J-S11019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMAAL LANIER COOK                         :
                                               :
                       Appellant               :   No. 751 WDA 2019

          Appeal from the Judgment of Sentence Entered April 18, 2019
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0000459-2018


BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                                 FILED APRIL 3, 2020

        Jamaal Lanier Cook (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of persons not to possess firearms,

firearms not to be carried without a license, possession of a firearm with

altered manufacturer’s number, and possession of a controlled substance. 1

We affirm.

        The trial court summarized the underlying facts as follows:

               In January [] 2018, Detective Thomas Patton of the City of
        Connellsville Police Department was working on an ongoing drug
        trafficking investigation into a residence located at 109 Gibson
        Terrace, Connellsville, Fayette County, Pennsylvania. Multiple
        controlled buys had been made from the residence. During these
        controlled buys, crack cocaine and heroin were purchased.
        Through the investigation, the police learned that a white
        Chevrolet sedan was going to travel to Pittsburgh from 109 Gibson
        Terrace on January 29th, 2018. Detective Patton went to 109
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1   18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6110.2; 35 P.S. § 780-113(a)(16).
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       Gibson Terrace on that date in an unmarked Connellsville Police
       unit and observed the vehicle backed into a parking spot in front
       of Unit 109. Detective Patton observed two males enter the
       vehicle. The driver was … James Rosenberry, known to Detective
       Patton through his ongoing investigation[,] and the passenger was
       a tall man later identified as [] Andre Randolph. The vehicle then
       left Gibson Terrace. Detective Patton followed the vehicle for
       some time through the City of Connellsville and observed that the
       vehicle had an out-of-state license plate.

             Detective Patton set up an operational plan to proceed with
       the investigation later that night. [Detective] Patton and Corporal
       Hominsky, working with the Fayette County Bureau of
       Investigations, set up at the New Stanton Interchange of the
       [Pennsylvania] Turnpike[,] where they were able to observe the
       Chevrolet pass through the toll booth on its return to Connellsville.
       A traffic stop was conducted in Connellsville Township … by
       Corporal Kendi. Detective Patton [arrived at the scene of the
       stop,] exited his vehicle and approached the Chevrolet. James
       Rosenberry was the driver. Mr. Randolph was still seated in the
       front passenger seat. Appellant was seated in the back seat.[2]

             A strong odor of marijuana was detected from the vehicle.
       Mr. Randolph admitted to having smoked marijuana. Due to the
       odor of marijuana and the circumstances involving 109 Gibson
       Terrace, [] Appellant and the other occupants of the vehicle were
       detained and taken to the Connellsville Police Station.

             Mr. Rosenberry gave the officers consent to search the
       vehicle.   Corporal Hominsky and Fayette County Bureau of
       Investigation Detective Stephenson conducted the search. A large
       coat was found [lying on] the backseat where Appellant had been
       seated. Inside the coat, a loaded pistol was found. Additionally,
       sixteen [] stamp bags of heroin were located inside one of the




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2 Appellant was seated behind the driver’s side seat, and was the only
passenger in the rear. Corporal Hominsky observed the position in which
Appellant was seated prior to removing him from the sedan.

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              pockets of the coat.[3]

Trial Court Opinion, 7/23/19, at 2-4 (footnotes added; citations to record

omitted).

       Following Appellant’s arrest, the Commonwealth charged him with the

above firearm and drug crimes. Prior to trial, the defense sought discovery,

demanding that the Commonwealth disclose, inter alia, any exculpatory

evidence.    In June 2018, Appellant filed an omnibus pretrial motion (OPT

motion), requesting that the trial court suppress all evidence seized from the

vehicle following the allegedly illegal traffic stop.

       On October 30, 2018, the trial court conducted a hearing on Appellant’s

OPT motion (OPT hearing), at which Detective Patton and Corporal Hominsky

testified.   Relevant to this appeal, Corporal Hominsky testified about the

location of the coat/jacket discovered in the vehicle:

       A. [Corporal Hominsky]: … I actually pulled [Appellant] from the
       … vehicle and he was in the back driver side of the … vehicle, back
       passenger seat.

       Q. [The prosecutor]: Was he the only rear passenger?

       A. [Corporal Hominsky]: Yes.

       Q. [The prosecutor]: And is that vicinity the same that you located
       this jacket?



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3 The police did not discover any contraband on Appellant’s person; rather, it
was all in the coat (sometimes referenced by the trial court and the parties as
“the jacket”), and there was nothing else inside the coat, such as a wallet, to
indicate ownership of the coat.

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       A. [Corporal Hominsky]: Yes, I believe the jacket was like, if
       you’re in the back passenger seat on the driver side, it was directly
       beside that seat, like where the center area would be.

                                         ***

       A. [Corporal Hominsky]: … [The jacket] was just open in the
       backseat, it wasn’t … folded or anything like that, it was just
       sitting, laying in the backseat open.

       Q. [The prosecutor]: Right next to where [Appellant] had been
       sitting?

       A. [Corporal Hominsky]: Directly. If he wasn’t sitting on part of
       it.

N.T., 10/30/18, at 26-27.

       The trial court then questioned Corporal Hominsky:

       BY THE COURT: And the jacket was where, to [Appellant’s] right?

       A. [Corporal Hominsky]: Yeah, it would be directly, if you were
       sitting in the seat, the window would be to his left and the jacket
       would be on his right.

       [THE COURT]: And where was all this other stuff that you said
       there was so much of in the car that it was a wonder that someone
       could fit back there?[4]

       A. [Corporal Hominsky]: On the opposite side of [Appellant], I
       just don’t believe that somebody could sit on [the rear
       passenger’s] side….

                                        ***




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4 The court was referring to Corporal Hominsky’s earlier testimony that “[t]he
backseat was completely full [of items, including garbage, clothing and
electronics]. … I don’t think even a person could sit on the [] rear passenger
side.” N.T., 10/30/18, at 28.

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       A. [Corporal Hominsky]: … [S]o the only area for an occupant to
       sit would be behind the driver, just because of the amount of items
       back there.

Id. at 30 (footnote added).

       At the conclusion of the OPT hearing, the trial court denied the OPT

motion, and the matter proceeded to a two-day jury trial.5            On direct

examination, the prosecutor questioned Corporal Hominsky about the location

of the jacket:

       Q. [The prosecutor]: While you’re standing, will you orient the
       jacket the same way for the jury’s perspective that you observed
       it while [Appellant] was in the car please?

       A. [Corporal Hominsky]: [(demonstrating)]

                                         ***

       [THE COURT]: … For the record, you were showing, it looked like
       as though if you were seated you’d be seated right in front of the
       jacket?

       A. [Corporal Hominsky]: Yes. If [Appellant] was sitting in the
       rear seat behind the driver[,] sitting oriented exactly how I am,
       this is how the jacket would be at the seat portion.

       [THE COURT]: And for the record, you have the jacket just sort
       of behind you on a seat?

       A. [Corporal Hominsky]: Yes. In between [Appellant] and the
       back-seat part.

       [THE COURT]: Very well.

       A. [Corporal Hominsky]: It would be against your back.


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5The defense was provided with a copy of the transcript from the OPT hearing
prior to trial.

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N.T., 4/1-2/19, at 46-47; see also id. at 44 (Corporal Hominsky testifying

that “if you took [the jacket] off it would just be around a person[.]”).

       On cross-examination, defense counsel questioned Corporal Hominsky

as follows:

       Q. [Defense counsel]: And, there would be, I believe, would you
       agree that there was pretty much nowhere to sit in the backseat
       other than where [Appellant] was sitting?

       A. [Corporal Hominsky]: Yes.

                                         ***

       Q. [Defense counsel]: Where was the jacket whenever you
       approached the vehicle?

       A. [Corporal Hominsky]: Right behind [Appellant] in the same
       seat as I oriented it[, i.e., in Corporal Hominsky’s courtroom
       demonstration].

Id. at 54, 57.       Defense counsel then questioned Corporal Hominsky in

reference to his prior testimony at the OPT hearing, and used the transcript

from that proceeding to refresh his memory, and impeach him on certain

matters.6 See id. at 54-55 (pointing out that Corporal Hominsky replied in

the affirmative to the following question at the OPT hearing, “other than being

… close to [Appellant], where he was seated, there’s nothing to connect




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6 Importantly, defense counsel did not question Corporal Hominsky about any
purported inconsistencies concerning the location of the jacket in his
respective testimony at trial and the OPT hearing.



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[Appellant] to the jacket?”). After redirect,7 the trial court excused Corporal

Hominsky, and the proceedings ended later that day when the Commonwealth

completed its case-in-chief. See id. at 59, 84.

       At the beginning of the second day of trial, Appellant’s counsel moved

for a mistrial outside of the presence of the jury. Counsel objected to the

“changing nature” of the testimony of Corporal Hominsky concerning the

location of the jacket. See id. at 85-87; see also id. at 85 (objecting that

“the testimony of Corporal Hominsky at the OPT [hearing was] that the jacket

was in the seat next to [Appellant,] and then yesterday[,] while [Corporal

Hominsky] was testifying and doing a demonstration[,] he basically had the

[jacket] wrapped around him in the seat[,] so [the defense was] unprepared

to defend against that” change in testimony). Alternatively, defense counsel

requested that the trial court permit the defense to recall Corporal Hominsky

(the recall witness motion) so that he could be impeached with his prior

testimony at the OPT hearing. See id. at 85.

       After hearing argument, the trial court denied Appellant’s motion for a

mistrial, stating that defense counsel had an opportunity to impeach Corporal

Hominsky on cross-examination. Id. at 88. The court also denied the recall

witness motion, stating that defense counsel “had the opportunity to ask


____________________________________________


7 The prosecutor elicited testimony from Corporal Hominsky that neither of
the other two occupants had access to the backseat area. See N.T., 4/1-
2/19, at 58.


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[Corporal Hominsky] any questions regarding the OPT [hearing] transcript

yesterday.”   Id.   At the close of trial, the jury convicted Appellant of all

charges.

      On April 18, 2019, the trial court imposed an aggregate sentence of 3

to 6 years in prison. Appellant timely filed a notice of appeal. The trial court

ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and he complied.        The court then issued a Rule

1925(a) opinion.

      Appellant presents three issues for our review:

       1. WAS [APPELLANT] PREJUDICED AFTER THE COMMONWALTH
           INTRODUCED EVIDENCE AGAINST HIM AT TRIAL THAT WAS
           NOT DISCLOSED TO [APPELLANT] THROUGH DISCOVERY[?]

       2. DID THE TRIAL COURT ERR IN DENYING [APPELLANT’S]
           MOTION FOR MISTRIAL WHEN THE COMMONWEALTH
           PRESENTED MATERIAL EVIDENCE NOT PROVIDED TO
           [APPELLANT] THROUGH DISCOVERY, SPECIFICALLY, THE
           LOCATION AND ORIENTATION OF A JACKET[?]

       3. DID THE TRIAL COURT ERR IN DENYING [APPELLANT] THE
           RIGHT TO RECALL A COMMONWEALTH WITNESS[?]

Appellant’s Brief at 8.

      In his first issue, Appellant argues that he was deprived of his right to

due process and a fair trial because the Commonwealth improperly introduced

prejudicial evidence at trial that it failed to disclose during discovery. See id.

at 11-15. Specifically, Appellant points to the alleged discrepancies in the

testimony of Corporal Hominsky regarding the location of the jacket in the

backseat of the vehicle. See id. at 12

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      We must first address whether Appellant has preserved this issue for

appellate review. It is well established that “an appellant’s concise statement

must properly specify the error to be addressed on appeal.” Commonwealth

v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (citation omitted). “When

the appellant provides a concise statement which is too vague to allow the

trial court an opportunity to identify the issues raised on appeal, he/she has

provided the functional equivalent of no [c]oncise [s]tatement at all.”

Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008)

(citations omitted); see also Pa.R.A.P. 1925(b)(4)(ii) (providing that “[t]he

Statement shall concisely identify each ruling or error that the appellant

intends to challenge with sufficient detail to identify all pertinent issues for the

judge.” (emphasis added)).      “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.”          Hansley, 24

A.3d at 415 (citation omitted).

      Here, Appellant’s concise statement failed to specify the evidence that

the Commonwealth allegedly failed to disclose in discovery. Based on this

deficiency, the trial court determined that Appellant’s concise statement was

too vague to allow proper review of Appellant’s claim, and thus, he waived

this claim. See Trial Court Opinion, 7/23/19, at 4; see also id. (asserting

“this [c]ourt is reluctant to search the record and speculate as to the specific

nature of the issue that Appellant is attempting to raise.”). Upon review, we


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agree with the trial court’s determination, and conclude that Appellant has

waived his first issue. See Hansley, supra.8

       In his second issue, Appellant asserts that the trial court erred by

denying the defense’s motion for a mistrial, where:

       (1) the Commonwealth committed an “obvious” discovery
           violation, i.e., in failing to disclose the discrepancies in the
           testimony of Corporal Hominsky as to the location of the
           jacket; and

       (2) The change in Corporal Hominsky’s testimony caused the
           defense significant prejudice and unfair surprise.

Appellant’s Brief at 16-20.

             [T]he decision to declare a mistrial is within the sound
       discretion of the trial court and will not be reversed absent a
       flagrant abuse of discretion. A mistrial is an extreme remedy that
       must be granted only when an incident is of such a nature that its
       unavoidable effect is to deprive defendant of a fair trial.

              Under Pennsylvania Rule of Criminal Procedure 605, relating
       to mistrial, “[w]hen an event prejudicial to the defendant occurs
       during trial only the defendant may move for a mistrial; the
       motion shall be made when the event is disclosed. Otherwise,
       the trial judge may declare a mistrial only for reasons of manifest
       necessity.” Pa.R.Crim.P. 605(B) (emphasis added); see also
       [Commonwealth v.] Szakal, 50 A.3d [210,] 219 [(Pa. Super.
       2012)] (noting that the appellant’s claim was waived because the
       appellant waited a substantial period before moving for
       mistrial)[.]

Commonwealth v. Radecki, 180 A.3d 441, 457 (Pa. Super. 2018) (some

citations omitted).



____________________________________________


8Nevertheless, we note that Appellant relates this claim in connection with his
second issue, which we address on merits.

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       Before we reach the merits of this issue, we address whether Appellant

properly preserved it pursuant to Pa.R.Crim.P. 605(B). In its opinion, the trial

court determined that Appellant waived his right to request a mistrial on this

basis, and we agree.         See Trial Court Opinion, 7/23/19, at 6; see also

Szakal, 50 A.3d at 219.          Furthermore, the timing of Appellant’s mistrial

motion is essentially immaterial, as he is not entitled to relief on the merits.

       Contrary to Appellant’s assertion, there was no “manifest necessity’ for

a mistrial; he received a fair jury trial. Although there were admittedly some

discrepancies in Corporal Hominsky’s testimony at trial and the OPC hearing

concerning the precise location of the jacket,9 such discrepancies were minor.

During both proceedings, he testified consistently that (1) Appellant was the

only backseat passenger, and seated on the driver side; (2) the amount of

clutter in the rear impacted the seating capacity, including that of Appellant;

and (3) the jacket was located in the backseat, in direct proximity to Appellant.

See N.T. (OPT hearing), 10/30/18, at 26-27, 28, 30; N.T. (trial), 4/1-2/19, at

44, 46-47, 54, 57, 58.          Indeed, contrary to Appellant’s claim, Corporal

Hominsky presented testimony at both proceedings that the jacket would have

been “on” or “around” Appellant in the backseat. See N.T., 10/30/18, at 27



____________________________________________


9 For example, at the OPC hearing, Corporal Hominsky testified that the jacket
was “directly” to Appellant’s “right” on the backseat, whereas he testified at
trial that the jacket was “right behind” Appellant. See N.T., 10/30/18, at 30;
N.T., 4/1-2/19, at 57.


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(testifying that Appellant may have been “sitting on part of” the jacket); N.T.,

4/1-2/19, at 44 (testifying that “if you took [the jacket] off it would just be

around a person[.]”). These accounts are nearly identical. Further, it was the

responsibility of defense counsel to thoroughly cross-examine Corporal

Hominsky on any relevant matter, including any purported inconsistencies in

his testimony. Additionally — and contrary to Appellant’s assertion — minor

discrepancies in the testimony did not constitute unfair surprise. Finally, there

is no merit to Appellant’s claim that there is a manifest necessity for a mistrial

in light of the Commonwealth’s purported discovery violation, because (1)

Appellant was aware, prior to trial, that the Commonwealth consistently

maintained that the jacket was in direct proximity to Appellant in the

backseat; and (2) the Commonwealth could not reasonably anticipate the

minor changes in Corporal Hominsky’s testimony at trial. Thus, the trial court

did not err in denying Appellant’s motion for a mistrial.

      In his final issue, Appellant contends that even if a mistrial was not

warranted, the trial court committed reversible error by denying his recall

witness motion concerning Corporal Hominsky. See Appellant’s Brief at 21.

We disagree.

      Our standard of review of this claim is well established: “The decision

of whether a party may be recalled is, under Pennsylvania law, left to the trial

court’s discretion. The decision is not reversed unless it constitutes a ‘very




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gross abuse of discretion.’” Commonwealth v. Tighe, 184 A.3d 560, 572

(Pa. Super. 2018) (citation omitted).

      Here, in denying the recall witness motion, the trial court emphasized

that defense counsel had a copy of the transcript from the OPT hearing and

cross-examined Corporal Hominsky in reference to his prior testimony, and

had the ability to impeach Corporal Hominsky on any inconsistent statements

that he may have made concerning the location of the jacket. See N.T., 4/1-

2/19, at 86.

      Additionally, the trial court explained:

      [H]ad [defense] counsel made the [recall witness motion] at or
      around the same time [that Corporal] Hominsky was excused[,
      i.e., during the middle of the first day of trial], our ruling may have
      been different. However, the [c]ourt saw no reason to delay the
      trial any further when counsel was given a full, fair and unlimited
      opportunity to cross-examine the witness the day before.

Trial Court Opinion, 7/23/19, at 7.     We are persuaded by the trial court’s

rationale, and under these circumstances, we cannot conclude that the court’s

denial of the recall witness motion rises to the level of a “very gross” abuse of

discretion. See Tighe, supra. Thus, Appellant’s final issue lacks merit.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/2020




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