J-S55001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                   v.

KENYELL WORRELL,

                         Appellant                No. 3070 EDA 2012

          Appeal from the Judgment of Sentence October 15, 2012
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0011927-2010

BEFORE: BOWES, SHOGAN, and OTT, JJ.

MEMORANDUM BY BOWES, J.:                       FILED OCTOBER 07, 2014

     Kenyell Worrell appeals from the judgment of sentence of ten to

twenty years imprisonment imposed by the trial court after a jury convicted

                                                                   ) sexual

assault, and indecent assault. We affirm.

     The trial court comprehensively outlined the evidence adduced by the

Commonwealth at trial:

           On August 25, 2010, the Complainant was walking in the
     area of 20th and Federal Streets at approximately 2 a.m. The
     Complainant noticed the Defendant following her on a yellow
     bike. Defendant approached and asked the Complainant what
     she was carrying in her bag. She replied that she was carrying
     boots and would sell them for $10.00. Defendant replied that he
     did not have money to purchase the boots for his girlfriend, but
     he had [crack cocaine] that he could give her in exchange for the
     boots. Defendant instructed Complainant to cross the street to
     an empty field because he did not want the police to see the
     exchange.
J-S55001-14


           The Complainant crossed the street and Defendant
     instructed her to get close to him near some bushes. When she
     refused and turned to walk away he told her that he was [joking]
     with her and she returned, in the belief that he would exchange
     the drugs for the boots. When the Complainant moved closer to
     Defendant, he grabbed her arm and raised his fist.           The
     Complainant believed he was [joking] and asked if he was going
     to rape her. Defendant responded in the affirmative and
     restrained the Complainant by the arm, raised his fist, and
     pinned her down. Defendant penetrated the Complainant with
     his penis, both orally and vaginally.    Defendant punched the
     Complainant in her face to stop her from yelling. Defendant
     then left on his bike and the Complainant left on foot. Within
     five minutes, the Complainant flagged down a police car
     operated by Officer Brandon Ruff.         Officer Ruff and the
     Complainant drove through the area, to search for Defendant.
     The Complainant described Defendant as a black male wearing a
     red shirt and dark shorts with a full beard, riding a blue and
     yellow mountain bike.       Defendant wasn't located and the
     Complainant was transported to her home.            Officer Ruff
     continued to survey the immediate area and apprehended
     Defendant. Officer Ruff brought Defendant to the Complainant's
     home and she identified him without hesitation.

Trial Court Opinion, 7/18/13, at 2-3 (footnotes and citations to record

omitted).

     On appeal, Appellant presents these challenges:

     1. Did not the lower court err in granting the Commonwealth's
     motion to present "other acts" evidence, as the non-propensity
     evidentiary purposes asserted by the Commonwealth for which
     the evidence might have been admitted were either not
     supported by the record or were outweighed by the potential
     prejudicial impact of the "other acts" evidence upon the jury?

     2. Did not the court err in denying the defendant's motion to
     dismiss pursuant to Pa.R.Crim.P. 600 because more than 365
     days of non-excludable and/or non-excusable time had elapsed
     for the Commonwealth to bring the defendant to trial and
     because the Commonwealth had not exercised due diligence in
     bringing the defendant to trial?


                                  -2-
J-S55001-14


        3. Should not this matter have been remanded by this Court for
        an evidentiary hearing involving after-discovered evidence
        pursuant to Pa.R.Crim.P. 720(c)?




meritorious, Appellant would be entitled to discharge, which would render

the remaining two issues moot.                  We analyze the denial of a Rule 600

discharge motion pursuant to the following standard of review:

              In evaluating Rule 600 issues, our standard of review of a
        trial court's decision is whether the trial court abused its
        discretion. Judicial discretion requires action in conformity with
        law, upon facts and circumstances judicially before the court,
        after hearing and due consideration. An abuse of discretion is
        not merely an error of judgment, but if in reaching a conclusion
        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,
        discretion is abused.

Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super. 2013).

        Rule 6001 requires a defendant to be tried within certain time




                                        Commonwealth v. Goldman, 70 A.3d 874, 879

(Pa.Super. 2013). Thereafter, an adjusted Rule 600 run date is computed,
____________________________________________
1
   On October 1, 2012, our Supreme Court ordered that, effective July 1,
2013, Rule 600 was rescinded and a new Rule 600 was adopted.
Commonwealth v. Brock, 61 A.3d 1015, 1016 n.2 (Pa. 2013). The new
rule reflects prevailing case law. Pa.R.Crim.P. 600, Comment. The events in
question occurred prior to the alteration; therefore, we apply the former
rule. Brock, supra.


                                               -3-
J-S55001-14


and the defendant is entitled to discharge under Rule 600 only where trial

started after the adjusted run date. Id.

charges only in cases in which the defendant has not been brought to trial

within the term of the adjusted run date, after subtracting all excludable and

                        The adjusted run date is calculated by adding to the

mechanical run date both excludable and excusable delay. Id. Excludable

delay is delay caused by the defendant or his lawyer. Id.

is   delay   that     occurs   as   a     result   of   circumstances    beyond   the

                                                                   Id.    See former

Rule 600(G).        Excusable delay encompasses a wide variety of situations



Armstrong, supra.         Additionally,                            -specific concept

that must be determined on a case-by-case basis. Due diligence does not

require perfect vigilance and punctilious care, but rather a showing by the

                                                                           Id. at 236

(citation omitted).

                                                                         g, we remain

mindful that the Rule has two purposes. It is designed not just to guard a



prosecuting crime.      When taking into account the latter consideration, we

                       ministrative mandate of Rule 600 was not designed to

insulate the criminally accused from good faith prosecution delayed through


                                           -4-
J-S55001-14


                                       Id. at 235 (citation omitted).      Thus, if

                                                              nwealth in an effort

to evade the fundamental speedy trial rights of an accused, Rule 600 must

be construed in a manner consistent with society's right to punish and deter

          Id.



Trial commenced on June 19, 2012.          Trial was originally set for June 3,

2011.     Prior to trial, the Commonwealth filed a motion to permit the

introduction of a prior bad of act of Appellant. On June 3, 2011, Appellant

asked for a continuance to respond to the motion.           That continuance was



under advisement on July 1, 2011, and it scheduled trial for July 8, 2011.

While    Appellant   suggests   that    this   delay   is   attributable   to   the

Commonwealth, we disagree. The Commonwealth did not exhibit bad faith

in seeking to admit inculpatory evidence that required a court ruling as to



motion subsequently was granted and we affirm that ruling infra. Thus, the

delay from June 3, 2011 to July 8, 2011 is excusable, resulting in 35 days of

extension of the run date to October 14, 2011.

        On July 8, 2011, trial could not proceed since the Commonwealth had

not been able to obtain discovery from the hospital or the laboratory that

was performing DNA testing.        The district attorney stated that it had


                                       -5-
J-S55001-14


subpoenaed the medical records three times, in September 2010, January

2011, and February 2011, and the hospital had yet to respond.              N.T.

Hearing, 7/8/11, at 3. The DNA laboratory also failed to forward the results

of testing, and personnel from the laboratory told the district attorney that it

would take another fourteen to eighteen weeks to obtain the results. Id. at

6. The court

compliance with the records request. Id. at 7.

provide prompt test results was precipitated by normal delay in the DNA

testing process as well as the fact that the first DNA sample from Appellant

was degraded and a second sample had to be procured.             N.T. Hearing,

7/11/11, at 27-30.     On July 11, 2011, the court granted a continuance,

scheduled a trial for October 17, 2011, and issued a ruling that that time

was excusable since trial could not be completed based upon the inability to

obtain evidence from third-party sources.



his run date for the time period from July 11, 2011, to October 17, 2011.

However, the Commonwealth is not responsible, under Rule 600, for delay



held that such delay constitutes excusable delay. Commonwealth v. Frye,

909 A.2d 853 (Pa.Super. 2006). The Commonwealth does not control how

long a laboratory test takes.     Hence, the period from July 11, 2011 to

October 17, 2011 was excusable. That means that the Rule 600 run date


                                     -6-
J-S55001-14


was extended by ninety-eight days from October 14, 2011 to January 20,

2012.

        The docket indicates that on October 17, 2011, both sides were ready

to proceed to trial.             On October 18, 2011, the trial court issued an order

stating that, even though both sides were ready, the trial court was not

available since it was in trial on another case. That order further provided

that the case was re-listed for trial on December 12, 2011, that the date was

the earliest possible date on its calendar and that the time was excusable

                                                                        ument on this

subject, any delay caused by the trial court constitutes excusable delay

extending the run date.                 Armstrong, supra.2   This ruling added fifty-six

days of excusable delay to the run date and extended it to March 16, 2012.

        The trial court then issued a continuance: 1) on December 12, 2011,

scheduling trial for December 14, 2011; 2) on December 14, 2011,

scheduling trial for January 9, 2012; and 3) on January 10, 2012, scheduling

trial for June 11, 2012. In each instance, the order indicated that the court

was in trial in another matter, that both sides were ready, that the next

assigned trial date was the earliest one possible, and that the time extended

____________________________________________
2
   While Appellant lumps the Commonwealth and the judiciary together in
analyzing his Rule 600 claim, these entities are distinct.      It is well
established under Rule 600 jurisprudence that when trial is delayed based
upon judicial unavailability, such a postponement constitutes excusable




                                               -7-
J-S55001-14


the Rule 600 run date.                  The court continuances amount to 170 days of

excusable delay, ext



June 19, 2012, was well within the time frame permitted under Rule 600.

His request for dismissal under Rule 600 properly was denied.



Commonwealth to present evidence about a prior incident that involved an

attempted rape.              He maintains that the proof in question violated the

prohibition against introduction of prior bad acts. See Pa.R.E. 404(b).3 Our

Supreme Court has noted:

        Evidence of prior bad acts is inadmissible to prove character or
        to show conduct in conformity with that character.         Such
        evidence is, however, admissible when offered to prove some
____________________________________________
3
    That rule provides:

        (b) Crimes, Wrongs or Other Acts.

                 (1) Prohibited Uses. Evidence of a crime, wrong, or
                 other act is not admissible to prove a person's
                 character in order to show that on a particular
                 occasion the person acted in accordance with the
                 character.

                 (2) Permitted Uses. This evidence may be admissible
                 for another purpose, such as proving motive,
                 opportunity, intent, preparation, plan, knowledge,
                 identity, absence of mistake, or lack of accident. In a
                 criminal case this evidence is admissible only if the
                 probative value of the evidence outweighs its
                 potential for unfair prejudice.

Pa.R.E. 404(b).


                                                -8-
J-S55001-14


      other relevant fact, such as motive, opportunity, intent,
      preparation, plan, knowledge, identity, or absence of mistake or
      accident. We have also recognized that prior bad acts evidence
      may be admissible as res gestae when relevant to furnish the
      complete story or context of events surrounding the crime.

Commonwealth v. Weiss, 81 A.3d 767, 798 (Pa. 2013). Thus, the prior-

bad-acts proscription essentially applies only when that prior bad act is

admitted

the crime in question, but such evidence is admissible where there is some

legitimate reason for its introduction. Id.

                                                                         ute

who consensually engaged in the sex in return for consideration. The trial

court admitted into evidence the fact that in 2008, Appellant pled guilty to

an attempted rape committed under circumstances similar to the one at bar.

Specifically, the 2008 assault involved a middle-aged African American

woman, and the victim herein was a middle-aged African American woman.

Both crimes occurred after midnight, and Appellant grabbed the victims and

told them that he planned to rape them.       The other woman was able to

escape after screaming and running down the sidewalk.         In this case,

Appellant managed to isolate his victim before informing her of his scheme.

The crimes occurred within four blocks of each other in the same South

Philadelphia neighborhood. The present rape occurred soon after Appellant

was granted release from prison.




                                     -9-
J-S55001-14




was admissible at trial herein. Commonwealth v. Elliott, 700 A.2d 1243

(Pa. 1997), abrogated on other grounds, Commonwealth v. Freeman, 827

A.2d 385, 400 (Pa. 2003), is instructive. In that case, the Commonwealth

introduced evidence of three prior sexual assaults of other women, in part,



sex and that her injuries were the result of an agreement to engage in rough



assaults were improperly admitted. It noted that, due to similarities among

the various assaults, they were admissible under the common scheme or

plan exception to the prohibition against prior bad acts.        It additionally

observed that the evidence in question was properly admitted to rebut the



rough sex.

      In Commonwealth v. Kjersgaard, 419 A.2d 502 (Pa.Super. 1980),

the defendant also complained that the court erred in admitting proof of a

prior rape offense during his trial for the rape of a sixteen-year-old girl. The

                                         victim had voluntarily gone to the

                                                                         modus

operandi of the two assaults were similar, and we held that the prior offense

was admissible to show a common scheme, plan or design as well as to

                                    Id. at 504; see also Commonwealth v.


                                     - 10 -
J-S55001-14


Rough,



arguments that the victim consented to appellant's ac



request. The two sexual assaults shared many common characteristics and



intercourse at issue herein was a consensual transaction. Hence, we affirm.



on an after-discovered evidence claim. Pa.R.Crim.P. 720                       -

                                    A post-sentence motion for a new trial on

the ground of after-discovered evidence must be filed in writing promptly



            Unlike ineffective counsel claims, which are the subject of
      Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002),
      paragraph (C) requires that any claim of after-discovered
      evidence must be raised promptly after its discovery.
      Accordingly, after-discovered evidence discovered during the
      post-sentence stage must be raised promptly with the trial judge
      at the post-sentence stage; after-discovered evidence
      discovered during the direct appeal process must be raised
      promptly during the direct appeal process, and should include a
      request for a remand to the trial judge[.]

Pa.R.Crim.P. 720, comment.      Hence, the issue was properly raised in this

Court in the first instance.



this Court on appeal, counsel received information regarding a witness

whose    testimony    potentially   constituted   after-discovered

                                      - 11 -
J-S55001-14




instructed on how to describe the alleged sexual assault of the complainant

                     Id. at 44. The anonymous individual also supposedly

told counsel that, when the complainant indicated that she did not want to

testify, another man urged her to do so since it was his money that was at

issue. Appellant does not ask us to rule on the claim, but suggests that a

remand is appropriate so his entitlement to a new trial can be evaluated

after a record is developed.



remand.

           The four-prong test for awarding a new trial because of after-
      discovered evidence is well settled. The evidence: (1) could not
      have been obtained prior to trial by exercising reasonable
      diligence; (2) is not merely corroborative or cumulative; (3) will
      not be used solely to impeach a witness's credibility; and (4)
      would likely result in a different verdict.

Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014).

      While a defendant need not produce an affidavit from a witness to be

entitled to a hearing on a after-discovered-evidence claim, id., he must at

least establish the proposed new evidence is producible and admissible. Id.



benchmarks necessary to warrant a new trial based upon after-discovered

evidence.   Appellant fails to name the witness, even though counsel

purportedly investigated the matter. Appellant neglects to explain why he

                                    - 12 -
J-S55001-14


could not have obtained the evidence prior to trial by exercising diligence.

For example, if the unnamed witness is a close friend or relative, there



discovered at the time they were made.



testimony is insufficient to warrant a hearing.   Even if the prosecutor was



urged her to testify in court when she was not inclined to do so, this type of

evidence would merely cast some doubt upon her credibility.         Thus, it is

considered impeachment evidence and is insufficient to warrant a new trial.

Commonwealth v. Trinidad, 2014 WL 3672917, 4-5 (Pa.Super. 2014).

      While Appellant says that the conversation between the prosecutor




                                                   mediately after the sexual

assault, the victim flagged down a police officer and reported the rape. Her

initial description of the incident was consistent with her trial testimony.

See                                                                       nary

hearing, a transcript of which is not included in the certified record, charges

of rape, IDSI, sexual assault, indecent assault, and simple assault were all

bound over for trial. This result from the preliminary hearing supports that




                                    - 13 -
J-S55001-14


                    timony at that proceeding also was consistent with her trial

testimony.



that the prosecutor was eliciting fabricated testimony from the victim that

she was raped, then that proposed




he had consensual sex with the victim, and his attempted rape of another

woman under similar circumstances discredited this position.         Hence, the

                                      -discovered unnamed witness would not

likely have produced a different verdict at trial.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/7/2014




                                       - 14 -
