J-S59044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KENNY TORRES                               :
                                               :
                       Appellant               :   No. 2539 EDA 2017

              Appeal from the Judgment of Sentence July 21, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011025-2015


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 12, 2019

        Kenny Torres appeals from the judgment of sentence imposed July 21,

2017, in the Philadelphia County Court of Common Pleas.           The trial court

sentenced Torres to an aggregate term of six and one-half to 15 years’

imprisonment, following his jury conviction of aggravated assault, conspiracy,

possession of a firearm without a license, and related charges1 for an August

21, 2015, attack on Nathaniel Martin Davis.          Torres’ sole issue on appeal

challenges the constitutionality of Pennsylvania Rule of Criminal Procedure

556, which permits the Commonwealth to proceed by way of an indicting

grand jury when witness intimidation has occurred, is occurring, or is likely to

occur. For the reasons below, we affirm.


____________________________________________


1   See 18 Pa.C.S. §§ 2702, 903, and 6106, respectively.
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      The facts underlying Torres’ conviction were summarized by the trial

court as follows:

            On August 21, 2015, around 4:50 PM, Jamar Carroll noticed
      a group of black teenage boys, including the victim, he had never
      seen before. After the group of boys walked out of sight, he heard
      an altercation around 11th Street. Carroll testified that he heard
      the group of boys say, “‘There he go right there.’ ‘Get him for
      everything they got.’” After he heard this exchange, he saw Josh
      Terreforte, a friend of [Torres], walk into view with a bloody face
      and black eye.

            Later, that same afternoon, Destiny Flemings was walking
      down Ontario Street towards the Chinese store on Rising Sun
      Avenue. Flemings heard a blue pickup truck belonging to [Torres’]
      father speeding and saw that it contained [Torres] and his father.
      Flemings saw [Torres] and another person, possibly [Torres’]
      cousin, jump out of the truck on the corner or 11th and Ontario.
      [Torres] and the other person each held a bat and [Torres] also
      held a small, black handgun in his right hand. [Torres] and the
      other person repeatedly hit the victim with their bats until the
      victim collapsed to the ground[;] afterwards, [Torres] shot the
      victim in the side.

             Police Officer Sean Clift testified that on August 21, 2015 he
      was patrolling the 25th District, the North Philadelphia area, in a
      marked police vehicle with his partner, Officer Stephen Bennis.
      Around 4:50 PM, Officer Clift responded to a radio call reporting a
      shooting on [the h]ighway in the area of 3400 Goodman. Officer
      Clift and his partner arrived at the location within less than a
      minute and saw a young black man lying on the sidewalk,
      suffering from a gunshot wound.

            Upon arrival to the location, Officer Clift and his partner
      rushed out of their patrol vehicle and picked the man up. The
      man had been shot in his right leg and suffered from a broken
      femur. Officer Clift asked the man who had shot him and which
      way the shooter had gone. The injured man refused to speak with
      the police officers and then a Hispanic man walked over and said
      it had been a dark colored pickup truck headed northbound on
      11th Street. After arriving to Temple Hospital with the victim, the
      police officers obtained the victim’s ID card retrieved from the



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        victim’s pants pockets by the hospital staff.     The victim was
        identified as Nathaniel Martin Davis.

              Davis underwent surgery on August 22, 2015 to repair his
        fractured femur, in which they placed a rod into his leg to realign
        the leg. On August 25, 2015, Davis underwent a follow-up
        surgery to embolize an artery that had been severed and was
        consistently bleeding. Davis was discharged on August 27, 2015.

              Detective Miles testified that he obtained a search warrant
        for [Torres’] residence at 1018 West Russell in Philadelphia. The
        search warrant was executed on August 28, 2015 at 6:35 AM,
        about a week after the shooting occurred. On August 28, 2015 at
        around 6:30 AM, Detective Miles and a warrant unit arrived at
        [Torres’] house. The warrant unit knocked on the front door while
        Detective Miles went to the back of the residence. There was no
        response from the front door, but the back door opened.
        Detective Miles then observed [Torres] leaving through the back
        door in only his boxers and attempting to climb a wall to the right
        of the house. Detective Miles demanded [Torres] stop and
        [Torres] complied.

               At some point after the shooting, Detective Miles returned
        to the scene where he believed the shooting occurred and
        recovered three fired .380 caliber cartridge casings.        After
        ordering [Torres] back into the residence, Detective Miles
        recovered a black shotgun with various shotgun shells from the
        residence’s second floor bedroom. There were no .380 caliber
        shells discovered at [Torres’] home and no ammunition that would
        have been able to fit into a .380 firearm. No bullet was ever
        recovered from Davis’ body.

Trial Court Opinion, 3/12/2018, at 2-4 (record citations omitted).

        On October 20, 2015, a grand jury returned an indictment2 against

Torres for the following charges: aggravated assault, criminal conspiracy, two

violations of the Uniform Firearms Act, possession of an instrument of crime,

____________________________________________


2   See Pa.R.Crim.P. 556.




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simple assault, and recklessly endangering another person.3          Torres was

initially represented by the Defender Association of Philadelphia.           On

November 25, 2015, counsel filed an omnibus pretrial motion, asserting, inter

alia, that Pennsylvania Rule of Criminal Procedure 556 is unconstitutional and,

therefore, Torres’ indictment was invalid. See Omnibus Motion Pursuant to

Rule 556 of the Pennsylvania Rules of Criminal Procedure, 11/25/2015, at

unnumbered 2-4. That motion was never ruled upon by the trial court. On

January 9, 2016, new counsel entered his appearance for Torres, followed by

a second change of counsel on October 31, 2016. The case proceeded to trial

and, on March 13, 2017, a jury found Torres guilty of all charges.

       On July 21, 2017, Torres was sentenced to an aggregate term of six and

one-half to 15 years’ imprisonment, followed by four years’ probation.4 He

filed a timely post-sentence motion challenging the weight of the evidence and

discretionary aspects of his sentence, which the trial court denied on August

1, 2017. This timely appeal followed.5
____________________________________________


3 See 18 Pa.C.S. §§ 2702, 903, 6106, 6108, 907, 2701, and 2705,
respectively.

4 At the sentencing hearing, Torres entered a guilty plea to charges of simple
assault, terroristic threats, and possession of an instrument of crime on an
unrelated case. See N.T., 7/21/2017, at 17. The court imposed a sentence
of probation for those crimes, to run concurrent to the probationary period in
the present case. See id. at 47-48.

5Present counsel was appointed to assist Torres in litigating his direct appeal.
On August 17, 2017, the trial court ordered counsel to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After



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       The   sole    question    on   appeal     concerns   the   constitutionality   of

Pennsylvania Rule of Criminal Procedure 556. Because this issue presents a

question of law, “our standard of review is de novo and our scope is plenary.”

Commonwealth v. Far, 46 A.3d 709, 712 (Pa. 2012).

       By way of background, prior to 1973, the Pennsylvania Constitution

“prohibited the initiation of a criminal prosecution by information[,]” and

criminal cases were commenced via an indictment by a grand jury.

Commonwealth v. Brown, 372 A.2d 887, 888 (Pa. Super. 1977).                           On

November 6, 1973, Pennsylvania voters approved an amendment to the

Constitution which, inter alia, provided for the initiation of criminal

proceedings by information. See Pa. Const. Art. 1, § 10 (“Each of the several

courts of common pleas may, with the approval of the Supreme Court, provide

for the initiation of criminal proceedings therein by information filed in the

manner provided by law.”).            The Pennsylvania Legislature later adopted

legislation to implement the initiation of criminal proceedings by information

prescribed in Article 1, Section 10.           Section 8931 of Title 42 provides, in

relevant part:

       (b) Criminal information. – Each of the courts of common pleas
       may, with the approval of the Supreme Court, provide for the
       initiation of criminal proceedings therein by information filed in the
       manner provided or prescribed by law. …

____________________________________________


receiving an extension of time, counsel complied with the court’s directive,
and filed a concise statement on September 27, 2017. Although counsel
raised six issues in the concise statement, he has only pursued the claim
regarding the constitutionality of Rule 556 on appeal.

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       (c) Jurisdiction and duties of courts. – The several courts of
       common pleas which have obtained the approval of the Supreme
       Court to provide for the initiation of criminal proceedings by
       informations instead of by grand jury indictments, shall possess
       and exercise the same power and jurisdiction as they heretofore
       possessed in cases of prosecutions upon indictments.

                                         ****

       (f) Investigating grand juries unaffected. – No grand jury
       shall be impaneled in any judicial district where this section is
       applicable for the purpose of considering bills of indictment. This
       section shall not prohibit the impaneling of grand juries … for any
       other purpose as provided or prescribed by law.

                                         ****

       (h) Applicability of section. – Subsections (c) through (g) shall
       be applicable only in those judicial districts which have obtained
       the approval of the Supreme Court to substitute informations for
       grand jury indictments as the method of initiating criminal
       prosecutions. …

42 Pa.C.S. § 8931 (b), (c), (f) and (h).

       Subsequently, in 2012, the Pennsylvania Supreme Court adopted

Pa.R.Crim.P. 556, which revived the initiation of criminal proceedings by grand

jury indictment under certain, limited circumstances. This Rule permits a trial

court to “proceed with an indicting grand jury … only in cases in which witness

intimidation has occurred, is occurring, or is likely to occur.” Pa.R.Crim.P.

556(A).6




____________________________________________


6 Subsection (B) of Rule 556 directs any court of common pleas that seeks to
resume the use of indicting grand juries to petition the Pennsylvania Supreme
Court. See Pa.R.Crim.P. 556(B). The petition must include a certification
from the district attorney averring, inter alia, that “witness intimidation has
occurred, is occurring, or is likely to occur[.]” Pa.R.Crim.P. 556(B)(5)(b).

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      Torres contends Rule 556 is unconstitutional because the Pennsylvania

Legislature abolished the indicting grand jury, “in accordance with a

constitutional amendment expressing a similar purpose.” Torres’ Brief at 10.

He insists the Pennsylvania Supreme Court violated Article V, § 10(c) of the

Pennsylvania Constitution when it enacted the Rule. Article V, Section 10(c)

empowers the Supreme Court to prescribe rules governing practice and

procedure so long as they do not “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[.]” Pa. Const. Art. 5, § 10(c). Torres maintains

Rule 556 “infringes upon the substantive rights of an accused to be free from

prosecution commenced via an indicting grand jury” and “enlarge[s] the

jurisdiction of the Courts of Common Pleas[.]” Torres’ Brief at 8, 11.

      Before we address the substance of Torres’ constitutional challenge, we

must first consider whether his claim is waived. It is axiomatic that issues not

raised in the trial court are waived on appeal. Pa.R.A.P. 302(a). Particularly,

with respect to purported defects in an indictment, information, or preliminary

hearing, this Court has held that such issues “are to be remedied by a motion

to quash the indictment or information[;]” otherwise, they are waived.

Commonwealth v. Hodge, 411 A.2d 503, 509 (Pa. Super. 1979) (holding

defendant’s claim that district attorney improperly proceeded without

conducting a preliminary hearing waived when defendant raised the issue for

the first time in post-verdict motion).      See also Pa.R.Crim.P. 556.4(C)

(providing procedure by which a defendant may challenge the finding of a

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grand jury, noting the motion “shall be made as part of the omnibus pretrial

motion.”). Indeed, after a defendant is tried and convicted by a jury, any

deficiency in a preliminary hearing proceeding – or in this case, a grand jury’s

indictment – is considered harmless. See Commonwealth v. Cassidy, 620

A.2d 9, 11 (Pa. Super. 1993), appeal denied, 637 A.2d 279 (Pa. 1993).

      In the present case, although prior counsel filed an omnibus pretrial

motion seeking to dismiss the indictment, the court never ruled on the motion,

and subsequent counsel did not renew the request for the court do so.

Accordingly, the issue was implicitly abandoned by Torres. Nevertheless, even

if we were to conclude this claim was not waived, we would still find Torres is

entitled to no relief.

      Preliminarily, we must presume the Pennsylvania Supreme Court acts

constitutionally   when       it   promulgates   a   rule   of   procedure.    See

Commonwealth v. Ricker, 120 A.3d 349, 362 (Pa. Super. 2015), appeal

dismissed as improvidently granted, 170 A.3d 494 (Pa. 2017). Here, however,

Torres insists the Supreme Court acted outside its authority under the

Constitution by modifying the substantive rights of criminal defendants to

receive a preliminary hearing “free from an indictment by an indicting grand

jury” and “enlarg[ing] the jurisdiction of the Courts of Common Pleas.” Torres’

Brief at 10, 11.         Conversely, the trial court found:      (1) “[t]here is no

substantive right of an accused to be free from prosecution commenced via

an indicting grand jury[;]” and (2) Rule 556 does not “impact[] the right of




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the General Assembly to determine the jurisdiction of any court[.]” Trial Court

Opinion, 3/12/2018, at 16-17. We agree.

      It is important to note that neither the United States nor Pennsylvania

Constitution provide a criminal defendant with a constitutional right to a

preliminary hearing. Commonwealth v. Mayberry, 327 A.2d 86, 92 (Pa.

1974) (“Certainly the Constitution does not require any particular mode of

informing an accused of the charges against him.”).                   Moreover, the

constitutional amendment upon which Torres bases his claim provides only

that the courts of common pleas “may, with the approval of the Supreme

Court,    provide   for   the    initiation   of   criminal   proceedings   there   by

information[.]” Pa. Const. Art. 1, § 10. Article 1, Section 10 does not preclude

the courts of common pleas from proceeding by indictment. Therefore, we

agree with the conclusion of the trial court that Rule 556 does not infringe on

any substantive right of the accused.

         Nor do we find the Supreme Court’s enactment of Rule 556 “affect[s]

the right of the General Assembly to determine the jurisdiction of any court[.]”

Pa. Const. Art. 1, § 10.        As the Commonwealth explains in its brief, “the

jurisdiction of the Common Pleas Court remained unchanged regardless of

whether or not a criminal case is initiated by grand jury indictment.”

Commonwealth’s Brief at 12, citing 42 Pa.C.S. § 931(a). Furthermore, while

Torres emphasizes the language in 42 Pa.C.S. § 8931 that appears to preclude




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the initiation of criminal proceedings by way of a grand jury indictment,7 that

subsection presumes the court of common pleas obtained approval from the

Supreme Court to initiate proceedings by way of information. Rule 556 simply

provides a limited, alternative method to initiate criminal proceedings when

witness intimidation is a concern. Accordingly, we conclude Rule 556 is not

unconstitutional.

        Judgment of sentence affirmed.

        Judge Lazarus joins this memorandum.

     President Judge Gantman concurs in the result.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/19




____________________________________________


7   See 42 Pa.C.S. § 8931(f).


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