J-A06021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDRAS CARRASQUILLO                         :
                                               :
                       Appellant               :   No. 1250 MDA 2018

        Appeal from the Judgment of Sentence Entered January 25, 2018
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0001763-2016


BEFORE:      OTT, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 12, 2019

        Appellant Edras Carrasquillo appeals from the judgment of sentence

entered following his convictions for first-degree murder, third-degree

murder, and possession of a firearm prohibited.1 Appellant asserts that the

trial court erred by failing to provide the jury with a “progression charge”

related to the charges of murder in different degrees against him. We affirm.

        The trial court summarized the relevant background to this matter as

follows:

        On May 10, 2016, [Appellant] murdered Andrew Enimpah by firing
        13 bullets into his head and back. After lengthy pre-trial delays,
        a trial was held on the week of December 4, 201[7]. Following a
        guilty verdict, this [c]ourt conducted a [s]entencing [h]earing in
        this matter on January 24, 2018[, and filed the order regarding
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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2502(a), (c), and 6105(a)(1), respectively.
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       the judgment of sentence on January 25, 2018]. On Count 1
       ([f]irst[-d]egree [m]urder), we imposed the mandatory sentence
       of life in prison. We declared that the jury’s verdict of [t]hird[-
       d]egree [m]urder merged with Count 1 and we did not impose a
       sentence upon [Appellant] for [t]hird[-d]egree [m]urder. On the
       firearms offense, we imposed a 4-10 year sentence to be served
       consecutive to [Appellant’s] sentence of life in prison.

       Subsequently, [Appellant] filed a Motion for Post-Sentence Relief
       on February 5, 2018. In his Motion, [Appellant] argued that the
       jury’s verdict was inconsistent and that the Court erred by not
       giving the jury a “progression charge.”           After numerous
       extensions, [Appellant] finally filed his brief on June 29, 2018.
       These two issues were addressed in this [c]ourt’s [order and
       o]pinion dated July 9, 2018[, in which the trial court denied
       Appellant’s post-sentence motions].

Trial Ct. Op., 9/12/18, at 1-2.

       Appellant filed a timely notice of appeal to the order of July 9, 2018.2

The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement and

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2  Appellant filed timely post-sentence motions on February 5, 2018. If the
defendant files a timely post-sentence motion, the notice of appeal shall be
filed within 30 days of the entry of the order deciding the motion. Pa.R.Crim.P.
720(A)(2)(a). Here, however, the trial court did not rule on the motions until
after 120 days elapsed, at which point the motions should have been denied
by operation of law. See Pa.R.Crim.P. 720(B)(3)(a). When the motion is
deemed denied by operation of law, the clerk of courts shall enter an order
deeming the motion denied on behalf of the trial court and serve copies on
the parties. Pa.R.Crim.P. 720(B)(3)(c). The notice of appeal shall be filed
within 30 days of the entry of the order denying the motion by operation of
law. Pa.R.Crim.P. 720(A)(2)(b).

In this matter, the date the post-sentence motions should have been denied
by operation of law fell on June 5, 2018. Appellant’s notice of appeal, filed on
July 24, 2018, was untimely. However, the clerk of courts did not enter an
order denying the post-sentence motions by operation of law and the trial
court denied the motions on the merits, indicating that Appellant had thirty
days from July 9, 2018, in which to file a notice of appeal. Accordingly, we
will consider the order denying Appellant’s post-sentence motions outside the



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Appellant timely complied.         The trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a) on September 12, 2018, in which the court referred to its

opinion of July 9, 2018. The court noted that

       no request for a progression charge was submitted by
       [Appellant’s] counsel, nor did [Appellant’s] attorney object to the
       charge on the basis that a progression instruction was omitted.
       Pennsylvania [l]aw is clear that failure to object to a specific
       charge or omission in a charge waives the right to pursue that
       argument on appeal.

       By requiring that the jury completely analyze all elements of every
       crime charged, this [c]ourt did not err.

Trial Ct. Op., 7/9/18, at 15-16.

       On appeal, the sole question Appellant raises is: “Did the trial court

abuse its discretion when it failed to issue a progression charge to the jury,

which resulted in an inconsistent verdict?” Appellant’s Brief at 6.

       Appellant argues that “to clarify issues for the jury, one method

employed by the court has been to direct the jury to consider at the outset

the most serious form of the offense with which the defendant has been

charged.”    Id. at 17.     “In the instant case, had the trial court provided a

progression charge, the verdict of guilty of first degree murder would have

ended the jury’s deliberations as to the charge of third-degree murder.” Id.

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120-day period to be a breakdown in court operations and will not quash the
instant appeal. See Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa.
Super. 2007) (noting that this Court has “found a breakdown where the clerk
of courts did not enter an order notifying the appellant that his post-sentence
motion was denied by the operation of law”).



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at 19. “[B]ecause the jury was charged with evaluating multiple degrees of

homicide the trial court erred by failing to issue the appropriate progression

charge. Had a progression charge been issued, any jury confusion would have

been alleviated and the resulting inconsistent verdict could have been

avoided.” Id. at 21.

      As an initial matter, we note that Appellant’s trial counsel did not request

a progression charge or object to the jury instructions the trial court provided.

Accordingly, Appellant has waived any objection to the failure to issue a

progression charge. See Pa.R.A.P. 302(b) (“A general exception to the charge

to the jury will not preserve an issue for appeal. Specific exception shall be

taken to the language or omission complained of.”).

      Even if we were to consider whether it was error to fail to provide a

progression charge, Appellant’s claim is without merit.

      Our standard of review when considering the denial of jury
      instructions is one of deference—an appellate court will reverse a
      court’s decision only when it abused its discretion or committed
      an error of law. Our key inquiry is whether the instruction on a
      particular issue adequately, accurately and clearly presents the
      law to the jury, and is sufficient to guide the jury in its
      deliberations.

Commonwealth v. Cannavo, 199 A.3d 1282, 1286 (Pa. Super. 2018)

(citations, brackets, and quotation marks omitted). In Commonwealth v.

Hart, 565 A.2d 1212 (Pa. Super. 1989), we noted that “one method by which

the court may choose to clarify issues for the jury is to direct the jury to

consider at the outset the most serious form of the offense with which the

defendant has been charged.” Hart, 565 A.2d at 1216 (emphasis added).

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J-A06021-19



       Here, Appellant does not provide, and we are not aware of any, case

law that requires a progression charge to be given in a case involving charges

for multiple degrees of murder. In Hart, a progression charge is described as

merely one way in which to instruct a jury, but not the only way to do so. See

id. In the instant case, the trial court properly instructed the jury on the

elements of the crimes charged, and because there is no basis to conclude

that the absence of the progression charge led to confusion, the trial court did

not err.3 See Cannavo, 199 A.3d at 1286.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/12/2019




____________________________________________


3 Additionally, as to Appellant’s contention that the verdict of first-degree and
third-degree murder is inconsistent, it is well established that a jury’s
conviction of both first- and third-degree murder is not inconsistent. See
Commonwealth v. Young, 748 A.2d 166, 174-75 (Pa. 1999) (noting that a
conviction of first-degree murder requires a finding of specific intent to kill
while a conviction of third-degree murder does not address intent, and a
simultaneous verdict of each is not inconsistent). Accordingly, were we to
consider the merits of Appellant’s claim in the instant matter, we would
conclude that his convictions for both degrees of murder were not
inconsistent.


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