J-S39032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellee                :
                                            :
              v.                            :
                                            :
KENNETH WILLIAMS,                           :
                                            :
                    Appellant               :           No. 2140 EDA 2014

     Appeal from the Judgment of Sentence entered on September 10, 2012
              in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0001587-2010;
               CP-51-CR-0003262-2010; CP-51-CR-0003265-2010;
                             CP-51-CR-0007274-2010

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED OCTOBER 14, 2015

        Kenneth Williams (“Williams”) appeals, nunc pro tunc, from the

judgment of sentence entered following his conviction of six counts each of

robbery and criminal conspiracy, and four counts of possessing an

instrument of crime “(PIC”).1 We affirm.

        In its Opinion, the trial court summarized the procedural and factual

history of this case, which we adopt as though fully restated herein.        See

Trial Court Opinion, 12/29/14, at 1-5.

        Williams presents the following claims for our review:

        I.    Is [Williams] entitled to an arrest of judgment with regard
              to his conviction for six counts of robbery, six counts of
              criminal conspiracy and four counts of [PIC] since the
              evidence is insufficient to sustain the verdicts of guilt as

1
    18 Pa.C.S.A. §§ 3701(a)(1)(i), 903, 907.
J-S39032-15


               the Commonwealth failed to sustain its burden of proving
               [Williams’s] guilt beyond a reasonable doubt?

      II.      Is [Williams] entitled to a new trial as a result of the
               pretrial [O]rder that granted the Commonwealth’s [M]otion
               to [C]onsolidate?

      III.     Is [Williams] entitled to an arrest of judgment since the
               trial court erred when it denied [Williams’s M]otion to
               dismiss pursuant to Pa.R.Crim.P. 600?

      IV.      Is [Williams] entitled to a new trial as a result of the trial
               court’s ruling that denied his request to redact a portion of
               the statements he gave to police?

Brief for Appellant at 5.

      Williams first challenges the sufficiency of the evidence underlying his

convictions.    Id. at 15.   Williams argues that “the testimony presented at

trial did not prove beyond a reasonable doubt that [he] was a co-conspirator

or accomplice to the crimes of robbery, criminal conspiracy or [PIC].” Id. at

20.   Williams contends that he was not identified by any Commonwealth

witness as being involved in the crimes. Id. Rather, Williams asserts, the

case against him violated the corpus delicti rule, as it was “almost

exclusively based on the statements he provided to police.” Id.

      In its Opinion, after setting forth the appropriate law, the trial court

thoroughly addressed Williams’s challenge to the sufficiency of the evidence

underlying each of his convictions, and concluded that they lack merit. Trial

Court Opinion, 12/29/14, at 6-11.        We agree with the sound reasoning of

the trial court, as set forth in its Opinion, and affirm on the basis of its

Opinion with regard to Williams’s first claim. See id.


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     Williams next claims that the trial court improperly granted the

Commonwealth’s Motion to Consolidate the charges against him.          Brief for

Appellant at 38. According to Williams, “[a] review of the facts of each of

the incidents shows that there are more differences than similarities that

would militate against consolidation.”   Id. at 42.    Williams contends that

“there is no evidence that each of the robberies is unique[,] or that the

evidence of each robbery would have been admissible in the trial of the

others to prove common plan or scheme by [Williams].”            Id.   Williams

acknowledges that at the hearing on the Commonwealth’s Motion, the

Commonwealth presented evidence that Williams allegedly drove his co-

conspirator to each location to commit the robbery; the crimes occurred

within a period of 31 days; the crimes occurred within a three-mile radius of

each other; the crimes occurred between 9:00 p.m. and 11:15 p.m.; and

each victim was robbed by the co-conspirator at gunpoint.           Id. at 45.

Notwithstanding, Williams asserts that the location, time manner and

circumstances of each crime was not unique, and did not exhibit a pattern

warranting consolidation. Id.

     “In reviewing a trial court decision to consolidate offenses for trial, our

standard is abuse of discretion.”   Commonwealth v. Thomas, 879 A.2d

246, 260 (Pa. Super. 2005).

     Offenses charged in separate informations may be tried together
     if they are “based on the same act or transaction” or if “the
     evidence of each of the offenses would be admissible in a
     separate trial for the other and is capable of separation by the


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      jury   so    that     there   is  no    danger   of  confusion.”
      [Pa.R.Crim.P.] 582(A)(1). The court has discretion to order
      separate trials if “it appears that any party may be prejudiced”
      by consolidating the charges. [Pa.R.Crim.P.] 583.

            Our Supreme Court has established a three[-]part test,
      incorporating these two rules, for deciding the issue of joinder
      versus severance of offenses from different informations. The
      court must determine

          whether the evidence of each of the offenses would be
          admissible in a separate trial for the other; whether such
          evidence is capable of separation by the jury so as to
          avoid danger of confusion; and, if the answers to these
          inquiries are in the affirmative, whether the defendant
          will be unduly prejudiced by the consolidation of offenses.

Thomas, 879 A.2d at 260 (some citations omitted).

      In its Opinion, the trial court addressed Williams’s challenge to the

consolidation of the charges for trial, and concluded that it lacks merit. Trial

Court Opinion, 12/29/14, at 11-12. We agree with the sound reasoning of

the trial court, as set forth in its Opinion, and affirm on this basis. See id.

      In his third claim, Williams argues that the trial court erred in denying

his Motion to Dismiss pursuant to Pa.R.Crim.P. 600. Brief for Appellant at

47. In particular, Williams disputes the trial court’s failure to attribute to the

Commonwealth the delay from November 2, 2009, to February 4, 2010. Id.

at 49. Williams asserts that during this time period, he was not transported

from Montgomery County to Philadelphia, as “February 4, 2010 was given as

the earliest possible day for a protracted room.” Id. Williams contends that

it is the Commonwealth’s responsibility to assure that he was transported to

Philadelphia. Id.


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      Williams states that during the June 16, 2010 scheduling conference,

he was given a trial date of January 13, 2011. Id. Williams argues that this

delay was not necessarily beyond the Commonwealth’s control, “since, as

previously stated, it is the Commonwealth’s obligation to assure that the

accused is tried within the time limitations of Rule 600.”     Id.   Therefore,

Williams claims, the trial court improperly determined “that the time frame

totaling 306 days was excusable delay[,] and that the Commonwealth

exercised due diligence in bringing [him] to trial.” Id.

      We review such claims according to the following principles:

            In evaluating Rule [600] issues, our standard of review of
      a trial court’s decision is whether the trial court abused its
      discretion. Judicial discretion requires action in conformity with
      law, upon facts and circumstances judicially before the court,
      after hearing and due consideration. An abuse of discretion is
      not merely an error of judgment, but if in reaching a conclusion
      the law is overridden or misapplied or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill will, as shown by the evidence or the record,
      discretion is abused.

             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.

            Additionally, when considering the trial court’s ruling, this
      Court is not permitted to ignore the dual purpose behind Rule
      [600]. Rule [600] serves two equally important functions: (1)
      the protection of the accused’s speedy trial rights, and (2) the
      protection of society. In determining whether an accused’s right
      to a speedy trial has been violated, consideration must be given
      to society’s right to effective prosecution of criminal cases, both
      to restrain those guilty of crime and to deter those
      contemplating it. However, the administrative mandate of Rule
      [600] was not designed to insulate the criminally accused from


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      good faith prosecution        delayed   through    no   fault   of   the
      Commonwealth.

             So long as there has been no misconduct on the part of
      the Commonwealth in an effort to evade the fundamental speedy
      trial rights of an accused, Rule [600] must be construed in a
      manner consistent with society’s right to punish and deter crime.
      In considering [these] matters ..., courts must carefully factor
      into the ultimate equation not only the prerogatives of the
      individual accused, but the collective right of the community to
      vigorous law enforcement as well.

Commonwealth v. Thompson, 93 A.3d 478, 486-87 (Pa. Super. 2014)

(citations omitted).

      Rule 600 provides, in relevant part, as follows:

      (A)     Commencement of Trial; Time for Trial

            (1) For the purpose of this rule, trial shall be deemed to
            commence on the date the trial judge calls the case to trial,
            or the defendant tenders a plea of guilty or nolo contendere.

            (2) Trial shall commence within the following time periods.

              (a) Trial 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.

                                        ***

      (C) Computation of Time


            (1) For purposes of paragraph (A), 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.



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      In its Opinion, the trial court addressed Williams’s claim and concluded

that it is without merit.        Trial Court Opinion, 12/29/14, at 12-14.

Specifically, the trial court determined that “the time frame totaling 306

days was excusable delay and the Commonwealth exercised due diligence in

bringing [Williams] to trial.” Id. at 14. We agree with the sound analysis

and conclusion of the trial court, as expressed in its Opinion, and affirm on

this basis. See id. at 12-14.

      Finally, Williams claims that the trial court improperly failed to redact a

portion of Williams’s statements to police.        Brief for Appellant at 51.

Specifically, Williams argues that the trial court should have redacted the

portion of his statement “that referenced other robberies for which he was

convicted in another jurisdiction or never charged or convicted.”            Id.

According to Williams, “[b]y allowing the Commonwealth to present

testimony concerning other robberies that [Williams] may have committed

resulted in the trial court’s permitting the jury to hear evidence of unrelated

criminal activity.” Id. at 52.

      The following standard governs our review of the admissibility of

evidence:

             Admission of evidence is within the sound discretion of the
      trial court and will be reversed only upon a showing that the trial
      court clearly abused its discretion. Admissibility depends on
      relevance and probative value. Evidence is relevant if it logically
      tends to establish a material fact in the case, tends to make a
      fact at issue more or less probable or supports a reasonable
      inference or presumption regarding a material fact.



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            Judicial discretion requires action in conformity with law,
      upon facts and circumstances judicially before the court, after
      hearing and due consideration. An abuse of discretion is not
      merely an error of judgment, but if in reaching a conclusion the
      law is overridden or misapplied or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill will, as shown by the evidence or the record,
      discretion is abused.

Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)

(quoting Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super.

2006) (en banc) (internal citations omitted)).

      In its Opinion, the trial court addressed this claim and concluded that

it lacks merit. Trial Court Opinion, 12/29/14, at 14-15. We agree with the

sound reasoning of the trial court, and affirm on the basis of its Opinion with

regard to this claim. See id.

      Additionally, we note the following.

      The harmless error doctrine, as adopted in Pennsylvania, reflects
      the reality that the accused is entitled to a fair trial, not a perfect
      trial.” We have described the proper analysis as follows:

            Harmless error exists if the record demonstrates either:
            (1) the error did not prejudice the defendant or the
            prejudice was de minimis; or (2) the erroneously
            admitted evidence was merely cumulative of other
            untainted evidence which was substantially similar to the
            erroneously admitted evidence; or (3) the properly
            admitted and uncontradicted evidence of guilt was so
            overwhelming and the prejudicial effect of the error was
            so insignificant by comparison that the error could not
            have contributed to the verdict.

Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014) (citations

omitted).


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     Here, the challenged statements are cumulative of other, previously

admitted evidence.   See Trial Court Opinion, 12/29/14, at 15 (citing N.T.,

1/26/12, at 8).   As such, our review discloses that any error by the trial

court was harmless. See Hairston, 84 A.3d at 671-72.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2015




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