Com. v. Arsad, W. ( 2016 )

J-S81043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WARREN F. ARSAD, III
Appellant No. 1914 EDA 2015
Appeal from the Judgment of Sentence December 14, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0205171-2005
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 15, 2016
Appellant Warren F. Arstad, III, appeals nunc pro tunc from the
judgment of sentence entered in the Court of Common Pleas of Philadelphia
County on December 14, 2012, at which time he received an aggregate
sentence of six (6) years to twelve (12) years in prison following his
convictions of various firearms offenses and a possession of marijuana
charge.1 We affirm.
The trial court set forth the relevant procedural history and facts
herein as follows:
This case was assigned to the Honorable John J. Poserina,
Jr., who commenced a bench trial on April 14, 2009 after
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6106(A)(1), 6108, 6110.2(A), and 35 Pa.C.S.A. § 780-
113(a)(31), respectively.
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[Appellant] waived his right to a jury trial. On April 15, 2009,
Judge Poserina declared a mistrial due to [Appellant’s] jury
demand. However, before declaring a mistrial, Judge Poserina
denied [Appellant’s] May 16, 2008 and March 12, 2009 motions
for relief under Rule 600.1
After the mistrial was declared, this case was listed for a
jury trial before the Honorable Genece E. Brinkley, who denied
[Appellant’s] June 3, 2010 Rule 600 motion on June 14, 2010.
After numerous trial listings and continuances, this case was
assigned to this court on September 14, 2010. [Appellant’s] jury
trial commenced on February 15, 2011, and on February 18,
2011, he was convicted on charges of carrying a firearm without
a license in violation of Section 6106, carrying a firearm on
public property or streets of Philadelphia in violation of Section
6108, possessing a firearm with an altered manufacturer
number, and possession of marijuana. [Appellant] was
sentenced to six (6) to twelve (12) years in a state correctional
institution on December 14, 2012. [Appellant] filed a post-
sentence motion, which was denied by operation of law on May
29, 2013. However, he did not file a notice of appeal.
[Appellant] filed a pro se petition for relief under the Post
Conviction Relief Act on August 12, 2013. After the appointment
of counsel, an amended PCRA petition, seeking reinstatement of
[Appellant’s] appellate rights, was filed on February 12, 2015.
On May 22, 2015, this court reinstated [Appellant’s] appellate
rights nunc pro tunc, and granted him leave to file a direct
appeal before the Superior Court. On June 19, 2015, [Appellant]
filed a notice of appeal. On June 22, 2015, this court ordered
[Appellant] to file a statement of matters complained of on
appeal, which he filed on July 13, 2015.
In accordance with the Superior Court's August 26, 2015
Order, on September 18, 2015, this court conducted a Grazier
hearing wherein [Appellant] withdrew his request to proceed pro
se.
STATEMENT OF FACTS
At trial evidence was presented which, when viewed in the
light most favorable to the Commonwealth as the verdict winner,
established the following. On December 31, 2004, around 9:00
p.m., Philadelphia Police Sergeant Shawn Wilson, was off duty
and driving to a family gathering with his two minor children, a
twelve (12) year old and a seven (7) year old. As he drove
southbound on the 5800 block of North Park Avenue, Sergeant
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Wilson observed [Appellant] walking eastbound toward his
vehicle. [Appellant] pulled out a silver colored gun from his coat
pocket and pointed it toward Sergeant Wilson's vehicle and said:
"Boom, boom, boom." In response, Sergeant Wilson instructed
his children to put their heads down, and he sped past
[Appellant] who continued saying: "boom, boom, boom" as he
pointed the gun at other vehicles driving behind Sergeant
Wilson. Sergeant Wilson called 911 from his cell phone and
described the perpetrator as a "[b]lack male wearing black
clothing, dark clothing." He also provided the location where this
incident was occurring. Sergeant Wilson stopped his vehicle
about one-half block up the street near the intersection of Park
Avenue and Grange Street, and [Appellant] ran toward him with
the gun still in his hand. To protect himself and his children,
Sergeant Wilson turned onto Grange Street. N.T. 02/16/11, pp.
22-89.
At that point, Officers William Matthieu and Michael
Zimmerman (now Sergeant) responded and met Sergeant
Wilson on Grange Street. Sergeant Wilson identified himself as
an off-duty police officer and pointed Officers Matthieu and
Zimmerman toward the direction where he last saw [Appellant]
on 5800 North Park Avenue. Observing a man wearing "a black
jacket, blue jeans, and black boots," Officers Matthieu and
Zimmerman ran toward the 5800 block of North Park Avenue
and began yelling: "Stop, police" when they were about twenty
(20) to twenty-five (25) feet away from [Appellant], who
disregarded the order and continued to walk northbound on Park
Avenue. A pursuit ensued and Officer Mathieu observed
[Appellant] reach into his right coat pocket, pull out a gun and
drop it on the ground as he continued to walk away. Officers
Mathieu and Zimmerman pursued [Appellant] until they reached
him on the 5800 block of North Park Avenue, where he was
arrested despite his defiance toward police. N.T. 02/16/11, pp.
22-89, 90-169.
During the arrest, police frisked [Appellant] and recovered
seven (7) live rounds of .25 caliber ammunition wrapped in
tissue found inside his left jacket pocket. Officer Mathieu
observed the dropped gun on a patch of grass about two (2) to
three (3) feet away from [Appellant]. Officer Mathieu retrieved
the gun, a silver MP Raven .25 caliber firearm with brown grips
that had the manufacturer's serial number scratched off. In
making the gun safe, Officer Mathieu retrieved one (1) live round
of .25 caliber ammunition from the chamber and six (6) live
rounds of .25 caliber ammunition from the magazine. In total,
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police officers recovered fourteen (14) live rounds of .25 caliber
ammunition from [Appellant’s] person and from his gun.
[Appellant] was transported to the 35th Police District,
where Officers Dawn Wright and Gibson conducted a more
extensive search of [Appellant] and recovered four small Ziploc
bags containing marijuana. [Appellant’s] biographical
information listed him as being 5'9" tall and weighing 150
pounds. He was wearing a blue down jacket, a white shirt, blue
jeans, and black boots at that time. N.T. 02/16/11, pp. 22-89,
90-176, 180.
At trial, there was a stipulation between the
Commonwealth and [Appellant] that the serial number on the
firearm was removed by abrasions and that it was chemically
restored by the firearms examiner. The parties further stipulated
that [Appellant] did not have a valid license to carry a firearm
under Section 6109 of the Crimes Code, 18 Pa. C.S. §6109, or a
valid sportsman's firearm permit under Section 6106(c) of the
Crimes Code, 18 Pa. C.S. §6106(c). N.T. 02/16/11, pp. 22-89,
90-169, 181-182.
___
1
It should be noted that this case was before the Honorable
Genece E. Brinkley before assignment to Judge Poserina for trial.
Judge Brinkley heard [Appellant’s] December 11, 2006 Rule 600
motion and denied same on March 20, 2007.
On May 22, 2015, the trial court ordered that Appellant’s right to file a
direct appeal was reinstated nunc pro tunc, and on June 19, 2015, Appellant
filed his notice of appeal. On June 22, 2015, the trial court directed
Appellant to file a concise statement of matters complained of on appeal.
On July 13, 2015, Appellant filed his Statement of Matters Complained of on
Appeal Pursuant to Pa.R.A.P. 1925(b) wherein he asserted the trial court had
erred in failing to grant his “Rule 600 and speedy trial motion” and
challenged the sufficiency and weight of the evidence to sustain his
convictions. In his brief, Appellant presents the following two questions for
our review:
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1. Were the inconsistencies in the testimony of the police
officers significant enough to warrant overturning the verdict as
being against the weight of the evidence?
2. Did the Commonwealth’s failure to bring the Appellant to
trial for over seven years violate his right to a speedy trial?
Brief of Appellant at 7.2
Initially, Appellant argues the verdict was against the weight of the
evidence due to numerous “key inconsistences” in the testimony of police
officers involved in the matter. Brief of Appellant at 11. Specifically,
Appellant maintains the officers’ testimony concerning the perpetrator’s
clothing was unclear and in some instances contradicted statements included
in their written reports. Id. at 12-13.
A challenge to the weight of the evidence is distinct from a
challenge to the sufficiency of the evidence in that the former
concedes that the Commonwealth has produced sufficient
evidence of each element of the crime, “but questions which
evidence is to be believed.” Commonwealth v. Charlton, 902
A.2d 554, 561 (Pa.Super. 2006), appeal denied, 590 Pa. 655,
911 A.2d 933 (2006). “A new trial should not be granted
because of a mere conflict in the testimony or because the judge
on the same facts would have arrived at a different conclusion.”
Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1055
(2013). “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.” Id. (citation omitted). “It
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2
In an order filed on September 18, 2015, the trial court indicated that in
accordance with this Court’s Per Curiam Order of November 17, 2015, it had
conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81(Pa. 1998) at which time Appellant withdrew his request to proceed pro se
and, therefore, counsel would continue to represent Appellant on direct
appeal.
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has often been stated that a new trial should be awarded when
the jury's verdict is so contrary to the evidence as to shock one's
sense of justice and the award of a new trial is imperative so
that right may be given another opportunity to prevail.” Id.The Supreme Court has provided the following guidance for
an appellate court's review of the record when the appellant
challenges the weight of the evidence:
In reviewing the entire record to determine the
propriety of a new trial, an appellate court must first
determine whether the trial judge's reasons and factual
basis can be supported. Unless there are facts and
inferences of record that disclose a palpable abuse of
discretion, the trial judge's reasons should prevail. It is
not the place of an appellate court to invade the trial
judge's discretion any more than a trial judge may
invade the province of a jury, unless both or either
have palpably abused their function.
To determine whether a trial court's decision
constituted a palpable abuse of discretion, an appellate
court must examine the record and assess the weight
of the evidence; not however, as the trial judge, to
determine whether the preponderance of the evidence
opposes the verdict, but rather to determine whether
the court below in so finding plainly exceeded the limits
of judicial discretion and invaded the exclusive domain
of the jury. Where the record adequately supports the
trial court, the trial court has acted within the limits of
its judicial discretion. Id. at 1056.
Interest of J.B., 2016 WL 4547955 at *10-11 (Pa.Super. Sept. 1, 2016).
In addition, “[a] weight of the evidence claim must be preserved either
in a post-sentence motion, by a written motion before sentencing, or orally
prior to sentencing. Failure to properly preserve the claim will result in
waiver, even if the trial court addresses the issue in its opinion.”
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Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.Super. 2013) (citing
Pa.R.Crim.P. 607) (other citations omitted).
In the matter sub judice, Appellant properly preserved this claim when
he raised a challenge to the weight of the evidence in a timely filed post-
sentence motion on December 21, 2012. Notwithstanding, upon our review
of the record and the trial court’s opinion, we conclude the trial court did not
palpably abuse its discretion in reaching its decision. See Interest of J.B,
supra.
Significantly, police officers collectively stated they maintained a clear
view of Appellant and that he possessed and discarded the firearm prior to
his arrest. As the trial court stated, the jury as factfinder heard the minor
inconsistencies in the officers’ accounts of Appellant’s arrest and description
of his attire. The jury was free to resolve any conflicting evidence in a light
most favorable to the Commonwealth, and its verdict evinces it did so. Trial
Court Opinion, filed 3/24/16, at 9. The trial court stressed:
The evidence presented at trial showed that Sergeant Wilson
observed [Appellant] pull out a gun, point it at his vehicle and
other vehicles, and say: Boom, boom, boom.” When
responding officers arrived on the scene, they were immediately
informed of the perpetrator’s location and began to pursue
[Appellant]. There is no evidence that they lost sight of
[Appellant] even when he attempted to walk away from the
scene. Indeed, police observed [Appellant] drop the gun and
continue to walk northbound before they were able to catch up
with him. When police reached [Appellant], they arrested him.
Certainly, this evidence shows that police observed [Appellant]
engaging in criminal activity and arrested him after engaging a
foot pursuit. Consequently, there is no merit to [Appellant’s]
argument.
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Id. at 10.
The jury considered the evidence and determined that the officers
testified credibly. “This Court cannot substitute its judgment for that of the
jury on issues of credibility.” Commonwealth v. DeJesus, 580 Pa. 303,
311, 860 A.2d 102, 107 (2004). In addition, the trial court which observed
the witnesses as they testified throughout trial held the jury's verdict was
not contrary to the evidence and did not shock its sense of justice. Based
upon the record before us, we find no abuse in the trial court's exercise of
discretion in this regard. Commonwealth v. Brown, 71 A.3d 1009, 1014
(Pa.Super. 2013).
Appellant next asserts the trial court erred in failing to grant his
“pretrial motion” to dismiss under Pa.R.Crim.P. 600. Specifically, Appellant
contends that under Rule 600, the Commonwealth is required to commence
a defendant’s trial within 365 days of the filing of a criminal complaint.
However, Appellant asserts that in the case sub judice, Appellant was
arrested on December 31, 2004, and his trial did not commence until
February 15, 2011, over seven years later; therefore, the charges should
have been dismissed because the Commonwealth failed to meet its burden
of demonstrating that the delays were excludable. Brief for Appellant at 11,
14. Our scope and standard of review for such a claim is well-settled:
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
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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.
Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004)
(quotations, quotation marks, and citations omitted).
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.
Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa.Super. 2007) (en
banc) (quotation omitted).
Rule 600(A)(2)(a) requires that trial commence within 365 days of the
filing of the written complaint.
The mechanical run date is the date by which the trial must
commence under Rule 600. It is calculated by adding 365 days
(the time for commencing trial under Rule 600) to the date on
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which the criminal complaint is filed. ... [T]he mechanical run
date can be modified or extended by adding to the date any
periods of time in which delay is caused by the defendant. Once
the mechanical run date is modified accordingly, it then becomes
an adjusted run date. If the defendant's trial commences prior
to the adjusted run date, we need go no further.
Ramos, 936 A.2d at 1102 (internal citation, brackets and footnote omitted).
In addition, Pa.R.Crim.P. 600(D)(1) provides that a new run period will
commence when “a trial court has granted a new trial and no appeal has
been perfected.”
Before we consider the merits of this issue, we must first determine
whether Appellant has preserved it for our review. To preserve a claim for
relief under Rule 600, an appellant must file and serve upon the
Commonwealth a written motion requesting such relief. Commonwealth v.
Brock, 619 Pa. 278, 285, 61 A.3d 1015, 1019 (2013). In determining that
an oral motion to dismiss was insufficient, our Supreme Court in Brock
reasoned as follows:
In [Commonwealth v.] Drake, [489 Pa. 541, 414 A.2d 1023(1980)], the defendant made an oral motion for dismissal
pursuant to former Pa.R.Crim.P. 1100, now Rule 600. The trial
court denied the motion on the merits. On appeal, the Superior
Court affirmed, but concluded the defendant had waived his Rule
1100 claim by failing to file a written application to dismiss.
Upon further appeal, this Court affirmed the Superior Court's
decision, explaining that Rule 1100(g):
requires a copy of an application to dismiss the charges
be served upon the attorney for the Commonwealth.
This clearly indicates the Rule mandates a written
application. The same purposes of providing the trial
courts with specific facts and issues for determination
and providing certainty in the record on appeal which
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were advanced by our ruling in Commonwealth v.
Blair, [460 Pa. 31, 331 A.2d 213 (1975) ], will be
served by enforcement of the written application
requirement under Rule 1100(f).
Id. at 544, 414 A.2d at 1024–25 (footnotes omitted).
Commonwealth v. Brock, 619 Pa. 278, 283–84, 61 A.3d 1015, 1017–18
(2013) (footnote omitted).
A review of the certified record herein reveals only a pro se
correspondence filed with the Honorable Genece E. Brinkley on June 3,
2010, wherein Appellant stated that because the Honorable John J. Poserina
had declared a mistrial on April 15, 2009, his trial should have commenced
by April 15, 2010, under Rule 600. Appellant still was represented by
counsel at that time, and no counseled motion raising a challenge under
Rule 600 had been filed; therefore, Appellant’s pro se filing constitutes a
legal nullity, as it is well-settled that no defendant has a right to hybrid
representation. Commonwealth v. Padilla, 62 Pa. 449, 485, 80 A.3d
1238, 1259 (Pa. 2013); Pa.R.Crim.P. 120(a)(4) (stating “[a]n attorney who
has been retained or appointed by the court shall continue such
representation through direct appeal or until granted leave to withdraw by
the court…”). As a result of Appellant’s failure properly to present his motion
for relief pursuant to Rule 600 before the trial court, it appears he has
waived this claim on appeal.
Notwithstanding, the certified record contains an order entered on
March 20, 2007, wherein the trial court indicates that “after consideration of
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the 1013 Motion and 600A2 Motion presented by the attorney for the
[Appellant],” such motions were denied. However, nowhere does the order
indicate whether the referenced, counselled motion had been in writing and
properly filed and none appears in the certified record before us. In
addition, in an order entered on June 14, 2010, the trial court stated the
following:
AND NOW, this 14th day of June, 2010, it is hereby
ORDERED that [Appellant’s] request for release under Rule
600(g) is DENIED. Judge Poserina ruled on this motion on April
15, 2009, and the time elapsed from April 15, 2009 to present is
excludable time based upon three separate changes of defense
back-up counsel or extendable based upon the [c]ourt’s
calendar.
****
In light of the foregoing, even were this Court to give credence to
Appellant’s written pro se Rule 600 motion or assume, arguendo, the
aforesaid motions to dismiss were in writing and properly served upon the
attorney for the Commonwealth, not set forth orally at a hearing, we would
apply Pa.R.A.P. 2119(a) to find waiver for Appellant’s failure to develop a
meaningful argument with citation to relevant, legal authority on this claim
in his appellate brief. See Commonwealth v. Heilman, 867 A.2d 542, 546
(Pa.Super. 2005) (recognizing that failure to include “such discussion and
citation of authorities as are deemed pertinent” may result in waiver of
claim); Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa.Super.
2004)(declining to review claim where brief contains limited explanation and
development of argument). Appellant merely lists docket entries with some
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footnotes thereto in the “Statement of the Case” portion of his brief and
makes bald assertions in the Argument section thereof that the
Commonwealth failed to meet its burden of proving the delays were
excludable; therefore, he concludes his right under both the Pennsylvania
and federal constitutions to a speedy trial was violated under the “technical
mandates of Rule 600.” Brief for Appellant at 15.
The Rules of Appellate Procedure state unequivocally that
each question an appellant raises is to be supported by
discussion and analysis of pertinent authority Appellate
arguments which fail to adhere to these rules may be considered
waived, and arguments which are not appropriately developed
are waived. Arguments not appropriately developed include
those where the party has failed to cite any authority in support
of a contention. This Court will not act as counsel and will not
develop arguments on behalf of an appellant. [M]ere issue
spotting without analysis or legal citation to support an assertion
precludes our appellate review of [a] matter.
Coulter v. Ramsden, 94 A.3d 1080, 1088–89 (Pa.Super. 2014), appeal
denied, ___ Pa. ____, 110 A.3d 998 (2014) (Table) (internal citations and
quotation marks omitted). Therefore, we find Appellant waived this claim for
lack of development. Umbelina v. Adams, 34 A.3d 151, 161 (Pa.Super.
2011), appeal denied, 47 A.3d 848 (Pa. 2012). See also Commonwealth
v. Williams, 732 A.2d 1167, 1175 (Pa. 1999) (noting that relief is
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unavailable based upon undeveloped claims for which insufficient argument
3
is presented on appeal).
For all of the the foregoing reasons, we affirm.4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
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3
Had Appellant properly preserved this issue and developed an argument in
support of it, the trial court determined application of Rule 600 to the instant
case was straightforward. We find no error in the trial court’s analysis and,
therefore, we would conclude the trial court did not abuse its discretion in
denying Appellant’s motion to dismiss under Rule 600. See Trial Court
Opinion, filed 3/24/16 at 11-15. See Commonwealth v. Ramos, 936 A.2d
at 1103 (“We add the amount of excludable time, if any, to the mechanical
run date to arrive at an adjusted run date.”) (citation omitted)).
4
An appellate court may affirm the trial court on any basis if the ultimate
decision is correct. Commonwealth v. Reese, 31 A.3d 708, 727
(Pa.Super. 2011) (en banc).
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