J-A14027-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                   v.

KAZAIR GIST

                        Appellant                   No. 1370 EDA 2014


        Appeal from the Judgment of Sentence December 16, 2013
              In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0003596-2012


BEFORE: BENDER, P.J.E., BOWES AND SHOGAN, JJ.

MEMORANDUM BY BOWES, J.:                    FILED SEPTEMBER 25, 2017

     Kazair Gist appeals from the judgment of sentence of fifty-two to one-

hundred-and-four   years   imprisonment   that    the   court   imposed   after

Appellant’s conviction for criminal homicide, robbery, conspiracy to commit

robbery, burglary, conspiracy to commit burglary, and possession of an

instrument of crime. We affirm.

     The pertinent facts are as follows. On December 28, 2011, Appellant,

Jermaine Jackson, Breon Powell, Tatyana Henderson, and Danasia Bakr

traveled from Trenton, New Jersey to Levittown, Bucks County, in order to

rob Daniel DeGennaro at gunpoint. While casing Mr. DeGennaro’s residence,

Ms. Henderson placed a call to a phone number listed on a sign advertising

the sale of a used-car which was parked in the rear of Mr. DeGennaro’s
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home.   Unbeknownst to the group, Mr. DeGennaro allowed a neighbor to

park the car in his back driveway. Ms. Henderson made contact with Mr.

DeGennaro’s neighbor, Nicholas Miller, and feigned interest in the car.

      Shortly thereafter, Appellant, Mr. Jackson, and Mr. Powell entered Mr.

DeGennaro’s home.      Ms. Henderson operated as a look-out, and Ms. Bakr

remained in the car.    The three men entered Mr. DeGennaro’s residence

armed with a shotgun and a nine millimeter handgun, and intended to

recover money that the victim purportedly owed to Mr. Jackson.       During a

scuffle, the conspirators fired two shots at Mr. DeGennaro, striking him once.

Mr. DeGennaro perished from the gunshot.       The three men fled from the

scene, met with the women, and returned to New Jersey.

      An investigation ensued. Mr. Miller reported to police that he received

a strange phone call regarding the used vehicle parked in Mr. DeGennaro’s

backyard shortly before his death.    Investigating officers reviewed phone

records and call logs and established that Ms. Henderson had placed the call

to Mr. Miller from an area within 300 yards of Mr. DeGennaro’s house.       A

review of Ms. Henderson’s phone records also indicated that she had

communicated with Ms. Bakr and Mr. Jackson around the time of the

incident. Further investigation placed those phones, as well as Mr. Powell’s

and Appellant’s phone, in close vicinity to Mr. DeGennaro’s home at the time

in question. Eventually, the police utilized wiretaps to monitor the cellular

handsets associated with Ms. Henderson, Ms. Bakr, and Mr. Jackson wherein

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they recorded evidence of the murder and attempted cover up.        Ms. Bakr

also made statements to police implicating herself, Ms. Henderson, Mr.

Jackson, Mr. Powell, and Appellant, in the shooting death of Mr. DeGennaro.

      Appellant was arrested on March 29, 2012. On August 10, 2012, he

filed an omnibus pre-trial motion seeking, in part, the suppression of wiretap

evidence obtained by the Commonwealth. Following numerous hearings, the

trial court denied that motion.    After an extended trial, a jury acquitted

Appellant at count one of conspiracy to commit criminal homicide, and found

him guilty of the aforementioned offenses.      On December 16, 2013, the

court imposed an aggregate sentence of fifty-two to one-hundred-and-four

years incarceration. On December 18, 2013, at the request of both parties,

the trial court filed an order amending its sentencing sheet since it

erroneously sentenced Appellant at count one, for which he had been

acquitted, instead of at count two, as it intended.

      Appellant filed a post-sentence motion on December 27, 2013, and

following a hearing on April 3, 2014, the court denied that motion. Appellant

filed a notice of appeal to this Court, and he complied with the trial court’s

directive to file a Rule 1925(b) concise statement of errors complained of on

appeal. The court filed a Rule 1925(a) opinion, which largely relied upon its

reasoning from its opinion filed with the companion case to this appeal,

Commonwealth v. Powell, 1312 EDA 2014, (Pa.Super. 2017, filed __,

2017). This matter is now ready for our review.

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      Appellant presents three questions for our consideration:

      1. Did the suppression court err by refusing to suppress the
         contents of a wiretap investigation, where the Commonwealth
         conceded that it failed to minimize any text messages, and
         also failed to minimize between two hundred and three
         hundred calls, such that the wiretap investigation constituted
         an impermissible general search under the U.S. and
         Pennsylvania Constitutions?

      2. Did the trial court err by allowing the Commonwealth to
         introduce evidence that [Appellant] possessed a handgun,
         where the Commonwealth itself conceded that it had no
         evidentiary link between the handgun and the crime?

      3. Did the trial court err by failing to strike purported “expert”
         testimony about cell phone tower coverage where the
         supposed “expert” failed to consider factors that he said were
         necessary to form an opinion, and where said “expert” failed
         to testify to a reasonable degree of scientific or engineering
         certainty?

Appellant’s brief at 4.

      At the outset, we must determine whether this matter is properly

before us. The Commonwealth contends that this matter should be quashed

due to Appellant’s failure to file a timely post-sentence motion, and by

extension, a timely notice of appeal.      The Rules of Criminal Procedure

require a written post-sentence motion to be filed “no later than 10 days

after imposition of sentence.” Pa.R.Crim.P. 720(a)(1). The filing of a timely

post-sentence motion tolls the period in which a party has to file a notice of

appeal.    Pa.R.Crim.P. 720(a)(2).    However, an untimely post-sentence

motion does not operate to toll the period to file a timely notice of appeal,




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even if the trial court holds a hearing or otherwise takes action on the

motion. See Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super. 2003).

      Here, the court imposed Appellant’s sentence in open court on

December 16, 2013. Two days later, on December 18, 2013, the court filed

an amended sentencing sheet at the request of both parties, since it had

erroneously sentenced Appellant at count one, for which he had been

acquitted, and not count two, as it intended. Appellant filed his post-

sentence motion on December 27, 2013.           Thereafter, the court denied

Appellant’s post-sentence motion on April 3, 2014, and Appellant filed a

notice of appeal to this Court on April 24, 2014.

      The Commonwealth argues that Appellant’s notice of appeal was

untimely filed since he filed his post-sentence motion on December 27,

2013, which was eleven days after his imposition of sentence in open court.

Thus, under the Commonwealth’s reasoning, Appellant’s post-sentence

motion was untimely, and he had thirty-days to file a notice of appeal to this

court, that is, until January 15, 2014. As Appellant did not file a notice of

appeal until April 24, 2014, the Commonwealth concludes that his appeal

was patently untimely, and this matter should be quashed.

      Appellant counters this argument by alleging that the court imposed

his sentence on December 18, 2013, when it filed the amended sentencing

sheet.   He maintains that his post-sentence motion was therefore timely

filed nine days following his imposition of sentence. Thus, he posits that his

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subsequent notice of appeal was timely filed within the thirty-day period

dictated by Pa.R.Crim.P. 720(a)(2).

      Generally, “time commences to run in the sentencing context when

sentence is imposed, i.e., from the date sentence is pronounced in open

court.”   Commonwealth v. Duffy, 143 A.3d 940, 942 (Pa.Super. 2016).

Here, however, the sentence imposed in open court at count one, on

December 16, 2013, was a legal nullity since Appellant had been acquitted

of that offense. Simply, the trial court had no power to sentence him at that

count.    Under these circumstances, Appellant’s sentence was imposed on

December 18, 2013, when the court filed its amended sentencing sheet

correcting its error. As such, we find that Appellant’s post-sentence motion

was timely filed, and thus this matter is properly before us.

      Turning to the merits of this appeal, we note preliminarily that we

disposed of issues nearly identical to Appellant’s first and third claimed

errors in the companion case to this matter involving Appellant’s co-

defendant.    See Powell, supra, (finding wiretap minimization plan was

reasonable, Commonwealth did not materially deviate from minimization

plan, and thus, trial court did not err in denying Appellant’s motion to

suppress; and, finding that trial court did not err in permitting expert




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testimony regarding cell phone tower coverage) at *23-39. For the reasons

outlined therein, we find that Appellant is not entitled to relief.1

       Appellant’s second issue alleges that the trial court erred in permitting

the Commonwealth to offer evidence that a nine millimeter handgun was

recovered from Appellant’s bedroom during a search of his residence. The

admissibility of evidence is a matter left to the sound discretion of the trial

court. Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017). We do

not disturb evidentiary rulings absent an abuse of that discretion.         Id.

Moreover, we have previously held that “[a] weapon not ‘specifically linked’

to the crime is generally inadmissible; however, the fact that ‘the accused

had a weapon or implement suitable to the commission of the crime charged

. . . is always a proper ingredient of the case for the prosecution.”

Commonwealth v. Christine, 125 A.3d 394, 400 (Pa. 2015) (citation

omitted). Further, “[a]ny uncertainty that the weapon is the actual weapon
____________________________________________


1
   Appellant’s claim that the court erred in failing to suppress wiretap
evidence gathered against him includes an additional argument that the
Commonwealth failed to minimize text messages sent and received by the
wiretap targets. Although this particular claim was not directly disposed of
in our analysis in the companion case, we do not find Appellant’s argument
persuasive. From a practical standpoint, it is unclear how a text message
could be “minimized,” as the contents of such a message are either read or
not read by the monitoring officers. In order to determine whether the
message is pertinent to the investigation, the message must be read.
Appellant offers no argument as to how a text message should or could be
minimized for the purposes of the Wiretapping and Electronic Surveillance
Control Act, and we cannot fathom a procedure for doing so. Thus, we are
not persuaded by Appellant’s reasoning in this regard.



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used in the crime goes to the weight of the evidence.”      Id.   In order to

harness the exception, “the prosecution [must] lay a foundation that would

justify an inference by the finder of fact of the likelihood that the weapon

was used in the commission of the crime.” Id.

     The trial court determined that the nine millimeter handgun was

admissible pursuant to the so-called “similar weapon exception.” Christine,

supra. The court noted that the firearm was discovered during a search of

Appellant’s residence, and that the search uncovered other evidence tying

Appellant to the handgun and Mr. DeGennaro’s murder. It highlighted trial

testimony proffered by the Commonwealth’s firearm and tool mark expert,

John Finor, which discussed a nine millimeter firing cartridge and a bullet

slug discovered at the scene of the crime.    The court recognized that Mr.

Finor was unable to connect the slug or cartridge to the weapon discovered.

Nevertheless, it found that the nine millimeter handgun recovered from

Appellant’s room “might have been used on the night of the murder.” Trial

Court Opinion, 1/22/16, at 77. Thus, the court held that the handgun was

properly admitted into evidence.

     Appellant assails the trial court’s ruling, arguing that the evidence

proffered by the Commonwealth did not justify the inference that the

handgun was used in the commission of the crime. He argues that Mr. Finor

failed to link either the slug or the cartridge to the gun retrieved from the

search of Appellant’s residence. Further, he insists that the slug could not

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be definitively linked to the nine millimeter cartridge casing.      Appellant

distinguishes this case from Commonwealth v. Brown, 71 A.3d 1009

(Pa.Super. 2013), where we affirmed the admission of a .22 caliber weapon

where it was undisputed that the fatal bullet was fired from a .22 caliber

gun, and the bullet recovered shared characteristics with a test-bullet fired

from the disputed evidence. He asserts that, unlike in Brown, Mr. Finor’s

testimony only created a speculative connection to the firearm recovered

from Appellant’s room. Finally, Appellant contends that, even if the gun was

relevant, its probative value was outweighed by the danger of unfair

prejudice since it portrayed Appellant as an individual who “wields firearms.”

Appellant’s brief at 21. As a result of this error, Appellant argues that he

should be granted a new trial.

      We find that the trial court did not abuse its discretion in permitting

the Commonwealth to offer evidence of the nine millimeter handgun

discovered in Appellant’s bedroom since the Commonwealth laid a sufficient

foundation that would justify an inference by the fact-finder that it was used

during Mr. DeGennaro’s murder.          Christine, supra.       Instantly, the

Commonwealth proffered evidence that a nine millimeter bullet casing was

discovered in proximity to the victim. Further, it offered evidence of a bullet

slug which was recovered from a nearby wall.       Mr. Finor opined that the

projectile fell within the “9 millimeter/38 class,” and that it could be fired

from a nine millimeter handgun.     N.T. Trial, 9/9/13, at 254.    Further, he

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stated that the cartridge recovered from the crime scene was a nine

millimeter firing cartridge, and that it “could have been fired from a variety

of different firearms[.]” N.T. Trial, 9/10/13, at 49. Nevertheless, Mr. Finor

conceded that he could not match the bullet to the cartridge. Id. at 74.

      The Commonwealth’s evidence of a nine millimeter cartridge in the

kitchen and a slug lodged in a nearby wall tended to show that a nine

millimeter weapon was employed in the shooting of the victim.               That Mr.

Finor could not definitely link these items to each other goes to the weight of

the handgun evidence recovered from Appellant’s residence, not its

admissibility.   Christine, supra.   Indeed, we recognized this principle in

Brown, supra, noting

      A weapon shown to have been in a defendant’s possession may
      properly be admitted into evidence, even though it cannot
      positively be identified as the weapon used in the commission of
      a particular crime, if it tends to prove that the defendant had a
      weapon similar to the one used in the perpetration of the crime.
      Any uncertainty that the weapon is the actual weapon used in
      the crime goes to the weight of such evidence.

Brown, supra at 1014 (citing Commonwealth v. Williams, 640 A.2d

1251, 1260 (Pa. 1994)).

      Insofar    as   the   Commonwealth      proffered   evidence   that    a   nine

millimeter firearm could have been used in the commission of the crime,

and that evidence was highly probative of Appellant’s participation in the

crime, the trial court did not abuse its discretion in subsequently permitting




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it to offer evidence of the nine millimeter firearm discovered in Appellant’s

bedroom. Hence, this claim fails.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2017




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