J-A28028-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

JASON LEE HOOVER,

                          Appellant                  No. 55 WDA 2013


           Appeal from the Judgment of Sentence of December 4, 2012
               In the Court of Common Pleas of Clearfield County
              Criminal Division at No(s): CP-17-CR-0000541-2012

BEFORE: PANELLA, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 10, 2015

      Appellant, Jason Lee Hoover, appeals from the judgment of sentence

entered on December 4, 2012. We affirm.

      We have previously outlined the factual background of this case as

follows.

      On April 5, 2012, RES Coal Company (“RES”) noticed that
      several items were missing from its jobsite along Knobs Road in
      Goshen Township, Pennsylvania.          Pennsylvania State Police
      Trooper Adam Gibson responded to the call. Kevin Adams, an
      employee of RES, provided a list of stolen items to Trooper
      Gibson. Trooper Gibson also observed that there was a set of
      tire tracks near the location of the stolen items.

      Trooper Gibson believed that it was likely the thieves would take
      the stolen property to Novey’s Recycling (“Novey’s”) in
      Clearfield, Pennsylvania. Therefore, Trooper Gibson went to
      Novey’s to investigate the theft. Trooper Gibson’s instincts were
      correct as earlier that day two loads of stolen materials had been
      sold to Novey’s. However, Barry Martell (“Martell”) and D.M., a
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       juvenile, Appellant’s co-conspirators, had left prior to Trooper
       Gibson arriving.

       Martell and D.M., this time accompanied by Appellant, returned
       to Novey’s later on April 5, 2012 with a third load of stolen
       items. Novey’s refused to pay them for the items. Pennsylvania
       State Police Trooper Dewaine R. Kephart, Jr. responded to
       Novey’s and spoke with D.M., Martell, and Appellant. Trooper
       Kephart took photographs of the materials that were in
       Appellant’s truck. He also took photographs of the truck’s tires.

Commonwealth v. Hoover, 93 A.3d 510 (Pa. Super. 2013) (unpublished

memorandum), at 1-2, rev’d, 2014 WL 7392244 (Pa. Dec. 30, 2014).

       The procedural history of this case is as follows.       Appellant was

charged via criminal complaint on April 20, 2012.         On June 27, 2012,

Appellant waived arraignment. On July 12, 2012, Appellant was charged via

criminal information with theft by unlawful taking - value of property at least

$2,000.00,1 criminal conspiracy to commit theft by unlawful taking - value of

property at least $2,000.00,2 receiving stolen property - value of property at

least $2,000.00,3 criminal conspiracy to commit receiving stolen property -

value of property at least $2,000.00,4 and corruption of minors.5


1
    18 Pa.C.S.A. § 3921(a).
2
    18 Pa.C.S.A. §§ 903(a)(1), 3921(a).
3
    18 Pa.C.S.A. § 3925(a).
4
    18 Pa.C.S.A. §§ 903(a)(1), 3925(a).
5
    18 Pa.C.S.A. § 6301(a)(1)(i).




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      On October 1, 2012, the Commonwealth provided Appellant with a

written statement from D.M. alleging that Appellant was with D.M. and

Martell on the night that the items were stolen from RES.      Jury selection

occurred on October 4, 2012.       That same morning, Appellant filed two

motions in limine. The first sought exclusion of the tire track evidence. The

second sought to preclude the introduction of Appellant’s prior crimen falsi

conviction.   The trial court heard oral argument on the motion in limine

regarding tire tracks on October 15, 2012. Ultimately, the trial court denied

both motions in limine.

      On October 22, 2012, the morning of trial, Appellant filed a notice of

alibi, informing the Commonwealth and trial court that he intended to call his

girlfriend, Angel Cole, to testify as to his whereabouts on the night of April

4-5, 2012.    The Commonwealth objected to this testimony, and the trial

court sustained the objection.   Appellant orally moved for reconsideration

and the trial court denied the motion for reconsideration.    The jury found

Appellant guilty of all charges.    On December 4, 2012, Appellant was

sentenced to an aggregate term of 21 to 60 months’ imprisonment.         This

timely appeal followed.6




6
   On January 3, 2013, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). Appellant filed his concise statement on January 18,
2013. The trial court filed its Rule 1925(a) opinion on March 21, 2013.
(Footnote Continued Next Page)




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       On March 31, 2014, we vacated Appellant’s judgment of sentence after

concluding that the trial court abused its discretion by admitting into

evidence Appellant’s prior crimen falsi conviction.               Commonwealth v.

Hoover, 93 A.3d 510 (Pa. Super. 2013) (unpublished memorandum), at 10-

15. Our Supreme Court reversed, holding that the trial court did not abuse

its   discretion   by     admitting     Appellant’s   prior   crimen   falsi   conviction.

Commonwealth v. Hoover, 2014 WL 7392244 (Pa. Dec. 30, 2014). Our

Supreme Court remanded this case to us for consideration of Appellant’s

other issue on appeal, which we did not reach in our prior memorandum.

       The lone issue for our review is:

       Did the [trial] court abuse its discretion when it prohibited the
       testimony of Angel Cole as an alibi witness when the
       Commonwealth only advised the [Appellant] that it was calling
       [D.M.] as a witness less than [30] days before the trial and
       Angel Cole was to rebut the testimony of [D.M.]?

Appellant’s Brief at 6.7

       Appellant’s lone remaining issue on appeal challenges a discretionary

evidentiary ruling made by the trial court. Our “standard of review of a trial

                        _______________________
(Footnote Continued)

Appellant’s lone remaining issue on appeal was included in his concise
statement.

7
  Appellant’s brief also included an issue relating to the legality of his
sentence; however, he stated that he was withdrawing that issue. See
Appellant’s Brief at 6. Counsel for Appellant confirmed at oral argument that
Appellant was withdrawing that issue as counsel had determined that the
sentence imposed was legal.




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court’s evidentiary ruling is limited to determining whether the trial court

abused its discretion.” Commonwealth v. Prendes, 97 A.3d 337, 356 (Pa.

Super. 2014) (ellipsis and citation omitted).             “Where the evidentiary

question involves a discretionary ruling, our scope of review is plenary, in

that the appellate court may review the entire record in making its decision.”

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013), appeal

denied, 80 A.3d 775 (Pa. 2013) (citation omitted).

        Pennsylvania Rule of Criminal Procedure 567 provides, in relevant

part:

        (A) Notice by Defendant. A defendant who intends to offer the
        defense of alibi at trial shall file with the clerk of courts not later
        than the time required for filing the omnibus pretrial motion
        provided in Rule 579 a notice specifying an intention to offer an
        alibi defense, and shall serve a copy of the notice and a
        certificate of service on the attorney for the Commonwealth.

                                      ***

        (B) Failure to File Notice.

        (1) If the defendant fails to file and serve the notice of alibi as
        required by this rule, the court may exclude entirely any
        evidence offered by the defendant for the purpose of proving the
        defense, except testimony by the defendant, may grant a
        continuance to enable the Commonwealth to investigate such
        evidence, or may make such other order as the interests of
        justice require.

Pa.R.Crim.P. 567.

        We note that Appellant waived his arraignment on June 27, 2012.

Therefore, his notice of alibi was due on or before July 27, 2012. See id.

(notice of alibi due no later than the date required for the filing of the


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omnibus pretrial motion); Pa.R.Crim.P. 579 (omnibus pretrial motion due 30

days after arraignment); Commonwealth v. Light, 2010 WL 9513220, *2

(Pa. Cmwlth. Jan. 25, 2010) (period for filing of omnibus pretrial motion

begins to run on the date a defendant waives arraignment).        As Appellant

did not file his notice of alibi until October 22, 2012, it was patently

untimely.

      Appellant argues that the trial court should have granted him a

continuance of trial, pursuant to Rule 567(B)(1), when he belatedly filed his

notice of alibi.      Appellant’s counsel, who has represented Appellant

throughout these proceedings, conceded at oral argument that the word

continuance did not “escape [his] lips” before the trial court. Nonetheless,

he argues that the motion for reconsideration served as a quasi-motion for a

continuance. Furthermore, he contends that the Commonwealth’s delay in

providing D.M.’s statement excused the late filing of the notice of alibi.

Finally, he contends that he did not have time to seek a continuance. The

Commonwealth, on the other hand, contends that the trial court did not

abuse its discretion be choosing to exclude Cole’s testimony because of the

belatedly filed notice of alibi.

      In Commonwealth v. Anthony, 546 A.2d 1122, 1124 (Pa. Super.

1988), this Court held that a trial court did not abuse its discretion in

prohibiting an alibi witness from testifying when the notice of alibi was filed

on the morning of trial.           This Court reached that conclusion because



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Anthony failed to seek a continuance from the trial court after filing his

belated notice of alibi. Id.

       The same facts are present in the case sub judice.            Appellant

presented his notice of alibi on the morning of trial.    When the trial court

determined that he had violated Rule 567, Appellant failed to seek a

continuance.     Appellant attempts to distinguish Anthony in two respects.

First, Appellant contends that he did not have an opportunity to seek a

continuance. Appellant, however, had sufficient time to seek reconsideration

and, therefore, certainly had the time necessary to request a continuance.

Second, Appellant contends that he was not aware of the need for an alibi

witness until the day of trial. This argument is without merit. Appellant was

provided with a copy of D.M.’s statement, alleging that Appellant was with

him on the evening in question, 21 days prior to trial.      Furthermore, one

week prior to trial, and two weeks after receiving D.M.’s statement, the trial

court heard argument on Appellant’s motion in limine with respect to the tire

track evidence. At that time, Appellant could have given notice of his alibi

defense and, if necessary, requested a continuance instead of the exclusion

of Cole’s testimony.      Appellant chose instead to wait until the morning of

trial to file his notice of alibi.

       At oral argument, Appellant argued that his motion for reconsideration

should have been considered a quasi-request for a continuance.            This

argument is without merit. A request for a continuance is obviously different



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than a motion for reconsideration.      There may be strategic reasons why

counsel would seek reconsideration of a trial court’s order barring testimony

but not want to seek a continuance of trial.     For example, Appellant may

have wanted to have the case disposed of quickly or may have believed that

the jury seated for the case was favorable to him. The trial court does not

have an obligation to read counsel’s mind when he or she makes a motion.

Instead, the trial court is only required to dispose of the question put before

it.   In this case, the trial court did so by denying Appellant’s motion for

reconsideration. Accordingly, as in Anthony, we conclude that the trial court

did not abuse its discretion in excluding Cole’s testimony.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




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