J-S06020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

DEVIN WALKER

                             Appellant                 No. 150 EDA 2014


           Appeal from the Judgment of Sentence December 19, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010823-2010


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 09, 2015

        Devin Walker appeals from his judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his conviction, by a

jury, for one count each of aggravated assault,1 carrying a firearm without a

license,2 carrying a firearm in public in Philadelphia,3 criminal conspiracy,4

and two counts of robbery.5 After careful review, we affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2702.
2
    18 Pa.C.S. § 6106.
3
    18 Pa.C.S. § 6108.
4
    18 Pa.C.S. § 903.
5
    18 Pa.C.S. § 3701.
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       Walker and his co-conspirator, Terrence Evans,6 were implicated in an

armed robbery that occurred on May 19, 2010, at Elzina’s Lounge on West

Master Street in the City of Philadelphia. At approximately 12:05 p.m., two

individuals brandishing guns and wearing hooded sweatshirts entered the

bar.   One perpetrator demanded money from the patrons while the other

held a gun to the bar owner’s neck. Bar surveillance video shows that one of

the perpetrators was wearing black Nike sneakers with a white Nike

“swoosh” logo. At the time of the robbery there were three patrons in the

bar as well as the bar owner; one of the patrons, an armed retired police

officer, exchanged gun fire with a perpetrator and was shot in the finger.

       Immediately following the shooting, one of the perpetrators ran out of

the bar; the other perpetrator put his hands up and said he had had enough,

put down his gun and the money, and ran out the back door of the bar.

Fifteen minutes following the robbery, Police Officer Daniel Mason was

responding to a robbery in progress call when he observed Walker standing

in the street less than one block from the bar. When the officer exited his

police vehicle, Walker fled into his house; the officer pursued Walker into the

house, secured him, and brought him back to the establishment. None of

the bar patrons was able to identify Walker because of the hood that had
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6
  Co-conspirator Evans entered a guilty plea to robbery and conspiracy and
was sentenced to 22-44 months in prison, followed by five years of
probation.




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obscured his face during the robbery. A later search of Walker’s second floor

bedroom uncovered a pair of black Nike sneakers with a white “swoosh”

logo; however, no weapons or ammunition were found in Walker’s residence.

      At the preliminary hearing, the owner of the bar, Tracy Ricketts,

testified that a short man with light complexion held a gun to her neck

during the armed robbery.     This was the same perpetrator who shot the

police officer patron in the finger. Evans, Walker’s co-conspirator, admitted

his own guilt at trial but recanted his prior statement to police and sworn

guilty plea testimony identifying Walker as the other perpetrator. However,

a text message sent from Evans’ cell phone on the day of the robbery

stating, “I got shot at and Dev shot him and now the block is crazy hot

now,” corroborated his original statement. Evans also identified Walker from

a police photo array. In addition, Ronald Kelly was standing outside the bar

at the time of the robbery when he observed Walker exit out the back door

and run towards 57th and Thompson Streets. The following day Kelly gave a

formal statement to police identifying Walker as the individual who ran from

the bar.

      After a four day trial, Walker was convicted of the above-named

offenses.     He   was   sentenced   to   concurrent   terms   of   5-10   years’

imprisonment on the aggravated assault charge, 5-10 years in prison on

each of the robbery charges, 2-4 years’ imprisonment on the carrying

firearm without a license charge, 1-2 years in prison on the carrying firearm

in public charge, and a consecutive term of 1-2 years’ imprisonment on the

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conspiracy charge. No post-sentence motions were filed. This timely direct

appeal followed.

      On appeal, Walker presents the following issues for our consideration:

      (1)   Was the evidence insufficient to convict the defendant of
            aggravated assault, robbery, violation of the uniform
            firearms act, and conspiracy?

      (2)   Is the defendant entitled to a new sentence hearing?

      (3)   Did the trial court err in allowing the Commonwealth to
            introduce the preliminary hearing testimony of the witness,
            Ronald Kelly, at trial?

      Walker first challenges the sufficiency of his convictions. Specifically,

he claims that there was insufficient identification testimony to prove,

beyond a reasonable doubt, that he was a perpetrator of the crimes where

there was no eyewitness identification testimony and where the co-

defendant recanted his prior statement that Walker was the other individual

involved in the armed robbery.

      The standard of review regarding challenges to the sufficiency of the

evidence is well-settled.   In reviewing the sufficiency of the evidence, the

appellate court must determine whether the evidence admitted at trial, and

all reasonable inferences drawn therefrom, viewed in the light most

favorable to the Commonwealth as the verdict winner, is sufficient to prove

every element of the offense beyond a reasonable doubt. Commonwealth

v. Jones, 954 A.2d 1194 (Pa. Super. 2008); see Commonwealth v.

Wiley, 432 A.2d 220, 221 (Pa. Super. 1981) (“In considering the sufficiency

of the evidence of appellant's identification, [the appellate courts] regard the


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evidence and all inferences arising from it in the light most favorable to the

Commonwealth.”).

        Instantly, the bar owner testified that a shorter man with light

complexion, wearing a hood, held a gun to her neck.              N.T. Preliminary

Hearing, 8/25/10, at 14-16. She was able to see him jump over the counter

and approach her from a distance of three feet.        Id. at 14.     The police

officer-patron, who was shot in the finger, testified that although he saw the

face of the “shorter man with the gun” during the robbery, he did not

recognize him in court during the preliminary hearing.          Id. at 20-22. He

described the shooter as having reddish-brown hair, weighing approximately

125 pounds, and 5’6” in stature. Id. at 29.

        Ronald Kelly, a bystander who was outside of the bar when the

robbery occurred, gave a statement to police days after the robbery

indicating that he saw “Dev”7 run out of the back door of the bar, after shots

were fired, wearing a gray hoodie and blue jeans. Id. at 39-40. Kelly also

positively identified Walker from a police photograph. Id. at 40-41. Kelly

testified that he had known Dev from the neighborhood for almost one year.

Id. at 39.

        At the preliminary hearing Kelly recanted his identification of Walker,

testifying that the only reason he told the police that Walker was involved in


____________________________________________


7
    “Dev” is short for the defendant/appellant, Devin Walker.



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the robbery was because he saw Walker in the police cruiser, that Kelly was

scared because he had just been released from jail himself and he was afraid

he would be charged as a conspirator in the robbery. Id. at 43. At the time

he made the statement to the police, Kelly was in a holding cell for his

potential involvement in the matter; he had been there for one and one-half

days.       Id. 46-47.   Kelly was unable to be located for trial.   However, the

Commonwealth introduced his statement and preliminary hearing testimony

at trial.

        Detective Timothy McCool, the officer who investigated the robbery,

also testified at the preliminary hearing. He confirmed that he took Kelly’s

statement after the robbery and that Kelly positively identified a picture of

Walker that he showed him during the investigation. Id. at 49-51. Finally,

at trial Evans, Walker’s co-conspirator, recanted his prior incriminating

statement made to the police that implicated Walker in the armed robbery.

N.T. Trial, 10/30/13, at 79-80.

        In Commonwealth v. Coleman, 264 A.2d 649 (Pa. 1970), our

Supreme Court stated that recantation is the least reliable form of proof.

Moreover, affidavits made by Commonwealth witnesses recanting their

testimony given at trial are exceedingly unreliable. Commonwealth ex rel.

Leeper v. Russell, 184 A.2d 149 (Pa. Super. 1962).

        Despite the fact that the co-conspirator and Kelly subsequently

recanted, based upon the witnesses’ initial identification testimony, coupled

with the circumstantial evidence offered at trial (inculpatory text message

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sent by Walker’s co-conspirator, proximity of Walker to crime scene

immediately following robbery, Walker’s flight from police, and Nike shoe

match), we believe that there was sufficient evidence for the factfinder to

believe, beyond a reasonable doubt, that Walker was the other perpetrator

involved in the armed robbery.          See Commonwealth v. Stays, 70 A.3d

1256 (Pa. Super. 2013) (doubt about defendant's guilt to be resolved by fact

finder unless evidence so weak and inconclusive that, as matter of law, no

probability      of   fact   can   be   drawn   from   combined   circumstances;

Commonwealth’s burden of proof may be sustained by wholly circumstantial

evidence      where evidence, coupled       with reasonable   inferences   drawn

therefrom, overcomes presumption of innocence). Considering the evidence

and all inferences arising from it in the light most favorable to the

Commonwealth, there was sufficient evidence to prove that Walker was the

other perpetrator. Wiley, supra.

      With regard to his second claim, an attack on the discretionary aspect

of his sentence, we note that Walker neither raised the issue at sentencing

or post-trial.    Therefore, it is waived on appeal.    See Commonwealth v.

Felder, 75 A.3d 513 (Pa. Super. 2013).

      Finally, in his third issue on appeal, Walker asserts that the trial court

improperly permitted the Commonwealth to introduce Kelly’s statement and

preliminary hearing testimony at trial. Walker claims that the statement is

hearsay, that the Commonwealth failed to exercise due diligence in locating

Walker prior to trial, and that the defense was not given a full and fair

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opportunity to cross-examine Kelly at the preliminary hearing regarding his

criminal record.

        Pennsylvania common law permits, as an exception to the hearsay

rule, the admission of prior recorded testimony from a preliminary hearing

provided that:     (1) the witness responsible for that testimony is presently

unavailable; (2) the defendant had counsel;8 and (3) the defendant had a

full and fair opportunity to cross-examine the declarant during the earlier

proceeding. See Commonwealth v. McGrogan, 568 A.2d 924 (Pa. 1990);

see also Pa.R.E. 804(b)(1) (hearsay exceptions; former testimony);

Commonwealth v. Nelson, 652 A.2d 396 (Pa. Super. 1995).

        With regard to the first prong of Rule 804, the true test for

unavailability of a witness is whether the prosecution has made a good faith

effort to produce the live testimony of the witness and, through no fault of

its own, is prevented from doing so. Commonwealth v. Melson, 637 A.2d

633, 638 (Pa. Super. 1994). How far the prosecution must go to produce

the recalcitrant witness' testimony is a question of reasonableness. Id. It is

within the discretion of the trial court to determine what constitutes a good

faith effort to locate a missing witness and court’s decision will not be

overturned absent an abuse of discretion.        Commonwealth v. Douglas,

737 A.2d 1188, 1196 (Pa. 1999).

____________________________________________


8
    This prong is not challenged. Walker was represented by counsel.




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       Here, the Commonwealth attempted to locate Kelly on August 12,

2012, more than one year before trial commenced.       Police Officer Joseph

Porretta first attempted to serve a witness subpoena 9 on Kelly at his last

known address of record on North 57th Street in Philadelphia.       N.T. Trial,

10/31/13 at 67.         After remaining outside the residence for almost 90

minutes with no one answering the door, the officer went to a neighboring

house to ask if anyone had seen Kelly and went to a corner store owner to

inquire whether the owner had seen Kelly recently.     Id. at 68.    Over the

next fourteen months, officers attempted to locate Kelly in that vicinity

between 10-12 more times. Id. at 69. Not until one week before trial did

Officer Porretta speak to a woman who identified herself as Kelly’s

grandmother and told him Kelly had moved to Atlanta two months prior, but

she had no contact information for him. Id. at 71.

       Based upon the record evidence, we conclude that the court did not

abuse its discretion in determining that the Commonwealth made a good

faith effort to secure Kelly. At least 14 attempts were made to locate him at

and near his last known address, for more than 14 months, to no avail. See

Commonwealth v. Blair, 331 A.2d 213, 215 (Pa. 1975) (Act does not

require that Commonwealth establish witness has disappeared from face of
____________________________________________


9
  According to the trial court opinion, at the time of trial Kelly was also
subject to an active bench warrant for his involvement in a possession of
marijuana case.




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earth; it demands that Commonwealth make good faith effort to locate the

witness and fail).

      With regard to prong two of Rule 804, Walker claims that the defense

was not given the opportunity to fully and fairly cross-examine Kelly at the

preliminary hearing regarding his criminal history.         Specifically, Walker

asserts that defense counsel was not informed of the fact that at the time

Kelly was questioned by the police he was on parole and/or probation and

what effect this would have had on his statement implicating Walker in the

robbery. Walker claims that this fact was “vital impeachment evidence” that

should have been available to the defense in order to test the witness’s

veracity and bias, citing Commonwealth v. Bazemore, 614 A.2d 684 (Pa.

1992), to support his argument.

      In Bazemore, the defendant was charged with criminal attempt to

commit burglary. Defense counsel was unaware or had not been informed

at the preliminary hearing that:     (1) the sole Commonwealth witness had

made a prior inconsistent statement to the police; (2) the witness had a

criminal record; and (3) the D.A. was contemplating filing criminal charges

against the witness for homicide and conspiracy in connection with the same

criminal incident.   When the witness invoked his 5th Amendment right

against   self-incrimination   and   decided   not   to   testify   at   trial,   the

Commonwealth sought to admit his preliminary hearing testimony at trial.

The defendant argued that the witness’s statement was inadmissible

because he was denied a full and fair opportunity to cross-examine the

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witness during the preliminary hearing “due to the Commonwealth’s failure

to provide the defense with complete and vital information concerning [the

witness].” Id. at 685.

      Our Supreme Court determined that the defendant in Bazemore was

not given a “fair” opportunity to cross-examine the witness at the

preliminary hearing due to the Commonwealth’s failure to disclose relevant

impeachment evidence prior to the witness’s initial testimony. Id. at 686.

Since the defense was unaware of this relevant evidence at the preliminary

hearing, the Court held that no “indicia of reliability” could be attributed to

the defense’s cross-examination, especially where the Commonwealth

sought to admit that prior testimony as substantive evidence against the

defendant at trial and where the Commonwealth asserted that not admitting

that prior testimony would effectively bar prosecution of the defendant. Id.

at 687.

      The constitutional concerns and implications regarding the use of an

unavailable witness’s preliminary hearing testimony illustrated in Bazemore

are simply not present in the instant case. Here, the Commonwealth avers

in its brief that Kelly was not even on probation or parole at any relevant

time in the instant case. Commonwealth’s Brief, at 20. Moreover, the fact

that counsel for Walker did not have Kelly’s criminal extract at the

preliminary hearing was not prejudicial where Kelly’s recantation testimony

was favorable to the defense and, as such, it would not have been




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strategically sound to try to impeach Kelly on his credibility or bias through

cross-examination.

       While defense counsel objected to the admission of Kelly’s statement

as hearsay, N.T. Preliminary Hearing, 8/25/10, at 37-38, counsel did

extensively cross-examine him on why he initially implicated Walker, noted

that Kelly had just been released from jail, and asked Kelly if he identified

Walker because “he was scared because as a matter of face [sic] you were a

suspect in this robbery?”    Id. at 43-45.     Defense counsel continued to

pursue a line of questioning regarding Kelly being placed in a holding cell for

three days during the investigation of the instant robbery and whether fear

of being charged in the case was the reason why he identified Walker. Id.

at 44-45. See Nelson, supra (where defendant’s counsel fully challenged

witness’s credibility and potential bias based on available evidence, and

where additional evidence would not have substantially affected exploration

of witness’s credibility or bias during cross-examination, 6th Amendment and

due process rights not violated by admission of former testimony).

       Under these facts, we believe that Walker was given a full and fair

opportunity to cross-examine Kelly at the preliminary hearing and that

Kelly’s statement and preliminary hearing testimony were properly admitted

at trial.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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