Commonwealth v. Wells

COMMONWEALTH OF PENNSYLVANIA, Appellee v. EDWARD WELLS, Appellant

J-S21005-15

No. 2570 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

MAY 12, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence July 23, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005989-2008

BEFORE: BOWES, JENKINS, and PLATT,^* JJ.

MEMORANDUM BY BOWES, J.:

Edward Wells appeals from the aggregate judgment of sentence of nine and one-half to twenty-two years incarceration after a jury found him guilty of aggravated assault, possession of an instrument of crime ("PIC"), carrying a concealed firearm without a license, and carrying a firearm on the public streets of Philadelphia. After careful review, we affirm.

On April 9, 2008, Appellant and two other men approached an individual named Jarrett Williams and shot at him. Appellant was wearing a hooded sweatshirt with his hood up and his cohorts were wearing ski masks. The victim, Ronald Green, was nearby at a local Chinese store. Mr. Green knew Appellant, who had lived in the area the previous summer. As Appellant approached him, Mr. Green asked Appellant if he was "Butter Roll," Appellant's nickname. Appellant responded in the affirmative andstated he had words for the victim. Appellant then raised his weapon and fired a shot at Mr. Green. Police responded to the area for shots fired. Mr. Green told police that "Butter Roll" shot at him and described him as being five foot five inches in height. Appellant is five foot five inches tall. In addition, Mr. Green and Mr. Williams both selected a photograph of Appellant as "Butter Roll."

Police arrested Appellant on April 10, 2008, and filed the original criminal complaint in this matter on April 11, 2008. The case was listed for trial on April 14, 2010, but was continued to the next day at the Commonwealth's request after three Commonwealth witnesses, including Mr. Green, failed to appear. Efforts to locate Mr. Green proved unsuccessful, and the court continued the case upon motion of the Commonwealth, with jury selection to begin on August 24, 2010. Appellant filed a Rule 600 motion, alleging that the Commonwealth had not timely brought Appellant to trial. The court denied that motion on August 24, 2010, and the parties selected eleven jurors that day. Still unable to locate Mr. Green, on August 25, 2010, the Commonwealth requested a continuance. Upon the court denying that request, the Commonwealth asked the court to nolle prosse the matter without prejudice. The trial court granted that request over Appellant's objection. Appellant appealed, arguing that the trial court erred in issuing a nolle prosse and declining to grant his Rule 600 motion.

This Court addressed Appellant's claim on the merits and affirmed, finding that no Rule 600 violation had occurred as of August 25, 2010. Commonwealth v. Wells, 50 A.3d 248 (Pa.Super. 2012) (unpublished memorandum). The Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on February 28, 2013. The record, then lodged with this Court, was returned to the trial court on April 10, 2013 and received by that court on April 11, 2013. However, prior to the physical record being returned to the court of common pleas, and over Appellant's objection, the court granted the Commonwealth's motion to vacate the nolle prosse on March 20, 2013. The court then scheduled a scheduling conference before a different judge for April 3, 2013. That judge then set this matter for trial on May 20, 2013.

Mr. Green and another witness, Nalene Gravely, failed to appear. The court issued bench warrants for those individuals and continued the case to the following day. Appellant renewed his motion to dismiss under Rule 600, and the court denied that request. The following day, the Commonwealth, having apprehended Mr. Green, asked for and received permission to hold him in custody as a material witness. Trial began that same date and concluded on May 23, 2013. At trial, Mr. Green denied that it was Appellant who fired the shot at him. The prosecution then introduced a signed writtenstatement Mr. Green provided to police in which he identified Appellant as the perpetrator and selected him from a photographic array as the shooter.

The jury found Appellant guilty of the aforementioned offenses.¹ The court sentenced Appellant to nine and one-half to twenty-two years imprisonment. Appellant filed a post-sentence motion, which the court denied. This timely appeal ensued. Appellant raises twenty-eight issues for our review.

1. Did the trial court err in ruling while the appellate courts still had the record from a previous appeal?

2. Did the trial court violate the due process and law-of-the-land clauses by making up her mind before argument?

3. Did the trial court deny Mr. Wells his constitutional rights to be present for the determination of the [C]ommonwealth's motion to vacate the judgment of nolle prosequi?

4. Did the trial court abuse its discretion in denying the weight of the evidence claim presented in ground 2 of the August 2, 2013, post-sentence motion?

5. Was the sentence (and denial of modification) an abuse of discretion?. [sic]

6. Did the sentencing court err in denying the merger claims, including constitutional challenges to Pennsylvania's statutory construction rules, as set forth in ground 4 of the August 2, 2013, post-sentence motion?

7. Is consideration of a prior juvenile adjudication unconstitutional after Alleyne v. United States?

8. Did the sentencing court err in considering hearsay in the PARS report from 2006?

9. Did the trial court deny the defendant's rights under the state and federal constitutions to remain silent, and to the assistance of counsel, and violating his attorney-client privilege as to related communications, by conducting a colloquy regarding his decision to exercise his constitutional rights to a jury trial?

10. Did the sentencing court err in considering unproven allegations post-dating this alleged incident?

11. Did the trial court err in granting the continuance and denying the [R]ule 600(G) motion to dismiss where Ronald Green had been a reluctant witness for five (5) years.

12. Did the trial court err in striking venire person number 25 (Tanya Upchurch) for cause, when she made clear that allegations against her son and nephew would not affect her deliberations in this trial?

13. Did the trial court err in permitting any testimony at all about how Mr. Wells was arrested?

14. Did the trial court err in overruling the defendant's multiple objections to the prosecutorial misconduct in opening to the jury with unsubstantiated claims of witness intimidation and retaliation?

15. Did the trial court err in overruling the hearsay objection to Anthony Comitalo testifying about the out-of-court statements of Ronald Green?

16. Did the trial court err in overruling the defendant's relevance objection to Ronald Green's testimony about whether people in the neighborhood like it when people testify?

17. Did the trial court err in overruling the hearsay objection to Robert Donnelly's testimony about the out-of-court statements of Jarrett Williams?

18. Did the trial court err in overruling the hearsay objection to Jarret Williams testifying to anything Ronald Green told him?

19. Did the trial court err in overruling the hearsay objection to exhibits C-1 through C-9?

20. Did the trial court err in denying the constitutional challenge under article V, section 10(c), to 18 Pa.C.S.A. § 6104 and any jury instruction based thereon?

21. Did the trial court err in denying the prudential challenge to a § 6104 charge.

22. Did the trial court err in overruling the defense objection to instructions regarding Jarrett Williams.

23. Did the trial court err in ruling that Mr. Wells's juvenile adjudication would be admitted if Mr. Wells took the stand to testify?

24. Did the trial court err in overruling the objection the prosecution's closing argument, without any evidence, as to what Ronald Green "knows" and "can't tell" the jury, and referring to a "snitch"?

25. Did the trial court err in overruling the objection to the prosecutor's personal vouching in his closing argument?

26. Did the trial court err in overruling the objection to the prosecutor's unsubstantiated "code of the street" argument?

27. Did the trial court violate the public trial right of the [S]ixth [A]mendment by closing the courtroom doors during a short jury charge?

28. Was the evidence insufficient for any VUFA offense because there was no evidence of barrel length?

Appellant's brief at 2-4.

Although Appellant raises twenty-eight issues, most of his claims are waived due to insufficient development. Specifically, Appellant's issues four through six, issues eight through ten, issues twelve through nineteen, issues twenty-one and twenty-two and issues twenty-four through twenty-six are all waived. We address the grounds for waiver of those claims in more detail infra. Appellant has developed argument for his first three issues and issues seven, eleven, twenty-three and twenty-eight. In addition, his twenty-seventh issue, though not thoroughly developed, does cite to pertinent legal authority. We begin with Appellant's initial claim.

Appellant maintains that the trial court lacked jurisdiction to enter an order vacating its earlier nolle prosse and reinstating the criminal charges against him. Specifically, he asserts that, because the physical record had not been returned to the trial court after the Pennsylvania Supreme Court denied allowance of appeal, the trial court did not yet have jurisdiction and its order was void. From this premise, he asserts that the trial proceedings that occurred while the court had jurisdiction are null and void.

In support, Appellant relies on Pa.R.A.P. 1763, Pa.R.A.P. 2571(a)(5), Pa.R.A.P. 2572(e), Pa.R.A.P. 2591(a), and a long line of decisional law holding that a trial court lacks jurisdiction to act when the record is with an appellate...