J-A25001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CHARLES DAVIS,                           :
                                          :
                    Appellant             :   No. 3187 EDA 2016

        Appeal from the Judgment of Sentence September 16, 2016
           In the Court of Common Pleas of Philadelphia County
                 Criminal Divisio.: CP-51-CR-0012499-2012

BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY DUBOW, J.:                              FILED APRIL 30, 2019

      Appellant, Charles Davis, appeals from the Judgment of Sentence of life

imprisonment followed by twenty to forty years of incarceration, imposed on

September 16, 2016, following his conviction by jury for Second-Degree

Murder and numerous related offenses. We affirm.

      We adopt the following statement of facts from the trial court’s Pa.R.A.P.

1925(a) Opinion and the certified record. See Trial Ct. Op., 4/12/17, at 2-7;

N.T. Trial, 9/7-14/16.

      On March 5, 2012, Appellant and his Co-Conspirator, Ali Marsh, illegally

entered the home of John Paul, his wife Sherrel, and their two minor children,

located in North Philadelphia. The family was asleep at the time, but Mr. Paul

awoke at the sound of the intruders. He exited his bedroom to investigate

and encountered the intruders, who then shot him in the chest.
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       The sounds of this altercation alerted Mrs. Paul.    She, too, left the

bedroom and encountered the intruders in the hallway. Following a struggle,

one of the intruders shot her. She collapsed and was unable to move her

lower extremities.      Nevertheless, Mrs. Paul attempted to crawl toward her

children’s bedroom, trying to protect them from the intruders. One of the

intruders demanded money, but, upon learning there was no money in the

home, shot Mrs. Paul numerous times.1

       The intruders then fled the home. One of the children called 911. Police

and emergency medical personnel responded to the scene. Taken to a nearby

hospital, Mr. Paul was pronounced dead, but Mrs. Paul survived despite

numerous bullet wounds.

       Investigators secured ballistic and other forensic evidence from the

home.     Ballistic evidence confirmed that two firearms were used in the

assaults. Testing performed on blood samples taken from the scene confirmed

Co-Conspirator Marsh’s presence.

       Upon fleeing the home, Appellant called his wife, Nicole Walton. Ms.

Walton agreed to pick them up at a location in West Philadelphia. Upon her

arrival, she noticed that Marsh was injured. Marsh directed Walton to drive

him to a hospital outside the city, so the group proceeded to a hospital in

Maryland. Along the way, the group agreed on a cover story, falsely asserting

____________________________________________


1 During their assault upon the Paul family, Marsh suffered a gunshot wound
to his leg. It is not clear whether Appellant accidentally shot his Co-
Conspirator or the wound was self-inflicted.

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that Marsh was the victim of a robbery in Delaware. Ms. Walton and Appellant

left Marsh in Maryland, and Ms. Walton drove Appellant back to Pennsylvania.

       Investigators secured cell phone record evidence. Call logs established

that calls occurred between Appellant and Marsh prior to the incident and

between Appellant and Ms. Walton after the incident.             In addition,

investigators used call detail records to approximate Appellant’s location

throughout the early morning hours of March 5, 2012.           This evidence

established that Appellant met Marsh in West Philadelphia. From there, the

two men travelled together to North Philadelphia, returned to West

Philadelphia, then left Pennsylvania for Maryland.     Finally, the call detail

records established that Appellant returned to Pennsylvania.

       Almost immediately, the group’s story unraveled, but Appellant eluded

arrest until July 2012. Thereafter, the Commonwealth charged him with the

following crimes: Murder, generally, Attempted Murder, Conspiracy (two

counts), Aggravated Assault, Robbery, Burglary (two counts), Possession of

Firearms Prohibited, Firearms Not to be Carried without a License, Carrying

Firearms on Public Streets in Philadelphia, and Possessing Instruments of

Crime.2 Information, Docket No. CP-51-CR0012499-2012, 10/24/12.

       In October 2012, a Preliminary Hearing commenced. Over the objection

of Appellant, the Commonwealth presented statements given by Ms. Walton

to the police.      These statements described confidential communications
____________________________________________


218 Pa.C.S. §§ 2502, 901(a), 903(a), 2702(a)(1), 3701(a)(1)(i), 3502(a)(1),
6105(a)(1), 6106(a)(1), 6108, 907(a), respectively.

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between Ms. Walton and Appellant. Following the hearing, Appellant filed a

Motion to Quash with the trial court. Initially, the court agreed with arguments

levied by the Commonwealth, which asserted that such communications were

admissible under a crime/fraud exception to the spousal privilege for

confidential communications.3 N.T. Hearing, 5/2/13, at 5-6; Order, 5/2/13.

However, upon reconsideration, the trial court concluded that there was no

exception to the privilege and that the statements were inadmissible. N.T.

Hearing, 8/22/13, at 15.4 Nevertheless, the court determined that there was

sufficient admissible evidence to establish a prima facie case against

Appellant. N.T. Hearing, 9/12/13, at 5-6, 9-10.

        The Commonwealth filed an interlocutory appeal in this Court, certifying

that the trial court’s ruling substantially handicapped its prosecution.

Commonwealth’s Notice of Appeal, 9/23/13. Upon review, we affirmed, and

the Supreme Court denied the Commonwealth’s Petition for further review.



____________________________________________


3   See 42 Pa.C.S. § 5914.

4 The trial court issued an Order, purportedly granting Appellant’s Motion in
Limine. See Trial Court Order, 8/22/13. Appellant did not file such a motion.
Nevertheless, this Order accurately reflects the substance of the court’s
ruling. See N.T. Hearing, 8/22/13, at 15 (“So for the record, I’m vacating my
earlier order allowing [Appellant’s] wife to testify against him and I am ruling
that such testimony is barred by [42 Pa.C.S. § 5914].”). Moreover, the court’s
ruling was responsive to Appellant’s repeated assertion that such testimony
was inadmissible. See Motion to Quash, 10/31/12; Motion to Reopen Motion
to Quash, 7/31/13.




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Commonwealth v. Davis, 121 A.3d 551 (Pa. Super. 2015) (en banc), appeal

denied, 128 A.3d 219 (Pa. 2015).5

       Upon remand to the trial court, Appellant filed a Motion for Release

Pursuant to Rule 600, essentially asserting that the Commonwealth did not

timely bring him to trial because it had pursued a frivolous appeal of the trial

court’s confidential spousal communications ruling. See Motion for Release

Pursuant to Rule 600, 6/23/16; N.T. Trial, 9/8/16, at 5-11. The court denied

Appellant’s Motion. N.T. Trial, 9/8/16, at 11.

       Trial commenced before a jury in September 2016.           Following its

deliberations, the jury convicted Appellant on all counts.6     Thereafter, the

court imposed sentence as set forth above.

       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. The trial court issued a responsive Opinion.




____________________________________________


5 The General Assembly has defined two spousal privileges relevant to the
Commonwealth’s interlocutory appeal. See 42 Pa.C.S. §§ 5913, 5914. Both
limit testimony from one spouse against another. Id. However, there is a
substantial distinction between the privileges. Section 5913, which defines a
spouse’s privilege “not to testify against his or her then lawful spouse,”
includes an exception for criminal proceedings involving charges of murder.
42 Pa.C.S. § 5913(4). Section 5914, which prohibits testimony regarding
confidential communications between spouses, includes no such exception.
42 Pa.C.S. § 5914. In its appeal, the Commonwealth sought recognition of a
crime-fraud exception to the confidential communications privilege defined in
Section 5914. Id. at 555. We rejected its arguments. Id. at 555-558.

6 The trial court determined Appellant’s guilt for Possession of Firearms
Prohibited. Trial Ct. Op. at 2 n.2.

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      In this Court, Appellant filed an Application to Amend his Pa.R.A.P.

1925(b) Statement. Application to Amend, 1/24/18. We granted Appellant’s

Application and remanded to the trial court for further proceedings. Order,

2/16/18. Upon remand, Appellant filed Supplemental Statements pursuant to

Pa.R.A.P. 1925(b), and the trial court issued a Supplemental Opinion.

Supplemental Statement, 3/8/18; Supplemental Statement (2), 4/4/18

(denoting if and where in the record Appellant preserved issues raised

therein); Trial Ct. Supplemental Op., 4/10/18.

      Appellant raises the following issues on appeal, restated for clarity:

      1. Whether the trial court abused its discretion when it denied
         Appellant’s Motion for Release Pursuant to Rule 600, as the
         Commonwealth delayed his trial for “approximately 805 days,”
         pursuing a frivolous appeal of the court’s confidential spousal
         communications ruling; and

      2. Whether the trial court abused its discretion when it permitted
         expert testimony regarding cell phone location tracking data
         without first evaluating the “reliability, scientific community
         acceptance, the standard levels of deviation, and the margins
         for error” associated with this evidence.

Appellant’s Br. at 2-3.

      In his first issue, Appellant contends the trial court abused its discretion

when it denied his Motion for Release Pursuant to Rule 600. Appellant’s Br.

at 16. According to Appellant, the Commonwealth appealed the trial court’s

confidential spousal communications ruling in bad faith.           Id. at 22-26

(asserting that the Commonwealth knew or should have known that the law

controlling this privilege is unambiguous and well settled).      By Appellant’s



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calculation, the Commonwealth’s frivolous appeal delayed Appellant’s trial by

805 days—a substantial delay prejudicial to Appellant. Id. at 26-27. Thus,

Appellant concludes, this delay violated his right to a speedy trial, and the trial

court should have dismissed the charges against him with prejudice. Id. at

14, 29.

       The purpose of Pennsylvania Rule of Criminal Procedure 600 is to protect

an accused’s right to a speedy trial while also protecting society’s right to

effectively prosecute criminal cases.          Commonwealth v. Armstrong, 74

A.3d 228, 234-35 (Pa. Super. 2013); Pa.R.Crim.P. 600 cmt. Generally, under

the Rule, trial must commence within 365 days from the date on which a

criminal complaint is filed. Pa.R.Crim.P. 600(A)(2)(a). “[P]eriods of delay at

any stage of the proceedings caused by the Commonwealth when the

Commonwealth has failed to exercise due diligence shall be included in the

computation of the time within which trial must commence.” Pa.R.Crim.P.

600(C)(1).      “Any other periods of delay shall be excluded from the

computation.” Id.7
____________________________________________


7  As noted by the Commonwealth in its Brief, see Commonwealth’s Br. at 8-
9, Appellant’s argument conflates a Rule 600 analysis with a distinct, balancing
test first defined by the United States Supreme Court in Barker v. Wingo,
407 U.S. 514, 530-33 (1972) (crafting the test to ensure a defendant’s right
to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments).
See Appellant’s Br. at 17-22, 26-27. In Commonwealth v. Hamilton, 297
A.2d 127, 130-33 (Pa. 1972), the Pennsylvania Supreme Court deemed this
balancing test inadequate to ensure a defendant’s right to a speedy trial under
the Pennsylvania Constitution. The Court has also suggested that “the prompt
trial rule [i.e., Rule 600] . . . represents the sole means of securing a



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       We review the denial of a Rule 600 motion to determine whether the

trial court abused its discretion.        Armstrong, 74 A.3d at 234.   “Judicial

discretion requires action in conformity with law, upon facts and circumstances

judicially before the court, after hearing and due consideration.” Id. It is not

merely an error of judgment. Id. (citation and quotation omitted). Rather,

an abuse of discretion occurs where “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[.]”    Id.

(citation and quotation omitted).

       Essentially, Appellant asserts that the period of time during which the

Commonwealth pursued its interlocutory appeal should be included in a Rule




____________________________________________


defendant's state constitutional right to a speedy trial.” Commonwealth v.
Meadius, 870 A.2d 802, 803 n.1 (Pa. 2005) (citing Commonwealth v.
Whitaker, 359 A.2d 174, 176 (Pa. 1976). The Court has continued to apply
the balancing test in cases where an appellant presents independent claims
premised on both the procedural rule and the constitutional guarantees.
Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995). Here, Appellant
premised his Motion for Release solely upon Rule 600. See Motion for Release.
Accordingly, the Barker balancing test is inapplicable. Commonwealth v.
Colon, 87 A.3d 352, 357 n.2 (Pa. Super. 2014) (“Where the appellant does
not raise the separate constitutional issue apart from the Rule 600 issue as a
basis for the motion to dismiss, there is no need for the Barker balancing test
to be examined.”). To the extent Appellant seeks to raise a constitutional
claim in this appeal, we deem it waived. Pa.R.A.P. 302(a) (“Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”).




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600 computation because the Commonwealth failed to act with due diligence.8

We disagree.

       Initially, we observe that the procedural history of this case undermines

Appellant’s assertion that the Commonwealth’s interlocutory appeal was

frivolous or in bad faith. This Court determined to hear the Commonwealth’s

appeal en banc, suggesting the issues raised therein had “potential for a

significant impact upon developing law or public policy.”      210 Pa. Code §

65.38(D)(5); see also Order, No. 2726 EDA 2013, 10/28/14 (directing “the

case be listed before the next available en banc panel”).

       Moreover, in Commonwealth v. Matis, 710 A.2d 12 (Pa. 1998), our

Supreme Court examined a Rule 600 issue similar to that raised by Appellant

here. In that case, the Commonwealth filed a criminal complaint charging the

____________________________________________


8  To be clear, Appellant’s contention is narrow. The following dates are
relevant: the Commonwealth filed an Information charging Appellant on
October 24, 2012; the Commonwealth filed its Notice of Appeal on September
23, 2013; the Pennsylvania Supreme Court denied the Commonwealth’s
Petition for Allowance of Appeal (PAA) on December 7, 2015; and trial
commenced on September 8, 2016.            The time elapsed between the
Information and trial is 1415 days. However, Appellant concedes that any
periods of delay prior to the Commonwealth’s interlocutory appeal are
attributable to Appellant. See Motion for Release Pursuant to Rule 600 at 2 ¶
11; N.T. Trial, 9/8/16, at 5. Thus, we exclude that time. Pa.R.Crim.P.
600(C)(1). The time elapsed between the Notice of Appeal and trial is 1081
days. If the Commonwealth’s interlocutory appeal period is included in the
Rule 600 computation, then the Commonwealth failed to bring Appellant to
trial promptly. Pa.R.Crim.P. 600(A)(2)(a). On the other hand, if the appellate
period is excluded, trial commenced in 276 days (i.e., the time elapsed
between the PAA denial and trial), and no Rule 600 violation occurred. Id.
See discussion, infra.



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defendant in the deaths of two people caused by him while he was driving

under the influence of alcohol. Id. at 13-14. The Commonwealth sought a

continuance in order to secure necessary testimony at trial from a witness

who was unavailable. Id. at 14. The trial court denied the continuance, and

the Commonwealth appealed, certifying that the court’s ruling substantially

impaired its prosecution. Id. at 15. This Court quashed the interlocutory

appeal and remanded for trial. Id.

       On remand, the defendant filed a motion to dismiss the charges,

asserting that the Commonwealth had failed to exercise due diligence in

bringing him to trial and had filed a frivolous appeal in bad faith. 9     Id.

Following a hearing, the court discharged the defendant. Id.

       The Commonwealth appealed, and this Court reversed, concluding that

the period of time comprising the pendency of the Commonwealth’s

interlocutory appeal was excludable. Id. Upon further review, the Supreme

Court addressed directly the Commonwealth’s right to appeal adverse

evidentiary rulings and declined to penalize the Commonwealth for exercising

that right, provided that it certifies that such an appeal is necessary. Id. at

17-19.    According to the Court, the Commonwealth’s certification is “not

contestable” and establishes the Commonwealth’s due diligence. Id. Thus,

the Court remanded for trial. Id.

____________________________________________


9The defendant brought the motion pursuant to Rule 1100, the precursor to
Pa.R.Crim.P. 600.


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     Similarly here, the trial court determined that Ms. Walton’s confidential

communications    with    Appellant    were     privileged,    thus    denying   the

Commonwealth an opportunity to present all of its evidence.                      The

Commonwealth timely filed an interlocutory appeal and certified that this

adverse   evidentiary     ruling   substantially    impaired     its    prosecution.

Commonwealth’s Notice of Appeal. This certification is not contestable and

establishes that the Commonwealth exercised due diligence. Matis, supra.

     The Commonwealth’s interlocutory appeal was neither frivolous nor

pursued in bad faith.     Therefore, the 805 days that elapsed during the

pendency of the appeal are excluded from the Rule 600 computation.

Pa.R.Crim.P. 600(C)(1).    The time elapsed between the PAA denial, which

occurred on December 7, 2015, and Appellant’s trial, which commenced on

September 8, 2016, is 276 days. See supra n.8. Therefore, no violation of

Rule 600 occurred. Pa.R.Crim.P. 600(A)(2)(a). Accordingly, we discern no

abuse of the court’s discretion in denying Appellant’s Motion for Release.

Armstrong, supra.

     In his second issue, Appellant contends the trial court abused its

discretion when it permitted expert testimony to establish Appellant’s

approximate location throughout the early morning hours of March 5, 2012.

See Appellant’s Br. at 29.     According to Appellant, the foundation of this

evidence was “a novel science” that lacked “general acceptance in the relevant

scientific community.”    Id. at 29-30.        Thus, Appellant implies, prior to




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admitting this evidence, the court should have conducted a Frye10 hearing to

evaluate the scientific methodology relied upon by the Commonwealth’s

expert.11

        The admission of expert testimony is subject “largely to the discretion

of the trial court, and its rulings thereon will not be reversed absent an abuse

of discretion.” Commonwealth v. Cramer, 195 A.3d 594, 605 (Pa. Super.

2018) (citation omitted).

        This Court has explained that scientific evidence is “novel” when “there

is a legitimate dispute regarding the reliability of the expert’s conclusions.”

Commonwealth v. Safka, 95 A.3d 304, 307 (Pa. Super. 2014) (citation and

quotation omitted). To be admissible at trial, the methodology underlying the

novel scientific evidence “must have gained general acceptance in the relevant

scientific community.” Commonwealth v. Powell, 171 A.3d 294, 307 (Pa.

Super. 2017).

        However, a trial court is not required to conduct a Frye hearing any

time a party seeks to introduce scientific evidence.      “Rather, a hearing is

warranted only when the trial court has articulable grounds to believe that an

expert witness has not applied accepted scientific methodology in a

____________________________________________


10   See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

11 To be clear, Appellant does not assert specifically that the trial court erred
in failing to hold a Frye hearing. See generally Appellant’s Br.; but see
Supplemental Statement; Supplemental Statement (2). Rather, Appellant
asserts the admission of this scientific evidence constitutes an abuse of
discretion. See Appellant’s Br. at 29.

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conventional fashion in reaching his or her conclusions.” Commonwealth v.

Jacoby, 170 A.3d 1065, 1091 (Pa. 2017) (citation and internal quotation

marks omitted); see also Commonwealth v. Freeman, 128 A.3d 1231,

1246-47 (Pa. Super. 2015) (discerning no abuse of discretion when trial court

did not conduct sua sponte a Frye hearing to determine whether cell phone

location evidence relied upon accepted scientific methodology, despite the

filing by defendant of a motion in limine seeking to exclude such evidence,

because the defendant did not request specifically a Frye hearing).

       Here, Appellant did not object to this evidence at trial.        N.T. Trial,

9/14/16, at 48-126 (testimony of Special Agent William Shute).             Further,

Appellant did not object to the admission of the Commonwealth’s exhibits

supporting S.A. Shute’s testimony. Id. at 129. Finally, Appellant concedes

that he never requested a Frye hearing. Supplemental Statement (2) at ¶

3(a). For these reasons, we deem Appellant’s second issue waived. Pa.R.A.P.

302(a).12

       Also before this Court are two Applications filed by Appellant. In the

first, Appellant seeks to correct omissions in the record.         Application for
____________________________________________


12 In his Brief, Appellant also asserts that S.A. Shute lacked sufficient scientific
or technical expertise to properly explain the methodology used to establish
Appellant’s approximate location using cell phone call detail records.
Appellant’s Br. at 31-32. Appellant did not object to his qualification as an
expert witness at trial. N.T. Trial, 9/14/16, at 36-47. Moreover, Appellant
failed to preserve this claim in any of his Pa.R.A.P. 1925(b) Statements.
Pa.R.A.P. 1925(b)         Statement, 11/8/13; Supplemental             Statement;
Supplemental Statement (2). This claim, too, is waived. Pa.R.A.P. 302(a);
Pa.R.A.P. 1925(b)(4)(vii).


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Correction of the Original Record, 9/7/18 (asserting that certain transcripts

were missing from the Certified Record). We have reviewed the transcripts

and conclude that no relief is due. Principally, it appears that the trial court’s

Order, entered August 22, 2013, purportedly granting Appellant’s Motion in

Limine has led to some confusion. As stated previously, Appellant did not file

such a motion.       See supra n.4.     Rather, the court’s Order responded to

substantive assertions by Appellant that certain testimony of Appellant’s wife

was inadmissible. Id. Transcripts of the Hearings held to resolve Appellant’s

assertions are included in the Certified Record. N.T. Hearing, 3/28/13; N.T.

Hearing, 5/2/13; N.T. Hearing, 8/22/13.

          In the second, David Wesley Cornish, Esq. seeks to withdraw his

representation of Appellant. Application to Withdraw as Counsel, 3/11/19.

Counsel avers that he has completed all duties for this appeal and that

Appellant has hired new counsel. Id. In light of our disposition, Attorney

Cornish’s request is moot. Further, to date, no new counsel has entered an

appearance on behalf of Appellant. Accordingly, we deny Attorney Cornish

relief.

          Application for Correction of the Original Record denied; Application to

Withdraw as Counsel denied; Judgment of Sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/19




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