Com. v. Reese, G

J.S26039/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
GREGORY REESE, :
:
Appellant : No. 163 EDA 2013
Appeal from the Judgment of Sentence December 14, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0015439-2008
BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 24, 2014
Appellant, Gregory Reese, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas after a jury trial,
which followed two hung juries, and his convictions for robbery,1
conspiracy,2 burglary,3 and aggravated indecent assault.4 Appellant
challenges the admission of certain items of evidence, purports to raise a
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3701(a)(1)(ii).
2
18 Pa.C.S. § 903.
3
18 Pa.C.S. § 3502(a).
4
18 Pa.C.S. § 3125(a)(1).
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Pa.R.Crim.P. 600 issue, and contends his convictions were against the
sufficiency and weight of the evidence. We affirm.
We state the facts in the light most favorable to the Commonwealth as
the verdict-winner. Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa.
2008) (citations omitted). On May 18, 2008, after leaving her bedroom
window open, the victim fell asleep on her living room couch. On May 19,
2008, at 1:00 a.m., she awoke to hear the bedroom window shades moving,
entered her bedroom, and confronted Earl Hall, who pointed a gun at her.
Hall then opened her front door to let Appellant enter. The two men
ransacked her apartment in an unsuccessful attempt to find drugs. Hall left
the apartment while Appellant stayed with the victim. Hall returned with a
third person named Brian; all three men began to search the victim’s home
again. Eventually, Appellant told the two other men to leave. After the two
men left, Appellant forced the victim to remove her clothes, sexually
assaulted her, and then left the apartment around 3:00 a.m. The three men
stole approximately $200, a pair of cufflinks, and a gold lion’s head
necklace.
The victim called several people, including her mother. The victim
informed her mother that three people broke into her home and she was
forced to remove her clothes. The victim then contacted police.
That same day—May 19, 2008—around 10:30 a.m., police stopped a
car because it was parked on the wrong side of the median. N.T. Trial,
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3/15/12, at 109-10. Hall was driving the car, Appellant was in the front
passenger seat, and a third individual was in the back seat. Id. at 111. The
police discovered the vehicle had a stolen license plate and Appellant had an
open bench warrant as a scofflaw. The police arrested Appellant and
discovered the victim’s gold lion’s head necklace in his pants pocket.5
Meanwhile, the police had responded to the victim’s call and processed
her apartment for physical evidence. The police recovered, inter alia, Hall’s
palm prints. The victim eventually identified Hall and Appellant from photo
arrays, and the police arrested both.
Appellant’s first two trials resulted in hung juries. After the second
mistrial, the court ordered, on February 22, 2011, that the case be listed for
a third trial on June 13, 2011. Order, 2/22/11. On June 13, 2011, the court
granted Appellant’s request for a continuance and a new trial date was set
for October 24, 2011. On October 24, 2011, the court sua sponte continued
the case to November 28, 2011. On November 28, 2011, the
Commonwealth requested a continuance because a witness was unavailable.
Over Appellant’s objection, the court granted the Commonwealth’s request
and scheduled trial for March 12, 2012. On March 12, 2012, the court again
sua sponte continued the case to the next day, because no jurors were
available.
5
The police also arrested Hall, who had an open bench warrant, and the
third individual for a narcotics violation.
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On March 13, 2012, prior to jury selection for the third trial, Appellant
moved to suppress evidence that the vehicle had a stolen license plate but
agreed that the Commonwealth could introduce the fact that Appellant had
the victim’s necklace. N.T., 3/13/12, at 6-7. The court granted Appellant’s
motion, reasoning that the fact that the license plate was stolen was
irrelevant. Id. at 7. The court also permitted the Commonwealth to
introduce evidence that Hall was driving the car and the stop occurred more
than seven hours after Appellant left the victim’s apartment. Id. Appellant
did not move to suppress the entirety of the stop and did not invoke Pa.R.E.
404(b), the admissibility of prior bad acts, as a basis for suppression.
At the third trial, Detective Harry Young was unavailable to testify for
the Commonwealth as he had retired due to an illness that also prevented
him from appearing in court. At the first two trials, Detective Young testified
about, inter alia, the victim’s demeanor and identification of Appellant from a
photo array. Because of Detective Young’s unavailability, the parties
stipulated that the Commonwealth could read into evidence selected portions
of his prior testimony, which encompassed over fifty pages of the instant
trial transcript. N.T., 3/15/12, at 5, 10-61. Prior to the reading, however,
Appellant objected to certain portions of Detective Young’s testimony, but
did not object on the basis that the testimony was used to rehabilitate the
victim’s testimony. N.T., 3/13/12, at 22-23, 28-29, 41-53.
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Also at the third trial, the victim’s mother testified that the victim
called her on May 19, 2008, to inform her about the attack. N.T., 3/15/12,
at 97-101. Appellant objected, arguing that such testimony was cumulative
in nature, but did not object on the basis of hearsay. Id. at 98.
Subsequently, a jury found Appellant guilty on March 16, 2012.
On December 14, 2012, the court sentenced Appellant to an aggregate
sentence of ten to twenty years’ incarceration. Appellant did not file a post-
sentence motion. Appellant filed a timely notice of appeal on January 9,
2013, and timely filed a court-ordered Pa.R.A.P. 1925(b) statement. The
trial judge, the Honorable Carolyn Engel Temin, did not prepare a decision
per Rule 1925(a), as she had retired from the bench.
Appellant raises the following issues:
Whether the trial court erred by permitting the
Commonwealth to introduce certain hearsay statements
about [Appellant] through the unavailable witness of
Detective Young?
Whether the trial court also erred by permitting evidence
that . . . Appellant was stopped in a car by the police on a
date separate [sic6] from the robbery of [the victim]?
Whether the trial court erred in permitting the testimony of
[the victim’s mother], which was hearsay and cumulative
in nature?
Whether the trial court erred in denying . . . Appellant’s
Rule 600 motion?
6
As noted above, Appellant was apprehended on May 19, 2008, the same
day of the robbery. N.T., 3/15/12, at 109-10.
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Whether the verdict was against the weight of the
evidence and insufficient as a matter of law where the only
identification testimony was that of [the victim] which was
full of inconsistencies, and where she only viewed
[Appellant] for a short period of time under stressful
conditions?
Appellant’s Brief at 5 (reordered to facilitate disposition).
In support of his first issue, Appellant asserts the court erred by
permitting the Commonwealth to read the prior testimony of Detective
Young into the record. Specifically, Appellant claims Detective Young
testified about statements made by the victim and that such statements
rehabilitated the victim’s testimony. He also suggests that Detective Young
was not subject to cross-examination. We hold Appellant is due no relief.
“The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed only upon
a showing that the trial court abused its discretion.” Commonwealth v.
Reid, 811 A.2d 530, 550 (Pa. 2002) (citation omitted). Pennsylvania Rule
of Evidence 804 governs the admission of prior testimony:
(b) The Exceptions. The following are not excluded by
the rule against hearsay if the declarant is unavailable as a
witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful
deposition, whether given during the current proceeding or
a different one; and
(B) is now offered against a party who had—or, in a
civil case, whose predecessor in interest had—an
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opportunity and similar motive to develop it by direct,
cross-, or redirect examination.
Pa.R.E. 804(b)(1)(A)-(B).7 Failure to lodge a timely objection results in
waiver of the claim on appeal. Commonwealth v. Murray, 83 A.3d 137,
155 (Pa. 2013). “[I]f the ground upon which an objection is based is
specifically stated, [then] all other [unstated] reasons for [the evidence’s]
exclusion are waived.” Commonwealth v. Arroyo, 723 A.2d 162, 170 (Pa.
1999) (citations omitted); see also Pa.R.A.P. 302.
In this case, the parties stipulated that the Commonwealth could
read into evidence Detective Young’s testimony. N.T., 3/15/12, at 5.
Contrary to Appellant’s assertion, Detective Young was subject to cross-
examination at the prior trials. See, e.g., id. at 58. Furthermore, although
Appellant made several objections, see, e.g., N.T., 3/13/12, at 22-23, he
did not object on the basis that the detective’s testimony impermissibly
rehabilitated the victim’s testimony. Accordingly, because he failed to raise
this particular basis, Appellant has waived the claim, see Arroyo, 723 A.2d
at 170, and thus has not established an abuse of discretion by the trial
court. See Murray, 83 A.3d at 155; Reid, 811 A.2d at 550.8
7
The present version of Rule 804 is materially identical to the version in
existence at the time of Appellant’s third trial.
8
Moreover, we note Appellant failed to identify which statements within
Detective Young’s fifty pages of testimony impermissibly rehabilitated the
victim’s testimony.
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For his second issue, Appellant argues that the trial court erred by
admitting evidence that he was stopped in a car after robbing and assaulting
the victim. He suggests that it violated Pa.R.E. 404(b) and had no probative
value. Appellant opines that regardless, the prejudice to him outweighed
any probative value the evidence may have had. We hold Appellant is due
no relief.
As noted above, the standard of review is abuse of discretion. Reid,
811 A.2d at 550. “[A]ppellate review of an order denying suppression is
limited to examination of the precise basis under which suppression initially
was sought; no new theories of relief may be considered on appeal.”
Commonwealth v. Little, 903 A.2d 1269, 1272-73 (Pa. Super. 2006)
(citations omitted). Instantly, Appellant did not move to suppress the stop
based on Pa.R.E. 404(b). See N.T., 3/13/12, at 7. In fact, Appellant limited
his motion solely to the fact that the license plates were stolen and conceded
the Commonwealth could introduce that he had the victim’s necklace. Id.Appellant cannot invoke Rule 404(b) for the first time on appeal and thus we
may not consider it. See Little, 903 A.2d at 1272-73.
Appellant, for his next issue, challenges the testimony of the victim’s
mother as both hearsay and cumulative in nature. He complains the
mother’s testimony made the victim’s testimony more credible. Appellant
opines that in his last two trials, the victim’s testimony alone was not
credible. We hold Appellant has not established entitlement to relief.
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The standard of review is abuse of discretion. Reid, 811 A.2d at 550.
Pennsylvania Rule of Evidence 403 governs the exclusion of cumulative
evidence:
The court may exclude relevant evidence if its probative
value is outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.
Pa.R.E. 403. “[C]umulative evidence is additional evidence of the same
character as existing evidence and that supports a fact established by the
existing evidence.’” Commonwealth v. G.D.M., Sr., 926 A.2d 984, 989
(Pa. Super. 2007) (citation omitted). “Evidence that bolsters, or
strengthens, existing evidence is not cumulative evidence, but rather is
corroborative evidence.” Id.Instantly, with respect to Appellant’s challenge to the testimony of the
victim’s mother at trial, he objected solely on the basis that her testimony
was cumulative. N.T., 3/15/12, at 98. Thus, Appellant waived any objection
on the basis of hearsay. See Pa.R.A.P. 302; Arroyo, 723 A.2d at 170. With
respect to whether the mother’s testimony was cumulative, Appellant did not
identify the prior testimony that would render the mother’s testimony
cumulative. Regardless, the mother’s testimony was corroborative, and not
cumulative, evidence as she was relaying what the victim told her over the
phone. N.T., 3/15/12, at 97-101. Further, even if such testimony was
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cumulative, Appellant has not established entitlement to a new trial. See
generally Commonwealth v. Simmons, 662 A.2d 621, 634 (Pa. 1995).
We next address Appellant’s Rule 600 challenge. He claims that the
four-year period between his arrest and conviction, which included two hung
jury trials, exceeded the 120-day timespan the Commonwealth had to retry
him. In support, Appellant quotes from the portion of the trial transcript
discussing his oral Rule 600 motion. Appellant’s Brief at 16-20. Appellant
asserts that the quoted excerpt from the transcript “and marked
quarter[-]session file that was moved into evidence reveals multiple periods
of time . . . where the 365 day period was exceeded.” Id. at 21. We hold
that Appellant is not entitled to relief.
In evaluating Rule 600 issues, our standard of review of
a trial court’s decision is whether the trial court abused its
discretion. Judicial discretion requires action in conformity
with law, upon facts and circumstances judicially before
the court, after hearing and due consideration.
Accordingly, in reaching our determination, we consider
whether the evidence adduced at the Rule 600 hearing,
viewed in the light most favorable to the prevailing party,
supports the trial court’s findings, and whether those
findings, in turn, conform with applicable law.
Additionally, when considering the trial court’s ruling,
this Court is not permitted to ignore the dual purpose
behind Rule 600. Rule 600 serves two equally important
functions: (1) the protection of the accused’s speedy trial
rights, and (2) the protection of society. 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
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prosecution delayed through no fault of the
Commonwealth.
Commonwealth v. Trippett, 932 A.2d 188, 196 (Pa. Super. 2007)
(formatting, citations, and quotation marks omitted).
We state the Rule 600 in effect at the time of this case.9
When a trial court has granted a new trial and no appeal
has been perfected, the new trial shall commence within
120 days after the date of the order granting a new trial, if
the defendant is incarcerated on that case. If the
defendant has been released on bail, trial shall commence
within 365 days of the trial court’s order.
Pa.R.Crim.P. 600(D)(1). “[W]hile violations of Rule 600(D)(1)’s 365-day
retrial provision require dismissal of the charges against a defendant, no
such relief is due for violations of Rule 600(D)(1)’s 120-day retrial provision.
The only remedy available to a defendant who has incurred a 120-day
violation is release on nominal bail.” Commonwealth v. Montgomery,
861 A.2d 304, 309 (Pa. Super. 2004) (citations omitted). In other words, as
long as the Commonwealth retries an incarcerated defendant within 365
days of the order granting a new trial, there is no Rule 600 violation. Id.When calculating the running of time under Rule 600, the following
relevant periods of delay must be excluded:
(2) any period of time for which the defendant
expressly waives Rule 600;
9
Amendments to Rule 600 were adopted on October 1, 2012, and made
effective on July 13, 2013. This case, however, is governed by the version
of Rule 600 in effect at the time of Appellant’s trial.
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(3) such period of delay at any stage of the proceedings
as results from:
(a) the unavailability of the defendant or the
defendant’s attorney;
(b) any continuance granted at the request of the
defendant or the defendant’s attorney.
Pa.R.Crim.P. 600(C)(2)-(3).
In addition to delays “excludable” under the Rule, a court must
consider “excusable” delays. Commonwealth v. Hunt, 858 A.2d 1234,
1241 (Pa. Super. 2004) (en banc). “‘Excusable delay’ is not expressly
defined in Rule 600, but the legal construct takes into account delays which
occur as a result of circumstances beyond the Commonwealth’s control and
despite its due diligence.” Id. at 1241 (citing Pa.R.Crim.P. 600(G)). “Due
diligence is a fact-specific concept that must be determined on a case-by-
case basis. [It] does not require perfect vigilance and punctilious care, but
rather a showing by the Commonwealth that a reasonable effort has been
put forth.” Id. at 1241–42 (citations omitted). When seeking excusable
time, the Commonwealth bears the burden of establishing, by a
preponderance of evidence, that it exercised due diligence.
Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012).
As a prefatory matter, Appellant has not identified any disputed time
period or analyzed, let alone cite, any legal authority. Regardless, because
the court ordered a new trial on February 22, 2011, the mechanical run-date
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is February 22, 2012. See Pa.R.Crim.P. 600(D)(1); Montgomery, 861 A.2d
at 309. Appellant, however, was tried on March 13, 2012. Appellant
requested a continuance on June 13, 2011, which the court granted and set
a new trial date of October 24, 2011, a delay of 133 days chargeable against
Appellant. Thus, after we add 133 days, the adjusted run-date is July 4,
2012, a date well after March 13, 2012. We therefore would discern no
abuse of discretion or error of law. See Trippett, 932 A.2d at 196.
We last address Appellant’s challenge to the sufficiency and weight of
the evidence. Appellant contends that the victim’s identification testimony
was “unbelievable” and “full of inconsistencies.” Appellant’s Brief at 22, 25.
Appellant, we hold, is due no relief.
As a prefatory matter, an argument challenging inconsistent
identification testimony is an argument that “goes to the credibility of the
witness’s testimony, and is, therefore, not an attack on the sufficiency of the
evidence, but an allegation regarding the weight it should have been
afforded.” Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super.),
appeal denied, 76 A.3d 538 (Pa. 2013).
A challenge to the weight of the evidence “concedes that there is
sufficient evidence to sustain the verdict.” Commonwealth v. Widmer,
744 A.2d 745, 751 (Pa. 2000). This Court cannot “entertain a challenge to
the weight of the evidence since [its] examination is confined to the ‘cold
record.’” Commonwealth v. Brown, 648 A.2d 1177, 1191 (Pa. 1994)
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(citation omitted). We only review whether the trial court abused its
discretion when it evaluated the challenge. Id. (limiting review of weight of
evidence to whether trial court abused discretion and not assessing
credibility of witnesses). For these reasons, a challenge to the weight of
evidence may not be raised for the first time on appeal. Id.; see also
Pa.R.A.P. 607(a). Thus, if the issue is not raised with the trial court initially,
it is waived. Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa.
2009).
Instantly, Appellant asserts that the victim’s testimony was
unbelievable and not credible. Appellant’s Brief at 22, 25. His argument
challenges the weight of the evidence. See Griffin, 65 A.3d at 939.
Appellant, however, did not challenge the weight of the evidence with the
trial court, and thus, he has waived it on appeal. See Sherwood, 982 A.2d
at 494; Brown, 648 A.2d at 1191. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2014
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