Com. v. Davis, C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES DAVIS, :
:
Appellant : No. 3187 EDA 2016
Appeal from the Judgment of Sentence September 16, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Divisio.: CP-51-CR-0012499-2012
BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 30, 2019
Appellant, Charles Davis, appeals from the Judgment of Sentence of life
imprisonment followed by twenty to forty years of incarceration, imposed on
September 16, 2016, following his conviction by jury for Second-Degree
Murder and numerous related offenses. We affirm.
We adopt the following statement of facts from the trial court’s Pa.R.A.P.
1925(a) Opinion and the certified record. See Trial Ct. Op., 4/12/17, at 2-7;
N.T. Trial, 9/7-14/16.
On March 5, 2012, Appellant and his Co-Conspirator, Ali Marsh, illegally
entered the home of John Paul, his wife Sherrel, and their two minor children,
located in North Philadelphia. The family was asleep at the time, but Mr. Paul
awoke at the sound of the intruders. He exited his bedroom to investigate
and encountered the intruders, who then shot him in the chest.
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The sounds of this altercation alerted Mrs. Paul. She, too, left the
bedroom and encountered the intruders in the hallway. Following a struggle,
one of the intruders shot her. She collapsed and was unable to move her
lower extremities. Nevertheless, Mrs. Paul attempted to crawl toward her
children’s bedroom, trying to protect them from the intruders. One of the
intruders demanded money, but, upon learning there was no money in the
home, shot Mrs. Paul numerous times.1
The intruders then fled the home. One of the children called 911. Police
and emergency medical personnel responded to the scene. Taken to a nearby
hospital, Mr. Paul was pronounced dead, but Mrs. Paul survived despite
numerous bullet wounds.
Investigators secured ballistic and other forensic evidence from the
home. Ballistic evidence confirmed that two firearms were used in the
assaults. Testing performed on blood samples taken from the scene confirmed
Co-Conspirator Marsh’s presence.
Upon fleeing the home, Appellant called his wife, Nicole Walton. Ms.
Walton agreed to pick them up at a location in West Philadelphia. Upon her
arrival, she noticed that Marsh was injured. Marsh directed Walton to drive
him to a hospital outside the city, so the group proceeded to a hospital in
Maryland. Along the way, the group agreed on a cover story, falsely asserting
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1 During their assault upon the Paul family, Marsh suffered a gunshot wound
to his leg. It is not clear whether Appellant accidentally shot his Co-
Conspirator or the wound was self-inflicted.
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that Marsh was the victim of a robbery in Delaware. Ms. Walton and Appellant
left Marsh in Maryland, and Ms. Walton drove Appellant back to Pennsylvania.
Investigators secured cell phone record evidence. Call logs established
that calls occurred between Appellant and Marsh prior to the incident and
between Appellant and Ms. Walton after the incident. In addition,
investigators used call detail records to approximate Appellant’s location
throughout the early morning hours of March 5, 2012. This evidence
established that Appellant met Marsh in West Philadelphia. From there, the
two men travelled together to North Philadelphia, returned to West
Philadelphia, then left Pennsylvania for Maryland. Finally, the call detail
records established that Appellant returned to Pennsylvania.
Almost immediately, the group’s story unraveled, but Appellant eluded
arrest until July 2012. Thereafter, the Commonwealth charged him with the
following crimes: Murder, generally, Attempted Murder, Conspiracy (two
counts), Aggravated Assault, Robbery, Burglary (two counts), Possession of
Firearms Prohibited, Firearms Not to be Carried without a License, Carrying
Firearms on Public Streets in Philadelphia, and Possessing Instruments of
Crime.2 Information, Docket No. CP-51-CR0012499-2012, 10/24/12.
In October 2012, a Preliminary Hearing commenced. Over the objection
of Appellant, the Commonwealth presented statements given by Ms. Walton
to the police. These statements described confidential communications
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218 Pa.C.S. §§ 2502, 901(a), 903(a), 2702(a)(1), 3701(a)(1)(i), 3502(a)(1),
6105(a)(1), 6106(a)(1), 6108, 907(a), respectively.
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between Ms. Walton and Appellant. Following the hearing, Appellant filed a
Motion to Quash with the trial court. Initially, the court agreed with arguments
levied by the Commonwealth, which asserted that such communications were
admissible under a crime/fraud exception to the spousal privilege for
confidential communications.3 N.T. Hearing, 5/2/13, at 5-6; Order, 5/2/13.
However, upon reconsideration, the trial court concluded that there was no
exception to the privilege and that the statements were inadmissible. N.T.
Hearing, 8/22/13, at 15.4 Nevertheless, the court determined that there was
sufficient admissible evidence to establish a prima facie case against
Appellant. N.T. Hearing, 9/12/13, at 5-6, 9-10.
The Commonwealth filed an interlocutory appeal in this Court, certifying
that the trial court’s ruling substantially handicapped its prosecution.
Commonwealth’s Notice of Appeal, 9/23/13. Upon review, we affirmed, and
the Supreme Court denied the Commonwealth’s Petition for further review.
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3 See 42 Pa.C.S. § 5914.
4 The trial court issued an Order, purportedly granting Appellant’s Motion in
Limine. See Trial Court Order, 8/22/13. Appellant did not file such a motion.
Nevertheless, this Order accurately reflects the substance of the court’s
ruling. See N.T. Hearing, 8/22/13, at 15 (“So for the record, I’m vacating my
earlier order allowing [Appellant’s] wife to testify against him and I am ruling
that such testimony is barred by [42 Pa.C.S. § 5914].”). Moreover, the court’s
ruling was responsive to Appellant’s repeated assertion that such testimony
was inadmissible. See Motion to Quash, 10/31/12; Motion to Reopen Motion
to Quash, 7/31/13.
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Commonwealth v. Davis, 121 A.3d 551 (Pa. Super. 2015) (en banc), appeal
denied, 128 A.3d 219 (Pa. 2015).5
Upon remand to the trial court, Appellant filed a Motion for Release
Pursuant to Rule 600, essentially asserting that the Commonwealth did not
timely bring him to trial because it had pursued a frivolous appeal of the trial
court’s confidential spousal communications ruling. See Motion for Release
Pursuant to Rule 600, 6/23/16; N.T. Trial, 9/8/16, at 5-11. The court denied
Appellant’s Motion. N.T. Trial, 9/8/16, at 11.
Trial commenced before a jury in September 2016. Following its
deliberations, the jury convicted Appellant on all counts.6 Thereafter, the
court imposed sentence as set forth above.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
Statement. The trial court issued a responsive Opinion.
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5 The General Assembly has defined two spousal privileges relevant to the
Commonwealth’s interlocutory appeal. See 42 Pa.C.S. §§ 5913, 5914. Both
limit testimony from one spouse against another. Id. However, there is a
substantial distinction between the privileges. Section 5913, which defines a
spouse’s privilege “not to testify against his or her then lawful spouse,”
includes an exception for criminal proceedings involving charges of murder.
42 Pa.C.S. § 5913(4). Section 5914, which prohibits testimony regarding
confidential communications between spouses, includes no such exception.
42 Pa.C.S. § 5914. In its appeal, the Commonwealth sought recognition of a
crime-fraud exception to the confidential communications privilege defined in
Section 5914. Id. at 555. We rejected its arguments. Id. at 555-558.
6 The trial court determined Appellant’s guilt for Possession of Firearms
Prohibited. Trial Ct. Op. at 2 n.2.
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In this Court, Appellant filed an Application to Amend his Pa.R.A.P.
1925(b) Statement. Application to Amend, 1/24/18. We granted Appellant’s
Application and remanded to the trial court for further proceedings. Order,
2/16/18. Upon remand, Appellant filed Supplemental Statements pursuant to
Pa.R.A.P. 1925(b), and the trial court issued a Supplemental Opinion.
Supplemental Statement, 3/8/18; Supplemental Statement (2), 4/4/18
(denoting if and where in the record Appellant preserved issues raised
therein); Trial Ct. Supplemental Op., 4/10/18.
Appellant raises the following issues on appeal, restated for clarity:
1. Whether the trial court abused its discretion when it denied
Appellant’s Motion for Release Pursuant to Rule 600, as the
Commonwealth delayed his trial for “approximately 805 days,”
pursuing a frivolous appeal of the court’s confidential spousal
communications ruling; and
2. Whether the trial court abused its discretion when it permitted
expert testimony regarding cell phone location tracking data
without first evaluating the “reliability, scientific community
acceptance, the standard levels of deviation, and the margins
for error” associated with this evidence.
Appellant’s Br. at 2-3.
In his first issue, Appellant contends the trial court abused its discretion
when it denied his Motion for Release Pursuant to Rule 600. Appellant’s Br.
at 16. According to Appellant, the Commonwealth appealed the trial court’s
confidential spousal communications ruling in bad faith. Id. at 22-26
(asserting that the Commonwealth knew or should have known that the law
controlling this privilege is unambiguous and well settled). By Appellant’s
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calculation, the Commonwealth’s frivolous appeal delayed Appellant’s trial by
805 days—a substantial delay prejudicial to Appellant. Id. at 26-27. Thus,
Appellant concludes, this delay violated his right to a speedy trial, and the trial
court should have dismissed the charges against him with prejudice. Id. at
14, 29.
The purpose of Pennsylvania Rule of Criminal Procedure 600 is to protect
an accused’s right to a speedy trial while also protecting society’s right to
effectively prosecute criminal cases. Commonwealth v. Armstrong, 74
A.3d 228, 234-35 (Pa. Super. 2013); Pa.R.Crim.P. 600 cmt. Generally, under
the Rule, trial must commence within 365 days from the date on which a
criminal complaint is filed. Pa.R.Crim.P. 600(A)(2)(a). “[P]eriods 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.” Pa.R.Crim.P.
600(C)(1). “Any other periods of delay shall be excluded from the
computation.” Id.7
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7 As noted by the Commonwealth in its Brief, see Commonwealth’s Br. at 8-
9, Appellant’s argument conflates a Rule 600 analysis with a distinct, balancing
test first defined by the United States Supreme Court in Barker v. Wingo,
407 U.S. 514, 530-33 (1972) (crafting the test to ensure a defendant’s right
to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments).
See Appellant’s Br. at 17-22, 26-27. In Commonwealth v. Hamilton, 297
A.2d 127, 130-33 (Pa. 1972), the Pennsylvania Supreme Court deemed this
balancing test inadequate to ensure a defendant’s right to a speedy trial under
the Pennsylvania Constitution. The Court has also suggested that “the prompt
trial rule [i.e., Rule 600] . . . represents the sole means of securing a
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We review the denial of a Rule 600 motion to determine whether the
trial court abused its discretion. Armstrong, 74 A.3d at 234. “Judicial
discretion requires action in conformity with law, upon facts and circumstances
judicially before the court, after hearing and due consideration.” Id. It is not
merely an error of judgment. Id. (citation and quotation omitted). Rather,
an abuse of discretion occurs where “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[.]” Id.(citation and quotation omitted).
Essentially, Appellant asserts that the period of time during which the
Commonwealth pursued its interlocutory appeal should be included in a Rule
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defendant's state constitutional right to a speedy trial.” Commonwealth v.
Meadius, 870 A.2d 802, 803 n.1 (Pa. 2005) (citing Commonwealth v.
Whitaker, 359 A.2d 174, 176 (Pa. 1976). The Court has continued to apply
the balancing test in cases where an appellant presents independent claims
premised on both the procedural rule and the constitutional guarantees.
Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995). Here, Appellant
premised his Motion for Release solely upon Rule 600. See Motion for Release.
Accordingly, the Barker balancing test is inapplicable. Commonwealth v.
Colon, 87 A.3d 352, 357 n.2 (Pa. Super. 2014) (“Where the appellant does
not raise the separate constitutional issue apart from the Rule 600 issue as a
basis for the motion to dismiss, there is no need for the Barker balancing test
to be examined.”). To the extent Appellant seeks to raise a constitutional
claim in this appeal, we deem it waived. Pa.R.A.P. 302(a) (“Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”).
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600 computation because the Commonwealth failed to act with due diligence.8
We disagree.
Initially, we observe that the procedural history of this case undermines
Appellant’s assertion that the Commonwealth’s interlocutory appeal was
frivolous or in bad faith. This Court determined to hear the Commonwealth’s
appeal en banc, suggesting the issues raised therein had “potential for a
significant impact upon developing law or public policy.” 210 Pa. Code §
65.38(D)(5); see also Order, No. 2726 EDA 2013, 10/28/14 (directing “the
case be listed before the next available en banc panel”).
Moreover, in Commonwealth v. Matis, 710 A.2d 12 (Pa. 1998), our
Supreme Court examined a Rule 600 issue similar to that raised by Appellant
here. In that case, the Commonwealth filed a criminal complaint charging the
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8 To be clear, Appellant’s contention is narrow. The following dates are
relevant: the Commonwealth filed an Information charging Appellant on
October 24, 2012; the Commonwealth filed its Notice of Appeal on September
23, 2013; the Pennsylvania Supreme Court denied the Commonwealth’s
Petition for Allowance of Appeal (PAA) on December 7, 2015; and trial
commenced on September 8, 2016. The time elapsed between the
Information and trial is 1415 days. However, Appellant concedes that any
periods of delay prior to the Commonwealth’s interlocutory appeal are
attributable to Appellant. See Motion for Release Pursuant to Rule 600 at 2 ¶
11; N.T. Trial, 9/8/16, at 5. Thus, we exclude that time. Pa.R.Crim.P.
600(C)(1). The time elapsed between the Notice of Appeal and trial is 1081
days. If the Commonwealth’s interlocutory appeal period is included in the
Rule 600 computation, then the Commonwealth failed to bring Appellant to
trial promptly. Pa.R.Crim.P. 600(A)(2)(a). On the other hand, if the appellate
period is excluded, trial commenced in 276 days (i.e., the time elapsed
between the PAA denial and trial), and no Rule 600 violation occurred. Id.See discussion, infra.
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defendant in the deaths of two people caused by him while he was driving
under the influence of alcohol. Id. at 13-14. The Commonwealth sought a
continuance in order to secure necessary testimony at trial from a witness
who was unavailable. Id. at 14. The trial court denied the continuance, and
the Commonwealth appealed, certifying that the court’s ruling substantially
impaired its prosecution. Id. at 15. This Court quashed the interlocutory
appeal and remanded for trial. Id.
On remand, the defendant filed a motion to dismiss the charges,
asserting that the Commonwealth had failed to exercise due diligence in
bringing him to trial and had filed a frivolous appeal in bad faith. 9 Id.
Following a hearing, the court discharged the defendant. Id.
The Commonwealth appealed, and this Court reversed, concluding that
the period of time comprising the pendency of the Commonwealth’s
interlocutory appeal was excludable. Id. Upon further review, the Supreme
Court addressed directly the Commonwealth’s right to appeal adverse
evidentiary rulings and declined to penalize the Commonwealth for exercising
that right, provided that it certifies that such an appeal is necessary. Id. at
17-19. According to the Court, the Commonwealth’s certification is “not
contestable” and establishes the Commonwealth’s due diligence. Id. Thus,
the Court remanded for trial. Id.
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9The defendant brought the motion pursuant to Rule 1100, the precursor to
Pa.R.Crim.P. 600.
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Similarly here, the trial court determined that Ms. Walton’s confidential
communications with Appellant were privileged, thus denying the
Commonwealth an opportunity to present all of its evidence. The
Commonwealth timely filed an interlocutory appeal and certified that this
adverse evidentiary ruling substantially impaired its prosecution.
Commonwealth’s Notice of Appeal. This certification is not contestable and
establishes that the Commonwealth exercised due diligence. Matis, supra.
The Commonwealth’s interlocutory appeal was neither frivolous nor
pursued in bad faith. Therefore, the 805 days that elapsed during the
pendency of the appeal are excluded from the Rule 600 computation.
Pa.R.Crim.P. 600(C)(1). The time elapsed between the PAA denial, which
occurred on December 7, 2015, and Appellant’s trial, which commenced on
September 8, 2016, is 276 days. See supra n.8. Therefore, no violation of
Rule 600 occurred. Pa.R.Crim.P. 600(A)(2)(a). Accordingly, we discern no
abuse of the court’s discretion in denying Appellant’s Motion for Release.
Armstrong, supra.In his second issue, Appellant contends the trial court abused its
discretion when it permitted expert testimony to establish Appellant’s
approximate location throughout the early morning hours of March 5, 2012.
See Appellant’s Br. at 29. According to Appellant, the foundation of this
evidence was “a novel science” that lacked “general acceptance in the relevant
scientific community.” Id. at 29-30. Thus, Appellant implies, prior to
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admitting this evidence, the court should have conducted a Frye10 hearing to
evaluate the scientific methodology relied upon by the Commonwealth’s
expert.11
The admission of expert testimony is subject “largely to the discretion
of the trial court, and its rulings thereon will not be reversed absent an abuse
of discretion.” Commonwealth v. Cramer, 195 A.3d 594, 605 (Pa. Super.
2018) (citation omitted).
This Court has explained that scientific evidence is “novel” when “there
is a legitimate dispute regarding the reliability of the expert’s conclusions.”
Commonwealth v. Safka, 95 A.3d 304, 307 (Pa. Super. 2014) (citation and
quotation omitted). To be admissible at trial, the methodology underlying the
novel scientific evidence “must have gained general acceptance in the relevant
scientific community.” Commonwealth v. Powell, 171 A.3d 294, 307 (Pa.
Super. 2017).
However, a trial court is not required to conduct a Frye hearing any
time a party seeks to introduce scientific evidence. “Rather, a hearing is
warranted only when the trial court has articulable grounds to believe that an
expert witness has not applied accepted scientific methodology in a
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10 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
11 To be clear, Appellant does not assert specifically that the trial court erred
in failing to hold a Frye hearing. See generally Appellant’s Br.; but see
Supplemental Statement; Supplemental Statement (2). Rather, Appellant
asserts the admission of this scientific evidence constitutes an abuse of
discretion. See Appellant’s Br. at 29.
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conventional fashion in reaching his or her conclusions.” Commonwealth v.
Jacoby, 170 A.3d 1065, 1091 (Pa. 2017) (citation and internal quotation
marks omitted); see also Commonwealth v. Freeman, 128 A.3d 1231,
1246-47 (Pa. Super. 2015) (discerning no abuse of discretion when trial court
did not conduct sua sponte a Frye hearing to determine whether cell phone
location evidence relied upon accepted scientific methodology, despite the
filing by defendant of a motion in limine seeking to exclude such evidence,
because the defendant did not request specifically a Frye hearing).
Here, Appellant did not object to this evidence at trial. N.T. Trial,
9/14/16, at 48-126 (testimony of Special Agent William Shute). Further,
Appellant did not object to the admission of the Commonwealth’s exhibits
supporting S.A. Shute’s testimony. Id. at 129. Finally, Appellant concedes
that he never requested a Frye hearing. Supplemental Statement (2) at ¶
3(a). For these reasons, we deem Appellant’s second issue waived. Pa.R.A.P.
302(a).12
Also before this Court are two Applications filed by Appellant. In the
first, Appellant seeks to correct omissions in the record. Application for
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12 In his Brief, Appellant also asserts that S.A. Shute lacked sufficient scientific
or technical expertise to properly explain the methodology used to establish
Appellant’s approximate location using cell phone call detail records.
Appellant’s Br. at 31-32. Appellant did not object to his qualification as an
expert witness at trial. N.T. Trial, 9/14/16, at 36-47. Moreover, Appellant
failed to preserve this claim in any of his Pa.R.A.P. 1925(b) Statements.
Pa.R.A.P. 1925(b) Statement, 11/8/13; Supplemental Statement;
Supplemental Statement (2). This claim, too, is waived. Pa.R.A.P. 302(a);
Pa.R.A.P. 1925(b)(4)(vii).
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Correction of the Original Record, 9/7/18 (asserting that certain transcripts
were missing from the Certified Record). We have reviewed the transcripts
and conclude that no relief is due. Principally, it appears that the trial court’s
Order, entered August 22, 2013, purportedly granting Appellant’s Motion in
Limine has led to some confusion. As stated previously, Appellant did not file
such a motion. See supra n.4. Rather, the court’s Order responded to
substantive assertions by Appellant that certain testimony of Appellant’s wife
was inadmissible. Id. Transcripts of the Hearings held to resolve Appellant’s
assertions are included in the Certified Record. N.T. Hearing, 3/28/13; N.T.
Hearing, 5/2/13; N.T. Hearing, 8/22/13.
In the second, David Wesley Cornish, Esq. seeks to withdraw his
representation of Appellant. Application to Withdraw as Counsel, 3/11/19.
Counsel avers that he has completed all duties for this appeal and that
Appellant has hired new counsel. Id. In light of our disposition, Attorney
Cornish’s request is moot. Further, to date, no new counsel has entered an
appearance on behalf of Appellant. Accordingly, we deny Attorney Cornish
relief.
Application for Correction of the Original Record denied; Application to
Withdraw as Counsel denied; Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/19
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