Opinion
J-A29007-17 No. 2783 EDA 2015
11-29-2017
COMMONWEALTH OF PENNSYLVANIA v. LAMAR LEWIS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 17, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007857-2013 BEFORE: LAZARUS, J., PLATT, J., and STRASSBURGER*, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Lamar Lewis appeals from the judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, following his convictions of two counts of possession of firearms prohibited. After our review, we affirm.
The trial court summarized the facts as follows:
On December 8, 2012, [Lewis] and his then girlfriend[,] Veronica Jackson[,] went to a gun store located in Feasterville. Jackson bought a Beretta Nano nine-millimeter firearm, which she brought back to her house at 6132 N. Lambert Street. On December 9, 2012, [Lewis] and Jackson attended a gun show. At the gun show, Jackson bought a Beretta HiPoint nine-millimeter firearm and a .40 caliber Smith and Wesson HiPoint firearm, which she brought back to her house. At the time Jackson bought the firearms, [Lewis] and Jackson had been living together at 6132 N. Lambert Street for two years, and they had been dating for three and a half years. Their relationship was periodically interrupted because of [Lewis's] relationship with another woman, Vikki Scott. On May 5, 2013, Jackson broke up with [Lewis] due to his relationship with
Vikki Scott. Jackson told [Lewis] not to return to her house. The next day, Jackson was out with her daughter when [Lewis] called her to apologize. When Jackson returned home, she found [Lewis] inside her house. Jackson asked [Lewis] for the keys to her house and car that she previously gave to him. [Lewis] refused to give her the keys and left the house. He then entered a vehicle that they shared and was parked across the street. Before [Lewis] drove away, Jackson observed several items that were loaded into the vehicle and which [Lewis] had taken from the house.Trial Court Opinion, 4/28/16, at 1-2 (citations to record omitted).
On May 8, 2013, Jackson contacted police to report the vehicle as stolen. On that same day, Jackson discovered that the nine-millimeter HiPoint was missing from behind the sofa and that the .40 caliber HiPoint, as well as [Lewis's] clothes, were missing from [Lewis's] dresser drawer.
Police obtained a search warrant for Vikki Scott's residence at 433 W. Hansberry Street; the warrant identified the items to be searched for and seized as "A black Smith and Wesson 9mm, a black Beretta .45 caliber, and correspondence addressed to Lamar Lewis or Vikki Scott, anything else of evidentiary value." Id. at 3. On May 10, 2013, police executed the search warrant and recovered a black Smith and Wesson .40 caliber HiPoint handgun and a black Beretta nine-millimeter HiPoint handgun, as well as ammunition, a trigger lock, a gun wrench, and a letter from Philadelphia Gas Works to Lewis with the address of 433 W. Hansberry Street, 2F. Lewis returned to 433 W. Hansberry Street as police were executing the warrant, at which point Lewis was arrested.
Lewis appeared for a preliminary hearing on June 18, 2013. On August 2, 2013 he filed a motion to suppress, which was denied. On September 6, 2013 he moved for modification of bail, on November 4, 2013 he moved for consolidation, and on December 2, 2013, he filed a Pa.R.Crim.P. 600 motion to dismiss. On May 11, 2015, Lewis filed another motion to dismiss for lack of personal and subject matter jurisdiction, which was denied. Following trial on May 13, 2015, a jury convicted Lewis of two counts of possession of firearms prohibited.
Lewis filed a post-trial motion, which was denied. On July 17, 2015, the court sentenced Lewis to five to ten years' incarceration on one count, and a consecutive term of one day to ten years' incarceration on the second count. Lewis filed a timely motion for reconsideration of sentence, which was denied on August 21, 2015. Lewis filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. He raises the following issues for our review:
1. Whether the verdicts were against the weight of the evidence?Appellant's Brief, at 8.
2. Whether the court erred in denying [Lewis's] motion to dismiss under Rule 600(G)?
3. Whether there was prosecutorial misconduct during the closing argument?
4. Whether the court abused its discretion in denying the motion to suppress?
First, Lewis argues the verdict is against the weight of the evidence. This claim is waived.
Pennsylvania Rule of Criminal Procedure 607 governs the procedure by which weight of the evidence claims shall be considered by the trial court and preserved for appellate review. Rule 607 provides, in relevant part:
(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence motion.Pa.R.Crim.P. 607(A). Here, Lewis filed a post-sentence motion, but he did not include his weight of the evidence claim in that motion. See Post-Sentence Motion, 7/22/15. Although Lewis did raise the issue in his Rule 1925(b) Statement, and the trial court addressed it in its Rule 1925(a) opinion, the claim, nonetheless, is waived. The question is not simply a matter of whether the trial court addressed it, but, rather, the point at which the trial court was able to grant a new trial based on the weight claim. The trial court had no jurisdiction to do so after the notice of appeal was filed. In Commonwealth v. Sherwood , 982 A.2d 483 (Pa. 2009), the Pennsylvania Supreme Court explained:
The fact that Appellant included an issue challenging the verdict on weight of the evidence grounds in his [Rule] 1925(b) statement and the trial court addressed Appellant's weight claim in its Pa.R.A.P. 1925(a) opinion did not preserve his weight of the evidence claim for appellate review in the absence of an earlier motion. Pa.R.Crim.P. 607(A). . . . Appellant's failure to challenge the weight of the evidence before the trial court deprived that court of an opportunity to exercise discretion on the question of whether to grant a new trial. Because "appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence," Commonwealth v. Widmer , [] 744 A.2d 745,
753 ([Pa.] 2000), this Court has nothing to review on appeal. We thus hold that Appellant waived his weight of the evidence claim because it was not raised before the trial court as required by Pa.R.Crim.P. 607.Id. at 494 (some citations omitted). We conclude, therefore, that Lewis has waived his challenge to the weight of the evidence.
Next, Lewis argues that the court erred in denying his Rule 600 motion to dismiss. This Court explained Rule 600 at length in Commonwealth v. Ramos , 936 A.2d 1097 (Pa. Super. 2007) (en banc).
In evaluating Rule 600 issues, our standard of review of a trial court's decision is whether the trial court abused its discretion. Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.
The proper scope of review is limited to the evidence on the record of the Rule 600 evidentiary hearing, and the findings of the trial court. An appellate court must view the facts in the light most favorable to the prevailing party. Additionally, when considering the trial court's ruling, this Court is not permitted to ignore the dual purpose behind Rule 600. Rule 600 serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society. In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. However, the administrative mandate of Rule 600 was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth. So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 600 must be construed in a manner consistent with society's right to punish and deter crime. In considering these matters, courts must
carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well.Id. at 1100 (brackets, ellipses, and citation omitted).
Rule 600 provides that where a written complaint is filed against a defendant, trial in a court case shall commence within 365 days from the date on which the complaint is filed. Pa.R.Crim.P. 600(A)(2)(a). If trial takes place beyond 365 days (plus excludable time as set forth in Rule 600(C)), then the defendant is entitled to dismissal with prejudice. Pa.R.Crim.P. 600(D)(1).
Rule 600(C) provides that period of delay at any stage of the proceedings caused by the Commonwealth when the Commonwealth has failed to exercise due diligence shall be included in the computation of the time within which trial must commence. Any other periods of delay shall be excluded from the computation. Pa.R.Crim.P. 600(C).
Rule 600 takes into account both "excludable time" and "excusable delay." Commonwealth v. Hunt , 858 A.2d 1234, 1241 (Pa. Super. 2004). "Excludable time" is defined in Rule 600(C) as the period of time between the filing of the written complaint and the defendant's arrest, provided defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence; any period of time for which defendant expressly waives Rule 600; and/or such period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the defendant's attorney; and/or (b) any continuance granted at the request of the defendant or the defendant's attorney. Id. (citing Pa.R.Crim.P. 600(C)). The "due diligence" required under Rule 600(C)(1) pertains to the Commonwealth's efforts to apprehend the defendant. Id. at 1241 n. 10. The other aspects of Rule 600(C) defining "excludable time" do not require a showing of due diligence by the Commonwealth. Id. "Excusable delay" is not expressly defined in Rule 600, but the legal construct takes into account delays that occur as a result of circumstances beyond the Commonwealth's control and despite its due diligence. See id. at 1241-42 (explaining manner in which excludable time, excusable delay and due diligence are to be determined).
Here, the complaint against Lewis was filed on May 11, 2013, and thus the mechanical run date was May 11, 2014. Pa.R.Crim.P. 600(A)(2)(a). Because Lewis' trial began on May 11, 2015, one year beyond the run date, we must next examine whether any periods of excusable time existed, so as to create an adjusted run date. Ramos , supra.
The trial court determined that there was excusable time attributable to judicial delay of 371 days and excludable time attributable to the defense of 26 days, for a total of 397 days. The adjusted run date, therefore, was June 12, 2015. Trial commenced one month before that date, on May 11, 2015.
Lewis concedes this time is excludable time attributable to the defense.
Lewis argues, however, that the time period between May 5, 2014 and January 12, 2015 should not have been excluded because the Commonwealth filed a "prior bad acts" motion on May 12, 2014, and thus was not duly diligent. The Commonwealth, however, was ready to proceed to trial on May 5, 2014 without the benefit of a ruling on its motion. See Trial Court Opinion, supra at 5. Further, the trial court was on trial in another case on May 5-6, 2014. Lewis's trial, therefore, was continued to January 12, 2015. On that date, the court was conducting another unrelated trial, and Lewis' trial was continued to May 2015. See Commonwealth v. Malgieri , 889 A.2d 604, 607 (Pa. Super. 2005) (judicial delay may serve as basis for extending time in which Commonwealth may commence trial so long as prosecutor was prepared to commence trial prior to expiration of mandatory period but court, due to scheduling difficulties, is unavailable). We find no abuse of discretion. Ramos , supra.
In his third claim, Lewis argues the court erred in denying his objection to the prosecutor's remarks during closing arguments. He contends the prosecutor's statement amounted to prosecutorial misconduct and, therefore, he was denied his right to a fair trial.
In accord with the long-standing principle that a "prosecutor must be free to present his or her arguments with logical force and vigor," this Court has permitted vigorous prosecutorial advocacy "as long as there is a reasonable basis in the record for the [prosecutor's] comments." Commonwealth v. Robinson , 864 A.2d 460, 516-17 (Pa. 2004). Prosecutorial comments based on the evidence or reasonable inferences therefrom are not objectionable, nor are comments that merely constitute oratorical flair. Commonwealth v. Tedford , 960 A.2d 1, 33 (Pa. 2008). Any challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the context in which it was offered. Robinson , supra at 517.
The standard by which the court considers allegations of improper prosecutorial comments is a stringent one:
Comments by a prosecutor constitute reversible error only where their unavoidable effect is to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and render a fair verdict.Tedford , supra at 33.
Here, Lewis points to the following statement by the prosecutor: "You can possess something even if you don't have it on your body, even if it's just in the house. So if he is in a house living with Veronica Jackson [on December 9, 2012] and he knows that the gun is there . . . ." Appellant's Brief, at 22. Lewis cites to the notes of testimony of trial, at 5/14/15, 90-92. He argues that the prosecutor's statement "urged the jury to consider facts to support defendant's conviction of 18 Pa.C.S. § 6105(A)(1) from December 9, 2012[,] that formed the basis of acquittal under the statute." Appellant's Brief, at 22. To state it more clearly, the prosecutor was referring to underlying facts from a prior case at which Lewis was found not guilty of violating section 6105 for possessing a gun on December 9, 2012 when Jackson bought the guns. The prosecutor's theory of the case was that Lewis knew where the guns were when Jackson bought them while he lived with Jackson, and that he moved the guns with him when he moved from Jackson's home to 433 W. Hansberry Street in May of 2013. This was evidence admitted at trial and the prosecutor could properly summarize it in closing. See Commonwealth v. Hutchinson , 25 A.3d 277, 307-08 (Pa. Super. 2011) (it is entirely proper for prosecutor to summarize evidence presented, to offer reasonable deductions and inferences from evidence and argue that evidence establishes defendant's guilt).
We point out that the record before us does not contain the notes of testimony from trial to which Lewis cites. See Pa.R.A.P. 1911(a) ("The appellant shall request any transcript required under this chapter in the manner and make any necessary payment or deposit therefor in the amount and within the time prescribed by Rules 5000.1 et seq. of the Pennsylvania Rules of Judicial Administration[.]"). See Commonwealth v. Williams , 715 A.2d 1101, 1103 (Pa. 1998); see also Commonwealth v. Steward , 775 A.2d 819, 833 (Pa. Super. 2001) (noting it was not responsibility of trial court to order notes of transcript of defense counsel's closing as Rule 1911 "makes it abundantly plain that it is the responsibility of the Appellant to order all transcripts necessary to the disposition of his appeal"). Because the parties and the trial court do not dispute the content of the statement, or the court's curative instruction, we will not find waiver. --------
Finally, Lewis claims the court erred in denying his motion to suppress. A magistrate's finding of probable cause "must be based on facts described within the four corners of the affidavit[,]" Commonwealth v. Stamps , 427 A.2d 141, 143 (Pa. 1981), and "our scope of review of a suppression court's ruling [on a magistrate's finding of probable cause] is confined primarily to questions of law." Id. (citing Commonwealth v. Sharp , 683 A.2d 1219, 1221 (Pa. Super. 1996)). See also Commonwealth v. Ryerson , 817 A .2d 510, 513 (Pa. Super. 2003); Pa.R.Crim.P. 203.
After our review of the parties' briefs, the record, and the relevant law, we conclude that the Honorable Daniel J. Anders has properly disposed of this claim in his Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 4/28/16, at 6-7 (based on totality of circumstances, fact contained within four corners of warrant were sufficient for magistrate to find probable cause; affidavit of probable cause stated: complainant Jackson reported specific types of firearms missing from her residence; only Jackson and Lewis knew of firearms; Lewis was currently residing with Vikki Scott; search of motor vehicle records confirmed Scott's address; and, officer confirmed Lewis had prior conviction and was prohibited from possessing firearm).
For the foregoing reasons, we affirm the judgment of sentence. The parties are directed to attach a copy of the trial court's opinion in the event of further proceedings.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/29/2017
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