J-S21005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

EDWARD WELLS,

                          Appellant                  No. 2570 EDA 2013


             Appeal from the Judgment of Sentence July 23, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005989-2008


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                                FILED MAY 12, 2015

       Edward Wells appeals from the aggregate judgment of sentence of

nine and one-half to twenty-two years incarceration after a jury found him

guilty of aggravated assault, possession of an instrument of crime (“PIC”),

carrying a concealed firearm without a license, and carrying a firearm on the

public streets of Philadelphia. After careful review, we affirm.

       On April 9, 2008, Appellant and two other men approached an

individual named Jarrett Williams and shot at him. Appellant was wearing a

hooded sweatshirt with his hood up and his cohorts were wearing ski masks.

The victim, Ronald Green, was nearby at a local Chinese store. Mr. Green

knew Appellant, who had lived in the area the previous summer.            As

Appellant approached him, Mr. Green asked Appellant if he was “Butter

Roll,” Appellant’s nickname.     Appellant responded in the affirmative and


*
    Retired Senior Judge assigned to the Superior Court.
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stated he had words for the victim. Appellant then raised his weapon and

fired a shot at Mr. Green. Police responded to the area for shots fired. Mr.

Green told police that “Butter Roll” shot at him and described him as being

five foot five inches in height.   Appellant is five foot five inches tall.   In

addition, Mr. Green and Mr. Williams both selected a photograph of Appellant

as “Butter Roll.”

         Police arrested Appellant on April 10, 2008, and filed the original

criminal complaint in this matter on April 11, 2008. The case was listed for

trial on April 14, 2010, but was continued to the next day at the

Commonwealth’s request after three Commonwealth witnesses, including

Mr. Green, failed to appear. Efforts to locate Mr. Green proved unsuccessful,

and the court continued the case upon motion of the Commonwealth, with

jury selection to begin on August 24, 2010.       Appellant filed a Rule 600

motion, alleging that the Commonwealth had not timely brought Appellant to

trial.   The court denied that motion on August 24, 2010, and the parties

selected eleven jurors that day. Still unable to locate Mr. Green, on August

25, 2010, the Commonwealth requested a continuance.            Upon the court

denying that request, the Commonwealth asked the court to nolle prosse the

matter without prejudice.       The trial court granted that request over

Appellant’s objection. Appellant appealed, arguing that the trial court erred

in issuing a nolle prosse and declining to grant his Rule 600 motion.



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      This Court addressed Appellant’s claim on the merits and affirmed,

finding that no Rule 600 violation had occurred as of August 25, 2010.

Commonwealth v. Wells, 50 A.3d 248 (Pa.Super. 2012) (unpublished

memorandum). The Pennsylvania Supreme Court denied Appellant’s petition

for allowance of appeal on February 28, 2013. The record, then lodged with

this Court, was returned to the trial court on April 10, 2013 and received by

that court on April 11, 2013.   However, prior to the physical record being

returned to the court of common pleas, and over Appellant’s objection, the

court granted the Commonwealth’s motion to vacate the nolle prosse on

March 20, 2013. The court then scheduled a scheduling conference before a

different judge for April 3, 2013. That judge then set this matter for trial on

May 20, 2013.

      Mr. Green and another witness, Nalene Gravely, failed to appear. The

court issued bench warrants for those individuals and continued the case to

the following day. Appellant renewed his motion to dismiss under Rule 600,

and the court denied that request. The following day, the Commonwealth,

having apprehended Mr. Green, asked for and received permission to hold

him in custody as a material witness.       Trial began that same date and

concluded on May 23, 2013. At trial, Mr. Green denied that it was Appellant

who fired the shot at him. The prosecution then introduced a signed written




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statement Mr. Green provided to police in which he identified Appellant as

the perpetrator and selected him from a photographic array as the shooter.

        The jury found Appellant guilty of the aforementioned offenses.1 The

court sentenced Appellant to nine and one-half to twenty-two years

imprisonment.       Appellant filed a post-sentence motion, which the court

denied. This timely appeal ensued. Appellant raises twenty-eight issues for

our review.


        1. Did the trial court err in ruling while the appellate courts still
           had the record from a previous appeal?

        2. Did the trial court violate the due process and law-of-the-land
           clauses by making up her mind before argument?

        3. Did the trial court deny Mr. Wells his constitutional rights to
           be present for the determination of the [C]ommonwealth’s
           motion to vacate the judgment of nolle prosequi?

        4. Did the trial court abuse its discretion in denying the weight
           of the evidence claim presented in ground 2 of the August 2,
           2013, post-sentence motion?

        5. Was the sentence (and denial of modification) an abuse of
           discretion?. [sic]

        6. Did the sentencing court err in denying the merger claims,
           including constitutional challenges to Pennsylvania’s statutory
           construction rules, as set forth in ground 4 of the August 2,
           2013, post-sentence motion?


____________________________________________


1
    The jury acquitted Appellant of attempted murder.



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     7. Is  consideration      of  a   prior   juvenile  adjudication
        unconstitutional after Alleyne v. United States?

     8. Did the sentencing court err in considering hearsay in the
        PARS report from 2006?

     9. Did the trial court deny the defendant’s rights under the state
        and federal constitutions to remain silent, and to the
        assistance of counsel, and violating his attorney-client
        privilege as to related communications, by conducting a
        colloquy regarding his decision to exercise his constitutional
        rights to a jury trial?

   10. Did the sentencing court err in considering           unproven
       allegations post-dating this alleged incident?

   11. Did the trial court err in granting the continuance and denying
       the [R]ule 600(G) motion to dismiss where Ronald Green had
       been a reluctant witness for five (5) years.

   12. Did the trial court err in striking venire person number 25
       (Tanya Upchurch) for cause, when she made clear that
       allegations against her son and nephew would not affect her
       deliberations in this trial?

   13. Did the trial court err in permitting any testimony at all about
       how Mr. Wells was arrested?

   14. Did the trial court err in overruling the defendant’s multiple
       objections to the prosecutorial misconduct in opening to the
       jury with unsubstantiated claims of witness intimidation and
       retaliation?

   15. Did the trial court err in overruling the hearsay objection to
       Anthony     Comitalo    testifying  about   the   out-of-court
       statements of Ronald Green?

   16. Did the trial court err in overruling the defendant’s relevance
       objection to Ronald Green’s testimony about whether people
       in the neighborhood like it when people testify?




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   17. Did the trial court err in overruling the hearsay objection to
       Robert Donnelly’s testimony about the out-of-court
       statements of Jarrett Williams?

   18. Did the trial court err in overruling the hearsay objection to
       Jarret Williams testifying to anything Ronald Green told him?

   19. Did the trial court err in overruling the hearsay objection to
       exhibits C-1 through C-9?

   20. Did the trial court err in denying the constitutional challenge
       under article V, section 10(c), to 18 Pa.C.S.A. § 6104 and any
       jury instruction based thereon?

   21. Did the trial court err in denying the prudential challenge to a
       § 6104 charge.

   22. Did the trial court err in overruling the defense objection to
       instructions regarding Jarrett Williams.

   23. Did the trial court err in ruling that Mr. Wells’s juvenile
       adjudication would be admitted if Mr. Wells took the stand to
       testify?

   24. Did the trial court err in overruling the objection the
       prosecution’s closing argument, without any evidence, as to
       what Ronald Green “knows” and “can’t tell” the jury, and
       referring to a “snitch”?

   25. Did the trial court err in overruling the objection to the
       prosecutor’s personal vouching in his closing argument?

   26. Did the trial court err in overruling the objection to the
       prosecutor’s unsubstantiated “code of the street” argument?

   27. Did the trial court violate the public trial right of the [S]ixth
       [A]mendment by closing the courtroom doors during a short
       jury charge?

   28. Was the evidence insufficient for any VUFA offense because
       there was no evidence of barrel length?



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Appellant’s brief at 2-4.

      Although Appellant raises twenty-eight issues, most of his claims are

waived due to insufficient development. Specifically, Appellant’s issues four

through six, issues eight through ten, issues twelve through nineteen, issues

twenty-one and twenty-two and issues twenty-four through twenty-six are

all waived. We address the grounds for waiver of those claims in more detail

infra. Appellant has developed argument for his first three issues and issues

seven, eleven, twenty-three and twenty-eight.         In addition, his twenty-

seventh issue, though not thoroughly developed, does cite to pertinent legal

authority. We begin with Appellant’s initial claim.

      Appellant maintains that the trial court lacked jurisdiction to enter an

order vacating its earlier nolle prosse and reinstating the criminal charges

against him. Specifically, he asserts that, because the physical record had

not been returned to the trial court after the Pennsylvania Supreme Court

denied allowance of appeal, the trial court did not yet have jurisdiction and

its order was void. From this premise, he asserts that the trial proceedings

that occurred while the court had jurisdiction are null and void.

      In support, Appellant relies on Pa.R.A.P. 1763, Pa.R.A.P. 2571(a)(5),

Pa.R.A.P. 2572(e), Pa.R.A.P. 2591(a), and a long line of decisional law

holding that a trial court lacks jurisdiction to act when the record is with an

appellate court.    Commonwealth v. Salley, 957 A.2d 320 (Pa.Super.



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2008); Stanton v. Lackawanna Energy, Ltd., 915 A.2d 668 (Pa.Super.

2007); Bell v. Kater, 839 A.2d 356 (Pa.Super. 2003); Corace v. Balint,

210 A.2d 882 (Pa. 1965); Gilbert v. Lebanon Valley St. Ry. Co., 154 A.

302 (Pa. 1931); Drabant v. Cure, 118 A. 30 (Pa. 1922); Baldwin’s

Appeal, 5 A. 732 (Pa. 1886); Ewing v. Thompson, 43 Pa. 372 (1862).

      Rule 1763 does not apply to the specific facts of this case. By way of

analogy, however, Appellant points out that jurisdiction is returned to a

lower court when the record is received by that court.      Specifically, Rule

1763 provides in relevant part, “Unless otherwise ordered pursuant to this

chapter, upon the remand of the record in any matter in which the judgment

of sentence was affirmed a defendant who has been released pending appeal

shall appear in the lower court at such time as the defendant may be there

called[.]”

      In addition, Rule 2571(a)(5) reads, “The record, as remanded to the

lower court or other tribunal, shall consist of the record as certified to the

appellate court and, unless the appellate court shall otherwise order, a

certified copy of:   In a criminal matter, a copy of the docket entry under

Rule 2572(e) (docket entry of remand).” Rule 2572(e) sets forth that, “The

prothonotary of the appellate court shall note on the docket the date on

which the record is remanded and give written notice to all parties of the

date of remand.” Further, Rule 2591(a) provides, “On remand of the record



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the court or other government unit below shall proceed in accordance with

the judgment or other order of the appellate court and, except as otherwise

provided in such order, Rule 1701(a) (effect of appeals generally) shall no

longer be applicable to the matter.”

      Pa.R.A.P. 1701(a) sets forth, “Except as otherwise prescribed by these

rules, after an appeal is taken or review of a quasijudicial order is sought,

the trial court or other government unit may no longer proceed further in the

matter.”   Rule 1701(a), of course, was merely a codification of well-

ensconced common law principles. Gilbert, supra at 304 (“At common law,

a court of first instance was without jurisdiction to proceed with a cause

after the record thereof had been removed to an appellate court (Kountze

v. Omaha Hotel Co., 107 U.S. 378, 381; Sheerer v. Grier, 3 Wh. 14; 2

R.C.L. 122), for the obvious reason that it had no record upon which it could

proceed.”); Harwood v. Bruhn, 170 A. 144 (Pa. 1934); Drabant, supra at

30 (“while the record of the case was under the control of this court, the

only power existing in the court below was to comply with our order.”);

Ewing, supra at 376-37; see also Commonwealth v. Hollis, 450 A.2d 70

(Pa.Super. 1982).

      Most recently, in Salley, supra, this Court decided an earlier appeal

by remanding for resentencing on August 3, 2007. Prior to the record being

returned to the trial court, the court resentenced the defendant on August



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17, 2007.    The defendant alleged in his subsequent appeal that the trial

court lacked subject matter jurisdiction because the Superior Court had not

yet remanded the record.      Discussing Pa.R.A.P. 2572(a)(2) and Pa.R.A.P.

2591, this Court agreed, holding that “Rule 2591, thus, authorizes a trial

court to proceed with the directives of the appellate court after remand of

the record.” Salley, supra at 323 (emphasis in original).

      The Salley Court relied principally on Stanton, supra. In Stanton,

parents of an injured child sued a power company. The power company filed

a motion for summary judgement, which the trial court denied.              The

company filed a petition for permission to appeal, which this Court granted.

The panel, on February 26, 2003, concluded that the trial court erred in

denying the motion. Five days after that decision, on March 3, 2003, and

before the record was returned to the trial court, the court entered an order

granting the company’s motion for summary judgment.              The parents,

however, filed a petition for allowance of appeal fifteen days after this Court

filed its opinion.   This appeal stayed the return of the record to the trial

court. Our Supreme Court ultimately granted that appeal and affirmed on

November 23, 2005. However, in doing so, the High Court noted an issue

remained to be decided.

      Again, before the record was returned, on December 3, 2005, the trial

court purported to grant the power company’s summary judgment motion.



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In the subsequent appeal to this Court, we held both the March 2003 and

December 2005 orders granting summary judgment were void because the

trial court lacked jurisdiction.   Ultimately, we quashed the appeal as

premature.    In finding that the trial court lacked jurisdiction, the Stanton

Court relied on Bell, supra, Commonwealth v. Bishop, 829 A.2d 1170

(Pa.Super. 2003), and Pa.R.A.P. 1701, 2572, and 2591.

      In Bell, Andrea Kater struck Edward Bell with her car in a parking lot.

The case proceeded to trial and the jury returned a verdict in favor of Bell

and his wife in the amount of two million dollars.      Kater filed a post-trial

motion that the court denied on November 1, 2002.           The court entered

judgment that same day and Kater filed an untimely appeal to this Court on

December 3, 2002.      The next day, Kater also filed with the trial court a

petition requesting the reinstatement of her appellate rights nunc pro tunc.

The court granted that petition on January 15, 2003. That same day, this

Court quashed Kater’s original appeal.       Thereafter, on January 27, 2003,

Kater filed a second notice of appeal.       This Court quashed the appeal as

untimely. In doing so, we reasoned that the trial court lacked jurisdiction to

enter the order reinstating Kater’s appellate rights because at that time the

record was with the Superior Court due to her original appeal.        The Bell

panel relied on Pa.R.A.P. 1701 and Bishop, supra.




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      The Bishop case involved a PCRA matter and request for bail.         A

Superior Court panel initially reversed the denial of PCRA relief and awarded

Bishop a new trial on March 1, 2002. The Commonwealth sought allowance

of appeal.   Before the Supreme Court decided that petition, Bishop filed a

petition seeking a bail hearing and bond.      The PCRA court denied that

petition on August 9, 2002, based on its lack of jurisdiction. We affirmed.

Specifically, the Bishop Court ruled that based on Rule 1701, until the

record was remanded to the PCRA court, the lower court lacked jurisdiction

to act.

      Despite this overwhelming body of law, the Commonwealth initially

responds that the physical record was “unnecessary to resolve any issues

underlying the lifting of the nolle prosequi[.]” Commonwealth’s brief at 11.

It also contends that Appellant’s original interlocutory appeal was not

properly before this Court and argues that Commonwealth v. Rega, 856

A.2d 1242 (Pa.Super. 2004), was wrongly decided.        Where an appeal is

improper, the trial court may not lose jurisdiction. See Commonwealth v.

McPherson, 533 A.2d 1060, 1062 (Pa.Super. 1987); Pa.R.A.P. 1701(b)(6);

but see Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa.Super. 1984).

      The prior panel in this matter relied on Rega in reaching the merits of

Appellant’s appeal. The Rega panel concluded that an interlocutory appeal

from the entry of a Rule 600 claim was properly before it based on the



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Pennsylvania Supreme Court decision in Commonwealth v. Reinhart, 353

A.2d 848 (Pa. 1976).           Reinhart involved a constitutional speedy trial

challenge after the entry of a nolle prosse and not Rule 600 or its

predecessor Rule 1100. The Commonwealth, as it did in the prior appeal,

argues that Rega incorrectly extended Reinhart. Accordingly, it posits that

the law of the case doctrine should not apply and the trial court never lost

jurisdiction in the first instance.

        The Commonwealth continues that, despite the trial court not

possessing the record, the trial court was not precluded from “lifting the

nolle   prosse     as   [Appellant]     had    no   further   avenue   for   review.”

Commonwealth’s brief at 15.            It notes that Appellant did not raise any

federal constitutional issues in the previous appeal and could not have

sought review with the United States Supreme Court.2 Further, the deadline

for requesting the Pennsylvania Supreme Court to reconsider its denial of

allowance of appeal had passed.           According to the Commonwealth, under

Pennsylvania law, a nolle prosse can be retracted at any time.

____________________________________________


2
  Appellant in his reply brief erroneously maintains that he could have
successfully sought a writ of certiorari with the United States Supreme
Court. However, Appellant’s only issue in his original appeal to this Court
was specific to Rule 600. He did not raise a separate federal constitutional
speedy trial right claim.       The United States Supreme Court has no
jurisdiction to consider purely state law rulings.




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      The Commonwealth also distinguishes Salley, Stanton, and Bell. It

points out that in Salley, this Court had vacated a judgment of sentence

and remanded for resentencing and in Stanton had reversed the denial of

summary judgment and remanded. The courts then took action relative to

sentencing and the entry of summary judgment before the record was

returned. The Commonwealth submits that it is significant in this case that

this Court had affirmed the trial court’s order in the prior appeal and was

“not required to correct an improper order[.]” Commonwealth’s brief at 17.

With respect to Bell, the Commonwealth maintains that the decision therein

precluded the trial court from entering an order during a pending and

undecided appeal. It posits that the trial court order here did not interfere

with a pending appeal.

      Lastly, the Commonwealth argues that even if the trial court lacked

jurisdiction at the time it entered the order reinstating the charges against

Appellant, the remedy of a new trial is not required.     The Commonwealth

submits that any error was harmless because the trial occurred when the

court did have jurisdiction. It analogizes a defect in the removal of a nolle

prosse to a defect at a preliminary hearing.     The Commonwealth reasons

that the purpose of a preliminary hearing and reinstating charges is to

provide notice that the defendant will proceed to trial. Thus, “a defect in the




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proceeding that did not undermine the notice should not result in reversal.”

Commonwealth’s brief at 18.

      Instantly, we agree with Appellant that generally a court loses

jurisdiction over a matter after a party files an appeal. Pa.R.A.P. 1701(a).

The court resumes jurisdiction once the record has been remanded and is in

the possession of the trial court.      See Pa.R.A.P. 2591; Salley, supra;

Stanton, supra; Bell, supra; Bishop, supra; Gilbert, supra; Drabant,

supra; Ewing, supra.       Here, contrary to the Commonwealth’s positions,

the trial court did not have jurisdiction to enter the order lifting the nolle

prosse at the time it filed the order.     See id.   However, the question is

whether the court’s lack of jurisdiction when it entered the order reinstating

the charges requires a new trial where the court clearly had jurisdiction at

the time of trial. Appellant’s position is that since the order lifting the nolle

prosse is null, no charges were pending at the time of the trial and the trial

itself was void. We disagree.

      Since Appellant was arraigned and tried after jurisdiction returned to

the trial court, we find that the error in reinstating Appellant’s charges prior

to the physical return of the record does not warrant a new trial. Although

the initial order lifting the nolle prosse was a legal nullity when it was

entered, the subsequent arraignment of Appellant on the same charges

when the court had jurisdiction effectively reinstated those criminal counts



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against him. None of the cases relied on by Appellant involved the entry of

an interlocutory order without jurisdiction followed by a subsequent trial that

transpired when the court had jurisdiction. Hence, those cases do not

compel reversal.

      Appellant’s second issue is that the trial court denied him due process

under the Pennsylvania and federal constitutions by lifting the nolle prosse.

He argues that the trial court’s statement prior to his argument that counsel

“can argue all he wants; I’m lifting it[,]” shows that the court had decided

the Commonwealth’s motion before hearing his position. Appellant’s brief at

11 (citing N.T., 3/20/13, at 3). In support, he relies on Commonwealth v.

Lowery,    419     A.2d   604   (Pa.Super.     1980),   and   Commonwealth v.

Richman, 1 A.2d 578 (Pa.Super. 1938).

      Lowery, however, does not aid Appellant.                Relevant hereto, the

defendant claimed that the trial court had demonstrated bias during a

suppression hearing by determining that the defendant’s testimony was

incredible prior to counsel’s argument at that hearing. Lowery alleged that

the court erred in making its decision before listening to counsel’s closing

suppression argument. We rejected the defendant’s position, opining, “The

court may have expressed doubts about defendant's credibility at side-bar

but we have no record of what was actually said. More importantly[,] the




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court did not forbid the defendant's counsel from presenting oral argument .

. . . nor did it discourage oral argument[.]” Lowery, supra at 610.

      Richman is also inapposite.       There, the defendant was on trial for

receiving stolen property. The defendant was a pawnbroker who purchased

a stolen watch.    During the course of the trial, before the defendant had

completed calling his witnesses, the trial court commented, “I do not

understand counsel or the defendants in this case. If you want me to sit as a

judge and jury and ask me to believe testimony like that you are making a

big mistake. I am telling all of you that. Think of it, a boy like that walks into

a pawnshop and a transaction takes place and you want me to believe the

man did not know it was stolen?" Richman, supra at 579. We concluded

that the trial judge’s determination of guilt prior to the completion of the

trial was error.

      In this case, as the Commonwealth points out, the trial court

permitted Appellant to present his arguments.         It contends that because

Appellant was given an opportunity to object and set forth his positions,

Appellant was not deprived of due process. We agree. Generally, our courts

have maintained that federal and state due process claims are coextensive.

Commonwealth v. Sims, 919 A.2d 931, 941 n.6 (Pa. 2007). Although the

Pennsylvania Constitution does not utilize the term “due process,” the

phrase “law of the land,” used in Article I, § 9, is synonymous with that



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term. Craig v. Kline, 65 Pa. 399, 413 (1870); Murray v. Hoboken Land

& Imp. Co., 59 U.S. 272, 276 (1855); see also Commonwealth v.

Kratsas, 764 A.2d 20, 49 n.5 (2001); Commonwealth v. Rose, 81 A.3d

123, 126 n.2 (Pa.Super. 2013), allowance of appeal granted on other

ground, 95 A.3d 274 (Pa. 2014); Commonwealth v. Harrell, 65 A.3d 420,

448 n.10 (Pa.Super. 2013) (Donohue, J., dissenting)).

       The hallmarks of due process are notice and an opportunity to be

heard. Fiore v. Bd. of Fin. & Revenue, 633 A.2d 1111, 1114 (Pa. 1993)

(“due process ‘requires at a minimum that the deprivation of life, liberty or

property by adjudication must be preceded by notice and opportunity for

hearing appropriate to the nature of the case.’”). Since Appellant was given

both notice and the opportunity to present his arguments, we find that the

trial court did not deny him due process for the reasons argued, i.e.,

purportedly     deciding     the   Commonwealth’s           request     before    Appellant

articulated his objections.3 See Lowery, supra.

       The third issue Appellant levels on appeal is that the trial court denied

him   his   constitutional     right   to    be   present    at   the   hearing    on   the

Commonwealth’s motion to vacate the nolle prosse. Appellant argues that

the motion to lift the nolle prosse was a critical stage of the criminal
____________________________________________


3
  Appellant does not advance a due process position based on the trial
court’s lack of jurisdiction.



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prosecution.    He then collects an array of cases, none of which involve a

motion to reinstate charges after a nolle prosse, for the settled proposition

that a defendant must be present during critical stages of a criminal case.

      The Commonwealth responds that the hearing to reinstate the charges

was not a critical stage of the prosecution. It maintains that Appellant could

not preserve or lose substantive rights at the proceeding, nor was the

hearing related to defending against the charges.      Accordingly, it asserts

that a hearing to lift a nolle prosse is not required and Appellant was not

constitutionally entitled to be present.

      We have already determined that the trial court acted without

jurisdiction at the challenged hearing. Thus, its actions were a legal nullity

at that time.   Nonetheless, Appellant was present when he was arraigned

and at trial. Therefore, even assuming arguendo that Appellant should have

been present, his absence did not result in prejudice warranting a new trial.

Cf. Commonwealth v. Lyons, 568 A.2d 1266 (Pa.Super. 1989) (absence of

preliminary hearing, which is considered a critical stage of the prosecution,

due to unavailability of defendant, did not require a new trial where no

prejudice could be shown).

      Appellant’s fourth and fifth issues are waived.        The entirety of

Appellant’s argument on his fourth claim is that “[t]he court abused its

discretion in denying the weight of the evidence presented in ground 2 of the



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August 2, 2013, post-sentence motion, which is incorporated by reference.”

Appellant’s   brief   at    14.   Incorporation   by   reference   is   improper.

Commonwealth v. Briggs, 12 A.3d 291, 342 (Pa. 2011).                    Similarly,

Appellant’s fifth issue reads “[d]enial of the motion to modify sentence (and

impose that sentence initially), as set forth in ground 3 of the August 2,

2013, post-sentence motion, which is incorporated herein by reference.”

Appellant’s brief at 14.      For the same reason that his prior argument is

waived, this issue fails.

      In his sixth position raised on appeal, Appellant provides at least a

citation to case law after attempting to incorporate his arguments below by

reference.    Appellant maintains that, based on Chief Justice Castille’s

concurring opinion in Commonwealth v. Baldwin, 985 A.2d 830 (Pa.

2009),   Pennsylvania’s merger statute violates the separation of powers

doctrine and the double jeopardy clause of the Pennsylvania Constitution.

In this latter regard, Appellant maintains that Pennsylvania’s prohibition

against double jeopardy precludes multiple sentences even where the

merger statute would not prohibit such sentences.

      While Appellant cites to a non-binding concurring opinion in Baldwin,

he fails to develop any comprehensive argument on the claim. As noted, his

attempt to incorporate by reference arguments made in the trial court is

improper appellate advocacy. Moreover, in Commonwealth v. Wade, 33



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A.3d 108, (Pa.Super. 2011), this Court rejected a claim that the merger

statute violated Pennsylvania’s constitutional prohibition against double

jeopardy.    In addition, since Appellant has not adequately developed his

separation of powers argument, his claim does not entitle him to relief. See

Wade, supra (holding that failure to develop separation of powers position

relative to merger statute resulted in issue failing).

      The seventh claim Appellant forwards on appeal is that the trial court’s

consideration   of   his   prior   juvenile    adjudication   at   sentencing   is

unconstitutional following the United States Supreme Court’s decision in

Alleyne, supra. The Supreme Court in Alleyne held that the federal jury

trial right requires facts necessary to increase a mandatory minimum

sentence, except prior convictions, to be proven beyond a reasonable doubt.

In this case, Appellant was not sentenced based on a mandatory minimum

statute involving his prior juvenile adjudication. Alleyne has no application.

Further, this Court has held that prior juvenile adjudications may be

considered in sentencing a defendant within a permissible range of

sentences.    See Commonwealth v. Hale, 85 A.3d 570, 585 (Pa.Super.

2013) allowance of appeal granted on other ground, 2014 Pa. LEXIS 1623.

Since consideration of Appellant’s juvenile adjudication did not result in an

increased mandatory sentence, his claim is without merit.




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      Appellant’s eighth, ninth, and tenth issues are waived due to his failure

to develop those positions.    Specifically, Appellant in advancing his eighth

claim baldly states that the court erred in considering hearsay in a PARS

report during sentencing.     He provides no argument and his position is

contained in one incomplete sentence.          Furthermore, Appellant’s position

relates to the discretionary aspects of his sentence and he has utterly

neglected to follow the applicable rules for presenting such claims. Finally,

the only citation to authority Appellant provides relates to a trial court’s use

of a nolle prossed charge to increase the defendant’s sentence. Appellant’s

brief at 15 (citing Commonwealth v. Stewart, 867 A.2d 589 (Pa.Super.

2005)). As Appellant has completely failed to develop his position, the issue

is waived.

      The ninth claim Appellant raises is that the trial court denied him his

state and federal constitutional rights to remain silent and the assistance of

counsel and violated his attorney-client privilege by conducting an on-the-

record colloquy regarding his decision to proceed to trial on a separate rape

charge. Appellant has not set forth a single case in support of his untenable

assertions. The sole citation he provides is to Commonwealth v. Grant,

813 A.2d 726 (Pa. 2002), which relates to deferral of ineffectiveness claims

to collateral review. Appellant’s position is frivolous.




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J-S21005-15




      In his tenth issue, Appellant’s entire argument is that “[t]he

sentencing court erred in considering unproven allegations post-dating this

alleged incident.” Appellant’s brief at 16. Accordingly, his claim is waived

and fails due to the lack of advocacy and citation to authority.

      Appellant’s next claim is that the trial court erred in denying his Rule

600(G) motion after remand. Appellant acknowledges the law of the case

doctrine and our prior ruling relative to his original Rule 600(G) motion.

However, he contends that based on this Court’s earlier decision, as of the

date the trial court granted the nolle prosse, the Commonwealth had 39

days to try him. Omitting the period between the grant of the nolle prosse

on August 25, 2010, and the filing of his earlier appeal, as well the period

between March 15, 2013 and April 10, 2013, when the court did not have

jurisdiction, Appellant posits that forty days elapsed between April 10, 2013

and May 20, 2013.

      The Commonwealth responds that Appellant’s newest Rule 600 claim is

waived because Appellant failed to supply the notes of testimony from the

May 20, 2013 hearing on the issue. Further, it contends that Appellant has

waived his position because the written motion he filed on May 20, 2013,

was “hopelessly vague, asserting only that the Commonwealth lacked due

diligence but specifying no continuance or other delay attributable to the

Commonwealth.”      Commonwealth’s brief at 34.      The Commonwealth also



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disputes Appellant’s issue on the merits. Relying on former Rule 600(D)(2)

and Commonwealth v. Sisneros, 692 A.2d 1105 (Pa.Super. 1997), it

submits that a new 365 day period began from when the trial court lifted the

nolle prosse.

        Rule 600(D)(2) did provide that, upon remand from an appellate court,

the Commonwealth has 120 days to try a defendant who is incarcerated and

365 days to try the case if the defendant is on bail.        In Sisneros, the

defendant had twice successfully appealed his judgment of sentence. After

his second successful appeal, this Court remanded for a new trial concluding

that his guilty plea was not knowing, intelligent and voluntary.           The

defendant filed a Rule 1100 motion for discharge, which was denied.         He

then entered a guilty plea and was again sentenced, but failed to appeal.

This Court then reversed the lower court’s failure to reinstate the

defendant’s appeal rights. In Sisneros’ reinstated direct appeal, we decided

that the failure to retry the defendant within 120 days of the date of the

remand after his second appeal did not compel reversal.           Rather, the

Sisneros Court opined that, after 120 days, the defendant was subject to be

released on nominal bail, but the Commonwealth had 365 days to try the

case.

        This case is materially different from Sisneros insofar as the case was

not remanded to be tried. Moreover, Appellant was neither released on bail



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nor incarcerated on the case because the charges had been nolle prossed.

Hence, Rule 600(D)(2) did not apply. We find this situation more akin to the

scenario in which the Commonwealth withdraws a complaint and files a

second complaint.    Cf. Peterson, supra; see also Commonwealth v.

Meadius, 870 A.2d 802 (Pa. 2005).

      In this case, the Commonwealth withdrew the charges. Although it did

not re-file those charges via a second complaint, its motion to lift the nolle

prosse was intended to have the same effect.       The critical inquiry where

charges have been reinstated is whether the Commonwealth exercised due

diligence in prosecuting the original complaint. Meadius, supra; compare

also Peterson, supra. Where the Commonwealth exercises due diligence

during the initial prosecution, the clock is restarted when charges are

reinstituted.   Peterson, supra.    In contrast, the Commonwealth cannot

evade Rule 600 by withdrawing charges and refiling when it has not acted

with diligence in the first instance.   See Peterson, supra at 1140 n.14.

This Court in our prior panel decision held that the Commonwealth exercised

diligence and made reasonable efforts in its attempt to produce Mr. Green.

Accordingly, we find that the clock was reset upon the Commonwealth’s




                                    - 25 -
J-S21005-15




attempt to re-file the charges.4         Since Appellant was brought to trial well

within 365 days of the Commonwealth’s request to reinstate the charges, no

Rule 600 violation occurred.

       As with so many of Appellant’s claims, issues twelve through nineteen

are waived.     The twelfth position set forth by Appellant is that the court

erred in striking a venire person for cause.         He cites no case law or legal

authority in support. Appellant’s inadequate development is fatal. Similarly,

Appellant’s thirteenth issue is waived as the entire argument is, “[t]he trial

court erred in permitting any testimony at all about how Mr. Wells was

arrested.”     Appellant’s brief at 19-20.         Issue fourteen fares no better,

although Appellant offers two sentences in support thereof.            Appellant’s

fifteenth claim is a one sentence assertion that “[t]he trial court erred in

overruling the hearsay objection to Anthony Comitalo testifying about the

out-of-court statements of Ronald Green.” Appellant’s brief at 20.

       The sixteenth issue Appellant avers is also one sentence:         “The trial

court erred in overruling the defendant’s relevance objection to Ronald

____________________________________________


4
  We are aware that Rule 600 would not generally begin to run before
jurisdiction returned to the trial court. See Commonwealth v. Sisneros,
692 A.2d 1105 (Pa.Super. 1997) (discussing date of remand). However, we
agree with Appellant to the limited extent that the Commonwealth is
estopped from arguing that such a period cannot count against it when it
was vigorously attempting to begin the prosecution despite the trial court’s
lack of jurisdiction.



                                          - 26 -
J-S21005-15




Green’s testimony about whether people in the neighborhood like it when

people testify.”    Id.    Appellant’s seventeenth, eighteenth, and nineteenth

“arguments” are also devoid of citation to legal case law and are,

respectively, one, two, and one sentence boilerplate statements.            Those

claims, therefore, do not entitle him to relief.

      Appellant does develop an argument relative to his twentieth position.

According to Appellant, the trial court erred in not finding that 18 Pa.C.S. §

6104 and the jury instruction relative thereto violate the Pennsylvania’s

Supreme Court’s rule-making authority. Section 6104 provides:

      In the trial of a person for committing or attempting to commit a
      crime enumerated in section 6105 (relating to persons not to
      possess, use, manufacture, control, sell or transfer firearms),
      the fact that that person was armed with a firearm, used or
      attempted to be used, and had no license to carry the same,
      shall be evidence of that person's intention to commit the
      offense.

18 Pa.C.S. § 6104.        Appellant avers that Article V, § 10 of the Pennsylvania

Constitution confers exclusive procedural rule-making authority with the

Pennsylvania Supreme Court.          He maintains that § 6104 is a procedural

evidentiary rule, which the legislature had no authority to pass.             The

Commonwealth counters that the statute is substantive because it defines

conduct necessary to prove intent.        Article V § 10(c) provides, in relevant

part, as follows:

      (c) The Supreme Court shall have the power to prescribe general
      rules governing practice, procedure and the conduct of all courts,


                                        - 27 -
J-S21005-15




      justices of the peace and all officers serving process or enforcing
      orders, judgments or decrees of any court or justice of the
      peace, including the power to provide for assignment and
      reassignment of classes of actions or classes of appeals among
      the several courts as the needs of justice shall require, and for
      admission to the bar and to practice law, and the administration
      of all courts and supervision of all officers of the judicial branch,
      if such rules are consistent with this Constitution and neither
      abridge, enlarge nor modify the substantive rights of any
      litigant, nor affect the right of the General Assembly to
      determine the jurisdiction of any court or justice of the peace,
      nor suspend nor alter any statute of limitation or repose. . . .

Thus, the Pennsylvania Constitution has expressly authorized our Supreme

Court to promulgate rules governing the practice, procedure, and conduct of

all of the courts in the Commonwealth.          See also Commonwealth v.

McMullen, 961 A.2d 842, 847 (Pa. 2008) (“T[he] [Supreme] Court retains

exclusive rule-making authority to establish rules of procedure.”).

      The   Pennsylvania    Supreme     Court   has   defined    procedural   and

substantive law by opining, “substantive laws are those which affect rights,

while procedural laws are those which address methods by which rights are

enforced.   The demarcation between substantive and procedural laws is,

however, at times shadowy and difficult to determine.”          Morabito's Auto

Sales, 715 A.2d 384, 386 (Pa. 1998) (internal citations omitted); see also

Commonwealth v. Estman, 915 A.2d 1191, 1195 (Pa. 2007) (quoting

Commonwealth v. Morris, 771 A.2d 721, 738 (Pa. 2001), and stating,

“substantive   law is that part of the law which creates, defines and regulates




                                     - 28 -
J-S21005-15




rights, while procedural laws are those that address methods by which rights

are enforced.”).

      We add that our Supreme Court in Commonwealth v. Fisher, 741

A.2d 1234, 1241 (Pa. 1999), declared that a statutory provision relative to

aggravating factors for the death penalty statute was not substantive;

however, it did not declare the law to be an unconstitutional invasion of its

procedural rule-making authority. Importantly, the Supreme Court has sua

sponte ruled that statutes unconstitutionally violate its rule-making power.

In re Suspension of Capital Unitary Review Act, 722 A.2d 676 (Pa.

1999). Therefore, it is immaterial whether or not a party raises this concern

before that Court.

      To the extent Appellant suggests that a statutory provision that

operates in a procedural manner can never be passed by the legislature, we

believe that position is legally untenable. See Fisher, supra. Here, we find

that § 6104 is not purely procedural.        The law defines a means of

establishing an element of a crime charged. Therefore, it is substantive in

nature. The legislature had authority to pass § 6104.

      Appellant’s twenty-first and twenty-second issues are waived for the

same reasons outlined with respect to issues twelve through nineteen. The

twenty-third position Appellant advances is that the trial court erred in

authorizing the Commonwealth to introduce Appellant’s juvenile adjudication



                                   - 29 -
J-S21005-15




for hindering apprehension if he elected to testify. Appellant’s argument is

cursory. He maintains that the hindering apprehension adjudication was for

a violation of 18 Pa.C.S. § 5105(a)(4),5 which has been held not to be a

crimen falsi crime.         See Commonwealth v. Harris, 658 A.2d 811

(Pa.Super. 1995).       In addition, in a fundamental misunderstanding of the

case law, he asserts that use of the hindering apprehension charge violates

Alleyne.

       The Commonwealth rejoins that Appellant was not adjudicated for a

violation of § 5105(a)(4).        Instead, the trial court ruled that the juvenile

petition in question alleged that Appellant intimidated or attempted to

intimidate a witness in a homicide by instructing the witness to alter his

testimony.       The Commonwealth submits that these facts supported an

adjudication under § 5105(a)(3), which is a crimen falsi crime. See Harris,

supra at 813-814 (stating in dicta that § 5105(a)(1)-(3), and (5) are crimen

falsi crimes).     With respect to Appellant’s Alleyne claim that because a

juvenile adjudication is not a conviction it cannot be introduced at trial, the

Commonwealth contends that the issue is waived because Appellant did not

object on this ground.
____________________________________________


5
   At trial, Appellant objected to an adjudication “as to a 6105 juvenile
matter.” N.T., 5/23/13, at 22. This appears to have been an inadvertent
slip, as immediately prior the parties had been discussing 18 Pa.C.S. § 6104
and 6105, relative to a jury instruction.



                                          - 30 -
J-S21005-15




      Alleyne, of course, has no application regarding admission of a

juvenile adjudication where the evidence does not mandatorily increase the

individual’s sentence. For this reason, it is unnecessary to decide whether a

juvenile adjudication falls under the Apprendi/Alleyne prior conviction

exception to those cases. Moreover, Appellant’s citation to Justice Scalia’s

dissent in Almendarez-Torres v. United States, 523 U.S. 224, 248

(1998), betrays his understanding of the law.      Justice Scalia therein was

opining that, to be in accord with the jury trial right, prior convictions must

be introduced and proven beyond a reasonable doubt if they increased the

defendant’s maximum sentence.         Thus, the case law Appellant relies on

actually supports the opposite result if the prior adjudication automatically

increases the defendant’s sentence.

      Further, we agree with the Commonwealth that Appellant’s prior

juvenile adjudication was for violating 18 Pa.C.S. § 5105(a)(3), and would

have been admissible to impeach his testimony as crimen falsi evidence. The

record contains the juvenile petition in question. The petition did not specify

which subsection of § 5105 was applicable. However, the delinquent act was

described as follows:

      On or about 7/12/06 while at or near 1301 Filbert Street, the
      Defendant, with the intent to hinder the apprehension,
      prosecution, conviction or punishment of another charged with
      murder,     the     Defendant    did  intimidate/attempt   to
      intimidate/retaliate against the complainant, [D.O.], by



                                      - 31 -
J-S21005-15




      repeatedly approaching him in the courtroom and telling him to
      change his testimony.

Juvenile Petition, 7/12/06.

      At an August 24, 2010 hearing, the court concluded that the

allegations, which Appellant admitted, did not fall under § 5105(a)(4), and

plainly were encompassed by § 5105(a)(3). Section 5105(a)(4) prohibits a

person from “warn[ing] the other of impending discovery or apprehension,

except that this paragraph does not apply to a warning given in connection

with an effort to bring another into compliance with law[.]”              18 Pa.C.S. §

5105(a)(4).    It is beyond cavil that this subsection does not apply.              In

contrast, § 5105(a)(3) makes it illegal to conceal or destroy evidence of a

crime, or tamper “with a witness, informant, document or other source of

information, regardless of its admissibility in evidence.”            18 Pa.C.S. §

5105(a)(3). The trial court did not err.

      Appellant’s   next   three   claims      are   waived   due    to    inadequate

development. In issue twenty-seven, although Appellant offers only a one

sentence argument, he does cite to non-binding case law from other

jurisdictions. He posits that the trial court violated his right to public trial by

closing the courtroom doors during its jury instruction.            Nonetheless, he

does not develop his argument in any meaningful fashion. We will not do his

work for him. This claim fails.




                                      - 32 -
J-S21005-15




      The final claim Appellant levels on appeal is to the sufficiency of the

evidence relative to his carrying an unlicensed firearm and carrying a firearm

on the public streets of Philadelphia charges.         Specifically, Appellant

contends that the Commonwealth did not establish the length of the barrel

of the firearm. The Commonwealth replies that the jury could have inferred

that Appellant used a handgun based on the evidence it received and that

the weapon used was less than twenty-six inches in length.

      In conducting a sufficiency of the evidence review, we view all of the

evidence admitted, even improperly admitted evidence. Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such

evidence in a light most favorable to the Commonwealth as the verdict

winner, drawing all reasonable inferences from the evidence in favor of the

Commonwealth.       Id.   When evidence exists to allow the fact-finder to

determine beyond a reasonable doubt each element of the crimes charged,

the sufficiency claim will fail. Id.

      The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   In addition, the Commonwealth can prove its case by circumstantial

evidence.    Where “the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined

circumstances[,]” a defendant is entitled to relief.   Id.   This Court is not



                                       - 33 -
J-S21005-15




permitted “to re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id.

      Here, the Commonwealth introduced into evidence Mr. Green’s

statement to police after he testified and denied that Appellant was the

culprit. In his statement to police, Mr. Green was asked what type of gun

Butter Roll possessed and he responded, “All I know, it was a black

handgun.”     N.T., 5/22/13, at 118.             The jury could have reasonably

determined from this testimony and the remaining testimony that the

weapon was not a rifle or a gun in excess of twenty-six inches. Appellant’s

issue does not entitle him to relief.

      Judgment of sentence affirmed.

      Judge Jenkins joins the memorandum.

      Judge Platt concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2015




                                        - 34 -
