Opinion
J-S73025-16 No. 345 WDA 2016
11-04-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. MARQUISE BARNETT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 25, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001671-2015 BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J. MEMORANDUM BY LAZARUS, J.:
Marquise Barnett appeals from his judgment of sentence, entered in the Court of Common Pleas of Erie County, after a jury convicted him of possession of firearm prohibited and firearms not to be carried without a license. After careful review, we affirm.
On May 22, 2014, Barnett was arrested for fleeing or attempting to elude an officer, accident involving damage to property, and various firearms charges in connection with his flight from officers attempting to effectuate a traffic stop. Erie police officers had received information from a confidential informant (CI) that a Ford Econoline van, registration plate #JML4554, had been involved in a rash of shootings and may soon be involved in additional shootings. On September 19, 2014, Barnett filed an omnibus pre-trial motion to suppress evidence uncovered from the traffic stop. On November 14, 2014, the court denied Barnett's motion. On April 6, 2015, the day Barnett was called to trial, the Commonwealth obtained a forensic report that potentially linked the guns recovered from Barnett to a shooting. The Commonwealth requested that all the charges be nolle prossed in order to join the additional charges resulting from the new information. The court granted the Commonwealth's request and Barnett was released from custody.
The Commonwealth added the charges of aggravated assault (2 counts), recklessly endangering another person (2 counts), and discharge of a firearm into an occupied structure.
On April 15, 2015, the Commonwealth re-filed the firearm violation charges against Barnett and added additional charges related to an incident where shots were fired into a house located at 1861 Woodlawn Avenue. On October 26, 2015, Barnett filed a motion to dismiss the case for violation of his Rule 600 (speedy trial) rights. After a hearing, the Honorable Shad Connelly denied the motion on November 13, 2015.
On August 26, 2015, Barnett filed another pre-trial motion to suppress the investigatory traffic stop; the trial court denied the motion finding that the issues raised were collaterally estopped based on its prior suppression order. A two-day jury trial was held before the Honorable William R. Cunningham on November 18-19, 2015. On November 19, 2015, Barnett was found guilty of the above-mentioned firearm offenses. On January 25, 2016, Judge Cunningham sentenced Barnett to 42 to 84 months' incarceration for the firearms not to be carried without a license charge and a concurrent term of 5 years of probation for the possession of firearm prohibited charge. Post-sentence motions were filed and denied on February 5, 2016. Barnett filed a timely notice of appeal on March 2, 2016, raising the following issues for our consideration:
The trial court granted Barnett's motions for judgment of acquittal regarding the additional charges involved in the Woodlawn Avenue house shooting.
He was deemed not eligible under the Recidivism Risk Reduction Incentive (RRRI) Act, 61 Pa.C.S. § 4501-12.
(1) Whether the suppression court err[ed] in finding the investigatory detention of [Barnett] was justified by reasonable suspicion where the police relied solely upon information from an informant who[se] reliability was not substantiated by any objective facts?[]
(2) Whether the lower court err[ed] in failing to dismiss the charges where the Commonwealth violated [Barnett's] right to a speedy trial?[]
(3) Whether the trial court err[ed] in failing to instruct the jury that they should disregard any evidence regarding a shooting of the Woodlawn House where the court had dismissed those charges at the close of the Commonwealth's case?
When reviewing an order denying a motion to suppress evidence, we must determine whether the trial court's factual findings are supported by the evidence of record. If the evidence supports the trial court's findings, we are bound by them and may reverse only if the legal conclusions drawn therefrom are erroneous. Commonwealth v. Blair , 860 A.2d 567, 571 (Pa. Super. 2004).
In Commonwealth v. Hunt , 858 A.2d 1234, 1238 (Pa. Super. 2004) (en banc), our Court set forth the proper standard of review and scope of review for Rule 600 cases as follows:
In evaluating Pa.R.Crim.P. 600 issues, the appellate court's standard of review of a trial court's decision is whether the trial court abused its discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused. The 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.
After a review of the parties' briefs, the record on appeal, and relevant case law, we conclude that the trial court opinions, authored by Judge Connelly, properly dispose of Barnett's first two claims on appeal. Therefore, we rely upon Judge Connelly's November 14, 2014 opinion and November 13, 2015 opinion to affirm these issues. See Trial Court Opinion (suppression issue), 11/14/14, at 5-6 (traffic stop based upon officers' reasonable suspicion where CI's tip was corroborated and very specific; CI told officers that red/burgundy Ford van with registration plate number JML4554 that had been involved in rash of shootings was parked in specific area; that more shootings may happen in vicinity in future; officers located exact van in area cited by CI; van fled from police as they followed it; shots fired in second area reported by CI; and van seen by witnesses leaving shooting area and being driven by same black male wearing white t-shirt whom officers had seen enter van earlier); see Trial Court Opinion (Pa.R.Crim.P. 600 issue), 11/13/15, at 2-3 (Rule 600 run date not violated where withdrawal and re-filing of charges by Commonwealth was necessitated by factors beyond its control, Commonwealth exercised due diligence, and re-filing was not attempt to circumvent Rule 600 time limitations).
We instruct the parties to attach a copy of Judge Connelly's opinions in the event of further proceedings in the matter.
See also Commonwealth v. Griffin , 954 A.2d 684 (Pa. Super. 2008) (corroboration of information provided gave informant's statements reliability).
See generally Commonwealth v. Dixon , 140 A.3d 718 (Pa. Super. 2016) (sets forth burden of proof for Commonwealth under former Rule 600 when initial complaint withdrawn or dismissed and charges re-filed). In 2012, former Rule 600 was rescinded and new Rule 600 was adopted to reorganize and clarify the provisions of the rule in view of the long line of cases that have construed the rule. However, the due diligence standard remains consistent in both versions of the rule.
Barrett's final issue, regarding the trial court's failure to give a cautionary instruction to the jury that the evidence from the Woodlawn Avenue house shooting should be disregarded in their deliberations, is waived on appeal. Barnett failed to preserve his challenge to the court's instruction by not objecting when it was given. See Pa.R.A.P. 302(b); N.T. Jury Trial, 11/19/15, at 173. Moreover, raising the issue in a Rule 1925(b) statement of errors complained of on appeal does not overcome the requirement that a defendant contemporaneously object at trial. Commonwealth v. Ali , 10 A.3d 282 (Pa. 2010).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/4/2016
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