Opinion
J-S65005-19 No. 1533 MDA 2018
02-10-2020
COMMONWEALTH OF PENNSYLVANIA v. CRAIG EUGENE MOSS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered April 9, 2018
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001471-2017 BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J. MEMORANDUM BY PANELLA, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Craig Eugene Moss, appeals, pro se, from the judgment of sentence entered on April 9, 2018, of one year less one day to two years less one day of imprisonment, in the Court of Common Pleas of York County, following his conviction of one count each of possession of an instrument of crime (PIC) and simple assault, and two counts of harassment. On appeal, Appellant raises nine issues, claiming: (1) the Commonwealth failed to disprove his claim of self-defense; (2) the evidence was insufficient to sustain his conviction; (3) the Commonwealth violated his constitutional rights when it used evidence at trial not stated in the indictment or bill of particulars; (4) the trial court deprived him of his right to self-representation; (5) the trial court erred when it sustained the Commonwealth's objection to a question asked during the cross-examination of witness Breanne Spangler; (6) the Commonwealth wrongly destroyed evidence; (7) the trial court erred in holding Appellant could not raise claims of ineffective assistance of counsel on direct appeal; (8) the trial court erred in denying Appellant's motion for an expert witness; (9) the trial court erred in denying Appellant's speedy trial motion. Appellant's Brief, at 2-3. After review, we affirm.
Although Appellant purports to appeal from the order denying his post-sentence motions, an appeal properly lies from the judgment of sentence made final by the denial of post-sentence motions. See Commonwealth v. Dreves , 839 A.2d 1122, 1125 n. 1 (Pa. Super. 2003) (en banc). We have corrected the caption accordingly.
We deny Appellant's application for a new trial based on after discovered evidence without prejudice to his right to raise the issue in a collateral petition. Further, we deny Appellant's application to strike the Commonwealth's untimely brief. Appellant has not identified any prejudice he has suffered due to the late filing. So while we do not condone the Commonwealth's failure to file a timely brief, we decline to impose the sanction of striking the Commonwealth's brief entirely.
As we write primarily for the parties, a detailed factual and procedural history is unnecessary. However, we briefly note the following based upon our review of the certified record.
On March 16, 2017, the Commonwealth charged Appellant by way of a criminal information with terroristic threats, PIC, simple assault, public drunkenness, disorderly conduct, and three counts of harassment. The charges arose out of an incident that took place on January 14-15, 2017, at Kiro's bar. At trial, although there were minor inconsistencies, the Commonwealth witnesses testified consistently about the events of the evening.
18 Pa.C.S.A. § 2706(a)(1). Following the close of the Commonwealth's case, the trial court granted Appellant's motion to dismiss this charge. N.T., 3/12-13/18, at 246.
18 Pa.C.S.A. § 5505. The trial court found Appellant not guilty of public drunkenness. N.T., 3/12-13/18, at 332.
18 Pa.C.S.A. § 5503(a)(1). The trial court held that this charge merged with the verdict on simple assault. See id.
The trial court initially found Appellant guilty of all three counts of harassment. See id. However, it dismissed one count as being unsupported by the evidence during the hearings on Appellant's post-sentence motions. N.T. Post-Sentence Motions, 8/13/18, at 201.
That night, Breanne Spangler, her fiancé Daniel Leiphart, and a group of their friends, who included Brittany Graves, Bridget James, and Emily and Devon Wallick, were at Kiro's to celebrate its last night in business. Appellant and his wife, Tara Moss, were also present but were not part of Spangler's group.
We take the underlying facts from the notes of testimony at Appellant's second trial. See N.T., 3/12-13/18, at 70-80, 97-107, 118-25, 133-42, 154-61, 165-70, 175-87; 3/13/18, at 197-209, 212-226.
At some point during the evening, Appellant and Tara Moss left. Appellant returned alone a few minutes later and began to behave in an increasingly belligerent and drunken fashion. He started to accost and grope some of the women in Spangler's group, ignoring their requests to stop.
When Leiphart became aware of the problem, he and Appellant engaged in a verbal dispute, which ended when Leiphart punched Appellant on the chin. The bar's owner, Ronald Weagley, now aware of the complaints about Appellant's behavior, escorted him off the premises.
The group of friends remained in the bar. Immediately prior to closing, at approximately 2:00 a.m., Tara Moss telephoned Weagley and informed him Appellant had armed himself with knives and was returning to the bar. Weagley locked the front door of the bar, called 911, and told the patrons not to leave.
Despite this, Leiphart and several others exited the bar through the side emergency exit. Although friends kept Leiphart and Appellant separated, a quarrel ensued in the parking lot next to Kiro's and continued into a nearby alley.
Appellant brandished a knife, swinging it from side to side while taunting the unarmed Leiphart. Spangler inserted herself between Appellant and Leiphart, grabbed the knife-blade, and attempted to deescalate the conflict. Appellant repeatedly told her he did not want to hurt her but wanted to hurt Leiphart. Spangler pushed against Appellant backing him away from Leiphart while Appellant continued to swing the knife and state that he wanted to hurt Leiphart.
Other bar patrons backed Leiphart away from Appellant. Appellant did not leave the scene until he heard police sirens, at which point he allowed Spangler to grab the knife. When police apprehended the fleeing Appellant, they heard one knife fall off him, which they recovered under his body, and found two other knives on his person. The police located several other knives in the area where the altercation occurred.
Trial began on March 7, 2018, however, for reasons unrelated to this appeal, the parties agreed to a mistrial on March 8, 2018. Appellant's second trial began the following week. On March 13, 2018, the jury and trial court found him guilty of the aforementioned charges.
On April 9, 2018, the trial court sentenced Appellant as delineated above. Appellant, now proceeding pro se, filed timely post-sentence motions; the trial court held hearings on those motions and denied the motions on August 27, 2018. The instant, timely appeal followed.
Initially, we mention the following concerns. While this Court understands Appellant is proceeding pro se,
. . . we note that it has been held that when an appellant raises an extraordinary number of issues on appeal, as in this case, a presumption arises that there is no merit to them. In United States v. Hart , 693 F.2d 286, 287 n.1 (3rd Cir. 1982), the court had an opportunity to address this situation:
Because of the inordinate number of meritless objections pressed on appeal, spotting the one bona
fide issue was like finding a needle in a haystack. One of our colleagues has recently cautioned on the danger of "loquaciousness:"
With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in open court that when I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that this is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.
Estate of Lakatosh , 656 A.2d 1378, 1380 n.1 (Pa. Super. 1995).
Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility—A View From the Jaundiced Eye of One Appellate Judge, 11 Cap.U.L.Rev. 445, 458 (1982).
Further, prior to analyzing the issues in Appellant's brief, this Court must determine whether Appellant properly preserved any issues for our review. See Commonwealth v. Wholaver , 903 A.2d 1178, 1184 (Pa. 2006)(holding that appellate courts may sua sponte determine whether issues have been properly preserved on appeal).
Rule 1925(b)(4) provides, in pertinent part:
(ii) The Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge. The judge shall not require the
citation to authorities; however, appellant may choose to include pertinent authorities in the Statement.Pa.R.A.P. 1925(b)(4)(ii), (iv).
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(iv) The Statement should not be redundant or provide lengthy explanations as to any error. Where non-redundant, non-frivolous issues are set forth in an appropriately concise manner, the number of errors raised will not alone be grounds for finding waiver.
Here, Appellant filed a Rule 1925(b) statement that was over thirty pages in length. See Concise Statement of Errors Complained of on Appeal, 10/03/18, at 1-32. Given this, we would be well within our rights to find Appellant has waived all issues on appeal. See Jiricko v. Geico Ins. Co., 947 A.2d 206, 210 (Pa. Super. 2008) (finding waiver appropriate remedy where appellant filed five-page incoherent statement of errors); see also Kanter v. Epstein , 866 A.2d 394, 401 (Pa. Super. 2004). However, the trial court admirably attempted to address Appellant's claims. See Trial Court Opinion, 4/26/19, at 14-45. Because of this, despite our grave reservations, we decline to find waiver and will address the issues in Appellant's appeal.
In his first two issues, Appellant challenges the sufficiency of the evidence. Appellant's Brief, at 3-10. Our standard of review is settled.
We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.Commonwealth v. Mobley , 14 A.3d 887, 889-90 (Pa. Super. 2011) (citation omitted). Here, the jury convicted Appellant of PIC and simple assault, and the trial court convicted him of harassment.
In his first claim, Appellant does not dispute the proof of the elements of simple assault, therefore we will not address them at this point; instead, he argues the Commonwealth did not disprove his claim of self-defense. See Appellant's Brief, at 3-6. We disagree.
The use of force against a person is justified when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person. See 18 Pa.C.S.[A.] § 505(a). When a defendant raises the issue of self-defense, the Commonwealth bears the burden to disprove such a defense beyond a reasonable doubt.Commonwealth v. Bullock , 948 A.2d 818, 824 (Pa. Super. 2008).
In order for the Commonwealth to disprove self-defense, one of the following elements must exist: (1) the defendant used more force than was necessary to save himself from death, bodily injury, or the commission of a felony; (2) the defendant provoked the use of force; or (3) the defendant had a duty to retreat, which was possible to accomplish with complete safety. See Commonwealth v. Burns , 765 A.2d 1144, 1148-49 (Pa. Super. 2000), appeal denied, 782 A.2d 542 (Pa. 2001). However, "[a]lthough the Commonwealth is required to disprove a claim of self-defense arising from any source beyond a reasonable doubt, a jury is not required to believe the testimony of the defendant who raises the claim." Bullock , supra at 824.
Based upon our review of the record, the Commonwealth's evidence was sufficient to negate the elements of self-defense. The evidence presented at trial established, following the altercation with Leiphart, Weagley escorted Appellant off the premises and Appellant left the area for at least thirty minutes. See N.T., 3/12-13/18, at 74-75. Appellant then chose to return to the bar and lay in wait for Leiphart armed with at least four knives. See id. at 89, 225-226.
When Leiphart exited the bar, Appellant stated several times that he wanted to hurt him; Appellant swung the knife in the direction of of Leiphart while acting in a violent and agitated manner. See id. at 77, 103. Appellant ignored Spangler's attempts to defuse the situation, repeatedly stating he wanted to hurt Leiphart and did not retreat on his own. See id. at 141, 150. Rather, Spangler pushed him back. See id. . Leiphart was unarmed. See id. at 159.
Accordingly, the evidence was sufficient to establish that Leiphart was not the aggressor. More importantly, the evidence was capable of establishing Appellant, armed with at least one knife, could not have reasonably believed he was at any real risk from Leiphart. The only person who claims there was an alternate version of the events was Appellant and the finder-of-fact was free to disbelieve his arguments in light of the overwhelming evidence offered by the Commonwealth. See Commonwealth v. Rivera , 983 A.2d 1211, 1222 (Pa. 2009) (jury free to discredit evidence offered by defendant relating to self-defense); see also Commonwealth v. Jones , 332 A.2d 464, 466 (Pa. Super. 1974) (en banc) (holding use of knife in response to fistfight is not justified use of deadly force). Moreover, the record demonstrates Appellant, who was on a public alley, had many opportunities to retreat. See Commonwealth v. Gillespie , 434 A.2d 781, 784 (Pa. Super. 1981) (holding opportunity to retreat existed because, "the fight occurred on a public sidewalk, with several avenues of retreat available[]"). Appellant's first claim does not merit relief.
As Appellant's second issue is actually a broad based challenge to each of his convictions, see Appellant's Brief, at 7-10, we will address each type of crime individually. Initially, we note Appellant's argument in its entirety consists of citing to isolated bits of evidence he believes favors his argument along with random citations to several United States Supreme Court cases and one case from this Court, which, upon review, have no bearing upon the instant matter. See id. He entirely disregards our standard of review, which requires we view the evidence in a light most favorable to the Commonwealth as verdict winner. Further, Appellant overlooks the fact this Court does not re-weigh the evidence nor do we engage in credibility determinations. See id.
We define simple assault by physical menace as, "attempts by physical menace to put another in fear of imminent serious bodily injury." 18 Pa.C.S.A. § 2701(a)(3). Serious bodily injury is "[b]odily injury which creates a substantial risk of death, or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S.A. § 2301. "A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S.A. § 901(a). An individual acts intentionally with respect to a material element of an offense when, "it is his conscious object to engage in conduct of that nature or to cause such a result." 18 Pa.C.S.A. § 302(b)(1)(i).
Therefore, in order to sustain a conviction for simple assault by physical menace, the Commonwealth must prove an appellant "intentionally plac[ed] another in fear of imminent serious bodily injury through the use of menacing or frightening activity." Commonwealth v. Reynolds , 835 A.2d 720, 726 (Pa. Super. 2003) (citation omitted). The act of brandishing a knife at a person is sufficient to sustain a conviction for simple assault by physical menace. See Commonwealth v. Diamond , 408 A.2d 488, 489-90 (Pa. Super. 1979) (finding sufficient evidence to sustain simple assault by physical menace conviction where defendant approached and gripped door handle of victim's car at 4:00 a.m., "especially since [defendant's] friend was simultaneously threatening [the victim] with a knife on the other side of the car").
As set forth previously, the Commonwealth's evidence at trial showed Appellant swung the knife back and forth while threatening Leiphart. Appellant repeatedly stated he wanted to hurt him. This evidence is sufficient to establish that Appellant wanted to place Leiphart in fear of serious bodily injury. A reasonable person, seeing the man whom he earlier hit in a bar fight coming at him while shouting threats and waving a knife, "will quite likely fear that such an injury is imminent." Diamond , 408 A.2d at 490. Appellant must "be held to have intended such a foreseeable consequence to his actions." Id. Accordingly, we find the evidence was sufficient to sustain Appellant's conviction for simple assault by physical menace.
In order to prove possession of an instrument of crime, the Commonwealth must show the defendant "possesses any instrument of crime with intent to employ it criminally." 18 Pa.C.S.A. § 907(a). The statute defines an instrument of crime as "[a]nything specially made or specially adapted for criminal use" or "[a]nything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have." 18 Pa.C.S.A. § 907(d). Evidence a defendant used a knife to attempt to perpetrate a crime is sufficient to sustain a conviction for PIC. See Commonwealth v. Robinson , 874 A.2d 1200, 1208-09 (Pa. Super. 2005) (holding use of knife to perpetrate robbery was sufficient evidence of PIC).
"PIC, by its definition, is an inchoate crime, meaning that a defendant only has to intend to employ the instrument of crime criminally; a defendant need not actually employ it or complete an associated crime." Commonwealth v. Moore , 103 A.3d 1240, 1252 (Pa. 2014) (citation omitted). "[R]ather, the focus is on whether the defendant possesses the instrument for any criminal purpose." Commonwealth v. Naranjo , 53 A.3d 66, 71 (Pa. Super. 2012) (emphasis in original). The defendant's criminal purpose provides the basis for his liability; we can infer purpose from the circumstances surrounding the possession of the instrument of crime. See Commonwealth v. Andrews , 768 A.2d 309, 318-319 (Pa. 2001).
"Intent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances." Commonwealth v. Miller , 172 A.3d 632, 641 (Pa. Super. 2017) (citation omitted), appeal denied, 183 A.3d 97 (Pa. 2018). Although a factfinder may infer criminal intent beyond a reasonable doubt based on circumstantial evidence, intent may not be inferred based on mere possession. See In re A.V., 48 A.3d 1251, 1254 (Pa. Super. 2012).
Here, the evidence demonstrated Appellant used kitchen knives to threaten Leiphart. Clearly, this was not in a manner appropriate for lawful use. The evidence supporting Appellant's conviction for simple assault is sufficient to sustain his conviction for PIC. See Robinson , 874 A.2d at 1208-09.
Appellant also challenges his two convictions for harassment. "A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: [ ] strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same[.]" 18 Pa.C.S. § 2709(a)(1) (emphasis added). "An intent to harass may be inferred from the totality of the circumstances." Commonwealth v. Cox , 72 A.3d 719, 721 (Pa. Super. 2013).
At trial, multiple witnesses testified Appellant grabbed the buttocks of several women, including Emily Wallick and Bridget James, thus subjecting them to physical contact. See , e.g., N.T. 3/12-13/18, at 121-122. The evidence also showed Appellant ignored the women's request to stop. See id. This is sufficient to show his intent to harass the women. See Cox , supra at 721; see also 18 Pa.C.S.A. § 2709(a)(1).
Accordingly, for the reasons discussed above, we find the evidence was sufficient to sustain Appellant's convictions. His second claim does not merit relief.
In his third claim, Appellant avers the Commonwealth violated his constitutional rights when "it used evidence at trial that was not stated in the indictment bills of particulars." Appellant's Brief, at 10; see also Appellant's Brief, at 10-11. Specifically, Appellant complains the Commonwealth charged him for holding the knife over his head in a stabbing position but the witnesses at trial only testified he was either swinging the knife or brandishing it.
This Court has stated:
A purported variance between the indictment and the offense proved will not be fatal to the Commonwealth's case unless it could mislead the defendant at trial, involves an element of surprise prejudicial to the defendant's efforts to prepare his defense, precludes the defendant from anticipating the prosecution's proof, or otherwise impairs a substantial right of the defendant. Generally stated, the requirement is that a defendant be given clear notice of the charges against him so that he can properly prepare a defense.Commonwealth v. Fulton , 465 A.2d 650, 653 (Pa. Super. 1983) (citations omitted). Moreover, "a variance between the proof and the bill of particulars does not require a reversal unless the defendant has been prejudiced by the variance." Commonwealth v. Delbridge , 771 A.2d 1, 4-5 (Pa. Super. 2001) (citation omitted), affirmed, 859 A.2d 125 (Pa. 2004).
Here, the criminal information stated in pertinent part, "[Appellant] attempted, by physical menace, to put Danny Leiphart, in fear of imminent serious bodily injury, by holding a knife over his head in a stabbing position and/or stating he was going to get victim." Criminal Information, 3/16/17, at unnumbered page 1 (emphasis added). At trial, as noted above, multiple witnesses testified that, while holding the knife, Appellant repeatedly stated he wanted to hurt the victim. Moreover, the difference between holding the knife over his head and swinging the knife in the direction of the victim is de minimis. Appellant has utterly failed to address how this minor discrepancy between the information and the proof at trial prejudiced him. Therefore, his third claim does not merit relief. See Delbridge , 771 A.2d at 4-5.
In his fourth claim, Appellant contends that the trial court deprived him of his right of self-representation. Appellant's Brief, at 12-13. We disagree.
We review a trial court's grant or denial of a defendant's request to proceed pro se for an abuse of discretion. Commonwealth v. El , 977 A.2d 1158, 1167 (Pa. 2009). The Pennsylvania Supreme Court has "defined a court's discretion as the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. An abuse of that discretion is not merely an error of judgment, but . . . [a] manifestly unreasonable . . . result of partiality, prejudice, bias or ill will." Id. (quotations and citation omitted).
In El , our Supreme Court explained,
A criminal defendant's right to counsel under the Sixth Amendment includes the concomitant right to waive counsel's assistance and proceed to represent oneself at criminal proceedings. The right to appear pro se is guaranteed as long as the defendant understands the nature of his choice. In Pennsylvania, Rule of Criminal Procedure 121 sets out a framework for inquiry into a defendant's request for self-representation. Pa.R.Crim.P. 121. Where a defendant knowingly, voluntarily, and intelligently seeks to waive his right to counsel, the trial court . . . must allow the individual to proceed pro se.Id. at 1162-63 (most citations, quotation marks and footnotes omitted).
The right to waive counsel's assistance and continue pro se is not automatic however. Rather, only timely and clear requests trigger an inquiry into whether the right is being asserted knowingly and voluntarily. . . . Thus, the law is well established that in order to invoke the right of self-representation, the request to proceed pro se must be made timely and not for purposes of delay and must be clear and unequivocal.
Our review of the record reveals Appellant never made a clear and unequivocal assertion of the right to proceed pro se. See N.T., 3/7/18, at 3-23. Rather, the record shows the trial court made a yeoman's effort in an attempt to ascertain what Appellant wanted and to explain to him Pennsylvania law does not allow his desire, which was clearly hybrid representation. See id.; see also Commonwealth v. Padilla , 80 A.3d 1238, 1259 (Pa. 2013), cert. denied, 573 U.S. 907 (2014). The discussion concluded as follows:
THE COURT: So how are you proceeding?
[Appellant]: I have no choice but to allow counsel to represent me.
THE COURT: So Mr. Jefferis will be the lead counsel, and you will be working with him or consult with him?
[Appellant]: That is correct, sir. However, it is my understanding that a represented person is allowed to give opening arguments. That is a Pennsylvania Rule of Criminal Procedure.
THE COURT: Whoever the attorney is may make the opening argument. In other words, what you can't do is you can't cherry pick or break this up into pieces where you say, I'll make the opening statement, you make the closing statement, I'll examine this witness, you examine that witness. You can be pro se, or you can be represented by an attorney. What you don't get to do is have this kind of hybrid representation.
[Appellant]: And I understand that, sir, and like I said, due to my 14-month unjust incarceration, I would not be able to represent myself.
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[THE COURT]: . . . are you still willing to have him proceed as your counsel?N.T., 3/07/18, at 17-18.
[Appellant]: Indeed, I am.
Appellant did subsequently indicate that he wished to represent himself. See id. at 20. However, immediately thereafter he stated that it didn't matter who represented him. See id., at 23.
Appellant does not identify any other place in the record where he clearly requested to proceed pro se. And our independent review has revealed none. Therefore, the record does not contain a clear and unequivocal request to proceed pro se. Accordingly, Appellant's fourth claim does not merit relief. See El , 977 A.2d at 1162-63.
In his fifth claim, Appellant complains the trial court denied him the right to cross-examine Commonwealth witness Breanne Spangler effectively. The court sustained the Commonwealth's objection to a question about Spangler's desire not to press charges in the matter. See Appellant's Brief, at 13-15. Specifically, Appellant points to the following:
[Defense Counsel]: At first, you did not want to press charges?
[The Commonwealth]: Objection, Your Honor.
[Defense Counsel]: I think this goes to the witness's state of mind.
[The Commonwealth]: Relevance, though.
[Defense Counsel]: Bias.
[The Commonwealth]: Approach?N.T. Second Trial, 3/12/18, at 92-93.
THE COURT: Come up here.
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[Defense Counsel]: Your Honor, this would directly go to her — this would directly go to her bias on why she's testifying here today. She changed her mind about pressing charges once her boyfriend or fiancé was charged.
[The Commonwealth]: It was never her option to press charges or not. It's not that she could've said, well, I want to press charges [sic] and this would've gone away.
[Defense Counsel]: I know, but she didn't want to cooperate or testify to what she testified to here today.
THE COURT: I'm going to sustain the objection.
This Court has held:
[w]ith regard to evidentiary challenges, it is well established that [t]he admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. Furthermore, if in reaching a conclusion the trial court overrides or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error.Commonwealth v. Serrano , 61 A.3d 279, 290 (Pa. Super. 2013) (citations and internal quotation marks omitted).
A criminal defendant has the constitutional right to confront witnesses against him; this right includes the right of cross-examination. See Commonwealth v. Buksa , 655 A.2d 576, 578 (Pa. Super. 1995). Cross-examination can be used to test a witness's version of the events, to impeach his credibility, or to establish his motive for testifying. See id.
However, even if we were to find error, an appellant must show that the court's decision prejudiced him. Our Supreme Court has stated:
An error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict. If there is a reasonable possibility that the error may have contributed to the verdict, it is not harmless. In reaching that conclusion, the reviewing court will find an error harmless where the uncontradicted evidence of guilt is overwhelming, so that by comparison the error is insignificant. . .Commonwealth v. Mitchell , 839 A.2d 202, 214-15 (Pa. 2003) (citation omitted).
In the instant matter, we need not decide whether the trial court erred in sustaining the objection because, if there was error, it was harmless. The record reflects Spangler's fiancée, Leiphart, admitted he threw the first punch in the altercation in the bar; the Commonwealth charged him because of it; and he pleaded guilty to harassment. N.T. Second Trial, 3/12/18, at 135-37, 142-43.
Moreover, there were multiple witnesses to the event, and the witnesses' testimony was consistent. See N.T., 3/12-13/18, at 70-80, 97-107, 118-25, 133-42, 154-61, 165-70, 175-87. Thus, regardless of whether Spangler was reluctant to testify or was biased against Appellant, witnesses Leiphart, James, Graves, Weagler, and the Wallicks all confirmed her testimony. See id. Given this, we find Appellant has not and cannot show the absence of this cross-examination prejudiced him. Therefore, this claim does not merit relief. See Mitchell , 839 A.2d at 214-15.
In his sixth claim, Appellant argues that the Commonwealth destroyed evidence in violation of the United States Supreme Court's decision in Brady v. Maryland , 373 U.S. 83 (1963). See Appellant's Brief, at 15-17. We disagree.
Again, we note that we review evidentiary challenges under an abuse of discretion standard. Serrano , 61 A.3d at 290.
The law governing alleged Brady violations is settled.
Under Brady and subsequent decisional law, a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature. To establish a Brady violation, an appellant must prove three elements: (1) the evidence at issue was favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued. The burden rests with the appellant to prove, by reference to the record, that evidence was withheld or suppressed by the prosecution. The evidence at issue must have been material evidence that deprived the defendant of a fair trial. Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Commonwealth v. Ovalles , 144 A.3d 957, 965 (Pa. Super. 2016) (citations and quotation marks omitted) (emphasis added).
In Commonwealth v. Feese , 79 A.3d 1101 (Pa. Super. 2013), this Court discussed the appropriate standard to apply in cases where, as here, the appellant alleges the Commonwealth destroyed potentially useful evidence. The Feese court determined the standard announced by the United States Supreme Court in Arizona v. Youngblood , 488 U.S. 51 (1988) applies, and "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Feese , 79 A.3d at 1108 (citation omitted). The Court further stated, "[w]hen the value of such evidence was not clear before its destruction, the burden is on the defense to demonstrate bad faith." Id. at 115.
Here, Appellant alleges the Commonwealth destroyed an audio recording made by the trial prosecutor during his initial interview with Commonwealth witness Devon Wallick. See Appellant's Brief, at 16-17. The parties litigated the issue of the destroyed audio recording at the second hearing on Appellant's post-sentence motions. See N.T., Post-Sentence Motions Hearing, 8/27/18, at 2-7.
At the hearing, the Commonwealth explained it had not previously interviewed Wallick, but it subpoenaed him and he appeared to testify at Appellant's first trial. See id. at 2-4. The trial assistant district attorney wanted Wallick to speak with a detective; because he did not have any paper with him, he recorded Wallick's contact information on his cell phone. See id. at 2, 4, 7. He later destroyed the recording. A detective conducted a substantive interview with Wallick and the Commonwealth turned over the notes of that interview to Appellant. See id. at 2-4.
We have reviewed the record in this matter. Appellant does not dispute he received the interview notes. Further, the trial court specifically found the recording was not exculpatory, and noted, "any exculpatory evidence would have been contained in the actual interview with detectives, which produced a report, which was turned over to the defense." Trial Court Opinion, 4/26/18, at 25. Appellant has not presented any evidence that would call this finding into doubt. Moreover, Appellant has not argued any facts demonstrating the Commonwealth acted in bad faith. Therefore, Appellant's sixth claim does not merit relief. See Feese , 79 A.3d at 1111.
In his seventh claim, Appellant contends he received ineffective assistance of trial counsel and the trial court erred in finding that he could only raise such claims in a Post-Conviction Relief Act Petition. See Appellant's Brief, at 18-32. This ineffectiveness claim, however, is premature.
In Commonwealth v. Holmes , 79 A.3d 562 (Pa. 2013), the Pennsylvania Supreme Court reaffirmed the general rule first set forth in Commonwealth v. Grant , 813 A.2d 726 (Pa. 2002), "claims of ineffective assistance of counsel are to be deferred to PCRA review; trial courts should not entertain claims of ineffectiveness upon post-verdict motions; and such claims should not be reviewed upon direct appeal." Holmes , 79 A.3d at 576. Although there are three recognized exceptions to that general rule, no exception is applicable here., Accordingly, Appellant's ineffective assistance of counsel claim is not cognizable on direct appeal and must await collateral review.
The Holmes Court recognized two exceptions: (1) where the trial court determines a claim of ineffectiveness is "both meritorious and apparent from the record so that immediate consideration and relief is warranted[;]" or (2) where the trial court finds "good cause" for unitary review, and the defendant makes a "knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial petition restrictions of the PCRA." Holmes , 79 A.3d at 564, 577 (footnote omitted). A third exception was recently adopted by our Supreme Court for "claims challenging trial counsel's performance where the defendant is statutorily precluded from obtaining PCRA review." Commonwealth v. Delgros , 183 A.3d 352, 361 (Pa. 2018) ("[W]here the defendant is ineligible for PCRA review because he was sentenced only to pay a fine, we agree with Appellant that the reasoning in Holmes applies with equal force to these circumstances").
We note, in its 1925(a) opinion, the trial court did address Appellant's claims and found them to be meritless. Trial Ct. Op., at 25-39. However, this is of no matter to our decision because Appellant did not and has not made any waiver of his right to seek PCRA relief, let alone a knowing and express waiver. See Holmes , 79 A.3d at 577.
In his eighth claim, Appellant argues the trial court erred in denying his motion for appointment of a neurological/head trauma expert. See Appellant's Brief, at 32-34. We disagree.
There are several procedural issues with Appellant's motion. First, Appellant filed this motion pro se on February 26, 2018. At that time, counsel represented Appellant. As we have noted above, Appellant is not entitled to hybrid representation. See Padilla , 80 A.3d at 1259. Therefore, courts in this Commonwealth "will not accept a pro se motion while an appellant is represented by counsel; indeed, pro se motions have no legal effect and, therefore, are legal nullities." Commonwealth v. Williams , 151 A.3d 621, 623 (Pa. Super. 2016) (citation omitted).
Secondly, at the time Appellant filed the motion, the court had not granted him in forma pauperis status and retained counsel represented him. Our rules only require the allocation of funds for an expert witness for indigent defendants. See 50 P.S. § 7402(f). Lastly, the motion was untimely. The Pennsylvania Rules of Criminal Procedure require a defendant give notice of a defense of insanity or mental infirmity "not later than the time required for filing an omnibus pretrial motion provided in Rule 579." Pa.R.Crim.P. 568(a)(1). Here, that time expired in May 2017, approximately ten months before Appellant filed his motion. See Pa.R.Crim.P. 579(A).
Further, as the trial court correctly notes, a diminished capacity defense is only available if the Commonwealth charges a defendant with murder in the first degree. See Commonwealth v. Russell , 938 A.2d 1082, 1092 (Pa. Super. 2007) (citations omitted). Moreover, an insanity defense is generally only available in cases where the defendant acknowledges commission of the act, not in a case such as this where a defendant asserts his innocence. See Commonwealth v. Hughes , 865 A.2d 761, 788 (Pa. 2004) (stating, "[a] defense of insanity acknowledges commission of the act by the defendant, while maintaining the absence of legal culpability").
In any event, Appellant's claim is based on his unsupported contention, "there [was] a reasonable probability that the Appellant was suffering from a concussion due to the multiple blows to the head inflicted upon Appellant[,]" during the altercation inside the bar and this probable concussion somehow negated his ability to form the requisite intent. Appellant's Brief, at 33. Our review of the record shows Appellant has never claimed he sought medical treatment following the incident and has never offered any medical documentation to support his speculative contention he suffered a concussion because of the altercation. For the reasons discussed above, Appellant's eighth claim does not merit relief.
In his final claim, Appellant argues the trial court erred in denying his speedy trial motion. Appellant's Brief at 34-37. To address this issue we observe the following standards.
"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). Moreover,
[t]he proper scope of review . . . is limited to the evidence on the record of the Rule 600 evidentiary hearing, and the findings of the trial court. An appellate court must view the facts in the light most favorable to the prevailing party.
Commonwealth v. Peterson , 19 A.3d 1131, 1134 (Pa. Super. 2011) (en banc), affirmed, 44 A.3d 655 (Pa. 2012) (citations omitted).
* * * *
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 600 must be construed in a manner consistent with society's right to punish and deter crime. In considering these matters . . ., courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well.
We have reviewed the certified record, the briefs of the parties, and the trial court's opinion. The trial court ably and methodically addressed this issue in its Rule 1925(a) opinion. Accordingly, we adopt the trial court's reasoning, found on pages 42-45 of its opinion, as our own for the disposition of this issue. See Trial Court Opinion, 4/26/19, at 42-45 (holding mechanical run date was January 15, 2018; trial was set for July of 2017 but defense counsel requested continuance due to unavailability; next available trial date was in September 2017; 57 days were attributable to defense; therefore trial started before adjusted mechanical run date of March 13, 2018); see also N.T., 3/7/18, at 24-27. Appellant's ninth and final claim does not merit relief.
Accordingly, for the reasons discussed above, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 02/10/2020
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