Com. v. Torres, K. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KENNY TORRES :
:
Appellant : No. 2539 EDA 2017
Appeal from the Judgment of Sentence July 21, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011025-2015
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED MARCH 12, 2019
Kenny Torres appeals from the judgment of sentence imposed July 21,
2017, in the Philadelphia County Court of Common Pleas. The trial court
sentenced Torres to an aggregate term of six and one-half to 15 years’
imprisonment, following his jury conviction of aggravated assault, conspiracy,
possession of a firearm without a license, and related charges1 for an August
21, 2015, attack on Nathaniel Martin Davis. Torres’ sole issue on appeal
challenges the constitutionality of Pennsylvania Rule of Criminal Procedure
556, which permits the Commonwealth to proceed by way of an indicting
grand jury when witness intimidation has occurred, is occurring, or is likely to
occur. For the reasons below, we affirm.
____________________________________________
1 See 18 Pa.C.S. §§ 2702, 903, and 6106, respectively.
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The facts underlying Torres’ conviction were summarized by the trial
court as follows:
On August 21, 2015, around 4:50 PM, Jamar Carroll noticed
a group of black teenage boys, including the victim, he had never
seen before. After the group of boys walked out of sight, he heard
an altercation around 11th Street. Carroll testified that he heard
the group of boys say, “‘There he go right there.’ ‘Get him for
everything they got.’” After he heard this exchange, he saw Josh
Terreforte, a friend of [Torres], walk into view with a bloody face
and black eye.
Later, that same afternoon, Destiny Flemings was walking
down Ontario Street towards the Chinese store on Rising Sun
Avenue. Flemings heard a blue pickup truck belonging to [Torres’]
father speeding and saw that it contained [Torres] and his father.
Flemings saw [Torres] and another person, possibly [Torres’]
cousin, jump out of the truck on the corner or 11th and Ontario.
[Torres] and the other person each held a bat and [Torres] also
held a small, black handgun in his right hand. [Torres] and the
other person repeatedly hit the victim with their bats until the
victim collapsed to the ground[;] afterwards, [Torres] shot the
victim in the side.
Police Officer Sean Clift testified that on August 21, 2015 he
was patrolling the 25th District, the North Philadelphia area, in a
marked police vehicle with his partner, Officer Stephen Bennis.
Around 4:50 PM, Officer Clift responded to a radio call reporting a
shooting on [the h]ighway in the area of 3400 Goodman. Officer
Clift and his partner arrived at the location within less than a
minute and saw a young black man lying on the sidewalk,
suffering from a gunshot wound.
Upon arrival to the location, Officer Clift and his partner
rushed out of their patrol vehicle and picked the man up. The
man had been shot in his right leg and suffered from a broken
femur. Officer Clift asked the man who had shot him and which
way the shooter had gone. The injured man refused to speak with
the police officers and then a Hispanic man walked over and said
it had been a dark colored pickup truck headed northbound on
11th Street. After arriving to Temple Hospital with the victim, the
police officers obtained the victim’s ID card retrieved from the
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victim’s pants pockets by the hospital staff. The victim was
identified as Nathaniel Martin Davis.
Davis underwent surgery on August 22, 2015 to repair his
fractured femur, in which they placed a rod into his leg to realign
the leg. On August 25, 2015, Davis underwent a follow-up
surgery to embolize an artery that had been severed and was
consistently bleeding. Davis was discharged on August 27, 2015.
Detective Miles testified that he obtained a search warrant
for [Torres’] residence at 1018 West Russell in Philadelphia. The
search warrant was executed on August 28, 2015 at 6:35 AM,
about a week after the shooting occurred. On August 28, 2015 at
around 6:30 AM, Detective Miles and a warrant unit arrived at
[Torres’] house. The warrant unit knocked on the front door while
Detective Miles went to the back of the residence. There was no
response from the front door, but the back door opened.
Detective Miles then observed [Torres] leaving through the back
door in only his boxers and attempting to climb a wall to the right
of the house. Detective Miles demanded [Torres] stop and
[Torres] complied.
At some point after the shooting, Detective Miles returned
to the scene where he believed the shooting occurred and
recovered three fired .380 caliber cartridge casings. After
ordering [Torres] back into the residence, Detective Miles
recovered a black shotgun with various shotgun shells from the
residence’s second floor bedroom. There were no .380 caliber
shells discovered at [Torres’] home and no ammunition that would
have been able to fit into a .380 firearm. No bullet was ever
recovered from Davis’ body.
Trial Court Opinion, 3/12/2018, at 2-4 (record citations omitted).
On October 20, 2015, a grand jury returned an indictment2 against
Torres for the following charges: aggravated assault, criminal conspiracy, two
violations of the Uniform Firearms Act, possession of an instrument of crime,
____________________________________________
2 See Pa.R.Crim.P. 556.
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simple assault, and recklessly endangering another person.3 Torres was
initially represented by the Defender Association of Philadelphia. On
November 25, 2015, counsel filed an omnibus pretrial motion, asserting, inter
alia, that Pennsylvania Rule of Criminal Procedure 556 is unconstitutional and,
therefore, Torres’ indictment was invalid. See Omnibus Motion Pursuant to
Rule 556 of the Pennsylvania Rules of Criminal Procedure, 11/25/2015, at
unnumbered 2-4. That motion was never ruled upon by the trial court. On
January 9, 2016, new counsel entered his appearance for Torres, followed by
a second change of counsel on October 31, 2016. The case proceeded to trial
and, on March 13, 2017, a jury found Torres guilty of all charges.
On July 21, 2017, Torres was sentenced to an aggregate term of six and
one-half to 15 years’ imprisonment, followed by four years’ probation.4 He
filed a timely post-sentence motion challenging the weight of the evidence and
discretionary aspects of his sentence, which the trial court denied on August
1, 2017. This timely appeal followed.5
____________________________________________
3 See 18 Pa.C.S. §§ 2702, 903, 6106, 6108, 907, 2701, and 2705,
respectively.
4 At the sentencing hearing, Torres entered a guilty plea to charges of simple
assault, terroristic threats, and possession of an instrument of crime on an
unrelated case. See N.T., 7/21/2017, at 17. The court imposed a sentence
of probation for those crimes, to run concurrent to the probationary period in
the present case. See id. at 47-48.
5Present counsel was appointed to assist Torres in litigating his direct appeal.
On August 17, 2017, the trial court ordered counsel to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After
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The sole question on appeal concerns the constitutionality of
Pennsylvania Rule of Criminal Procedure 556. Because this issue presents a
question of law, “our standard of review is de novo and our scope is plenary.”
Commonwealth v. Far, 46 A.3d 709, 712 (Pa. 2012).
By way of background, prior to 1973, the Pennsylvania Constitution
“prohibited the initiation of a criminal prosecution by information[,]” and
criminal cases were commenced via an indictment by a grand jury.
Commonwealth v. Brown, 372 A.2d 887, 888 (Pa. Super. 1977). On
November 6, 1973, Pennsylvania voters approved an amendment to the
Constitution which, inter alia, provided for the initiation of criminal
proceedings by information. See Pa. Const. Art. 1, § 10 (“Each of the several
courts of common pleas may, with the approval of the Supreme Court, provide
for the initiation of criminal proceedings therein by information filed in the
manner provided by law.”). The Pennsylvania Legislature later adopted
legislation to implement the initiation of criminal proceedings by information
prescribed in Article 1, Section 10. Section 8931 of Title 42 provides, in
relevant part:
(b) Criminal information. – Each of the courts of common pleas
may, with the approval of the Supreme Court, provide for the
initiation of criminal proceedings therein by information filed in the
manner provided or prescribed by law. …
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receiving an extension of time, counsel complied with the court’s directive,
and filed a concise statement on September 27, 2017. Although counsel
raised six issues in the concise statement, he has only pursued the claim
regarding the constitutionality of Rule 556 on appeal.
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(c) Jurisdiction and duties of courts. – The several courts of
common pleas which have obtained the approval of the Supreme
Court to provide for the initiation of criminal proceedings by
informations instead of by grand jury indictments, shall possess
and exercise the same power and jurisdiction as they heretofore
possessed in cases of prosecutions upon indictments.
****
(f) Investigating grand juries unaffected. – No grand jury
shall be impaneled in any judicial district where this section is
applicable for the purpose of considering bills of indictment. This
section shall not prohibit the impaneling of grand juries … for any
other purpose as provided or prescribed by law.
****
(h) Applicability of section. – Subsections (c) through (g) shall
be applicable only in those judicial districts which have obtained
the approval of the Supreme Court to substitute informations for
grand jury indictments as the method of initiating criminal
prosecutions. …
42 Pa.C.S. § 8931 (b), (c), (f) and (h).
Subsequently, in 2012, the Pennsylvania Supreme Court adopted
Pa.R.Crim.P. 556, which revived the initiation of criminal proceedings by grand
jury indictment under certain, limited circumstances. This Rule permits a trial
court to “proceed with an indicting grand jury … only in cases in which witness
intimidation has occurred, is occurring, or is likely to occur.” Pa.R.Crim.P.
556(A).6
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6 Subsection (B) of Rule 556 directs any court of common pleas that seeks to
resume the use of indicting grand juries to petition the Pennsylvania Supreme
Court. See Pa.R.Crim.P. 556(B). The petition must include a certification
from the district attorney averring, inter alia, that “witness intimidation has
occurred, is occurring, or is likely to occur[.]” Pa.R.Crim.P. 556(B)(5)(b).
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Torres contends Rule 556 is unconstitutional because the Pennsylvania
Legislature abolished the indicting grand jury, “in accordance with a
constitutional amendment expressing a similar purpose.” Torres’ Brief at 10.
He insists the Pennsylvania Supreme Court violated Article V, § 10(c) of the
Pennsylvania Constitution when it enacted the Rule. Article V, Section 10(c)
empowers the Supreme Court to prescribe rules governing practice and
procedure so long as they do not “abridge, enlarge nor modify the substantive
rights of any litigant, nor affect the right of the General Assembly to determine
the jurisdiction of any court[.]” Pa. Const. Art. 5, § 10(c). Torres maintains
Rule 556 “infringes upon the substantive rights of an accused to be free from
prosecution commenced via an indicting grand jury” and “enlarge[s] the
jurisdiction of the Courts of Common Pleas[.]” Torres’ Brief at 8, 11.
Before we address the substance of Torres’ constitutional challenge, we
must first consider whether his claim is waived. It is axiomatic that issues not
raised in the trial court are waived on appeal. Pa.R.A.P. 302(a). Particularly,
with respect to purported defects in an indictment, information, or preliminary
hearing, this Court has held that such issues “are to be remedied by a motion
to quash the indictment or information[;]” otherwise, they are waived.
Commonwealth v. Hodge, 411 A.2d 503, 509 (Pa. Super. 1979) (holding
defendant’s claim that district attorney improperly proceeded without
conducting a preliminary hearing waived when defendant raised the issue for
the first time in post-verdict motion). See also Pa.R.Crim.P. 556.4(C)
(providing procedure by which a defendant may challenge the finding of a
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grand jury, noting the motion “shall be made as part of the omnibus pretrial
motion.”). Indeed, after a defendant is tried and convicted by a jury, any
deficiency in a preliminary hearing proceeding – or in this case, a grand jury’s
indictment – is considered harmless. See Commonwealth v. Cassidy, 620
A.2d 9, 11 (Pa. Super. 1993), appeal denied, 637 A.2d 279 (Pa. 1993).
In the present case, although prior counsel filed an omnibus pretrial
motion seeking to dismiss the indictment, the court never ruled on the motion,
and subsequent counsel did not renew the request for the court do so.
Accordingly, the issue was implicitly abandoned by Torres. Nevertheless, even
if we were to conclude this claim was not waived, we would still find Torres is
entitled to no relief.
Preliminarily, we must presume the Pennsylvania Supreme Court acts
constitutionally when it promulgates a rule of procedure. See
Commonwealth v. Ricker, 120 A.3d 349, 362 (Pa. Super. 2015), appeal
dismissed as improvidently granted, 170 A.3d 494 (Pa. 2017). Here, however,
Torres insists the Supreme Court acted outside its authority under the
Constitution by modifying the substantive rights of criminal defendants to
receive a preliminary hearing “free from an indictment by an indicting grand
jury” and “enlarg[ing] the jurisdiction of the Courts of Common Pleas.” Torres’
Brief at 10, 11. Conversely, the trial court found: (1) “[t]here is no
substantive right of an accused to be free from prosecution commenced via
an indicting grand jury[;]” and (2) Rule 556 does not “impact[] the right of
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the General Assembly to determine the jurisdiction of any court[.]” Trial Court
Opinion, 3/12/2018, at 16-17. We agree.
It is important to note that neither the United States nor Pennsylvania
Constitution provide a criminal defendant with a constitutional right to a
preliminary hearing. Commonwealth v. Mayberry, 327 A.2d 86, 92 (Pa.
1974) (“Certainly the Constitution does not require any particular mode of
informing an accused of the charges against him.”). Moreover, the
constitutional amendment upon which Torres bases his claim provides only
that the courts of common pleas “may, with the approval of the Supreme
Court, provide for the initiation of criminal proceedings there by
information[.]” Pa. Const. Art. 1, § 10. Article 1, Section 10 does not preclude
the courts of common pleas from proceeding by indictment. Therefore, we
agree with the conclusion of the trial court that Rule 556 does not infringe on
any substantive right of the accused.
Nor do we find the Supreme Court’s enactment of Rule 556 “affect[s]
the right of the General Assembly to determine the jurisdiction of any court[.]”
Pa. Const. Art. 1, § 10. As the Commonwealth explains in its brief, “the
jurisdiction of the Common Pleas Court remained unchanged regardless of
whether or not a criminal case is initiated by grand jury indictment.”
Commonwealth’s Brief at 12, citing 42 Pa.C.S. § 931(a). Furthermore, while
Torres emphasizes the language in 42 Pa.C.S. § 8931 that appears to preclude
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the initiation of criminal proceedings by way of a grand jury indictment,7 that
subsection presumes the court of common pleas obtained approval from the
Supreme Court to initiate proceedings by way of information. Rule 556 simply
provides a limited, alternative method to initiate criminal proceedings when
witness intimidation is a concern. Accordingly, we conclude Rule 556 is not
unconstitutional.
Judgment of sentence affirmed.
Judge Lazarus joins this memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/12/19
____________________________________________
7 See 42 Pa.C.S. § 8931(f).
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