J-S29045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DOMENICK WASHINGTON                        :
                                               :
                       Appellant               :   No. 372 EDA 2017

           Appeal from the Judgment of Sentence December 16, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0010126-2014


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                         FILED AUGUST 22, 2018

        Appellant, Domenick Washington, appeals from the judgment of

sentence entered in the Court of Common Pleas of Philadelphia County after

a jury found him guilty of aggravated assault, criminal conspiracy, and two

violations of the Uniform Firearms Act (“VUFA”).1 Herein, Appellant challenges

the trial court’s denial of his motion to dismiss under Pa.R.Crim.P. 600, the

sufficiency and weight of the evidence to sustain his convictions, and the

discretionary aspects of his sentence. We affirm.

        The trial court sets forth the facts and procedural history, as follows:

        On June 9, 20014, Clarence Watts drove with his cousin, Francis
        Watts, to the 3300 block of Reese Street in the morning hours
        shortly before 6:00 a.m. to purchase narcotics. He parked a blue
        Dodge Caravan midway down the block on the west side of Reese
        Street, approximately three car lengths before the corner.
        Clarence was familiar with the area and knew that narcotics are
____________________________________________


1   18 Pa.C.S.A. §§ 2702, 903, 6106 and 6108, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S29045-18


     sold at the nearby intersection of 5th Street and Glenwood Avenue
     at all times, even at 6:00 a.m. Together, Clarence and Francis
     walked southbound and turned left at the first corner onto
     Cornwall Street.

     While walking, individuals in a vehicle pulled up to Francis and
     Clarence on Cornwall Street. These individuals engaged Clarence
     and Francis in conversation for the purchase of narcotics. Francis
     supplied them with items, alleged narcotics, which he and
     Clarence knew were fake in nature. As Francis was handing over
     these items in exchange for $40 United State Currency to the men
     in the vehicle, Clarence observed a Hispanic male wearing a gray
     hooded sweatshirt. The Hispanic male was standing with two to
     three other Hispanic males on the corner at the intersection of
     Cornwall Street and 5th Street. These men were located up the
     street from Clarence, and looking back at Clarence and Francis
     conducting the above transaction.

     Clarence became concerned that Francis’ alleged drug transaction
     bothered the Hispanic males on the block. He believed that the
     males considered the area to be their exclusive narcotics sales
     territory. As a result of that concern, Clarence approached the
     Hispanic male who had been looking at him and Francis in an
     attempt to distract that individual. Francis asked him, “[y]o,
     where the powder at?” The Hispanic male replied, “[U]p the block”
     and pointed at Defendant [hereinafter “Appellant”], Domenick
     Washington, who was standing at the intersection of 5th Street
     and Glenwood Avenue.

     Appellant was standing on the corner beside a black truck that
     was parked up on the sidewalk of 5th Street as Clarence
     approached him and asked him if he had narcotics. Both males
     were “looking each other up and down” and “sizing each other
     up,” upon the initial inquiry. Appellant then opened the passenger
     side door of the black truck. At that point, Clarence observed
     Appellant place a gun inside the backseat area.           Appellant
     resumed conversation with Clarence afterward. They were facing
     each other from four feet apart throughout the entire interaction.
     At some point during the conversation between Clarence and
     Appellant, Francis caught up to them on the corner.

     The conversation between Clarence and Appellant abruptly ended
     when Clarence noticed three Hispanic males running up 5th Street
     toward him and Francis. Clarence instantly recognized in the

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     group the Hispanic male who had directed him to Appellant for
     drugs, based on the gray sweatpants and hooded sweatshirt he
     was wearing. Immediately, Clarence instructed Francis to flee and
     he, too, began to run. In explaining why he ran, Clarence testified
     that he thought that Francis had sold the fake substances to one
     of the individuals who later realized that it was phony in nature
     and assembled the group to retaliate against them.

     While running, Francis and Clarence rounded the corner of 5th
     Street and Glenwood Avenue and immediately turned left onto
     Reese Street, where Francis lagged behind Clarence as they ran
     down the street. Francis stopped at the passenger side of their
     blue Caravan and called out to Clarence to retreat to it. However,
     Clarence had already passed the vehicle by that time and did not
     follow the instruction. Appellant then arrived onto Reese Street
     and shouted out to Clarence and Francis, “Halt,” as he gave chase.
     Francis stood in place upon Appellant’s demand and Clarence
     immediately turned around and looked in the direction of
     Appellant. At this time he observed Appellant holding a gun.
     Appellant was pointing the gun in the direction of Clarence and
     Francis as he approached them. As Francis began walking towards
     Appellant, Clarence also walked toward Appellant to convince him
     they had not done anything wrong. At the same time, Clarence
     attempted to convince Francis that they should flee in the direction
     away from Appellant.

     Clarence testified that while face-to-face with Appellant on the
     street, he tried to calm Appellant down. At some point during the
     confrontation, Francis ultimately indicated to Clarence that he was
     prepared to flee. Clarence instructed Francis to run, at which point
     they both proceeded to run southbound on Reese toward Cornwall
     Street and away from Appellant. As Clarence neared the corner
     ahead, he looked back at Francis and Appellant, who was running
     across the street from, and behind, Francis.          Clarence last
     observed Francis running on the pavement adjacent to the
     passenger side of the Caravan and Appellant starting to cross the
     street and proceeding toward Francis. While continuing to run,
     Clarence then heard a gunshot sound from behind him. Just
     seconds after the first shot was fired, Clarence turned the corner
     at the intersection, where he stopped and heard the sound of
     several more gunshots.

     At approximately 6:00 a.m., Police Officer Kyle Cross responded
     to a radio call for a shooting. Three minutes later the officer

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     arrived on the scene and observed an individual identified as
     Francis Watts slumped into the passenger side door of the blue
     Caravan on the west side of Reese Street. Francis was leaning
     into the vehicle from the sidewalk and his legs were bleeding onto
     the ground. Officer Cross immediately identified gunshot wounds
     to Francis’ legs, and Francis was subsequently transported to
     Temple University Hospital.

     Francis was hospitalized for two days to treat multiple gunshot
     wounds. Specifically, Francis suffered three gunshot wounds, one
     to his right calf, another to his right thigh, and one to his left leg.
     The Commonwealth and Appellant stipulated that Francis
     sustained six wounds in total, two entry and exit wounds each to
     his right leg, and an entry and exit wound to his left leg. Francis’
     injuries were sufficiently serious that he was advised to continually
     follow up with physical therapy, provided a home health nurse aid
     to care for his wounds, and was taught how to clean and dress his
     gunshot wounds.

     On the day of the shooting, while processing the crime scene,
     police recovered two sets of fired cartridge cases (“FCCs”) on each
     side of Reese Street. The first set of FCCs was three brass nine
     (9) millimeter FCCs that police located on the east sidewalk in
     front of 3331 North Reese Street. The second set was located on
     the west side of Reese Street, where police found two brass nine
     (9) millimeter FCCs and one silver FCC. The second set was
     recovered from the sidewalk on the passenger side of the blue
     Dodge Caravan parked in front of 3336 North Reese Street. Also,
     police recovered thirteen clear Ziploc packets [of] alleged crack
     cocaine from the ground in front of the passenger side of the
     Caravan. Those packets of alleged crack cocaine later tested
     negative for the presence of a controlled substance.

     On July 3, 2014, Clarence gave a statement to detectives and
     identified Appellant as the shooter by circling Appellant’s photo in
     a photo array. Clarence later explained that he recognized
     Appellant in the photo array based on his mutual eye contact with
     Appellant and his face-to-face observation of him on the day of
     the shooting. Clarence also recalled that Appellant had braids in
     his hair, as depicted in the photo array of Appellant’s image shown
     at trial.

     Based upon Clarence’s positive identification of Appellant, police
     conducted a records search of Appellant’s name. They ascertained

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     Appellant lived at 3340 N. 5th Street, Apartment Three.
     Subsequently, police applied for a search warrant for the address
     of 3340 North 5th Street, Apartment Three. The property is
     located at the intersection of Glenwood Avenue and 5th Street,
     approximately one block around the corner from where the
     shooting occurred. On July 9, 2014, police executed the warrant
     and located Appellant inside the apartment on the third floor.

     Police recovered from 3340 North 5th Street, Apartment Three,
     two pieces of mail and two envelopes addressed to Appellant as
     the recipient at that location,[fn] two pairs of sneakers, one
     Newport cigarette box containing nine pills that were later
     determined to be a non-controlled prescription item, and thirty-
     five Ziploc packets containing a substance that later tested
     positive for cocaine. Although no firearm was found in the
     apartment, police recovered from the bedroom one .9 millimeter
     bullet live round. Appellant was arrested on location. At trial,
     both parties stipulated that Appellant did not have a valid license
     to carry a firearm on the date of the shooting.


       [fn]The location of 3340 North 5th Street was on both pieces
       of mail but only one piece was specifically addressed to the
       third floor of that property.


     At trial, a video that captured the crime scene at the time of the
     shooting was played to both the jury and Clarence Watts.
     Clarence again positively identified Appellant as one of the
     shooters.[fn] The video clearly showed two individuals with arms
     extended with what appeared to be weapons pointed. Clarence
     testified consistent with the video images that were shown to the
     jury. He specifically identified Appellant in the video as the
     individual, extending his arm with a gun in hand on the west side
     of the street, who shot Francis. Clarence further affirmed that the
     person he identified as Appellant in the video was the same person
     he had [approached] about the purchase of narcotics at 5th and
     Glenwood, and the individual who had subsequently confronted
     him, and his cousin on Reese Street. He further testified that
     Appellant had braids in his hair on the day of the shooting.


       [fn]The video camera which points southbound on Reese
       Street was recovered from a barbershop located on that

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       corner and at the Glenwood Avenue intersection. The video
       played at trial shows two males being chased southbound on
       3300 Reese Street. After they passed through the camera’s
       coverage, two more males, a black male later identified as
       Appellant and a second, unidentified Hispanic male, emerge
       on camera and appear to be armed as they are running
       southbound in the same direction as the first two persons.
       Appellant is seen pointing a gun in the direction of where the
       two males are running ahead of him, as he gives chase down
       the west side of Reese Street and while the unidentified
       Hispanic male is in pursuit down the east side of the street,
       across from Appellant.


     Nevertheless, Clarence recognized the second individual in the
     video as the same Hispanic male who was with Appellant at the
     time of the shooting based upon the clothing worn by the Hispanic
     male during their multiple encounters on the morning it occurred.
     During each encounter on the date in question, Clarence observed
     the Hispanic male wearing gray sweatpants and a gray hooded
     sweatshirt. The clothes were the same clothing worn by the
     second individual in the video of the shooting.

     The Commonwealth introduced as substantive evidence,[fn]
     Francis’ statement given to Detective Donna Zampirri on the
     morning of the shooting. In this statement, Francis indicated that
     a black male and a Hispanic male “came up from behind” him, and
     they said “don’t move, get down.” Francis elaborated in his
     testimony that the Hispanic male had advanced toward Francis
     from the street as the black male approached him on the sidewalk;
     the black male then pulled out a gun, pointed it at him, “started
     shooting,” and afterward, both individuals ran from the scene
     toward Glenwood Avenue. Francis’ statement to the detective was
     consistent with the video.[fn] and with Clarence’s description of the
     two attackers, one Hispanic male and one black male who fired
     shots at Francis.


       [fn]   Francis’    written  statement    was    marked    as
       Commonwealth’s exhibit 7. When Francis was questioned at
       trial about his statement to the detective, he was unable to
       recall giving it even though he signed the document because
       he indicated that his memory of the occasion had been


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       compromised by the pain he suffered from the injuries at the
       time.

       [fn] Specifically, the video and Francis’ statement are
       consistent in the shooter’s position on the western sidewalk
       of the street prior to the shooting, and in the same route on
       which the shooter departed the scene following it.


     On June 16, 2014, while investigating the shooting, Police Officer
     John Seigafuse stopped two individuals, Ronald Burke and
     Appellant. Both were stopped in the area where the shooting
     occurred about a week prior. These two were stopped based on
     a description of the shooter that had been provided to police
     developed from flash information. Officer Seigafuse had been
     informed that the shooter was a tall black male with braids. These
     stops occurred approximately 5 minutes apart from each other.
     Both men fit the description at the time, and neither person was
     arrested on that day.[fn] According to Officer Seigafuse, he
     observed that Appellant’s hair was braided throughout his head in
     individual strands of braids to his shoulders[,] while only the top
     portion of Burke’s hair was braided and the sides were bushy. At
     no time prior to Officer Seigafuse’s stop of Burke and Appellant
     did the officer view the video or photographic images produced
     from the video of the shooting.


       [fn]Commonwealth exhibit 16 reflects that Appellant was
       noted as a black male, 6’1 in height, and 185 lbs. in weight.
       Similarly, Commonwealth exhibit 17 lists Burke as a black
       male, 6’3” in height, and 230 lbs. in weight. Both men had
       braids in their hair at the time of the stop.


     Following the stops, Detective Martin Sheeron obtained
     photographs of both Burke and Appellant based upon Officer
     Seigafuse’s description to the detective of both men’s height,
     weight, and physical build. Detective Sheeron testified that he
     reviewed the images from the video of the shooting and the
     photographs of Appellant and Burke.        As a result of his
     comparison, Detective Sheeron ultimately developed Appellant as
     one of the suspects who shot the victim, Francis. Subsequently,
     a photo array containing Appellant was shown to Clarence Watts


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      on July 3, 2014. At this time, Clarence identified to Appellant as
      the shooter by circling Appellant’s photo in the photo array.

      Police Officer Lawrence Flagler, of the City’s Firearms
      Identification Unit, testified to the origin of the firearm from which
      FCCs were expelled in relation to the location where the casings
      were found at the crime scene. The officer concluded that the set
      of FCCs collected from the west side of Reese Street were all fired
      from a single firearm, different and distinct from the firearm that
      fired the other set of FCCs recovered on the east side of that
      street. Further, the .9 millimeter bullet live round recovered from
      Appellant’s bedroom matched the unique markings of the FCCs
      found on the west side of the street where Appellant had been
      identified as running down the same pathway in the direction of
      the victim with a gun in hand.[fn] In other words, Police Officer
      Flagler concluded that the three FCCs expelled on the west side of
      the block and the live round from Appellant’s bedroom, at some
      point, were all chambered in the same gun.


        [fn]His determination was based on the unique, identifiable
        markings on unfired live rounds that had been chambered in
        and extracted from a firearm that was consistent with the
        markings exhibited on the FCCs recovered from the west side
        of Reese Street.


Trial Court Opinion, 6/27/17, at 1-7 (citations to notes of testimony omitted).

      As noted above, a jury found Appellant guilty of all charges. After a

sentencing hearing conducted on December 16, 2016, the court imposed a

sentence of nine to eighteen years’ incarceration on each of the aggravated

assault and criminal conspiracy convictions, to run concurrently to one

another, plus a term of four years’ probation for each firearms violation, to

run consecutively to Appellant’s term of incarceration. Appellant filed post-

sentence motion challenging the weight of the evidence and the discretionary

aspects of sentencing, which the court denied. This timely appeal followed.


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      Appellant presents the following four issues for our review:

      I.    DID THE TRIAL COURT ERR WHEN IT DENIED THE
            DEFENSE MOTION TO DISMISS CHARGES WITH
            PREJUDICE PURSUANT TO PA.R.CRIM.P. 600(A) AS,
            EVEN AFTER TAKING EXCLUDABLE TIME INTO
            CONSIDERATION,      APPELLANT      DOMENICK
            WASHINGTON WAS NOT BROUGHT TO TRIAL WITHIN
            365 DAYS OF BEING ARRESTED AND CHARGED WITH
            VARIOUS CRIMINAL OFFENSES (ARREST DATE – JULY
            9, 2014)?

      II.   DID THE TRIAL COURT ERR WHEN IT FOUND
            APPELLANT DOMENICK WASHINGTON GUILTY OF THE
            CRIMINAL OFFENSES OF AGGRAVATED ASSAULT,
            CRIMINAL CONSPIRACY (TO COMMIT AGGRAVATED
            ASSAULT), FIREARMS NOT TO BE CARRIED WITHOUT
            A LICENSE AND CARRYING FIREARMS ON PUBLIC
            STREETS OR PUBLIC PROPERTY IN PHILADELPHIA,
            AS THE VERDICT WAS AGAINST THE WEIGHT OF THE
            EVIDENCE?


      III. DID THE TRIAL COURT ERR WHEN IT FOUND THAT
           THERE WAS SUFFICIENT EVIDENCE TO PROVE,
           BEYOND A REASONABLE DOUBT, THAT APPELLANT
           DOMENICK WASHINGTON WAS GUILTY OF THE
           CRIMINAL OFFENSE OF CRIMINAL CONSPIRACY (TO
           COMMIT AGGRAVATED ASSAULT)?


      IV.   DID THE TRIAL COURT ERR WHEN IT SENTENCED
            APPELLANT DOMINICK [SIC] WASHINGTON TO A
            TERM OF INCARCERATION WHICH WAS MANIFESTLY
            EXCESSIVE AS HIS SENTENCE DEPARTED FROM THE
            PENNSYLVANIA SENTENCING GUIDELINES?

Appellant’s brief, at 2.

      Appellant first presents a Rule 600 argument charging the court with

abusing its discretion when it denied his motion to dismiss pursuant to




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Pa.R.Crim.P. 600.     We review Rule 600 rulings for an abuse of discretion.

Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017).

      The proper scope of review is limited to the evidence on the record
      of the Rule [600] evidentiary hearing, and the findings of the
      [trial] court. An appellate court must view the facts in the light
      most favorable to the prevailing party.

Commonwealth v. Plowden, 157 A.3d 933, 936 (Pa.Super. 2017) (en banc)

(citation omitted).    When reviewing trial court rulings, this Court must

consider Rule 600’s dual purposes, namely, the protection of the defendant’s

speedy trial rights and the protection of society. Id.

      At the hearing on Appellant’s Rule 600 motion, it was established that

Appellant was arrested and charged in the case sub judice on July 9, 2014.

N.T. 8/1/16, at 4. On the first preliminary hearing listing of July 24, 2014,

the Commonwealth asked for and were granted a continuance because their

witnesses were not present. N.T. at 4-5. On the second preliminary hearing

of August 13, 2014, the Commonwealth indicated it was moving the case from

a regular preliminary hearing to the Indicting Grand Jury (“IGJ”). N.T. at 5.

At the September 8, 2014, status hearing, the Commonwealth indicated it had

obtained an indictment and the case was scheduled for arraignment, which

took place on September 29, 2014. On October 14, there was a scheduling

conference and the court set a trial date of June 2, 2015, which was 37 days

before the mechanical run date of July 9, 2015. N.T. at 5.

      The Commonwealth supplied defense counsel the IGJ discovery 60 days

prior to the trial date, but on June 2, 2015, the Commonwealth informed the


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court that it was not ready to try its case, as an essential Commonwealth

witness had failed to appear. N.T. at 5-6. The trial court, therefore, gave the

case a new listing of November 10, 2015, which was 25 days past the

mechanical run date.    N.T. at 6.   Neither the Commonwealth nor defense

counsel alerted the court to that fact.

      On the scheduled trial date of November 10, 2015, defense counsel was

again ready to proceed with trial, but the trial court indicated on the Court of

Common Pleas’ public portal that it had a Priority case for that date, and

continued the trial date to February 9, 2016. The accompanying docket entry

lists the cause for continuance as “Court on trial Must be tried” for that date.

      On the next scheduled listing of February 9, 2016, defense counsel was

on trial in another matter, and so the court entered a defense continuance of

Appellant’s case to September 27, 2016.

      On June 16, 2016, Appellant filed a motion to dismiss pursuant to Rule

600. At the hearing, Appellant argued that dismissal was required because

the Commonwealth exhibited a lack of due diligence in failing to bring this

case to trial on June 2, 2014 and again on November 10, 2015.                The

Commonwealth responded that it had done its due diligence in preparing to

try its case on the initial trial date of June 2, 2014, as evidenced by the

presence of Clarence Watts in court that day. Nevertheless, it maintained, it

was forced to seek a continuance when one essential witness failed to appear.

N.T. at 14. Furthermore, it asserted it was ready on call for the next trial date

of November 10, 2015, as it had maintained good contact with all witnesses

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and had subpoenaed officers slated to testify. It had no control, however,

over the trial court’s listing a different case as a priority trial for that same

date. N.T. at 13. At the close of argument, the trial court denied Appellant’s

motion to dismiss and imposed a trial date of September 27, 2016.

      In his brief, Appellant baldly asserts that the Commonwealth’s lack of

preparedness for the initial preliminary hearing, and its need for a continuance

on the first trial date of June 2, 2015, impermissibly pushed the run date past

365 days in violation of his Rule 600 rights. Moreover, he speculates, without

offering specifics, that the Commonwealth was also responsible for the court’s

decision to list a different case as a priority matter on November 10, 2015,

thus delaying his case even further.       He concedes that defense counsel

required a continuance in February of 2016, which pushed his trial date back

another seven months.

      Rule 600 states in relevant part that “[t]rial in a court case in which a

written complaint is filed against the defendant shall commence within 365

days from the date on which the complaint is filed.” Pa.R.Crim.P.

600(A)(2)(a).   Regarding the computation of time, Rule 600 provides that

“periods 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. Any other periods of delay shall be excluded from the

computation.” Pa.R.Crim.P. 600(C)(1).




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       Decisional law of this Commonwealth has held that “[e]xcludable time

includes delay caused by the defendant or his lawyer.                Concomitantly,

excusable delay occurs where the delay is caused by circumstances beyond

the Commonwealth’s control and despite its due diligence.” Commonwealth

v. Roles, 116 A.3d 122, 125 (Pa.Super. 2015) (citations and internal

quotation marks omitted). Due diligence “does not require perfect vigilance

and punctilious care, but merely a showing the Commonwealth has put forth

a reasonable effort.” Commonwealth v. Bradford, 46 A.3d 693, 701-02

(Pa. 2012) (citation omitted).       The Commonwealth bears the burden of

proving by a preponderance of the evidence that it exercised due diligence.

Plowden, 157 A.3d at 941.

       When calculating time for purposes of Rule 600, a trial court may excuse

time   attributable   to   the   unavailability   of   a   witness   because   “[t]he

Commonwealth cannot be held to be acting without due diligence when a

witness becomes unavailable due to circumstances beyond its control.”

Wendel, 165 A.3d at 957 (citation omitted) (holding that a police officer’s

unavailability was a circumstance beyond the Commonwealth’s control, and

the Commonwealth was not acting without due diligence in postponing trial);

see also Commonwealth v. Hunt, 858 A.2d 1234, 1243 (Pa. Super. 2004)

(en banc) (finding that victim’s unavailability due to absence from the country

was a circumstance beyond the Commonwealth’s control).

       Also, “[b]ecause the Commonwealth cannot control the calendar of a

trial court, delay occasioned by the court’s unavailability is usually excusable.

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Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa.Super. 2011) (citing

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa.Super. 2007).

      However, the Commonwealth may, under some circumstances
      (e.g. a prolonged judicial absence), have a duty to seek other
      courtrooms to try the case. Commonwealth v. Anderson, 959
      A.2d 1248, 1250 (Pa.Super.2008). The extent of this duty
      depends on the specifics of each case. See id. The guiding
      principle is, again, that the Commonwealth must exercise due
      diligence by putting forth a reasonable effort in light of the
      particular case facts. Bradford, 2 A.3d at 632.

Riley, 19 A.3d at 1149. “Nor has our jurisprudence made notifying the court

of an imminent run-date violation a necessary condition to due diligence.”

Commonwealth v. Robbins, 900 A.2d 413, 417 (Pa.Super. 2006).

      We add the amount of excludable and excusable time, if any, to the

mechanical run date to arrive at an adjusted run date. Commonwealth v.

Wendel, 165 A.3d 952, 956 (Pa.Super. 2017) (citation omitted). “Rule 600

‘provides for dismissal of charges only in cases in which the defendant has not

been brought to trial within the term of the adjusted run date. . . .’”

Commonwealth v. Roles, 116 A.3d 122, 125–26 (Pa.Super. 2015).

      There is no dispute that when the Commonwealth required a

continuance on June 2, 2015, and the court relisted the trial date to November

10, 2015, Appellant’s trial would not take place within the 365-day mechanical

run date of July 9, 2015.

      The question before us, however, is whether the delay occasioned by

the Commonwealth’s continuance occurred despite the Commonwealth’s due




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diligence in preparing for trial, thus qualifying the delay as excusable time to

be added to the mechanical run date in creation of an adjusted run date.

      On this point, the record shows the court accepted the Commonwealth’s

explanation that it had made all preparations to try its case against Appellant

on June 2, 2015, but an essential witness failed to appear on the day of trial.

As discussed above, our precedent recognizes that a court may reasonably

excuse time attributable to an unavailable witness.      See Wendel, supra.

Appellant, moreover, directs us to nothing undermining the court’s finding that

the Commonwealth acted diligently in preparing for a June 2, 2015, trial.

      In addition, Appellant fails to include in his brief the argument he made

at the Rule 600 hearing—that the Commonwealth was obligated to secure a

new trial date within or as close to the mechanical run date as possible. Yet,

to the extent his argument may be liberally construed to imply such an

argument, we would still reject it as having no support in our jurisprudence.

See Robbins, supra.

      Finally, we disagree with Appellant’s contention that the delay caused

by the court’s decision to give another case priority on the scheduled trial date

of November 10, 2015, is also attributable to the Commonwealth. As noted

above, we have held the trial court’s calendar is usually beyond the

Commonwealth’s control, thus qualifying the time as excusable from the Rule

600 calculation. See Riley, supra.

      At the Rule 600 hearing the trial court made a determination that the

Commonwealth met its obligation to exercise due diligence in bringing

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Appellant to trial in accordance within the time constraints of Rule 600. We

find support for this determination in the record, and we, thus, discern no

abuse of discretion in the court’s denial of Appellant’s Rule 600 motion to

dismiss.

       Next, Appellant challenges the weight of the evidence2 in support of all

his convictions and the sufficiency of the evidence in support of his criminal

conspiracy conviction. Our standard of review for a challenge to the weight

of the evidence is as follows:

       The weight of the evidence is exclusively for the finder of fact who
       is free to believe all, part, or none of the evidence and to
       determine the credibility of the witnesses. An appellate court
       cannot substitute its judgment for that of the finder of fact. Thus,
       we may only reverse the lower court's verdict if it is so contrary
       to the evidence as to shock one's sense of justice. Moreover,
       where the trial court has ruled on the weight claim below, an
       appellate court's role is not to consider the underlying question of
       whether the verdict is against the weight of the evidence. Rather,
       appellate review is limited to whether the trial court palpably
       abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal

citations omitted).

       With respect to a sufficiency claim:

       The standard we apply in reviewing the sufficiency of the evidence
       is 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. In applying [the above] test, we may not
       weigh the evidence and substitute our judgment for the fact-
____________________________________________


2The well-settled standard of review for this issue is set forth in
Commonwealth

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     finder. In addition, we note that the facts and circumstances
     established by the Commonwealth need not preclude every
     possibility of innocence. Any doubts regarding a defendant's guilt
     may be resolved by the fact-finder unless the evidence is so weak
     and inconclusive that as a matter of law no probability of fact may
     be drawn from the combined circumstances. The Commonwealth
     may sustain its burden of proving every element of the crime
     beyond a reasonable doubt by means of wholly circumstantial
     evidence. Moreover, in applying the above test, the entire record
     must be evaluated and all evidence actually received must be
     considered. Finally, the [finder] of fact while passing upon the
     credibility of witnesses and the weight of the evidence produced,
     is free to believe all, part or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005) (quoting

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003)).

     Appellant predicates his weight of the evidence claims on the alleged

unreliability of Clarence Watts and the lack of memory claimed by Francis

Watts during trial. See Appellant’s brief at 27-28. A verdict based on such

evidence was, therefore, “pure conjecture,” Appellant maintains.

     Applying our standard of review, we conclude the trial court did not

abuse its discretion in denying Appellant’s weight of the evidence claim.

Appellant contends Clarence Watts was an unreliable source because he went

by numerous aliases and failed to report the shooting until he was later

arrested for on unrelated charges.

     However, it is undisputed that Clarence Watts positively identified

Appellant from a photo array and again at trial, where he described in detail

his face-to-face interaction with Appellant leading up to the moment when

Appellant pursued both Francis and Clarence with gun in hand.        His trial

testimony, moreover, was consistent with his earlier grand jury testimony,


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and he also identified Appellant from the barber shop surveillance video

capturing the shooting.

      Though Francis Watts testified he was unable to remember much of the

shooting, the Commonwealth produced his prior signed statement given to

police in which he implicated Appellant as the shooter.     Other incriminating

evidence included not only the video surveillance footage showing Appellant

pursuing Clarence and Francis Watts, but also the testimony of the

Commonwealth’s firearms expert, who explained to the jury that the markings

on the one bullet recovered from Appellant’s apartment matched the markings

on the shell casings recovered from the shooting scene, establishing that all

bullets had been chambered in the same handgun.

      Given this record, we discern no reason to upset the trial court’s decision

to deny Appellant’s weight of the evidence motion, as the jury’s verdict was

not so contrary to the evidence as to shock one’s sense of justice.

      We likewise reject Appellant’s argument assailing his conspiracy verdict

as unsupported by sufficient evidence.        Pursuant to 18 Pa.C.S. § 903, a

conviction of criminal conspiracy requires proof that:

      a defendant entered into an agreement to commit or aid in an
      unlawful act with another person; that he and that person acted
      with a shared criminal intent; and that an overt act was taken in
      furtherance of the conspiracy. “An explicit or formal agreement
      to commit crimes can seldom, if ever, be proved and it need not
      be, for proof of a criminal partnership is almost invariably
      extracted from the circumstances that attend its activities.”
      Therefore, where the conduct of the parties indicates that they
      were acting in concert with a corrupt purpose in view, the
      existence of a criminal conspiracy may properly be inferred. This


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J-S29045-18


       court has held that the presence of the following non-exclusive list
       of circumstances when considered together and in the context of
       the crime may establish proof of a conspiracy: (1) an association
       between alleged conspirators, (2) knowledge of the commission
       of the crime, (3) presence at the scene of the crime, and (4)
       participation in the object of the conspiracy.

Commonwealth v. Kinard, 95 A.3d 279, 293 (Pa. Super. 2014) (internal

citations omitted).

       Specifically, Appellant contends there was no evidence that he had an

agreement with a co-conspirator and committed an overt act in furtherance

of this conspiracy or agreement. We disagree. Both the testimony of Clarence

Watts and the video surveillance footage entered into evidence allowed for the

reasonable inference that Appellant and the Hispanic man, who first directed

the Wattses to Appellant for the purchase of crack cocaine and then joined

Appellant in armed pursuit of the Wattses, had acted in concert for a corrupt

purpose. We, therefore, reject Appellant’s sufficiency of the evidence claim.

       Appellant’s next challenge goes to the discretionary aspects of his

sentence.     Appellant asserts that the lower court abused its discretion in

imposing a “manifestly excessive” sentence that “constituted too severe a

punishment,” and failed to consider mitigating factors properly. Appellant’s

brief, at 18.3
____________________________________________


3We note that, contrary to requirements set forth in precedent from our Court,
Appellant's Rule 2119(f) statement fails to specify where his sentence falls in
relation to the sentencing guidelines. See Commonwealth v. Goggins, 748
A.2d 721, 727 (Pa.Super. 2000) (requiring inclusion of such detail within an
appellant's Rule 2119(f) statement). Under these circumstances, however,
we do not hold Appellant's omissions to be fatal, for Appellant's brief does tell



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       When an appellant challenges the discretionary aspects of his sentence,

we must consider his brief on this issue as a petition for permission to appeal.

Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010). Prior to reaching

the merits of a discretionary sentencing issue,

       [this Court conducts] a four[-]part analysis to determine: (1)
       whether [A]ppellant 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 [A]ppellant’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.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted). Appellant filed a timely appeal,

preserved his sentencing claim in a motion for reconsideration, and included

a statement of the reason relied on for allowance of appeal pursuant to

Pa.R.A.P. 2119(f) in his appellate brief.

       Moreover, we hold that, under the circumstances, Appellant has

presented a substantial question for review. See e.g. Commonwealth v.

Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005) (holding substantial question

raised   where     appellant    alleges    sentencing   court   improperly   imposed


____________________________________________


us that his sentence was outside of the guideline range. Appellant's Brief at
pp. 35-36. See e.g. Commonwealth v. Flowers, 950 A.2d 330, 332
(Pa.Super. 2008) (overlooking omission from Rule 2119(f) statement of where
appellant's sentence falls within the Sentencing Guidelines where the
particular length of the sentence was irrelevant to the substantial question
presented). Because omissions within Appellant's Rule 2119(f) statement do
not materially impede appellate review, we hold Appellant's Rule 2119(f)
statement to be technically compliant.


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J-S29045-18



aggravated     range     sentence     without    consideration     of    mitigating

circumstances); Commonwealth v. Parlante, 823 A.2d 927, 929–930

(Pa.Super. 2003) (holding allegations that court imposed disproportionate

sentence and did not consider proper sentencing factors raised substantial

question).   Therefore, we consider the merits of Appellant's appeal of the

discretionary aspects of his sentence.

      Our standard of review is as follows:

      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. An abuse of discretion is
      more than just an error in judgment and, on appeal, the trial court
      will not be found to have abused its discretion unless the record
      discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.Super. 2002)

(citations omitted).

      Here, the court imposed an upward departure sentence for aggravated

assault and criminal conspiracy of 108 months incarceration, which is 18

months above the top-end aggravated range sentence of 90 months given

Appellant’s offense gravity score.      The court explained, however, that it

deviated from the guideline range for several reasons, including Appellant’s

disregard for public safety in firing multiple bullets in a residential

neighborhood at a time when most residents would have been home, and the

fact that he did so in furtherance of his lucrative drug trafficking enterprise

there. See N.T. 12/16/16, at 36, 56.



                                      - 21 -
J-S29045-18



      The recovery of a live round of ammunition, matching that used in the

present crime, from Appellant’s apartment further demonstrated the

continued threat to the neighborhood posed by Appellant. The court further

considered the severe physical and emotional toll Appellant’s aggravated

assault had upon Francis Watts. See Mouzon, 828 A.2d at 1130 (holding

victim impact legitimate sentencing factor).

      Moreover, there is no dispute that the trial court had the benefit of a

PSI report prior to sentencing, and Appellant does not dispute the accuracy of

this report. Thus, we presume that the trial court was aware of Appellant's

mitigating circumstances and considered them when fashioning its sentence.

      The record, in any event, belies Appellant’s contention that the court

failed to consider mitigating factors prior to setting sentence. Indeed, the

court confirmed its familiarity with Appellant’s presentence investigation

report, which referred to Appellant’s difficult childhood, his rehabilitative

needs, educational achievements and instances of a positive employment

record. N.T. at 54-60. The court also noted the presence of Appellant’s family

members at the proceedings.

      Therefore, it is clear that the court weighed the aggravating and

mitigating factors in Appellant’s case and determined that an upward

departure from the guideline range by 18 months would result in a fair

sentencing scheme of concurrently-run sentences of incarceration.      As we,

thus, find the exercise of sound sentencing discretion within this record, we

see no merit to Appellant’s sentencing challenge.

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J-S29045-18



     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/18




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