J. A06008/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                                           :
                  v.                       :
                                           :
TIMOTHY ALLEN ROWBOTTOM                    :
                                           :
                        Appellant          :
                                           :     No.1009 MDA 2015

            Appeal from the Judgment of Sentence April 21, 2015
              In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0000725-2014


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                               FILED JUNE 06, 2016

      Appellant, Timothy Allen Rowbottom, appeals from the Judgment of

Sentence entered April 21, 2015.      After careful review, we affirm on the

basis of the trial court’s Opinion, in which the trial court found that (i)

Appellant failed to establish that the allegedly exonerating evidence now in

his possession was after-discovered evidence he could not have obtained

prior to trial using reasonable diligence; (ii) the trial court properly denied

Appellant’s request for a continuance; and (iii) Appellant failed to preserve

any objection to the investigating detective’s testimony at trial.

      The trial court’s Rule 1925(a) Opinion includes a thorough and

complete narrative of the facts and procedural history in this case, and we
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adopt its recitation for purposes of this Appeal.   See Trial Court Opinion,

filed 10/6/15, at 1-6. We summarize as follows.

        Appellant was charged with one count of Theft by Receiving Stolen

Property1 after an eight-foot fiberglass rooster statue was recovered from a

warehouse building that served as Appellant’s residence and place of

business. Id. at 3-4. The owner of a local restaurant and bar had reported

the rooster stolen from the rear parking lot in late December of 2011. Id.

At trial, Appellant’s former wife testified that Appellant told her he paid

someone $100 to steal the rooster from a bar. Id. at 4-5.

        On April 14, 2015, a jury in the Dauphin County Court of Common

Pleas convicted Appellant of Theft by Receiving Stolen Property.    On April

21, 2015, the Honorable Richard A. Lewis sentenced Appellant to a $1,500

fine and twenty-four months of intermediate punishment consisting of a

combination of work release, house arrest, and probation.

        Appellant filed a Post-Sentence Motion for a New Trial Pursuant to

Pa.R.Crim.P. 720(C) and a Motion to Stay Execution of Sentence on May 20,

2015. Appellant requested a new trial, claiming to have a newly-discovered

receipt that purported to prove he purchased the rooster. On June 2, 2015,

Judge Lewis denied Appellant’s Post-Sentence Motion.

        Appellant filed a Notice of Appeal on June 11, 2015.    Upon Judge

Lewis’s Order, Appellant filed a Pa.R.A.P. 1925(b) Statement raising ten

1
    18 Pa.C.S. § 3925(A)



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errors. In his Brief to this Court, Appellant has re-worded his claims into the

following three issues:

      1. In a trial for Theft By Receiving Stolen Property, where it was
      discovered for the first time after trial that the defendant's
      accountant had a receipt for the purchase of the alleged stolen
      property (thereby making him a bona fide purchaser for value)
      and where the receipt for the rooster statue from his accountant
      was unavailable due to the accountant's various health-related
      issues, did the trial court err in denying Rowbottom's post-
      sentence motion for a new trial on after-discovered evidence?

      2. When the defendant immediately, prior to trial, complained in
      open court that he was feeling "little foggy" that he didn't "really
      feel comfortable proceeding" due to following his doctor's post-
      surgery orders to take a narcotic opioid for pain, where he
      complained that he was not of full cognitive function due to this,
      where there was no finding at the time of trial that his request
      for delay would prejudice the government, and where the record
      is devoid of any questioning by the Court as to the nature, the
      extent or the existence of any impairment, did the trial court err
      in denying a continuance when Rowbottom could not participate
      fully in his own defense with a clear mind?

      3. In a jury trial case where an experienced prosecutor asked an
      experienced detective "Did he provide any explanation at all [as
      to where he got the rooster statue]?" and where the experienced
      detective answered "...he told us that he had been in contact
      with his attorney and he was advised to surrender himself but
      not talk to us. So we didn't question him any further" and then
      later in the prosecutor's closing argument that prosecutor
      repeatedly referenced that post- arrest silence, did the trial court
      err in not granting the objection of trial counsel and by allowing
      into evidence those statements and references to his post- arrest
      federal and state constitutional rights against self-incrimination.

Appellant’s Brief at 6-8.

      We begin our review by considering the timeliness of Appellant’s Post-

Sentence Motion and Notice of Appeal. See generally Commonwealth v.

Trinidad, 96 A.3d 1031, 1033-35 (Pa. Super. 2014) (discussing timeliness



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requirements for a Post-Sentence Motion and Notice of Appeal). Ordinarily

an appellant must file a Post-Sentence Motion within ten days of the

imposition of sentence. See id. at 1034. See also Pa.R.Crim.P. 720(A)(1).

However, this Court has held that a Post-Sentence Motion filed more than

ten days after sentencing will nonetheless be considered timely where

Appellant is “alleging after-discovered evidence pursuant to Rule 720(C)[.]”

See Trinidad, 96 A.3d at 1034 (emphasis added).

      In the instant case, Appellant filed his Post-Sentence Motion more than

ten days after his sentence was imposed. Importantly, however, Appellant’s

Motion raised an after-discovered evidence claim pursuant to Rule 720(C),

requesting a new trial on the grounds he had discovered a receipt that would

prove the rooster was purchased, not stolen.          Although Appellant’s after-

discovered evidence may ultimately fail on the merits, we agree with the

trial court’s determination that Appellant’s allegation of newly discovered

evidence makes this appeal timely. See Trial Court Opinion, at 12.

      In his first issue, Appellant argues that the trial court erred in denying

him a new trial based on the newly discovered evidence of a receipt

purporting to prove Appellant was a bono fide purchaser. Although we agree

with Appellant that the alleged receipt for the purchase of the rooster statute

could persuade the fact-finder that there was no fowl play, we nonetheless

find Appellant is not entitled to relief on this issue.




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      To prevail on a motion for a new trial on the basis of after-discovered

evidence, Appellant was required to produce admissible evidence, discovered

after trial, that:

      (1) could not have been obtained prior to the end of trial with
      the exercise of reasonable diligence; (2) is not merely
      corroborative or cumulative evidence; (3) is not merely
      impeachment evidence; and (4) is of such a nature that its use
      will likely result in a different verdict on retrial.

      Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013) (citation

omitted).      As    the    reviewing    court,       “this   Court   affirms    unless   the

determination constitutes abuse of discretion.” Id.

      Based on our review of the record, the arguments presented by

Appellant, and the relevant case law and statutes, we agree with the trial

court that Appellant failed to establish that the evidence was in the nature of

after-discovered evidence.         See Trial Court Opinion, at 10-14.              Appellant

was aware of the receipt prior to trial and knew that his accountant had the

receipt in his possession. Id. at 14. Moreover, Appellant failed to exercise

due diligence in obtaining the receipt.              Id. at 14-16.    Even if we were to

accept   Appellant’s       assertion   that    his    accountant’s     illness   made     him

unavailable in the three months prior to trial, Appellant presents no evidence

which would explain why he was not able to obtain the receipt in the nine

months between when he was charged with theft and when his accountant’s

illness rendered him unavailable. Id.




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      Accordingly, we grant no relief on this issue. Furthermore, as the trial

court has thoroughly addressed the issue in its opinion, we adopt the trial

court’s discussion as dispositive of Appellant’s claim. Id. at 10-16.

      In his second issue, Appellant argues that the trial court should have

granted his motion for a continuance when Appellant informed the court that

he was on opioid pain medication and therefore did not feel comfortable

proceeding. “It is well settled that the grant of a continuance rests within

the sound discretion of the trial court and that the decision to deny the

continuance will not be reversed unless a clear abuse of discretion is shown.”

Commonwealth v. Melendez, 474 A.2d 617, 619 (Pa. Super. 1984)

(footnote and citation omitted).2 See also Pa.R.Crim.P. 106(D) (governing

continuance requests by a defendant).

      Based on our review of the record, the arguments presented by

Appellant, and the relevant case law and statutes, we find no abuse of

discretion in the trial court’s denial of a continuance.    As the trial court

notes, although Appellant had advance notice that he would be taking

narcotics, Appellant waited until the morning of trial to request a

continuance. See Trial Court Opinion, at 6-8. Furthermore, the trial court

2
  In Melendez, supra, at 619, this Court affirmed a trial court’s denial of a
continuance where the appellant, suffering from heroin withdrawal,
requested a continuance the day before trial. Id. In that case, the trial
court was able to observe the appellant’s testimony and demeanor and
determined that she was “able to participate knowingly and intelligently” in
spite of her claims that the heroin withdraw was causing physical illness and
cognitive impairment. Id.



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was able to observe Appellant prior to jury selection, and found that the

answers Appellant gave to questions on the record “leave no doubt that he

clearly understood” the proceedings. Id. As the trial court has thoroughly

addressed the issue in its opinion, we adopt the trial court’s discussion as

dispositive of Appellant’s claim.

      In his final issue, Appellant’s Brief to this Court argues that the trial

court improperly permitted the Commonwealth and its witnesses to discuss

Appellant’s post-arrest silence.    This claim does not explicitly appear

anywhere in Appellant’s Rule 1925(b) Statement. Instead, as best as this

Court can determine, Appellant attempted to raise this claim in his Rule

1925(b) Statement with the following language: “The court erred with

respect to the testimony at N.T. 61; see also N.T. 80:4-11.”

      Our Supreme Court has held that “[a]ny issues not raised in a [Rule]

1925(b) statement will be deemed waived.” Commonwealth v. Castillo,

888 A.2d 775, 780 (Pa. 2005) (quoting Commonwealth v. Lord, 719 A.2d

306, 309 (Pa. 1998). Similarly, issues that are only generally raised in an

overly broad Rule 1925(b) Statement will be deemed waived.           See also

Pa.R.A.P. 1925(b)(4)(ii) (“The [1925(b)] 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.”).      A Rule 1925(b)

statement “which is too vague to allow the court to identify the issues raised




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on appeal is the functional equivalent of no [Rule 1925(b)] Statement at all.”

Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006).

      In the instant case, the trial court reviewed the section of the record at

issue, but was not able to determine with any specificity the basis for

Appellant’s objection to the testimony at issue. The trial court opined in its

Rule 1925(a) Opinion that this issue is waived, and, therefore, did not

substantively address the issue.     Based on our independent review of the

record, the arguments presented by Appellant, and the relevant case law

and statutes, we agree with the trial court that Appellant failed to preserve

this issue for our review. See Trial Court Opinion, at 8-9. Furthermore, the

trial court has thoroughly addressed the issue of waiver in its opinion, and

we adopt the trial court’s discussion as dispositive of Appellant’s claim. See

id. Accordingly, no relief is due.

      Therefore, after a careful review of the parties’ arguments, and the

record, we affirm on the basis of the trial court Opinion.

      The parties are instructed to attach a copy of the trial court’s opinion

to all future filings.




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     Judgment of Sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/6/2016




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