J-S32025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ARLANDO PICKETT

                            Appellant                 No. 3484 EDA 2015


            Appeal from the Judgment of Sentence October 26, 2015
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0011067-2012


BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JULY 17, 2017

        Appellant, Arlando Pickett, appeals from the October 26, 2015

judgment of sentence entered in the Court of Common Pleas of Philadelphia

County (“trial court”) sentencing Appellant to three consecutive life

sentences following a jury trial. Appellant raises challenges to an improper

opening statement, a right to counsel violation, and an evidentiary claim.

Upon review, we affirm.

        The trial court summarized the factual history of the matter as follows.

              The evidence adduced at trial established that on October
        4, 2011, at or about 7:45pm, a vehicle approached the
        intersection of 8th Street and Indiana Avenue. The occupants
        exited the vehicle armed with several weapons; they opened fire
        on the people standing outside the Indiana Minimarket, which is
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     located at the northwest corner of the intersection. Fifty three
     pieces of ballistic evidence were recovered from the crime scene.
     The ballistic evidence came from three separate weapons—an
     AK-47, a 0.40 caliber, and a nine-millimeter. Four bystanders
     suffered injuries: Massandra English, Dyabe Talley and Craig
     Lassiter all died as a result of their injuries. The fourth victim
     Curtis McKnight, survived a gunshot wound to his thigh.

            When the first officers arrived, they secured the crime
     scene. Of the 70-100 people at the crime scene when the
     officers arrived, none assisted police with a description of what
     had occurred or who had perpetrated the crime.

           Sergeant Dayton Bennett arrived at the crime scene first,
     but when he received word that victims were being transported
     to Temple University Hospital, he left to intercept the vehicles
     and the victims at the hospital. Curtis McKnight arrived at the
     hospital in a friend’s vehicle. Sergeant Bennett was able to
     converse with Mr. McKnight for roughly 25 to 40 seconds as Mr.
     McKnight was being placed on a gurney and whisked into the
     hospital for treatment. Mr. McKnight stated that he saw the
     shooter who was carrying the “big gun.” Sergeant Bennett
     memorialized Mr. McKnight’s description of the shooter and of
     the vehicle driven as Mr. McKnight was being stabilized on the
     gurney.

           Mr. McKnight was questioned twice by homicide detectives.
     Both times, Mr. McKnight’s answers were transcribed into formal
     statements. The first statement took place on October 5, 2011—
     a day after the crime. The second statement occurred on
     February 21, 2012. In his first statement, Mr. McKnight told
     detectives that he did not know the person he described as the
     shooter. During his second interview, Mr. McKnight was shown a
     photo array of eight individuals; he identified [Appellant] as the
     shooter.

            Detective Henry Glenn testified regarding steps of the
     investigation that he and his former partner, Detective
     Cummings (first name not indicated), took. During the course of
     their investigation, the detectives became aware that Khalil Irby
     might have information regarding this murder. The detectives
     interviewed Khalil Irby. Based on the information obtained
     through that interview, the detectives were able to locate a
     photo of [Appellant]. This photo was included in the photo array


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     which was shown to Mr. McKnight during his second interview
     and was the basis of his identifying [Appellant] as the shooter.

     Drug Activity

           Between September and November of 2011, [Appellant]
     sold crack-cocaine to a confidential police informant on two
     separate dates. The first transaction took place on September
     21, 2011.     On that date, the police and the confidential
     informant (“CI”) called [Appellant] requesting 64 grams of crack
     cocaine. [Appellant] told the CI that the crack cocaine needed to
     be cooked and that the order would take a few hours to fill.
     Narcotics surveillance units observed [Appellant] leave the area
     of G Street and Willard Street after the phone call; [Appellant]
     proceeded to a residence at 2854 Opal Street. Surveillance units
     watched [Appellant] enter the residence. When [Appellant] left
     this residence, he made contact with the CI and scheduled the
     delivery to take place at the corner of G Street and Allegheny
     Avenue. The CI consummated the transaction using prerecorded
     buy money.

           According to Officer Charles Myers of the Narcotics Task
     Force, a second purchase was arranged utilizing the same CI;
     this transaction took palce on November 1, 2011. The CI
     contacted [Appellant] on that date and requested 250 grams of
     crack cocaine. After some time, [Appellant] met the CI near 2 nd
     Street and Lehigh Avenue and delivered the requested
     crack-cocaine.   Once police confirmed that the CI was in
     possession of the crack-cocaine, narcotics officers who had been
     surveilling [Appellant] initiated his arrest. The officers also
     executed a warrant on the residence located at 2854 Opal
     Street—the suspected cookhouse of the drugs from the first
     purchase.    At 2854 Opal Street, [Appellant’s] co-defendant,
     Andrew Johnson was arrested.

            Mr. Johnson agreed to give information to the United
     States Attorney at two proffer sessions—one on April 24, 2012
     and the second on May 23, 2012. Officer Myers was present for
     both sessions. Johnson offered the United States Attorney a
     motive for this murder. According to Johnson, [Appellant] and
     James Ellis were at the 2854 Opal Street cookhouse discussing a
     plot to obtain revenge for a shooting perpetrated on James Ellis.
     That shooting occurred on June 27, 2011.



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             According to Johnson, four men, including James Ellis and
       [Appellant], were discussing plans to retaliate (those discussions
       occurring within earshot of Johnson). Although the name of the
       intended target was never spoken, the location at which the
       intended target could be found was known. In Johnson’s second
       proffer, the group discussed using an AK-47 during their
       proposed crime.

Trial Court Opinion, 09/14/16, at 2-5.

       On September 26, 2012, the Commonwealth filed an information

containing 28 counts against Appellant.1 On November 6, 2012, Appellant

requested a continuance for further investigation, which was granted the

same date by the trial court.              Appellant requested and was granted

additional continuances for further investigation on December 6, 2012,

January 24, 2013, March 7, 2013, March 28, 2013, May 2, 2013, May 30,

2013, June 13, 2013, and June 27, 2013. Due to a scheduling conflict, on

January 27, 2014, the trial court ordered the trial continued for two weeks.

On September 2, 2014, Appellant requested a continuance, which the trial

court granted and scheduled the trial for June 1, 2015. On September 9,

2014, Appellant requested an additional continuance, which the trial court

granted and scheduled the trial for October 13, 2015.


____________________________________________


1
   These included four counts each of aggravated assault, conspiracy,
carrying firearms in public in Philadelphia, possession of an instrument of
crime (PIC), recklessly endangering another person (REAP), and simple
assault, along with three counts of murder, and one count of criminal
attempt murder. 18 Pa.C.S.A. §§ 2702(a), 903, 6108, 907, 2705, 2701(a),
2502, and 901, respectively.




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      On August 28, 2015, Appellant filed a motion to suppress the

photographic     identification   of   Appellant.   The   trial   court   granted    a

continuance request on September 1, 2015.           On September 3, 2015, the

Commonwealth filed a motion in limine to introduce prior bad acts.                  On

September 30, 2015, at a pretrial hearing, appellate counsel appeared and

requested to enter his appearance if a continuance was granted.                 The

Commonwealth objected to the continuance, and the trial court sustained

the objection.

      Appellant filed a motion in limine on October 6, 2015, seeking the

introduction of expert testimony regarding the accuracy and reliability of

eyewitness testimony. On October 7, 2015, the trial court granted a motion

to continue the trial to dispose of the pretrial motions.           The trial court

rescheduled the trial to a new date of October 14, 2015, one day after the

previously scheduled trial date. On October 14, 2015, the trial court granted

the Commonwealth’s motion to introduce prior bad acts in part and denied in

part, and denied Appellant’s motion to suppress.

      The trial commenced on October 16, 2015, and testimony was

presented on October 19-22, 2015.            The jury retired for deliberation on

October 23, 2015, and rendered a verdict on October 26, 2015. Appellant

was convicted on all counts and was sentenced the same date to three




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consecutive life sentences.2          On October 27, 2015, Appellant, through

appellate counsel,3 filed post-sentence motions, which the trial court denied

without a hearing on October 28, 2015. On November 2, 2015, trial counsel

filed a motion to withdraw as counsel, which the trial court granted on

November 4, 2015. Appellant filed a timely notice of appeal on November

10, 2015.     On January 8, 2016, the trial court directed Appellant to file a

concise statement of matters complained of on appeal.          The trial court

granted Appellant an extension to file his concise statement on January 22,

2016. On February 10, 2016, Appellant filed his concise statement and the

trial court issued a Pa.R.A.P. 1925(a) opinion on September 14, 2016.

       Appellant raises three issues on appeal, which we quote verbatim.

       [I.]   Did the trial court commit reversible error by permitting
              the Commonwealth to refer to Irby in the prosecutor’s
              opening speech and then by overruling an objection to
              testimony that referenced Irby?

       [II.] Did the trial court commit an abuse of discretion and
             violated Appellant’s Sixth Amendment right to counsel of
             his choicewhen [(sic)] it denied Appellant’s motion to

____________________________________________


2
  Appellant was sentenced on three counts of murder of the first degree,
criminal attempt murder, conspiracy-murder of the first degree, and PIC.
3
  Appellate counsel entered his appearance following the trial court
sentencing Appellant.      Appellate counsel conditionally entered his
appearance at the September 30, 2015 pretrial conference predicated on the
condition that the matter be continued. As the trial court denied the
continuance, appellate counsel entered his appearance when he filed a post-
sentence motion on Appellant’s behalf.




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            permit Gregory Pagano, Esquire to represent Appellant at
            trial?

      [III.] Did the trial court commit an abuse of discretion by
             permitting the Commonwealth to introduce evidence
             relating to Appellant’s involvement with drugs?

Appellant’s Brief at 3.

      Appellant’s first argument is a challenge to the Commonwealth’s

opening argument referencing Khalil Irby.             Our Supreme Court has held

“that to preserve for appellate review an objection relating to the opening or

closing address of opposing counsel, the objection must be specific and

brought   to   the    trial   judge’s     attention    as   soon     as     is    practical.”

Commonwealth v. Sanchez, 82 A.3d 943, 969-70 (Pa. 2013).                                   As

Appellant is attempting to raise the issue for the first time in his Pa.R.A.P.

1925(b) statement, this issue is waived.              Moreover, insofar as it is not

waived, it is a hearsay challenge to the testimony of Detective Glenn

regarding his interaction with Khalil Irby.

      “When reviewing a trial court’s decision regarding the admissibility of

evidence, we use an abuse of discretion standard and will only reverse ‘upon

a   showing    that    the    trial     court   clearly     abused    its        discretion.’”

Commonwealth v. Savage, 157 A.3d 519, 523 (Pa. Super. 2017) (quoting

Commonwealth v. Schoff, 911 A.2d 147, 154 (Pa. Super. 2006)

(additional citations omitted)).

      Judicial discretion requires action in conformity with law, upon
      facts and circumstances judicially before the court, after hearing
      and due consideration. An abuse of discretion is not merely an
      error of judgment, but if in reaching a conclusion the law is


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     overridden or misapplied or the judgment exercise is manifestly
     unreasonable, or the result of partiality, prejudice, bias, or ill
     will, as shown by the evidence or the record, discretion is
     abused.

Schoff, 911 A.2d at 154 (quoting Commonwealth v. Levanduski, 907

A.2d 3, 13-14 (Pa. Super. 2006) (en banc)). Appellant argues the trial court

erred by admitting the following testimony as hearsay.

     Q: At some point, though, during those interviews, did you learn
     of someone who may have seen what happened?

     A: Yes.

     Q: And who was that individual?

     A: His last name is Irby.

     Q: And Khalil is his first name?

     A: Yes, he was.

     Q: After you interviewed Mr. Irby, did you want to speak with
     any of the previous witnesses again?

     A: Yes.

     Q: And who was that?

     A: That was Curtis McKnight.

     Q: After you interviewed Mr. Irby, did you have at this point
     photographs that you wanted to show to Mr. McKnight to see if
     he could I.D.?

     A: Yes.

     Q: So after the after you interviewed Irby, you were able to put
     together what?

     A: A photo array.




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N.T. Trial 10/21/15, at 60-61 (sic). This argument is meritless because the

information adduced at trial was not introduced for the truth of the matter

asserted. See Pa.R.E. 801(c). Moreover, even if this testimony is hearsay,

it is descriptive of the course of investigation; thus, it was admissible. See

Commonwealth v. Johnson, 42 A.2d 1017, 1035 (Pa. 2012) (citations

omitted). Therefore, the trial court did not abuse its discretion in admitting

this evidence. Appellant’s claim fails.

      Appellant’s second claim is that the trial court violated his Sixth

Amendment right to counsel by denying his continuance request to replace

trial counsel with appellate counsel two weeks prior to trial.

             [T]he right to counsel is guaranteed by both the Sixth
      Amendment to the United States Constitution and by Article I,
      Section 9 of the Pennsylvania Constitution.        In addition to
      guaranteeing representation of the indigent, these constitutional
      rights entitled an accused “to choose at his own cost and
      expense any lawyer he may desire.”           Commonwealth v.
      Novak, 395 Pa. 199, 213, 150 A.2d 102, 109, cert denied, 361
      U.S. 882, 80 S.Ct. 152, 4 L.Ed.2d 118 (1959). The right to
      “counsel of one’s choosing is particularly significant because an
      individual facing criminal sanctions should have great confidence
      in his attorney.” Moore v. Jamieson, 451 Pa. 299, 307-08,
      306 A.2d 283, 288 (1973).

            We had held, however, that the constitutional right to
      counsel of one’s choice is not absolute. Commonwealth v.
      Robinson, 468 Pa. 575, 592-93 & n. 13, 363 A.2d 665, 674 & n.
      13 (1976). Rather, “the right of the accused to choose his own
      counsel, as well as the lawyer’s right to choose his clients, must
      be weighed against and may be reasonably restricted by the
      state’s interest in the swift and efficient administration of
      criminal justice.”   Id. at 592, 364 A.2d at 674 (internal
      quotations omitted). Thus, this Court has explained that while
      defendants are entitled to choose their own counsel, they should
      not be permitted to unreasonably “clog the machinery of justice

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      or hamper and delay the state’s efforts to effectively administer
      justice.” Commonwealth v. Baines, 480 Pa. 26, 30, 389 A.2d
      68, 70 (1978). At the same time however, we have explained
      that “ ‘a myopic insistence upon expeditiousness in the face of a
      justifiable request for delay can render the right to defend with
      counsel an empty formality.’” Robinson, 468 Pa. at 593-94,
      364 A.2d at 675 (quoting Ungar v. Sarafite, 3476 U.S. 575,
      589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)).

Commonwealth v. Prysock, 972 A.2d 539, 542 (Pa. Super. 2009)

(quoting Commonwealth v McAleer, 748 A.2d 670, 673-74 (Pa. 2000)).

      Noting the matter had been continued multiple times at the Appellant’s

request before, the trial court denied the motion. Our standard of review for

a denial of a motion to continue is to determine whether the trial court

abused its discretion. Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super.

2012) (citation omitted).

      Upon review, the matter had been continued numerous times and had

been pending for almost three years before the case went to trial. The trial

court noted that Appellant “had ample time to secure the counsel of his

choosing.” Trial Court Opinion, 9/14/16, at 11.    Unlike in Prysock, where

the trial court had appointed counsel one month prior to the scheduled trial

date when it denied a continuance request, in the matter sub judice, trial

counsel was appointed almost three years prior to trial. The trial court found

Appellant’s request dilatory, and was an attempt to “clog the machinery of

justice.” Id. As the matter had been pending for almost three years, the

trial court had scheduled the trial date almost a year in advance, and

Appellant’s request came mere weeks before the date of trial, we find the



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trial court did not abuse its discretion when it denied his continuance

request. Appellant’s claim fails.

      Finally, Appellant challenges the introduction of evidence related to

Appellant’s drug activity.   As discussed above, questions concerning the

admission of evidence are left to the discretion of the trial court, and we will

not reverse absent an abuse of that discretion.      See Commonwealth v.

Sitler, 144 A.3d 156, 162 (Pa. Super. 2016). It is well established that

      evidence of prior bad acts or unrelated criminal activity is
      inadmissible to show that a defendant acted in conformity with
      those past acts or to show criminal propensity.        Pa. R.E.
      404(b)(1).     However, evidence of prior bad acts may be
      admissible when offered to prove some other relevant fact, such
      as motive, opportunity, intent, preparation, plan, knowledge,
      identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
      In determining whether evidence of other prior bad acts is
      admissible, the trial court is obliged to balance the probative
      value of such evidence against its prejudicial impact.

Sitler, 144 A.3d at 163 (quoting Commonwealth v. Sherwood, 982 A.2d

483, 497 (Pa. 2009) (additional citation omitted)). In order for evidence of

a prior bad act to be admissible to establish motive, “there must be a

specific ‘logical connection’ between the other act and the crime at issue

which establishes that the that the crime currently being considered grew

out of or was in any way caused by the prior set of facts and

circumstances.’” Commonwealth v. Cox, 115 A.3d 333, 337 (Pa. Super.

2015) (quoting Commonwealth v. Ross, 57 A.3d 85, 100 (Pa. Super.

2012) (en banc), appeal denied, 72 A.3d 603 (Pa. 2013)).          Furthermore,

“when examining the potential for undue prejudice, a cautionary instruction


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may      ameliorate    the   prejudicial       effect   of   the     proffered    evidence.”

Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014) (citing Pa.R.E.

404(b) cmt; Commonwealth v Dillon, 925 A.3d 131, 141 (Pa. 2007)).

        In the matter sub judice, the trial court permitted the testimony of

Andrew Johnson and his participation in a drug operation with Appellant.

This was done to establish Appellant’s motive, namely, that Andrew Johnson

was at the drug operation’s headquarters, was aware of Appellant’s access

to weapons, his reason for the shooting,4 and his plan. Unlike in the cases

cited by Appellant, the information pertaining to the drug operation was

relevant to establish the witness’s credibility regarding Appellant’s motive.

        Furthermore,     “Pennsylvania         recognizes    a     res   gestae   exception,

permitting the admission of evidence of other crimes or bad acts to tell ‘the

complete story.’      “Such evidence may be admitted, however, ‘only if the

probative value of the evidence outweighs its potential for unfair prejudice.’’

Commonwealth v. Hicks, 151 A.3d 216, 226 (Pa. Super. 2016) (citing

Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa. 2014)). In Hicks, the

trial court found that the testimony presented regarding a different shooting

than the underlying case “provided the jury with the full history of the

interaction among Appellant, his cohorts, and the victims.” Id. at 226. This

Court found that the events “provided a background by which the jury could

____________________________________________


4
    Revenge for a previous shooting incident.




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weigh [the witness’s] testimony and his delay in identifying [a]ppellant as

the perpetrator of the crimes.” Id. Similarly, in the matter sub judice, the

testimony of Andrew Johnson permitted the Commonwealth to tell the whole

story of the shooting. Namely, that Johnson and Appellant were part of the

same drug operation, and while at the cookhouse, Johnson overheard

Appellant planning the underlying shooting.     Hence, this testimony had

significant probative value which outweighed the potential for unfair

prejudice. Upon review, the trial court did not commit an abuse of discretion

when it permitted the evidence of Appellant’s drug activity.           Thus,

Appellant’s claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2017




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