J-S36042-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    TYSHAWN PLOWDEN                                 :
                                                    :
                       Appellant                    :   No. 104 WDA 2020

       Appeal from the Judgment of Sentence Entered September 18, 2019
      In the Court of Common Pleas of Cambria County Criminal Division at
                        No(s): CP-11-CR-0002528-2013


BEFORE:      OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                               FILED AUGUST 27, 2020

        Tyshawn Plowden (Plowden) appeals from the judgment of sentence

imposed following his jury conviction in the Court of Common Pleas of Cambria

County (trial court) of one count of person not to possess a firearm.1 We

affirm.

                                               I.

        This case has a protracted procedural history, attributable to the fact

that while it was pending, Plowden was awaiting trial on separate charges in



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*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 6105(a)(1). The parties stipulated that Plowden was prohibited
from possessing or using firearms during the relevant period based on an April
2011 conviction in Vermont.
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other jurisdictions and was unavailable for trial in this case. We set forth only

the background necessary to the disposition of this appeal.

         On November 17, 2013, at about 6:00 a.m., Johnstown Police Officers

responded to a report of a shooting at 304 Conway Court located in the

Prospect Homes public housing community. The victim, Ramon Hernandez

(Hernandez), was lying outside the rear of the residence. Hernandez had been

shot in the chest and abdomen and was transported to the hospital. Police

observed numerous shell casings inside the residence and bullet holes in its

walls.

         Destiny Vega (Vega) was at the residence when the shooting occurred.

She observed a man, who she later identified as Plowden from a police photo

array, at the rear door of 304 Conway Court with a gun at the time of the

shooting.2 As the shooting was happening, she saw Donnie Jones (Jones) run

through the yard area to the rear of Conway Court and Gray Avenue. Police

located Jones at a nearby apartment, 333 Gray Avenue, where Jasmine Hinton

(Hinton) resided. Plowden was with Jones and Hinton and they were detained.

         Police obtained search warrants for both 304 Conway Court and 333

Gray Avenue and executed them at approximately 1:30 p.m. that afternoon.

The officers recovered a Titan .380 pistol with the serial numbers



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2 The record indicates that witnesses were hesitant to make identifications for
fear of retaliation.


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scratched/polished off in a spare bedroom closet inside a purse and the

magazine for the firearm in the master bedroom from 333 Gray Avenue. They

recovered .380 and 9mm casings and bullet fragments from 304 Conway

Court.

       Detective Brett Hinterliter (Hinterliter) of the Cambria County District

Attorney’s office obtained search warrants for buccal swabs from five

suspects, including Plowden, to compare to any DNA obtained from the Titan

firearm. Jared Heister (Heister) of the Pennsylvania State Police Forensic DNA

Division analyzed a swab of the grip and trigger of the firearm. His analysis

showed that at least three individuals left DNA on the gun, and that there

were two minor contributors and one major contributor to the DNA mixture.

Heister determined that the major contributor matched Plowden’s DNA profile.

       On January 2, 2015, Plowden filed a motion to dismiss the case with

prejudice pursuant to Pa.R.Crim.P. 600(D)(1) for violation of his speedy trial

rights.3 The trial court granted his Rule 600 motion and the Commonwealth

appealed. On March 8, 2017, an en banc panel of this Court reversed the trial

court’s decision and remanded the case for further proceedings.           (See

Commonwealth v. Plowden, 157 A.3d 933 (Pa. Super. 2017), appeal

denied, 170 A.3d 1043 (Pa. 2017)).


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3Rule 600 generally requires the Commonwealth to bring a defendant to trial
within 365 days of the date the complaint was filed. See Pa.R.Crim.P.
600(A)(2)(a).


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      Prior to trial, in January 2019, the trial court granted Plowden’s motion

for the appointment of a DNA expert, Dr. Charlotte Ward. Plowden’s trial was

originally scheduled for June 21, 2019, but the court rescheduled it for July

11, 2019, at Plowden’s request to accommodate Dr. Ward’s schedule. On July

11, 2019, defense counsel requested another continuance because Dr. Ward

was unavailable to testify and had not yet issued a report. The Commonwealth

opposed this request and the trial court denied it.

      On July 12, 2019, the jury convicted Plowden of the above-mentioned

offense.   On September 18, 2019, after consideration of a pre-sentence

investigation report (PSI), the trial court sentenced him to a term of not less

than 50 nor more than 120 months’ incarceration and granted him credit for

time served. Plowden filed a post-sentence motion challenging his conviction

and sentence on several bases, including the discretionary aspects of his

sentence and the weight and sufficiency of the evidence. The trial court held

a hearing on the motion and denied it on December 16, 2019. This timely

appeal followed. Plowden and the trial court complied with Rule 1925. See

Pa.R.A.P. 1925(a)-(b).

                                      II.

                                       A.

      Plowden first claims that the trial court abused its discretion in applying

an incorrect offense gravity score (OGS) of ten to his offense at sentencing,

instead of the correct OGS of nine, based on its finding that the firearm either


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was loaded or ammunition was available. Plowden contends that this error

resulted in a standard range of 48 to 60 months of incarceration for the

sentence, instead of the appropriate range of 36 to 48 months.            Plowden

dovetails this argument with a claim challenging the court’s consideration of

his rehabilitative needs by asserting that because of this OGS error, his

sentence is excessive and far exceeds his need for rehabilitation.

       A claim that the sentencing court used an incorrect OGS is a challenge

to the discretionary aspects of a sentence.            See Commonwealth v.

Williams, 151 A.3d 621, 625 (Pa. Super. 2016).4

             It is well settled that a challenge to the discretionary aspects
       of a sentence is a petition for permission to appeal, as the right to
       pursue such a claim is not absolute. Before this Court may review
       the merits of a challenge to the discretionary aspects of a
       sentence, we must engage in the following four-pronged analysis:

             [W]e conduct a four part analysis to determine: (1) whether
       appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
       and 903; (2) whether the issue was properly preserved at
       sentencing or in a motion to reconsider and modify sentence, see
       Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect,
       Pa.R.A.P. 2119(f); and (4) whether there is a substantial question
       that the sentence appealed from is not appropriate under the
       Sentencing Code, 42 Pa.C.S. § 9781(b).

Id. (case citation omitted).




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4 “Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Lucky, 229 A.3d 657, 663 (Pa. Super.
2020) (citation omitted).


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       Plowden filed a timely appeal, he preserved the issue by raising it in his

post-sentence motion, and he included a statement pursuant to Pa.R.A.P.

2119(f) in his brief. Plowden has also satisfied the fourth requirement as an

allegation that the trial court incorrectly calculated an OGS raises a substantial

question. See Commonwealth v. Sunealitis, 153 A.3d 414, 421 (Pa. Super.

2016).5 To the extent Plowden combines this issue with his claim that the

sentence is excessive because the court ignored his background and

rehabilitative needs, an excessive sentence claim, when raised in conjunction

with an assertion that the court failed to consider mitigating factors, can raise

a substantial question. See Commonwealth v. Raven, 97 A.3d 1244, 1253

(Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) (citation omitted).

We will, therefore, address Plowden’s claim on the merits.

       As indicated, at issue is the trial court’s calculation of the OGS for the

firearms offense as ten instead of nine.          The operative Pennsylvania

Sentencing Guidelines’ provision in effect at the time of Plowden’s sentencing

lists the OGS of the offense as a ten, when the firearm is loaded or ammunition

is available. See 204 Pa. Code § 303.15 (effective June 1, 2018, to December

6, 2019).




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5Calculation of an offender’s OGS raises a question of law and we apply a de
novo standard of review. See id.


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      At the sentencing hearing, the trial court found that the evidence

supported use of an OGS of ten based on its finding that either the gun was

loaded or ammunition was readily available. (See N.T. Sentencing, 9/18/19,

at 4; Trial Court Opinion, 4/01/20, at 8-9). The evidence showed that the

Titan .380 handgun with the serial numbers removed was recovered during

the police search of 333 Gray Avenue. (See N.T. Trial, 7/11/19, at 74-75).

The firearm did not have a magazine in it at that time. (See id. at 80-81).

However, police located the magazine for the gun in the master bedroom of

the residence. (See N.T. Trial, 7/12/19, at 28, 67). Officer Thomas Owens

explained that a .380 caliber handgun had been discharged at the crime scene,

as evidenced by casings found at that property. (See N.T. Trial, 7/11/19, at

84-85, 100). Corporal Robert Hagins performed six test fires of ammunition

from the Titan .380 pistol, and the ballistics lab report showed that a bullet

recovered from the crime scene was discharged from that same pistol. (See

N.T. Trial, 7/12/19, at 89-91). Additionally, Vega’s statement to police placed

Plowden at the scene of the shooting with a gun and DNA matching Plowden’s

profile was found on the firearm. (See N.T. Trial, 7/11/19, at 191; N.T. Trial,

7/12/19, at 119) Hence, the record supports the trial court’s use of an OGS




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of ten based on evidence indicating that either the gun was loaded or that

ammunition was available.6

       Regarding Plowden’s         assertion that   the   trial court   ignored   his

background and rehabilitative needs, a review of the record belies this claim.

Specifically, at the sentencing hearing, defense counsel asked the court to

consider a mitigated sentence on the bases that Plowden showed respect for

the court, attended all court dates and is a family man who cares for his then

one-year-old daughter. (See N.T. Sentencing, 9/18/19, at 5). Plowden also

asked the court to take into account that he is a devoted father. (See id. at

6). The court imposed a sentence at the lower end of the standard range and

explained:

             I’ve taken into consideration your presentence report as well
       as comments of counsel, the facts of the case and the jury verdict,
       the fact that you did show up for court. I mean I’ll be very honest
       with you young man I really expected to be sending bench
       warrants out for you given the seriousness of the crime, because
       of your prior record there would be a lot of incentive to skip town.
       I do give you credit for that and quite frankly that’s why I’m not
       going to give you a mitigated sentence, but I’m going to give you
       a lower and standard range sentence just because you, while I do
       think you’re a bit of a criminal given your history, you at least are
       a man of your word.

             So I have also considered all the options of sentencing as
       contained in [statutory law], the fact that you do take care of your
       daughter . . . and sentence you to serve no less than 50 months


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6 We address Plowden’s argument disputing that he possessed the gun in
detail infra, as it is the crux of Plowden’s sufficiency claim challenging the
element of possession.


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       nor more than 120 months state correctional institute with credit
       for time served.

            And one of the additional reasons for your sentencing too is
       you do seem to have a problem with firearms back in your New
       York matter in ’06.

(Id. at 6-7).

       Contrary to Plowden’s assertion, the record reflects that the trial court

considered all relevant factors regarding his background in formulating its

sentence. Furthermore, because the court took into account the information

contained in the PSI, we presume that it “was aware of the relevant

information     regarding    the    defendant’s     character   and   weighed   those

considerations along with mitigating statutory factors.” See Commonwealth

v. Akhmedov, 216 A.3d 307, 329 (Pa. Super. 2019), appeal denied, 224 A.3d

364 (Pa. 2020) (citation omitted). Accordingly, Plowden’s challenge to the

discretionary aspects of his sentence fails.

                                               B.

       Plowden next disputes the legality of his sentence by asserting that the

trial court failed to properly grant him credit for time served.          Relying on

Commonwealth v. Mann, 957 A.2d 746 (Pa. Super. 2008), he argues that

the trial court abrogated its obligation to grant him credit for time served.7


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7 “A claim asserting that the trial court failed to award credit for time served
implicates the legality of the sentence.” Commonwealth v. Gibbs, 181 A.3d
1165, 1166 (Pa. Super. 2018) (citation omitted). Issues relating to the



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       The Pennsylvania Sentencing Code, with regard to awarding credit for

time served, provides in relevant part as follows:

       After reviewing the information submitted under section 9737
       (relating to report of outstanding charges and sentences) the
       court shall give credit as follows:

              (1) Credit against the maximum term and any minimum
       term shall be given to the defendant for all time spent in custody
       as a result of the criminal charge for which a prison sentence is
       imposed or as a result of the conduct on which such a charge is
       based. Credit shall include credit for time spent in custody prior
       to trial, during trial, pending sentence, and pending the resolution
       of an appeal.

42 Pa.C.S. § 9760(1).

       The credit statute “mandates an offender receive credit for all

incarceration served before sentencing for which he is being detained in

custody.” Gibbs, supra at 1167 (citation omitted). We have explained that

“if the alleged error is thought to be the result of an erroneous computation

of sentence by the Bureau of Corrections, then the appropriate vehicle for

redress would be an original action in the Commonwealth Court challenging

the Bureau’s computation.” Commonwealth v. Heredia, 97 A.3d 392, 395

(Pa. Super. 2014), appeal denied, 104 A.3d 524 (Pa. 2014) (citation omitted).

If the alleged error is instead thought attributable to ambiguity in the sentence

imposed by the trial court, then an action must be filed with the trial court for



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legality of a sentence are questions of law, over which our standard of review
is de novo and the scope of review is plenary. See id.


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clarification and/or correction.        See id.      A challenge to the sentence is

cognizable as a due process claim only when a defendant challenges the

legality of a trial court’s failure to award credit for time served as required by

law. See id.

       At the sentencing hearing, the trial court expressly awarded Plowden

credit for time served in this case and informed him that any credit he was

entitled to would be calculated by the Department of Corrections (DOC). (See

N.T. Sentencing, at 7, 9). Likewise, the sentencing order entered by the court

reflects that it awarded Plowden credit for time served. (See Order, 9/18/19).

       Plowden’s true allegation of error then is that the DOC failed to follow

the court’s sentence as imposed.                   Because Plowden actually seeks

enforcement of the sentencing order, we agree with the trial court and the

Commonwealth that the appropriate mode of action is a filing before the

Commonwealth Court after exhausting administrative remedies in the DOC to

challenge its calculation of time served in this case. (See Trial Ct. Op., at 9;

Commonwealth’s Brief, at 15). Because the trial court appropriately awarded

Plowden credit for any time served in this case, Plowden’s challenge to his

sentence fails.8

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8 Plowden’s reliance on Mann, supra, is misplaced because the facts are
inapposite. In Mann, the trial court granted the defendant no credit for time
served and this Court remanded the case with instructions for the court to
issue a sentencing order granting time served.




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                                               C.

       Plowden next challenges the sufficiency of the evidence supporting his

conviction, arguing that the Commonwealth failed to establish that he

possessed the .380 handgun recovered from 333 Gray Avenue.9            Plowden

claims that the firearm was merely found in the residence that he was in on

the morning in question and that there are no fingerprints on the firearm

connecting him to it.       Plowden also points to perceived weaknesses in the

Commonwealth’s case in that it presented testimony from the responding

officers but not from any witness who actually observed him possess the

firearm.

       The Crimes Code defines the offense of Persons Not to Possess Firearms

as “(1) A person who has been convicted of an offense enumerated in

subsection (b), within or without this Commonwealth, regardless of the length


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9In Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018), appeal
denied, 202 A.3d 42 (Pa. 2019):

       We review claims regarding the sufficiency of the evidence by
       considering 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. Further, a conviction may be
       sustained wholly on circumstantial evidence, and the trier of fact—
       while passing on the credibility of the witnesses and the weight of
       the evidence—is free to believe all, part, or none of the evidence.
       Because evidentiary sufficiency is a matter of law, our standard of
       review is de novo and our scope of review is plenary.

(Citations and question marks omitted).


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of sentence or whose conduct meets the criteria in subsection (c) shall not

possess, use, control . . . a firearm in this Commonwealth.”        18 Pa.C.S.

§ 6105(a)(1). Because the parties stipulated that Plowden was disqualified

from possessing a firearm under the first element of the offense, he only

challenges the remaining element, i.e., that he actually possessed the

handgun.

      The Crimes Code defines the term “possession” as “an act, within the

meaning of this section, if the possessor knowingly procured or received the

thing possessed or was aware of his control thereof for a sufficient period to

have been able to terminate his possession.” 18 Pa.C.S. § 301(c). Illegal

possession of a firearm may be established by constructive possession:

             When contraband is not found on the defendant’s person,
      the Commonwealth must establish “constructive possession,” that
      is, the power to control the contraband and the intent to exercise
      that control. The fact that another person may also have control
      and access does not eliminate the defendant’s constructive
      possession. . . . As with any other element of a crime, constructive
      possession may be proven by circumstantial evidence. The
      requisite knowledge and intent may be inferred from the totality
      of the circumstances.

             Constructive possession is an inference arising from a set of
      facts that possession of the contraband was more likely than not.

Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018)

(citations omitted).

      Officer Owens testified to Vega’s statement placing Plowden at the scene

of the shooting in possession of a gun. (See N.T. Trial, 7/11/19, at 191).

Police recovered a .380 handgun and its magazine from the same residence

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Plowden was in immediately after the shooting. (See N.T. Trial, 7/11/19, at

37; N.T. Trial, 7/12/19, at 26, 28). Bullet fragments found at the scene of

the shooting were traced to this handgun through ballistics evidence. (See

N.T. Trial, 7/11/19, at 84-85, 100; N.T. Trial, 7/12/19, at 89-91). This same

firearm had Plowden’s DNA on it.

     As touched upon above, Heister testified to his finding that at least three

individuals had left DNA on the gun. Heister explained that DNA analysis on

swabs taken from guns makes up a large component of his work, and that he

regularly sees mixtures of DNA on guns because “these are items that are

typically not clear ever . . . and the swabs from guns we get are mixtures,

which means two or more people present.”        (N.T. Trial, 7/12/19, at 110).

Regarding the firearm in this case, there were two minor contributors to the

DNA that was found on the gun and one major contributor.                Heister

determined that the DNA of the major contributor “matches the DNA profile

that was obtained from Tyshawn Plowden” and that “it would be statistically

improbable to assume that it came from anybody other than Mr. Plowden.”

(Id. at 118-19). The minor components of the DNA were uninterpretable.

(See id. at 116).

     Defense counsel attempted to undermine the strength of this testimony

by emphasizing that there were at least three contributors to the DNA sample

and by raising the possibility that Plowden’s DNA was found on the gun

because of a secondary transfer of his DNA.      (See id. at 124-127, 136).


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Although Heister acknowledged that secondary transfers are possible, he

explained that a considerable amount of DNA is needed to collect a reportable

full profile. (See id. at 125-26).

       After review of the record, we conclude that the DNA and other evidence

supports the jury’s finding that Plowden constructively possessed the

handgun. The totality of the circumstances went well beyond showing that

Plowden was merely present at the apartment where the gun was found and

instead demonstrated his control of the gun.        Plowden’s sufficiency claim

merits no relief.

                                               D.

       Plowden also challenges the weight of the evidence supporting his

conviction.10 Plowden’s argument rests on his reiteration of his claims that


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10In Commonwealth v. Soto, 202 A.3d 80, 97 (Pa. Super. 2018), appeal
denied, 207 A.3d 291 (Pa. 2019):

       A motion for a new trial based on a claim that the verdict is against
       the weight of the evidence is addressed to the discretion of the
       trial court. A new trial should not be granted because of a mere
       conflict in the testimony or because the judge on the same facts
       would have arrived at a different conclusion. Rather, the role of
       the trial judge is to determine that notwithstanding all the facts,
       certain facts are so clearly of greater weight that to ignore them
       or to give them equal weight with all the facts is to deny justice.
       It has often been stated that a new trial should be awarded when
       the jury’s verdict is so contrary to the evidence as to shock one’s
       sense of justice and the award of a new trial is imperative so that
       right may be given another opportunity to prevail.




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the evidence established that he was merely present in the home where the

handgun was found, there was a dearth of eyewitness testimony at trial, and

the DNA evidence was not conclusive.

       Following review of the record and mindful of our deferential standard

of review, we discern no abuse of discretion in the trial court’s decision to deny

relief on Plowden’s weight claim. The court appropriately concluded that the

jury’s guilty verdict on the firearms offense was not shocking to the conscience

and was not so contrary to the evidence as to require a new trial. Further, we

decline to reassess or reweigh the testimony and evidence presented at trial,

which was for the jury, as fact-finder, to assess.       Accordingly, Plowden’s

challenge to the weight of the evidence fails.

____________________________________________


       An appellate court’s standard of review when presented with a
       weight of the evidence claim is distinct from the standard of review
       applied by the trial court:

         Appellate review of a weight claim is a review of the exercise
         of discretion, not of the underlying question of whether the
         verdict is against the weight of the evidence. Because the
         trial judge has had the opportunity to hear and see the
         evidence presented, an appellate court will give the gravest
         consideration to the findings and reasons advanced by the
         trial judge when reviewing a trial court’s determination that
         the verdict is against the weight of the evidence. One of the
         least assailable reasons for granting or denying a new trial is
         the lower court’s conviction that the verdict was or was not
         against the weight of the evidence and that a new trial should
         be granted in the interest of justice.

(Citations and quotation marks omitted).




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                                               E.

       Plowden next contends that the trial court erred in failing to dismiss this

case because of a double jeopardy violation. The foundation of his argument

is that the trial court granted his Rule 600 motion on January 6, 2015, and

dismissed the charges against him with prejudice. Plowden then relies on a

January 16, 2015 entry on the trial court docket that he asserts evidences the

District Attorney’s withdrawal of the charges, barring the Commonwealth from

prosecuting him for this offense.11

       “The Double Jeopardy Clauses of the Fifth Amendment to the United

States Constitution and Article 1, § 10 of the Pennsylvania Constitution protect

a defendant from repeated criminal prosecutions for the same offense.”

Graham, supra at 736. Plowden concedes that this Court reversed the trial

court’s ruling on his Rule 600 motion and remanded the case for further

proceedings on March 8, 2017.            Notwithstanding this procedural posture,

Plowden maintains that the notation on the docket made more than two years

earlier, on January 16, 2015, controls. This notation is for a letter from the

superintendent of the Clinton Correctional Facility located in Dannemora, New

York, to the Cambria County Clerk of Court, indicating that the detainer for



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11 “An appeal grounded in double jeopardy raises a question of constitutional
law.” Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. 2015).
This Court’s scope of review in making a determination on a question of law
is plenary and our standard of review is de novo. See id.


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Plowden was being returned.       The letter states that the detainer “is being

returned to you because the Office of the District Attorney has hereby

withdrawn criminal action.”        (See Clinton Correctional Facility Letter,

1/16/15).

      As the trial court explained, “this letter cannot serve as the

Commonwealth’s withdrawal of any charges as it was not authored by the

Cambria County District Attorney but rather by a correctional facility in New

York and addressed to the Cambria County Clerk of Court. The letter only

indicates the reason for the return of a detainer placed on Plowden as the

Clinton Correctional Facility understood it.” (Trial Ct. Op., at 19). Thus, since

the Commonwealth did not withdraw the charge against Plowden and instead

demonstrated its intent to fully pursue it by filing an appeal of the trial court’s

Rule 600 decision, there is no double jeopardy issue. Plowden’s argument to

the contrary merits no relief.

                                        F.

      In his final claim, Plowden challenges the trial court’s denial of his

request for a continuance on grounds that his DNA expert, Dr. Ward, was not

available for trial and had not yet provided her expert report. Plowden argues




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that this ruling prejudiced him because he did not have the benefit of his own

expert at trial where DNA evidence was crucial to his defense.12

       “A bald allegation of an insufficient amount of time to prepare will not

provide a basis for reversal of the denial of a continuance motion.” Ross,

supra at 91 (citation omitted). Instead, an appellant must establish prejudice

and demonstrate in what manner he was unable to prepare his defense or

how he would have prepared differently had he been given more time. See

id.

              This Court has observed that trial judges necessarily require
       a great deal of latitude in scheduling trials. Not the least of their
       problems is that of assembling the witnesses, lawyers, and jurors
       at the same place at the same time, and this burden counsels
       against continuances except for compelling reasons. However,
       the trial court exceeds the bounds of its discretion when it denies
       a continuance on the basis of an unreasonable and arbitrary
       insistence upon expeditiousness in the face of a justifiable request
       for delay. Accordingly, we must examine the reasons presented
       to the trial court for requesting the continuance, as well as the
       trial court’s reasons for denying the request. . . .

            When deciding a motion for a continuance to secure a
       material witness, the trial court is guided by the following factors:

              (1) the necessity of the witness to strengthen the party’s
       case; (2) the essentiality of the witness to the party’s case; (3)
       the diligence exercised to procure the witness’ presence at trial;
       (4) the facts to which the witness could testify; and (5) the
       likelihood that the witness could be produced at the next term of
       court.


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12 “The grant or denial of a motion for a continuance is within the sound
discretion of the trial court and will be reversed only upon a showing of an
abuse of discretion.” Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super.
2012), appeal denied, 72 A.3d 603 (Pa. 2013) (citation omitted).

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Commonwealth v. Norton, 144 A.3d 139, 143–44 (Pa. Super. 2016)

(citations omitted).

      Here, the record reflects that on January 8, 2019, the trial court granted

Plowden’s motion for the appointment of Dr. Ward as the defense DNA expert.

On May 3, 2019, the court entered an order granting Plowden’s request to pay

Dr. Ward’s retainer.   The Commonwealth thereafter filed a motion seeking

reciprocal discovery, including of any defense expert reports and it provided

Plowden with its DNA report on June 3, 2019. Trial was originally scheduled

for June 21, 2019, was rescheduled for July 11, 2019, at Plowden’s request to

accommodate Dr. Ward’s schedule.

      On July 11, 2019, at the outset of trial, defense counsel requested

another continuance because Dr. Ward was unavailable to testify and had not

issued a report.   (See N.T. Trial, 1/11/19, at 4, 6).     The Commonwealth

objected on the basis that the case had already been continued to

accommodate Dr. Ward’s schedule and it had not received her report. (See

id. at 5-6). The trial court denied the motion for a continuance “since we

don’t even have a report. We don’t know if it’s positive, negative, exculpatory

or what, so we’re going to proceed. If something happens today or tomorrow

and a witness needs [to be] taken out of order, you do receive a report or

whatever, we’ll certainly accommodate.” (Id. at 7).

      In its opinion, the trial court again explained that it denied Plowden’s

motion because no expert report had been prepared and it agreed to


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accommodate Dr. Ward if circumstances changed and she was able to testify

by any means.    (See Trial Ct. Op., at 20-21). Defense counsel raised no

objection to the denial and there were no further discussions during trial

relative to Dr. Ward or her testimony. (See id.).

      Additionally,

             [Plowden] has not explained how he would have prepared
      differently if the continuance had been granted. . . .     Ward’s
      involvement in the case began in January 2019 when Plowden’s
      motion to appoint an expert was granted. . . . As of trial Ward
      had yet to provide defense counsel with a report or even indicate
      to him what her testimony would encompass. Based on defense
      counsel’s inability to make an offer of proof relative to Ward’s
      testimony the court denied the continuance request and provided
      the defense the option to have Ward testify by alternative means
      once she provided a report. Defense counsel did not avail himself
      of this option nor raise the issue of Ward’s testimony again. As
      such Plowden cannot establish that he was prejudiced by the
      court’s denial of his continuance where he cannot establish what
      Ward’s testimony would have been or how the lack of that
      testimony impacted his case.

(Id. at 21-22) (record citations omitted).

      Based on the foregoing, we conclude the trial court did not abuse its

discretion in denying Plowden’s eleventh hour request for a second

continuance relating to Dr. Ward where he had ample time to secure her

presence and the court was plainly willing to accommodate her during the

already rescheduled trial. Plowden’s final issue merits no relief.

      Judgement of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2020




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