J-S76035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    DWAYNE SMITH,

                             Appellant                No. 2687 EDA 2016


             Appeal from the Judgment of Sentence August 1, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0009240-2015


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 14, 2018

        Appellant, Dwayne Smith,1 appeals from the judgment of sentence

imposed following his bench trial conviction of robbery and related offenses.

The sole question raised on appeal asserts that the trial court deprived

Appellant of the opportunity to present evidence of his alibi defense. Appellant

concedes he failed to provide proper notice of an alibi defense, but claims the

court’s preclusion of alibi testimony deprived him of his constitutional due

process rights. We affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   Appellant’s name is also spelled (or misspelled) “Dawyne” in the record.
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       Appellant and a cohort robbed a married couple at gunpoint. Appellant

and his then-girlfriend had previously lived together with the victims as

roommates. Appellant testified that he knew the victims would withdraw cash

from their social security deposit accounts on the first day of the month. He

used to take them to the ATM machine. (See N.T. Trial, 3/18/16, at 112).

The two robbers threatened to kill the victims until the wife gave up $900.

The victims identified Appellant as one of their assailants.

       Pertinent to the issue on appeal, Appellant testified in his own defense.

He denied that he was in the apartment building on July 1, 2015, the day of

the robbery. Instead, he claimed that he was at Broad and Olney, “grind[ing]”

and “hustling.” (Id. at 108).2 At this point, the trial court judge asked, “Is

there an alibi defense?” Defense counsel answered, “No, Your Honor.” (Id.)

(emphasis added).

       A short while later, on cross-examination, Appellant conceded that he

had no one who could support his claim that he was at Broad and Olney on

the day of the robbery: “Ain’t no nobody (sic) here for me.” (Id. at 109).

       At this point, defense counsel objected. (See id.). The trial court then

asked: “Just as an alibi, is he claiming to have been some place else when this

happened?” (Id.)


____________________________________________


2 The intersection of Broad Street and Olney Avenue is a busy commercial and
transportation center about 1.2 miles away from the 6600 block of Ogontz
Avenue, the scene of the crime. See Pa.R.E. 201(b).


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       Defense counsel replied: “Yes, Your Honor.” (Id.). (emphasis added).

       The court asked: “Well when are you going to get into that?        I am

striking all of that. Was there notice of any of that?” (Id.).

       The prosecutor responded: “No, there was no notice.” (Id.). The court

replied: “All right. So [forget] it. It didn’t happen. Stricken.”

       Defense counsel replied: “Yes, sir.” (Id.). (emphasis added).

       Following the bench trial, the court found Appellant guilty of two counts

of robbery, conspiracy to commit robbery, two counts of burglary, two counts

of theft by unlawful taking, two counts of receiving stolen property, one count

of possession of an instrument of crime, two counts of terroristic threats, two

counts of simple assault, two counts of recklessly endangering another person

(REAP), and two counts of criminal trespass.3

       On August 1, 2016, the court imposed an aggregate sentence of not less

than eleven-and-one-half years nor more than twenty-five years of

incarceration followed by five years of probation.4         This timely appeal

followed.5

____________________________________________


3At sentencing, the court acquitted Appellant of one count (each) of burglary,
REAP, and trespass. The court also reduced the grade of the remaining count
of criminal trespass to a felony of the third degree.

4 The sentencing court found that the other convictions merged for purposes
of sentencing; no further penalty was imposed.

5 Appellant filed a timely statement of errors on January 4, 2017. The trial
court filed an opinion on February 13, 2017. See Pa.R.A.P. 1925. We note



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       On appeal, Appellant presents one question for our review:

              Did the [trial] court err in precluding [A]ppellant from
       testifying about an alibi in violation of Pennsylvania Rule of
       Criminal procedure (sic) 567, and in violation of his state and
       federal due process right to present a defense, even though he
       failed to provide notice of the defense?

(Appellant’s Brief, at 3).

             [The] standard of review on a trial court’s ruling on the
       admissibility of evidence is limited. Evidentiary questions are left
       to the sound discretion of the trial court, and this Court will
       reverse only upon a showing that the trial court abused its
       discretion. 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. Spiewak, 617 A.2d 696, 699, n.4 (Pa. 1992) (citations

omitted).

       “An alibi is a defense that places the defendant at the relevant time in

a different place than the scene involved and so removed therefrom as to

render it impossible for him to be the guilty party.” Commonwealth v.

Hawkins, 894 A.2d 716, 717 (Pa. 2006) (citations and internal quotation

marks omitted) (emphasis added). Pennsylvania Rule of Criminal Procedure

567 provides, in pertinent part, as follows:

              (B) Failure to File Notice.



____________________________________________


that Appellant chose to abandon his challenge to the weight of the evidence.
(See Appellant’s Brief, at 3 n.1).


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            (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.

Pa.R.Crim.P. 567(B).

      Alibi notice statutes and rules such as Rule 567 in Pennsylvania, are

designed to prevent surprise to the prosecution at trial by providing an

opportunity to investigate the defendant’s alibi, reducing the likelihood that a

fabricated alibi will result in an unwarranted acquittal. Requiring notice of an

intent to rely on an alibi defense before trial advances the orderly, efficient

administration of justice by avoiding the interruption of trials for the

Commonwealth to investigate a surprise alibi defense.

      Here, our independent review of the record confirms that when

Appellant first claimed that he was at Broad and Olney on the day of the

robbery, the trial court properly inquired whether Appellant was presenting an

alibi defense. (See N.T. Trial, at 108). Defense counsel denied it. (See id.).

      It was only when defense counsel objected to the prosecutor’s question

on cross-examination (about any witnesses to support Appellant’s claim that

he was at Broad and Olney), that the trial court inquired further, asking if

Appellant claimed to have been some place else. (See id. at 109). This time,

defense counsel did a complete reversal, and asserted the alibi defense after

all. (See id.).


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      We read the trial court’s ruling as responsive to that turnabout assertion

of an alibi defense, not to the preceding colloquy where, after denial of an alibi

defense, an evidentiary ruling would have been unnecessary and irrelevant.

The trial court first permitted Appellant’s own testimony (protecting his due

process rights), but properly exercised its discretion in excluding any

reference to an alibi once it became clear that Appellant had failed to give

proper notice and had no other evidence to support his vague, generalized

claim.

      Further, Appellant waived his claim by failing to make a timely, specific

objection to the trial court. When the court ruled that alibi evidence would be

stricken for failure of timely notice, defense counsel replied, “Yes, sir.” (N.T.

Trial, 3/18/16, at 109.). “[T]he failure to make a timely and specific objection

before the trial court at the appropriate stage of the proceedings will result in

waiver of the issue.” Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.

Super. 2016), appeal denied, 165 A.3d 895 (Pa. 2017) (citation omitted). See

also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).

      Moreover, the claim would not merit relief.

             The right to present evidence of an alibi and to receive a
      jury instruction therefrom, however, is not absolute. In order to
      obtain this right, a defendant must comply with the notice
      requirement set forth in Rule 305 [now Rule 567] of the
      Pennsylvania Rules of Criminal Procedure. Rule [567] provides
      that if a defendant intends to offer the defense of alibi at trial, the
      defendant must file of record notice prior to trial with the
      prosecuting attorney.      Such notice must contain specific

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      information as to the place or places where defendant claims to
      have been at the time of the alleged offense and the names and
      addresses of witnesses whom the defendant intends to call in
      support of such claim. Pa.R.Crim.P. [567].

Commonwealth v. Poindexter, 646 A.2d 1211, 1218–19 (Pa. Super. 1994),

appeal denied, 655 A.2d 512 (Pa. 1995) (footnote omitted) (emphasis added).

      It is well settled that in Pennsylvania, a defendant seeking to present an

alibi defense must give appropriate notice, to enable the Commonwealth to

investigate the claim and make a meaningful response. See id.; see also

Pa.R.Crim.P. 567; Commonwealth v. Lyons, 833 A.2d 245, 250 (Pa. Super.

2003), appeal denied, 879 A.2d 782 (Pa. 2005) (failure to provide timely

notice inexcusable; witnesses noticed two days after trial began properly

excluded); Commonwealth v. Zimmerman, 571 A.2d 1062, 1066-67 (Pa.

Super. 1990), appeal denied, 600 A.2d 953, (Pa. 1991), cert. denied, 503 U.S.

945 (1992) (alibi evidence noticed on first day of trial properly excluded).

      Accordingly, Appellant’s claim is waived, and would not merit relief.

Although our reasoning differs somewhat from that of the trial court, we may

affirm if there is any basis on the record to support the trial court’s decision.

See Poindexter, supra at 1221.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/18




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