J-S52025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM F. COLON

                            Appellant                No. 1701 EDA 2015


        Appeal from the Judgment of Sentence entered January 16, 2015
             In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0015317-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED JANUARY 10, 2017

        Appellant, William F. Colon, appeals from the judgment of sentence

imposed on January 16, 2015 in the Court of Common Pleas of Philadelphia

County following his convictions of first-degree murder, violations of the

Uniform Firearms Act (“VUFA”), and possessing the instrument of a crime

(“PIC”).1    Appellant argues the evidence was insufficient to support his

convictions and that the guilty verdicts were against the weight of the

evidence. He also asserts trial court error for denying requests for a mistrial

and for delivering a jury instruction concerning alibi evidence.     Following

review, we affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(a), 6101 et seq., and 907, respectively.
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       The trial court condensed the underlying facts of the case as follows:

       Abba Abukanan was a drug addict. A couple of days prior to
       October 25, 2012, Abukanan went to the area of 5 th and
       Cornwall Streets in Philadelphia to purchase illegal drugs [from
       Appellant and Jimmy Santos] using fake money[.] [Appellant
       and Santos] did not appreciate that Abukanan was attempting to
       pawn off fake money to them and an altercation ensued.
       [Appellant] and Santos chased Abukanan off the block and told
       him not to come back.         Abukanan, being a drug addict[,]
       returned on October 25, 2012, money in hand to buy more illicit
       drugs[. W]hen he was recognized, [Appellant and Santos] were
       alerted to his presence. Jimmy Santos shot Abukanan in the left
       wrist and leg. [Appellant] then shot Abukanan in the back of the
       head, executing him.        When police arrived on the scene,
       Abukanan was found dead, with three gunshot wounds and the
       money still gripped in his hand.

Trial Court Rule 1925(a) Opinion (“T.C.O.”), 7/29/15, at 3-4 (references to

notes of testimony omitted).

       As the trial court explained, Appellant was arrested on July 11, 2013

and was charged with, inter alia, first-degree murder, VUFA and PIC.

T.C.O., 7/29/15, at 1.         Following a trial that began on January 7 and

concluded on January 15, 2015, a jury convicted Appellant of those crimes.2

He was sentenced to life in prison without parole for his first-degree murder

conviction and concurrent sentences of five to ten years and three and one-

half to seven years for his VUFA and PIC convictions, respectively. Id. at 2.
____________________________________________


2
   Appellant was tried jointly with Jimmy Santos (“Santos”) who was
sentenced to an aggregate term of not less than thirty nor more than sixty
years in prison for his convictions of third-degree murder, 18 Pa.C.S.A.
§ 2502(c), VUFA and PIC. Santos’ related appeal, challenging the sufficiency
of evidence as well as a jury instruction on third-degree murder, is docketed
at No. 2503 EDA 2015. The appeals have not been consolidated.



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      Appellant filed a timely appeal from his judgment of sentence. Both

he and the trial court complied with Pa.R.A.P. 1925. Appellant now presents

six issues for our consideration:

      A. Was the evidence not insufficient to sustain Appellant’s
         convictions where Julio Rosa’s and Alex Cruz’s statements to
         police made given (sic) many months after the shooting, were
         incredible, and where they both denied the truth of those
         statements at trial?

      B. Were not Appellant’s convictions against the weight of the
         evidence where the Commonwealth’s witnesses gave
         inconsistent statements and denied having seen Appellant
         commit the shooting at trial, and where a defense witness
         testified at trial that he saw someone other than Appellant
         commit the shooting?

      C. Did not the trial court commit reversible error in denying
         Appellant’s motion for mistrial where the prosecutor
         improperly bolstered the credibility of the statements given to
         police by key Commonwealth witness Alex Cruz by asking
         Cruz if Cruz remembered telling him that Appellant and the
         co-defendant were involved in the shooting?

      D. Did not the trial court commit reversible error in denying
         Appellant’s motion for mistrial where the prosecutor [] asked
         Cruz if Cruz remembered telling him that Appellant and the
         co-defendant were involved in the shooting as it constituted
         unsworn inadmissible hearsay by the prosecutor in regard to
         key evidence against Appellant?

      E. Did not the trial court commit reversible error in denying
         Appellant’s motion for mistrial when, during cross-
         examination of defense witness Juan Inglesias, rather than
         posing a question, the prosecutor baldly stated that Appellant
         did not say anything about the identity of the shooter because
         he was the one committing the murder?

      F. Did not the trial court commit reversible error in [its] charge
         to the jury on [alibi] by instructing the jurors that they could
         consider Appellant’s failure to provide timely notice of alibi to
         the Commonwealth in considering his alibi evidence?

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Appellant’s Brief at 10.

      In his first issue, Appellant challenges the sufficiency of the evidence

in light of the “incredible” statements given to police by two witnesses

months after the shooting and in light of the fact those witnesses denied the

truth of those statements during trial. As a challenge to sufficiency of the

evidence, Appellant presents a question of law.          Commonwealth v.

Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) (citing Commonwealth v.

Widmer, 744 A.2d 745, 751 (Pa. 2000)).           As this Court reiterated in

Antidormi:

      Our standard of review is well-established:

      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-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.




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Id. at 756 (quoting Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa.

Super. 2011) (additional citation omitted)).

      Although he was convicted of VUFA and PIC as well as first-degree

murder,   Appellant   limits   his   sufficiency   argument   to   murder   only.

Appellant’s Brief at 17-19. We shall do likewise. “To sustain a conviction for

first-degree murder, the Commonwealth must prove that the defendant

acted with the specific intent to kill, that a human being was unlawfully

killed, that the accused did the killing and that the killing was done with

deliberation.”   Commonwealth v. Simpson, 754 A.2d 1264, 1269 (Pa.

2000) (citation omitted).

      Appellant contends that the only evidence linking Appellant to the

murder of Abukanan were statements made by prosecution witnesses Rosa

and Cruz months after the incident.        Appellant’s Brief at 17.   He asserts

Rosa, who was facing a probation violation, gave a statement only after a

detective promised to help him with his probation officer.            Further, he

contends Rosa was high on drugs at the time of the shooting and when he

was interviewed by police.     Also, he argues, Rosa denied the truth of his

statements at trial, claiming he did not observe the shooting. Id. at 17-18.

      As to Cruz, Appellant argues that Cruz first told police he knew nothing

about the shooting, and then acknowledged in a statement more than seven

months later that he saw Santos shoot the victim in the leg and Appellant

shoot the victim in the head. Id. at 18. Cruz likewise denied the truth of


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that statement at trial and again claimed he did not witness the shooting.

Id. at 18-19.

      Appellant’s accounts, while not necessarily factually inaccurate, do not

take into consideration all the evidence, viewed in the light most favorable to

the Commonwealth as verdict winner. As the trial court observed, although

Rosa testified at trial that he had not seen the shooting, “his prior testimony

and statements clearly show that he saw the deceased arguing with Jimmy

Santos, that he heard a gunshot then saw the decedent get shot in the head

by [Appellant].”    T.C.O., 7/29/15, at 5 (reference to notes of testimony

omitted).   Further, Cruz, who was unable to recall the events surrounding

the shootings at trial, gave a prior statement to homicide detectives

indicating that he saw “Taz” (a/k/a Santos) shoot the victim in the leg and

“Willie” (a/k/a Appellant Colon) shoot him in the head.      Id. (reference to

notes of testimony omitted). To the extent there were inconsistencies in the

testimony of those witnesses, it was up to the jury to determine the

credibility of their testimony and the testimony of the officers who

interviewed those witnesses. Again, “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.” Antidormi, 84 A.3d at 756.

      Our review of the record confirms that the evidence was sufficient to

enable the jury to find every element of first-degree murder beyond a

reasonable doubt.     The record establishes that Appellant acted with the


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specific intent to kill his victim by shooting him in the back of the head, that

the victim was unlawfully killed, and that Appellant did the killing with

deliberation. Appellant’s first issue fails.

      Appellant next complains that the verdict was against the weight of

the evidence. As this Court has explained:

      On this issue, our role is not to consider the underlying question
      of whether the verdict was against the weight of the evidence.
      Rather, we are to decide if the trial court palpably abused its
      discretion when ruling on the weight claim. When doing so, we
      keep in mind that the initial determination regarding the weight
      of the evidence was for the factfinder. The factfinder was free to
      believe all, some or none of the evidence. Additionally, a court
      must not reverse a verdict based on a weight claim unless that
      verdict was so contrary to the evidence as to shock one’s sense
      of justice.

Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007)

(internal citations omitted), appeal denied, 954 A.2d 575 (Pa. 2008). “[A]

trial court’s denial of a post-sentence motion ‘based on a weight of the

evidence claim is the least assailable of its rulings.’”   Commonwealth v.

Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting Commonwealth v.

Diggs, 949 A.2d 873, 880 (Pa. 2008)).

      In support of his weight of the evidence claim, Appellant again looks to

the “inconsistent and incredible” testimony of Rosa and Cruz.       Appellant’s

Brief at 19.    He also directs our attention to the testimony of defense

witness, Juan Inglesias, who testified that Santos’ gun jammed and that

another individual—not Santos or Appellant—shot and killed the victim while

Appellant was standing with other individuals in front of a nearby residence.

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Id. (references to notes of testimony omitted).           Appellant does not

acknowledge that Inglesias, while not Appellant’s biological father, is married

to Appellant’s mother and did not approach Appellant’s attorney with his

factual account of the shooting until four days after the trial began. Notes of

Testimony, Trial, 1/14/15, at 24-25.

      Again, it is within the province of the jury to make credibility

determinations and this Court will not reweigh credibility determinations on

appeal. “Conflicts in the evidence and contradictions in the testimony of any

witnesses are for the fact finder to resolve.”     Sanders, 42 A.3d at 331

(citing Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003)). “A jury

decision to credit certain evidence and reject other testimony is appropriate;

therefore, the trial court did not abuse its discretion in concluding that its

sense of justice was not shocked by the verdict.”       Id.   Based upon our

review, we find no abuse of discretion on the part of the trial court for

concluding its sense of justice was not shocked by the verdict. Appellant’s

second issue fails.

      In his third, fourth and fifth issues, Appellant claims the trial court

committed reversible error by denying his motions for mistrial. We review

the denial of a motion for mistrial using an abuse of discretion standard.

Commonwealth v. Padilla, 923 A.2d 1189, 1192 (Pa. Super. 2007),

appeal denied, 934 A.2d 1277 (Pa. 2007).       “It is primarily within the trial

court’s discretion to determine whether a defendant was prejudiced by the


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challenged conduct.    On appeal, therefore, this Court determines whether

the trial court abused that discretion.” Id. (citation omitted).

      Appellant’s first mistrial claim stems from the denial of a mistrial after

the prosecutor “improperly bolstered the credibility” of statements given by

Commonwealth witness Cruz when the prosecutor asked the witness if he

remembered telling the prosecutor that Appellant and Santos shot the

victim. Appellant’s Brief at 21-22. Essentially, Appellant argues a mistrial

was   warranted    because    the   prosecutor   improperly    bolstered   Cruz’

statement, given to police months after the shooting, that he saw Appellant

and Santos shoot the victim.        Appellant also contends the prejudice he

suffered as a result of the prosecutor’s question was not cured by the trial

court’s general instructions to the jury, advising them that questions asked

of witnesses are not evidence. Id. at 22.

      The exchange that took place at trial is as follows:

      Q. The second time we met, did I ask you about your concerns?

      A. Yeah.

      Q. What did you tell me about your concerns?

      A. I don’t remember.

      Q. Do you remember me asking you about the information in
      your statement, about what happened the night of the murder?

      A. No.

      Q. Do you remember me asking you if you remember the names
      of the men involved?


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      A. No.

      Q. Do you remember telling me that it was Will and Taz?

      Defense counsel: Objection.

      The Witness: No.

      The Court: Sustained.

      Defense counsel: Motion to strike. Motion for mistrial.

      The Court: Denied.

Notes of Testimony, Trial, 1/12/15, at 74.

      In its 1925(a) opinion, the trial court explained that its preliminary

instructions to the jury included an admonition that the jury was not bound

by anything either the court or counsel “might express about the credibility,

guilt, innocence, weight of evidence, facts proven; none of that. That’s all

up to you. . . . Questions put to witnesses are not evidence. Same is true of

any questions I might ask.” T.C.O., 7/29/15, at 8-9 (reference to notes of

testimony omitted). Because there was no reason to believe the jury did not

follow the instructions, a mistrial was not necessary.      Id. at 10.    “[T]he

prosecutor did not improperly bolster the credibility of the statements given

to the police by asking if the witness recalled the statements he had

previously provided.   The fact that the prosecutor may have been present

during the rendering of that statement is not bolstering the credibility of the

statement.” Id. We agree. We find no abuse of discretion on the part of

the trial court for denying a mistrial relating to the prosecutor’s questions.


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      Appellant next presents a second challenge to the trial court’s denial of

a mistrial based on the same exchange between the prosecutor and witness

Cruz, claiming the prosecutor’s questions constituted unsworn inadmissible

hearsay regarding key evidence against Appellant.       We reject Appellant’s

contention that the prosecutor’s question constituted hearsay testimony. As

the Commonwealth explains, “[t]he prosecutor simply asked Cruz if he

remembered making a statement, Cruz said he did not, and the jurors were

specifically instructed that questions are not evidence.     Thus, no hearsay

was   put   before   the   jury.”   Commonwealth     Brief   at   16-17   (citing

Commonwealth v. LaCava, 666 A.2d 221, 231 (Pa. 1995) (“[I]t is well

settled in the law that attorney’s statements or questions at trial are not

evidence.”) (additional citations omitted)). The trial court did not abuse its

discretion in denying a mistrial based on a claim of hearsay.

      In his third claim of error stemming from denial of a mistrial, Appellant

contends he was prejudiced by remarks from the prosecutor during the

course of the cross-examination of alibi witness, Juan Inglesias.           The

prosecutor asked Inglesias what Appellant said about the individual who shot

the victim in the back of the head.     Defense counsel interrupted, saying

there was no testimony that Appellant said anything, and if Appellant did not

say anything, how could the witness testify as to what was said. Notes of

Testimony, Trial, 1/14/15, at 35-36. The trial court treated the interruption

as an objection and sustained it, after which the prosecutor commented, “He


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didn’t say anything, sir, because he was the one committing the murder. He

didn’t know who it was because he did it.”      Id. at 36.    Defense counsel

responded, “Objection. Motion for Mistrial.” Id.

      The trial court denied defense counsel’s motion for mistrial and

explained, in its Rule 1925(a) opinion, that “[t]he law is clear that comments

by a prosecutor constitute reversible error only where their unavoidable

effect is to prejudice the jury, forming in the juror’s minds, a fixed bias and

hostility toward the defendant such that they could not weigh the evidence

objectively and render a fair verdict.” T.C.O., 7/29/15, at 10-11 (citations

and internal quotations omitted).    We agree the motion for mistrial was

properly denied.

      As the   Commonwealth observed,        when determining      whether a

prosecutor’s comments were improper, the comments “must be examined

within the context of defense counsel’s conduct.” Commonwealth Brief at 20

(quoting Commonwealth v. Chmiel, 889 A.2d 501, 543 (Pa. 2005)).

“Even an otherwise improper comment may be appropriate if it is in fair

response to defense counsel’s remarks.” Id. (quoting Commonwealth v.

Watkins, 108 A.3d 692, 720 (Pa. 2014)). Here, a review of the exchange

suggests that the prosecutor’s comment was invited by defense counsel and

was made in response to the question, even if rhetorical, posed by defense

counsel. We cannot help but also observe that the prosecutor’s comments

were in response to a speaking objection by defense counsel.


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       The learned Dissent takes issue with our characterization of the

prosecutor’s remarks as being invited by defense counsel and made in

response to defense counsel’s question.            Concurring and Dissenting

Memorandum at 3.3 The Dissent contends that the statement constitutes an

“improper commentary on the guilt of Appellant, the unavoidable effect of

which was to form in the jury’s mind a prejudice against Appellant[.]” Id. at

3-4.   As such, the Dissent suggests the trial court’s denial of Appellant’s

mistrial motion constituted reversible error.      Id. at 4.   Respectfully, we

cannot agree.      The prosecutor was not expressing an improper personal

opinion on the guilt of the Appellant as stated by the learned Dissent.

Rather, the prosecutor was responding to defense counsel’s question by

offering an answer that was supported by the evidence. While this answer in

the form of argument no doubt was technically objectionable as not

constituting a question for examination, it cannot be said that this argument

constitutes grounds for mistrial where the statement based upon what the

evidence supports would have been fair play for closing argument. Again, it

is within the trial court’s discretion to determine whether a defendant was

prejudiced by the challenged conduct and it is this Court’s duty to determine

whether the trial court abused that discretion. Padilla, 923 A.2d at 1192.

____________________________________________


3
   As indicated in the Concurring and Dissenting Memorandum, its author
joins in the Majority’s analysis of the first four issues but dissents as to the
fifth and sixth issues. Concurring and Dissenting Memorandum at 1.



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The trial court concluded Appellant was not prejudiced by the prosecution’s

statement and we find no abuse of discretion in its finding.

      Alternatively, as the trial court suggested,

      It is clear that the prosecutor’s remark, although not technically
      phrased as a question, was a question presented to a witness on
      cross-examination, based upon at least two prior witness[es’]
      statements presented to the jury. The statement at issue did
      not unfairly prejudice the jury by preventing it from objectively
      weighing the conflicting evidence and rendering a fair verdict.
      Both Julio Rosa and Alex Cruz had previously identified
      [Appellant] as the individual who had shot Abukanan in the
      head. The prosecutor was confronting the defense alibi witness
      with evidence previously presented to the jury and the
      unavoidable effect of this is not such as to prejudice the jury.

T.C.O., 7/29/15, at 11.

      Whether considered a comment made in response to defense counsel’s

interruption or a question presented to Appellant’s alibi witness in the

context of evidence presented by Commonwealth witnesses, we do not find

the prosecutor’s statement constitutes personal opinion or that it resulted in

prejudice to Appellant in view of the evidence presented at trial. Therefore,

the trial court did not abuse its discretion in denying Appellant’s motion for

mistrial.

      In his sixth and final issue, Appellant argues the trial court committed

reversible error by delivering an alibi instruction.      As this Court has

explained:

      [W]hen evaluating the propriety of jury instructions, this Court
      will look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this

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        Commonwealth that a trial court has broad discretion in phrasing
        its instructions, and may choose its own wording so long as the
        law is clearly, adequately, and accurately presented to the jury
        for its consideration. Only where there is an abuse of discretion
        or an inaccurate statement of the law is there reversible error.

Antidormi, 84 A.3d at 754 (quoting Commonwealth v. Trippett, 932 A.2d

188, 200 (Pa. Super. 2007) (citation omitted)).

        As part of its charge to the jury, the trial court stated:

        In this case, [Appellant] has presented evidence of an alibi; that
        is, that he was not present at the scene or was rather at another
        location at the precise time the crime took place.

        The rules of criminal procedure require that a defendant file a
        notice of alibi defense within 30 days of [a] defendant’s
        arraignment. No such notice was filed with the clerk in this case.

        You should consider this evidence, both the alibi and the failure
        to give timely notice of the alibi, along with all the other
        evidence in the case in determining whether the Commonwealth
        met its burden of proving beyond a reasonable doubt that the
        crime was committed and that [Appellant] himself committed it.

        [Appellant’s] evidence that he was not present, either by himself
        or together with other evidence, may be sufficient to raise a
        reasonable doubt of his guilt. If you have a reasonable doubt of
        [Appellant’s] guilt, you must find him not guilty.

Notes of Testimony, Trial, 1/15/15, at 17-18.

        Appellant does not suggest that the rules do not require timely

disclosure of an alibi witness, nor does he deny that he failed to file the

required notice. Instead, he suggests that Pa.R.Crim.P. 567(B)(1)4 does not

____________________________________________


4
    Pa.R.Crim.P. 567(B) (Failure to File Notice) provides, in relevant part:
(Footnote Continued Next Page)


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call for a jury instruction indicating that the lack of notice may be considered

along with all other evidence. It is his position that such an instruction did

not serve the interests of justice in this case. Appellant’s Brief at 27. He

argues that the instruction served to deny Appellant a “fair trial by unjustly

weakening this evidence in the eyes of the jurors.” Id. at 26. We disagree.

Considering the entirety of the charge, we find no abuse of discretion in the

trial court’s inclusion of language informing the jury of the requirements for

giving notice of an alibi and Appellant’s failure to comply with those

requirements.     Importantly, the trial court also instructed the jury that

Appellant’s alibi evidence indicating he was not present at the scene, either

by itself or with other evidence, could be sufficient to raise reasonable doubt

of his guilt, in which case the jury must find him not guilty.           Notes of

Testimony, Trial, 1/15/15, at 17-18.                As mentioned above and as the

Commonwealth correctly suggests, the trial court could have excluded the

alibi testimony in its entirety for Appellant’s failure to identify an alibi

witness—his own stepfather—until the fourth day of trial.           Commonwealth

Brief at 26 (citing decisions by this Court finding exclusion of alibi testimony
                       _______________________
(Footnote Continued)

      (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.



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proper for failure to comply with the rule’s notice requirements). Instead,

the trial court elected, in the interests of justice, to permit the testimony,

inform the jury of the lack of proper notice, and allow the jury to consider

whether the testimony presented raised reasonable doubt of Appellant’s

guilt.

         The learned Dissent argues that the trial court’s failure to enter an

order under Rule 567(b)(1) and, instead, instruct the jury on Appellant’s

noncompliance      with   that   rule,    does    not   cure   any    prejudice   the

Commonwealth may have suffered due to Appellant’s untimely disclosure in

clear contradiction of the purpose of Rule 567(B)(1).                Concurring and

Dissenting Memorandum at 5. Again, we must respectfully disagree. The

failure of the court’s instruction to cure any prejudice to the Commonwealth

is not the basis for any relief to the defense based on its objection to the

charge.     The mention of the defense’s noncompliance in the charge is in

keeping with the purpose of Rule 567(B)(1), which is to insure “both the

defendant and the State ample opportunity to investigate certain facts

crucial to the determination of guilt or innocence.”           Commonwealth v.

Lyons, 833 A.2d 245, 257 (Pa. Super. 2003) (additional citations omitted).

By waiting until the fourth day of trial to disclose the identity of an alibi

witness, the defense deprived the Commonwealth of ample opportunity to

investigate crucial facts. Although the trial court was authorized by the rule

to exclude the evidence completely, it elected—in the interests of justice—to


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allow the testimony while informing the jury of the defense’s noncompliance

with the rule.

       The learned Dissent cites Commonwealth v. Servich, 602 A.2d

1338, 1343 (Pa. Super. 1992), for the proposition that “orders” authorized

by Rule 567(B)(1) may include permitting the Commonwealth to explain to

the   jury,   through    cross-examination         of   the   defendant,   why   it   was

unprepared to address an untimely alibi defense. Concurring and Dissenting

Memorandum at 4 n. 1.           We cannot see that the result of permitting the

Commonwealth to elicit an explanation of “unpreparedness” resulting from

noncompliance with the rule is any different from permitting the testimony

and informing the jury that the defense failed to comply with the rule. In

both instances, the jury learns of the defense’s noncompliance but still hears

the alibi testimony.

       As Servich also illustrates, a Rule 567(B)(1) “order” does not have to

be in the form of a court order but rather can be in the form of an action

taken by the trial court in the interests of justice in the event of a

defendant’s failure to give timely notice of an alibi defense.5 See also

Commonwealth v. Poindexter, 646 A.2d 1211, 1219 (Pa. Super. 1994)

(trial court may exclude alibi evidence or refuse an alibi instruction for failure

to comply with alibi notice requirements); Commonwealth v. Feflie, 581
____________________________________________


5
 Servich and the other cases cited herein addressed Rule 567’s precursor,
Pa.R.Crim.P. Rule 305.



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A.2d 636, 643 (Pa. Super. 1990) (trial court did not abuse its discretion by

allowing the prosecution to present two previously unidentified rebuttal

witnesses to respond to evidence not timely disclosed). The trial court here

advised the jury of the defense’s failure to comply with Rule 567(B)(1) and

instructed the jury to consider that fact, along with the alibi testimony itself.

We conclude that its instruction was in keeping with the trial courts’ “orders”

in Servich, Poindexter and Feflie, and was certainly a less severe remedy

than exclusion of the alibi testimony, a remedy available to the trial court.

      The Dissent suggests that the instruction “required the jury to consider

the   untimely   notice   in   determining     Appellant’s   guilt   or   innocence.”

Concurring and Dissenting Memorandum at 5.             We do not construe that

statement as a fair reading of the court’s charge as a whole. In fact, the

charge directs otherwise.      In the quoted portion of the charge set forth

above, the trial court instructed that Appellant’s “evidence that he was not

present, either by [itself] or together with other evidence, may be sufficient

to raise a reasonable doubt of his guilt. If you have a reasonable doubt of

[Appellant’s] guilt, you must find him not guilty.” N.T., 1/15/15, at 17-18.

The jury’s determination in that regard was not linked in any way to

Appellant’s noncompliance with Rule 567(B)(1).

      We find no abuse of discretion in the trial court’s charge to the jury.

      We find no merit in any of the issues raised by Appellant. Therefore,

we affirm Appellant’s judgment of sentence.


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     Judgment of sentence affirmed.

     President Judge Emeritus Ford Elliott joins the memorandum.

     Judge Strassburger files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017




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