Com. v. Holmes, A. ( 2020 )

J-S35027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ABDUL HOLMES
Appellant No. 1651 EDA 2019
Appeal from the Judgment of Sentence Entered May 10, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0009947-2017
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 19, 2020
Appellant Abdul Holmes appeals from the May 10, 2019 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County (“trial
court”), following his jury convictions for aggravated assault, possessing an
instrument of crime (“PIC”), recklessly endangering another person (“REAP”),
firearms not to be carried without a license, and carrying firearms on public
streets in Philadelphia.1 Upon review, we affirm.
In connection with a public shooting that resulted in the injury of a
minor, Appellant was charged with, inter alia, the above-mentioned crimes.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a)(1), 907(a), 2705, 6106(a)(1), and 6108,
respectively.
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The case eventually proceeded to a jury trial, which was held in absentia.2
The trial court summarized the evidence adduced at trial as follows:
At trial, the Commonwealth first presented the testimony of
Philadelphia Police Officer Edward Daly. Officer Daly testified that,
on September 29, 2017 at approximately 7:45 p.m., he was on
patrol with his partner, Officer Celce, when a radio call was
broadcast for “person with a gun at the intersection of 24th and
Norris Streets. Officer Daly and his partner, who were only two
blocks away, arrived at the scene shortly after the call came
through. Upon arrival, Officer Daly encountered a crowd of
approximately 10 people, who directed him to the corner property
at [XXXX] West Norris Street. There, he encountered a six-year-
old gunshot victim, [J.A. (the “victim”)]. [The victim] was
“bleeding profusely from the shoulder” and “crying a lot”.
Accordingly, Officer Daly did not wait for an ambulance but placed
[the victim] in his cruiser and immediately transported him to the
hospital for emergency treatment.
Philadelphia Police Detective Michael Livewell next took the
stand for the Commonwealth. Detective Livewell testified that, on
September 29, 2017, he was assigned to investigate a shooting
that occurred earlier that evening on the corner of 24th and Norris
Streets. Upon arrival, Detective Livewell canvassed the scene for
ballistics evidence. He searched North and West of the
intersection, because shots were reported as being fired in a
southbound direction on 24th Street, and there was a school yard
to the north/northwest of the intersection. Detective Livewell did
not find any fired cartridge casings (“FCCs”), but he did hear a
“hissing” sound from the tire of a nearby car. Upon further
inspection the Detective believed that the tire was punctured by a
bullet.
Detective Livewell surveyed neighbors throughout the area
on the night of September 29 and early morning hours of
September 30, 2017, to no avail. Essentially, everyone he spoke
with stated that they had “heard the gunshots” but “didn’t see
anything”. He testified that the most fruitful information came
from a Tanita Lark, who lived at 2009 North 24th Street (just north
____________________________________________
2 On the day of jury selection, Appellant absconded from the courtroom.
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of the intersection). Although Ms. Lark, too, heard the gunshots
but did not see anything -- she stated that she became worried
about her son, Jasun Lark, who had gone outside just before the
shots rang out.
The Commonwealth next presented the testimony of the
young gunshot victim, [J.A.]. [The victim], who was seven years
old at the time of trial, testified that on the evening of the
shooting, he was at his grandmother’s house at 2347 West Norris
Street waiting for his dad to take him and his brother, [S.], to his
dad’s house. When his father arrived, [the victim] and [S.] went
outside to play “tag” with other kids before they left. When they
were about to leave, several gunshots rang out and [the victim],
who was standing next to his dad at the stop sign, got shot in the
left shoulder. [The victim also testified that after the police took
him to the hospital he had surgery to remove the bullet from his
shoulder; the wound left him with a scar, which he displayed to
the jury.] [The victim]’s dad immediately pulled him into the
house; he was bleeding from the shoulder and “everyone was
crying”, including his father. Finally, [the victim] testified that just
prior to the shooting he saw someone, whom he did not recognize,
wearing a black hoodie on 24th Street, and that he never saw that
person again.
[The victim]’s 13-year-old brother, [S.], testified next for
the Commonwealth. According to [S.], on the evening of
September 29, 2017, he was playing outside his grandmother’s
house with [the victim] and some other kids, waiting for his dad
to pick them up. After his father arrived, they were about to
depart for his house when he heard four or five gunshots and saw
“flashes” coming from 24th Street. The next thing he knew, he
was being pulled into the home, and saw his little brother lying on
the floor with a gunshot wound. [S.] testified that his dad then
went outside to see who was shooting, and returned a short time
later and called the police.
[S.] also testified that he knows Jasun Lark from the
neighborhood, and he saw Jasun walking on 24th Street around
the time of the shooting. He further testified that Jasun, who was
18 or 19 years old, was friends with another neighbor, Nikki
Mitchum. Finally, [S.] testified that within a few hours of the
shooting, he went to the police station with his aunt and gave a
statement to detectives.
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The Commonwealth next called the [the victim]’s father,
[J.A. (the “father”)], to the stand. The father testified that on the
evening of the shooting, he was standing outside with his children
on the corner of 24th and Norris Streets, when four or five
gunshots rang out from the direction of Diamond Street. The
father immediately pushed his kids inside their grandmother’s
house; he instinctively went back outside, at which time he saw a
male in a grey hoodie running from the same direction of the
gunshots. [The father] testified that he had not yet realized that
his son had been shot. Rather, it was not until he went back inside
the home a second time that he saw his son lying on the floor,
bleeding. [The father] ripped [the victim’s] shirt off him in order
to ascertain where he was bleeding from, and called 9-1-1. Two
police officers arrived and transported [the victim] and him to the
hospital. He provided a statement to detective on the following
day. Finally, [the father] testified that, ever since the shot, his
son mentally has never been the same. [He] lashes out more
than he used to . . . [H]e is just not like [how] he used to be.”
Next, Philadelphia Police Detective John McIver testified that
he executed a search warrant on a vehicle that was towed from
the scene of the shooting. He observed that the vehicle—a 2015
black Honda Accord—had a flat front passenger tire. Detective
McIver removed the tire, from which he extracted a fired projectile
bullet. He secured the bullet via property receipt and submitted
it to the Firearms Identification Unit for further testing.
The Commonwealth next presented its expert ballistician,
Philadelphia Police Officer Mark Wilusz. Officer Wilusz testified
that he analyzed the two projectiles recovered in this case,
namely, the bullet recovered from [the victim] and the bullet
recovered from the Honda Accord’s tire, both of which were
“38/357 caliber. Due to a significant amount of damage to surface
of the bullets, there “wasn’t enough microscopic marks of value”
to determine whether they were or were not fired from the same
gun.
The Commonwealth next called Jasun Lark, who testified
that he lives at 2009 North 24th Street, the house next door to
[the victim]’s grandmother’s house, where [the victim] and his
siblings used to live. Mr. Lark testified that he knew Appellant by
the nickname “Dro”, and had known him for several years from
the neighborhood, as Appellant lived around the corner from him.
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On the evening of September 29, 2017, Mr. Lark was on his front
porch when he heard two gunshots ring out. Remarkably, in
contrast to both his video-recorded statement to detectives
and grand jury testimony in which he unequivocally
identified Appellant as the shooter, Mr. Lark developed a
profound case of amnesia at trial and claimed that he did
not see who had shot [the victim]. Rather, he claimed that
his video-recorded statement and grand jury testimony
implicating Appellant comprised “a lie”. Mr. Lark acknowledged
that after his grand jury testimony, he stopped going to school
and went into hiding, and that his parents prevented him from
going to court because they did not want to see anything happen
to him. He also was asked about an incident at 30th and
Susquehanna on October 29, 2018, in which “someone fired 20
to 30 shots at him”, and acknowledged that he was then-currently
(at the time of trial) incarcerated for repeatedly failing to appear
in court in this case. Against this backdrop, Mr. Lark’s video-
recorded statement was played along with a transcript for the
jury.
Mr. Lark nonetheless claimed that he did not identify
Appellant -- or anyone else -- at the grand jury proceeding, and
that he did not remember anything from the day of the shooting,
prompting the recitation of his sworn testimony before the grand
jury:
Q. Did you identify anyone at the grand jury?
A. No.
Q. You didn’t identify anyone to the grand jury as the
shooter?
A. No.
Q. Okay. All right.
Q. Did you tell Kathy Martinez, the DA when you
testified, did you tell her what you saw that day of the
shooting?
A. I don’t really remember that day.
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Q. You don’t remember the day of the grand jury
what you told her?
A. No.
Q. All right. So can you flip to Page 13 on C-11?
Are you on there? Let me know when you have it.
A. I’m on there.
Q. All right. Scroll down to line 19. Do you see it?
A. Yes.
Q. And you were asked: Did you also look at a
photograph of Dro?
By Kathy Martinez, correct?
A. Yes.
Q. Your response was yes?
A. Yes.
Q. And then you were asked: Did you sign that
photo? And your response was yes?
A. Yes.
Q. And then you were asked on Line 23: When you
signed that photo of Dro, why did you sign that photo
of Dro?
And your answer was: Because that is who I saw
pull the weapon out and shoot [the victim]. Is that
what it says there?
A. Yes.
Q. Okay. And then you were asked: Okay. Did you
sign that photograph?
A. Yes.
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Q. And your response was “yes” there. Correct?
A. Yes.
Q. And then the next question was: Did you also
write the name Dro on top of that photograph? And
your response was: Yes. Correct?
A. Yes.
....
Q. . . . That’s your signature [on the photograph]?
A. Yes.
Q. Is that what it says there?
A. Yes.
....
Q. At the top, Line 1, you were asked: Did you date
it as well? And your response was: Yes. Correct?
A. Yes.
Q. And the next question was: What is the date?
And your answer was: 9/30/17. Correct?
A. Yes.
....
Q. All right. Now, you said you don’t remember if you
told Ms. Martinez whether or not you saw the shooting
A. No. I don’t remember.
Q. You don’t remember. Would it refresh your
recollection to read this, to read certain portions of
this to see whether or not you remember?
A. No.
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Q. It wouldn’t refresh your recollection? Okay. So
can you flip to Page 6 then down to Line 9. Let me
know when you’re there.
A. I’m there.
Q. And you were asked: Could you tell what, if
anything, happened when you got to your house?
And your response was: I was coming out of my
aunt’s house, and I was walking towards the corner,
and I see [the victim] and his dad and his two brothers
on the corner. As I’m walking toward my house, I
walked past the four guys. I was walking toward my
house, and I see two guys pull up with black hoodies,
and they pull out guns. That is what it says there,
correct?
A. Yes.
....
Q. Do you remember being asked: Okay. Can you
describe these two guys? What were they wearing?
Do you see that?
A. Yes.
Q. And your response was: One had a rubber band
in this hair. He had dreads, dreadlocks, and he had
on all black Nike sweat suit with New Balance ‘990’s.
And his friend had a box cut with a curly top with
tattoos on his face. That is what is says there,
correct?
A. Yes.
....
Q. And on Page 8, Line 22, you were asked: Do you
recognize him? Your answer was: Yes. That’s what
it says there, correct?
A. Right.
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Q. Then you were asked on Line 24: And what is his
name? And Line 25 it says, I know him by Dro.
A. Yes.
....
Q. So Line 12, Page 10 you were asked: Can you tell
everyone what you saw Dro – or when you saw Dro,
what is anything, did you see him doing? And your
response says: I seen him pull out a gun, aim it at
the corner where the gentlemen were standing, let off
two shots. He took off running through the
schoolyard. That’s what it says there, correct?
A. Correct.
Q. And then you were asked: You saw him pull out a
gun. Where did you see him pull the gun from? And
your response was: From his hip, his left side.
Correct?
A. Yes.
Mr. Lark goes on to admit to the truth of everything he told
Detective Rocks in his interview wherein he identified Appellant as
the shooter. He also acknowledged making prison phone calls to
Appellant wherein he told Appellant that he was going to “make
sure that he was taken care of because he wasn’t going to come
to court. And finally, Mr. Lark acknowledged making phone calls
to his girlfriend, Nikki Mitchum, and his brother, Mark Lark, during
which Mr. Lark indicated that the police were just mad “because I
ain’t telling on the boy” and “I ain’t no fucking rat, bro”. He further
admitted to actually meeting up with Appellant to assure him that
he would not appear in court. As Mr. Lark put it: “I . . . told the
boy, I am going to get booked before you get booked.”
Philadelphia Police Detective Michael Rocks next took the
stand for the Commonwealth. Detective Rocks testified that, on
September 30, 2017, he and his partner, Detective Leonard
Williams, went to 2009 North 24th Street to speak with Jasun Lark
regarding the shooting incident. Mr. Lark was not home at the
time, so they spoke with his mother, however he did arrive while
they were there and agreed to give a statement. Detective Rocks
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testified that at no point did he threaten Mr. Lark, and Mr. Lark
was never a suspect in this case. Before transporting him to
Central Detectives, Detective Rocks and his partner took Mr. Lark
to Wawa to get some food.
Detective Rocks testified that prior to the interview, he
engaged in an informal conversation with Mr. Lark about the
incident. Mr. Lark stated what he knew about it, to wit, that he
saw person by the nickname “Dro” doing the shooting that
evening. Detective Rocks retrieved a photograph of “Dro” a/k/a
Abdul Holmes, and Mr. Lark positively identified him. Mr. Lark
then partook in a more formal interview, which was recorded on
video. During the interview, Mr. Lark once again unequivocally
identified Appellant as the shooter. Detective Rocks testified that
Mr. Lark provided the interview voluntarily, and that based on his
extensive experience, Mr. Lark did not remotely appear to be
under the influence of intoxicating agents.
Detective Rocks additionally testified that, following the
interview, he gave Mr. Lark his card and offered him a ride home.
Mr. Lark accepted the ride but asked to be dropped off several
blocks away from his home. Finally, Detective Rocks testified that
Mr. Lark showed up on his own volition and testified before the
grand jury, and did not express any reservation about being there.
Philadelphia Police Detective Edward Keppol testified next
for the Commonwealth. Detective Keppol testified that he is a
member of the “shooting team” of the Special Investigation Unit,
and he was assigned as the lead detective in this case. As part of
his investigation, Detective Keppol surveyed the scene for FCCs
and projectiles. No FCCs were recovered, leading him to conclude
that the gunman used a revolver (which does not eject FCCs). As
for projectiles, one bullet was recovered from a car’s tire and a
second bullet was recovered from [the victim]’s shoulder. As a
result of his investigation, Detective Keppol applied for, and
obtained, a warrant for Appellant’s arrest, and a warrant to search
his residence at 2240 Edgley Street in Philadelphia. Aided by the
SWAT Unit, Detective Keppol executed the warrant on October 1,
2017 at approximately 3:00 a.m. Appellant was present inside
the residence and taken into custody.
Next, Philadelphia Police Officer Anthony Mooney testified
that on October 29, 2018 at approximately 9:15 p.m., he was on
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patrol at 30th and Ridge Avenue, when he heard 20 to 30
gunshots coming from the area of 30th and Susquehanna Avenue
(one block north). As he traveled northbound on Ridge Avenue,
he encountered Mr. Lark running from Corlies Street toward him.
Officer Mooney stopped Mr. Lark, who appeared to be scared and
out of breath. Mr. Lark gave the officer his brother’s name, Mark
Lark, and stated that he had heard gunshots and started to run.
Upon ascertaining from a witness that Mr. Lark was not the
shooter, Officer Mooney released him.
Officer Mooney testified that he did not know that Mr. Lark
was an eyewitness in this case and had been dodging court.[3] On
the following day, Officer Mooney was asked by the District
Attorney’s Office to try to locate Mr. Lark and bring him to court.
On October 31, 2018, Officer Mooney located Mr. Lark at 25th and
Berks Streets. Mr. Lark again gave him the name “Mark Lark”,
but after the officer showed him a photograph with his name on
it, Mr. Lark admitted that he was scared to give his real name
because he did not want to go to court. Officer Mooney then took
Mr. Lark before the Honorable Scott Di Claudio, who issued
another subpoena with a new trial date.
The Commonwealth next presented testimony of Ms.
Jaleesa Brown, who is a court clerk with the Office of Judicial
Records at the Criminal Justice Center in Philadelphia. Ms. Brown
testified that she was the assigned court clerk in Courtroom 902
on April 2, 2019. She testified that Appellant appeared for jury
selection that day, but during a break in the proceedings, he left
____________________________________________
3 By way of background, our review of the record indicates, and the
Commonwealth confirms, that Mr. Lark repeatedly failed to appear for trial.
On December 3, 2018, when Mr. Lark “once again failed to appear for trial,”
the Commonwealth requested a one-day continuance for police to
locate him. Because Mr. Lark could not be found, the
Commonwealth moved for nolle prosequi of the charges against
[Appellant]. The court granted the Commonwealth’s motion on
December 4, 2018. Police subsequently located Mr. Lark. On
January 25, 2019, the court found him in contempt for failing to
appear at trial. That same day, the Commonwealth filed a motion
to vacate the entry of nolle prosequi. The court granted the
motion on February 8, 2019.
Commonwealth’s Brief at 7.
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without the [c]ourt’s permission and failed to return. Ms. Brown
then notified [the court], which issued a bench warrant.
Finally, the Commonwealth presented the testimony of
Probation Officer Robert Fitzsimmons, who explained that he is a
pretrial officer who handles defendants who are placed on house
arrest. Officer Fitzsimmons testified that Appellant had been on
pretrial house arrest awaiting trial, with permission to leave the
residence only to attend court. Officer Brown explained that
house arrest monitoring does not employ GPS; rather, it only
alerts when the individual crosses the perimeter of the house. On
April 2, 2019 Appellant left his house to attend court and then
never returned.
Appellant’s counsel presented the testimony of Appellant’s
friend, James N. Bennett. Mr. Bennett testified that, on the
evening of September 29, 2017, he was hanging out with
Appellant, his longtime friend, on the corner of 23rd and Diamond
Streets. At some point between 7:00 and 8:00 p.m., gunshots
rang out so they walked over to 24th and Edgley Streets “because
it sounded like the shots came from around there.” When they
got there, police arrived but did not stop him or Appellant; after
“about two minutes” he and Appellant “went [their] separate
ways”.
Despite possessing this information, Mr. Bennett testified
that he did not come forward with this information about his good
friend at any time following the shooting. Although Mr. Bennett
claimed that he gave a statement to police three months prior to
trial, on cross-examination he admitted that he did not give a
statement to detectives until March 27, 2019, i.e., less than a
week before trial.
Prior to resting, the defense introduced stipulated
testimony, namely, that if called: (1) Philadelphia Police Officer
Robert Zona would testify that, on the night of September 29,
2017 at approximately 8:00 p.m., he stopped a 13-year-old black
male in the vicinity of 24th and Edgley Streets in response to flash
description of black male with grey hoodie; and (2) defense
private investigator, Bill Carey, would testify that he attempted to
talk to Jasun Lark while he was in custody on March 30, 2019, but
Mr. Lark refused to meet with him.
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Based on all the foregoing evidence, the jury found
Appellant guilty of aggravated assault, PIC, REAP, firearms not to
be carried without a License, and carrying firearms on public
streets in Philadelphia. On May 10, 2019, following a hearing on
the Commonwealth’s motion to proceed in absentia, the court
imposed [upon Appellant an aggregate sentence of 19½ to 39
years’ imprisonment.]
Trial Court Opinion, 12/4/19, at 1-5 (record citations, some footnotes and
unnecessary capitalizations omitted) (some emphasis in original; other
added). Appellant did not file any post-sentence motions. He timely appealed
his judgment of sentence. The trial court directed Appellant to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal. Appellant complied,
raising three assertions of error. In response, the trial court issued a Pa.R.A.P.
1925(a) opinion.
On appeal, Appellant presents three issues for our review. First, he
argues that the “trial court’s refusal to allow [Appellant] to hire an attorney of
his choosing violate[d] his right to counsel under the Sixth Amendment to the
United States Constitution and Article I, Section 9 of the Pennsylvania
Constitution.” Appellant’s Brief at 5. Second, Appellant claims that “the
evidence was [in]sufficient to sustain [his] convictions for aggravated assault
and related offenses” because “the sole evidence offered against him was the
recanted prior inconsistent statement of [Mr. Lark] that was so unreliable that
it must be rejected as a matter of law.” Id. In essence, even though couched
as a sufficiency claim, we construe it as challenging the trial court’s weight of
the evidence and credibility determinations. Third, he argues that the trial
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court erred in permitting “the jury to review transcripts of Jasun Lark’s video
interview during their deliberations in violation of Pa.R.Crim.P. 646(C)(1)
where the video-taped statement was the only evidence implicating [him.]”
Id. We address the issues in turn.
Appellant’s first argument seemingly implicates his right to counsel. He
claims that the trial court erred in refusing to grant his request, made one day
before trial, to re-hire Attorney Todd Henry, who previously had represented
him in this case. Id. at 14. At the core, however, what Appellant is
challenging is the trial court’s refusal to continue trial—on the eve of trial—in
order to permit Appellant to re-hire Attorney Henry.
It is well-settled that “[t]he grant or denial of a motion for a continuance
is within the sound discretion of the trial court and will be reversed only upon
a showing of an abuse of discretion.” Commonwealth v. Ross, 57 A.3d 85,
91 (Pa. Super. 2012) (citation omitted), appeal denied, 72 A.3d 603 (Pa.
2013). An abuse of discretion “is not merely an error of judgment; rather,
discretion is abused when ‘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 omitted). “A bald allegation of an insufficient amount of time to
prepare will not provide a basis for reversal of the denial of a continuance
motion.” Id. (citation omitted). Instead, an appellant “must be able to show
specifically in what manner he was unable to prepare his defense or how he
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would have prepared differently had he been given more time.” Id. “We will
not reverse a denial of a motion for continuance in the absence of prejudice.”
Id. (citation omitted).
As we recently explained in Commonwealth v. Broitman, 217 A.3d
297 (Pa. Super. 2019):
Both the Sixth Amendment to the United States Constitution and
Article I, Section 9 of the Pennsylvania Constitution guarantee a
defendant’s right to counsel. [Commonwealth v.] McAleer, 748
A.2d [670, 673 (Pa. 2000)]. “In addition to guaranteeing
representation for the indigent, these constitutional rights entitle
an accused to choose at his own cost and expense any lawyer he
may desire.” Id. (internal quotation marks and citation omitted).
However, a defendant’s constitutional right to counsel of his choice
is not absolute and “must be weighed against and may be
reasonably restricted by the state’s interest in the swift and
efficient administration of criminal justice.” Commonwealth v.
Robinson, 364 A.2d 665, 674 (Pa. 1976) (internal quotation
marks omitted).
This Court cannot permit a defendant to utilize this right “to clog
the machinery of justice and hamper and delay the state in its
efforts to do justice with regard both to him and to others whose
rights to speedy trial may thereby be affected.” Id. A defendant’s
right to choose private counsel “must be exercised at a reasonable
time and in a reasonable manner.” Commonwealth v. Rucker,
761 A.2d 541, 542-43 (Pa. 2000) (citation and emphasis omitted).
In Commonwealth v. Prysock, 972 A.2d 539 (Pa. Super. 2009),
this Court set forth the following factors to consider on appeal
from a trial court’s ruling on a continuance motion to obtain
private representation: (1) whether the court conducted an
extensive inquiry into the underlying causes of defendant’s
dissatisfaction with current counsel; (2) whether the defendant’s
dissatisfaction with current counsel constituted irreconcilable
differences; (3) the number of prior continuances; (4) the timing
of the motion for continuance; (5) whether private counsel had
actually been retained; and (6) the readiness of private counsel
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to proceed in a reasonable amount of time. Prysock, 972 A.2d
at 543.
Broitman, 217 A.3d at 299-300.
Here, our review of the record reveals that Attorney Henry entered his
appearance in this case on November 14, 2017. On January 28, 2019,
Attorney Henry filed a motion to withdraw as counsel. Attorney Henry claimed
that he had had no contact with Appellant since the Commonwealth moved
for nolle prosequi of the charges on December 4, 2018 and that “[a]ny
attempts to reach [Appellant] have gone unanswered.” Motion to Withdraw,
1/28/19, at ¶ 2. Attorney Henry further claimed that he received “notice that
the Commonwealth is seeking to vacate the nolle pros.” Id. ¶ 3. Attorney
Henry claimed that he had fulfilled his “obligation to [Appellant]” and wished
to seek “leave to withdraw” from this case.” Id. ¶¶ 4-5.
On January 29, 2019, the court appointed Attorney Donald Bermudez
to represent Appellant. On February 8, 2019, trial was scheduled for April 1,
2019. On March 1, 2019, the trial court conducted a hearing on a Pa.R.Crim.P.
600 motion filed by Attorney Bermudez. It was not until April 1, 2019, on the
day of jury selection and more than two months following Attorney Bermudez’
appointment, that Appellant first expressed a wish to re-hire Attorney Henry
as trial counsel. At the jury selection, the following exchange occurred:
THE COURT: All right. So are there any other trial issues, Mr.
Bermudez, that you want to raise at this point or any other issues?
MR. BERMUDEZ: Just a request. I feel it is my duty as court
appointed to—he would like time to rehire Mr. Henry. It is his
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right to choose his counsel. I understand that I am attached. I
am ready to proceed, but I do feel it appropriate to make that
request on behalf of [Appellant].
THE COURT: All right. Well, Mr. Holmes, you have had more than
enough time to see if Mr. Henry could represent you. This case, I
believe, was—well, the nolle pros in this case was entered on
December 4, 2018. Mr. Henry made it clear that he could no
longer represent you on this case back in January-
MR. HOJNOWSKI: January 28th, Your Honor.
THE COURT: --of this year. So now, it’s April, and there have
been a number of listings in between. This is the first time that
anyone is suggesting that you wish to hire—rehire Mr. Henry.
Your trial date is tomorrow, sir. So unless I were to hear from Mr.
Henry that somehow he has been retained to represent you, I
would not entertain that type of [continuance] request the day
before trial.
THE DEFENDANT: Okay, miss. Because I talked to –
THE COURT: Okay, Judge.
THE DEFENDANT: Yes. Sorry, Judge. I talked to Mr. Henry, and
around the time when I had the motion hearing, he was telling
me, like, just see if the motion is granted. Then if it don’t get
granted, you can hire me. And I’ve been trying [to] contact him.
I’ve been trying to contact him. I can’t even get in contact
with him.
THE COURT: Oh, Mr. Henry is very easy to contact, sir. Mr. Henry
has a very thriving practice and he is very easy to contact.
So at this point in time, it was represented to me that you could
no longer afford private counsel. Mr. Henry is very expensive, I’m
sure. And for that reason, Mr. Bermudez was appointed to
represent you. And have you discussed your defense with Mr.
Bermudez?
THE DEFENDANT: Yes.
THE COURT: And he is, in fact, ready to represent you on this
case. You understand that?
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THE DEFENDANT: Yes.
THE COURT: All right. I understand, maybe your desire would be
to have Mr. Henry, but you would have had to have made those
arrangements and have him ready to go and ready to try this case,
which has not happened for the past four months. So I am going
to—this case will be ready to go tomorrow morning.
N.T., Trial, 4/1/19, at 9-12 (emphasis added).
Instantly, based on the record before us, we cannot conclude that the
trial court abused its discretion in denying Appellant’s continuance request for
purposes of re-hiring Attorney Henry. The trial court found that Appellant
failed to act promptly and “waited until the last possible second” to re-hire
Attorney Henry. Trial Court Opinion, 12/4/19, at 17. The court reasoned that
“Appellant appeared for jury selection on April 1, 2019 (with trial slated to
commence on the following morning), and despite having months to prepare
for trial and retain private counsel, he indicated that he ‘would like more time’
to rehire [Attorney Henry] as his counsel.” Id. The court explained that
“Appellant’s dilatory behavior resulted in the forfeiture of the right to counsel
of his choosing.” Id. at 19. Moreover, the trial court pointed out that
“Appellant absented himself from the proceedings in this case. Upon doing
so, [he] completely lost the ability to assert whom ‘he preferred’ as his counsel
while he was on the lam.” Id. The court also observed that Appellant “does
not contend that his court-appointed counsel rendered ineffective assistance
at trial, nor, in light of the record, could he. As such, even if Appellant had
not forfeited his right to counsel—and plainly he did—he still would be unable
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to demonstrate actual prejudice in this case.” Id. Indeed, at no point did
Appellant provide the trial court with a reason for wishing to re-hire Attorney
Henry or that the denial of the requested continuance rendered him unable to
prepare his defense or prejudiced him any way.
Appellant simply waited until the eve of trial to request a continuance to
re-hire Attorney Henry, with whom he admitted—on the record—to having no
contact. As the trial court aptly noted, Appellant’s continuance request was
dilatory—an attempt to clog the machinery of justice.4 This case had been
pending for almost 1½ years, the trial court appointed new counsel nearly two
months prior to trial, and Appellant waited until the eve of trial to request a
continuance to re-hire Attorney Henry. Under the circumstances of this case,
the trial court did not abuse its discretion in denying Appellant’s last-minute
continuance request. See Commonwealth v. McCool, 457 A.2d 1312,
1314-15 (Pa. Super. 1983) (no abuse of discretion in denying defendant’s
continuance request to obtain private counsel where defendant made no
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4 To the extent Appellant relies on Commonwealth v. Rucker, 761 A.2d 541
(Pa. 2000), such reliance is misplaced. Unlike in this case, there the defendant
had retained private counsel who had been working on the case for months
and was prepared to go to trial immediately. Moreover, unlike in this case,
there the private counsel, in a written motion, informed the court that he “is
an experienced trial lawyer who specializes in criminal defense, that he met
with [the] appellant at least ten times, that he developed a special rapport
and trust with [the] appellant, that he fully reviewed all case materials, and
that he completely prepared the defense of [the] appellant’s case.” Rucker,
761 A.2d at 543.
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efforts to retain counsel until the night before trial); see also
Commonwealth v. Novak, 150 A.2d 102, 109-10 (Pa. 1959) (holding the
defendant’s request to change counsel on the day of trial was properly
denied).
We next address Appellant’s second issue, implicating the weight of the
evidence.5 Appellant argues that the principal evidence against him at trial—
the testimony of Mr. Lark—was unreliable and, as a result, must be rejected
as a matter of law. This issue, however, is not preserved for appellate review.
Under Pa.R.Crim.P. 607, a challenge to the weight of the evidence generally
must be preserved in a post-sentence motion. “As noted in the comment to
Rule 607, the purpose of this rule is to make it clear that a challenge to the
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5 As this Court has explained:
On this issue, our role is not to consider the underlying question
of whether the verdict was against the weight of the evidence.
Rather, we are to decide if the trial court palpably abused its
discretion when ruling on the weight claim. When doing so, we
keep in mind that the initial determination regarding the weight
of the evidence was for the factfinder. The factfinder was free to
believe all, some or none of the evidence. Additionally, a court
must not reverse a verdict based on a weight claim unless that
verdict was so contrary to the evidence as to shock one’s sense of
justice.
Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007)
(internal citations omitted), appeal denied, 954 A.2d 575 (Pa. 2008). “[A]
trial court’s denial of a post-sentence motion ‘based on a weight of the
evidence claim is the least assailable of its rulings.’” Commonwealth v.
Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting Commonwealth v.
Diggs, 949 A.2d 873, 880 (Pa. 2008)).
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weight of the evidence must be raised with the trial judge or it will be waived.”
Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004), appeal
denied, 863 A.2d 1143 (Pa. 2004). A claim challenging the weight of the
evidence generally cannot be raised for the first time in a Rule 1925(b)
statement. Commonwealth v. Burkett, 830 A.2d 1034 (Pa. Super. 2003).
An appellant’s failure to avail himself of any of the methods for presenting a
weight of the evidence issue to the trial court constitutes waiver of that claim,
even if the trial court responds to the claim in its Rule 1925(a) opinion. Id.
Instantly, Appellant failed to challenge the weight of the evidence at
sentencing. Additionally, as mentioned, he did not file any post-sentence
motions. Accordingly, his weight of the evidence claim is waived.6
____________________________________________
6 Even if this issue were preserved, Appellant still would not be entitled to
relief. First, Appellant essentially attacks the jury’s weight and credibility
determination, and invites us to accept his proffered version of the facts. We
decline the invitation. It is settled that we may not substitute our judgment
for that of the factfinder—whether a jury or the trial court—because it is the
province of the factfinder to assess the credibility of the witnesses and
evidence. See Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004);
Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) (“an appellate
court is barred from substituting its judgment for that of the finder of fact.”).
Second, as the record reveals, Appellant did not object at trial to the
Commonwealth’s introduction of Mr. Lark’s prior inconsistent statements. But
assuming he had, Appellant still would not have obtained relief. Prior
inconsistent statements are always admissible for impeachment purposes, but
also may be admitted as substantive evidence when the statement was given
in reliable circumstances and where the declarant is subject to cross-
examination. See Commonwealth v. Carmody, 799 A.2d 143, 148 (Pa.
Super. 2002) (recognizing that “a prior inconsistent statement may be offered
not only to impeach a witness, but also as substantive evidence if it meets
additional requirements of reliability”).
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Finally, we turn to Appellant’s claim that the trial court abused its
discretion in permitting the jury to review during deliberations the transcripts
of Mr. Lark’s video-taped interview. As the Commonwealth points out, this
claim is waived. Commonwealth’s Brief at 25. It is settled that an appellant’s
“failure to raise a contemporaneous objection to evidence at trial waives that
claim on appeal.” Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa.
Super. 2013) (citation omitted); see Commonwealth v. Baumhammers,
960 A.2d 59, 73 (Pa. 2008) (to preserve issue for appellate purposes, party
must make timely and specific objection to ensure trial court has opportunity
to correct alleged error); Keffer v. Bob Nolan’s Auto Service, Inc., 59 A.3d
621, 645 (Pa. Super. 2012) (“one must object to errors, improprieties or
irregularities at the earliest possible stage of the adjudicatory process to
afford the jurist hearing the case the first occasion to remedy the wrong and
possibly avoid an unnecessary appeal to complain of the matter.”) (citations
omitted) (emphasis added); see also Pa.R.E. 103(a) (providing that an
“[e]rror may not be predicated upon a ruling that admits or excludes evidence
unless . . . a timely objection . . . appears of record.”); 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 sum, we conclude that the trial court did not abuse its discretion in
denying Appellant’s eleventh-hour continuance request to re-hire Attorney
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Henry and that Appellant failed to preserve his second and third issues for our
review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/20
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