Com. v. Perkins, W. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WALTER PERKINS :
:
Appellant : No. 1969 EDA 2019
Appeal from the Judgment of Sentence Entered November 3, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000598-2015
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 5, 2021
Walter Perkins (Appellant) appeals his judgment of sentence entered on
November 3, 2016 in the Court of Common Pleas of Philadelphia. We affirm.
The trial court recounted the procedural history and underlying facts of
this matter as follows:
On January 16, 2015, the Appellant was indicted by a Grand
Jury for: Robbery (F1), Conspiracy – Robbery (F1), Burglary (F1),
Conspiracy – Burglary (F1), Persons Not to Possess Firearms
(VUFA § 6105) (F2), Theft (F3), Conspiracy – Theft (F3), Receiving
Stolen Property (RSP) (F3), Firearms Not to be Carried Without a
License (VUFA § 6106), and Carrying Firearms in Public in
Philadelphia (VUFA § 6108) (M1). On July 17, 2015, the court
declared a mistrial after the jury was hung on the charges of
Robbery, Conspiracy – Robbery, Burglary, and Theft.
On January 29, 2016, after a second trial, a jury found the
Appellant guilty of Robbery, Conspiracy – Robbery, Burglary,
Conspiracy – Burglary, and two counts of Theft. On May 6, 2016,
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* Former Justice specially assigned to the Superior Court.
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the court sentenced the Appellant to 10-20 years[’] incarceration
for Robbery, 10-20 years[’] incarceration for Burglary to run
consecutively to Robbery, 10-20 years of incarceration for
Conspiracy – Robbery to run concurrently with Burglary, and 10-
20 years for Conspiracy – Burglary to run concurrently with
Burglary and Conspiracy – Robbery. The aggregate sentence was
20-40 years of incarceration.
On May 11, 2016, the Appellant filed a Motion for
Reconsideration of Sentence. On June 3, 2016, the Appellant filed
a pro se Notice of Appeal to [this Court]. On July 14, 2016, the
[court] ordered the Appellant to file a Statement of Errors
Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). On
November 3, 2016, the court granted the Appellant’s Motion for
Reconsideration and resentenced the Appellant on the Burglary
charge to 5-10 years of incarceration for an aggregate sentence
of 15-30 years of incarceration.
On November 10, 2016, the Appellant filed a second Notice
of Appeal to [this Court]. On December 5, 2016, the court ordered
the Appellant to file a Statement of Errors Complained of on
Appeal pursuant to Pa.R.A.P. 1925(b), and on June 27, 2017, the
Appellant filed a Statement. The court filed its responsive Opinion
on September 20, 2017. However, on October 27, 2017, the
Appellant filed a petition to discontinue his appeal, and [this
Court] granted his petition on October 31, 2017.
On July 25, 2018, the Appellant filed a PCRA Petition, and
on April 2, 2019, the Appellant filed an Amended PCRA Petition
alleging that his original appellate counsel had “discontinued
Petitioner’s appeal against his wishes.” On June 27, 2019, the
PCRA [court] granted the Appellant’s Petition to accept his post-
sentence motion nunc pro tunc as timely filed. On July 12, 2019,
the Appellant filed a third Notice of Appeal to the Superior Court.
On August 9, 2019, the court ordered the Appellant to file a
Statement of Errors Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b), and on August 18, 2019, the Appellant filed a
Statement raising the following issues:
1. [The trial court] erred, abused its discretion, and violated
[Appellant’s] due process rights under the state and federal
constitutions when [it] granted the Commonwealth’s eleventh-
hour objection to the introduction of a prison tape by the defense[
– an] objection which the Commonwealth made in front of the jury
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just before defense counsel hit the play button, where [Appellant]
already had been colloquied about his desire not to testify with
the understanding that the tape would be played as defense
evidence, and where the charging conference had been conducted
with [that same understanding,] and where the tape was being
offered to complete and/or rebut a prison tape that the
Commonwealth had played.
2. [The trial court] abused its discretion and condoned the
Commonwealth conducting trial by ambush and denying
[Appellant] the ability to present a defense by allowing the
Commonwealth to object to the evidence – the playing of a prison
tape by defense – in such a covert and disingenuous manner.
3. The evidence was insufficient to sustain a conviction for
burglary and conspiracy to commit burglary. The evidence did not
show that [Appellant] entered the premises with the intent to
commit a robbery. Additionally, the charge of conspiracy was not
[made out] for the same reason.
4. There was prosecutorial misconduct in the following instances:
(1) Lead [Detective] Matthew Funk #680 offered false testimony
by stating falsely that a text message found on [Appellant’s]
phone had called for a taxi cab to come to the complainant’s
address of 2133 South Hicks Street, when the text message from
the cab company actually contained a different address . . . . The
[Commonwealth] allowed this testimony to go uncorrected.
(2) [Detective Funk] testified that he was not able to lift any
identifiable fingerprints. [He] also testified that he did not submit
any identifiable fingerprints to be processed . . . . However, during
the first trial [Detective Funk] testified that he in fact did get prints
and submit them for processing but they came back negative for
any identifiable person in their database.
[FACTS]
On [December 10, 2014,] Ronnie Elliot (Complainant) was
living at 2133 South Hicks Street [in Philadelphia] with a
roommate [named Reo]. The Complainant had had spinal surgery
the night before and was waiting to be picked up to go to physical
therapy. The Complainant answered a knock at the door and saw
the Appellant and another man. After the Complainant asked who
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they were, the Appellant asked where Reo was. The Complainant
responded that Reo was at work, and the Appellant pushed the
door in, knocking the Complainant to the ground.
The Appellant then asked the Complainant where pills and
money were in the house, and the Complainant noticed a gun in
the Appellant’s waistband. The Complainant responded that he
did not know what the Appellant was talking about. The Appellant
struck the Complainant twice in the head with the gun and asked
him where the bags were. The Complainant told him that he did
not know where any bags were, and the Appellant proceeded to
tie the Complainant up with a phone charging cord. The Appellant
and the other male went to the second floor of the house, and the
Complainant heard them searching the bedrooms and moving
objects around. After the Appellant and the other male gathered
items from upstairs, the Appellant called a taxi, cut the phone cord
around the Complainant’s hands, and left the house carrying
several garbage bags of items.
The Complainant then called the police. Officer Leslie
Winters arrived first on the scene and took the Complainant’s
statement. The Complainant told Officer Winters that he
overheard the Appellant tell the cab company that they needed to
go to 30th Street. Detective John Tocco prepared a photo array
the next day, and Sergeant Angel Gonzales showed the photo
array to the Complainant. The Complainant identified the
Appellant in the photo array as one of the assailants. Once the
Appellant was identified, Detective Matthew Funk obtained a
search warrant for his last known address, 1344 South 31st
Street. Detective Funk contacted the Special Weapons and Tactics
(SWAT) unit to execute the search warrant at the house. Once
inside the house, Detective Funk went into the basement where
he found the Appellant sleeping. The detective also found several
garbage bags containing items that were reported taken from the
Complainant’s house. Lastly, the detective found a toy gun the
Commonwealth later identified as the weapon the Appellant used
to assault the Complainant.
Trial Ct. Op., 2/4/20, at 1-5 (citations and footnotes omitted).
We now turn to Appellant’s first two claims of error, regarding the
recorded prison call he sought to admit at trial. Appellant argues that his
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constitutional due process rights were violated by its exclusion, both because
such exclusion was improper and detrimental to the defense, and because the
Commonwealth’s move to exclude it amounted to trial by ambush and
compromised his decision not to testify, which he claims was made with the
understanding that the recording in question would be played for the jury.
Appellant’s Brief at 17-21.
We review evidentiary decisions for abuse of the trial court’s discretion,
and absent such abuse, we will not reverse. Commonwealth v. Kinard, 95
A.3d 279, 284 (Pa. Super. 2014). “Discretion is abused when the course
pursued represents not merely an error of judgment, but where the judgment
is manifestly unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill will.”
Commonwealth v. Martinez, 917 A.2d 856, 859 (Pa. Super. 2007).
Appellant cites Pa.R.E. 106, which specifies that “[i]f a party introduces all or
part of a writing or recorded statement, an adverse party may require the
introduction, at that time, of any other part – or any other writing or recorded
statement – that in fairness ought to be considered at the same time.”
Appellant’s Brief at 17.
The trial court reports that the recording, in which Appellant explains to
his girlfriend his decision to plead guilty to RSP, was submitted to prove the
truth of the matter asserted and was therefore hearsay. Trial Ct. Op. at 6.
Appellant asserts that the recording was admissible under the “business
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records” exception to the hearsay rule, codified at Pa.R.E. 803(6) and under
Rule 106. Appellant’s Brief at 17-19. Further, the trial court points out that
our Supreme Court has held that “[w]here a defendant seeks at trial to
introduce his own statements made at the time of arrest to support his version
of the facts, such testimony is clearly offensive to the hearsay rule.” Trial Ct.
Op. at 6-7, quoting Commonwealth v. Murphy, 425 A.2d 352, 356 (Pa.
1981). Further, the trial court cited this Court’s opinion in Commonwealth
v. Benson, 10 A.3d 1268 (Pa. Super. 2010), in which this Court held that
defendants may not elicit testimony from a third party about his own
statements when he himself refuses to testify and subject himself to cross-
examination. Trial Ct. Op. at 6.
Although Appellant argues that the business records exception applies,
and that he should have been allowed to play the recording to augment the
allegedly incomplete picture painted by the Commonwealth’s recording of
Appellant telling his girlfriend that he was attempting to provide for her, the
recording Appellant submitted was actually from another conversation
entirely. See Trial Ct. Op. at 7. The trial court also points out that Appellant
did not attempt to introduce the recording contemporaneously with the
Commonwealth’s recording, but instead waited until the Commonwealth had
rested before attempting to introduce his preferred recording. Id. at 8.
Finally, the trial court points out that defense counsel was unable to identify
an applicable hearsay objection at trial, so this entire claim of error is arguably
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waived. See Id.; see N.T., 1/28/16, at 86 (“At the side bar I showed the
defense attorney, for the record, twenty-six hearsay exceptions and I asked
him to point to one in which it would come under and the defense attorney
was unable to do it.”).
Of course, any defendant has an ironclad right either to testify or to
decide not to testify, and to have the jury instructed that no adverse inference
may be derived from the exercise of his silence.1 However, a defendant may
not use an exception to the hearsay rule to put their testimony before the jury
without undergoing cross-examination. This is a manipulation of the rules of
evidence to have one’s cake and eat it too – to have the advantage of having
testified by putting one’s own account before the jury, but to prevent the
Commonwealth from probing that account via cross-examination. Why not
forbid the Commonwealth from cross-examining a testifying defendant
altogether? Where this is the goal of the defense, it itself is an offense to the
Constitution, and not, as Appellant argues, a Constitutional guarantee.
Appellant’s own argument betrays that this was precisely his goal. See
Appellant’s Brief at 18.2 Likewise, his argument that the Commonwealth’s
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1 See Commonwealth v. Lewis, 598 A.2d 795 (Pa. 1991).
2 “In fact, Appellant was colloquied about not testifying, and the charging
conference had been conducted with the understanding the tape would be
played as Defense evidence.” Id. Of course, Appellant’s colloquy was not a
blood oath; he was still free to assert his right to testify in his defense when
the trial court excluded the recording.
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objection constituted trial by ambush is unfounded, where he did not establish
at the time of trial that the proffered evidence was even admissible.
Objections must be timely lodged, and the Commonwealth’s adherence to that
rule does not constitute an ambush. There is no abuse of discretion here.
Next, Appellant argues that his convictions for burglary and conspiracy
to commit robbery are infirm, as the evidence presented was insufficient to
establish his intent to commit a robbery when he charged into the
complainant’s home.
When reviewing a challenge to the sufficiency of the evidence supporting
a conviction, we analyze:
whether the evidence, viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to enable a
reasonable [fact finder] to find every element of the crime beyond
a reasonable doubt. . . . In applying this standard, we bear in mind
that the Commonwealth may sustain its burden by means of
wholly circumstantial evidence; that the entire trial record should
be evaluated and all evidence received considered, whether or not
the trial court's rulings thereon were correct; and that the trier of
fact, while passing upon the credibility of witnesses and the weight
of the proof, is free to believe all, part, or none of the evidence.
Commonwealth v. Reed, 990 A.2d 1158, 1161 (Pa. 2010) (citations
omitted). Under 18 Pa.C.S. § 3502(a)(1)(i), when, “with the intent to commit
a crime therein, the person enters a building or occupied structure . . . adapted
for overnight accommodations in which at the time of the offense any person
is present and the person commits, attempts or threatens to commit a bodily
injury crime therein” they commit burglary. Appellant argues that the
Commonwealth did not establish intent. Appellant’s Brief at 23. The trial
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court points out that Appellant pushed his way in, knocking the complainant
over, struck the complainant twice in the head, and asked the complainant to
specify the location of valuable items in the house. Trial Ct. Op. at 10. Stolen
property was found with Appellant when the warrant was executed and he
was arrested. Id. at 5. We must agree that this evidence is sufficient to
support these convictions.3 This claim fails.
Finally, Appellant argues that the Commonwealth committed
misconduct during his trial because of certain variances in Detective Funk’s
testimony between his first trial, which ended in mistrial, and his second.
Appellant’s Brief at 27. Counsel acknowledges that there was no
contemporaneous objection. Id. at 27, n.3. The trial court concludes, for this
reason, that the claim is waived. Trial Ct. Op. at 15, 18-19. We must agree.
See Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008) “it is
axiomatic that issues are preserved when objections are made timely to the
error or offense”).
Judgment of sentence affirmed.
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3 Appellant also argues that the photo array in which the complainant
identified him was unduly suggestive and tainted. Appellant’s Brief at 23.
This claim was not mentioned in Appellant’s statement per Pa.R.A.P. 1925(b)
and is therefore waived.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/21
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