Com. v. Brown, M. ( 2016 )

J-A01015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARTIN BROWN,
Appellant No. 57 EDA 2015
Appeal from the Judgment of Sentence August 1, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004214-2013
===============================================
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARTIN B. BROWN,
Appellant No. 686 EDA 2015
Appeal from the Judgment of Sentence August 1, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003080-2011
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 19, 2016
Appellant Martin Brown appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County by the
Honorable Glenn B. Bronson on August 1, 2014. After a careful review, we
affirm.
*Former Justice specially assigned to the Superior Court.
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The trial court aptly detailed the relevant facts and procedural history
herein as follows:
At trial, the Commonwealth presented the testimony of
Philadelphia Police Lieutenant Edward Thompson, Philadelphia
Police Detectives Neil Goldstein and Ralph Domenic, Philadelphia
Police Officers Sharon Johnston2 and Brian Stark, Chief Medical
Examiner Samuel Gulino, Melvin Ferguson, Aaron Raynor, Eionna
Raynor, and Benjamin Levin. [Appellant] testified on his own
behalf. Viewed in the light most favorable to the Commonwealth
as the verdict winner, the evidence established the following.
In January of 2011, defendant was friends with Aaron and
Clyde Raynor.3 N.T. 5/21/14 at 136. Aaron Raynor was Clyde
Raynor's cousin. N.T. 5/21/14 at 92-93, 95, 135; 5/22/14 at 11.
Melvin Ferguson was engaged to Clyde's sister, Eionna Raynor.4
N.T. 5/21/14 at 134 -135. Robert Spears was Clyde's neighbor.
N.T. 5/21/14 at 137. All of these individuals knew each other
and were friends. N.T. 5/21/14 at 134 -137; 5/22/14 at 124 -
128.
On the evening of January 16, 2011, defendant drove to
Clyde's home and picked up Clyde, Spears, and Ferguson, and
drove everyone to the Union Hall near 2nd Street and Callowhill
Street for an all-you-can-eat, all-you-can-drink cabaret. N.T.
5/21/14 at 138, 140, 206; 5/23/14 at 15.5 Aaron met up with
this group at the cabaret later that evening. N.T. 5/21/14 at
139; 5/22/14 at 15; 5/23/14 at 17. When the cabaret
concluded, in the early morning hours of January 17, 2011, the
five friends returned to defendant's vehicle to return home. N.T.
5/21/14 at 140; 5/22/14 at 15-16. [Appellant] was located in
the driver's seat, with Clyde in the front passenger seat,
Ferguson seated behind [Appellant], Aaron seated behind the
passenger seat, and Spears seated in the middle of the back
seat. N.T. 5/21/14 at 141; 5/22/14 at 17-18. [Appellant] had
taken an extra plate of food from the cabaret and placed the
plate on the front passenger seat. N.T. 5/22/14 at 17; 5/23/14
at 19. On entering the car, Clyde ate a portion of the food on the
plate, which instigated an argument between [Appellant] and
Clyde as defendant began to drive away. N.T. 5/21/14 at 142;
5/22/14 at 17-18; 5/23/14 at 21. [Appellant] had only driven a
block or two before pulling the vehicle over at the comer of 2 nd
Street and Callowhill Street. N.T. 5/21/14 at 143-144; 5/22/14
at 19. Clyde and [Appellant] both exited the vehicle and
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continued their fight on the street, which escalated into physical
violence. N.T. 5/21/14 at 144-145; 5/22/14 at 19-20. Ferguson,
Aaron, and Spears exited the vehicle and attempted to stop the
fight. N.T. 5/21/14 at 145; 5/22/14 at 20. Ferguson knocked
[Appellant] to the ground, who then got up and went to the
trunk of his car. N.T. 5/21/14 at 145-146. [Appellant] retrieved
a gun from his trunk, walked up to Clyde, and shot him once in
the chest. N.T. 5/21/14 at 149-150; 5/22/14 at 20-21, 25.
[Appellant] then returned to his car and fled the scene. N.T.
5/21/14 at 151; 5/22/14 at 21; 5/23/14 at 31. After getting
shot, Clyde told Ferguson "Bro, I'm gone." N.T. 5/21/14 at 151.
Aaron called the police. N.T. 5/21/14 at 152; 5/22/14 at 21.
Police officers responded to a call of shots fired at 2:45
p.m. on January 17, 2011: N.T. 5/21/14 at 89, 108. When
officers arrived, Clyde was unconscious, with blood foaming out
of his mouth. N.T. 5/21/14 at 92. Responding officers placed
Clyde into a police vehicle and transported him to Hahnemann
Hospital. N.T. 5/21/14 at 92, 216. Doctors at Hahnemann
Hospital were able to resuscitate Clyde, who remained there until
February 22, 2011, whereupon Clyde was transferred to various
care facilities, including multiple returns to Hahnemann Hospital.
N.T. 5/21/14 at 227-229. Clyde was shot in the left side of his
chest and the bullet injured Clyde's spinal cord, rendering him
paralyzed from his waist down. N.T. 5/21/14 at 232. This bullet
was never removed from Clyde's spine. N.T. 5/21/14 at 243.
Clyde ultimately died as a result of the gunshot wound to the
chest on May 29, 2012. N.T. 5/21/14 at 229-230.
Within minutes following the shooting, Eionna called
[Appellant] on his cell phone and asked him if he had shot Clyde.
N.T. 5/22/14 at 130-131. Defendant told Eionna to "shut up,”
and that Clyde was being disrespectful by touching his plate and
eating his food. N.T. 5/22/14 at 133-134, 143. [Appellant]
further told Eionna that if "[her] brother don't check out, then
we goin' handle it the street way." N.T. 5/22/14 at 134, 143.
[Appellant] also told Eionna to tell Aaron, Spears, and Ferguson
to not say anything "because they know what [I]'11 do to them."
N.T. 5/22/14 at 135.
One fired cartridge case was recovered from the scene of
the shooting, as well as a ski hat, a jacket, sunglasses, and a
Styrofoam plate. N.T. 5/21/14 at 98; 5/22/14 at 191-192.
[Appellant] was wearing the sunglasses on the night in question,
which were knocked off during the fight. N.T. 5/21/14 at 179 -
180. An arrest warrant was prepared for [Appellant] on January
24, 2011. N.T. 5/22/14 at 160. [Appellant] was ultimately
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arrested in Durham, North Carolina on February 18, 2011. N.T.
5/22/14 at 160; 5/23/14 at 44 -45.
___
2
At the time of the shooting, Officer Johnston's last name was
Lutz. N.T. 5/21/14 at 85.
3
[Appellant] was also identified as Buster, Bus, and Dollar Bill.
N.T. 5/21/14 at 138, 142, 155; 5/23/14 at 50. Clyde Raynor was
also known as Boo. N.T. 4/22/14 at 15.
4
As Aaron, Clyde, and Eionna Raynor share their last name,
they will be referred to by their first names to avoid confusion.
5
The Notes of Testimony from May 23, 2014 are incorrectly
dated May 30, 2014. While each page is incorrectly dated, the
correct date does appear on page 1 of the notes. This matter
was not before the Court on May 30, 2014.
Trial Court Opinion, 3/20/15 at 2-5.
Following a jury trial, Appellant was convicted of offenses stemming
from two consolidated cases. At Docket No. CP-51-CR-0004214-2013, the
jury found Appellant guilty of one count of third-degree murder.1 At Docket
No. CP-51-CR-0003080-2011, the jury convicted Appellant of one count
each of possession of a firearm by a prohibited person, carrying a firearm
without a license, carrying a firearm on a public street in Philadelphia, and
possessing an instrument of crime.2 On August 1, 2014, the trial court
sentenced Appellant to an aggregate term of thirty years to sixty years in
prison.
Appellant filed a timely post-sentence motion challenging his third-
degree murder conviction, and the trial court denied the same on December
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1
18 Pa.C.S.A. § 2502
2
18 Pa.C.S.A. §§ 6105, 6106, 6108, 907, respectively.
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1, 2014. While Appellant filed a timely appeal in that matter, he failed to do
so in his case involving the firearms convictions. Ultimately, Appellant filed
a petition pursuant to the Post Conviction Relief Act (“PCRA”) on February 9,
2015, seeking reinstatement of his appeal rights nunc pro tunc.3 The trial
court granted Appellant’s PCRA petition on February 27, 2015, and Appellant
filed an appeal that same day. Thereafter, the two appeals were
consolidated.
Pursuant to the trial court’s direction, on February 27, 2015, Appellant
filed his “Concise Statement of Errors Complained of on Appeal Pa.R.A.P.
1925(B)[.]” His statement spanned twenty-one pages and raised nine
issues for the trial court’s review.4 In his appellate brief, Appellant raises
the following questions for our consideration:
A. Did the trial court abuse its discretion when it denied
Appellant’s motion to quash indictment?
B. Did the trial court abuse its discretion when it denied
Appellant’s motion to suppress Appellant’s telephone records
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3
42 Pa.C.S.A. §§ 9541-9546.
4
We note that our Supreme Court has held that “when confronted with a
non-concise Rule 1925(b) statement, a trial court has the discretion to sua
sponte direct an appellant to file a second Rule 1925(b) statement.”
Tucker v. R.M. Tours, 977 A.2d 1170, 1174 (Pa. 2009). Herein, the trial
court did not do so and considered the merits of the nine issues Appellant
raised therein.
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that were obtained from Parsippany, New Jersey with a
Philadelphia Warrant?
C. Did the trial court abuse its discretion when it denied
Appellant’s writ of habeas corpus?
D. Did the trial court abuse its discretion when it barred the
statement of Amara Diarrassouba that was contained in an
official record pursuant to 42 Pa.C.S.A. § 6103 et. seq?
E. Did the trial court err by not instructing [the] jury on self
[-] defense?
Brief for Appellant at 4. We will consider each of these issues in turn.
Defendant initially contends the trial court should have granted his
motion to quash the March 22, 2013, indictment because the
Commonwealth presented no evidence of witness intimidation to permit the
empaneling of a grand jury; thus, his procedural due process rights under
the United States and Pennsylvania constitutions have been violated. Brief
for Appellant at 31-33. Appellant also argues the trial court’s reliance upon
Commonwealth v. Sanchez, 82 A.3d 943 (Pa. 2013) in its March 20,
2015, Opinion is misplaced because that case speaks to alleged procedural
defects at the preliminary hearing stage, not with such irregularities
pertaining to the empaneling of a grand jury.5 Appellant further reasons
that the amendments to Pa.R.Crim.P. 556 which became effective on
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5
Therein, our Supreme Court stressed that the primary purpose for
requiring prima facie evidence at the outset of a preliminary hearing is to
prevent the incarceration and trial of a defendant in the absence of such
evidence; thus, where a defendant has been tried and found guilty of the
charges brought against him beyond a reasonable doubt, any defect in the
proceedings to determine whether he was properly held for trial is rendered
immaterial. Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013).
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December 18, 2012, are inapplicable to any intimidating statements he may
have made to potential witnesses on January 17, 2011.
Rule 556 authorizes the use of an indicting grand jury in lieu of a
preliminary hearing in cases where “witness intimidation has occurred, is
occurring or is likely to occur.” Pa.R.Crim.P. 556. Pa.R.Crim.P. 556.1-
556.12 detail the procedure the Commonwealth must follow in summoning
panels of grand jurors and when proceeding by indicting grand jury in lieu of
a preliminary hearing. Importantly, a Commonwealth motion to present a
matter to an indicting grand jury instead of proceeding to a preliminary
hearing “shall be presented ex parte to the president judge, or the president
judge’s designee.” Pa.R.Crim.P. 556.2(A)(2). Where the court determines
the allegations set forth in the motion establish probable cause that witness
intimidation has occurred, is ongoing, or is likely to happen, it shall grant the
motion and notify the proper issuing authority. Pa.R.Crim.P. 556.2(A)(3).
No provision requires that a defendant be notified of the date upon which a
grand jury will be impaneled or gives him or her a right to be present for the
selection of the grand jury. Notwithstanding, Rule 556.4 sets forth the
procedure one is to follow when presenting a challenge to the grand jury and
to grand jurors and reads as follows:
Rule 556.4. Challenges to Grand Jury and Grand Jurors
Currentness
(A) Challenges. The attorney for the Commonwealth or a
defendant may challenge the grand jury on the ground that it
was not lawfully drawn, summoned, or selected, and may
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challenge an individual juror on the ground that the juror is not
legally qualified.
(1) The challenge shall be in the form of a written motion
and shall allege the ground upon which the challenge is made.
(2) If a challenge to an individual grand juror is sustained,
the juror shall be discharged and replaced with an alternate
juror.
(B) Motion to Dismiss
(1) The attorney for the Commonwealth or a defendant
may move to dismiss the information filed following the grand
jury's vote to indict the defendant based on the following
grounds:
(a) an objection to the grand jury or on an individual
juror's lack of legal qualification, unless the court has
previously ruled on the same objection under paragraph
(A);
(b) the evidence did not establish a prima facie case
that an offense has been committed and the defendant
committed the offense;
(c) lack of jurisdiction of the grand jury; or
(d) expiration of the statute of limitations.
(2) The judge shall not dismiss the information on the
ground that a grand juror was not legally qualified if the record
shows that at least 12 qualified jurors concurred in the
indictment.
(C) Any motion under paragraph (A) or paragraph (B) shall
be made as part of the omnibus pretrial motion.
Pa.R.Crim.P. 554.4. Clearly, the Commonwealth’s alleged failure to present
credible evidence to the trial court that a defendant had or was likely to
engage in witness intimidation is not a valid ground upon which to challenge
the indicting grand jury process.
On April 4, 2013, Appellant filed his “Motion to Quash Grand Jury
Indictment Commonwealth’s Improper Use of Indicting Grand Jury
Pa.R.Crim.P. 556” wherein he asserted repeatedly that he could not have
intimidated any witnesses because he had been incarcerated since his arrest
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in February of 2011. At no point therein did Appellant challenge the
composition or jurisdiction of the grand jury, claim that the evidence did not
establish a prima facie case he committed an offense, or argue that the
statute of limitations had expired. Appellant also filed a “Motion to Dismiss
Indictments” on May 20, 2013, wherein he indicated that on or about March
22, 2013, he was indicted by a Philadelphia county grand jury on first and
third degree murder charges and the trial court approved such indictments;
once again, he did not develop a challenge to the indicting grand jury as set
forth in Rule 556.4.
In faulting the trial court for its citation to Sanchez, supra, Appellant
simply ignores the fact that in matters proceeding before an indicting grand
jury, the grand jury functions as does a judge at the preliminary hearing
stage to determine whether the Commonwealth has presented evidence
sufficient to establish a prima facie case that the defendant committed an
offense and can be held for trial. “A grand jury proceeding is not an
adversary hearing in which the guilt or innocence of the accused is
adjudicated. Rather, it is an Ex parte investigation to determine whether a
crime has been committed and whether criminal proceedings should be
instituted against any person.” United States v. Calandra, 414 U.S. 338,
345 (1974). Simply put, any evidence of witness intimidation the trial court
did or did not have which caused it to proceed with an indicting grand jury
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was not dispositive of the jury’s ultimate finding of Appellant’s guilt on all
charges following trial.
Moreover, Appellant cites to no legal authority to support his bald
claims his constitutional rights to due process had been violated or to his
representation that any threats he may have made prior to the effective
date of Rule 556 are not relevant in a consideration of whether an indicting
grand jury proceedings had been proper. As such, these arguments are
waived for lack of development. See Pa.R.A.P. 2119(a); Commonwealth v.
Spots, 18 A.3d 244, 282 (Pa. 2011).
Appellant next argues the trial court abused its discretion in denying
his motion to suppress his cellular phone records and avers the search
warrant exceeded the scope of the Philadelphia County’s jurisdiction, for “as
a matter of statutory law it is illegal for a Pennsylvania court to issue a
search warrant that is to be executed for records physically stored in New
Jersey.” Brief for Appellant at 42. Appellant reasons that while the search
warrant indicated T-Mobile keeps its records in Parsippany, New Jersey, it
did not specify it was directed to T-Mobile conducting business within the
City of Philadelphia. Id. at 42-43. Appellant generally avers his rights
under the Fourth Amendment of the United States Constitution and Article 1
§ 8 of the Pennsylvania Constitution require that the places to be searched
pursuant to a search warrant must be described with particularity; he
contends the failure of officers to identify on the face of the warrant the
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specific premises for a T-Mobile custodian of records located in Philadelphia
violates those rights. Id. at 48.
We review the denial of a suppression motion according to the
following well-settled standard:
[An appellate court's] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court's factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only
the evidence of the Commonwealth 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 suppression court's
factual findings are supported by the record, [the appellate court
is] bound by [those] findings and may reverse only if the court's
legal conclusions are erroneous. Where ... the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court's legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts. Thus,
the conclusions of law of the courts below are subject to [ ]
plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa.Super. 2015)
reargument denied (Sept. 30, 2015).
Prior to the commencement of trial on May 19, 2014, Appellant orally
moved to suppress his telephone records claiming the detective who swore
out the warrant and the judge who signed it are officials of the
Commonwealth of Pennsylvania who had no jurisdiction in New Jersey where
the records were purportedly housed. N.T., 5/19/14 at 19. After hearing
argument, the trial court instructed Appellant to provide it and the
Commonwealth with caselaw on the issue, and the parties agreed to
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reconvene later that afternoon. Id. at 24-25. At that time the
Commonwealth stressed that T-Mobile has an office in Philadelphia and is a
company that regularly does business in Philadelphia. It further averred the
activity for which the records were being sought occurred in Philadelphia and
the warrant sought information concerning a Philadelphia resident and listed
a Philadelphia area phone number. N.T., 5/19/14 at 20-21, 32-35, 42.
Upon hearing further argument, the trial court provisionally denied
Appellant’s motion without prejudice to him to renew it if he could garner
authority to support his position that “it doesn’t matter that there is a local
presence here in Philadelphia that’s recorded on the search warrant.”
Appellant responded to this ruling with “Okay.” N.T., 5/19/14 at 44.
In his appellate brief, Appellant has misstated the trial court’s view of
the warrant and ignored its plain terms. He maintains “the trial court found
that the search warrant stated that the cell phone records were kept in
Parsippany, N.J.” and that it “also found that the search warrant did not say
that it was directed to T-Mobile at 18th and Chestnut Streets.” Brief for
Appellant at 20, 40 (citing N.T., 5/19/14 at 42); however, a review of the
transcripts reveals that the court stated the process had been directed to a
local branch of the national corporation. N.T., 5/19/14 at 40. Also, the face
of the warrant indicates it was not issued for a premises in New Jersey or
used as a tool to obtain out-of-state data, for it sought information
connected to a Philadelphia phone number as is evinced by its 215 area
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code. In addition, the warrant provided the following specific description of
premises and/or persons to be searched: “T-Mobile, LER Group, 4 Sylvan
Way, Parsippany, New Jersey 07054 that conducts business within the
City of Philadelphia at 18th & Chestnut Streets.” (emphasis added).
Appellate review of an order denying suppression:
is limited to determining whether the findings of fact are
supported by the record and whether the legal conclusions
drawn from those facts are in error. In making this
determination, this Court may only consider the evidence of the
Commonwealth's witnesses, and so much of the witnesses for
the defendant, as fairly read in the context of the record as a
whole, which remains uncontradicted. If the evidence supports
the findings of the trial court, we are bound by such findings and
may reverse only if the legal conclusions drawn therefrom are
erroneous.
Commonwealth v. Freeman, 2015 WL 7756864, at *5 (Pa. Super. Dec. 2,
2015) (citations omitted).
Nowhere before the trial court did Appellant challenge the probable
cause underlying the issuance of a warrant to obtain his cell phone records
or present evidence that the records, in fact, were stored outside of the
Commonwealth and specifically in Parsippany, New Jersey. Also, while in
his appellate brief Appellant avers that his cell phone records constituted
“informational privacy” under New Jersey law and that the warrant failed to
describe with particularity the place to be searched in Philadelphia, he never
raised such arguments before the trial court. His failure to advance these
particular legal theories initially before the trial court renders these
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additional claims 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.”)
In support of his third issue, Appellant contends his extradition from
North Carolina to Pennsylvania pursuant to the Uniform Criminal Extradition
Act, 42 Pa.C.S.A. §§ 9121-9148, was illegal because he did not knowingly
and intelligently sign the waiver of extradition from. Appellant asserts the
North Carolina Waiver of Extradition Findings and Order contained a material
misstatement of fact that he had committed a crime in Pennsylvania on
February 18, 2011, although the charging documents in Pennsylvania bore
an alleged offense date of January 17, 2011. Brief for Appellant at 49.
Appellant reasons that in reliance upon this misinformation, Appellant
involuntarily returned to this Commonwealth and as a result the trial court
never obtained personal jurisdiction over him. Id. at 53. Appellant
concludes that as the Commonwealth bore the burden of proving a valid
waiver of extradition and yet proffered no evidence to show Appellant
intelligently and knowingly waived his right to extradition, “the trial court
abused its discretion in refusing to grant a writ of habeas corpus for the
extradition itself was invalid.” Id. at 54 (citing Commonwealth v.
Livengood, 901 A.2d 556 (Pa.Super. 2006)).
Ordinarily, an appellate court will review a grant or denial of a petition
for writ of habeas corpus for abuse of discretion; however, in cases
concerning questions of law, our standard of review is de novo, and our
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scope of review is plenary. Commonwealth v. Judge, 916 A.2d 511, 521
n.13 (Pa. 2007). Appellant filed his Motion for Writ of Habeas Corpus on
October 9, 2013, wherein he claimed his sole reason for returning to
Pennsylvania was to defend himself against a crime he believed he could not
have committed because he was residing in North Carolina in February of
2011. A review of the record reveals that on February 21, 2011, Appellant
signed a State of North Carolina “Waiver of Extradition Findings and Order”
form whereon it is indicated he had been charged with “Attempted [sic] to
Commit Murder.” The date of the crime reads “2/18/ 2011,” and the State
and County is listed as “Pennsylvania Philadelphia.” Notwithstanding, as the
trial court stressed in its Opinion, there is no evidentiary support for
Appellant’s position that the authorities in North Carolina and/or
Pennsylvania intentionally misstated the date of Appellant’s alleged criminal
conduct in an effort to dupe Appellant into returning to the Commonwealth.
Trial Court Opinion, filed 3/20/15 at 8 (citing Commonwealth v. Pass, 360
A.2d 167, 170 (Pa. 1976) (absent outrageous police conduct like the use of
force or kidnapping to bring a defendant within the jurisdiction of a
Pennsylvania court, the manner in which he or she was brought into its
jurisdiction does not affect its authority to adjudicate his case)). To the
contrary, the waiver form indicates Appellant was apprised of his right to
contest the extradition process in North Carolina and instead chose to waive
his right to any challenge to the infirmity of that process, like the date of the
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alleged charges indicated thereon. The date of the crime was clearly visible
on the form, and Appellant had ample opportunity to call that notation into
question while he was in North Carolina, which would have been the proper
venue in which to do so. In this regard, the Waiver of Extradition Findings
and Order form bears the signature of District Court Judge James Hill which
follows the following assertion:
I am a Judge or Clerk of Superior Court of the General Court of
Justice of North Carolina, a court of record. The defendant
named above appeared before me this day. I informed the
defendant of the right to the issuance and service of a
Governor’s Warrant and to obtain a writ of habeas corpus as
provided for in N.C. G.S. 15A-730. The defendant then freely,
voluntarily and understandingly executed the above Waiver in
my presence.
In light of the foregoing, we find that despite his bald allegations to
the contrary, the plain language of the waiver form evinces the ramifications
of the waiver process were explained to Appellant. He does not dispute that
he had an opportunity to review the wavier form, was informed of his rights
pursuant thereto, and at no time questioned the date of the crime before
signing it on February 21, 2011. It follows that the waiver was valid. See
Commonwealth v. Green, 581 A.2d 544, 556 (Pa. 1990) (“so long as the
waiver is explained to defendant and his consent is not coerced, the waiver
is valid”); Commonwealth ex rel. Myers v. Case, 378 A.2d 917, 919
(Pa.Super. 1977) (en banc) (“[T]echnical or formal objections will not
invalidate an extradition proceeding.”). Therefore, the trial court correctly
denied Appellant’s motion for writ of habeas corpus.
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Next, Appellant contends the trial court abused its discretion when it
barred the admission into evidence at trial an unavailable taxi driver’s
statement to police on the night of the incident. Appellant maintains Amara
Diarrassouba’s statement was part of an official document and constituted
exculpatory evidence in that it bolstered his self-defense theory. Appellant
asserts that such statements are admissible at trial under the public records
exception to the hearsay rule and supports his view with our Supreme
Court’s decision of D’Alessandro v. Pa. State Police, 937 A.2d 404 (Pa.
2007). Appellant maintains Mr. Diarrassouba was a known source of
information and eyewitness to the incident and indicated he observed three
individuals beating another. Brief for Appellant at 57-58. Appellant stresses
that Mr. Diarrassouba’s interview with police was conducted within two hours
of his observations and memoralized in a report which contains no obvious
errors and should have been provided to the jury. Id. at 58.
“When we review a trial court’s ruling on admission of evidence, we
must acknowledge that decisions on admissibility are within the sound
discretion of the trial court and will not be overturned absent an abuse of
discretion or misapplication of law.” Deeds v. Univ. of Pa.Med.Ctr., 110
A.3d 1009, 1017 (Pa.Super. 2015).
Although Appellant relies entirely upon D’Alessandro, it is important
to note that therein, in an Opinion announcing the Judgment of the Court,
our Supreme Court reviewed the decision of an administrative agency
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following the denial of the appellant’s application for a license to carry a
firearm. The Court stated that “hearsay evidence may generally be received
and considered during an administrative proceeding.” D’Alessandro, 937
A.2d at 411. Herein, Appellant attempts to find support in that holding for
his assertion that the trial court erred in refusing to admit the police report
as a business record under Pa.R.E. 803(6) and 42 Pa.C.S.A § 6108 in a
criminal proceeding; however, both the evidentiary rule and the statute
provide that a business record may be excluded under circumstances where
the trial court has reason to question its trustworthiness. See Pa.R.E.
803(6)(E) (stating that a business record is a hearsay exception “unless the
sources or information or other circumstances indicate lack of
trustworthiness.”); 42 Pa.C.S.A. § 6108(b) (providing a business record is
competent evidence “if, in the opinion of the tribunal, the sources of
information, method and time of preparation were such as to justify its
admission.”).
Moreover, Appellant fails to acknowledge in his appellate brief that Mr.
Diarrassouba was an unavailable witness; therefore, the narrative contained
in his statement to police constituted double hearsay. Nor does Appellant
set forth a basis upon which the trial court should have admitted that
layered hearsay statement other than the fact that it was part of a official
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document of the Philadelphia police.6 “Merely characterizing a document as
a business record is insufficient to justify its admission because a business
record which contains multiple levels of hearsay ‘is admissible only if each
level falls within a recognized exception to the hearsay rule.’” Therefore,
Appellant’s fourth claim must fail. Birt v. Firstenergy Corp., 891 A.2d
1281, 1291 (Pa.Super. 2006) (citation omitted).
Lastly, Appellant avers the trial court erred in failing to provide the
jury with a self-defense instruction. In its Opinion, the trial court noted that
although defense counsel requested a self-defense instruction before it
charged the jury, it denied such request because Appellant consistently had
maintained throughout trial that he never intentionally shot the decedent. 7
Trial Court Opinion, filed March 20, 2015, at 11, n.8 (citing N.T., 5/20/14 at
18; N.T., 5/21/14 at 78; N.T., 5/22/14 at 236-237; 5/23/14 at 27, 75-78).
____________________________________________
6
While at trial Appellant unsuccessfully argued Mr. Diarrassouba’s statement
was admissible under the excited utterance exception to the hearsay rule,
See Pa.R.E. 803(2), he does not advance that argument before this Court.
In its Opinion, the trial court indicated it had ruled Mr. Diarrassouba’s
statement was not admissible as an excited utterance because the incident
occurred at approximately 2:45 a.m., but Mr. Diarrassouba did not provide a
written statement to police until two hours later. The trial court reasoned
the intervening two hours provided Mr. Diarrassouba with ample time to
reflect upon his memory of the events and no evidence was adduced at trial
to the contrary. Trial Court Opinion, filed March 20, 2015, at 10.
7
The Commonwealth likewise argues Appellant has waived any objection to
the adequacy of the trial court’s instruction for his failure to object after the
court provided it to the jury. In the alternative, the Commonwealth asserts
Appellant was not entitled to his requested self-defense instruction as he had
not developed a valid claim of self-defense during trial. Commonwealth’s
Brief at 21-22.
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The trial court further explained that not only did Appellant deny shooting
Clyde Raynor, he testified that he never touched the weapon that killed him;
thus, he was not entitled to a self-defense instruction. Id. at 11 (citing
Commonwealth v. Harris, 665 A.2d 1172, 1175 (Pa. 1995) (where a
defendant denies shooting the victim, there is no issue of self-defense)).
Notwithstanding, the trial court ultimately found Appellant had waived this
claim on appeal. The court explained that after it had instructed the jury, it
held a discussion with counsel at sidebar and asked if either had any
exceptions to the charge, at which time defense counsel indicated he had
none. Trial Court Opinion, filed March 20, 2015, at 11 (citing N.T., 5/27/14
at 48).
Pa.R.Crim.P. 647(B)-(C) states that “[n]o portions of the charge nor
omissions therefrom may be assigned as error, unless specific objections are
made thereto before the jury retired to deliberate” and “[a]fter the jury has
retired to consider its verdict, additional or correctional instructions may be
given by the trial judge.” “Generally, a defendant waives subsequent
challenges to the propriety of the jury charge on appeal if he responds in the
negative when the court asks whether additions or corrections to a jury
charge are necessary.” Commonwealth v. Charleston, 16 A.3d 505, 527-
28 (Pa.Super. 2011).
The record reveals that on May 23, 2014, defense counsel sought
guidance from the trial court and questioned whether Appellant’s testimony
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he had engaged in a struggle with Robert Spears warranted a self-defense
charge to the jury. N.T., 5/23/14 at 101. The trial court opined such an
instruction was not justified, for while Appellant represented that he had
feared for his life during the struggle, he also testified at trial that the
shooting was an accident and that he had not touched the firearm at all.
The trial court told counsel that “[y]ou’ve preserved that issue and I’m
denying your request based on what Appellant said, your opening, and all
the presentation.” N.T., 5/23/14 at 102. However, the trial court’s
statement on May 23, 2014, that Appellant had “preserved” the issue for its
consideration prior to the time it actually instructed the jury does not equate
to a timely objection following its ultimate failure to charge the jury on self-
defense which would have preserved this claim for appellate review. As
such, the trial court properly found this issue waived. Charleston, supra.After careful review of the entire certified record, we discern no abuse
of discretion in the trial court’s analysis.
Judgment of sentence affirmed.
Judge Lazarus joins the memorandum.
Judge Ott concurs in result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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