Com. v. Mann, K. ( 2020 )

J-S35025-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
KEVIN MANN
Appellant No. 805 EDA 2020
Appeal from the Judgment of Sentence Entered January 3, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0003221-2011
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 07, 2020
Appellant Kevin Mann appeals from the January 3, 2013 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County (“trial
court”), following the nunc pro tunc reinstatement of his direct appeal rights.
Upon review, we affirm.
The facts and procedural history of this case are undisputed. As
summarized by the trial court:
Appellant was charged, inter alia, with attempted robbery of a
motor vehicle, graded as a felony of the first degree and
attempted theft of a motor vehicle, graded as a felony of the third
degree. These charges arose out of an incident that occurred on
February 26, 2011, during which Appellant accosted Mr. and Mrs.
Charles Campbell while taking their automobile. Appellant
appeared before [the trial court] on August 20, 2012 for a waiver
trial[.]. [The trial court rendered the following findings:]
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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On February 26, 2011, at about 6:00 p.m., Mr. Charles Campbell
was driving up an alley behind his home in Philadelphia returning
to his residence located near 5th and Nedro Streets in Philadelphia
with his wife following a shopping trip when he saw a male, later
identified as Appellant proceeding onto 5th Street from Nedro
Street. Mr. Campbell hit the remote to open his garage door at
which time Appellant said something “crazy” to Mr. Campbell that
he could not decipher. Mr. Campbell ignored Appellant and began
to carry what he had purchased into his residence.
Once inside, Mr. Campbell became concerned about
Appellant so he went back outside. He observed that Appellant
appeared to be under the influence of some substance. [Mr.
Campbell indicated that Appellant’s eyes were bulging and he was
bleeding from a cut over his left eye.] Appellant then began
ranting. Mr. Campbell explained as follows what happened next:
He’s like, “Man, they did, man, they did.” And he was
just talking out the side of his -- out the side of his
head. So I'm, like, “Yo, man.” I begged and pleaded
with him, “Why don't you go lay down? Go upstairs.
Go in your house somewhere and fall back.” I said,
“You ain’t doing too good right now.” “No man, no
man. Here, I want you to look at this,” and he had
some type of -- like a Visa card, and another type of
business card he had. I said, “What’s this?” “I need
to use your phone.” I said, “My phone?” I said, “I
ain’t got a phone, man.” “I need to use your phone.
I got to call someone. I got to call someone and they
got to come help us, man. They did, they just shot
him and killed him.” I said, “Who are you talking
about, man?” I said, “Look, man, why don’t you go
upstairs. Go to your house and go fall back, man.” I
said, “You’re high, man.” I said, “Go fall back.” “No,
no, no.”
N.T. 8/20/12, 14-15.
After this exchange, Appellant pushed Mr. Campbell and
walked to the passenger side of the car where he entered the
vehicle and began to climb over Mr. Campbell’s wife, who was still
inside it, while saying that he needed the keys to the car. Mr.
Campbell grabbed Appellant, who elbowed Mr. Campbell’s wife a
couple of times, to pull him out of the car while simultaneously
telling him to Appellant to stop what he was doing. Appellant then
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got into the driver’s seat and tried to drive away but could not
because Mr. Campbell had the keys to the vehicle. [According to
Mr. Campbell, Appellant began manipulating the window wiper
lever because he believed that it was the gear shift which was
located in the center console of the car.] Mr. Campbell then
retrieved a shovel from the side of his garage and struck Appellant
three times with it. Appellant exited the car after being struck
and walked to a nearby residence where he apparently was
staying. [Mr. Campbell had never seen Appellant before and did
not know he was staying nearby.]
Appellant returned a very short time later and again climbed
inside Mr. Campbell’s car. Mr. Campbell told Appellant to go home
and also directed his wife to call 911. Appellant, however, ignored
him for a period of time and again tried to drive the car away while
saying that he needed the car.
Appellant eventually did exit the vehicle after which he
walked into Mr. Campbell’s garage toward Mr. Campbell’s wife who
was inside it. When Appellant did so, Mr. Campbell began
struggling with Appellant and then struck Appellant with a pick
axe. Upon being struck, Appellant stumbled around the car and
collapsed in front of it. The police arrived shortly thereafter and
placed Appellant in custody.
Renee Campbell, Mr. Campbell’s wife, testified that as her
husband was unloading what they had purchased she remained
inside the car. While inside it, Appellant walked over to her side
of the car and began climbing over her and struck her a couple of
times with his elbow as he tried to get inside the vehicle. Her
husband pulled Appellant out of the car but he then ran around to
its driver’s side and got into the driver’s seat.
Once in the driver’s seat Appellant began asking where the
keys to the car were as he tried to drive away. Mrs. Campbell’s
husband managed to get Appellant out of the car and Appellant
walked to where he was staying. He, however, walked back to
where Mrs. Campbell and her husband were and charged at Mrs.
Campbell, who thought that he wanted to harm her. Appellant
then got back into the car and again began searching for its keys
before he got out of it and entered the garage. Ms. Campbell then
went inside and called 911. After phoning the police she went
back outside and saw that Appellant was sitting in front of the car
and the police had arrived. She testified that she did not give
Appellant permission to operate her vehicle.
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Philadelphia Police Officer Robert Blake went to the scene of
the incident pursuant to a radio call and upon arrival he observed
Mr. Campbell pacing in the driveway of his residence. The officer
placed Mr. Campbell in the officer’s patrol car because Mr.
Campbell was very distraught and was acting erratically. The
officer then spoke to Mrs. Campbell who advised him about what
had occurred and explained that a male had tried to pull her out
of a car in order to steal it. Officer Blake then spoke to Mr.
Campbell, who had calmed down. Based on what he and his wife
had related, the officer placed Appellant under arrest.
[Following the trial, the court found Appellant guilty of the
above offenses. On January 3, 2013, the court imposed a
mandatory minimum sentence of ten to twenty years’
incarceration pursuant to 42 Pa.C.S. § 9714 on Appellant on the
attempted robbery of a motor vehicle conviction and entered a
verdict without further penalty on the attempted theft conviction.
Following the imposition of sentence by the court, Appellant did
not file a post-sentence motion or a direct appeal. On December
19, 2013, Appellant filed a petition under the Post-Conviction
Relief Act, 42 Pa.C.S.A. § 9541 et seq. Counsel was appointed to
represent him and following the filing of an amended petition, th[e
PCRA c]ourt issued an order permitting Appellant to file a notice
of appeal from the judgment of sentence nunc pro tunc. Appellant
thereafter filed a timely notice of appeal. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.]
Trial Court Opinion, 6/24/19, at 1-5.
On appeal, Appellant presents a single issue for our review.
[I.] Should Appellant’s judgment of sentence be vacated because
Appellant’s indictment and associated Bills of Information were
defective and, thus, the indictment should be quashed because
Counts 1 and 2 did not reference the specific statute under which
Appellant was charged and Count 1 did not, in particular, properly
define Robbery as requiring the use or threat of force?
Appellant’s Brief at 4.
Here, based upon our review of the record, we are constrained to agree
with the Commonwealth’s position that Appellant has waived his issue on
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appeal because he failed to raise it pretrial. See Commonwealth’s Brief at 7.
Rule 578 of the Pennsylvania Rule of Criminal Procedure provides that
“[u]nless otherwise required in the interests of justice, all pretrial requests
for relief shall be included in one omnibus motion.” Pa.R.Crim.P. 578
(emphasis added). The Comment accompanying Rule 578 specifically
provides that “[t]ypes of relief appropriate for the omnibus pretrial motions
include the following requests: . . . (5) to quash or dismiss an information.”
Id. cmt.
Indeed, as Rule 578 illustrates, defects in the bill of information shall be
raised pretrial and cannot be raised for the first time on appeal. See
Commonwealth v. Cruz, 512 A.2d 1270, 1272 (Pa. Super. 1986) (“A failure
to state a ground for attacking the information in a pre-trial motion to quash
results in a waiver of that ground.”), appeal denied, 522 A.2d 49 (Pa. 1987);
see also Commonwealth v. Martin, 694 A.2d 343, 344 (Pa. Super. 1997)
(“A request to quash an information must be made in an omnibus pretrial
motion for relief or it is considered waived.”).
Here, as the record reveals, Appellant did not challenge the bill of
information pretrial. Appellant now raises this issue for the first time on
appeal. He cannot do so. See Pa.R.Crim.P. 578; see also Cruz, supra;
Martin, supra; Pa.R.A.P. 302(a) (stating that a claim cannot be raised for
the first time on appeal); see also Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.”); Commonwealth v. Melendez-
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Rodriguez, 856 A.2d 1278, 1288 (Pa. Super. 2004) (en banc) (holding issues
raised for first time in 1925(b) statement waived); accord Commonwealth.
v. Tejada, 107 A.3d 788, 790 (Pa. Super. 2015). Accordingly, Appellant’s
challenge to the bill of information is waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2020
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