J-S63033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                       v.

CKARON HANDY

                              Appellant                  No. 400 EDA 2015


              Appeal from the Judgment of Sentence January 14, 2015
          in the Court of Common Pleas of Bucks County Criminal Division
                         at No(s): CP-09-CR-0000504-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 18, 2016

        Appellant, Ckaron Handy, appeals from the judgment of sentence of

life plus two-and-one-half to five years’ imprisonment imposed after a jury

found him guilty of second-degree murder,1 robbery,2 and possessing

instruments of crime.3 He claims the trial court erred in denying his pre-trial

motion for discharge based on a pre-arrest delay. We affirm.

        Appellant’s conviction arises out of the fatal shooting of Kevin Battista

(“Decedent”) in the early morning hours of December 7, 2006.           Decedent

and Tiffany Calvanese were driving in Decedent’s truck in Bristol Township.

Decedent stopped in the Bloomsdale neighborhood, which was known as an

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(b).
2
    18 Pa.C.S. § 3701(a)(1)(i), (ii).
3
    18 Pa.C.S. § 907(b).
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open-air drug market.      At least two males approached Decedent’s vehicle,

and Decedent asked for “$60 worth.” The male by the driver’s window drew

a firearm and stated, “I’ll give you to the count of three.”            Decedent

attempted to drive away, and the male fired the weapon and killed

Decedent.

        The   lead   investigator,   Detective    Timothy   Fuhrmann,   received

information that the person who shot Decedent was wearing a dark jacket

with fur around the collar or hood. Additionally, at least one witness, Sandy

Wilson, identified the shooter as Jarrel Hopkins hours after the shooting.

Officer Dennis Leighton later reported that approximately fifteen minutes

before the shooting, he saw Appellant wearing a faux fur coat and Hopkins

wearing a dark jacket with fur lining.           In 2007, Wilson gave Detective

Fuhrmann a second statement identifying Hopkins.            Detective Fuhrmann,

however, did not believe Hopkins was a viable suspect.

        The police also received information that Appellant was the shooter,

including a report that Appellant admitted shooting Decedent.               The

Commonwealth presented its case to an investigating grand jury on April 16,

2009.    The grand jury recommended charges against Appellant on August

19, 2010.       More than two years later, on October 1, 2012, the

Commonwealth charged Appellant.            Appellant filed a pre-trial motion

challenging the pre-arrest delay.       The trial court deferred ruling on the

motion until the Commonwealth presented its case at trial.



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      A jury was empaneled on December 8, 2014, and trial commenced on

December 9, 2014. At trial, Calvanese described the shooting and testified

that the shooter was wearing a dark jacket with a fur-trimmed hood. N.T.

Trial, 12/9/14, at 228. She also testified that the shooter was the taller of

the two men who approached Decedent’s vehicle.            Id. at 225, 227.

Additionally, the Commonwealth called Jimmy Lee Cooper, James Williams,

and Omar Brooks,4 who were in the area around the time of the shooting.

N.T. Trial, 12/10/14, at 235; N.T. Trial, 12/11/14, at 54, 134. Cooper and

Williams stated that they saw Appellant near Decedent’s truck and later

heard a bang. N.T. Trial, 12/10/14, at 243-44, 249; N.T. Trial, 12/11/14, at

75-76.   According to Williams, Appellant gave him the gun used to kill

Decedent.5    N.T. Trial, 12/11/14, at 79.   Brooks testified he observed the

shooting, but did not know who the shooter was.       Id. at 149.   However,

Brooks stated that Appellant told him he killed Decedent. Id. at 150.

      When called by the Commonwealth, Wilson testified that she could not

recall the events of December 7, 2006, and did not remember giving

statements to the police.    N.T. Trial, 12/10/14, at 50-52.   Wilson denied


4
   As established by the trial evidence, the prosecution of this case was
difficult because many of the witnesses were either sellers or users of drugs.
Cooper, Williams, and Brooks also had significant criminal records or gave
statements implicating Appellant while facing unrelated charges.
5
  Williams stated he later shot another person in the same neighborhood
using the gun Appellant gave him. Williams pleaded guilty to voluntary
manslaughter.



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seeing anyone shoot Decedent.          Id. at 53-54.     Detective Fuhrmann,

however, testified that Wilson gave statements identifying Hopkins as the

shooter, but that he found her statements to be inconsistent and her

identification to be unreliable.   Id. at 117-19, 128-29, 131.   Hopkins also

testified at trial and denied any involvement in the shooting.      Id. at 60.

Appellant called Detective Fuhrmann to testify that a possible witness, Kyle

Page, who previously identified Appellant as the shooter, was incarcerated at

the time of the shooting. N.T. Trial, 12/12/14, at 20-21. Appellant did not

testify or present additional evidence.

       On December 12, 2014, the jury found Appellant guilty of second-

degree murder and the related offenses.       On January 14, 2015, the trial

court sentenced Appellant. Appellant timely appealed and complied with the

court’s order to submit a Pa.R.A.P. 1925(b) statement.

       Appellant’s sole claim on appeal is that the pre-arrest delay warranted

dismissal of the charges against him. See Appellant’s Brief at 4. He asserts

“that the delay was the product of intentional, bad faith, or reckless conduct

by the prosecution” that resulted in “the loss of critical defense testimony

through memory” and “meaningfully impaired . . . his ability to defend

against the charges.”    See id. at 8-10.    In support, Appellant notes that

Wilson identified Hopkins as the shooter shortly after the incident, but was

unable to recall the shooting when she testified at trial. See id. No relief is

due.



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      “A trial court’s conclusion that pre-arrest delay was reasonable under

the facts of a particular case is within the discretion of the trial judge. We

will reverse only if there is insufficient evidence in the record to support the

lower court’s determination.”     Commonwealth v. Montalvo, 641 A.2d

1176, 1182 (Pa. Super. 1994) (citations omitted).

            To prevail on a claim of violation of due process based
         on pre-arrest delay, a defendant must first establish that
         the delay caused him actual prejudice.                 See
         Commonwealth v. Louden, 569 Pa. 245, 250, 803 A.2d
         1181, 1184 (2002).      In Louden, our Supreme Court
         explained that

            [i]n order for a defendant to show actual prejudice,
            he or she must show that he or she was
            meaningfully impaired in his or her ability to defend
            against the state’s charges to such an extent that
            the disposition of the criminal proceedings was likely
            affected.     This kind of prejudice is commonly
            demonstrated by the loss of documentary evidence
            or the unavailability of a key witness. It is not
            sufficient for a defendant to make speculative or
            conclusory claims of possible prejudice as a result of
            the passage of time.       When a defendant claims
            prejudice through the absence of witnesses, he or
            she must show in what specific manner missing
            witnesses would have aided the defense. . . .
            Furthermore, it is the defendant’s burden to show
            that the lost testimony or information is not available
            through other means.

Commonwealth v. Tielsch, 934 A.2d 81, 91-92 (Pa. Super. 2007) (some

citations omitted).

      Following our review, we concur with the trial court’s determination

that Appellant did not establish actual prejudice. See Trial Ct. Op., 12/8/15,

at 12. Appellant had available Wilson’s prior statements implicating Hopkins


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and was able to use those statements during his cross-examination of

Detective Fuhrmann. See N.T., 12/10/14, 190-194. Thus, the information

that Appellant claims was lost was available through other means, and he

has not established that he “was meaningfully impaired in his . . . ability to

defend against the state’s charges to such an extent that the disposition of

the criminal proceedings was likely affected.” See Tielsch, 943 A.2d at 92.

      Accordingly, we discern no error or abuse of discretion in the trial

court’s denial of Appellant’s pre-trial motion for discharge based on the pre-

arrest delay. As Appellant’s only claim on appeal does not warrant relief, we

must affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2016




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