Com. v. Cook, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAMAAL LANIER COOK :
:
Appellant : No. 751 WDA 2019
Appeal from the Judgment of Sentence Entered April 18, 2019
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000459-2018
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 3, 2020
Jamaal Lanier Cook (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of persons not to possess firearms,
firearms not to be carried without a license, possession of a firearm with
altered manufacturer’s number, and possession of a controlled substance. 1
We affirm.
The trial court summarized the underlying facts as follows:
In January [] 2018, Detective Thomas Patton of the City of
Connellsville Police Department was working on an ongoing drug
trafficking investigation into a residence located at 109 Gibson
Terrace, Connellsville, Fayette County, Pennsylvania. Multiple
controlled buys had been made from the residence. During these
controlled buys, crack cocaine and heroin were purchased.
Through the investigation, the police learned that a white
Chevrolet sedan was going to travel to Pittsburgh from 109 Gibson
Terrace on January 29th, 2018. Detective Patton went to 109
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1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6110.2; 35 P.S. § 780-113(a)(16).
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Gibson Terrace on that date in an unmarked Connellsville Police
unit and observed the vehicle backed into a parking spot in front
of Unit 109. Detective Patton observed two males enter the
vehicle. The driver was … James Rosenberry, known to Detective
Patton through his ongoing investigation[,] and the passenger was
a tall man later identified as [] Andre Randolph. The vehicle then
left Gibson Terrace. Detective Patton followed the vehicle for
some time through the City of Connellsville and observed that the
vehicle had an out-of-state license plate.
Detective Patton set up an operational plan to proceed with
the investigation later that night. [Detective] Patton and Corporal
Hominsky, working with the Fayette County Bureau of
Investigations, set up at the New Stanton Interchange of the
[Pennsylvania] Turnpike[,] where they were able to observe the
Chevrolet pass through the toll booth on its return to Connellsville.
A traffic stop was conducted in Connellsville Township … by
Corporal Kendi. Detective Patton [arrived at the scene of the
stop,] exited his vehicle and approached the Chevrolet. James
Rosenberry was the driver. Mr. Randolph was still seated in the
front passenger seat. Appellant was seated in the back seat.[2]
A strong odor of marijuana was detected from the vehicle.
Mr. Randolph admitted to having smoked marijuana. Due to the
odor of marijuana and the circumstances involving 109 Gibson
Terrace, [] Appellant and the other occupants of the vehicle were
detained and taken to the Connellsville Police Station.
Mr. Rosenberry gave the officers consent to search the
vehicle. Corporal Hominsky and Fayette County Bureau of
Investigation Detective Stephenson conducted the search. A large
coat was found [lying on] the backseat where Appellant had been
seated. Inside the coat, a loaded pistol was found. Additionally,
sixteen [] stamp bags of heroin were located inside one of the
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2 Appellant was seated behind the driver’s side seat, and was the only
passenger in the rear. Corporal Hominsky observed the position in which
Appellant was seated prior to removing him from the sedan.
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pockets of the coat.[3]
Trial Court Opinion, 7/23/19, at 2-4 (footnotes added; citations to record
omitted).
Following Appellant’s arrest, the Commonwealth charged him with the
above firearm and drug crimes. Prior to trial, the defense sought discovery,
demanding that the Commonwealth disclose, inter alia, any exculpatory
evidence. In June 2018, Appellant filed an omnibus pretrial motion (OPT
motion), requesting that the trial court suppress all evidence seized from the
vehicle following the allegedly illegal traffic stop.
On October 30, 2018, the trial court conducted a hearing on Appellant’s
OPT motion (OPT hearing), at which Detective Patton and Corporal Hominsky
testified. Relevant to this appeal, Corporal Hominsky testified about the
location of the coat/jacket discovered in the vehicle:
A. [Corporal Hominsky]: … I actually pulled [Appellant] from the
… vehicle and he was in the back driver side of the … vehicle, back
passenger seat.
Q. [The prosecutor]: Was he the only rear passenger?
A. [Corporal Hominsky]: Yes.
Q. [The prosecutor]: And is that vicinity the same that you located
this jacket?
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3 The police did not discover any contraband on Appellant’s person; rather, it
was all in the coat (sometimes referenced by the trial court and the parties as
“the jacket”), and there was nothing else inside the coat, such as a wallet, to
indicate ownership of the coat.
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A. [Corporal Hominsky]: Yes, I believe the jacket was like, if
you’re in the back passenger seat on the driver side, it was directly
beside that seat, like where the center area would be.
***
A. [Corporal Hominsky]: … [The jacket] was just open in the
backseat, it wasn’t … folded or anything like that, it was just
sitting, laying in the backseat open.
Q. [The prosecutor]: Right next to where [Appellant] had been
sitting?
A. [Corporal Hominsky]: Directly. If he wasn’t sitting on part of
it.
N.T., 10/30/18, at 26-27.
The trial court then questioned Corporal Hominsky:
BY THE COURT: And the jacket was where, to [Appellant’s] right?
A. [Corporal Hominsky]: Yeah, it would be directly, if you were
sitting in the seat, the window would be to his left and the jacket
would be on his right.
[THE COURT]: And where was all this other stuff that you said
there was so much of in the car that it was a wonder that someone
could fit back there?[4]
A. [Corporal Hominsky]: On the opposite side of [Appellant], I
just don’t believe that somebody could sit on [the rear
passenger’s] side….
***
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4 The court was referring to Corporal Hominsky’s earlier testimony that “[t]he
backseat was completely full [of items, including garbage, clothing and
electronics]. … I don’t think even a person could sit on the [] rear passenger
side.” N.T., 10/30/18, at 28.
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A. [Corporal Hominsky]: … [S]o the only area for an occupant to
sit would be behind the driver, just because of the amount of items
back there.
Id. at 30 (footnote added).
At the conclusion of the OPT hearing, the trial court denied the OPT
motion, and the matter proceeded to a two-day jury trial.5 On direct
examination, the prosecutor questioned Corporal Hominsky about the location
of the jacket:
Q. [The prosecutor]: While you’re standing, will you orient the
jacket the same way for the jury’s perspective that you observed
it while [Appellant] was in the car please?
A. [Corporal Hominsky]: [(demonstrating)]
***
[THE COURT]: … For the record, you were showing, it looked like
as though if you were seated you’d be seated right in front of the
jacket?
A. [Corporal Hominsky]: Yes. If [Appellant] was sitting in the
rear seat behind the driver[,] sitting oriented exactly how I am,
this is how the jacket would be at the seat portion.
[THE COURT]: And for the record, you have the jacket just sort
of behind you on a seat?
A. [Corporal Hominsky]: Yes. In between [Appellant] and the
back-seat part.
[THE COURT]: Very well.
A. [Corporal Hominsky]: It would be against your back.
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5The defense was provided with a copy of the transcript from the OPT hearing
prior to trial.
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N.T., 4/1-2/19, at 46-47; see also id. at 44 (Corporal Hominsky testifying
that “if you took [the jacket] off it would just be around a person[.]”).
On cross-examination, defense counsel questioned Corporal Hominsky
as follows:
Q. [Defense counsel]: And, there would be, I believe, would you
agree that there was pretty much nowhere to sit in the backseat
other than where [Appellant] was sitting?
A. [Corporal Hominsky]: Yes.
***
Q. [Defense counsel]: Where was the jacket whenever you
approached the vehicle?
A. [Corporal Hominsky]: Right behind [Appellant] in the same
seat as I oriented it[, i.e., in Corporal Hominsky’s courtroom
demonstration].
Id. at 54, 57. Defense counsel then questioned Corporal Hominsky in
reference to his prior testimony at the OPT hearing, and used the transcript
from that proceeding to refresh his memory, and impeach him on certain
matters.6 See id. at 54-55 (pointing out that Corporal Hominsky replied in
the affirmative to the following question at the OPT hearing, “other than being
… close to [Appellant], where he was seated, there’s nothing to connect
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6 Importantly, defense counsel did not question Corporal Hominsky about any
purported inconsistencies concerning the location of the jacket in his
respective testimony at trial and the OPT hearing.
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[Appellant] to the jacket?”). After redirect,7 the trial court excused Corporal
Hominsky, and the proceedings ended later that day when the Commonwealth
completed its case-in-chief. See id. at 59, 84.
At the beginning of the second day of trial, Appellant’s counsel moved
for a mistrial outside of the presence of the jury. Counsel objected to the
“changing nature” of the testimony of Corporal Hominsky concerning the
location of the jacket. See id. at 85-87; see also id. at 85 (objecting that
“the testimony of Corporal Hominsky at the OPT [hearing was] that the jacket
was in the seat next to [Appellant,] and then yesterday[,] while [Corporal
Hominsky] was testifying and doing a demonstration[,] he basically had the
[jacket] wrapped around him in the seat[,] so [the defense was] unprepared
to defend against that” change in testimony). Alternatively, defense counsel
requested that the trial court permit the defense to recall Corporal Hominsky
(the recall witness motion) so that he could be impeached with his prior
testimony at the OPT hearing. See id. at 85.
After hearing argument, the trial court denied Appellant’s motion for a
mistrial, stating that defense counsel had an opportunity to impeach Corporal
Hominsky on cross-examination. Id. at 88. The court also denied the recall
witness motion, stating that defense counsel “had the opportunity to ask
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7 The prosecutor elicited testimony from Corporal Hominsky that neither of
the other two occupants had access to the backseat area. See N.T., 4/1-
2/19, at 58.
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[Corporal Hominsky] any questions regarding the OPT [hearing] transcript
yesterday.” Id. At the close of trial, the jury convicted Appellant of all
charges.
On April 18, 2019, the trial court imposed an aggregate sentence of 3
to 6 years in prison. Appellant timely filed a notice of appeal. The trial court
ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, and he complied. The court then issued a Rule
1925(a) opinion.
Appellant presents three issues for our review:
1. WAS [APPELLANT] PREJUDICED AFTER THE COMMONWALTH
INTRODUCED EVIDENCE AGAINST HIM AT TRIAL THAT WAS
NOT DISCLOSED TO [APPELLANT] THROUGH DISCOVERY[?]
2. DID THE TRIAL COURT ERR IN DENYING [APPELLANT’S]
MOTION FOR MISTRIAL WHEN THE COMMONWEALTH
PRESENTED MATERIAL EVIDENCE NOT PROVIDED TO
[APPELLANT] THROUGH DISCOVERY, SPECIFICALLY, THE
LOCATION AND ORIENTATION OF A JACKET[?]
3. DID THE TRIAL COURT ERR IN DENYING [APPELLANT] THE
RIGHT TO RECALL A COMMONWEALTH WITNESS[?]
Appellant’s Brief at 8.
In his first issue, Appellant argues that he was deprived of his right to
due process and a fair trial because the Commonwealth improperly introduced
prejudicial evidence at trial that it failed to disclose during discovery. See id.
at 11-15. Specifically, Appellant points to the alleged discrepancies in the
testimony of Corporal Hominsky regarding the location of the jacket in the
backseat of the vehicle. See id. at 12
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We must first address whether Appellant has preserved this issue for
appellate review. It is well established that “an appellant’s concise statement
must properly specify the error to be addressed on appeal.” Commonwealth
v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (citation omitted). “When
the appellant provides a concise statement which is too vague to allow the
trial court an opportunity to identify the issues raised on appeal, he/she has
provided the functional equivalent of no [c]oncise [s]tatement at all.”
Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008)
(citations omitted); see also Pa.R.A.P. 1925(b)(4)(ii) (providing that “[t]he
Statement shall concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for the
judge.” (emphasis added)). “The court’s review and legal analysis can be
fatally impaired when the court has to guess at the issues raised. Thus, if a
concise statement is too vague, the court may find waiver.” Hansley, 24
A.3d at 415 (citation omitted).
Here, Appellant’s concise statement failed to specify the evidence that
the Commonwealth allegedly failed to disclose in discovery. Based on this
deficiency, the trial court determined that Appellant’s concise statement was
too vague to allow proper review of Appellant’s claim, and thus, he waived
this claim. See Trial Court Opinion, 7/23/19, at 4; see also id. (asserting
“this [c]ourt is reluctant to search the record and speculate as to the specific
nature of the issue that Appellant is attempting to raise.”). Upon review, we
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agree with the trial court’s determination, and conclude that Appellant has
waived his first issue. See Hansley, supra.8
In his second issue, Appellant asserts that the trial court erred by
denying the defense’s motion for a mistrial, where:
(1) the Commonwealth committed an “obvious” discovery
violation, i.e., in failing to disclose the discrepancies in the
testimony of Corporal Hominsky as to the location of the
jacket; and
(2) The change in Corporal Hominsky’s testimony caused the
defense significant prejudice and unfair surprise.
Appellant’s Brief at 16-20.
[T]he decision to declare a mistrial is within the sound
discretion of the trial court and will not be reversed absent a
flagrant abuse of discretion. A mistrial is an extreme remedy that
must be granted only when an incident is of such a nature that its
unavoidable effect is to deprive defendant of a fair trial.
Under Pennsylvania Rule of Criminal Procedure 605, relating
to mistrial, “[w]hen an event prejudicial to the defendant occurs
during trial only the defendant may move for a mistrial; the
motion shall be made when the event is disclosed. Otherwise,
the trial judge may declare a mistrial only for reasons of manifest
necessity.” Pa.R.Crim.P. 605(B) (emphasis added); see also
[Commonwealth v.] Szakal, 50 A.3d [210,] 219 [(Pa. Super.
2012)] (noting that the appellant’s claim was waived because the
appellant waited a substantial period before moving for
mistrial)[.]
Commonwealth v. Radecki, 180 A.3d 441, 457 (Pa. Super. 2018) (some
citations omitted).
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8Nevertheless, we note that Appellant relates this claim in connection with his
second issue, which we address on merits.
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Before we reach the merits of this issue, we address whether Appellant
properly preserved it pursuant to Pa.R.Crim.P. 605(B). In its opinion, the trial
court determined that Appellant waived his right to request a mistrial on this
basis, and we agree. See Trial Court Opinion, 7/23/19, at 6; see also
Szakal, 50 A.3d at 219. Furthermore, the timing of Appellant’s mistrial
motion is essentially immaterial, as he is not entitled to relief on the merits.
Contrary to Appellant’s assertion, there was no “manifest necessity’ for
a mistrial; he received a fair jury trial. Although there were admittedly some
discrepancies in Corporal Hominsky’s testimony at trial and the OPC hearing
concerning the precise location of the jacket,9 such discrepancies were minor.
During both proceedings, he testified consistently that (1) Appellant was the
only backseat passenger, and seated on the driver side; (2) the amount of
clutter in the rear impacted the seating capacity, including that of Appellant;
and (3) the jacket was located in the backseat, in direct proximity to Appellant.
See N.T. (OPT hearing), 10/30/18, at 26-27, 28, 30; N.T. (trial), 4/1-2/19, at
44, 46-47, 54, 57, 58. Indeed, contrary to Appellant’s claim, Corporal
Hominsky presented testimony at both proceedings that the jacket would have
been “on” or “around” Appellant in the backseat. See N.T., 10/30/18, at 27
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9 For example, at the OPC hearing, Corporal Hominsky testified that the jacket
was “directly” to Appellant’s “right” on the backseat, whereas he testified at
trial that the jacket was “right behind” Appellant. See N.T., 10/30/18, at 30;
N.T., 4/1-2/19, at 57.
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(testifying that Appellant may have been “sitting on part of” the jacket); N.T.,
4/1-2/19, at 44 (testifying that “if you took [the jacket] off it would just be
around a person[.]”). These accounts are nearly identical. Further, it was the
responsibility of defense counsel to thoroughly cross-examine Corporal
Hominsky on any relevant matter, including any purported inconsistencies in
his testimony. Additionally — and contrary to Appellant’s assertion — minor
discrepancies in the testimony did not constitute unfair surprise. Finally, there
is no merit to Appellant’s claim that there is a manifest necessity for a mistrial
in light of the Commonwealth’s purported discovery violation, because (1)
Appellant was aware, prior to trial, that the Commonwealth consistently
maintained that the jacket was in direct proximity to Appellant in the
backseat; and (2) the Commonwealth could not reasonably anticipate the
minor changes in Corporal Hominsky’s testimony at trial. Thus, the trial court
did not err in denying Appellant’s motion for a mistrial.
In his final issue, Appellant contends that even if a mistrial was not
warranted, the trial court committed reversible error by denying his recall
witness motion concerning Corporal Hominsky. See Appellant’s Brief at 21.
We disagree.
Our standard of review of this claim is well established: “The decision
of whether a party may be recalled is, under Pennsylvania law, left to the trial
court’s discretion. The decision is not reversed unless it constitutes a ‘very
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gross abuse of discretion.’” Commonwealth v. Tighe, 184 A.3d 560, 572
(Pa. Super. 2018) (citation omitted).
Here, in denying the recall witness motion, the trial court emphasized
that defense counsel had a copy of the transcript from the OPT hearing and
cross-examined Corporal Hominsky in reference to his prior testimony, and
had the ability to impeach Corporal Hominsky on any inconsistent statements
that he may have made concerning the location of the jacket. See N.T., 4/1-
2/19, at 86.
Additionally, the trial court explained:
[H]ad [defense] counsel made the [recall witness motion] at or
around the same time [that Corporal] Hominsky was excused[,
i.e., during the middle of the first day of trial], our ruling may have
been different. However, the [c]ourt saw no reason to delay the
trial any further when counsel was given a full, fair and unlimited
opportunity to cross-examine the witness the day before.
Trial Court Opinion, 7/23/19, at 7. We are persuaded by the trial court’s
rationale, and under these circumstances, we cannot conclude that the court’s
denial of the recall witness motion rises to the level of a “very gross” abuse of
discretion. See Tighe, supra. Thus, Appellant’s final issue lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2020
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