J-S60037-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                 Appellee              :
                                       :
                   v.                  :
                                       :
ROBERT COSTEN,                         :
                                       :
                Appellant              :    No. 3600 EDA 2015


           Appeal from the Judgment of Sentence June 12, 2014,
             in the Court of Common Pleas of Delaware County,
            Criminal Division at No(s): CP-23-CR-0001094-2012

BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED NOVEMBER 16, 2016

      Robert Costen (Appellant) appeals nunc pro tunc from the June 12,

2014, judgment of sentence imposed following his convictions by a jury for

two counts of robbery, and one count each of criminal attempt homicide,

aggravated assault, and firearms not to be carried without a license.    We

affirm.

      At sentencing, the trial court offered the following summary of the

underlying facts of this case.

      On Thursday, December 15th, 2011, at approximately 2:57 p.m.,
      [Appellant] entered the Dollar Magic Store, located at 721 South
      Chester Road, Springfield Township, Delaware County. There
      were video cameras inside and outside the store, which captured
      much of what transpired. [Appellant] was wearing a distinctive
      jumpsuit, and carrying a distinctive backpack when he entered
      the store. [Appellant] approached the cashier, Shampa Deb,
      and ordered her to open the cash register, or he would shoot
      her. Ms. Deb noticed that [Appellant] had a handgun. At about

*Retired Senior Judge assigned to the Superior Court.
J-S60037-16


         the same time Ms. Deb noticed the store manager, Abelardo
         Feliciano, [known] as Chickie, coming around the aisle, and she
         alerted him that [Appellant] had a gun and want[ed] money. []
         Feliciano grabbed [Appellant], and a struggle ensued. During
         the struggle, [] Feliciano was shot in the area of the right
         shoulder. [] Feliciano then punched [Appellant], causing him to
         drop the gun, after which [] Feliciano shot [Appellant]. Video
         captur[ed] [Appellant] exiting the store, stumbling to his car,
         getting into his car, and then starting to drive away. However,
         apparently due to blood loss, [Appellant] was only able to move
         the car a short distance. When police arrived, they found
         [Appellant] in the driver’s seat bleeding profusely. Paramedics
         arrived within minutes.     [Appellant] was transported to the
         trauma center at Crozer-Chester Medical Center.

N.T., 6/12/2014, at 22-23.

         Appellant    was   arrested   and   charged   with,   inter   alia,   the

aforementioned crimes as a result of this incident. Trial was scheduled for

May 21, 2012, but issues arose related to Appellant’s competency to stand

trial.    On September 7, 2012, Appellant was examined by Dr. Steven

Mechanick.1          Dr. Mechanick also interviewed Appellant’s mother and

reviewed other records. On September 24, 2012, Dr. Mechanick issued his

report “specifically stat[ing] that he [had] reviewed a report authored by

Richard G. Ivins, Ph.D., a neuropsychologist, who found [Appellant] to be

incompetent.” Id. at 24.2       “Dr. Mechanic[k] opined that [Appellant] was

[feigning] memory and cognitive impairment, and that he was capable of

understanding the charges that he faced, the possible consequences if

1
 The record refers to him as both Dr. Mechanic and Dr. Mechanick. Dr.
Mechanick is the correct spelling, and we will use that throughout this
memorandum.
2
    Dr. Ivins issued his report on June 21, 2012.


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convicted, and courtroom procedures, and that he was competent to stand

trial.” Id. at 25.

      At a status conference on October 22, 2012, Appellant’s counsel

advised the trial court of Dr. Mechanick’s findings and opinion, and based

upon Dr. Mechanick’s report, stipulated to Appellant’s competence to stand

trial and aid in his defense. Trial was scheduled for November 19, 2012.

      On November 19, 2012, the Commonwealth placed on the record the

offer made to Appellant. That offer would have resulted in Appellant serving

an aggregate term of nine to 18 years of incarceration.      In addition, the

Commonwealth advised Appellant that if convicted he faced a mandatory ten

years of incarceration for this being his second strike pursuant to 42 Pa.C.S.

§ 9714(a)(1). Appellant rejected the offer. Trial was scheduled for February

25, 2013.

        On February 19, 2013, pre-trial issues were addressed by the trial

court. Among the things Appellant had requested from the Commonwealth

but not yet received were “immigration records and criminal records of any

of the victims.” N.T., 2/19/2013, at 21. At the hearing, the Commonwealth

represented that the victims do not have criminal histories, but that it did

not “ask about immigration status of them.” Id. Appellant responded that

he believed Feliciano was an “illegal alien” and that would show that he did

not have a propensity for being law abiding because he did not “abide by the

law when [he came] into the country.” Id.           Appellant also indicated



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Feliciano’s status would show “bias,” and he could be impeached on that

basis. Id. at 22. The trial court did not grant or deny Appellant’s request at

that time; instead, it stated that Appellant could ask Feliciano questions

during trial, and the trial court would rule on any objections by the

Commonwealth.

      On February 21, 2013, Appellant filed a motion for reconsideration

specifically requesting information about Feliciano’s immigration status.

That trial court denied Appellant’s request.

      Thereafter, the trial court was advised by Appellant’s counsel that he

would need more time to prepare and would like the Commonwealth to

renew the offer. On February 25, 2013, the Commonwealth placed the offer

back on the record.        Although the offer was slightly different, the

recommended times of incarceration were the same. Defense counsel stated

that it would be beneficial if Appellant had the opportunity to discuss the

offer with his mother and asked to continue the trial.

      On Friday, March 8, 2013, Appellant informed the trial court that he

was rejecting the offer, and jury selection began. Appellant was found guilty

on all charges. Sentencing was scheduled for June 13, 2013. The trial court

ordered a pre-sentence investigation report, as well as psychological and

psychiatric evaluations of Appellant.

      Appellant subsequently was examined by Arthur D. Boxer, M.D. In his

April 4, 2013 report, Dr. Boxer stated that Appellant “did not appear to be at



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all competent during the course of the evaluation, and Dr. Boxer

recommended a neurological and psychological evaluation.” Id. at 27.

Subsequently, Jerry M. Lazaroff, Ph.D., issued a report dated May 14, 2013.

He stated that Appellant “refused to speak with him.” Id.

     On June 13, 2013, Appellant filed a motion for judgment of acquittal

arguing that he was not competent during his trial.               On June 27, 2013,

Appellant filed a petition for incompetency based upon Dr. Boxer’s report.

The Commonwealth contested the report, and the trial court granted the

Commonwealth’s motion to have Appellant examined by its expert, Dr.

Timothy Michals.    Dr. Michals examined Appellant on September 9, 2013.

Dr. Michals concluded that Appellant’s “behavior is characterized by

malingering.     I agree with Dr. Mechanic[k]’s opinion that [Appellant] is

feigning memory and cognitive impairments.” Report of Dr. Michals,

11/20/2013, at 5.

     Competency hearings were scheduled and held over the following

months.     On    March   3,   2014,    Dr.   Ivins   testified    about   Appellant’s

incompetency based upon his report dated June 21, 2012, where he had

found Appellant incompetent.           However, Dr. Ivins had not examined

Appellant since that time.     Dr. Boxer testified on March 27, 2014, stating

that he “was not certain about [Appellant’s] competency and that’s why [he]

asked for the … examinations by a neurologist.” N.T., 3/27/2014, at 31. On




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May 9, 2014, the trial court found that Appellant was competent at the time

of trial and was competent to proceed with sentencing.

      On June 12, 2014, Appellant was sentenced to an aggregate term of

incarceration of 17½ to 35 years.3     Appellant filed post-sentence motions,

which were denied on October 17, 2014. Appellant filed the instant appeal

nunc pro tunc after his appellate rights were reinstated. Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant sets forth three issues for our review.

            A. Whether the trial court erred in denying [Appellant’s]
      pre-trial motion filed February 21, 2013 wherein [Appellant]
      requested discovery and inspection of immigration information
      for Commonwealth witness [] Feliciano as per [Pa.R.Crim.P.
      573(B)]?

           B. Whether the trial court erred by denying [Appellant’s]
      motion for judgment of acquittal or new trial filed June 13, 2013
      based on findings of his incompetency by Doctors Ivins and
      Boxer?

           C. Whether the mandatory minimum sentence of 10 years
      imposed upon [Appellant] at sentencing under 42 Pa.C.S. § 9714
      based on “second strike” is illegal under Alleyne v. United
      States, 133 S.Ct. 2151 (2013)?

Appellant’s Brief at 8 (trial court answers omitted).

      Appellant first argues that the trial court erred by denying his pre-trial

motion to permit discovery and inspection of Feliciano’s immigration records

pursuant   to   Pa.R.Crim.P.   573(B)(2)(a)(iv).   Appellant’s   Brief   at   15.

3
   Because this was Appellant’s second crime of violence, his sentence
included a mandatory minimum term of ten years of incarceration pursuant
to 42 Pa.C.S. § 9714(a)(1). See N.T., 6/12/2014, at 33-34.



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Specifically, Appellant suggests that “if [Feliciano] is an illegal immigrant, it

would be appropriate and relevant evidence that would undermine his

testimony   and      would   demonstrate      a   lack   of   law-abidingness   and

truthfulness.” Id.

      This rule provides the following, in relevant part:

      (B) Disclosure by the Commonwealth.

                                        ***

            (2) Discretionary With the Court.

                     (a) In all court cases, … if the defendant
                     files a motion for pretrial discovery, the
                     court may order the Commonwealth to
                     allow the defendant’s attorney to inspect
                     and copy or photograph any of the
                     following requested items, upon a
                     showing that they are material to the
                     preparation of the defense, and that the
                     request is reasonable:

                                        ***

                           (iv) any other evidence
                           specifically identified by the
                           defendant,     provided    the
                           defendant can additionally
                           establish that its disclosure
                           would be in the interests of
                           justice.

Pa.R.Crim.P. 573(B)(2)(a)(iv).

      Thus, to satisfy his burden to require disclosure under this rule, an

appellant must demonstrate that the information he is requesting is material

to the preparation of his case; that it is reasonable; and that the information



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disclosed would be in the interests of justice. See id. “With regard to [a

defendant’s] burden of proving the requested information is material and

reasonable, [he or she] must show a reasonable probability that the

information gained from the discovery would lead to evidence that would

exonerate him.” Commonwealth v. Garcia, 72 A.3d 681, 684 (Pa. Super.

2013).   In addition, we “review the trial court’s ruling … for an abuse of

discretion.” Id.

      Instantly,   Appellant   was   seeking   information   about   Feliciano’s

immigration status to aid in his ability to impeach Feliciano’s credibility. At

trial, Feliciano offered testimony identifying Appellant as the perpetrator of

this crime and helping to establish the course of events.       However, the

Commonwealth had ample other evidence to satisfy both purposes.

      For example, with respect to Appellant’s identity, Feliciano testified he

shot Appellant near the belly button during the course of this incident. N.T.

3/12/2013, at 132. This testimony was objectively corroborated by Officer

Michael Montgomery who found Appellant near the scene of this incident

passed out in his vehicle with a pool of blood in his lap. N.T., 3/13/2013, at

17.   Furthermore, Dr. Wassim Habre, who treated Appellant at Crozer-

Chester Medical Center shortly thereafter, testified that Appellant had a

gunshot wound in his groin area. Thus, Appellant’s being able to impeach

Feliciano’s credibility would not have changed the jury’s determination that it

was Appellant who was involved with this incident.



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      Moreover, in establishing the chain of events, the jury also was able to

see almost the entire incident from the store’s surveillance video.          In

addition, Deb testified about how the incident occurred, and Feliciano’s

gunshot wound speaks for itself. Based on the foregoing, we conclude that

Appellant has not satisfied his burden in establishing a “reasonable

probability that the information gained from the discovery would lead to

evidence that would exonerate him.” Garcia, 72 A.3d at 684. Accordingly,

we hold the trial court did not abuse its discretion in denying Appellant’s pre-

trial discovery request.4

      Appellant next argues that the trial court erred in denying his motion

for judgment of acquittal wherein he challenged his competency to stand

trial.5 Appellant’s Brief at 16-19. Appellant argues that even though he gave

“an appearance of cooperation with trial counsel, counsel’s own post-verdict

motion avers that just the opposite was the case…. Passing on two

Commonwealth offers of 9 to 18 years in the face of the aforesaid evidence




4
  The trial court denied Appellant’s discovery motion by concluding that the
“immigration status of [Feliciano] is not relevant to the guilt or innocence of
[Appellant]. Rather, this issue is raised merely in an effort to prejudice the
jury against [Feliciano].” Order, 2/26/2013, at n.1. However, “we may
affirm the trial court’s decision on any basis” apparent from the record.
Commonwealth v. McCulligan, 905 A.2d 983, 988 (Pa. Super. 2006).
5
  Pennsylvania Rule of Criminal Procedure 704(B)(1) provides that “under
extraordinary circumstances, when the interests of justice require, the trial
judge may, before sentencing, hear an oral motion in arrest of judgment, for
a judgment of acquittal, or for a new trial.”


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clearly demonstrates that [Appellant] lacked [the ability to make rational

decisions].” Appellant’s Brief at 19.

      We consider the following principles in conducting this analysis.

            A defendant is presumed to be competent to stand trial.
      Thus, the burden is on the defendant to prove, by a
      preponderance of the evidence, that he was incompetent to
      stand trial. In order to prove that he was incompetent, the
      defendant must establish that he was either unable to
      understand the nature of the proceedings against him or unable
      to participate in his own defense.

            Stated otherwise, the relevant question in a competency
      determination is whether the defendant has sufficient ability at
      the pertinent time to consult with counsel with a reasonable
      degree of rational understanding, and to have a rational as well
      as a factual understanding of the proceedings.

            We extend great deference to the trial judge’s
      determination as to competency because he or she had the
      opportunity to observe directly a defendant’s behavior.
      Furthermore, we note that it is a proper exercise of the trial
      court’s discretion to accept one expert witness’s opinion over
      that of a conflicting opinion where the record adequately
      supports such a resolution.

Commonwealth v. Flor, 998 A.2d 606, 617-18 (Pa. 2010) (citing

Commonwealth v. Pruitt, 951 A.2d 307, 316 (Pa. 2008)).

      As the trial court pointed out, Appellant’s counsel “stipulated to

Appellant’s competency” prior to trial. Trial Court Opinion, 3/14/2016, at 10.

Additionally, the trial court viewed Appellant “actively participating with his

counsel” throughout trial. Id. In fact, the trial court noted the following at

sentencing.

      This [court] has had ample opportunity to observe [Appellant]
      over the past two years. At all times, [Appellant] did not exhibit


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      any difficulty in communicating with [d]efense counsel, nor did
      he exhibit an inability to comprehend what was taking place. In
      fact, several times, this [court] noted on the record that
      [Appellant] was participating in proceedings.

N.T., 6/12/2014, at 30.

      Throughout the length of this case, the only doctor who testified that

Appellant was incompetent was Dr. Ivins, who last saw Appellant in 2012.

The trial court found Dr. Ivins’ testimony to be not credible. See N.T.,

6/12/2014, at 28.     Alternatively, the trial court found the testimony and

reports of Dr. Boxer, Dr. Mechanick, and Dr. Michals, all of whom found

Appellant competent, to be credible. Id. at 28-29; Trial Court Opinion,

3/14/2016, at 11.     Based on the reports and testimony of the credited

doctors, as well as the trial court’s observations of Appellant, we conclude

that the trial court did not abuse its discretion in denying Appellant’s motion

for judgment of acquittal filed prior to sentencing.

      Finally, Appellant argues that his sentence, which included a ten-year

mandatory minimum term for his prior conviction pursuant to 42 Pa.C.S.

§ 9714, is illegal under the holding in Alleyne v. United States, 133 S.Ct.

2151 (2013).    However, “[i]n Alleyne, the Supreme Court of the United

States held that the Sixth Amendment requires that any fact—other than a

prior conviction—that increases a mandatory minimum sentence for an

offense must be submitted to the jury and proven beyond a reasonable

doubt. Importantly, Alleyne did not overturn prior precedent that prior

convictions   are   sentencing   factors   and   not   elements   of   offenses.”


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Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015) (emphasis

added).       Appellant recognizes the existence of this exception,      see

Appellant’s Brief at 21, but argues that it violates the spirit of Alleyne.6

Nonetheless, “[t]his Court is bound by existing precedent under the doctrine

of stare decisis and continues to follow controlling precedent as long as the

decision has not been overturned by our Supreme Court.” Commonwealth

v. Reed, 107 A.3d 137, 143 (Pa. Super. 2014).       Accordingly, Appellant is

not entitled to relief on this basis.

       Because Appellant has not presented to this Court any issue that

warrants relief, we affirm the judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2016




6
  On August 6, 2016, our Supreme Court granted a petition for allowance of
appeal on this issue. “Should the mandatory minimum sentence imposed by
the trial court under 42 Pa.C.S.A. § 9714 be vacated, and this matter
remanded for a new sentencing hearing, due to the fact that § 9714 is
unconstitutional as currently drafted?” Commonwealth v. Bragg, No. 67
EAL 2016, 2016 WL 4142109, at *1 (Pa. Aug. 4, 2016).


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