Appeal from the Judgment of Sentence January 2, 2007 In the Court of Common Pleas of Berks County Criminal Division at No. CP-06-CR-0000814-2006.
The opinion of the court was delivered by: Bender, J.
BEFORE: MUSMANNO, BENDER and CLELAND, JJ.
¶ 1 William C. Bibbs appeals from the January 2, 2007 judgment of sentence of an aggregate of fourteen to thirty years' incarceration imposed following his convictions for robbery (18 Pa.C.S. § 3701(a)(1)(i)), conspiracy to commit robbery (18 Pa.C.S. § 903(a)(1)), two counts of aggravated assault (18 Pa.C.S. § 2702(a)(1), (4)), two counts of conspiracy to commit aggravated assault (18 Pa.C.S. § 903(a)(1)), firearms not to be carried without a license (18 Pa.C.S. § 6106(a)(1)), conspiracy to commit firearms not to be carried without a license (18 Pa.C.S. §903(a)(1)), possession of an instrument of crime (18 Pa.C.S. § 907(a)), and conspiracy to commit possession of an instrument of crime (18 Pa.C.S. § 903(a)(1)).*fn1 We affirm.
¶ 2 The trial court set forth the following facts of the instant case in its opinion filed pursuant to Pa.R.A.P. 1925(a):
On December 4, 2005, Officer Paul Reilly of the City of Reading Police Department was the first officer to arrive at a crime scene outside the Renaissance Bistro at 550 North Third Street, City of Reading, Berks County, Pennsylvania. He arrived very early in the morning, within approximately two minutes of receiving a report of a shooting from dispatch. He arrived moments prior to emergency medical services. When Officer Reilly arrived, the victim, Martin Phillips, was sitting on the sidewalk with assistance from another individual. Mr. Phillips appeared to be upset and in pain. Officer Reilly asked Mr. Phillips who had shot him, but reserved all other questioning until later. Mr. Phillips immediately responded that a man he knew as Bill had shot him.
On December 6, 2005, Criminal Investigators William Strickler and Madison Winchester interviewed the [victim] at the hospital. C.I. Strickler described Mr. Phillips as in a lot of pain, but very sure of himself, and completely conscious at the time of the interview. Mr. Phillips described to the officers how he and a friend had left the Renaissance and were approached by Ant and Bill. After the friend ran, Mr. Phillips was robbed by Ant and Bill. As Mr. Phillips turned to leave, he heard Bill call him a derogatory term, saw Bill began [sic] to take his hand out of his pocket, heard a gunshot, and immediately felt the bullet hit him. The bullet lodged in or near his spinal cord. C.I. Strickler showed two photographs to Mr. Phillips. In response to the first photograph, Mr. Phillips indicated that was the shooter, Bill, and in response to the second, he indicated that was Ant, the individual who robbed him. The first photograph was a photograph of the defendant. Both Mr. Phillips and C.I. Strickler signed the photographs.
At the jury trial on July 12, 2006, testimony began with Mr. Phillips, who had also testified at the preliminary hearing and then reluctantly testified at the pretrial hearing. During the jury trial, Mr. Phillips stated that he did not want to testify because the person who shot him was not in the courtroom. However, he stated that he did not know who shot him. He did testify that he was at the Renaissance Bistro at 550 North Third Street on December 4, 2005, observed an altercation, and was shot. Mr. Phillips stated that the defendant was nowhere near that location at that time. He did not remember being robbed, but did recall that he was shot in the back. He did not recall his injuries except that his bowels were paralyzed for three months after the incident, he was numb, and could barely walk.
The Assistant District Attorney Joseph Speece, showed Mr. Phillips a photograph of the defendant signed by Mr. Phillips. Mr. Phillips stated that he had signed the photo at the hospital after being shot, but was under much medication. At that time, he believed the individual in the photo was the person who shot him and he had voiced this to C.I. Strickler. However, at the time of trial, Mr. Phillips no longer believed that the defendant was the one who shot him. The photograph was admitted as Commonwealth's Exhibit One.
Assistant District Attorney Speece showed a second photograph to Mr. Phillips. Mr. Phillips' signature also appeared on this photograph. Mr. Phillips responded that he had never seen the person in the photo prior to the night he was shot, but that when he signed it, he thought that was the other person involved in the shooting. He adamantly stated that the defendant was not the person who shot him. Mr. Phillips stated that he lied during his testimony at the preliminary hearing. On cross-examination he stated that he heard from other people that the defendant shot him, but he did not really know who it was. The defendant was not licensed to carry a firearm at the time of this incident. A shell casing from a handgun was recovered from the scene of the shooting.
The transcripts of the preliminary hearing and pretrial hearing were read to the jury during trial. The facts gleaned from Mr. Phillips' preliminary hearing testimony are set forth in this paragraph. Mr. Phillips was leaving the Renaissance bar, walking to his car with a friend at about midnight. The friend noticed two men approaching and ran away from the area. Mr. Phillips knew one of the men as Bill and identified this person as the defendant. The other individual he knew as Ant. Ant punched [Mr. Phillips], pushed him into a corner, reached into [Mr. Phillips'] pockets, and removed his cash. Bill had his hands in his pockets the entire time, until Mr. Phillips began to turn to leave. Bill made a comment about Mr. Phillips. At that point, Mr. Phillips saw Bill take his hands out of his jacket pockets. Mr. Phillips heard a gunshot, and felt the bullet enter his side. He did not see what Bill had in his hand, although he was only about three feet away. Mr. Phillips could see Ant next to him, but did not see a gun in his hands. Ant and Bill entered their vehicle that was a few feet away from them and left the area.
Mr. Phillips had failed to appear at the scheduled preliminary hearing on two occasions; therefore, a bench warrant was issued for his arrest. Upon arrest, controlled substances were found in his possession. He was subsequently sentenced to three to six years incarceration for that possession of a controlled substance.
A portion of the pretrial transcript was read to the jury during trial. That portion included a statement by the defendant's attorney that Mr. Phillips did not wish to testify. When asked if he recalled what happened at the Renaissance, Mr. Phillips stated that he did not remember what happened other than going to the hospital and talking with the Reading Police because he had been shot in his back. Later Mr. Phillips stated that he did remember but did not wish to testify. When shown a photograph of the defendant that Mr. Phillips had previously signed, Mr. Phillips acknowledged that this was a photo of the defendant and that he was familiar with the defendant by sight, but did not personally know him. Mr. Phillips stated that he had testified truthfully at the preliminary hearing, but must have been mistaken. He was on medication at the time of both the preliminary hearing and the pretrial hearing.
Trial Court Opinion (T.C.O.), 7/19/07, at 2-5.
¶ 3 Appellant proceeded to a jury trial on July 6, 2006, following which he was convicted of the above-noted crimes. On January 2, 2007, the trial court imposed the aggregate judgment of sentence of fourteen to thirty years' imprisonment. Appellant filed a timely post-trial motion, which the trial court denied on January 23, 2007. Appellant filed a timely appeal on February 15, 2007, but later, on November 11, 2007, our Court dismissed the appeal for the failure to file a brief. Appellant filed a timely petition for post conviction collateral relief, following which his direct appeal rights were reinstated nunc pro tunc. We are now presented with Appellant's timely direct appeal.
¶ 4 Appellant raises the following issues in the "Statement of the Questions Involved" portion of his brief:
A. WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE VERDICT BECAUSE THE IDENTIFICATION FROM VICTIM WITNESS (MARTIN PHILLIPS) RECANTED HIS PREVIOUS TESTIMONY [sic] IMPLICATING APPELLANT AND THE VICTIM STATED THAT HIS IDENTIFICATION WAS BASED ON WHAT HE HEARD FROM OTHER PEOPLE?
B. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PRETRIAL MOTION FOR WRIT OF HABEAS CORPUS BASED ON TESTIMONY AT THE PRELIMINARY HEARING WHERE THE WITNESS RECANTED HIS PRELIMINARY HEARING TESTIMONY AT THE PRETRIAL HEARING, AND THE "LOSS OF MEMORY" STANDARD WAS IMPROPERLY APPLIED BECAUSE DEFENSE COUNSEL DID NOT HAVE DISCOVERY AVAILABLE AT THE TIME OF THE PRELIMINARY HEARING?
C. DID THE TRIAL COURT ERR IN FAILING TO CHARGE THE JURY THAT WHERE THERE IS A RECANTATION OF PRIOR TESTIMONY AT TRIAL THE LAST STATEMENT OF A WITNESS IS THE ONE THAT CONTROLS AND ALL PREVIOUS STATEMENTS MUST BE DISREGARDED[?]
D. DID THE TRIAL COURT ERR IN ALLOWING THE COMMONWEALTH'S ATTORNEY TO TREAT ITS OWN WITNESS (MARTIN PHILLIPS) AS A HOSTILE WITNESS WITHOUT THE PROPER FOUNDATION HAVING BEEN LAID, WEREBY PREJUDICING APPELLANT?
E. DID THE TRIAL COURT ERR IN ALLOWING THE PROSECUTION TO PRESENT EVIDENCE OF HEARSAY STATEMENTS THROUGH OFFICER REILLY UNDER THE EXCITED UTTERANCE EXCEPTION TO HEARSAY?
F. DID THE TRIAL COURT ERR IN NOT GRANTING APPELLANT'S MOTION FOR A MISTRIAL AFTER THE REMARKS MADE BY THE COMMONWEALTH'S ATTORNEY IN RELATION TO THE ...