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Commonwealth v. Harris

SUPERIOR COURT OF PENNSYLVANIA
Sep 30, 2016
No. 1221 EDA 2015 (Pa. Super. Ct. Sep. 30, 2016)

Opinion

J-S59033-16 No. 1221 EDA 2015

09-30-2016

COMMONWEALTH OF PENNSYLVANIA v. VINCENT HARRIS Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence March 27, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006880-2013 BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J. MEMORANDUM BY FITZGERALD, J.:

Former Justice specially assigned to the Superior Court.

Appellant, Vincent Harris, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following a jury trial and conviction for first-degree murder, criminal conspiracy, violation of the Uniform Firearm Act ("VUFA"), and possession of an instrument of crime ("PIC"). Appellant challenges the admission of evidence. We affirm.

We adopt the facts set forth in the trial court's opinion. See Trial Ct. Op., 6/30/15, at 2-18. The court sentenced Appellant on March 27, 2015, to a mandatory sentence of life without any possibility of parole on the first- degree murder charge, five to ten years' imprisonment on the conspiracy charge, one to two years' imprisonment plus probation, on the VUFA charge and six to twelve months' imprisonment plus probation on the PIC charge. All sentences were to run concurrently with one another.

Appellant filed a timely notice of appeal on April 21, 2015. On May 13, 2015, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement. Trial counsel failed to file a Rule 1925(b) statement and instead filed a motion to withdraw from this case with this Court. This Court granted trial counsel's motion to withdraw and directed that new counsel for Appellant be appointed. The trial court appointed Appellant's instant counsel on August 28, 2015. In the interim, the trial court issued a thorough and comprehensive thirty-six page opinion on June 30, 2015.

We note that neither trial counsel nor present counsel filed a Rule 1925(b) statement. It is well settled that the appropriate remedy, pursuant to Pa.R.A.P. 1925(c)(3), is to remand to the trial court for either the filing of a Rule 1925(b) statement nunc pro tunc or the filing of a Rule 1925(a) opinion to fully address the issues raised in an untimely Rule 1925(b) statement. Further, this Court has specifically ruled that when a Rule 1925(b) statement is untimely filed, "this Court may decide the appeal on the merits if the trial court had adequate opportunity to prepare an opinion addressing the issues being raised on appeal." Commonwealth v. Burton , 973 A.2d 428, 433 (Pa. Super. 2009). In this case, the trial court did have the opportunity to prepare a thirty-six page opinion, which comprehensively addressed the issues Appellant has instantly raised on appeal. Therefore, there is no need to remand this case for the preparation of such opinion and in the interest of judicial economy we proceed to the merits.

On appeal, Appellant raises the following issues for review:

I. Did the trial court err in allowing the Commonwealth to read the preliminary hearing testimony of the witness,
Duron Flynn, to the jury because this testimony was hearsay and the Commonwealth failed to show that [A]ppellant had a full and fair opportunity to examine this witness at the preliminary hearing and also failed to show that the witness was unavailable at the time of trial and was [A]ppellant denied his right under the United States Constitution and the Pennsylvania Constitution to . . . [c]onfront this witness?

II. Did the trial court err in allowing the testimony of the Police Officers' Yerges and Buitrago that on 3-21-13 and 3-22-13 over 7 months after the alleged homicide 8-1-12, they observed [A]ppellant searched the residence of [A]ppellant and his grandparents after observing [A]ppellant enter into numerous illicit drug transactions with a confidential informant (CI) and in the residence found the firearm that was used in the homicide and illegal drugs alleged to be crack cocaine and illegal drug paraphernalia when this evidence was not relevant to guilt?

III. Did the trial court err in allowing the testimony of the Police Officers' Yerges and Buitrago that on 3-21-13 and 3-22-13 over 7 months after the alleged homicide 8-1-1[2], they observed [A]ppellant searched the residence of [A]ppellant and his grandparents after observing [A]ppellant enter into numerous illicit drug transactions with a confidential informant (CI) and in the residence found illegal drugs alleged to be crack cocaine and illegal drug paraphernalia when this evidence was not relevant to guilt?
Appellant's Brief at 2.

We note that Appellant presents substantially the same question in his second and third issue.

In his first issue, Appellant argues that the preliminary hearing testimony of witness Duron Flynn was erroneously admitted at trial because this evidence constituted impermissible hearsay. Specifically, Appellant claims that he did not have a full and fair opportunity to cross-examine the witness at the preliminary hearing and the witness was not truly "unavailable" to testify because the Commonwealth did not pursue an adequate search. In his second issue, Appellant contends that the trial court erred by admitting the testimony of Police Officers Yerges and Buitrago regarding Appellant's illegal drug activities and possession of the murder weapon over eight months after the alleged homicide. We hold Appellant is due no relief.

It is axiomatic that:

[q]uestions regarding the admission of evidence are left to the sound discretion of the trial court, and we, as an appellate court, will not disturb the trial court's rulings regarding the admissibility of evidence absent an abuse of that discretion. An abuse of discretion is not merely an error of judgment; rather, discretion is abused when "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." . . .
Commonwealth v. Trinidad , 96 A.3d 1031, 1036 (Pa. Super. 2014) (citations and quotations omitted).

"It is well-established . . . that the introduction of an unavailable witness's prior recorded testimony from a preliminary hearing is admissible at trial and will not offend the right of confrontation, provided the defendant had counsel and a full opportunity to cross-examine that witness at the hearing." Commonwealth v. McCrae , 832 A.2d 1026, 1035 (Pa. 2003). Under the Pennsylvania Rules of Evidence, a witness is deemed unavailable if attendance at trial cannot be procured through reasonable means. Pa.R.E. 804(a)(5)(A).

Generally, "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be admissible "when offered to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident." Commonwealth v. Ross , 57 A.3d 85, 98 (Pa. Super. 2012). Moreover, "[t]he law presumes that the jury will follow the instructions of the court." Commonwealth v. Chmiel , 30 A.3d 1111, 1184 (Pa. 2011) (citations omitted).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Genece Brinkley, we conclude Appellant's issues merit no relief. The trial court's thirty-six page opinion comprehensively discusses and properly disposes of the questions presented. See Trial Ct. Op. at 26-36 (finding (1) the preliminary hearing testimony of witness Flynn was properly admitted at trial because Appellant had the opportunity to fully cross-examine Flynn regarding his criminal extract and that the Commonwealth had engaged in a reasonable search for the witness but was unable to locate him, rendering him "unavailable" to testify at trial; (2) the testimony of Police Officers Yerges and Buitrago, regarding Appellant's narcotics activities and possession of the murder weapon was properly admitted because the evidence was highly relevant to prove Appellant's identity as the shooter in the instant case where the firearm was found in Appellant's residence next to identical narcotics packages as had been in Appellant's possession; and (3) the trial court issued a curative instruction to emphasis that such evidence was not to be considered evidence of a general criminal propensity). Accordingly, we affirm on the basis of the trial court's opinion.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/30/2016

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Summaries of

Commonwealth v. Harris

SUPERIOR COURT OF PENNSYLVANIA
Sep 30, 2016
No. 1221 EDA 2015 (Pa. Super. Ct. Sep. 30, 2016)
Case details for

Commonwealth v. Harris

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA v. VINCENT HARRIS Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Sep 30, 2016

Citations

No. 1221 EDA 2015 (Pa. Super. Ct. Sep. 30, 2016)