Com. v. Lewis, W.

J-S67029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM LEWIS, :
:
Appellant : No. 3825 EDA 2016
Appeal from the Judgment of Sentence November 10, 2016
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001072-2000
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 19, 2017
William Lewis (“Lewis”) appeals from the judgment of sentence
imposed following his conviction of twelve counts each of robbery (inflict or
intentionally put in fear of bodily injury), robbery (threaten or intentionally
put in fear of serious bodily injury), simple assault (physical menace),
terroristic threats, unlawful restraint (risk of injury), unlawful restraint
(involuntary servitude); two counts of simple assault (causing or attempting
to cause bodily injury); and one count each of conspiracy to commit robbery
(threaten or intentionally put in fear of serious bodily injury), conspiracy to
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67029-17
commit robbery (inflict or intentionally put in fear of bodily injury), theft by
unlawful taking, and receiving stolen property.1 We affirm.
In its Opinion, the trial court set forth the relevant factual and
procedural history, which we adopt for the purpose of this appeal. See Trial
Court Opinion, 3/29/17, at 1-2.
On appeal, Lewis raises the following issues for our review:
1. Did the [trial c]ourt error [sic] by permitting Detective William
Cahill [(“Detective Cahill”)] to offer an expert opinion on the
meaning of “Code of the Streets” as it related to the trial
testimony of James Sadler [(“Sadler”)] and Edward Davis
[(“Davis”),] without first qualifying [Detective Cahill] as an
expert[,] or requiring the Commonwealth to provide a report
in advance of trial outlining his qualifications and his opinion
on that particular subject matter[,] and the basis of that
opinion[,] which was heavily relied upon by the
Commonwealth in their closing argument at trial?
2. Did the [trial c]ourt err by failing to instruct the jury prior to
deliberations on how they should consider the fact that both
[] Sadler and [] Davis had crimen falsi convictions?
Brief for Appellant at 5.
In his first issue, Lewis contends that “[c]ourts have held that ‘code
language’ is a highly specialized area, requiring knowledge of particular
meanings of words in various neighborhoods.” Id. at 28-29. Lewis asserts
that the average person would not be familiar with the term “Code of the
Streets.” Id. at 28. Lewis claims that when Detective Cahill testified about
____________________________________________
1See 18 Pa.C.S.A. §§ 3701(a)(1)(i), (ii); 2701(a)(3); 2706; 2902(1), (2);
2701(a)(1); 903; 3921(a); 3925(a).
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J-S67029-17
the term “Code of the Streets,” he was deciphering code language that
required specialized knowledge of particular meanings. Id. at 29. Lewis
argues that, because the Commonwealth never asked the trial court to
accept Detective Cahill as an expert, the court should have sustained
defense counsel’s objection to Detective Cahill’s testimony. Id. Lewis
contends that Detective Cahill’s testimony as to having worked in
Philadelphia, Lancaster, Reading, Allentown and New York “is proof that [he]
is an expert in street jargon[,] and that his specialized expert knowledge of
code language was only gained by his exposure to coded language of these
different neighborhoods.” Id. at 30. Lewis asserts that Detective Cahill’s
testimony should have been precluded because there was no basis for his
opinion under Pa.R.E. 701 and 702. Brief for Appellant at 31. Lewis claims
that the admission of Detective Cahill’s testimony was not harmless error
and constitutes reversible error. Id. at 31-32. According to Lewis, “the
Commonwealth was permitted to question Detective Cahill as a lay witness,
when he was using his expertise and specialized knowledge to decipher
highly specialized coded language.” Id. Lewis argues that “[t]he
explanation of the ‘Code of the Streets’ by Detective Cahill was used to
suggest why Sadler and Davis may recant their previous testimony.” Id. at
33. Lewis contends that “[w]ithout the prejudicial testimony of [Detective]
Cahill … the jury may have accepted the testimony of Sadler and Davis as
true and correct[,] and acquitted Lewis.” Id.
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J-S67029-17
Our standard of review for considering whether a ruling on the
admissibility of evidence was proper is well settled:
Admission of evidence is a matter within the sound discretion of
the trial court, and will not be reversed absent a showing that
the trial court clearly abused its discretion. Commonwealth v.
Chmiel, 558 Pa. 478, 738 A.2d 406, 414 (Pa. 1999). Not
merely an error in judgment, an abuse of discretion occurs 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 on record.”
Commonwealth v. McAleer, 561 Pa. 129, 748 A.2d 670 (Pa.
2000).
Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009) (quoting
Commonwealth v. Cooper, 941 A.2d 655, 668 (Pa. 2007)).
In its Opinion, the trial court addressed Lewis’s first issue, set forth the
relevant law, and determined that the issue lacks merit. See Trial Court
Opinion, 3/29/17, at 3-4 (wherein the trial court determined that Detective
Cahill did not need to be qualified as an expert because he “merely testified
to a matter of general fact acquired through his employment as a police
officer for 29 years and[,] therefore[,] well[-]within his knowledge as the
affiant in the case.”); see also id. at 4-5 (wherein the trial court determined
that, even if the admission of Detective Cahill’s testimony was in error, such
error was harmless, as the evidence of Lewis’s guilt was overwhelming).2
____________________________________________
2 Notably, even if the testimony provided by Detective Cahill could be
characterized as an expert opinion, Lewis concedes that Detective Cahill was
an expert in street jargon. See Brief for Appellant at 30.
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J-S67029-17
We agree with the reasoning of the trial court, and affirm on this basis as to
Lewis’s first issue. See id. at 3-5.
In his second issue, Lewis contends that the trial court erred by failing
to instruct the jury, prior to deliberations, on how they should consider the
testimony of Sadler and Davis due to their past crimen falsi convictions.
Brief for Appellant at 34-37.
In its Opinion, the trial court addressed Lewis’s second issue, set forth
the relevant law, and determined that the issue was waived. See Trial Court
Opinion, 3/29/17, at 5 (wherein the trial court determined that the issue was
waived because it was not raised before the trial court); see also id.
(wherein the trial court further determined that the issue was also waived
because Lewis’s description of the issue in his Concise Statement was too
vague for the trial court to identify and address the issue). We agree with
the reasoning of the trial court, and affirm on this basis as to Lewis’s second
issue. See id.3
Judgment of sentence affirmed.
____________________________________________
3 Even if Lewis had properly preserved this issue, we would have concluded
that it lacks merit for the reasons stated by the trial court in its Opinion.
See Trial Court Opinion, 3/29/17, at 5-6.
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J-S67029-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2017
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Circulated 12/05/2017 11:04 AM
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
CHESTER COUNTY, PE1'.,TNSYLVA.1'-lIA
vs.
CRlMINAL ACTION
•.. •.
WILLIAM LEWIS NO. 1072-2000 '·.
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Ronald C. Yen, Esq., Chief Deputy District Attorney ·'·"
Mark J. Conte, Esq., A Hurney for the Defend ant 0.1 �.=!
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· · OPINION · · -'; ····� r:�) t·'.i
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AND NOW, this� day of March, 2017, this Opinion is filed pursuant to Pa. R.A.P.
·
1925 and in response to William Lewis' (hereinafter, "Defendant") timely Concise Statement of
Errors Complained of on Appeal and Amended Concise Statement of Errors Complained of on
Appeal (hereinafter referred to collectively as "Concise Statements").
FACTUAL AND PROCEDURAL HISTORY
We set forth only as much 01' the procedural history that is necessary for the issuance of
this Opinion. On October 5, 2015, after a trial by jury, Defendant was convicted of twelve (17.)
counts of Robbery (threaten or intentionally put in fear of serious bodily injury), twelve (12)
counts of Robbery (inflict or intentionally put in fear of bodily injury), one (1) count of
Conspiracy to commit Robbery (threaten or intentionally put iu Iear of serious bodily injury),
one (1) count of Conspiracy to commit Robbery (inflict or intentionally put in fear of bodily
injury), two (2) counts of Simple Assault (causing or attempting to cause bodily injury), twelve
(12) counts of Simple Assault (physical menace), twelve ( 12) counts of Terroristic Threats,
twelve ( 12) counts of Unlawful Restraint (risk of injury), twelve (12) counts of Unlawful
Restraint (involuntary servitude), one (1) count of Theft by Unlawful Taking ("TBUT''), and one
(I) count of Receiving Stolen Property ("RSP"). On January 20, 2016 Defendant received an
1
aggregate sentence of29.5 to 75 years imprisonment, which was based in part on the number of
victims, the severity of the offenses," and Defendant's prior record score of three (3)? Defendant
received 546 days credit for time served.
__ ,_,,.,.,•, ·-···------
The jury acquitted Defendant of Possessing Instruments of Crime ("PIC'') and Firearms Not to be Carried
Without a License. See Verdict, I 0/5/l 5.
During the commission of the robbery, multiple victims were taken at gunpoint, hound, gagged and
threatened with death. ·
The various prior offenses occurred both as an adult and a juvenile.
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On January 29, 2016, Defendant filed a counseled post-trial motion (hereinafter,
"Motion"). On October 12, 2016, that Motion was granted in part and denied in part.
Spccifical ly, the Court agreed with Defendant's Motion that Count 15 of the Criminal
Information (TBUT) should have merged with one of the Robbery counts for sentencing
purposes. 4 The Court denied all other requested relied contained in the Motion.
On December 8, 2016, Defendant filed the instant appeal from the jury's verdict and
judgment of sentence imposed in this matter. By Order dated December 14, 20 l 6, the Court
directed Defendant to file of record and serve upon the undersigned a Concise Statement of
Errors Complained of on Appeal (hereinafter, "Concise Statement"). On January 3, 20 t 7,
Defendant filed a counseled Concise Statement. On January 4, 2017, counsel filed an Amended
Concise Statement of Errors Complained of on Appeal (hereinafter, '' Amended Concise
Statement"), 5
'Tlie un<.fodying facts in suppoffofDeferidant's·conviclions and'givfffg·rise to this appeal
are as follows. On January 9, 2000, Defendant along with four accomplices or co-conspirators
committed an armed robbery of the Genuardi's Supermarket located in East Goshen Township,
Chester County. Specifically, at approximately 10:37 p.m., four armed gunman, dressed like
terrorists, entered. the store'' and used duct tape to restrain several employees and a delivery
driver in the rear of the store before removing money from the office safe. 7 During the course of
the robbery, three of the victims were injured and one of those injured victims required
emergency medical attention at Brandywine Hospital for head trauma.
Shortly after the robbery, Defendant fled to North Carolina. Defendant was able to
remain at large and evade capture for 14 years by assuming a false identity. On July 24, 2014,
Detective Lieutenant William Cahill of the Westtown East Goshen Regional Police Department
(hereinafter, «Department"), along with the assistance of the Federal Bureau of Investigation
(hereinafter, "FBI") and Cumberland County, North Carolina Sheriff's Office, located Defendant
in Fayetteville, North Carolina. Defendant was subsequently arrested in North Carolina and
extradited back to Chester County, Pennsylvania to stand trial for the charged offenses.
DISCUSSION.
ln his Concise Statements, Defendant raises two (2) issues for appellate review. Those
issues verbatim are as follows:
Consequently, on November 10, 2016, the Court vacated the l to 5 year sentence imposed on Count 15 of
the Criminal Information. All other terms and conditions of the original sentence remained unchanged.
' In his Amended Concise Statement, Defendant raised one ( l) additional argument that was not set forth in
his original Concise Statement.
6 The final co-conspirator, fames Sadler, was a Genuardl's employee who was working the night of the
robbery. Therefore, Mr. Sadler was already inside the store and did not enter the premises with the other co-
conspirators.
The evidence adduced at trial established that the amount of the theft ofGenuardl's property totaled
$28, 146.20 .
2
(:(Jf�. !'}::f/31/ · 1? l:2: ?.5
1. The Court erredby permitting Detective William Cahill to offer an expert opinion on the
meaning of the "Code of the Street" as it related to the trial testimony of James Sadler
and Edward Davis without first qualifying him as an expert or requiring the
Commonwealth to provide a report in advance of trial outlining his qualifications and his
opinion on that particular subject matter and the basis of that opinion which was heavily
relied upon by the Commonwealth in their closing argument at trial.
2. The Court erred by failing lo instruct the jury prior to deliberation on how they should
consider the fact that both James Sadler and Edward Davis had crimen falsi convictions.
Amended Concise Statement, 1/4/17. As the Court will explain, both of the issues raised by
Defendant lack sufficient merit and can form no basis for a successful appeal.
...... ··-.. In his first issll.�_rai��.� on app_eal DefengapJ co�t�!1ds that the Court erred by_Q.�.nnitti.ri.g .
Detective Lieutenant Cahill to testify as to the meaning of the "Code of the Street" as it related to
the testimony of co-conspirators James Sadler and Edward Davis without first qualifying the
detective as an expert and requiring him to provide a report in advance of his testimony. \Ve
disagree with Defendant' s argument. ·
It is well-established that the Pennsylvania Rules of Evidence differentiate between the
requirements for expert and lay witnesses. Rule 701 states in relevant part:
Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of
an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.RE. 701.
Conversely, Rule 702 states in relevant part:
Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge
is beyond that possessed by the average layperson;
3
COC 09/3%/� 17 1H:Z�
(b) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or lo
determine a fact in issue; and
(c) the expert's methodology is generally accepted in the relevant
field.
Pa.R.E. 702.
Herc, Detective Lieutenant Cahill's trial testimony was not improper "expert" testimony
as claimed by Defendant. Even assuming it was opinion testimony, Pa.R.E. 701 allows for
opinion testimony by lay witnesses. Detective Cahill testified at trial that he is very familiar with
the meaning of the "Code of the Street" from conducting numerous police investigations and
extensive career in law enforcement. N.T., 10/2/15, at 23--24. It is undisputed that Detective
Lieutenant Cahill has been employed by the Westtown East Goshen Regional Police Department
as a detective and patrolmen for approximately 29 years. Therefore, he is responsib1e for
investigating all types of crimes and interviewing witnesses in multiple jurisdictions. N.'L,
t 0/1/15, at 200-201. Accordingly, even if the detective's testimony constituted opinion
evidence, it still comported with tbe rules of evidence.
Based on his education, training, and experience Detective Cahill was permitted to testify
that in his experience the phrase "Code of the Street" means that "it's a no-no to talk to the
police and give up information about your friends and people in your neighborhood. It's nut
accepted on the street."! Id. at 24-25. The trial record evidences that the prosecutor presented
the detective as a fact or lay witness. Detective Lieutenant Cahill merely testifiedto a matter of
general fact acquired through his employment as a police officer for 29 years and therefore well
within his .knowledge as the affiant in the case. As such, he did not need to be qualified as an
expert or 'author a report prior to testifying at trial.
Furthermore, the testimony at issue was rationally based on Detective Lieutenant Cahill' s
personal observation of two co-conspirators at trial and the rational perception of their trial
testimony. The detective offered a reasonable explanation to the jury as to why co-conspirators
James Sadler and Edward Davis' trial testimony differed from their prior testimony. As the
affiant in the case, Detective Lieutenant Cahill's testimony helped the jury understand and
reconcile recantation testimony with prior testimony. Id. However, the reason the co-
conspirators testified contrary to their prior sworn testimony is of less importance then the fact
that they changed their testimony. The credibility of all witnesses and the weight to be accorded
the evidence produced arc matters within the province of the trier of fact. IIere, the jury was free
to believe all, some or none of the evidence introduced at trial. Commonwealth v. Smith, 467
A.2d 1120 (Pa. 1983); Commonwealth v. Nelson, 467 A.2d 638 (Pa. Super. l 9&3). Accordingly,
the testimony was based upon Detective Cahill's perception and experience and it was helpful to
a determination of facts in issue, the participation in the robbery by Defendant.
Moreover; we conclude that the admission of Detective Lieutenant Cahill's testimony as
to the meaning of the "Code of the Street", even if erroneous, as Defendant argues, constitutes de
minims error in spite of the overwhelming evidence of Defendant's guilt. It is well-established
. that not all errors at trial entitle a defendant 10 a new trial. Commonwealth v. Watson, 945 A.2d
3
The Court permitted this testimony over the objection of defense counsel.
4
.:oc 03/3.:!./ J.'7 l.2�2'5
174 (Pa. Super. 2008); Commonwealth v. West, 834 A.2d 625 (Pa. Super. 2003), appeal denied,
889 A.2d 12 t 6 (Pa. 2003 ).
The doctrine of "harmless error" is a technique of appellate review designed to advance
judicial economy by obviating the necessity for a retrial where the appellate: court is convinced
that a trial error was harmless beyond a reasonable doubt. Commonwealth v. Allshouse, 985 A.2d
847 (Pa. 2009), Petition for Certiorari filed, 78 U.S.L.W. 3689 (May 13, 20 IO)(No. 09-1396). It
is premised on the well-settled proposition that a defendant is entitled to a fair trial, but not a
perfect one. Commonwealth v. Drummond, 775 A.2d 849, S53 (Pa. Super, 2001), appeal denied,
790 A.2d 1013 (Pa. 200 l ). Harmless error exists if ( l) the error did not prejudice the defendant
or the prejudice was de minimus: (2) the erroneously admitted evidence was merely cumulative
of other untainted.substantially similar) and properly admitted evidence; or (3) the properly
admitted and uncontradieted evidence admitted at trial was so overwhelming and the
prejudicial effect of the error was so Insignificant by comparison that the error could not
have contril,utcd to"d1e verdict. Commonwealih V. Simn1()}1S, 662 A.2d 621 Pa. (1995)·-------··· ....
(emphasis added). Accordingly, we conclude that Defendant's first issue raised on appeal lacks
arguable merit.
Insofar as Defendant's final contention is concerned that the Court erred by foiling 10
instruct the jury prior to deliberation on how they should consider the fact that both Mr. Sadler
and Mr. Davis had crimen falsi convictions; we deem this issue waived.
The fatal flaw with Defendant's argument is that the issue was neither raised in the trial
Court nor properly preserved for appellate review. Sec Pa R.A. P. 302(0). tty requiring that an
issue be considered waived if raised for the first time on appeal, appellate courts ensure that the
trial court that initially hears a dispute has had an opportunity to consider the issue.' Lincoln
Philadelphia Realty Assoc. v. Bd. or Revisi.9.J) of .T���s of Philadelphia, 758 A.2d 1178, 1186
(Pa. 2000). This j urisprudential mandate is also grounded upon the principle that a trial court,
like an administrative agency, must be given the opportunity to correct its errors as early as
possible. Wing v. Com. Unernploym�nl. Cqmp. Bd. of Review. 43 6 A.2d 179, l 81 (Pa. 198 l ).
Notwithstanding that this issue is procedurally defaulted, we will attempt to substantively
"<.ldress it tu the extent that we are able to identify the claimed error. Defendant's Amended
Concise Statement does little to aid our review of this issue. Specifically, the Amended Concise
Statement fails to indicate where in the record a crimen falsi instruction was requested. ·
Therefore, the issue raised on appeal is also waived because Defendant's Amended Concise
Statement is too vague for the trial court to identify and address the issue to be raised on appeal.
1n other words, a Concise Statement which is too vague to allow the court to identify the issues
raised on appeal is the functional equivalent of no Concise Statement at all. See Commonwealth
v. Dowling, 778 A.2d 683, 687 (Pa. Super. 2001); Commonwealth v. Butler, 756 A.2d 55, 57 (Pa.
Super. 2000).
Despite this fatal omission, out scouring of the trial record reveals that trial counsel did
not request a crimen falsi instruction or objected to the Court's jury charge. Rather, during a
charging conference with the Court, trial counsel stated that he was not requesting a crimenfalsi
instruction with respect to Mr. Sadler. In fact, trial counsel received his requested instruction
a
that because Mr. Sadler will have a future parole hearing he may have bias or interest in the
5
outcome of this case. N.T., 10/2/15, al 93-94; N.T.� I 0/5/15, at 87-89. Accordingly, the Court
did not err by failing to instruct the jury before deliberation regarding a charge that was never
requested by the parties.
In light of the foregoing, we respectfully request that the Superior Court affirm the
. verdict of the jury and Defendant's judgment of sentence.
BY THE COURT:
·····-·
William P. Mahon, J.
6·