Com. v. Weeks, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE ALONZO WEEKS :
:
Appellant : No. 1007 MDA 2022
Appeal from the Judgment of Sentence Entered January 12, 2022
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001343-2019
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED JUNE 08, 2023
Andre Alonzo Weeks has brought this appeal from the judgment of
sentence stemming from charges that he caused Derek Schultz’s overdose
death by selling Schultz heroin. Upon careful review, we remand and
relinquish jurisdiction for a Pa.R.Crim.P. 600 hearing to address Weeks’s claim
his right to a prompt trial was violated. On all other issues raised by Weeks,
we affirm the judgment of sentence.
The charges against Weeks were based primarily on the testimony of
Ashton Carbaugh as corroborated by other evidence. Carbaugh testified that
on November 3, 2018, Schultz contacted him seeking to obtain heroin, and
Carbaugh arranged a drug deal with Weeks. Carbaugh then picked up Schultz,
and they drove to meet Weeks. Carbaugh met with Weeks, purchased the
heroin, split the heroin with Schultz, and then returned Schultz to his home.
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Later that day, Schultz’s body was discovered by his fiancée, Danielle
Trace-Baylor. She also observed the presence of drug paraphernalia, which
indicated recent drug use. In addition, Trace-Baylor noticed a text message
on Schultz’s cell phone from Carbaugh. Schultz’s death was ruled an accidental
drug overdose, and toxicology reports found heroin and fentanyl in Schultz’s
system.
Trooper Lindsey Trace of the Pennsylvania State Police was the criminal
investigator assigned to the case, and, at approximately 5:00 p.m. on the day
of the incident, she phoned Carbaugh to inform him that Schultz had died.
Subsequently, the contents of Schultz’s cell phone were accessed and
reflected activity between Schultz and Carbaugh indicating that, prior to
Schultz’s death, the two men had planned to obtain heroin.
Shortly after Schultz’s death Trooper Trace spoke with the State Parole
Agency, who informed her that Weeks had violated his parole due to drug
possession, and the Agency had possession of Weeks’s cell phone. On January
17, 2020, Trooper Trace obtained a search warrant to secure information from
the phone. The search of Weeks’s cell phone revealed text messages between
Weeks and Carbaugh. The search produced additional text conversations
between Weeks and others, which reflected that Weeks had a knowledge of
drug dealing.
On August 9, 2019, Weeks was charged with one count each of
manufacture, delivery, or possession with intent to deliver a controlled
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substance (“PWID”), drug delivery resulting in death, and involuntary
manslaughter. Multiple continuances occurred, several of which were related
to the Covid-19 pandemic. Weeks’s trial commenced on November 18, 2021,
and on November 23, 2021, a jury found him guilty of all charges. On January
12, 2022, the trial court sentenced Weeks to serve an aggregate term of
incarceration of fifteen to thirty years. Weeks filed a timely post-sentence
motion, which the trial court denied. This timely appeal followed.
Weeks presents the following eight issues for our review, which we have
renumbered for purposes of disposition:
1. Was the jury’s verdict against the sufficiency of the evidence?
2. Was [Weeks] wrongly tried before the [c]ourt in that the [c]ourt
did not have jurisdiction to try [Weeks] due to violations of
[Week’s] “right to a speedy trial?”
3. Did the [c]ourt err in denying [Weeks’s] request for a continuance
of his case where [Weeks] was denied access to his attorney at a
vital stage of trial preparation?
4. Did the [c]ourt err by allowing into evidence items that were
improperly and illegally obtained?
5. Did the court err, and thus deny [Weeks] a fair trial, by
improvidently allowing testimony and evidence as to prior bad acts
of [Weeks]?
6. Was [Weeks] denied a fair trial in that the [prosecuting] [a]ttorney
made statements to the jury and elicited testimony from
witnesses as to matters that were unduly prejudicial to [Weeks]?
7. Was the jury’s verdict against the weight of the evidence?
8. Did the [c]ourt improperly and illegally sentence [Weeks]?
Appellant’s Brief at 4-5 (renumbered).
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We address Weeks’s challenge to the sufficiency of the evidence first
because he would be entitled to discharge if the evidence was insufficient to
support the verdict. See Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa.
Super. 2013) (stating “Because a successful sufficiency of the evidence claim
warrants discharge on the pertinent crime, we must address this issue first”).
First, Weeks presents a bald argument that “the jury’s verdict was
against the sufficiency of the evidence.” See Appellant’s Brief at 48-49. When
challenging the sufficiency of the evidence on appeal, an appellant must
specify the element or elements upon which the evidence was insufficient in
order to preserve the issue for appeal. See Commonwealth v. Williams,
959 A.2d 1252, 1257-1258 (Pa. Super. 2008) (finding waiver of sufficiency of
evidence claim where the appellant failed to specify in Rule 1925(b) Statement
the elements of particular crime not proven by the Commonwealth). See also
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (finding
sufficiency claim waived under Williams for failure to specify either in Rule
1925(b) statement or in argument portion of appellate brief which elements
of crimes were not proven beyond a reasonable doubt).
Here, Weeks failed to specify in his appellate brief exactly which crimes
he is challenging under this claim.1 Moreover, Weeks failed to indicate in his
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1 In presenting this claim in his appellate brief, he offers the following:
(Footnote Continued Next Page)
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Rule 1925(b) statement or in his appellate brief which elements, of any of the
crimes he was convicted of, were allegedly not established. Consequently, his
non-specific claim challenging the sufficiency of the evidence, which fails to
specify which elements of which crimes were allegedly not proven by the
Commonwealth, is waived.2
Next, Weeks argues that the trial court erred in denying his motion to
dismiss charges pursuant to Pennsylvania Rule of Criminal Procedure 600. See
Appellant’s Brief at 10-17. Weeks avers that he was deprived of his right to a
prompt trial. Essentially, he contends that the trial court erred in denying his
pre-trial motions to dismiss for failure to commence his trial within 365 days
from the date on which his criminal complaint was filed.
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Weeks refers this Court to the same factual concerns raised on
pages 39 to 47 of this brief [(addressing the weight of the
evidence)], in support of his claim. Weeks suggests that same
strongly implies that the evidence “and all reasonable inferences
derived therefrom (even when) viewed in favor of the
Commonwealth as verdict winner” did not support a finding of all
of the elements of the alleged offense beyond a reasonable
doubt.” [sic] Commonwealth v. Parker, 641 Pa. 39, 168 A.3d
161 (2018).
Appellant’s Brief at 49.
2 We note that, had we not found Weeks’s challenge to the sufficiency of the
evidence waived for the reasons stated above, and addressed the issue that
the Commonwealth failed to present sufficient evidence to support his
convictions, we would have affirmed on the basis of the trial court opinion
which addressed the sufficiency of the evidence to support the convictions.
See Trial Court Opinion, 8/25/22, at 11-18.
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Generally, Rule 600 provides that “[t]rial in a court case in which a
written complaint is filed against the defendant shall commence within 365
days from the date on which the complaint is filed.” Pa.R.Crim.P.
600(A)(2)(a). However, “periods of delay at any stage of the proceedings
caused by the Commonwealth when the Commonwealth has failed to exercise
due diligence shall be included in the computation of the time within which
trial must commence. Any other periods of delay shall be excluded from the
computation.” Pa.R.Crim.P. 600(C)(1).
“In determining whether an accused’s right to a speedy trial has been
violated, consideration must be given to society’s right to effective prosecution
of criminal cases, both to restrain those guilty of crime and to deter those
contemplating it. However, the administrative mandate of Rule [600] was not
designed to insulate the criminally accused from good faith prosecution
delayed through no fault of the Commonwealth.” Commonwealth v. Bethea,
185 A.3d 364, 370 (Pa. Super. 2018) (citation omitted).
“When reviewing a trial court’s decision in a Rule 600 case, an appellate
court will reverse only if the trial court abused its discretion.”
Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012). We recognize
that the courts of this Commonwealth employ a three-step analysis to
determine whether Rule 600 requires dismissal of the charges against a
defendant:
The first step in determining whether a technical violation of Rule
600 […] has occurred is to calculate the “mechanical run date.”
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The mechanical run date is the date by which trial must commence
under the relevant procedural rule. [T]he mechanical run date is
ascertained by counting the number of days from the triggering
event - e.g., the date on which … the criminal complaint was filed
– to the date on which trial must commence under Rule [600].
Pa.R.Crim.P. [600(A)(2)(a)].
Commonwealth v. Preston, 904 A.2d 1, 11 (Pa. Super. 2006) (internal
citations omitted).
In the second step, we must “determine whether any excludable time
exists pursuant to Rule 600(C).” Commonwealth v. Ramos, 936 A.2d 1097,
1103 (Pa. Super. 2007). Time is excluded from the calculation, thereby
extending the Commonwealth’s deadline, when there is a delay caused by
“circumstances beyond the Commonwealth’s control and despite its due
diligence[.]” Commonwealth v. Herring, 271 A.3d 911, 916 (Pa. Super.
2022) (citations omitted). We assess whether the Commonwealth exercised
due diligence in a fact specific manner and recognize that due diligence does
not require perfect vigilance or punctilious care. See id. Rather, we merely
seek to determine whether the Commonwealth “put forth a reasonable effort.”
Id. However, the Commonwealth is required to exercise due diligence
throughout the life of the case, and no time may be excluded until the
Commonwealth has proved it acted with due diligence with respect to that
time. See id.In the third step, “[w]e add the amount of excludable time, if any, to
the mechanical run date to arrive at an adjusted run date.” Ramos, 936 A.2d
at 1103. Any time prior to trial, a defendant may move the trial court for
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dismissal of the charges if the Commonwealth has violated the Rule. See
Pa.R.Crim.P. 600(D)(1).
On appeal, Weeks contends that the trial court erred in its Rule 600
calculations. Specifically, Weeks makes the following bald allegation:
[T]he [c]ourt erroneously refers to the filing of charges on June
20, 2019, and thereafter compounds its error by stating that
mathematically three hundred sixty-five (365) days
expired/passed on June 19, 2020. If the [c]ourt had used the
proper date for initiation of its review, November 3, 2018, 229
days earlier than used by the [c]ourt, the [c]ourt’s logically would
have set the date for application of the 365 day as November 3,
2019.
Appellant’s Brief at 13 (verbatim). And again,
What can not be ignored is that had the [c]ourt used the proper
date to start its calculations, 229 days earlier than the [c]ourt
used, the date the [c]ourt would have come up with for
determining the expiration for a timely trial would have been
December 13, 2020.
Id. at 14 (verbatim).
Our review of the record reveals that the trial court did, in fact, use the
correct date to initiate its Rule 600 calculations. Weeks claims that the
calculation should begin on November 3, 2018, the day of the incident. He
alleges that this was the date he was charged and detained in connection with
Schultz’s death. See Appellant’s Brief at 10. However, Weeks has failed to
properly interpret his history with the criminal justice system.
The record reflects that Weeks was not charged in this matter until June
20, 2019. See Criminal Complaint, 6/20/19. While he was incarcerated prior
to that date, it was not in connection with Schultz’s death. Instead, he was
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incarcerated after he violated the conditions of his parole in an unrelated
case.3 See Search Warrant Affidavit of Probable Cause, 1/17/20, at 2.
Accordingly, the trial court properly utilized June 20, 2019, the date the
criminal complaint was filed in this case, as the start date for calculating the
mechanical run date. Weeks’s challenge in this regard fails.
However, Weeks has presented additional challenges to the trial court’s
decision to deny his motion to dismiss, which compels us to continue our
review of this issue. As Weeks observes in his appellate brief, in its order of
March 22, 2021, the trial court calculated Weeks’s Rule 600 adjusted run date
for trial to be July 26, 2021. See Appellant’s Brief at 14. Moreover, in its Rule
1925(b) opinion, the trial court explained that when it initially addressed
Weeks’s pretrial Rule 600 motion, it made the following factual
determinations: 171 days were excludable due to Weeks’s continuance
requests, and 231 days were excludable based on judicial emergency orders
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3 We note that on January 28, 2021, Weeks filed his first Rule 600 motion
stating he was charged on November 3, 2018. See Motion, 1/28/21, at 1.
However, on February 4, 2021, Weeks replaced the original Rule 600 motion
with an amended motion acknowledging that he was charged by written
complaint filed on June 20, 2019. See Motion, 2/4/21, at 1. Likewise, in his
Rule 600 motion filed on October 18, 2021, Weeks again acknowledged that
he was charged by written complaint filed on June 20, 2019. See Motion,
10/18/21, at 1. For Weeks to now assert that “the [trial c]ourt erroneously
refers to the filing of charges on June 20, 2019,” is disingenuous and contrary
to his own pleadings.
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for a total of 402 excludable days.4 When 402 days is added to the mechanical
run date of June 20, 2020, the adjusted run date became July 26, 2021.
Having reviewed the record in light of the arguments presented in Weeks’s
appellate brief, we find no abuse of discretion.
However, Weeks properly points out that his trial commenced on
November 18, 2021, which was 115 days after the adjusted run date of July
26, 2021. See Appellant’s Brief at 14. As we have stated, “If a defendant is
not brought to trial by the adjusted run date, the case is dismissed.”
Commonwealth v. Lear, 290 A.3d 709, 2023 PA Super 15, at *21 (Pa.
Super. filed February 1, 2023). Weeks complains that the trial court “failed to
readdress” Rule 600 at the time of jury selection. See Appellant’s Brief at 15.
We are constrained to agree.
To properly raise a Rule 600 violation, a defendant must file a “written
motion requesting that the charges be dismissed” due to a violation of Rule
600. Pa.R.Crim.P. 600(D)(1). Such a motion may be filed “at any time before
trial.” Id. Moreover, when, at any time prior to trial, the trial court has been
presented with a written motion requesting that the charges be dismissed with
prejudice on the ground that Rule 600 has been violated, “[t]he judge shall
conduct a hearing on the motion.” Pa.R.Crim.P. 600(D).
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4To the extent that Weeks takes umbrage with the trial court’s calculations
and minor mathematical errors, see Appellant’s Brief at 13, we note that any
miscalculations were to his benefit.
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Again, we reiterate that the Commonwealth is required to exercise due
diligence throughout the life of the case, and no time may be excluded until
the Commonwealth has proved it acted with due diligence with respect to that
time. See Herring, 271 A.3d at 916. This is congruent with our Supreme
Court’s instruction that the “language [of Rule 600 (C)(1)] expressly calls upon
a trial court to assess the Commonwealth’s due diligence throughout the life
of a case, when faced with a claim that the Commonwealth violated a
defendant’s speedy trial rights.” Commonwealth v. Harth, 252 A.3d 600,
617 (Pa. 2021). Quite plainly, “the Commonwealth is required to demonstrate
that it acted with due diligence during a time period before that period can be
deemed excludable.” Id. See also Lear, at *25 (stating that for such “judicial
delay to be excluded from the Rule 600(C) computation, the trial court must
find that the Commonwealth exercised due diligence”). The assessment of
whether the Commonwealth exercised due diligence is performed in a fact
specific manner. See Herring, 271 A.3d at 916. In Lear, we concluded that
because the trial court did not afford the Commonwealth the opportunity to
prove its diligence, a remand for a hearing under Rule 600(D) was required.
See Lear, at *25.
Our review reflects that the trial court, in its disposition of Weeks’s final
Rule 600 motion, failed to address whether the Commonwealth demonstrated
it acted with due diligence.
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As mentioned previously, on October 18, 2021, Weeks filed an additional
written motion for dismissal pursuant to Rule 600. On October 27, 2021, the
Commonwealth filed a minimal answer to the motion. However, as
acknowledged by the trial court, “the [c]ourt did not issue a decision at jury
selection regarding the Rule 600 issue.” Trial Court Opinion, 8/25/22, at 20.
Rather, the trial court stated that it “determined, based on the litany of
[Weeks’s] motion, excludable time applied.” Id.
In its Rule 1925(a) opinion, the trial court set forth a list totaling 167
additional days of delay it attributed to Weeks, which it then added to the
previously determined adjusted run date of July 26, 2021. See id. at 20-21.
The trial court then opined that Weeks’s Rule 600 rights had not been violated:
“Based on this [c]ourt’s calculations, Rule 600 time would have expired on
January 9, 2022. The Commonwealth did not act in bad faith and brought
[Weeks] to trial in a timely fashion. Therefore, [Weeks’s] Rule 600 claim has
no merit.” Id. at 21 (emphasis omitted).
Accordingly, it is undisputed that the trial court failed to hold a hearing
on the motion as required under Rule 600(D). Further, while the court
concluded the Commonwealth had not acted in bad faith, this is not the same
as a finding that the Commonwealth exercised due diligence. The trial court
made no finding regarding whether the Commonwealth established the
necessary due diligence as intended under Rule 600(C)(1). Consequently, it
is our determination that, pursuant to the disposition in Lear, a remand for a
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hearing is required to “afford the Commonwealth the opportunity to prove its
diligence.” Lear, at *25.
Specifically, we remand for a hearing under Rule 600(D). If the trial
court determines the Commonwealth failed to meet its burden to prove due
diligence, then the trial court should vacate the sentences and convictions,
dismiss the charges, and discharge Weeks. If the trial court determines the
Commonwealth exercised due diligence, then it should deny Week’s motion to
dismiss. Weeks’s judgment of sentence would remain, and then Weeks may
appeal the Rule 600 determination. Accordingly, in the interests of judicial
economy, we will review the remaining issues presently before us.
In his next distinct issue, Weeks argues that he was denied his right to
consult with counsel at a critical stage prior to trial, and, therefore, the trial
court improperly denied his request for a continuance that he presented on
the day of jury selection. See Appellant’s Brief at 20-24. Weeks alleges that
a continuance was necessary because he was denied access to counsel on the
eve of jury selection, after he had been transported to the Franklin County Jail
and jail officials did not permit defense counsel to meet with Weeks. Weeks
posits that “[a] continuance should have been granted so that access could
have occurred.” Id. at 24.
The decision of whether to grant or deny a request for a
continuance is within the sound discretion of the trial judge.
Commonwealth v. Chambers, 546 Pa. 370, 387, 685 A.2d 96,
104 (1996). In this context, our Supreme Court has defined
“abuse of discretion” as follows:
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An abuse of discretion is not merely an error of judgment, but if
in reaching a conclusion 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, discretion is abused.
Id. The refusal to grant a continuance constitutes reversible error
only if “prejudice or a palpable and manifest abuse of discretion is
demonstrated.” Commonwealth v. Griffin, 804 A.2d 1, 12 (Pa.
Super. 2002).
Commonwealth v. Pries, 861 A.2d 951, 953 (Pa. Super. 2004).
To demonstrate prejudice, the appellant “must be able to show
specifically in what manner he was unable to prepare his defense or how he
would have prepared differently had he been given more time.”
Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012) (citation
omitted). Moreover, “we have consistently stated, an abuse of discretion is
not merely an error [of] judgment.” Commonwealth v. Prysock, 972 A.2d
539, 541 (Pa. Super. 2009) (citation omitted).
In addressing this issue, the trial court noted the following:
Before trial began, the [c]ourt held a hearing to determine
if [Weeks’s] right to counsel was violated. During this hearing,
officials from the prison testified about [Weeks’s] transportation.
Trial [c]ounsel explained to the court that he arrived at 4:10 p.m.
to meet with his client, but the prison [lobby] officer did not allow
the meeting. N.T. 11/18/2021, at p.4. [The prison lobby officer,]
Officer French[,] testified that when trial counsel arrived at the
prison he could not meet with [Weeks]. Id. at 11. He testified that
his exact words to [t]rial [c]ounsel were, “He is being processed.
You will have to wait.” Id. at 19. Warden Bill Bechtold testified
that he and Deputy Warden Weller planned on making
accommodations to move [Weeks] into a higher category so he
would be processed quicker. Id.
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Before this could be communicated with Trial Counsel, he
served Officer French with a subpoena and left. Id. Warden
Bechtold testified that [t]rial [c]ounsel was at the jail for
approximately 10 or 15 minutes before he left. Id. Warden
Bechtold testified that typically when an attorney’s client is being
processed, they can call the prison and an officer could tell them
if their client is out of processing. Id. at 22. Trial [c]ounsel
testified at this hearing that he did not ask the jail how long
processing normally takes, did not ask the jail if he could call back,
nor did he leave a number for an officer at the jail to call him. Id.
Trial [c]ounsel recognized that he would be able to confer with
[Weeks] prior to picking the jury. Id. at 40.
Trial Court Opinion, 8/25/22, at 22-23.
The trial court ultimately reached the following conclusion:
Trial [c]ounsel knew about jury selection for approximately nine
months. The jail could not accommodate [t]rial [c]ounsel and
allow him to meet with [Weeks] at exactly 4:10 p.m. the night
before trial. However, based on the testimony at the hearing and
the amount of time Trial Counsel spent on the case, [Weeks] was
not denied the right to counsel. He was able to consult with his
attorney.
Id. at 24. We cannot conclude this reasoning constitutes an abuse of
discretion.
Further, Weeks does not specifically show in what manner he was unable
to prepare his defense or how he would have prepared differently had he been
given more time to do so. Therefore, he has failed to demonstrate the
necessary prejudice to establish that the trial court’s refusal to grant a
continuance constituted reversible error. Accordingly, this issue fails.
Fourth, Weeks argues that the trial court erred in permitting into
evidence items that he claims were improperly obtained. See Appellant’s Brief
at 35-36. Specifically, Weeks asserts that evidence derived from the search of
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his cell phone was illegally obtained because the search warrant was allegedly
obtained based upon false statements included in the affidavit.
Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302(a). Likewise, we have long held that claims not
raised before the trial court are waived. See Commonwealth v. Lopata, 754
A.2d 685, 689 (Pa. Super. 2000) (“A claim which has not been raised before
the trial court cannot be raised for the first time on appeal.”).
Pennsylvania Rule of Evidence 103 addresses rulings on evidence and
provides, in pertinent part, as follows:
Rule 103. Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim error in
a ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or
motion in limine; and
(B) states the specific ground, unless it was apparent
from the context; . . .
Pa.R.E. 103(a)(1).
Pursuant to Pa.R.A.P. 302 and Pa.R.E. 103, our courts have long held
that to preserve a challenge to an evidentiary ruling, a party must make a
timely and specific objection to the admission or exclusion of the evidence.
See, e.g., Commonwealth v. Pacheco, 227 A.3d 358, 373 (Pa. Super.
2020). A party’s failure to make a specific objection deprives the trial court
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and the opposing party of the opportunity to either respond to the objection
or to alter the course of the questioning accordingly. See Commonwealth v.
Willis, 552 A.2d 682, 690 (Pa. Super. 1988). Accordingly, the failure of a
party to make a timely and specific objection to an evidentiary violation results
in a waiver of that ground on appeal.
Here, as noted by the trial court, Weeks neither objected to the
admission of the cell phone and its data into evidence, nor did he file a
suppression motion. See Trial Court Opinion, 8/25/22, at 35. We agree with
the trial court’s conclusion that the issue was not properly preserved by
presenting the claim to the lower court in the first instance. Therefore, this
issue is waived.
In his fifth issue, Weeks argues that the trial court erred in admitting
testimony and evidence of his prior bad acts. See Appellant’s Brief at 27-35.
Weeks contends that the trial court erred in admitting into evidence, over
Weeks’s objections, text messages from his cell phone to other individuals,
which the Commonwealth characterized as “drug talk.” The text messages on
Weeks’s phone referencing the sale of narcotics for specific amounts of cash
reflect an involvement with drug sales prior to the incident leading to Schultz’s
death. Weeks claims that this evidence did not meet any exception to the
prohibition of admission of prior bad acts evidence.
It is well settled that “[t]he admission of evidence is within the sound
discretion of the trial court and will be reversed on appeal only upon a showing
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that the trial court clearly abused its discretion.” Commonwealth v. Miles,
846 A.2d 132, 136 (Pa. Super. 2004) (en banc) (citation omitted). Abuse of
discretion requires a finding of misapplication of the law, a failure to apply the
law, or judgment by the trial court that exhibits bias, ill-will, prejudice,
partiality, or was manifestly unreasonable, as reflected by the record. See
Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).
Our Supreme Court has discussed evidence of other bad acts and the
related exceptions as follows:
Generally, evidence of prior bad acts or unrelated criminal activity
is inadmissible to show that a defendant acted in conformity with
those past acts or to show criminal propensity. Pa.R.E. 404(b)(1).
However, evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. Pa.R.E. 404(b)(2). In determining
whether evidence of other prior bad acts is admissible, the trial
court is obliged to balance the probative value of such evidence
against its prejudicial impact.
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).
Rule 404 “deals exclusively with the evidence of crimes, wrongs or acts
which a party seeks to admit to prove something about an accused, a
complainant or a witness.” Commonwealth v. Thompson, 779 A.2d 1195,
1201 (Pa. Super. 2001). Such evidence may be admissible “where it is
relevant for some other legitimate purpose and not utilized solely to blacken
the defendant’s character.” Commonwealth v. Russell, 938 A.2d 1082,
1092 (Pa. Super. 2007). However, this Court has reiterated that “[w]hile
evidence of prior bad acts is not admissible to show criminal propensity,
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evidence of other crimes may be admissible if it is relevant to show some
other legitimate purpose.” Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa.
Super. 2016) (citation omitted).
We are also mindful that our Supreme Court observed that a trial court
is not “required to sanitize the trial to eliminate all unpleasant facts from the
jury’s consideration where those facts are relevant to the issues at hand and
form part of the history and natural development of the events and offenses
for which the defendant is charged.” Commonwealth v. Paddy, 800 A.2d
294, 308 (Pa. 2002) (citation omitted). In addition, we note that, with regard
to jury instructions, “[t]he law presumes that the jury will follow the
instructions of the court.” Commonwealth v. Brown, 786 A.2d 961, 971 (Pa.
2001). See also Commonwealth v. O'Hannon, 732 A.2d 1193, 1196 (Pa.
1999) (stating that “[a]bsent evidence to the contrary, the jury is presumed
to have followed the trial court’s instructions”).
The trial court admitted two text messages from Weeks’s phone into
evidence, and offered the following reasoning:
In the present case, Exhibits 87 and 90 demonstrate that
[Weeks] knew what it means to make a drug transaction and that
the drug transactions were happening in and around the
neighborhood in which [Schultz] and Mr. Carbaugh bought heroin.
Therefore, these text messages logically connected to the criminal
charges against [Weeks] and support the Commonwealth’s theory
that [Weeks] engaged in the sale of narcotics.
This [c]ourt engaged in the appropriate balancing test as it
ruled on the admissibility of these exhibits. … The [c]ourt ruled
that Exhibits 87 and 90 were admissible to show [Weeks’s]
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knowledge. The [c]ourt excluded multiple exhibits because they
were “more prejudicial than appropriate.”
Trial Court Opinion, 8/25/22, at 29-30.
Furthermore, as the trial court aptly notes, limiting instructions were
given to the jury related to each of the exhibits in question. The trial court
charged the jury as follows:
As to Commonwealth’s Exhibit Number 87, I’m advising you that
it is only admissible for the purpose of determining whether or not
[Weeks] has knowledge of a drug transaction or of the nature of
drug transactions and for no other purpose. It’s the only purpose
it can be used. … Members of the jury, again, the only purpose for
which [Exhibit 90] is admissible and for which you can consider it
is to determine [Weeks’s] knowledge of drug transaction and for
no other purpose.
N.T., 11/22/21, at 87, 91.
We agree that the text messages reflect that Weeks possessed a
knowledge of drug dealing, which was relevant to the issue of whether he sold
drugs that caused Schultz’s death. Accordingly, we discern no error on the
part of the trial court in admitting the evidence. Furthermore, there is no
evidence that the jury ignored the trial court’s cautionary instructions directing
the jury to consider the evidence for a limited purpose, and “absent evidence
to the contrary, the jury is presumed to have followed the court’s instructions.”
O'Hannon, 732 A.2d at 1196. Consequently, Weeks’s issue does not merit
relief.
Sixth, Weeks argues the trial court erred in failing to grant his motion
for mistrial due to prosecutorial misconduct. See Appellant’s Brief at 25-27.
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Specifically, Weeks claims the prosecutor made several improper and
prejudicial statements during his opening arguments indicating that Weeks
had previously been incarcerated. See id. at 25-26. We disagree with Weeks’s
claim.
“Our standard of review for a claim of prosecutorial misconduct is limited
to whether the trial court abused its discretion.” Commonwealth v. Harris,
884 A.2d 920, 927 (Pa. Super. 2005) (citation omitted). “It is within the
discretion of the trial court to determine whether a defendant has been
prejudiced by misconduct or impropriety to the extent that a mistrial is
warranted.” Commonwealth v. Baez, 720 A.2d 711, 729 (Pa. 1998) (citation
omitted).
Moreover, when a party moves for a mistrial, such relief is required only
when an incident is of such a nature that its unavoidable effect is to deprive
the appellant of a fair and impartial trial. See Commonwealth v. Feliciano,
884 A.2d 901, 903 (Pa. Super. 2005). The decision whether to grant a new
trial because of alleged prosecutorial misconduct rests within the discretion of
the trial court and will not be disturbed on appeal absent an abuse of
discretion. See Commonwealth v. Rios, 721 A.2d 1049, 1054 (Pa. 1998).
Comments by a prosecutor do not constitute reversible error unless the
language was such that its unavoidable effect was to prejudice the jury,
forming in their minds fixed bias or hostility towards the defendant, so that
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they could not weigh the evidence objectively and render a true verdict. See
id.Our Supreme Court has explained that “although generally no reference
may be made at trial in a criminal case to a defendant’s arrest or incarceration
for a previous crime, there is no rule in Pennsylvania which prohibits reference
to a defendant’s incarceration awaiting trial or arrest for the crimes charged.”
Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa. 2003) (citation
omitted). The trial court did not abuse its discretion in rejecting the
misconduct claim raised here.
Weeks argues that the following comment by the prosecutor during his
opening argument regarding Weeks’s conduct toward Carbaugh while they
were both incarcerated required a mistrial:
Guess who just happens to come along to the [cell] door? Guess
who just happens to start screaming and having all his buddies --
what he -- I will use his term, run up on [Carbaugh]?
And you know what. You’re not going to have to take this from
[Carbaugh] himself. You’re going to hear it from his lips to your
ears because boy is he a talker out there on that jail phone and
he has some pretty good stuff to say about this case and about
what he did to [Carbaugh] and about how he tried to force him
and intimidate him under physical threat to change his testimony.
N.T., 11/18/21, at 26.
Weeks also cites the following statement from the prosecutor to support
his claim that a mistrial was required:
One of the other things you’re going to hear right from [Weeks’s]
lips on the calls is about how he had all the discovery in this case
and if we offered him the right amount of time he was going to
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plead guilty and we’ll talk about what that means at the end of
the trial.
Id. at 29.
These comments were in reference to Weeks’s conduct in attempting to
intimidate a witness while they were incarcerated and statements to his
paramour on the jail phone regarding the fact that he would plead guilty if
presented with an appropriate deal. At the conclusion of the prosecutor’s
opening argument, defense counsel presented two motions for mistrial. See
id. at 34.
Upon review, we conclude that the references to Weeks’s incarceration
were in accordance with the standards set forth by our Supreme Court. The
prosecutor’s comments were made with the intent to challenge Weeks’s
credibility and propensity to be truthful. Although alluding to Weeks’s
incarceration, the prosecutor’s comment did not have the unavoidable effect
of prejudicing the jury, i.e. forming in their minds fixed bias or hostility
towards Weeks so that they could not weigh the evidence objectively and
render a true verdict. Therefore, the trial court did not abuse its discretion in
rejecting the alleged misconduct claim raised here and denying the requested
mistrial.
In his seventh issue, Weeks argues that the verdict was against the
weight of the evidence. See Appellant’s Brief at 36-48. Basically, Weeks
contends that the finder of fact and the trial court have incorrectly balanced
the evidence presented and ignored inconsistencies that should have
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destroyed various witnesses’ credibility. In doing so, Weeks sets forth thirty-
three references to the record that he believes bolster his notion that the
verdicts of guilt should be overturned. See Appellant’s Brief at 39-47.
The weight of the evidence is exclusively for the finder of fact who is
free to believe all, part or none of the evidence and to determine the credibility
of witnesses. Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999)
(citation omitted). When considering a motion that a verdict was against the
weight of the evidence, a “trial court should award a new trial on this ground
only when the verdict is so contrary to the evidence as to shock one’s sense
of justice.” Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011)
(citation omitted).
This Court’s standard of review of a trial court’s decision regarding a
weight of the evidence claim is limited to determining whether the trial court
palpably abused its discretion in concluding that the verdict was or was not
against the weight of the evidence. See Commonwealth v. Champney, 832
A.2d 403, 408 (Pa. 2003). “Because the trial judge has had the opportunity
to hear and see the evidence presented, an appellate court will give the
gravest consideration to the findings and reasons advanced by the trial judge
when reviewing a trial court’s determination that the verdict is against the
weight of the evidence.” Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.
Super. 2015) (citation omitted). “One of the least assailable reasons for
granting or denying a new trial is the lower court’s conviction that the verdict
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was or was not against the weight of the evidence and that a new trial should
be granted in the interest of justice.” Commonwealth v. Clay, 64 A.3d 1049,
1055 (Pa. 2013) (citations omitted)
The jury, sitting as the finder of fact, chose to believe the evidence
presented by the Commonwealth and the logical inferences derived therefrom,
as was its right. In addressing Week’s challenge to the weight of the evidence
and the alleged conflicting testimony offered by Trace-Baylor, the trial court
stated, “the jury observed Ms. Trace-Baylor’s testimony and the testimony of
all of the other witnesses throughout the four[-]day trial. The jury observed
Ms. Trace-Baylor’s demeanor on both direct and cross[-]examination as she
testified to her knowledge about [Schultz]. The jury was free to assess her
credibility and believe all, part, or none of the evidence presented during her
testimony. Ultimately, Ms. Trace-Baylor’s testimony was not the only pertinent
fact for the jury to decide when determining [whether] the victim died from
the use of drugs. This alleged conflict in testimony is not enough to shock the
conscious of the court.” Trial Court Opinion, 8/25/22, at 10.
Concerning the testimony offered by Carbaugh, the trial court stated
that “[t]he jury saw CDR records that verified communication between Mr.
Carbaugh and [Weeks]. The jury observed Mr. Carbaugh’s direct testimony
and observed his demeanor and response to [Weeks’s] thorough cross-
examination. Ultimately the jury chose to believe Mr. Carbaugh. Reviewing
the record, this determination does not shock the conscious of the court.
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Therefore, the jury’s verdict was not against the weight of the evidence.” Id.
at 11.
It was within the province of the jury as finder of fact to resolve all
issues of credibility, resolve any conflicts in evidence, make reasonable
inferences from the evidence, believe all, none, or some of the evidence, and
ultimately adjudge Weeks guilty. The jury weighed the evidence, credited the
Commonwealth’s evidence, and concluded Weeks committed the crimes. The
trial court did not err in concluding the verdict was not so contrary to the
evidence so as to shock one’s sense of justice. Accordingly, we conclude that
the trial court did not abuse its discretion in determining Weeks’s weight of
the evidence claim lacks merit.
Last, Weeks argues that the trial court abused its discretion in fashioning
his sentence. See Appellant’s Brief at 17-20. Essentially, Weeks asserts that
the trial court should not have sentenced him beyond the aggravated range
of the sentencing guidelines.
Our standard of review is one of abuse of discretion. Sentencing is a
matter vested in the sound discretion of the sentencing judge, and a sentence
will not be disturbed on appeal absent a manifest abuse of discretion. See
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
It is well settled there is no absolute right to appeal the discretionary
aspects of a sentence. See Commonwealth v. Hartle, 894 A.2d 800, 805
(Pa. Super. 2006). Rather, where an appellant challenges the discretionary
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aspects of a sentence, the appeal should be considered a petition for allowance
of appeal. See Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.
2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P.
720; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation and brackets omitted).
The first requirement of the four-part test is met because Weeks timely
brought this direct appeal. However, our review of the record reflects Weeks
did not meet the second requirement because he did not raise his challenges
to the discretionary aspects of his sentence in his post-sentence motion or at
the time of sentencing. Specifically, Weeks did not include this issue with his
timely filed post-sentence motion,5 nor did Weeks raise his challenge orally at
____________________________________________
5 In his post-sentence motion, Schultz challenged the weight of the evidence
and the sufficiency of the evidence. See Post-Sentence Motion, 1/20/22. He
did not present a challenge to the sentence.
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the sentencing hearing. Therefore, we are constrained to conclude that
Weeks’s issue is waived, and we are precluded from addressing its merits.
In summary, we have concluded that, the issues presented by Weeks in
this direct appeal, except for one, do not afford relief as they are either waived
or lack merit. However, because the trial court did not afford the
Commonwealth the opportunity to prove its diligence, we remand for a hearing
under Rule 600(D). If the trial court determines after the hearing that the
Commonwealth failed to meet its burden to show due diligence, then the trial
court should vacate the sentences and convictions, dismiss the charges, and
discharge Weeks at this docket number. Conversely, if the trial court
determines the Commonwealth exercised due diligence, then it should deny
Weeks’s motion to dismiss; Weeks’s judgment of sentence would remain, and
Weeks would be afforded the opportunity to appeal the Rule 600
determination.
Case remanded for a hearing pursuant to Pennsylvania Rule of Criminal
Procedure 600(D) as instructed. Judgment of sentence affirmed in all other
respects. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/08/2023
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