Opinion
J-S79036-16 No. 1776 EDA 2015
12-28-2016
COMMONWEALTH OF PENNSYLVANIA v. EMMANUEL DURAN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 15, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0010357-2013 BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Emmanuel Duran ("Duran") appeals from the judgment of sentence imposed after a jury convicted him of second-degree murder, robbery, burglary, conspiracy, and firearms not to be carried without a license. We affirm the convictions, vacate the separate judgment of sentence imposed for robbery, and affirm the judgment of sentence in all other respects.
The trial court thoroughly set forth the factual and procedural history underlying this appeal, which we adopt as though fully set forth herein. See Trial Court Opinion, 12/8/15, at 2-21.
In this timely appeal, Duran presents the following issues for our review:
A. Did the trial court commit an abuse of discretion when it [overruled Duran's] timely objection to permitting a [Commonwealth] witness to testify after the witness violated a sequestration Order?
B. Did the trial court commit an abuse of discretion and violate [Duran's] Sixth Amendment right when it denied [Duran's] timely pro se Motion to represent himself?Brief for Appellant at 4 (capitalization omitted).
C. Did the trial court commit an abuse of discretion by permitting the Commonwealth to introduce evidence of a robbery that occurred the day after the crime herein was committed?
In his first issue, Duran argues that the trial court committed reversible error when it permitted one of the Commonwealth's witnesses, Myron Baker ("Baker"), to testify, over Duran's objection, after Baker had violated a sequestration Order pertaining to all Commonwealth witnesses. Id. at 15. Duran argues that "the violation of sequestration by [] Baker was serious and had a deleterious effect on the trial[;] ... it is clear that Baker's testimony [] could have been influenced and conformed by [Brooks's] testimony[, which Baker] heard while inside the court[]room." Id. at 17; see also id. (asserting that "[t]he Commonwealth's case primarily was predicated on Brooks'[s] testimony").
Baker violated the Order during trial, when he was present in the courtroom for a portion of the testimony of one of Duran's accomplices, Edward Brooks ("Brooks").
The trial court addressed this claim in its Opinion, concisely summarized the relevant law, and determined that the court did not err in permitting Baker to testify despite the violation of the sequestration Order. See Trial Court Opinion, 12/8/15, at 21-23. The trial court's rationale is supported by the law and the record. Discerning no abuse of discretion, we affirm with regard to Duran's first issue based on the trial court's rationale. See id.; see also Commonwealth v. Smith , 346 A.2d 757, 760 (Pa. 1975) (holding that the trial court properly exercised its discretion in denying the defense's motion for a mistrial made following a violation of a sequestration order and permitting the Commonwealth witness to testify, where the witness's testimony was not altered by the violation of the sequestration order and the jury was made aware of the violation through cross-examination of the witness).
In his second issue, Duran contends that the trial court erred by denying his Motion to proceed pro se, where the court's reasons for the denial were legally insufficient and Duran's request was unequivocal. Brief for Appellant at 18, 28. According to Duran, he "proffered numerous[,] valid reasons as to why he should have been permitted to proceed as his own counsel." Id. at 27 (citing N.T., 4/20/15, at 132-35). Duran further argues that the trial court erred in failing to "conduct a colloquy of [Duran] to ascertain whether he was capable of representing himself and whether he was making that decision knowingly, intelligently and voluntarily." Brief for Appellant at 18-19.
We observe that the transcript from the hearing on April 20, 2015 is not contained in the certified record concerning Duran's case. See Commonwealth v. Lopez , 57 A.3d 74, 82 (Pa. Super. 2012) (stating that "it is an appellant's duty to ensure that the certified record is complete for purposes of review.") (brackets omitted). Nevertheless, we have obtained a copy of this transcript from the appeal of one of Duran's codefendants, Raheem Brown, which is also listed before this panel at No. 2963 EDA 2015.
The trial court thoroughly addressed this claim in its Opinion, set forth the relevant law, and determined that the court did not err in denying Duran's request to proceed pro se, which was equivocal and made because he wanted his appointed counsel to be replaced with new counsel. See Trial Court Opinion, 12/8/15, at 23-26; see also Commonwealth v. Davido , 868 A.2d 431, 440 (Pa. 2005) (holding that the trial court properly denied the defendant's equivocal request to proceed pro se, where the request was posed as a "bargaining device," and the defendant's only alternative if the court declined his request for the appointment of new counsel). We agree with the trial court's sound rationale and determination, and therefore affirm on this basis in rejecting Duran's second issue, see Trial Court Opinion, 12/8/15, at 23-26, with the following addendum.
Duran's claim that the trial court erred by allegedly failing to conduct a colloquy to address his request to proceed pro se does not entitle him to relief. "[F]or purposes of appellate proceedings, a court only needs to conduct an on the record colloquy when there has been a 'timely and unequivocal' request to proceed pro se." Davido , 868 A.2d at 438 (emphasis added). In the instant case, Duran's request was not unequivocal. Moreover, our review of the portions of the transcript from the April 20, 2015 hearing upon which Duran relies, see N.T., 4/20/15, at 132- 35), reveals no unequivocal request to self-representation. See also Trial Court Opinion, 12/8/15, at 26 (wherein the trial court stated that, at the April 20 hearing, it had considered Duran's argument on his request to proceed pro se, as well as the remarks that he made "during [his] colloquy").
Indeed, Duran stated only "I'm not happy with [appointed counsel's] representation." N.T., 4/20/15, at 135.
In his third issue, Duran argues that the trial court erred when it permitted the Commonwealth to introduce evidence that he (and two accomplices) had robbed Baker on the day after the shooting, armed with a revolver that was of the same type and caliber as that used in the shooting (hereinafter referred to as "the subsequent bad act evidence"). See Brief for Appellant at 28-41. Duran contends that the trial court erred in determining that this evidence was admissible, under Pennsylvania Rule of Evidence 404(b), to prove Duran's identity as the shooter in the instant case. See Brief for Appellant at 33-39. According to Duran, "it is important to note that the gun in question was not discovered in [his] possession by police[,] and more importantly, it was not tied to the crime herein. ... Accordingly, ... the [subsequent bad act] evidence was not admissible to prove identity ...." Id. at 39. Duran asserts in the alternative that even if the subsequent bad act evidence was admissible under Rule 404(b), the trial court should have excluded it because the probative value of this evidence was outweighed by its prejudicial effect. Id. at 28, 41; see also id. at 35 (urging that the subsequent bad act evidence "should have been excluded because it merely showed a propensity for committing crimes").
Rule 404(b) provides, in relevant part, as follows:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.Pa.R.E. 404(b) (emphasis added).
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
Our standard of review concerning a challenge to the admissibility of evidence is as follows:
The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed on appeal only upon a showing that the trial court committed an abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.Commonwealth v. Johnson , 42 A.3d 1017, 1027 (Pa. 2012) (citations and quotation marks omitted).
The trial court addressed Duran's claim in its Opinion, summarized the applicable law, and determined that the court properly permitted the Commonwealth to introduce the subsequent bad act evidence to prove identity. See Trial Court Opinion, 12/8/15, at 33-35. As the trial court's rationale and determination is supported by the law, we affirm on this basis as to Duran's third issue. See id.
Finally, we must address the legality of Duran's sentence, which matter we may raise sua sponte. See Commonwealth v . Wolfe , 140 A.3d 651, 659 (Pa. 2016); see also Commonwealth v. Randal , 837 A.2d 1211, 1214 (Pa. Super. 2003) (en banc) (stating that an illegal sentence must be vacated). Duran was convicted of felony murder, for which the predicate felony was the crime of robbery. The trial court sentenced Duran to life in prison on the second-degree murder conviction as well as a concurrent term of ten to twenty years in prison on the his robbery conviction. Pursuant to Commonwealth v. Tarver , 426 A.2d 569 (Pa. 1981), a sentencing court has no authority to impose a sentence for felony murder as well as a separate sentence for the predicate offense. Id. at 572-74 (holding that robbery is a "constituent offense" of second-degree murder and thus "same offense" under the double jeopardy test set forth in Blockburger v. United States , 284 U.S. 299 (1932)); see also Commonwealth v. Harper , 516 A.2d 319, 321 (Pa. 1986) (stating that "for double jeopardy purposes, the underlying felony in a felony-murder prosecution is the 'same offense' as the murder; therefore, sentences for both the murder and the underlying felony are prohibited."). Accordingly, the crime of robbery merges with that of second-degree murder for sentencing purposes. We, therefore, affirm Duran's convictions, vacate the separate judgment of sentence imposed for robbery, and affirm the judgment of sentence in all other respects. Because our decision does not affect Duran's aggregate sentence, a remand for resentencing is unnecessary. See Commonwealth v. Henderson , 938 A.2d 1063, 1067-68 (Pa. Super. 2007).
Judgment of sentence affirmed in part and vacated in part. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/28/2016
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