Com. v. Gist, K.

J-A14027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KAZAIR GIST
Appellant No. 1370 EDA 2014
Appeal from the Judgment of Sentence December 16, 2013
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003596-2012
BEFORE: BENDER, P.J.E., BOWES AND SHOGAN, JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 25, 2017
Kazair Gist appeals from the judgment of sentence of fifty-two to one-
hundred-and-four years imprisonment that the court imposed after
Appellant’s conviction for criminal homicide, robbery, conspiracy to commit
robbery, burglary, conspiracy to commit burglary, and possession of an
instrument of crime. We affirm.
The pertinent facts are as follows. On December 28, 2011, Appellant,
Jermaine Jackson, Breon Powell, Tatyana Henderson, and Danasia Bakr
traveled from Trenton, New Jersey to Levittown, Bucks County, in order to
rob Daniel DeGennaro at gunpoint. While casing Mr. DeGennaro’s residence,
Ms. Henderson placed a call to a phone number listed on a sign advertising
the sale of a used-car which was parked in the rear of Mr. DeGennaro’s
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home. Unbeknownst to the group, Mr. DeGennaro allowed a neighbor to
park the car in his back driveway. Ms. Henderson made contact with Mr.
DeGennaro’s neighbor, Nicholas Miller, and feigned interest in the car.
Shortly thereafter, Appellant, Mr. Jackson, and Mr. Powell entered Mr.
DeGennaro’s home. Ms. Henderson operated as a look-out, and Ms. Bakr
remained in the car. The three men entered Mr. DeGennaro’s residence
armed with a shotgun and a nine millimeter handgun, and intended to
recover money that the victim purportedly owed to Mr. Jackson. During a
scuffle, the conspirators fired two shots at Mr. DeGennaro, striking him once.
Mr. DeGennaro perished from the gunshot. The three men fled from the
scene, met with the women, and returned to New Jersey.
An investigation ensued. Mr. Miller reported to police that he received
a strange phone call regarding the used vehicle parked in Mr. DeGennaro’s
backyard shortly before his death. Investigating officers reviewed phone
records and call logs and established that Ms. Henderson had placed the call
to Mr. Miller from an area within 300 yards of Mr. DeGennaro’s house. A
review of Ms. Henderson’s phone records also indicated that she had
communicated with Ms. Bakr and Mr. Jackson around the time of the
incident. Further investigation placed those phones, as well as Mr. Powell’s
and Appellant’s phone, in close vicinity to Mr. DeGennaro’s home at the time
in question. Eventually, the police utilized wiretaps to monitor the cellular
handsets associated with Ms. Henderson, Ms. Bakr, and Mr. Jackson wherein
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they recorded evidence of the murder and attempted cover up. Ms. Bakr
also made statements to police implicating herself, Ms. Henderson, Mr.
Jackson, Mr. Powell, and Appellant, in the shooting death of Mr. DeGennaro.
Appellant was arrested on March 29, 2012. On August 10, 2012, he
filed an omnibus pre-trial motion seeking, in part, the suppression of wiretap
evidence obtained by the Commonwealth. Following numerous hearings, the
trial court denied that motion. After an extended trial, a jury acquitted
Appellant at count one of conspiracy to commit criminal homicide, and found
him guilty of the aforementioned offenses. On December 16, 2013, the
court imposed an aggregate sentence of fifty-two to one-hundred-and-four
years incarceration. On December 18, 2013, at the request of both parties,
the trial court filed an order amending its sentencing sheet since it
erroneously sentenced Appellant at count one, for which he had been
acquitted, instead of at count two, as it intended.
Appellant filed a post-sentence motion on December 27, 2013, and
following a hearing on April 3, 2014, the court denied that motion. Appellant
filed a notice of appeal to this Court, and he complied with the trial court’s
directive to file a Rule 1925(b) concise statement of errors complained of on
appeal. The court filed a Rule 1925(a) opinion, which largely relied upon its
reasoning from its opinion filed with the companion case to this appeal,
Commonwealth v. Powell, 1312 EDA 2014, (Pa.Super. 2017, filed __,
2017). This matter is now ready for our review.
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Appellant presents three questions for our consideration:
1. Did the suppression court err by refusing to suppress the
contents of a wiretap investigation, where the Commonwealth
conceded that it failed to minimize any text messages, and
also failed to minimize between two hundred and three
hundred calls, such that the wiretap investigation constituted
an impermissible general search under the U.S. and
Pennsylvania Constitutions?
2. Did the trial court err by allowing the Commonwealth to
introduce evidence that [Appellant] possessed a handgun,
where the Commonwealth itself conceded that it had no
evidentiary link between the handgun and the crime?
3. Did the trial court err by failing to strike purported “expert”
testimony about cell phone tower coverage where the
supposed “expert” failed to consider factors that he said were
necessary to form an opinion, and where said “expert” failed
to testify to a reasonable degree of scientific or engineering
certainty?
Appellant’s brief at 4.
At the outset, we must determine whether this matter is properly
before us. The Commonwealth contends that this matter should be quashed
due to Appellant’s failure to file a timely post-sentence motion, and by
extension, a timely notice of appeal. The Rules of Criminal Procedure
require a written post-sentence motion to be filed “no later than 10 days
after imposition of sentence.” Pa.R.Crim.P. 720(a)(1). The filing of a timely
post-sentence motion tolls the period in which a party has to file a notice of
appeal. Pa.R.Crim.P. 720(a)(2). However, an untimely post-sentence
motion does not operate to toll the period to file a timely notice of appeal,
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even if the trial court holds a hearing or otherwise takes action on the
motion. See Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super. 2003).
Here, the court imposed Appellant’s sentence in open court on
December 16, 2013. Two days later, on December 18, 2013, the court filed
an amended sentencing sheet at the request of both parties, since it had
erroneously sentenced Appellant at count one, for which he had been
acquitted, and not count two, as it intended. Appellant filed his post-
sentence motion on December 27, 2013. Thereafter, the court denied
Appellant’s post-sentence motion on April 3, 2014, and Appellant filed a
notice of appeal to this Court on April 24, 2014.
The Commonwealth argues that Appellant’s notice of appeal was
untimely filed since he filed his post-sentence motion on December 27,
2013, which was eleven days after his imposition of sentence in open court.
Thus, under the Commonwealth’s reasoning, Appellant’s post-sentence
motion was untimely, and he had thirty-days to file a notice of appeal to this
court, that is, until January 15, 2014. As Appellant did not file a notice of
appeal until April 24, 2014, the Commonwealth concludes that his appeal
was patently untimely, and this matter should be quashed.
Appellant counters this argument by alleging that the court imposed
his sentence on December 18, 2013, when it filed the amended sentencing
sheet. He maintains that his post-sentence motion was therefore timely
filed nine days following his imposition of sentence. Thus, he posits that his
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subsequent notice of appeal was timely filed within the thirty-day period
dictated by Pa.R.Crim.P. 720(a)(2).
Generally, “time commences to run in the sentencing context when
sentence is imposed, i.e., from the date sentence is pronounced in open
court.” Commonwealth v. Duffy, 143 A.3d 940, 942 (Pa.Super. 2016).
Here, however, the sentence imposed in open court at count one, on
December 16, 2013, was a legal nullity since Appellant had been acquitted
of that offense. Simply, the trial court had no power to sentence him at that
count. Under these circumstances, Appellant’s sentence was imposed on
December 18, 2013, when the court filed its amended sentencing sheet
correcting its error. As such, we find that Appellant’s post-sentence motion
was timely filed, and thus this matter is properly before us.
Turning to the merits of this appeal, we note preliminarily that we
disposed of issues nearly identical to Appellant’s first and third claimed
errors in the companion case to this matter involving Appellant’s co-
defendant. See Powell, supra, (finding wiretap minimization plan was
reasonable, Commonwealth did not materially deviate from minimization
plan, and thus, trial court did not err in denying Appellant’s motion to
suppress; and, finding that trial court did not err in permitting expert
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testimony regarding cell phone tower coverage) at *23-39. For the reasons
outlined therein, we find that Appellant is not entitled to relief.1
Appellant’s second issue alleges that the trial court erred in permitting
the Commonwealth to offer evidence that a nine millimeter handgun was
recovered from Appellant’s bedroom during a search of his residence. The
admissibility of evidence is a matter left to the sound discretion of the trial
court. Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017). We do
not disturb evidentiary rulings absent an abuse of that discretion. Id.Moreover, we have previously held that “[a] weapon not ‘specifically linked’
to the crime is generally inadmissible; however, the fact that ‘the accused
had a weapon or implement suitable to the commission of the crime charged
. . . is always a proper ingredient of the case for the prosecution.”
Commonwealth v. Christine, 125 A.3d 394, 400 (Pa. 2015) (citation
omitted). Further, “[a]ny uncertainty that the weapon is the actual weapon
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1
Appellant’s claim that the court erred in failing to suppress wiretap
evidence gathered against him includes an additional argument that the
Commonwealth failed to minimize text messages sent and received by the
wiretap targets. Although this particular claim was not directly disposed of
in our analysis in the companion case, we do not find Appellant’s argument
persuasive. From a practical standpoint, it is unclear how a text message
could be “minimized,” as the contents of such a message are either read or
not read by the monitoring officers. In order to determine whether the
message is pertinent to the investigation, the message must be read.
Appellant offers no argument as to how a text message should or could be
minimized for the purposes of the Wiretapping and Electronic Surveillance
Control Act, and we cannot fathom a procedure for doing so. Thus, we are
not persuaded by Appellant’s reasoning in this regard.
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used in the crime goes to the weight of the evidence.” Id. In order to
harness the exception, “the prosecution [must] lay a foundation that would
justify an inference by the finder of fact of the likelihood that the weapon
was used in the commission of the crime.” Id.The trial court determined that the nine millimeter handgun was
admissible pursuant to the so-called “similar weapon exception.” Christine,
supra. The court noted that the firearm was discovered during a search of
Appellant’s residence, and that the search uncovered other evidence tying
Appellant to the handgun and Mr. DeGennaro’s murder. It highlighted trial
testimony proffered by the Commonwealth’s firearm and tool mark expert,
John Finor, which discussed a nine millimeter firing cartridge and a bullet
slug discovered at the scene of the crime. The court recognized that Mr.
Finor was unable to connect the slug or cartridge to the weapon discovered.
Nevertheless, it found that the nine millimeter handgun recovered from
Appellant’s room “might have been used on the night of the murder.” Trial
Court Opinion, 1/22/16, at 77. Thus, the court held that the handgun was
properly admitted into evidence.
Appellant assails the trial court’s ruling, arguing that the evidence
proffered by the Commonwealth did not justify the inference that the
handgun was used in the commission of the crime. He argues that Mr. Finor
failed to link either the slug or the cartridge to the gun retrieved from the
search of Appellant’s residence. Further, he insists that the slug could not
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be definitively linked to the nine millimeter cartridge casing. Appellant
distinguishes this case from Commonwealth v. Brown, 71 A.3d 1009(Pa.Super. 2013), where we affirmed the admission of a .22 caliber weapon
where it was undisputed that the fatal bullet was fired from a .22 caliber
gun, and the bullet recovered shared characteristics with a test-bullet fired
from the disputed evidence. He asserts that, unlike in Brown, Mr. Finor’s
testimony only created a speculative connection to the firearm recovered
from Appellant’s room. Finally, Appellant contends that, even if the gun was
relevant, its probative value was outweighed by the danger of unfair
prejudice since it portrayed Appellant as an individual who “wields firearms.”
Appellant’s brief at 21. As a result of this error, Appellant argues that he
should be granted a new trial.
We find that the trial court did not abuse its discretion in permitting
the Commonwealth to offer evidence of the nine millimeter handgun
discovered in Appellant’s bedroom since the Commonwealth laid a sufficient
foundation that would justify an inference by the fact-finder that it was used
during Mr. DeGennaro’s murder. Christine, supra. Instantly, the
Commonwealth proffered evidence that a nine millimeter bullet casing was
discovered in proximity to the victim. Further, it offered evidence of a bullet
slug which was recovered from a nearby wall. Mr. Finor opined that the
projectile fell within the “9 millimeter/38 class,” and that it could be fired
from a nine millimeter handgun. N.T. Trial, 9/9/13, at 254. Further, he
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stated that the cartridge recovered from the crime scene was a nine
millimeter firing cartridge, and that it “could have been fired from a variety
of different firearms[.]” N.T. Trial, 9/10/13, at 49. Nevertheless, Mr. Finor
conceded that he could not match the bullet to the cartridge. Id. at 74.
The Commonwealth’s evidence of a nine millimeter cartridge in the
kitchen and a slug lodged in a nearby wall tended to show that a nine
millimeter weapon was employed in the shooting of the victim. That Mr.
Finor could not definitely link these items to each other goes to the weight of
the handgun evidence recovered from Appellant’s residence, not its
admissibility. Christine, supra. Indeed, we recognized this principle in
Brown, supra, noting
A weapon shown to have been in a defendant’s possession may
properly be admitted into evidence, even though it cannot
positively be identified as the weapon used in the commission of
a particular crime, if it tends to prove that the defendant had a
weapon similar to the one used in the perpetration of the crime.
Any uncertainty that the weapon is the actual weapon used in
the crime goes to the weight of such evidence.
Brown, supra at 1014 (citing Commonwealth v. Williams, 640 A.2d
1251, 1260 (Pa. 1994)).
Insofar as the Commonwealth proffered evidence that a nine
millimeter firearm could have been used in the commission of the crime,
and that evidence was highly probative of Appellant’s participation in the
crime, the trial court did not abuse its discretion in subsequently permitting
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it to offer evidence of the nine millimeter firearm discovered in Appellant’s
bedroom. Hence, this claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2017
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