Appeal from the Judgment of Sentence December 8, 2009 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-1302757-2006, CP-51-CR-0841941-2006
BEFORE: GANTMAN, OLSON, and FITZGERALD, [*] JJ.
Appellant, Ian Tapper, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following his jury conviction, after a mistrial, of robbery. He raises eight issues for our review: (1) a Pa.R.Crim.P. 600-speedy trial violation; (2) double jeopardy; (3) the admission of Appellant's neighbor's statement to police, where the neighbor died prior to trial, allegedly killed at Appellant's behest; (4) the limit on his cross-examination of a detective concerning the deceased neighbor's statement; (5) limits on his cross-examination of another Commonwealth witness; (6) the court's error in sustaining one of his objections at sidebar rather than in the presence of the jury; (7) the sustaining of an objection to his closing argument concerning a Commonwealth witness' motivation to testify; and (8) prosecutorial misconduct for a statement in the Commonwealth's closing argument. We find no merit to any of Appellant's claims and affirm.
On September 1, 2006, a criminal complaint was filed, charging Appellant with the robbery and non-fatal shooting of Edward Roberts. Roberts' neighbor, Karl Rone, gave a statement to the police implicating Appellant in the shooting. Rone later died, allegedly killed at Appellant's behest. The Commonwealth filed a pre-trial motion to admit Rone's statement under the forfeiture by wrongdoing exception to the hearsay rule. After several hearings, the court allowed the evidence.
On December 4, 2007, Appellant filed a motion to dismiss, alleging a speedy-trial violation under Pa.R.Crim.P. 600(G). The court heard the motion on December 10th and denied it, and the case immediately proceeded to a jury trial on the charges of attempted murder,  aggravated assault,  robbery/threaten immediate serious bodily injury, and possessing an instrument of crime ("PIC"). During trial, the court granted a judgment of acquittal for attempted murder, and the jury subsequently found him not guilty of aggravated assault and PIC. However, the jury was hung on the count of robbery, and a mistrial was declared as to that charge.
A second jury trial for the robbery charge commenced on August 19, 2009. The trial court summarized the Commonwealth's evidence as follows:
On August 26, 2006, at about 2:15 A.M., Edward Roberts and Jeffery Branson stopped to get take-out food at the corner of 54th and Arlington Streets in West Philadelphia. Branson, the driver, remained in the car while Roberts went into the store. [N.T. Trial, 8/20/09, at 47.] As Roberts exited the store with his food, he was grabbed from behind by a man who demanded that Roberts hand over his money. When Roberts attempted to fight off his assailant, the man shot him three times. Id. at 62-65. Roberts ran back to Branson's car, and Branson rushed him to the hospital. Id. at 79. Roberts was in surgery for approximately six hours. Id. at 159.
While Roberts was in surgery, Philadelphia Detective David Baker examined the crime scene and recovered three 9mm fired cartridge casings on the sidewalk; they were near a bag of food and a bloodstain that ran down the street. Id. at 136-137. The next day, August 27, Detective Baker interviewed Edward Roberts. Roberts told Detective Baker that he did not know who the shooter was. Id. at 143.
On August 28th, Detective Timothy McCool interviewed Edward Roberts's neighbor, Karl Rone. Rone told Detective McCool that Edward Roberts had known the shooter and that he knew this person as "Ian Sanchez." Id. at 123. Rone identified [Appellant, Ian Tapper, ] in a photo array as the person he was talking about. Id. Rone also said that he had seen [Appellant] carrying a gun around midnight on August 27; he believed it to be a 9mm weapon. Id. Detective McCool forwarded the interview to Detective Baker.
Based on this information, Detective Baker decided to interview Roberts again on August 29. [Id. at 144.] Edward Roberts picked [Appellant] out of a photo array prepared by Detective Baker and identified him as the shooter. Id. at 146. When Detective Baker asked Roberts why he had not divulged the name of the shooter during the previous interview, Roberts replied, "Because I was pissed the [f---] off." Id. Edward Roberts later recanted at trial, claiming that he did not remember these events.
On August 31, 2006, [Appellant] was arrested and remained in custody . . . until his trial. Id. at 147. On February 9[, ] 2007, Karl Rone was killed. [Appellant's] third cousin, Amir Sanchez, gave a statement to Philadelphia Police that he had conversations with [Appellant] on February 12, 2007, while both were in custody at the same prison[.] According to Sanchez, after [Appellant] heard from his attorney that Karl Rone had provided information to Detective Baker, he called his friend Darylmir Larkin and told Larkin to "handle that" situation. Sanchez explained that "handling" the situation meant murdering Karl Rone. [Appellant] also discussed his plans to kill "Rollie, " as Edward Roberts was known. After Sanchez was back out on the street, he had a conversation with Darylmir Larkin in which Larkin discussed having killed Rone as well as his plans to kill Roberts. Larkin stated that he did this out of "loyalty to his man."
Trial Ct. Op., 3/8/12, at 1-3.
We add that at trial, Detective McCool read aloud the statement that the late Karl Rone made to him, as written by Detective McCool and reviewed by Rone. N.T., 8/20/09, at 122-25. Appellant did not testify or present evidence.
The jury found Appellant guilty of robbery/threaten immediate serious bodily injury, a felony of the first degree. On December 8, 2009, the court imposed a sentence of nine to twenty years' imprisonment. Appellant did not file a post-sentence motion, but took this timely appeal. The court directed that he file a Pa.R.A.P. 1925(b) statement. However, after trial counsel successfully petitioned to withdraw and new counsel, Raymond D. Roberts, Esq., was appointed, the court permitted an extension of time, and Attorney Roberts filed the statement. As stated above, Appellant presents eight claims for our review.
In Appellant's first issue, he avers the court erred in denying his Pa.R.Crim.P. 600(G) motion to dismiss because of the untimely commencement of trial. Appellant's Brief at 16-17. Specifically, he asserts the following periods are not explained nor excused: September 9 to November 29, 2006; November 30, 2006 to February 9, 2007; and June 26 to August 20, 2007. Id. at 19. Appellant calculates there was "411 days includable time." Id. at 17. Appellant maintains that the Commonwealth failed to exercise due diligence. We find no relief is due.
This Court has stated:
In evaluating Rule  issues, our standard of review of a trial court's decision is whether the trial court abused its discretion. . . .
The proper scope of review . . . is limited to the evidence on the record of the Rule  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.
Additionally, when considering the trial court's ruling, this Court is not permitted to ignore the dual purpose behind Rule . Rule  serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society. . . .
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule  must be construed in a manner consistent with society's right to punish and deter crime. . . .
Commonwealth v. Tickel, 2 A.3d 1229, 1233 (Pa. Super. 2010) (citation omitted).
In a "case in which a written complaint is filed against the defendant [and] when the defendant is at liberty on bail, " trial "shall commence no later than 365 days from the date on which the complaint is filed." Pa.R.Crim.P. 600(A)(3). Rule 600(C) provides in part:
(C) In determining the period for commencement of trial, there shall be excluded therefrom:
(3) such period of delay at any stage of the proceedings as results from:
(a) the unavailability of the defendant or the defendant's attorney;
(b) any continuance granted at the request of the defendant or the defendant's attorney. Pa.R.Crim.P. 600(C)(3)(a)-(b). A defendant "may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated." Pa.R.Crim.P. 600(G).
This Court has explained,
As provided by Rule 600, the trial must commence by the mechanical run date, which is calculated by adding 365 days to the date on which the criminal complaint was filed. The mechanical run date can be adjusted by adding any "excludable" time when the delay was caused by the defendant under Rule 600(C). If the trial begins before the adjusted run date, there is no violation and no need for further analysis.
However, if the defendant's trial is delayed until after the adjusted run date, we inquire if the delay occurred due to "excusable delay, " circumstances beyond the Commonwealth's control and despite its due diligence pursuant to Rule 600(G).
Tickel, 2 A.3d at 1234 (citations omitted). This Court has held that a Commonwealth continuance due to the unavailability of a witness was excusable delay. See Commonwealth v. Hunt, 858 A.2d 1234, 1242-43 (Pa. Super. 2004) (en banc); Commonwealth v. Staten, 950 A.2d 1006, 1010 (Pa. Super. 2008).
In the instant matter, Appellant assigns a lapse of two days for the period between his August 31, 2006 arrest and the September 1, 2006 filing of the complaint. Appellant's Brief at 16. However, Rule 600 clearly provides that the time for trial tolls from the filing of a criminal complaint. Pa.R.Crim.P. 600(A)(3). We add 365 days to September 1, 2006, and determine the mechanical run date was September 3, 2007.See Tickel, 2 A.3d at 1234. Trial commenced ninety-nine days thereafter, on ...