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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
AARON LASHAY WILSON,                        :          No. 729 MDA 2018
                                            :
                          Appellant         :


       Appeal from the Judgment of Sentence Entered October 20, 2017,
                 in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-CR-0006266-2015


BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED OCTOBER 22, 2019

        Aaron Lashay Wilson appeals from the October 20, 2017 judgment of

sentence entered by the Court of Common Pleas of York County following his

conviction of possession of a controlled substance with intent to deliver.1 After

careful review, we affirm.

        The trial court set forth the following:

              [Appellant] was first brought to trial on September 20,
              2016.      However, upon being informed at the
              courthouse prior to the commencement of jury
              selection that Officer Michelle Miller was going to
              testify, [appellant] fled the courthouse and a bench
              warrant was issued.        [Appellant] was eventually
              apprehended and brought to trial again on March 9th,
              2017, but [appellant’s] counsel did not appear when
              the trial was to commence. [Appellant] then moved
              for dismissal or release on nominal bail pursuant to


1   35 P.S. § 780-113(a)(30).
J. S33035/19


          Pennsylvania Rule of Criminal Procedure 600 on
          April 5th, 2017, which the [trial c]ourt denied.

          Finally, a jury trial on [appellant’s] charge commenced
          on September 12, 2017. The Commonwealth first
          called Officer Adam Bruckhart. Officer Bruckhart
          testified about a controlled drug buy using the
          confidential informant [(“C.I.”)] that targeted
          [appellant], which was conducted on October 7th,
          2014. The [C.I.] Officer Bruckhart employed was
          deemed reliable.

          On October 7th, 2014, Officer Bruckhart had the [C.I.]
          call a target known as “A-Will” at the phone number
          717-[xxx-xxxx], and set up a buy for one eighth
          ounce of cocaine. On the other end of this call,
          Officer Bruckhart heard what he described as a male
          voice. Prior to the transaction, Officer Bruckhart
          searched the [C.I.] for any money or contraband,
          detecting nothing.

          Officer Bruckhart then turned the [C.I.] over to Officer
          Michelle Miller, along with $180.00 in official funds.
          Officer Bruckhart then traveled to the Pak’s Grocery
          Store on East Princess Street in York and set up a
          vantage point to maintain surveillance of the
          transaction,    approximately      100     feet    away.
          Officer Bruckhart observed [appellant] arrive at the
          location in his vehicle. He then observed Officer
          Michelle Miller arrive in a separate vehicle with the
          [C.I.]   Officer Bruckhart observed the [C.I.] exit
          Officer Miller’s vehicle and get into [appellant’s]
          vehicle. The officer observed “some interaction” in
          the car, then the [C.I.] exited [appellant’s] vehicle,
          got into Officer Miller’s car, and Officer Miller and the
          [C.I.] drove away. After the interaction, Officer Miller
          presented Officer Bruckhart with an eighth of an
          ounce of crack cocaine.

          Officer Bruckhart testified that while the lighting
          conditions were not conducive to take clear
          photographs of the interaction, and there was no
          security camera footage of the buy, he could see the
          interaction very well and had no blockages of his


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          sightline. The police did not arrest [appellant] directly
          after the October 7th, 2014 transaction, but instead
          began surveillance of [appellant] and noticed him
          driving the same vehicle he brought to the drug buy.

          The Commonwealth next called Officer Michelle Miller.
          Officer Miller testified that she transported the [C.I.]
          to the location of the transaction and provided the
          [C.I.] with the $180.00 in official funds. Officer Miller
          testified that at the time of the transaction, while it
          was not bright daylight, she could still see everything
          that was going on. When the Officer and the [C.I.]
          arrived at the location of the deal, they pulled up
          beside a blue Volvo, occupied by [appellant]. The
          [C.I.] exited Officer Miller’s vehicle and got into
          [appellant’s] vehicle, sitting in the front passenger
          seat. Officer Miller then witnessed the [C.I.] hand the
          official funds to [appellant] and [appellant] hand
          something back to the [C.I.] The [C.I.] next came
          back to Officer Miller’s vehicle and handed her a bag
          of cocaine, which was then turned over to
          Officer Bruckhart.

          The Commonwealth then called Sheriff’s Deputy
          Moses Wogu, who testified that on September 20,
          2016 he was working as a Sheriff’s Deputy in Judge
          Richard K. Renn’s courtroom in York when [appellant]
          was called in for a jury trial for [this] charge[].
          Deputy Wogu stated that [appellant] was in the
          courtroom initially, but after a 15 minute break prior
          to beginning jury selection, [appellant] was nowhere
          to be found in the courthouse and a bench warrant
          was issued for his arrest.

          [Appellant] then elected to take the stand and testify.
          [Appellant] testified that he has never owned or
          driven a blue Volvo, nor has he seen Officer Miller
          before the day of trial. He also stated that he never
          lived at the residence upon which the police did their
          surveillance. [Appellant] did admit that on the date
          of the previous trial, September 20th, 2016, that he
          panicked and left the courthouse after finding out
          Officer Miller was going to testify, because he felt
          “blindsided.”


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              Both parties then gave their closing arguments, the
              jury instructions were given, and the jury retired to
              deliberate.

Trial court opinion, 2/11/19 at 2-5 (citations to the record and extraneous

capitalization omitted).

        On appeal, appellant raises the following issues for our review:

              [I.]   Whether this Court has jurisdiction over this
                     appeal where [appellant] timely filed a
                     post-sentence motion[?]

              [II.] Whether the [trial] court erred in failing to
                    sustain [appellant’s] challenge to the weight of
                    the evidence where his conviction hinged on an
                    extremely unreliable eyewitness identification
                    backed with no substantial corroboration[?]

              [III.] Whether the trial court erred in denying
                     [appellant’s] Motion to Dismiss for Violation of
                     Rule 600 where excluding the delay caused by
                     his absconding from trial and other appropriate
                     deductions—instead of deeming the claim
                     waived—leaves 480 days’ delay[?]

Appellant’s brief at 5.2

        As noted by appellant’s first issue, we must initially determine whether

we have jurisdiction to entertain this appeal. On September 14, 2017, the

jury convicted appellant of the aforementioned crime.            The trial court

sentenced appellant to 5½ to 11 years of incarceration and imposed a fine on

October 20, 2016. Appellant prepared a pro se post-sentence motion and

provided the motion to prison officials for mailing on October 24, 2017. See


2   Appellant’s issues on appeal have been re-ordered for ease of our discussion.


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Smith v. Pa. Bd. Of Prob. and Parole, 683 A.2d 278, 281 (Pa. 1996);

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (holding that under

the prisoner mailbox rule, a document is deemed filed the day the document

is provided to prison officials for mailing). Appellant filed a pro se amended

post-sentence motion on November 12, 2017.           Appellant’s post-sentence

motions and amended post-sentence motion were forwarded to appellant’s

counsel, Roy Galloway, III, Esq., pursuant to Pa.R.Crim.P. 576(A)(4). See

also Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (mandating

that trial courts refer pro se pleadings from represented litigants to counsel

and take no further action on the pro se pleading unless counsel forwards a

motion).

      Pursuant to Rule 576(A)(4) and Jette, the trial court did not initially act

on either of these motions. Appellant filed a pro se notice of appeal, which

was docketed on April 6, 2018, and forwarded to Attorney Galloway.            On

April 18, 2018, Attorney Galloway filed a petition for leave of court to withdraw

his appearance, which the trial court granted on April 25, 2018. On April 30,

2018, appellant filed another pro se notice of appeal to this court.

      The trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on May 1, 2018. On

May 15, 2018, appellant filed an application for appointment of counsel. While

his application was pending, appellant filed a pro se concise statement of

errors complained of on appeal. The trial court appointed Brian McNeil, Esq.,



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of the York County Office of the Public Defender to represent appellant on

direct appeal. Attorney McNeil filed a praecipe on June 4, 2018, for the trial

court to enter an order denying appellant’s pro se post-sentence motion by

operation of law.    The trial court entered an order denying appellant’s

post-sentence motion by operation of law on June 8, 2018. Attorney McNeil

then filed an amended Rule 1925(b) statement on August 2, 2018, with leave

of court. The trial court then filed an opinion pursuant to Pa.R.A.P. 1925(a).

      On August 27, 2018, this court entered an order directing appellant to

show cause why his appeal should not be quashed as untimely filed. Appellant

filed a response in which he indicated that his pro se post-sentence motion

dated October 24, 2017, tolled the period in which he could file a notice of

appeal. On September 21, 2018, this court discharged its rule to show cause,

referring the appealability issue to the merits panel.

      The Commonwealth contends that appellant’s appeal should be quashed

as untimely filed because appellant filed a pro se post-sentence motion while

he was still represented by counsel, thus rendering the post-sentence motion

a legal nullity.     (Commonwealth’s brief at 17-18.)         Therefore, the

Commonwealth argues that appellant’s notice of appeal was not timely filed.

(Id. at 20.)

      In order to invoke the appellate jurisdiction of this court, a notice of

appeal must be filed within 30 days of the entry of an appealable order or

judgment of sentence. In re K.P., 872 A.2d 1227, 1230 (Pa.Super. 2005),



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citing Pa.R.A.P. 903(a). In criminal cases where post-sentence motions are

filed, the period in which to file a direct appeal is tolled and does not begin to

run until the motion is decided. Commonwealth v. Capaldi, 112 A.3d 1242,

1244 (Pa.Super. 2015), citing Pa.R.Crim.P. 720(A)(2); Pa.R.A.P. 903(a).

      It is well settled, however, that hybrid representation is not permitted

in this Commonwealth. Commonwealth v. Williams, 151 A.3d 621, 623

(Pa.Super. 2016).    A pro se filing of post-sentence motions by a litigant

represented by counsel is considered a legal nullity.       Commonwealth v.

Nischan, 928 A.2d 349, 355 (Pa.Super. 2007), citing Commonwealth v.

Piscanio, 608 A.2d 1027, 1029 n.3 (Pa. 1992).

      Our cases have recognized an exception to the rule against hybrid

representation. Indeed, this court recognized that in cases where a defendant

is effectively abandoned by his counsel and the trial court fails to appoint new

counsel in a timely manner, a defendant’s pro se filing while still represented

by counsel “does not offend considerations of hybrid representation.”

Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa.Super. 2015).

      Here, the record reflects that during sentencing, the trial court stated

that appellant’s counsel3 would “continue to act as counsel for [appellant] . . .

unless an order stating otherwise is entered.” (Notes of testimony, 10/20/17

at 22.) Appellant filed a pro se post-sentence motion four days after being


3 At the sentencing hearing, appellant was represented by Attorney Martin
from Attorney Galloway’s firm.      (Notes of testimony, 10/20/17 at 2.)
Attorney Martin’s first name was not included in the record. (Id.)


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sentenced by the trial court on October 24, 2017.          Appellant then filed a

pro se amended post-sentence motion on November 12, 2017. Despite being

served with copies of appellant’s post-sentence motion and amended

post-sentence motion, Attorney Galloway took no action in this case until after

appellant filed his first pro se notice of appeal, when Attorney Galloway filed

his motion to withdraw on April 18, 2018.

      Based on our review of the record, we find that Attorney Galloway

effectively   abandoned   appellant   and   that   appellant      filed   a   pro   se

post-sentence motion, despite the fact that he was represented by counsel, in

order to preserve his direct appellate rights. See Leatherby, 116 A.3d at 79.

Accordingly, we have jurisdiction to reach the merits of appellant’s remaining

issues.

      In his second issue, appellant avers that the jury’s verdict was against

the weight of the evidence. Appellant specifically claims that his conviction

“hinged on an extremely unreliable eyewitness identification backed with little

in the way of corroboration.” (Appellant’s brief at 24.)

      We review weight of the evidence claims under the following standard

or review:

                  The essence of appellate review for a
                  weight claim appears to lie in ensuring
                  that the trial court’s decision has record
                  support. Where the record adequately
                  supports the trial court, the trial court has
                  acted within the limits of its discretion.




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                  A motion for a new trial based on a claim
                  that the verdict is against the weight of
                  the evidence is addressed to the
                  discretion of the trial court. A new trial
                  should not be granted because of a mere
                  conflict in the testimony or because the
                  judge on the same facts would have
                  arrived at a different conclusion. Rather,
                  the role of the trial judge is to determine
                  that notwithstanding all the facts, certain
                  facts are so clearly of greater weight that
                  to ignore them or to give them equal
                  weight with all the facts is to deny justice.

                  An appellate court’s standard of review
                  when presented with a weight of the
                  evidence claim is distinct from the
                  standard of review applied by the trial
                  court. Appellate review of a weight claim
                  is a review of the exercise of discretion,
                  not of the underlying question of whether
                  the verdict is against the weight of the
                  evidence.

            Commonwealth v. Mucci, 143 A.3d 399, 410-11
            (Pa.Super. 2016), (quoting Commonwealth v. Clay,
            [], 64 A.3d 1049, 1054-1055 ([Pa.] 2013)). To
            successfully challenge the weight of the evidence, a
            defendant must prove the evidence is “so tenuous,
            vague and uncertain that the verdict shocks the
            conscience of the court.” Mucci, 143 A.3d at 411
            (quoting Commonwealth v. Sullivan, 820 A.2d 795,
            806 (Pa.Super. 2003)).

Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa.Super. 2017),

appeal denied, 171 A.3d 1286 (Pa. 2017).

      Determining the reliability of an eyewitness is solely within the purview

of the jury, as the jury is free to believe all, part, or none of the eyewitness’s

testimony. Commonwealth v. Rodriguez, 174 A.3d 1130, 1140 (Pa.Super.



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2017), appeal denied, 186 A.3d 941 (Pa. 2018), citing Commonwealth v.

Lambert, 795 A.2d 1010, 1014 (Pa.Super. 2002) (en banc), appeal denied,

805 A.2d 521 (Pa. 2002).

     Here, appellant challenges the reliability of Officer Miller’s eyewitness

testimony. In declining to find that the conviction was against the weight of

the evidence, the trial court determined that Officer Miller’s testimony was

corroborated by Officer Bruckhart and that the weight of the evidence was not

against appellant’s conviction.   We find no abuse of discretion in such a

conclusion. Accordingly, appellant’s weight of the evidence claim is without

merit.

     In his final issue, appellant contends that the trial court erred when it

denied appellant’s Rule 600 motion to dismiss. (Appellant’s brief at 34.) The

Commonwealth argues that because appellant absconded on the original date

his case was called to trial, he waived any Rule 600 claim. (Commonwealth’s

brief at 21, citing Commonwealth v. Steltz, 560 A.2d 1390 (Pa. 1988), and

Commonwealth v. Brock, 61 A.3d 1015 (Pa. 2013).) Appellant counters

with an argument that our supreme court’s recent holding in Commonwealth

v. Barbour, 189 A.3d 944 (Pa. 2018), “signal[ed] an intent to abandon [the

rule established in Steltz and Brock] and simply deduct the delay caused by

absconding.” (Appellant’s brief at 34.)

     As noted by the Commonwealth, the Steltz court held that a “voluntary

absence from a day set for trial within Rule [600] is a waiver of that rule.”



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Steltz, 560 A.2d at 1391 (emphasis added). Our supreme court reaffirmed

the Steltz holding in Brock. Brock, 61 A.3d at 1022. Barbour does not

represent the abandonment of Steltz and Brock that appellant suggests.

Rather, Barbour restates the holding in Steltz and reaffirms that the waiver

rule applies “only where a defendant fails to appear for a trial that complied

with the requirements of Rule 600.”           Barbour, 189 A.3d at 960-961.

Accordingly, our initial inquiry is whether appellant’s original trial date of

September 20, 2016, complied with Rule 600.

            In assessing a Rule 600 claim, the court must exclude
            from the time for commencement of trial any periods
            during which the defendant was unavailable, including
            any continuances the defendant requested and any
            periods for which he expressly waived his rights under
            Rule 600. Pa.R.Crim.P. 600(C). “A defendant has no
            duty to object when his trial is scheduled beyond the
            Rule [600] time period so long as he does not indicate
            that he approves of or accepts the delay.”
            Commonwealth v. Taylor, 598 A.2d 1000, 1003
            (Pa.Super. 1991), appeal denied, 613 A.2d 559 (Pa.
            1992) (addressing Municipal Court’s counterpart to
            speedy trial rule).

Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004) (en banc),

appeal denied, 875 A.2d 1073 (Pa. 2005).

      Here, appellant’s original trial date was September 20, 2016 – 509 days

after the complaint was filed in this case on April 30, 2015. Appellant concedes

that 171 days between the day the complaint was filed and his original trial

date are excludable for the purposes of Rule 600. (Appellant’s brief at 35-36.)

Taking into account the excludable time, the adjusted run-date for appellant’s



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trial was October 18, 2016.    Appellant was called for trial well within the

adjusted run-date. We, therefore, find that appellant, through his voluntary

absence from the original day set for his trial within the Rule 600 time-frame,

waives his Rule 600 claim.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2019




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