdict was not against the weight of the evidence. We discern no abuse of discretion in the trial court's finding. Accordingly, Appellant's weight claim does not warrant relief.
For all of the foregoing reasons, we affirm Appellant's judgment of sentence. The parties shall attach a copy of the trial court's June 25, 2014 opinion to this memorandum in the event of future proceedings.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/21/2017
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Commonwealth v. Boyle, 733 A.2d 633, 638 (Pa. Super. 1999).