J-S41037-16

                               2016 PA Super 157



COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

DAN TUCKER,

                          Appellant                        No. 1411 EDA 2015


           Appeal from the Judgment of Sentence April 17, 2015
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0008242-2013

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                                 FILED JULY 19, 2016

      Daniel “Dan” Tucker (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Philadelphia County after

a jury convicted him of third-degree murder, two counts of attempted

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

and two counts of violation of the Uniform Firearms Act (“VUFA”).

Sentenced to consecutive sentences aggregating to a 35 to 70-year term of

incarceration,   Appellant   challenges   the   legality    of   his   sentence,   the

sufficiency of evidence pertaining to attempted murder, the denial of his

motions for mistrial and continuance to conduct DNA testing of evidence,

respectively, and an evidentiary ruling permitting the Commonwealth to

introduce a witness’s prior statement to bolster his testimony.            We affirm




*Former Justice specially assigned to the Superior Court.
J-S41037-16



Appellant’s convictions but are compelled to vacate judgment of sentence

and remand for resentencing consistent with this decision.1

       The trial court aptly summarizes the factual history of the case as

follows:
      On January 5, 2013, five members of the Philadelphia Chapter of
      the Wheels of Soul Motorcycle Club met at their West
      Philadelphia clubhouse before traveling together to Chicago to
      attend the funeral of another club member. They returned to
      the clubhouse at approximately 5:40 A.M. on Sunday, January 6,
      2013 and parked at 61st and Market Street near the door of the
      clubhouse located at 6114 West Market Street in the City and
      County of Philadelphia. The street was quiet and other than the
      returning club members, Appellant was the only person observed
      on the street. Appellant was known to club member Richard
      Motes, Jr. (“Motes”), also known as “Ricky” or “Raw Dawg,”
      because Appellant, though not a member, had come to the
      Wheels after-hours club for years. Appellant, after exchanging
      greetings with Motes, pulled a gun and opened fire on the men
      as they attempted to enter the club.

       Appellant shot Nezzer Pankey (“Pankey”) also known as “Nezz”
       in the face. Motes was shot in the right thigh. Rodney Turner
       (“Turner”) also known as “Rock” was also one of the returning
       travelers and he was shot four times during this same incident.
       Turner was shot two times in the neck, one time in the buttock,
       and another bullet grazed his left chest. Appellant ran out of
       bullets and fled down Dewey Street. Members of the club who
       were in the clubhouse at the time exited once the gunfire
       ceased, and some began to run in the direction of the Appellant.
       Other members who emerged from the clubhouse transported
       Pankey and Turner to the Hospital of the University of
       Pennsylvania. Appellant was not apprehended on the night of
       the incident. Motes was not immediately aware that he had
       been shot, and Police officers who arrived on the scene
       transported Motes to the Hospital of the University of
____________________________________________


1
 Both parties agree that Appellant’s VUFA sentence exceeds the statutory
maximum and is, thus, an illegal sentence. See discussion infra.



                                           -2-
J-S41037-16


     Pennsylvania. Motes gave a statement to homicide detectives
     and was able to identify Appellant from a photo spread. Turner
     was able to identify Appellant as the shooter from a photo
     spread and in court but did not identify Appellant during a
     pretrial line up. Pankey did not survive.

     Pankey was pronounced dead at 6:53 P.M. on January 6, 2013.
     Pa[n]key was shot one time in the left side of the face, where
     the bullet entered his brain. An autopsy performed by Chief
     Medical Examiner Dr. Gary Collins found that Pankey’s cause of
     death was a penetrating gunshot wound to the left side of the
     head. The manner of death was found to be homicide.

     [Mahogany] Livingston (“Livingston”) was at the Wheels after-
     hours club in the early morning hours of January 6, 2013. As
     she arrived, Appellant, who[m] she recognized from the
     neighborhood, was being ejected from the club by some of the
     club members. She remained in the club until about 5:00 A.M.
     then she went to her home which was nearby. Upon arrival at
     home, Livingston realized that she did not have her cell phone so
     she returned to the club to look for it. When she arrived at the
     club it was about 5:30 A.M. At this time Livingston observed a
     male on the corner with his hands in the pocket of his hooded
     sweatshirt and she saw an imprint of a gun. She recognized this
     male was the same one who had been ejected from the club
     earlier that evening. When Livingston entered the club she was
     unable to locate her phone but told club members that she had
     seen a man outside with a gun. Livingston heard gunfire outside
     of the club shortly after her arrival there. Livingston was unable
     to make a positive identification of Appellant at the pretrial
     lineup.

     At trial, [Aaron] Burnett (“Burnett”), who was working security
     at the door of the Wheels club, testified that he and another
     member had, in fact, removed Appellant from the club on the
     night of the shooting because Appellant had become unruly.
     Upon leaving, Appellant said, “I will be right back.” An arrest
     warrant was issued for Appellant and he was located at the
     home of his ex-girlfriend Brianna Poole (“Poole”) and taken into
     custody without incident on April 10, 2013.

Trial Court Opinion, filed November 13, 2015, at 3-5.




                                    -3-
J-S41037-16



      Appellant’s six-day jury trial culminated with a verdict of not guilty on

the charge of first-degree murder and guilty verdicts on the remainder of

charges, as noted supra. After the court imposed sentence, Appellant filed

no post-sentence motion, but he filed a timely notice of appeal to this Court.

He subsequently complied with the trial court’s order to file a Pa.R.A.P.

1925(b) statement of errors complained of on appeal, and the trial court

filed a responsive Rule 1925(a) opinion.

      Appellant raises the following five issues for our review:


      1. Did the lower court impose an illegal sentence by sentencing
         Appellant to five to ten years for a felony of the third degree,
         a violation of Section 6106 of the Uniform Firearms Act?

      2. Did the lower court err and deprive Appellant of a fair trial, by
         denying a defense motion for a mistrial after the Assistant
         District Attorney stated in a question to a witness that
         Appellant previously “went to jail”?


      3. Was the evidence insufficient to sustain a conviction for two
         counts of attempted murder, as the Commonwealth failed to
         prove that Appellant had a specific intent to kill?


      4. Did the lower court err and violate Appellant’s constitutional
         rights to a fair trial and to present a defense by denying a
         continuance to conduct DNA testing of a knife recovered from
         the scene of the crime, testing that was not done previously
         because the Commonwealth provided the property receipt for
         the knife the day before trial?


      5. Did the lower court err and violate the Rules of Evidence by
         permitting the Commonwealth to bolster a witness by
         introducing the witness’s prior hearsay statement on direct
         examination?


                                     -4-
J-S41037-16



Appellant’s brief at 4-5.

      Appellant first contends that his five to ten year sentence imposed for

VUFA at 18 Pa.C.S. § 1103(3) exceeds the statutory maximum of seven

years’ incarceration for a felony of the third degree and, therefore,

represents an illegal sentence. For its part, the Commonwealth agrees that

this aspect of Appellant’s sentence is illegal, may be raised for the first time

on appeal, and requires remand for resentencing.

             The scope and standard of review applied to determine the
      legality of a sentence are well established. If no statutory
      authorization exists for a particular sentence, that sentence is
      illegal and subject to correction. An illegal sentence must be
      vacated. In evaluating a trial court's application of a statute, our
      standard of review is plenary and is limited to determining
      whether the trial court committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001–1002 (Pa.Super. 2006)

(citations omitted). A challenge to the legality of a sentence:

      is essentially a claim that the trial court did not have jurisdiction
      to impose the sentence that it handed down.... A trial court
      ordinarily has jurisdiction to impose any sentence which is within
      the range of punishments which the legislature has authorized
      for the defendant's crimes.

Commonwealth v. Cappellini, 690 A.2d 1220, 1226 (Pa.Super. 1997),

(quoting Commonwealth v. Catanch, 581 A.2d 226, 228 (Pa.Super.

1990)).

      The statutory maximum penalty for a third degree felony is seven

years' incarceration. 18 Pa.C.S. § 1103(3). Thus, we concur that the

sentence imposed for VUFA is illegal as it exceeded seven years.              We,



                                      -5-
J-S41037-16



therefore, vacate the sentence for VUFA and remand for resentencing

consistent with Section 1103(3).

       Appellant next asserts that he was denied a fair trial when the

prosecutor read for a witness, Brianna Poole, a transcript of her pre-trial

interview with investigators which included her statement that Appellant

previously “went to jail.”       N.T. 2/5/15 at 115.   The prosecutor’s act was

particularly egregious, Appellant maintains, because the trial court had

reminded the prosecutor just moments earlier to avoid reading answers that

referred to Appellant’s previous time in jail. See N.T. at 112.

       A motion for mistrial is the appropriate means by which to challenge

prosecutorial misconduct. Pa.R.Crim.P 605(B).2         The following standards

govern our review:

       In criminal trials, declaration of a mistrial serves to eliminate the
       negative effect wrought upon a defendant when prejudicial
       elements are injected into the case or otherwise discovered at
       trial. By nullifying the tainted process of the former trial and
       allowing a new trial to convene, declaration of a mistrial serves
       not only the defendant's interest but, equally important, the
       public's interest in fair trials designed to end in just judgments.
       Accordingly, the trial court is vested with discretion to grant a
       mistrial whenever the alleged prejudicial event may reasonably
       be said to deprive the defendant of a fair and impartial trial. In
       making its determination, the court must discern whether
____________________________________________


2
 Pa.R.Crim.P. 605(B) provides: “When an event prejudicial to the defendant
occurs during trial only the defendant may move for a mistrial; the motion
shall be made when the event is disclosed. Otherwise, the trial judge may
declare a mistrial only for reasons of manifest necessity.”




                                           -6-
J-S41037-16


      misconduct or prejudicial error actually occurred, and if so, ...
      assess the degree of any resulting prejudice. Our review of the
      resulting order is constrained to determining whether the court
      abused its discretion.     Judicial discretion requires action in
      conformity with the law on facts and circumstances before the
      trial court after hearing and consideration. Consequently, the
      court abuses its discretion if, in resolving the issue for decision,
      it misapplies the law or exercises its discretion in a manner
      lacking reason.

Commonwealth v. Jaynes, 135 A.3d 606 (Pa.Super. 2016) (quoting

Commonwealth v. Lettau, 955 A.2d 360, 363 (Pa.Super. 2008), reversed

on other grounds, 986 A.2d 114 (Pa. 2009) (citations, quotations, and

quotation marks omitted)).

      The Commonwealth responds that Appellant failed to preserve this

issue with a timely and specific objection during the witness’s testimony.

The notes of testimony confirm that defense counsel first raised the issue

with the trial court only after the testimonies of Ms. Poole and a subsequent

witness were completed. While defense counsel requested and was granted

an unrecorded sidebar discussion after Ms. Poole completed her testimony

and was excused as a witness, there is no indication that counsel lodged an

objection at that time. Appellant does not claim to have made an objection

at such time, nor does the trial court, in its Pa.R.A.P. 1925(a) opinion,

indicate that counsel raised the issue at any time prior to moving for mistrial

after the ensuing witness completed his testimony.

      “[T]he failure to make a timely and specific objection before the trial

court at the appropriate stage of the proceedings will result in waiver of the

issue.” Commonwealth v. Houck, 102 A.3d 443, 451 (Pa.Super. 2014).


                                     -7-
J-S41037-16



This Court has previously held that the failure to object to testimony at the

time it was given precluded a subsequent motion for mistrial lodged only

after the witness was excused and the court took a recess:

     In the present case, Appellee's counsel did not object
     immediately after Appellant's witness mentioned insurance;
     rather, he waited until after Appellant finished the direct
     examination, after he conducted a cross examination, and after
     a brief redirect and recross. At that point, the court took a short
     recess during which time both attorneys approached the bench,
     and Appellee's counsel purportedly objected to the testimony.
     Unfortunately, this bench conference was not transcribed.
     Although Appellee claims he moved for a mistrial at that time
     (Appellee's Brief at 3 n. 1), the trial judge does not remember
     such a motion. (Trial Ct.Op. at 2). Instead, the judge recalls
     that they discussed a curative instruction, which he subsequently
     gave during the jury charge. See N.T., 4/23-24/01, at 393
     (“There was some mention of insurance in this case and the fact
     that one or both of the parties may or may not be covered by a
     policy of insurance is of absolutely no relevance to you in this
     matter.”).

     Appellee argues that its objection, although not immediate, was
     timely, in that it gave the trial court the opportunity to correct
     the error. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa.
     255, 322 A.2d 114, 115 (1974). Appellee explains that it did not
     object immediately for two reasons: (1) it did not want to draw
     further attention to the testimony, and (2) the comment was
     isolated, so there was no continuing wrongdoing by the witness.
     See Appellee's Brief at 3. The trial court agreed, concluding that
     the “slight delay” between the testimony heard midmorning and
     the motion for mistrial requested midafternoon, did not render
     the objection untimely. (Trial Ct.Op. at 3).

     We disagree. In order to preserve an issue for appellate review,
     an aggrieved party must make a timely and specific objection.
     []. Here, Appellee failed to object to Simpson's reference
     to insurance when it was uttered, but rather waited until
     after Simpson had completed his testimony on direct,
     cross, redirect and recross.       This was too late. See
     Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 521


                                    -8-
J-S41037-16


     A.2d 25, 30 (1987), appeal dismissed as improvidently
     granted, 518 Pa. 61, 540 A.2d 268 (1988), cert. denied, 488
     U.S. 827, 109 S.Ct. 78, 102 L.Ed.2d 54 (1988) (finding objection
     to witness' hearsay testimony during direct examination
     untimely when appellant's counsel failed to object until after he
     had begun cross examination). Moreover, as our Supreme Court
     stated in Harman [ex. rel. Harman v. Borah, 562 Pa. 455,
     756 A.2d 1116, 1124 (2000)], “[w]hile we can accept counsel's
     concern about further alerting the jury, we find no justification
     for counsel's inertia.” Id. at 1126 (finding objection untimely
     when appellant's counsel failed to object to trial court's off-the-
     record conversation with appellee's expert until one hour after
     incident, even though court entertained motions on other issues
     during intervening recess). Accordingly, because Appellee failed
     to lodge a timely objection to Simpson's testimony, the trial
     court should have found the issue waived.[]

Allied Elec. Supply Co. v. Roberts, 797 A.2d 362, 364-65 (Pa.Super.

2002).    See also Commonwealth v. Boring, 684 A.2d 561, 568

(Pa.Super. 1996) (deeming motion for mistrial made subsequent to

sustained objection untimely when deferred until conclusion of witness

testimony a considerable length of time after prejudicial remark occurred);

Commonwealth v. Smith, 410 A.2d 787, 790–91 (Pa. 1980) (request for

mistrial because of witness's reference to polygraph test untimely when

made approximately two or three minutes after the allegedly prejudicial

statement).

     The case sub judice falls squarely under Allied Elec. Supply Co., as

Appellant waited until the completion of direct examination and cross-

examination of both Brianna Poole and the next witness before it first

objected to the reference to Appellant’s prior incarceration with its motion




                                    -9-
J-S41037-16



for mistrial. Under our jurisprudence, this was simply too late to lodge an

objection to the direct examination of Ms. Poole.3

       Moreover, we concur with the trial court’s unsympathetic response to

the motion where the reference in question appeared in Appellant’s

discovery packet, giving Appellant ample notice of its potential disclosure

and, thereby, ample opportunity to file a motion in limine to have the

reference redacted. See N.T. 2/5/15 at 163-64. Indeed, in Smith, supra,

the Pennsylvania Supreme Court made such an observation under similar

circumstances:

       Appellant next claims the trial court erred in not granting a
       mistrial when the Commonwealth's witness made references to
       the appellant's willingness to take a polygraph examination. We
       agree with the trial court's decision.



____________________________________________


3
  As noted supra, defense counsel approached the bench after the conclusion
of Ms. Poole’s testimony, but the sidebar discussion was unrecorded.
Notwithstanding that we would, in any event, deem an objection made after
the witness had left the stand untimely pursuant to Allied Elec. Supply
Co., we note it is unascertainable from the record whether defense counsel
actually made such an objection during sidebar discussion.               Neither
Appellant nor the trial court, moreover, suggest that defense counsel lodged
an objection at this time. “It is settled that it is Appellant's responsibility to
ensure that this Court has the complete record necessary to properly review
a claim.”       Commonwealth v. Kleinicke, 895 A.2d 562, 575
(Pa.Super.2006) (en banc). “The law of Pennsylvania is well settled that
matters which are not of record cannot be considered on appeal.”
Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.Super. 2006). Therefore,
with no record evidence that such an objection was made, we deem
Appellant’s motion for mistrial the first objection voiced to the court.




                                          - 10 -
J-S41037-16


        The prosecutor, at trial, during direct examination of the
        detective who interrogated the appellant at the Police
        Administration Building, asked the witness to give a
        chronological narrative of the interrogation. When the testimony
        reached the point at which appellant had made the incriminating
        statement, admitting participation in the crime and denying he
        shot Officer Daniels, the witness was requested to read the
        statement into the record. The challenged reference to the
        polygraph examination was part of this statement and came on
        the seventh and last page of the statement. Defense counsel did
        not move for a mistrial at that time. He waited approximately
        two or three minutes, until the prosecutor finished direct
        examination and the court called a recess before making the
        motion for mistrial.

        Pa.R.Crim.P. 1118(b)[4] provides: “When an event prejudicial to
        the defendant occurs during trial, only the defendant may move
        for a mistrial; the motion shall be made when the event is
        disclosed. Otherwise, the trial judge may declare a mistrial only
        for reasons of manifest necessity.” (emphasis added). See
        Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520
        (1978).

        Since the challenged testimony came in the context of a
        recital of the contents of the defendant's confession, a
        document with which defense counsel was thoroughly
        familiar, defense counsel could have requested an
        advance deletion of the polygraph reference. When, as
        here, the asserted error is one that could readily have
        been    anticipated    and   avoided, the    defendant's
        explanation for noncompliance with Pa.R.Crim.P. 1118(b),
        that counsel wished to avoid compounding the alleged
        prejudices, is hardly persuasive.

Smith, 410 A.2d at 790-91 (emphasis added).          In light of the foregoing

precedent, we find the court’s denial of Appellant’s motion for mistrial

appropriate.

____________________________________________


4
    Now Pa.R.Crim.P. 605(b).



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J-S41037-16



      Appellant next contends the evidence was insufficient to support his

convictions for attempted murder, as the Commonwealth failed to prove he

acted with a specific intent to kill. His argument in this regard first focuses

on what he calls the inconsistent verdicts of acquittal of first-degree murder

charges for the death of Nezzer Pankey and convictions on attempted

murder for the shooting of Richard Motes in the leg and Rodney Turner in

the neck. He also maintains that, at the very least, the conviction based on

the shooting of Mr. Motes in the leg must be overturned because the leg is

not a vital part of the body.

      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant's guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.           Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [trier] of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011).

                                    - 12 -
J-S41037-16



      Criminal attempt is defined as follows:

      (a) Definition of attempt.—A person commits an attempt
      when, with intent to commit a specific crime, he does any act
      which constitutes a substantial step towards the commission of
      that crime.

18 Pa.C.S. § 901(a).     “For a defendant to be found guilty of attempted

murder,   the   Commonwealth     must    establish   specific   intent   to   kill.”

Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.Super. 2004).

Therefore, “[i]f a person takes a substantial step toward the commission of a

killing, with the specific intent in mind to commit such an act, he may be

convicted of attempted murder.” In re R.D., 44 A.3d 657, 678 (Pa.Super.

2012). “The Commonwealth may establish the mens rea required for first-

degree murder, specific intent to kill, solely from circumstantial evidence.”

Id. Further, our Supreme Court has repeatedly determined that “[t]he use

of a deadly weapon on a vital part of the body is sufficient to establish the

specific intent to kill.” Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa.

2007); see also Commonwealth v. Cousar, 928 A.2d 1025, 1034 (Pa.

2007) (“a specific intent to kill may be inferred from the use of a deadly

weapon on a vital part of the victim's body.”).

      Viewing all the evidence admitted at trial in the light most favorable to

the verdict winner, we conclude Appellant’s argument that the evidence was

insufficient to support his attempted murder conviction for shooting Motes

fails. For example, Richard Motes recounted how Appellant not only fired a

shot straight through the largest part of Motes’ thigh during the shooting


                                    - 13 -
J-S41037-16



spree but also fired two more shots that Motes felt go past his head. N.T.

2/3/15 at 59-60.    It was Motes’ opinion that Appellant believed that both

Pankey and he were dead at that point, prompting Appellant to turn his

attention to Rodney Turner. N.T. at 60-61. It was therefore reasonable for

the jury to infer from the totality of such circumstances a specific intent to

kill Motes.

      Appellant’s contention that the verdicts acquitting Appellant of the

first-degree murder of Pankey and convicting him of attempted murder of

Motes and Turner were inconsistent with respect to the mens rea element

and, therefore, reversible, is likewise misdirected, for the only pertinent

question regarding the attempted murder verdicts is whether sufficient

evidence supported them. As our Supreme Court recently observed on the

question of inconsistent verdicts:

      The question before us implicates the general issue of
      inconsistent verdicts, which, under longstanding federal and
      state law, are allowed to stand so long as the evidence is
      sufficient to support the conviction.     See Dunn v. United
      States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932)
      (holding that “[c]onsistency in the verdict is not necessary” and
      refusing to allow inconsistent verdicts to be upset by
      “speculation or inquiry” into the possibility of compromise or
      mistake on the part of the jury); United States v. Powell, 469
      U.S. 57, 58, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (applying
      Dunn's rule, which the Court explained as follows: “a criminal
      defendant convicted by a jury on one count could not attack that
      conviction because it was inconsistent with the jury's verdict of
      acquittal on another count”).        In affirming a verdict of
      aggravated assault and battery, despite the jury's acquittal of
      the accused on a separate count of assault and battery, this
      Court reiterated that “[a]n acquittal cannot be interpreted as a
      specific finding in relation to some of the evidence.”

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J-S41037-16


      Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375, 376
      (1971) (citation omitted). Rather, an acquittal of a charge for
      which there was sufficient evidence for conviction is an occasion
      of a “jury's assumption of a power which [it] had no right to
      exercise, but to which [it was] disposed through lenity.” Id.
      (citation omitted).

Commonwealth v. Miller, 35 A.3d 1206, 1208-09 (Pa. 2012).

      There is no question the evidence was sufficient to support the jury’s

verdicts of guilt on the charges of attempted murder in this case.

Accordingly, we view Appellant’s sufficiency challenge as baseless.

      In Appellant’s fourth issue, he declares the court erroneously denied

his request for a continuance—made on the first day of trial—to permit him

to conduct DNA testing of a knife recovered from the crime scene.

According to Appellant, he was not made aware of the precise location of the

knife at the crime scene until the day before trial, when he received a

property receipt for the knife. Appellant concedes, however, that he knew

for approximately one year before trial of the presence of the knife at the

scene, but did not know its precise location. The precise location was critical

to his defense, he claims, because it was recovered from the area where

eyewitnesses observed the shooter running away.             DNA test results

excluding him could have supported the defense theory that someone else

committed the shooting, he posits.

      After hearing argument from both sides, the trial court denied

Appellant’s motion because “the request did not comply with the 48-hour




                                     - 15 -
J-S41037-16



requirement of Pa.R.Crim.P. 106(D)5 and the opportunity to conduct the

DNA testing existed long before the start of trial.” Trial Court Opinion, at 6.

“There were no allegations that a knife was in any way involved in this case

and there were several witnesses who placed Appellant at the scene of the

crime[,]” the court reasoned. Id.

       Our standard of review is well-established.

       A decision to grant or deny a continuance rests within the sound
       discretion of the trial court. We will not reverse a trial court's
       decision absent a showing of abuse of that discretion or
       prejudice to the defendant. [A]n abuse of discretion is not
       merely an error of judgment. Rather, discretion is abused when
       the law is overridden or misapplied, or the judgment exercised is
       manifestly unreasonable, or the result of partiality, prejudice,
       bias, or ill-will, as shown by the evidence or the record.

Commonwealth v. Flor, 998 A.2d 606, 620 (Pa. 2010) (citations and

internal quotations omitted).

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

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

in the trial court's denial of a continuance.            With the circumstances
____________________________________________


5
   Rule 106, “Continuances                in   Summary    and   Court   Cases,”
provides in pertinent part:

       (D) A motion for continuance on behalf of the defendant shall be
       made not later than 48 hours before the time set for the
       proceeding. A later motion shall be entertained only when the
       opportunity therefor did not previously exist, or the defendant
       was not aware of the grounds for the motion, or the interests of
       justice require it.

Pa.R.Crim.P. 106(D).



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surrounding the shooting severely undermining the relevance of the knife to

Appellant’s defense, and given Appellant’s failure to pursue information

regarding the knife despite knowing of its existence for approximately one

year, the court was well within its province under Rule 106(D) to deny

Appellant’s noncompliant request for a continuance.     We discern no error

with this ruling.

      Finally, Appellant charges the court with error for permitting the

Commonwealth to introduce into evidence the prior statement Richard Motes

gave at the police station as an accompaniment to the testimony Motes had

just provided about giving a statement to police after he had been

discharged from the hospital. Specifically, during trial, Motes testified that

police had sequestered his hospital room so that he could talk to no visitors

prior to giving police a statement. Once discharged and taken to the station,

Motes testified, he gave an oral statement while a detective reduced it to

writing. N.T. at 80.

      He testified to telling investigators that he knew Appellant for years

from coming in and out of the club, and he described how he selected

Appellant’s photo instantly from an array of six pictures: “right off, I mean,

it didn’t take a few seconds, I said, ‘This is the guy,” and I circled, put my

name over top [sic] of it.” N.T. at 81. At that time, the prosecutor asked to

display the written statement for identification, to which the defense

objected given the clear ability of Mr. Motes to remember his statement.

N.T. at 81. The court overruled the objection, deeming it a fair response to

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defense   counsel’s   opening   remarks      calling   eyewitness   identifications

unreliable.   The court, therefore, allowed the prosecution to present

evidence that Mr. Motes had been consistent in his identification from the

beginning of the case.

      Mr. Motes first authenticated the statement as the one written in his

presence as he spoke to investigators, and the court allowed its admission

into evidence.   N.T. at 83.    The prosecutor then asked Motes to either

comment on different parts of his three-page statement or read directly from

it, and Motes essentially reiterated what he had said earlier in his testimony.

At one point, after reading a sentence in which he again confirms knowing

Appellant from the clubhouse and distinguishing Appellant’s light-skinned

cousin who frequently accompanies Appellant at the clubhouse, Appellant

immediately provides the following remark independent of the written

statement:

      A:    Yes. He [Appellant] comes in all the time. We shake their
      hand. You know, they know us, we shake their hand all the
      time. We greet them, that is how I know him very well. I didn’t
      talk to anyone.    I didn’t know what was going on, but I
      recognized him at that corner and when he pulled the gun out.

N.T. at 88.

      Evidence of a prior consistent statement by a witness is admissible for

rehabilitation purposes under the Pennsylvania Rules of Evidence if “the

opposing party is given an opportunity to cross-examine the witness about

the statement, and the statement is offered to rebut an express or implied

charge of fabrication, bias, improper influence or motive, or faulty memory

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and the statement was made before that which has been charged existed or

arose.”   Pa.R.E. 613(c)(1).    In her opening remarks, defense counsel

advanced the theory that the Wheels of Soul motorcycle club to which

Richard Motes and other eyewitnesses belonged had conspired to accuse

Appellant falsely of shooting their club members:

      DEFENSE COUNSEL: Listen, this is a seriously close-knit band
      of brothers. After the shooting happened, they met. They
      decided whether they were going to –whether they wanted to
      talk to the police and what they were going to tell them. They
      met. They didn’t just come forward. And I am going to talk
      about that in a minute. They met to make a determination,
      what are we going to tell the police, and then they sent orders
      down to the members of their club about what to say. You’re
      going to hear about that. Members got orders from above. And
      what they figured was, the people outside, nobody got a good
      look at who the shooter was. It was dark. You’re going to listen
      to the circumstances under which they were able to look at the
      shooter, and none of them got a good look at that person. But
      they went into the bar, they figured out, hey, you know that guy
      we threw out, here is his cell phone and here’s his picture with
      his child right on the phone. And when they finally made a
      determination about what they believed, you know, what they
      were guessing happened, they put down the order, and that’s
      what people were to follow.

N.T. at 38-39.

      Because defense counsel expressly charged Motes and the other

members of the Wheels of Soul witnesses with fabrication, bias, and

improper motive in their implication of Appellant in the shooting, it was

permissible under Pennsylvania Rule of Evidence 613(c)(1) to rehabilitate

the credibility of Richard Motes as a witness by admitting his prior consistent

statement—allegedly given to police before he had any contact with his club


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members—in rebuttal of the conspiracy theory offered by the defense.

Accordingly, we find no error with the court’s admission of the prior

consistent statement of Richard Motes.

      For the foregoing reasons, we affirm Appellant’s convictions but vacate

judgment of sentence and remand for resentencing on Appellant’s VUFA

conviction consistent with this decision.

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2016




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