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[U] Commonwealth v. Hemingway

Superior Court of Pennsylvania

February 25, 2014



Appeal from the Judgment of Sentence May 24, 2012 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000043-2009




Appellant, Maharaji Hemingway, appeals from the judgment of sentence of an aggregate term of 17 to 26 years' incarceration, imposed following his conviction for numerous drug-related offenses. Appellant challenges the sufficiency and weight of the evidence supporting his conviction, and the sufficiency of the evidence supporting the application of a mandatory minimum sentence. Appellant also claims the trial court erred by denying his motion to sever his case from his codefendants, and by repeatedly denying his motions for bail. After careful review, we vacate Appellant's sentence and remand for resentencing.

The trial court summarized the facts adduced at trial as follows:

During the course of an eight (8) day trial, the Commonwealth presented the testimony of twenty-four (24) witnesses who were connected with or participated in the cocaine distribution ring alleged in this case. Of those, at least ten (10) witnesses provided testimony directly regarding the [Appellant] and/or his involvement in selling cocaine in Clearfield County. For example, Arianne Brocious testified that she first met [Appellant] (known to her as "Bean") through her cousin, Kara Butler, to purchase cocaine. She testified that she then introduced [codefendant Michael] Styers to [Appellant], and made multiple trips with Styers and/or with [codefendant Charles] Gearhart to Philadelphia to purchase cocaine from [Appellant]. In her testimony, Ms. Brocious estimated that four (4) ounces of cocaine were purchased per trip, with the trips occurring once or twice a week. She testified that she made around or more than fifteen (15) trips with Styers and/or Gearhart, and that they would also make trips without her.
Tara Swatsworth (Osborn) testified that she became involved with the use of cocaine in March of 2006, buying from Richard Smeal and Jacob Pittman. She first met [Appellant] as "Bean" when he came to her house in Curwensville, Clearfield County, Pennsylvania. She testified that he arrived with a shoebox containing a half full half-gallon bag of loose cocaine. Ms. Swatsworth then witnessed [Appellant] give Mr. Pittman ten (10) one-gram bags of cocaine to sell, according to her testimony. She then recalled that Mr. Pittman and herself [sic] went around selling the bags and then returned to her residence where they picked up twenty (20) more one-gram bags of cocaine to sell and/or use. She had further contact with [Appellant] through cell phone calls and a trip to Philadelphia, testifying that she took Mr. Smeal along to meet [Appellant] and obtain cocaine. Ms. Swatsworth testified that she had sexual intercourse with [Appellant] and was given an "eightball", approximately three (3) grams of cocaine, and Mr. Smeal was fronted approximately an ounce of cocaine by [Appellant].
Kristen Wilsoncroft testified that she met "Bean" in approximately 2005 through Styers at her father's residence in Clearfield, and that she then drove [Appellant] back to Philadelphia. She apparently became [Appellant]'s pseudo-chauffeur, testifying that he would call her on his cell phone, she would pick him up in Philadelphia, drive him to Clearfield, and then back home to Philadelphia in exchange for free cocaine. Ms. Wilsoncroft testified that she made approximately seven such trips with [Appellant] to and from Philadelphia in the spring/summer of 2005. She also testified to having a sexual relationship with [Appellant] over the course of their association.
Rick Wilkinson testified that he met [Appellant] in the summer of 2005 on a trip to Philadelphia with B.J. Kifer and his ex-wife, Jodi Wilkinson, where he purchased cocaine from [Appellant]. According to his testimony, Mr. Wilkinson lent his car to Styers, who used it to make trips to Philadelphia to obtain cocaine from [Appellant] throughout 2005. He also testified that [Appellant] came to his (Wilkinson['s]) residence in Clearfield County, and that [Appellant] contacted him in 2006 and wanted him to sell cocaine.
Other witnesses who testified to events regarding [Appellant] included Charles Gearhart (through Grand Jury transcript), Brandon Kifer, Joseph Hunter, Danielle Gearhart, Richard Smeal, and Jacob Pitman. The testimony established that [Appellant] was a main supplier of cocaine to Styers and made numerous trips to Clearfield County to sell cocaine, staying in hotel rooms or [at] Tara Swatsworth's house. Testimony was also provided that there were sightings of [Appellant] at the Styers residence, the Wilsoncroft residence, the Wilkinson residence, and the Gearhart residence during this time period. Witnesses testified to purchasing cocaine from [Appellant], being approached to sell for [Appellant], and that [Appellant] was seen in possession of a large amount of loose cocaine. Although many of the witnesses had prior criminal records and were co-conspirators in the drug organization, these matters were fully explored on direct and cross-examination, along with any plea agreements with the Attorney General.

Trial Court Opinion (TCO), 1/31/13, at 3 – 5.

On September 25, 2008, a grand jury recommended that criminal charges be filed against 14 individuals, including Appellant, for their involvement in the cocaine distribution ring centered in Clearfield County. The Pennsylvania Office of the Attorney General (the Commonwealth) filed charges against Appellant on October 31, 2008.

Prior to his trial, Appellant and his codefendants (collectively, the defendants) filed motions in limine seeking to prevent the Commonwealth from calling 34 witnesses who had testified before the grand jury. The defendants' motions alleged that the Commonwealth failed to provide copies of the grand jury transcripts of the witnesses' testimonies in a timely fashion, in abrogation of a pretrial conference order. The trial court granted the requested relief on July 13, 2009, and the Commonwealth immediately appealed. This Court reversed and remanded on January 11, 2011, after concluding that the Commonwealth had "substantially complied" with the pretrial conference order. Commonwealth v. Hemingway, 13 A.3d 491, 503 (Pa.Super. 2011). Appellant did not seek review of that decision with our Supreme Court.

While the Commonwealth was appealing from the order granting the defendants' motions in limine, Appellant made several attempts to have his bail of one million dollars straight cash reduced.[1] On July 31, 2009, the trial court denied Appellant's motion for reduction of bail following a hearing. Appellant filed a petition for review with this Court, which we denied on August 19, 2009. The Supreme Court denied his petition for review on February 16, 2010. Appellant filed another motion to reduce his bail on December 22, 2010. That motion was denied by the trial court on January 14, 2011.

On February 16, 2011, Appellant filed a pretrial motion to sever his case from that of his codefendants. The trial court denied the motion. Subsequently, Appellant was jointly tried by jury with codefendants Gearhart and Styers in an eight day trial, beginning on January 23, 2012. At the conclusion of the trial, the jury convicted Appellant of six counts of delivering a controlled substance, 35 P.S. § 780-113(a)(30) (counts 1 – 6); criminal conspiracy to deliver a controlled substance, 18 Pa.C.S. § 903(c) (count 7); criminal use of communication facility, 18 Pa.C.S. § 7512 (count 8); dealing in proceeds of unlawful activities, 18 Pa.C.S. § 5111(a)(1) (count 9); corrupt organizations, 18 Pa.C.S. § 911(b)(4) (count 11); and criminal conspiracy -corrupt organizations (count 12).

On April 5, 2012, in order to assess the applicability of mandatory minimum sentences, the trial court conducted an evidentiary hearing for the purpose of determining the weight of the narcotics that formed the basis for Appellant's six delivery convictions. Both parties were permitted to present evidence and submit briefs for the trial court's consideration. Subsequently, on May 24, 2012, Appellant was sentenced to an aggregate term of 17 – 26 years' incarceration and fined a sum of $155, 005.[2] Afterward, Appellant filed a timely post-sentence motion which was denied by operation of law on October 12, 2012. Appellant then filed a timely notice of appeal on October 23, 2012.

Appellant now presents the following questions for our review:

1. Did the Commonwealth present sufficient evidence, as a matter of law, to sustain the verdicts on all counts?
2. Was the verdict contrary to the weight of the evidence on all counts[, ] as stated in the Post-Sentence Motion[, ] and should a new trial have been granted?
3. Was the evidence regarding the weight of the cocaine sufficient to establish the mandatory minimum sentence[s]?
4. Did the trial court err when it denied the Motion to Sever filed on February 16, 2011?
5. Did the trial court err when it continually denied the multiple bail motions filed by the Defendant[]?

Appellant's Brief at 13.

Sufficiency of the Evidence - Verdict

Appellant's initial claim challenges the sufficiency of the evidence supporting his convictions. First, he asserts that his convictions at counts 1 – 6 were unsupported by sufficient evidence because "the Commonwealth failed to prove that a controlled substance was possessed by" Appellant. Id. at 24. Second, he contends there was not sufficient evidence of a conspiracy at count 7 because "the Commonwealth failed to prove that [Appellant] committed an overt act in furtherance of a conspiracy to sell cocaine." Id. Third, as to count 8, he claims a lack of sufficient evidence because "the Commonwealth failed to prove that [Appellant] utilized a communication facility to cause the sale of a controlled substance." Id. Fourth, regarding count 9, he asserts that "the Commonwealth failed to prove that [Appellant] completed financial transactions." Id. Finally, Appellant also contends that the evidence was insufficient to support his convictions at counts 11 and 12.

Our standard of review for sufficiency claims is as follows:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d 1167 (1993). Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876 (1975). When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991).

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

Appellant's sufficiency claims can be addressed together, as they all concern a single unifying argument, summarized by Appellant as follows:

In the present case, there are no physical facts that would support these verdicts. It is undisputed that [Appellant] was never found in possession of any cocaine or other controlled substance. It is undisputed that [Appellant] was never found in possession of any cellular telephone or other communication device. Furthermore, the Commonwealth presented no evidence that [Appellant] was in possession of any money, let alone proceeds or property from the sale of controlled substances. In short, the Commonwealth's entire case rests upon the testimony of accomplices.

Appellant's Brief at 26.

In his brief, Appellant concedes that "the testimony of an accomplice is sufficient to sustain a conviction." Id. "However, " he argues, "the difference between the instant case and EVERY case that stands for the proposition that the testimony of an accomplice alone is sufficient to justify a conviction is that in each of these 'other' cases, there is independent evidence that a crime has been committed." Id. Appellant then supports his argument by contrasting the evidence in his case with the evidence in several others, namely Commonwealth v. Betz, 664 A.2d 600 (Pa.Super. 1995), Commonwealth v. Fodero, 417 A.2d 648 (Pa.Super. 1979), Commonwealth v. Butch, 390 A.2d 803 (Pa.Super. 1978), and Commonwealth v. Wright, 323 A.2d 389 (Pa.Super. 1974).[3]

Consistent with Appellant's argument, each of the foregoing cases involved limited and primarily testimonial evidence, but were not sustained solely on the basis of the testimony of a coconspirator or accomplice. However, none of these cases directly involved the issue raised by Appellant: whether a conviction can be sustained on sufficiency grounds solely upon the testimony of an accomplice. Accordingly, Appellant has not cited any controlling authority that would require us to conclude that the evidence presented in the trial court was insufficient to sustain Appellant's convictions.

Pennsylvania Courts has repeatedly recognized that "guilt may be predicated even upon the uncorroborated testimony of an accomplice." Commonwealth v. Spencer, 639 A.2d 820, 824 (Pa.Super. 1994) (emphasis added); Commonwealth v. Goldblum, 447 A.2d 234, 240 (Pa. 1982) ("A jury may convict even on the uncorroborated testimony of an accomplice."); Commonwealth v. Cristina, 391 A.2d 1307, 1310-11 (Pa. 1978) ("while an accomplice's testimony must be received with caution, … a jury may convict on the uncorroborated testimony of an accomplice."). Moreover, Appellant drastically understates the evidence against him in this case. Appellant's convictions were not based solely upon the uncorroborated testimony of a single coconspirator or accomplice. At least ten witnesses testified regarding Appellant's drug distribution activity during his trial. TCO, at 3. Although there was no corroborative physical evidence presented by the Commonwealth, the witnesses' testimonies were corroborative of each other. Accordingly, his claim that the evidence was not sufficient to sustain his convictions is meritless.

Weight of the Evidence - Verdict

Next, Appellant contends that the trial court abused its discretion by rejecting his claim that he should be granted a new trial because the verdict was against the weight of the evidence, as was raised in Appellant's post-sentence motion. In support of his claim, Appellant highlights the testimony of several witnesses who claimed to have interacted with Appellant at times he was proven to be incarcerated. Appellant also draws our attention to inconsistencies in the testimonies of witnesses in identifying Appellant as 'Bean.' Furthermore, Appellant notes that many of the witnesses were admitted cocaine addicts, thieves, and – as discussed with regard to Appellant's sufficiency claim - accomplices in the drug distribution operation for which Appellant was ultimately held responsible.

In reviewing this claim, we adhere to the following legal principles:

A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, "the role of the trial judge is to determine that 'notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.'" It has often been stated that "a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail."
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.

Widmer, 560 Pa. at 321–22, 744 A.2d at 753 (emphasis added).

This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, we have explained:

The term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.
Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184– 85 (1993)).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (some internal citations omitted).

The trial court addressed Appellant's weight of the evidence claim as follows:

[Appellant] argues that the timeline provided by several witnesses is in conflict with [Appellant]'s periods of incarceration and also questions whether [Appellant] was properly identified by witnesses as the man they knew as "Bean." The Court finds that many of the witnesses testified to being on drugs at the time of the occurrences, and freely admitted that specific dates/times were estimates because dates/times were unclear in their memory. Furthermore, at least six (6) witnesses positively identified [Appellant] as "Bean" in court (including two women who had a prior sexual relationship with him). Upon review of the evidence and testimony from twenty-four (24) accomplice witnesses in addition to various law enforcement witnesses presented by the Commonwealth, it is clear that the verdict was not against the weight of the evidence and that this issue is of no merit.

TCO, at 7.

Appellant fails to demonstrate how the trial court's ruling on his weight of the evidence claim was "manifestly unreasonable" or the "result of partiality, prejudice, bias or ill-will." Clay, 64 A.3d at 1055. The fact that some witnesses could not recall the specific dates of their illicit transactions with Appellant, or that the dates recalled were demonstrably inaccurate, is not 'shocking.' The witnesses' intoxication at the time of the transactions would likely impede their ability to pinpoint a date for the occurrences they witnessed. Still, memories naturally fade over time and, here, the incidences described had occurred the better part of a decade before the date of Appellant's trial. Moreover, the failure or inability to recall a specific date is qualitatively different from the ability to recall whether one purchased cocaine from another. Accordingly, we conclude that the trial court did not abuse its discretion in denying Appellant's motion for a new trial on the basis that the verdict was against the weight of the evidence.


Appellant next claims that the Commonwealth failed to sufficiently prove, by a preponderance of the evidence, the applicability of mandatory minimum sentences imposed pursuant to 18 Pa.C.S. § 7508(a)(2). Appellant argues that this is because "no drugs were seen, seized, weighed or otherwise tested[.]" Appellant's Brief at 35. However, we need not address this claim because we conclude that Appellant's mandatory minimum sentences are illegal in light of the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151, 2156 (2013).[4]

"A challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained so long as the reviewing court has jurisdiction." Commonwealth v. Robinson, 931 A.2d 15, 19–20 (Pa.Super. 2007) (en banc). Furthermore, "[s]o long as jurisdictional requirements are met, '[a]n illegal sentence … may be reviewed sua sponte by this court.'" Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super. 2001) (quoting Commonwealth v. Archer, 722 A.2d 203, 209 (Pa.Super. 1998)). The phrase 'illegal sentence' is a term of art in Pennsylvania Courts that is applied to three narrow categories of cases. Robinson, 931 A.2d at 21. Those categories are: "(1) claims that the sentence fell 'outside of the legal parameters prescribed by the applicable statute'; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)." Id.

[I]n Alleyne, the United States Supreme Court expressly overruled Harris [v. United States, 536 U.S. 545 (2002)], holding that any fact that increases the mandatory minimum sentence for a crime "is 'an element' that must be submitted to the jury and found beyond a reasonable doubt." Alleyne, 133 S.Ct. at 2155, 2163. The Alleyne majority reasoned that "[w]hile Harris limited Apprendi to facts increasing the statutory maximum, the principle applied in Apprendi applies with equal force to facts increasing the mandatory minimum." Alleyne, 133 S.Ct. at 2160. This is because "[i]t is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime[, ]" and "it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment." Id. at 2161. Thus, "[t]his reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury." Id.

Commonwealth v. Munday, 78 A.3d 661, 665-66 (Pa.Super. 2013).

On April 5, 2012, following Appellant's jury trial, the trial court held a post-conviction/pre-sentence hearing, "relating to the weight of the narcotics and controlled substances for sentencing purposes[, ]" in order to determine the applicability of mandatory minimum sentences as defined by 18 Pa.C.S. § 7508(a)(2). TCO, at 8. Following that hearing, the trial court "found that the Commonwealth did prove by a preponderance of the evidence the weight of cocaine delivered by [Appellant] for the purposes of the imposition of mandatory minimum sentences." Id. at 9 (emphasis added).

Thus, it is clear that Appellant's sentence is illegal in light of Alleyne. The dispositive fact establishing the applicability of the mandatory minimum sentence provided for by section 7508(a)(2), the weight of the narcotics involved in Appellant's transactions, was neither submitted to the jury nor subjected to the appropriate standard of proof. We conclude, therefore, that Appellant received an illegal sentence at each count in which section 7508(a)(2) was applied. Accordingly, we vacate Appellant's sentence and remand this matter for resentencing.


Appellant next contends that the trial court erred when it denied his motion to sever his case from that of his codefendants. Our standard of review of a trial court's denial of a motion to sever is well-settled. "The decision whether to sever trials of codefendants is one within the sound discretion of the trial court, and will not be disturbed on appeal absent a manifest abuse of that discretion." Commonwealth v. Wharton, 607 A.2d 710, 717 (Pa. 1992). The "critical factor" to be considered is whether Appellant was prejudiced by the trial court's denying severance. Id. The trial court must "balance the need to minimize the prejudice that may be caused by consolidation against the general policy of encouraging judicial economy." Commonwealth v. Presbury, 665 A.2d 825, 828 (Pa.Super. 1995).

The motion in question was filed on February 16, 2011, and denied by the trial court on February 23, 2011. Appellant asserts that he declined to seek review by our Supreme Court following the January 11, 2011 decision of this Court which reversed the trial court's granting of the defense's motion in limine. However, several other codefendants sought further review of our decision. As a result, the joint trial was postponed pending the outcome of those appeals.[5]

At the time he filed the motion to sever, Appellant had already been subjected to two years of pretrial incarceration.[6] In his severance motion, Appellant argued that he would be prejudiced by continued joinder because he was unable to post bail while his codefendants appealed our January 11, 2011 decision. The trial court heard argument on the motion to sever on February 22, 2011. By opinion and order dated February 23, 2011, the trial court denied the motion. Severance Motion Opinion and Order, 2/23/11, 4.

The trial court determined that the interests of judicial economy outweighed any prejudice to Appellant resulting from continued joinder. TCO, at 9 (citing to the 2/23/11 Opinion). The court reasoned as follows:

This Court found that the underlying facts that supported the charges against [Appellant] were indistinguishable from the facts that supported the charges against his co-defendants. A trial which was expected to last at least seven (7) days, with the Commonwealth expecting to call forty (40) witnesses, would [have] been repeated several times if the cases were severed. Severance would have greatly taxed this Court's resources and time, in efforts to put on multiple trials of this magnitude. Furthermore, aside from Defendant's continued incarceration, Defendant presented no evidence of prejudice, which the Court found insufficient to outweigh judicial economy.

TCO, at 9 – 10 (internal citations to the 2/23/11 Opinion omitted).

Appellant argues that the trial court overstates the case for judicial economy. He asserts that the 7-day/40-witness trial estimate put forth by the trial court was not accurate, as it reflected the expected duration and size of a joint trial for five codefendants. However, Appellant's argument seems to reflect a belief that the interests of judicial economy in this case are limited to the costs associated solely with Appellant's trial. This is simply not true. When balancing the interests of judicial economy against the prejudice Appellant would endure through a joint trial, the trial court must consider the costs associated with trying all of the codefendants, not merely the costs associated with trying Appellant individually. The fact that trying Appellant individually would cost less than trying him jointly with his codefendants is as obvious as it is immaterial to the issue at hand.

Appellant also complains that the trial court "paid short shrift to the prejudice [Appellant] suffered by continued incarceration." Appellant's Brief at 48. Appellant cites several cases suggesting that far shorter periods of pretrial incarceration were determined to be 'presumptively prejudicial' in the context of Rule 600. We do not disagree that pretrial incarceration of the length endured by Appellant should be viewed as presumptively prejudicial, even though we are here considering severance rather than Appellant's statutory and constitutional speedy trial rights. However, we glean nothing from the trial court's opinion that would suggest that the court failed to consider Appellant's pretrial incarceration as being prejudicial.

The pertinent inquiry for the trial court was not whether Appellant endured prejudice, but what the nature of the prejudice was and whether such prejudice was outweighed by the interests of judicial economy. Here, Appellant does not offer a single argument suggesting that his pretrial incarceration undermined the fairness of his trial, or that severance could have precluded unfairness. And, although Appellant was forced to endure additional pretrial incarceration due to the decisions of his codefendants and through no fault of his own, continued joinder in this case ensured that if any of the codefendants succeeded in their appeals, Appellant would have also benefitted from that success through the preclusion of 34 of the Commonwealth's witnesses.

Considering the foregoing, we conclude that the trial court did not abuse its discretion in denying Appellant's motion to sever. The trial court reasonably balanced the considerable additional cost of trying Appellant separately against the prejudice of Appellant's continued pretrial incarceration.


Finally, Appellant claims that the trial court erred by continually denying his bail motions. Appellant concedes that the applicable standard of review is whether the trial court abused its discretion with regard to the relevant provisions of Pa.R.Crim.P 600. Appellant's Brief at 52. The trial court denied Appellant's motions to reduce or set nominal bail because it determined that Appellant presented a danger "to any person and the community at large" if released. TCO, at 10.

This Court has recognized that "Rule [600] serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society." Commonwealth v. Hunt, 858 A.2d 1234, 1239 (Pa.Super. 2004) (quoting Commonwealth v. Aaron, 804 A.2d 39, 42 (Pa.Super. 2002) (en banc) (internal citations omitted)). With this in mind, Rule 600 provides that:

Except in cases in which the defendant is not entitled to release on bail as provided by law, no defendant shall be held in pretrial incarceration in excess of
(1)180 days from the date on which the complaint is filed; or
(2) 180 days from the date on which the order is filed transferring a court case from the juvenile court to the trial or criminal division; or
(3) 180 days from the date on which the order is filed terminating a defendant's participation in the ARD program pursuant to Rule 318; or
(4) 120 days from the date on which the order of the trial court is filed granting a new trial when no appeal has been perfected; or
(5) 120 days from the date of the written notice from the appellate court to the parties that the record was remanded.

Pa.R.Crim.P 600(B).

Rule 600(D)(2) provides as follows:

Except in cases in which the defendant is not entitled to release on bail as provided by law, when a defendant is held in pretrial incarceration beyond the time set forth in paragraph (B), at any time before trial, the defendant's attorney, or the defendant if unrepresented, may file a written motion requesting that the defendant be released immediately on nominal bail subject to any nonmonetary conditions of bail imposed by the court as permitted by law. A copy of the motion shall be served on the attorney for the Commonwealth concurrently with filing. The judge shall conduct a hearing on the motion.

Pa.R.Crim.P 600(D)(2).

At the outset of Rule 600(B) and Rule 600(D)(2), an exception to the 180 day nominal bail rule is recognized for situations where "the defendant is not entitled to release on bail as provided by law[.]" Pa.R.Crim.P 600(B); Pa.R.Crim.P 600(D)(2). Article 1, Section 14 of Pennsylvania's Constitution provides as follows:

All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it.

Pa. Const. art. I, § 14 (emphasis added).

This Court has described the interplay between Rule 600 and Pa. Const. art. I, § 14 as follows:

Prior to the amendment to Article I, section 14, pursuant to Pennsylvania Rule of Criminal Procedure Rule 600, in non-capital cases, the trial court had no discretion but to release a defendant on nominal bail after 180 days if the Commonwealth could have brought him or her to trial during that period. Commonwealth v. Abdullah, 539 Pa. 351, 652 A.2d 811, 812– 13 (1995). In addition, prior to the amendment to Article I, section 14, our courts ruled that the provision of section 14 making capital offenses non-bailable "trumped" Rule 600's provision requiring release on nominal bond after 180 days, although dismissal was still the remedy after 365 days. Commonwealth v. Hill, 558 Pa. 238, 736 A.2d 578 (1999); Commonwealth v. Oliver, 449 Pa.Super. 456, 674 A.2d 287 (1996); see Pa.R.Crim.P. 600(G).
Because Article I, section 14 was amended in 1998, the principles set forth in Hill and Oliver require that the provision of Rule 600 requiring release after 180 days is also trumped by Article I, section 14 for cases where "no condition or combination of conditions can ensure the safety of any person and the community ...." All of the Article I, section 14 exceptions to bail are contained in the same sentence. Therefore, it appears that the legislature intended to treat those exceptions similarly.

Commonwealth v. Jones, 899 A.2d 353, 355-56 (Pa.Super. 2006) (footnotes omitted).

It is undisputed that the 180-day time period defined by Pa.R.Crim.P 600(B) had elapsed at the time Appellant filed several motions to reduce or set nominal bail in accordance with Rule 600(D)(2). The trial court invoked the public safety exception to deny Appellant's bail motions. The trial court set forth its reasoning as follows:

[Appellant]'s bail was set at $1, 000, 000.00 straight cash bail by Magisterial District Judge Richard Ireland on January 8, 2009. [Appellant] was unable to post bail, and remained incarcerated throughout the pre-trial and trial proceedings. Pursuant to article 1, section 14, this Court repeatedly denied [Appellant]'s motions to reduce bail due to [Appellant]'s danger to any person and the community at large. Agent Jordan of the Office of Attorney General ("OAG") provided testimony that [Appellant] had on prior occasions kidnapped and held captive women as a method of collecting on drug debts, that [Appellant] had apparently threatened witnesses, and that the OAG had to employ a "special operations group" to initially apprehend him. Furthermore, [Appellant] is from the Philadelphia area and has no known ties to Clearfield County - excluding associates from the drug trafficking operation. The Court considered him to be a significant flight risk due to the lengthy periods of incarceration associated with the criminal charges. It is for these reasons, among others, that the Court refused and continued to refuse [Appellant]'s motions for reduced bail.

TCO, at 10 – 11.

Appellant disputes the factual findings of the trial court, first arguing that he had only been charged with false imprisonment, and that he was either incarcerated at the time the incident giving rise to that charge supposedly occurred (summer of 2007) or, if it had occurred earlier (summer of 2006), that the statute of limitations had run. If the statute of limitations had run on the false imprisonment charge, he reasons, "such a charge would be too remote to be considered a factor for the [Appellant]'s threat to the community." Appellant's Brief at 54. Appellant also contends that false imprisonment is "very different" from kidnapping. Id. Similarly, Appellant disputes the credibility of other aspects of Agent Jordan's testimony.

Appellant has failed to adequately preserve these arguments for appellate review. "Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived." Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Rule 1925(b)(4)(ii) requires that an appellant's 1925(b) statement "concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge." Pa.R.A.P. 1925(b)(4)(ii).

Here, in his 1925(b) statement, Appellant raised the matter of "[w]hether [the trial court] erred when it continually denied the multiple bail motions filed by [Appellant]." Appellant's 1925(b) Concise Statement, 11/8/12, at 1. However, the Rule 1925(b) statement gave no indication that he was challenging the trial court's factual basis for denying his bail, much less the specific factual findings that Appellant now disputes. As such, the trial court's opinion understandably lacks any discussion addressing Appellant's claim as presented in his brief. It is well-settled that:

An appellant's concise statement must properly specify the error to be addressed on appeal. Commonwealth v. Dowling, 778 A.2d 683 (Pa.Super. 2001). In other words, the Rule 1925(b) statement must be "specific enough for the trial court to identify and address the issue [an appellant] wishe[s] to raise on appeal." Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007). "[A] [c]oncise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement at all." Id. The court's review and legal analysis can be fatally impaired when the court has to guess at the issues raised. Thus, if a concise statement is too vague, the court may find waiver.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011).

Because Appellant's 1925(b) statement was too vague, it did not sufficiently identify the specific arguments upon which Appellant now relies and, thus, this Court has been deprived of any meaningful analysis on the matter from the trial court. We believe that waiver is particularly appropriate in this case because Appellant must have been aware of the factual basis upon which the trial court relied in denying his bail motions long before the trial court issued its 1925(a) opinion in this case. The trial court issued a separate opinion specifically addressing the reasons it denied Appellant's bail motion in an opinion dated August 3, 2009. Accordingly, we deem Appellant's final issued waived.

In summation, Appellant's sufficiency and weight of the evidence claims pertaining to his conviction are meritless. Furthermore, Appellant's severance claim lacks merit, and we deem his bail issue waived due to his failure to adequately preserve his arguments in his Pa.R.A.P. 1925(b) concise statement. Finally, we decline to reach the question of whether the evidence was insufficient to merit application of the mandatory minimum sentences set forth in 18 Pa.C.S. § 7508(a)(2), because we conclude that application of those mandatory minimums constituted an illegal sentence in violation of the rule in Apprendi as defined by Alleyne.

Judgment of Sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.

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