Com. v. Guggenheimer, L.

J-S34028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUCAS GUGGENHEIMER :
:
Appellant : No. 1430 WDA 2021
Appeal from the PCRA Order Entered November 2, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0001624-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUCAS GUGGENHEIMER :
:
Appellant : No. 1431 WDA 2021
Appeal from the PCRA Order Entered November 2, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0001637-2016
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: NOVEMBER 14, 2022
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S34028-22
Lucas Guggenheimer (Appellant) appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541–9546.1 We affirm.
Appellant’s charges at the above dockets were consolidated for trial. He
was convicted of one count of third-degree murder, two counts of recklessly
endangering another person, and two counts of carrying a firearm without a
license (CFWL). He was acquitted of one count each of aggravated assault,
attempted murder, and robbery. This Court explained:
On October 11, 2015, Pittsburgh police officers arrived at a scene
of a 911 call in the Arlington section of Pittsburgh and found the
victim, Justin Granda, deceased on the sidewalk. He had been
shot several times with both 9 mm and .32 caliber bullets.
While investigating the murder, officers checked Granda’s cell
phone records and identified Sean Sperber as a witness. Granda
called Sperber on October 10, 2015, to set up a marijuana buy.
Appellant and Granda met Sperber outside of his apartment.
Wary of conducting a drug deal with his wife and child present,
Sperber led Appellant and Granda into his brother’s apartment on
the first floor of the same building.
After discussing the marijuana purchase, Appellant asked to use
the bathroom. While walking to the bathroom with Sperber,
Appellant pulled out a gun and pointed it at Sperber. A fight
ensued during which Appellant shot Sperber’s brother Seth (who
came out of his bedroom when the fight started) in the upper
thigh. After both Appellant and Granda were removed from the
____________________________________________
1 Appellant has complied with the Pennsylvania Supreme Court’s directive in
Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018) (“where a single
order resolves issues arising on more than one docket, separate notices of
appeal must be filed for each case.”). On December 29, 2021, this Court
consolidated the appeals sua sponte.
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apartment, Sean Sperber called 911. Police recovered Granda’s
cell phone and spent 9 mm casings from the scene.
Johanna Jones [(Jones)], a cab driver, testified that she first
picked up Appellant (who was wearing a gray hoody) and another
man, Amirae Benton. She next drove Benton and Appellant to
Granda’s house, where she picked him up. Jones then drove the
three men to the Sperber residence in the Turtle Creek area. She
waited in the cab with Benton while Appellant and Granda entered
the apartment.
After the fight with the Sperber brothers, Appellant and Granda
returned to the cab hurried, out of breath, and worked up.
Appellant told Jones to drive them to the Arlington section of
Pittsburgh. While en route, Granda complained about having lost
his cell phone at the Sperber residence. Jones dropped the three
men off on Fernleaf Street in Arlington. Jones’s testimony was
corroborated by cell phone location records that provided evidence
of her travel path.
Luis Rodriguez, who lives on Arlington Avenue near where
Granda’s body was found, testified that on the night of the
murder, he heard screaming. When he looked outside, he saw
two men, one of whom was wearing a hoody, chasing another
man down the street and firing guns at him. The men were
running toward his house and he saw the person being chased fall
down. The two other men stood over the victim’s body shooting.
After police officers arrived at the scene, they found Granda
deceased on the sidewalk. Firearm experts confirmed that the 9
mm shell casings recovered at the scene were fired from the same
handgun used to shoot Seth Sperber. Additionally, investigators
retrieved surveillance footage from two local businesses that
revealed Appellant, Granda, and Benton walking toward the
location where police found Granda’s body.
Appellant was arrested on October 30, 2015, and charged with
homicide of Granda, shooting Seth Sperber, and related charges.
This matter proceeded to a jury trial on January 26, 2017.
At trial, Appellant offered the testimony of Loretta Sizemore, an
eyewitness. She testified that she saw a light blue car on Arlington
Avenue before the shooting and saw a slim African American man
with short hair run into the car after the shooting.
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Appellant also testified on his own behalf. He stated that he dealt
marijuana and had contacted Granda in order to buy from
Granda’s associate, Sean Sperber. Appellant explained that he
and another dealer, Stone [Appellant maintained he did not know
Stone’s full name], often combined money to buy larger quantities
of marijuana at lower prices. Appellant claimed that Stone gave
him $800 toward the marijuana that Appellant planned to
purchase from Sperber.
Appellant stated that when he arrived at Sperber’s residence, he
attempted to purchase a half a pound of marijuana for $1600. He
claimed that a fight started after Sperber tried to pass off six
ounces of marijuana as a half-pound, and that although the gun
fired during the struggle, he did not intend to fire it.
After fleeing the Sperber residence, Appellant testified that he
took a cab with Benton and Granda to Arlington Avenue to meet
Stone. Appellant told Stone that the deal went bad and he lost
the money. He claims to have given Stone the gun and promised
to pay him another $400 to pay him back. He testified that Stone
then accused Granda of setting up a bad deal, and started
shooting at Granda. Appellant claimed to have run away when
the shooting started.
At the conclusion of trial, Appellant was convicted of third-degree
murder, carrying a firearm without a license [CFWL], and two
counts of recklessly endangering another person. On May 4,
2017, the trial court sentenced him to an aggregate sentence of
not less than twenty-four nor more than forty-eight years of
imprisonment.
Commonwealth v. Guggenheimer, 802 WDA 2017, at *1-2 (Pa. Super.
Sep. 24, 2019) (record citations and footnote omitted).
On September 24, 2019, this Court affirmed Appellant’s judgment of
sentence. Id. Appellant did not petition the Pennsylvania Supreme Court for
allowance of appeal.
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On August 6, 2020, Appellant filed his PCRA petition pro se. The PCRA
court appointed counsel, who filed an amended PCRA petition on May 14,
2021. On October 6, 2021, the PCRA court filed notice of intent to dismiss
the petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed a
response on October 26, 2021. The PCRA court dismissed the petition on
November 2, 2021. Appellant timely appealed. He presents two questions
for our review:
I. Did the PCRA court err in denying an evidentiary hearing under
Pa.R.Crim.P. 908(A)(2) when, among other things, [the PCRA
court] found that “Petitioner’s trial strategy was to seek a
complete acquittal,” which was not a fact of record?
II. Did trial counsel, contrary to the PCRA court’s conclusion,
render ineffective assistance by failing to make a motion for
judgment of acquittal as to the [CFWL] charge?
Appellant’s Brief at 4.
We review the PCRA court’s denial of relief by “examining whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.[T]he PCRA court has the discretion to dismiss a petition without
a hearing when the court is satisfied “that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by any further proceedings.” Pa.R.Crim.P.
909(B)(2). “[T]o obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
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he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.” Commonwealth v.
D’Amato, 856 A.2d 806, 820 (Pa. 2004).
Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
Appellant argues ineffectiveness of trial counsel. The Pennsylvania
Supreme Court has stated:
It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. Commonwealth v. Cooper, 941 A.2d
655, 664 (Pa. 2007). To overcome this presumption, a petitioner
must establish that: (1) the underlying substantive claim has
arguable merit; (2) counsel did not have a reasonable basis for
his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, “that is,
a reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.” Id. A
PCRA petitioner must address each of these prongs on appeal.
See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
2007) (explaining that “appellants continue to bear the burden of
pleading and proving each of the Pierce elements on appeal to
this Court”). A petitioner’s failure to satisfy any prong of this test
is fatal to the claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
modified). “Counsel cannot be found ineffective for failing to pursue a
baseless or meritless claim.” Commonwealth v. Taylor, 933 A.2d 1035,
1042 (Pa. Super. 2007) (citation omitted).
Appellant first argues that trial counsel was ineffective for failing to
request a jury instruction on involuntary manslaughter. See Appellant’s Brief
at 14-37. We are constrained to find waiver.
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Appellant made the jury instruction argument in his amended PCRA
petition. Amended PCRA Petition, 5/14/21, at 19-33. However, he did not
raise the issue in his Rule 1925(b) concise statement, where he claimed: “The
PCRA court erred in denying an evidentiary hearing under Pa.R.Crim.P.
908(A)(2) when, among other things, it found that ‘Petitioner’s trial strategy
was to seek a complete acquittal,’ which is not a fact of record.” Rule 1925(b)
Statement, 12/20/21, at 2 (unnumbered). This Rule 1925(b) claim mirrors
the first question Appellant presents on appeal. See Appellant’s Brief at 4.
Yet in his corresponding argument section of his brief, Appellant reverts to the
issue in his amended PCRA petition regarding trial counsel’s ineffectiveness
for failing to request a jury instruction for involuntary manslaughter. Id. at
14-38. The PCRA court did not address this issue in its opinion. Under Rule
1925(b)(4)(vii), an appellant waives any issue not raised in the Rule 1925(b)
statement. We have explained that the statement “must be sufficiently
‘concise’ and ‘coherent’ such that the trial court judge may be able to identify
the issues to be raised on appeal.” Commonwealth v. Vurimindi, 200 A.3d
1031, 1038 (Pa. Super. 2018). Thus, Appellant’s first issue is waived.
Waiver notwithstanding, Appellant would not be entitled to relief.
Appellant argues trial counsel should have sought a jury instruction on
involuntary manslaughter. He maintains “there was ample evidence in the
record that made involuntary manslaughter an issue[.]” Appellant’s Brief at
14. Appellant cites his trial testimony stating that he told Stone he lost Stone’s
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money, and at the same time gave the gun to Stone, who in turn shot Granda.
Id. Appellant asserts his “lack of aggressive action against the victim,” does
not “preclude the application of an involuntary-manslaughter instruction.” Id.
at 33. He further claims the PCRA court “fabricated” trial counsel’s strategy
of seeking “a complete acquittal” as the basis for finding counsel was not
ineffective. Id. at 28.
The Commonwealth disagrees, and emphasizes that the majority of
cases cited by Appellant are federal cases applying federal law.
Commonwealth Brief at 17-22. The Commonwealth points out that the few
Pennsylvania cases Appellant cites do not “stand for the proposition that a
defendant is entitled to an involuntary manslaughter instruction where he has
specifically denied his actions were the proximate cause of the victim’s death.”
Id. at 22. The Commonwealth explains the “Supreme Court has ‘consistently
declined to hold that trial counsel was ineffective for failing to advance a
defense that directly and irreconcilably conflicted with the accused’s claims of
innocence.’” Id. at 23 (quoting Commonwealth v. Spotz, 47 A.3d 63, 91
(Pa. 2012)).
Here, the PCRA court opined:
Trial [c]ounsel did not render ineffective assistance of counsel for
failing to request a jury instruction on the offense of involuntary
manslaughter. [Appellant’s] defense in this case was that he did
not kill the victim and took no aggressive action against the victim
at all. [Appellant’s] trial strategy was to seek a complete
acquittal. Accordingly, under these circumstances, a jury
instruction on involuntary manslaughter would not have been
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appropriate and [t]rial [c]ounsel cannot be considered ineffective
for failing to request such an instruction.
Rule 907 Notice, 10/6/21, at 1 (unnumbered). We discern no error.
The Crimes Code provides:
A person is guilty of involuntary manslaughter when as a direct
result of the doing of an unlawful act in a reckless or grossly
negligent manner, or the doing of a lawful act in a reckless or
grossly negligent manner, he causes the death of another person.
18 Pa.C.S.A. § 2504(a).
With respect to jury instructions,
Defendants are generally entitled to instructions that they have
requested and that are supported by the evidence.
Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586, 607
(2007); Commonwealth v. DeMarco, 570 Pa. 263, 809 A.2d
256, 261 (2002) (“Where a defendant requests a jury instruction
on a defense, the trial court may not refuse to instruct the jury
regarding the defense if it is supported by evidence in the
record.”); Commonwealth v. Browdie, 543 Pa. 337, 671 A.2d
668, 673–74 (1996) (“[W]e hold that a trial court shall only
instruct on an offense where the offense has been made an issue
in the case and where the trial evidence reasonably would support
such a verdict.”). We have explained that the reason for this rule
is that “instructing the jury on legal principles that cannot
rationally be applied to the facts presented at trial may confuse
them and place obstacles in the path of a just verdict.”
Commonwealth v. Taylor, 583 Pa. 170, 876 A.2d 916, 925–26
(2005) (quoting Commonwealth v. White, 490 Pa. 179, 415
A.2d 399, 400 (1980)). A criminal defendant must, therefore,
“establish that the trial evidence would ‘reasonably support’ a
verdict based on the desired charge and may not claim
entitlement to an instruction that has no basis in the evidence
presented during trial.” Id. (citing Commonwealth v. Carter,
502 Pa. 433, 466 A.2d 1328, 1332–33 (1983)).
Commonwealth v. Hairston, 84 A.3d 657, 668 (Pa. 2014) (emphasis
added). “An instruction on involuntary manslaughter is not required unless it
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has been made an issue in the case and the facts would support such a
verdict.” Commonwealth v. Fletcher, 986 A.2d 759, 791 (Pa. 2009).
In Appellant’s direct appeal, this Court found the evidence sufficient to
sustain his conviction of third-degree murder. We explained:
The evidence was heavily tilted towards Appellant’s culpability.
The evidence against Appellant included Appellant’s concession
that he had possessed one of the guns used to kill Granda, and
had recently shot (albeit allegedly unintentionally) Seth Sperber
with it, as well as eyewitness accounts describing a person dressed
similarly to Appellant chasing and shooting at Granda. Against
this evidence, Appellant can point only to his own self-serving
testimony that he not only gave the gun to a person he could not
identify by name [beyond “Stone”], but that this person then
proceeded to use the gun to kill Granda.
Guggenheimer, supra, at *4. As we found on direct appeal, the evidence
did not support a charge of involuntary manslaughter.
Appellant’s claim also lacks legal support. Appellant cites federal cases
interpreting federal law. See Appellant’s Brief, at 17-20. We are not bound
by federal decisions. See Commonwealth v. Giffin, 595 A.2d 101, 107 (Pa.
Super. 1991) (“In the absence of a ruling on a particular question by the
United States Supreme Court, the decision of a federal intermediate appellate
panel, much less that of a federal district court, is not binding on Pennsylvania
courts.” (citations omitted)). Appellant was convicted under Pennsylvania
law, and the federal cases he cites provide no basis for relief.
The four Pennsylvania cases Appellant cites are also unavailing. See
Appellant’s Brief at 20-26. In Commonwealth v. Diventura, 411 A.2d 815(Pa. 1979), the defendant admitted to strangling his wife to the point of
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unconsciousness and putting a noose around her neck. Diventura, 411 A.2d
at 818. However, the defendant also claimed his wife was alive when he left
the scene; he loved her; and he did not want to kill her. Id. at 818. Under
this scenario, we concluded that defense counsel was ineffective for not
requesting a jury instruction on involuntary manslaughter. Id.
In Commonwealth v. Garcia, 378 A.2d 1199, 1202 (Pa. 1977), the
defendant shot the victim during a melee in a bar; the testimony about the
shooting was inconsistent and the defendant testified he did not intend to
shoot the victim. Therefore, the defendant was entitled to a jury charge on
involuntary manslaughter. Id. at 1208-1210.
In Commonwealth v. Moore, 344 A.2d 850 (Pa. 1975), the defendant
testified she was trying to leave her violent husband and put his gun in her
purse for protection. Id. at 852. When she tried to leave, a struggle ensued,
and she shot her husband as they fought for the gun. Id. The Supreme Court
held that the trial court erred in not consolidating charges of involuntary
manslaughter with murder and voluntary manslaughter charges. Id.
Lastly, in Commonwealth v. Bender, 2020 WL 3263715 (Pa. Super.
June 16, 2020) (unpublished memorandum), the defendant drove after a car
containing his infant child, the child’s mother, and several other people. Id.
at *1. He crashed into the car, killing two people and injuring others. Id.
Although the parties disputed events leading to the crash, the defendant
claimed the crash was unintentional. Id. This Court affirmed the grant of
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PCRA relief based on defense counsel’s failure to request an involuntary
manslaughter instruction. Id. *15-16.
In each of the above cases, the defendant admitted to killing, but
claimed a lack of the requisite mens rea for murder and/or voluntary
manslaughter. Here, Appellant denies killing the victim, but argues his
testimony warranted an involuntary manslaughter instruction. See
Appellant’s Brief at 22-38.
The PCRA court and Commonwealth emphasize Appellant’s defense. In
his opening statement, trial counsel told the jury Appellant, “is innocent.”
N.T., 1/26/-2/6/17, at 46. In moving for judgment of acquittal on the murder
charge, counsel argued:
There is no eyewitness that places [Appellant] as the shooter in
this case. The Commonwealth is tying a circumstantial knot in
that they are alleging that my client possessed that firearm earlier
in the evening, therefore it had to be him as one of the two
individuals who fired at Mr. Granda. I would argue they have not
made a case out that doesn’t require speculation, and therefore,
the count of Criminal Homicide should be dismissed.
Id. at 777.
Appellant had testified to being innocent:
Q [Trial Counsel]. So you gave this guy Stone your gun; right?
A [Appellant]. Yes.
….
Q. Eventually there was an argument between Stone and
[Granda]?
A. Yes.
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….
Q. And what happened at the culmination of that argument?
A. Last thing I heard was, “Oh, yeah, you are a snake.”
Q. Then what happened?
A. Stone pointed the gun at [Granda]. I just started running. I
heard shots.
Q. Did you see Stone shoot?
A. I saw someone fire. As soon as he pointed the gun at
[Granda], he fired, and I ran as soon as I heard the shot.
….
Q. Did you shoot Justin Granda?
A. [Granda] was my friend. I didn’t shoot [Granda].
Id. at 829-32.
At closing, trial counsel argued:
[Appellant] handed [Stone] the firearm. And … Stone and Stone’s
boy shot and killed Mr. Granda.
….
There was no rush for [Appellant] to have killed Justin Granda.
Why would he use a firearm they alleged he purposely used to
shoot Seth Sperber to kill Mr. Granda? They are good friends. …
I submit to you it makes more sense that this guy Stone, getting
irate over what happened, would do that[.]
Id. at 910-12.
The record supports the PCRA court’s finding that Appellant’s defense,
and trial counsel’s strategy, was that Stone killed the victim. Thus, counsel
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would not be ineffective for failing to request a jury charge that contradicted
Appellant’s defense.
Appellant next claims that trial counsel was ineffective for failing to
move for judgment of acquittal on the CFWL charges. See Appellant’s Brief,
at 38-43. Appellant argues:
The testimony did not [support the charges because the
Commonwealth failed to prove Appellant did not have a license for
carrying a firearm], and a motion for judgment of acquittal was
appropriate on these two counts based on the Commonwealth’s
proofs. That failure to argue the point resulted in [Appellant]
being convicted of two separate felony offenses and receiving a
consecutive 2 to 4 years’ imprisonment on one of the counts.
Prejudice is apparent, and counsel rendered ineffective assistance
in this regard.
Id. at 38 (record citation omitted).
The Commonwealth concedes it “had not yet introduced evidence of
[Appellant’s] lack of licensure [when it closed its case].” Commonwealth Brief
at 26. However, Appellant was under 21 when he committed the crimes, and
had counsel sought judgment of acquittal on this basis, the Commonwealth
would have moved to reopen the record to admit proof of Appellant’s age.2
Id. at 27-31. The Commonwealth claims Appellant did not show prejudice.
Id.
The Commonwealth charged Appellant with CFWL at CP-02-CR-
0001624-2016 (homicide) and CP-02-CR-0001637-2016 (aggravated
____________________________________________
2Appellant admitted he did not have a license to carry a firearm. N.T., 1/26/-
2/6/17, at 835; Appellant’s Brief at 40; Commonwealth Brief at 27.
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assault). Trial counsel moved for judgment of acquittal of both charges. N.T.,
1/26-2/6/17, at 763-84. In the aggravated assault case, counsel stated, “the
testimony, I guess, would support [the CFWL charge.]” Id. at 764-65. The
trial court did not respond to counsel directly, but stated on the record its
reasons for denying the motion for acquittal. Id. at 765-66.
In the homicide case, counsel moved for acquittal based on Appellant’s
defense that he did not shoot the victim. Id. at 777. Counsel argued:
The [CFWL], again, they have to assume he was the one who
carried it, that he took it from the house, on his person, because
they don’t have any evidence as to whether or not —
In fairness, I don’t see a gun in his hand in the photographs. So,
I guess they would say it was concealed before the shooting.
Id. Counsel also opposed a second CFWL charge on the basis that the
aggravated assault and homicide were a “continuing event.” Id. at 781.
Again, the trial court denied the motion and placed its reasons on the record.
Id. at 778-81. There is no support for Appellant’s claim that trial counsel was
ineffective for failing to move for a judgment of acquittal in the homicide case.
With respect to the aggravated assault case, the PCRA court explained:
There is no question the Commonwealth failed to present evidence
at trial that [Appellant] did not possess a license to possess a
firearm. [Appellant’s] claim that trial counsel failed to move for
judgment of acquittal on the firearms charge appears, at first
blush, to have merit. However, in [the PCRA c]ourt’s view, it is
beyond dispute that had such a motion been made, the
Commonwealth would have sought to reopen the record and admit
the omitted evidence at trial. T[he c]ourt would have
accommodated that request. Proof of [Appellant’s] age would
have been readily provable. There is no dispute he was under 21
years old at the time he possessed the firearm. Formal
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documents, including probation office records, vital records and
charging documents contained [Appellant’s] date of birth. Law
enforcement officers would have been able to testify as to his age.
In Commonwealth v. Tharp, 575 A.2d 557, 558-559 (Pa. 1990),
the Pennsylvania Supreme Court held that a trial court could
reopen a case where the defendant sought a demurrer after the
Commonwealth omitted evidence of a defendant’s age during the
case-in-chief in a corruption minors prosecution.
Under the law of this Commonwealth a trial court has
the discretion to reopen a case for either side, prior to
the entry of final judgment, in order to prevent a
failure or miscarriage of justice. Commonwealth v.
Evans, 488 Pa. 38, 410 A.2d 1213 (1979);
Commonwealth v. Deitch Co., 449 Pa. 88, 295 A.2d
834 (1972); see also, Commonwealth v. Staten,
350 Pa.Super. 173, 504 A.2d 301 (1986);
Commonwealth v. Tabas, 308 Pa.Super. 43, 454
A.2d 12 (1982); Commonwealth v. Parente, 294
Pa.Super. 446, 440 A.2d 549 (1982);
Commonwealth v. Ridgely, 243 Pa.Super. 397, 365
A.2d 1283 (1976). The case law in this
Commonwealth has recognized the discretion of the
trial court to permit the Commonwealth to reopen its
case for the purpose of meeting a demurrer
interposed by the defense prior to its ruling upon that
motion. See Commonwealth v. Evans, supra;Commonwealth v. Mathis, 317 Pa.Super. 226, 463
A.2d 1167 (1983); Commonwealth v. Campbell,
298 Pa.Super. 23, 444 A.2d 155 (1982).
In this case the trial judge permitted the
Commonwealth to reopen its case to present direct
evidence as to the appellant’s age in order to further
establish the age element of a charge for corruption
of a minor. That offense requires that the defendant
be at least eighteen years of age. 18 Pa.C.S. §
6301(a). Here, the appellant was thirty-one years of
age at the time of trial. The Commonwealth initially
failed to present any direct evidence of his age but
relied on the circumstantial evidence. See supra,
note 4. After the trial judge permitted the
Commonwealth to reopen, testimony was offered by
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the arresting police officer who verified the age of the
appellant through the appellant’s driver’s license.
Though [Appellant] is able to prove that his trial counsel did not
move for judgment of acquittal after the close of the
Commonwealth’s [aggravated assault case], that error was
harmless and he suffered no prejudice as a result of it. Had such
a motion been made, the jury would have still been provided with
evidence of his age and the result of this trial would not have
changed.
PCRA Court Opinion, 4/6/22, at 7-8. Notably, the trial court did not impose a
sentence for CFWL in the aggravated assault case. Order of Sentence
(aggravated assault), 5/4/17, at 1; Appellant’s Brief at 38 (stating Appellant
received “a consecutive 2 to 4 years’ imprisonment on one of the counts.”).
Upon review, we discern no error or abuse of discretion by the PCRA
court’s denial of relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2022
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