Opinion
J-S65004-16 No. 1836 WDA 2014
11-17-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. KEITH LAMONT DRAIN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 10, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015145-2009 BEFORE: LAZARUS, J., OLSON, J., and PLATT, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Keith Lamont Drain appeals from the judgment of sentence entered in the Court of Common Pleas of Allegheny County. After our review, we affirm.
On January 12, 1999, Drain shot Alonzo Thompkins in the back. While Thompson was on the ground, lying face-up, Drain pointed the gun at Thompkins' head and fired one more shot at him before leaving the scene. Thompkins survived, and told police who had shot him; a short time later police located Drain and took him into custody. Drain was charged with one count each of aggravated assault, recklessly endangering another person, attempted homicide, and a violation of the Uniform Firearms Act (VUFA). The Commonwealth eventually withdrew the charges at the preliminary hearing stage because the victim was unable to appear. Thompkins' injuries rendered him a paraplegic.
Ten years later, on March 10, 2009, Thompkins died. Forensic Pathologist Abdulrezak Shakir performed an autopsy and determined that Thompkins died, at the age of 37, from multiple organ failure due to sepsis, caused by various skin ulcers and infections resulting from his paraplegia.
On August 30, 2009, the Commonwealth charged Drain with one count of criminal homicide, one count of persons not to possess a firearm, and one count carrying a firearm without a license. In July 2011, Drain filed omnibus pretrial motions, which included a motion to dismiss, a motion to sever and a motion to suppress. On June 30, 2014, the trial court granted the motion to sever the charge of persons not to possess a firearm and denied the remaining motions.
Drain was tried before a jury, the Honorable David R. Cashman presiding. On October 10, 2014, the jury convicted Drain of third-degree murder and carrying a firearm without a license, and the court sentenced Drain to 23 ½ to 47 years' incarceration. Drain did not file post-sentence motions. On appeal, Drain raises the following issues:
1. Did the trial court err when it permitted the late prosecution of this action to proceed in violation of [Drain's] due process rights for a fair trial and to be tried without undue delay and a speedy trial under the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution and under Pa.R.Crim.P. 600;Appellant's Brief, at 5-6.
2. Did the trial court err in allowing hearsay evidence in regarding Alonzo Thompkins' statements to the police in 1999 when the evidence does not meet the criteria as an excited utterance exception to the hearsay rule;
3. Did the trial court err in admitting into evidence numerous photographs of Alonzo Thompkins' bedsores in that its probative value - if any - was outweighed by the danger of unfair prejudice, confusion of the issues, and cumulative evidence of the victim's physical condition when he died;
4. Was the evidence insufficient to support the guilty verdict in this case, in that it was never proven beyond a reasonable doubt that [Drain] was the perpetrator of this crime especially given the lengthy delay between [Drain's] arrest and his trial;
5. Was the verdict against the weight of the evidence in that no evidence was produced that [Drain] knew the victim or had a motive to kill him; neither [Drain's] fingerprints nor his DNA were found on the gun used in the shooting; nor was any gunshot residue found on [Drain].
After our review, we find no error or abuse of discretion, and we conclude that Judge Cashman has accurately addressed Drain's claims on appeal. We, therefore, rely on his well-reasoned trial court opinion to affirm the judgment of sentence. See Trial Court Opinion, 1/25/16, at 5-16. We instruct the parties to attach a copy of Judge Cashman's opinion in the event of further proceedings.
We add that in response to the Commonwealth's brief in reply to Drain's brief in support of omnibus pretrial motions, Drain states: "[T]he Commonwealth has proposed, quite properly, that the homicide charge could not have been previously brought because the victim had not yet died. The defense concedes this point and, in fact, requested a dismissal under Pa.R.Crim.P. Rule 600 only of the non-homicide charges." Response to Commonwealth Brief, 5/10/12, at 5 (emphasis added). However, pursuant to 42 Pa.C.S. § 5551(4), the two-year statute of limitations for the offense of carrying a firearm without a license, 42 Pa.C.S. § 5552 (graded as a felony of the third degree), does not apply where a felony is "alleged to have been perpetrated in connection with a murder of the first or second degree, as set forth in 18 Pa.C.S. § 2502(a) or (b) and (d) (relating to murder)." 42 Pa.C.S. § 5551. See Commonwealth v. Russell , 938 A.2d 1082 (Pa. Super. 2007) (non-homicide felonies charged were alleged to have been perpetrated in connection with second-degree murder charge already charged against defendant, for purposes of the felony perpetrated in connection with a murder exception to the statute of limitations; non-homicide felonies were alleged by Commonwealth to have arisen from same operative facts as charge of second-degree murder). We note also that Drain was charged Criminal Homicide (murder, generally).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/17/2016
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