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[U] Commonwealth v. Rosser

Superior Court of Pennsylvania

February 7, 2014



Appeal from the Judgment of Sentence entered June 15, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No: CP-51-CR-0015049-2010




Quincey Rosser, ("Appellant"), appeals from the judgment of sentence entered after a jury convicted him of unlawful restraint and indecent assault.[1]

The pertinent facts and procedural history may be summarized as follows: On November 11, 2010, Cynthia Lopez was walking to her mother's house when she noticed two men walking behind her, who attempted to talk to her. N.T., 10/26/11, at 7-11. Ms. Lopez ignored them. Id. at 15-16. However, one of the men behind her then grabbed her and pulled her into an alleyway. Id. The men then displayed a knife, threatened to kill her, and began to remove her clothes. Id. at 17-20. Ms. Lopez struggled with her assailants, began to scream, and managed to escape, fleeing to her mother's home where she called the police. Id.

Officers William Giulian and Brian Smith of the Philadelphia Police responded to the radio dispatch and spoke with Ms. Lopez, who, although "in an emotional state" and "distraught and crying", was able to provide a description of her assailants. N.T., 10/25/11, at 36-45. Officer Giulian then communicated the description over the police radio and asked for other police units to search the area for anybody matching the description. Id. Ms. Lopez, along with Officer Giulian, then proceeded to drive through the neighborhood to see if they could find the assailants, when another police unit reported that they had detained some suspects and requested Ms. Lopez to be brought to determine if they were the perpetrators. Id. at 49-52. Ms. Lopez immediately identified one of the suspects, Derrick McLaughlin, as one of her assailants, but denied that the second person detained had been involved. Id. at 52-55. While Mr. McLaughlin was being taken to a patrol car, he called out to Appellant, who was standing on the street, and who began to run away. Id. at 55-58. The police officers pursued Appellant, and after they apprehended him, Ms. Lopez identified him as the second assailant. Id. at 59-60. Appellant was arrested and charged with the aforementioned crimes.

A three-day jury trial commenced on October 25, 2011, at the conclusion of which, on October 27, 2011, the jury found Appellant guilty of unlawful restraint and indecent assault.

For reasons that are not clear from the record, Appellant was not sentenced until June 15, 2012, when the trial court sentenced him to 2½ -5 years for unlawful restraint, and a consecutive 2½ - 5 years for indecent assault.

Appellant filed a timely appeal on July 5, 2012. The next day, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. On July 16, 2012, Appellant filed a request for extension of time to file his statement pending receipt of all notes of testimony. See Pa.R.A.P. 1925(b)(2). The trial court did not rule on Appellant's request for extension of time, and on July 26, 2012, Appellant filed a Pa.R.A.P. 1925(b) statement. The notes of testimony from the jury trial and sentencing hearing became available in September of 2012. On November 6, 2012, the trial court filed a Pa.R.A.P. 1925(a) opinion.

On appeal before this Court, Appellant requested a remand for the completion of the record, the filing of a supplemental Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and a responsive trial court opinion due to Appellant's counsel not having the trial transcripts at the time the original Pa.R.A.P. 1925(a) statement was prepared. On July 26, 2013, this Court remanded the case for Appellant to file a supplemental Pa.R.A.P. 1925(b) statement, and for the trial court to file an amended Pa.R.A.P. 1925(a) opinion. Commonwealth v. Rosser, 1948 EDA 2012, Slip. Op. at 1-4 (Pa.Super. 2013) (unpublished).

Appellant filed a supplemental concise statement raising a claim that the trial court erred in permitting the introduction of inadmissible hearsay testimony at trial. The trial court filed a supplemental Pa.R.A.P. 1925(a) opinion on January 16, 2014. Appellant now presents a single issue for our review:

1. Did not the trial court err in allowing inadmissible hearsay statements into evidence?

Appellant's Brief at 3.

Appellant argues that the trial court erred in permitting the hearsay testimony of Officer Giulian, who testified to several out-of-court statements made to him by Ms. Lopez. In reviewing such ...

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