J-S42003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    SHARIFF L. LAYTON                      :
                                           :
                     Appellant             :   No. 1116 MDA 2017

             Appeal from the Judgment of Sentence June 13, 2017
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0007165-2015


BEFORE:     BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                        FILED SEPTEMBER 19, 2018

       Shariff Layton appeals from the judgment of sentence of twenty-five to

fifty years imprisonment imposed after a jury convicted him of robbery. We

affirm.

       The trial court offered the following summary of the evidence offered at

Appellant’s trial.

             On January 28, 2011, the MidPenn Bank on North Front
       Street in Harrisburg was robbed. A man entered the building
       around 10:30 and was fully concealed. Tellers believed he was
       male based on his size, stature and voice. He handed two bags
       to each of the two tellers at their registers and then walked behind
       the teller line and opened a third teller register and took money
       from there. He took money that was attached to dye packs. He
       was wearing a black hoodie with a white logo on it. The man left
       with the bags of money and one teller followed him and locked the
       bank doors. The tellers then alerted authorities.

             Corporal Minier was dispatched to the scene, along with
       several other officers. He assisted in setting up a perimeter and
       then received information of a crashed vehicle just south of the


*    Retired Senior Judge assigned to the Superior Court.
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     bank. About two or three car lengths [from] the parking lot, a
     small red sedan was crashed with a broken window and red smoke
     coming out of the car. It appeared to be from a dye pack.

           It had recently snowed that day. A K-9 officer, Reno, was
     called in and [Corporal] Minier, Officer Hawkins, and Reno began
     to track from the vehicle. The officers saw footprints outside the
     driver’s side of the car that they used to start the track. They
     tracked through some streets and alleys until the dog lost the
     scent on Second Street. While tracking between some houses,
     they did find an area of snow that was red which they believed
     was from the dye pack. During the course of the investigation,
     they discovered that the crashed vehicle had been stolen
     previously. They inspected the vehicle and found a screwdriver,
     presumably used to pop the ignition, pillow cases, and the money
     covered in red dye.

           Later that day, Deputy United States Marshall Gary Duncan
     received a phone call from an informant regarding the bank
     robbery. [Marshall] Duncan, in turn, relayed that information to
     Detective Gibney.

           Detective Richard Gibney is a detective with the Harrisburg
     Police, but he also serves on the FBI task force which means he is
     a task force officer with the same arresting powers as an FBI
     agent.    He assists them with investigations in the greater
     Harrisburg area. He was the lead investigator on the case. On
     the day of the incident, he received information from Marshall
     Duncan that led him to send detectives to 537 Curtin Street. He
     ultimately is the
     one who filed charges in 2015.

           Richard Iachini, a detective with the Harrisburg Police,
     assisted with the investigation. Upon direction from Det. Gibney,
     he proceeded to 537 Curtin Street, Appellant’s home address. As
     he walked toward the home from the rear, he saw a small spot of
     snow with a red or pinkish color to it and a black hooded sweatshirt
     with a graphic on the back near a trash can.

           In November 2015, Officer Michael Rudy of Harrisburg
     Police, served an arrest warrant on Appellant at 537 Curtin Street.

          William Kimmick, an investigator with the Harrisburg Police,
     processed the bank, the car and the area of snow with red dye.

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      He found pillow cases and money covered in red dye as well as
      the interior of the car was stained with red dye. He did not find
      any masks, gloves or clothing in the car and he was unable to get
      any suitable fingerprints from the interior of the car.

            Jessica Mulhollem, a forensic scientist with the Pennsylvania
      State Police, received the black sweatshirt and a dye pack from
      the investigation. She was instructed to look for red dye on the
      sweatshirt . . . and found some on the inside. She analyzed that
      dye and found that it was identical to the dye in the dye pack.

            Timothy Gavel, a PSP DNA lab forensic scientist, did DNA
      testing on samples from the wrists of the sweatshirt and of a
      buccal swab from Appellant. The left wrist provided a mixed
      sample; there was DNA from at least three people on the sleeve.
      One person’s DNA did match the known buccal sample in eight
      places (they test at 16 places). Statistically speaking, there is
      between a one in nine billion and one in [eighteen] billion chance
      of someone other than Appellant having that same DNA.

Trial Court Opinion, 12/19/17, at 3-6 (citations omitted).

      A jury convicted Appellant of robbery, and he was sentenced as

indicated above on June 13, 2017. Appellant filed a timely notice of appeal,

but his counsel failed to file a court-ordered statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). This Court remanded the case,

substitute counsel was appointed, and a nunc pro tunc 1925(b) statement was

filed. Appellant now presents the following questions for consideration.

      1.    Did not the [trial] court err in denying [Appellant’s] motion
            to dismiss the charges due to excessive delay in the filing of
            the criminal charges when the delay caused [Appellant]
            prejudice and when the delay was the product of reckless
            conduct by the prosecution?

      2.    Did not the [trial] court err in denying [Appellant’s] pretrial
            motion to exclude references by police witnesses that a
            reliable informant provided information on January 18,
            2011, implicating defendant as the perpetrator of a bank


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            robbery committed on that date when such references were
            not relevant for the non-hearsay purpose of explaining the
            police’s course of conduct?

Appellant’s brief at 5.

      Appellant first contends that the trial court erred in failing to dismiss the

charges due to the excessive delay between the commission of the crimes and

the filing of the criminal charges against him. Appellant’s brief at 18. The

trial court offered the following summary of the facts relevant to this claim.

            [Detective] Richard Gibney testified that he was quickly
      named the lead investigator on the case in January 2011. He is a
      task force officer with the Federal Bureau of Investigation so has
      a dual designation. He explained that some crimes, such as bank
      robbery, can be prosecuted at either the state or federal level.
      The United States Attorney for the Middle District’s policy is to
      have the investigators take the case to them and then the U.S.
      Attorney’s Office determines whether they want the case or not.

            The MidPenn Bank in Harrisburg was robbed on January 28,
      2011. Appellant was taken into custody in June 2011 on unrelated
      matters. At the time, [Detective] Gibney did not believe they had
      enough evidence for a federal indictment. The first time he
      presented his evidence to the U.S. Attorney was in 2013 when he
      had DNA testing matching Appellant’s DNA to DNA found on a
      sweatshirt during the investigation. In December 2011, he did
      have a COD1S hit for Appellant’s DNA, but he did not take that to
      the U.S. Attorney because they were investigating a rash of bank
      robberies associated with individuals with ties to Appellant.
      [Detective] Gibney also interviewed at least two individuals prior
      to 2013 who implicated Appellant in the MidPenn robbery. Neither
      of these individuals wanted to testify in trial.

            In October 2013, [Detective] Gibney approached Assistant
      U.S. Attorney Meredith Taylor about the bank robbery and she
      indicated she wanted to indict, but needed the U.S. Attorney’s
      approval.   Several weeks later, after not hearing anything,
      [Detective] Gibney checked in with [Attorney] Taylor who told him
      the case had been reassigned to another Assistant U .S. Attorney,
      Joe Terz. [Attorney] Terz wanted more evidence before indicting


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         so the investigation continued. [Detective] Gibney and [Attorney]
         Terz maintained contact until about October 2015, when
         [Detective] Gibney decided to call the Dauphin County District
         Attorney’s Office to see if they would file charges. That office
         almost immediately filed charges.

               During the course of the investigation, [Detective] Gibney
         was not aware of any possible alibi witnesses. He acknowledged
         that nothing prevented him from approaching the District Attorney
         sooner as sometimes cases are prosecuted on both levels.

Trial Court Opinion, 12/19/17, at 2-3 (citations omitted). Upon this evidence,

the trial court denied Appellant’s motion to dismiss.

         We begin our review by noting that the determination that prosecutorial

delay was reasonable under the facts of a particular case is within the

discretion of the trial court, and such a decision will be reversed only if there

is insufficient evidence in the record to support the determination of the trial

court.     Commonwealth v. Montalvo, 641 A.2d 1176, 1182 (Pa.Super.

1994).

         “[S]tatutes of limitations, which provide predictable, legislatively

enacted limits on prosecutorial delay, provide the primary guarantee against

bringing overly stale criminal charges.” United States v. Lovasco, 431 U.S.

783, 789 (1977) (cleaned up). “However, statutes of limitation do not define

the full extent of the rights of the accused concerning the time in which

charges can be filed.”    Commonwealth v. Snyder, 713 A.2d 596, 599 (Pa.

1998).      The due process right provided by both the United States and

Pennsylvania constitutions “also protects defendants from having to defend




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stale charges, and criminal charges should be dismissed if improper pre-arrest

delay causes prejudice to the defendant’s right to a fair trial.” Id. at 599-600.

      In analyzing Appellant’s claim, Appellant, the Commonwealth, and the

trial court all relied upon our Supreme Court’s plurality decision in

Commonwealth v. Scher, 803 A.2d 1204 (Pa. 2002) (Opinion Announcing

the Judgment of the Court).           However, as this Court explained in

Commonwealth v. Wright, 865 A.2d 894 (Pa.Super. 2004), the Scher Court

“was unable to agree on a controlling standard” as to when significant delay

in prosecution constitutes a due process violation. Id. at 900. In Wright we

offered a summary of the “divergent views of the members of the Court” which

show an “absence of concord on this issue of extensive pre-arrest delay.” Id.

      Nonetheless, a thorough examination of the various opinions in that

case reveals a majority of the Scher Court agreed that a defendant cannot

prevail on a delayed prosecution due process claim unless he suffered actual

prejudice. Further, even if actual prejudice is shown, delay will not warrant

dismissal of charges if there were proper reasons for waiting to arrest the

defendant.    In other words, “delay is excusable if it is a derivation of

reasonable investigation.” Wright, supra at 901 (internal quotation marks

and emphasis omitted). The Wright Court also explained the procedure for

litigating a delayed prosecution claim: the defendant bears the initial burden

of proving actual prejudice; if that is done, the burden shifts to the

Commonwealth “to provide a reasonable basis for the extended delay in

prosecuting the crime.” Id. at 902.

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     We now apply the above law to the instant case. Appellant contends

that he was prejudiced by the interim death of two witnesses who “could have

provided alibi testimony or other exculpatory testimony.” Appellant’s brief at

27. Appellant further argues that the delay precluded the possibility of his

negotiating a sentence to run concurrently with the more-than-four-year

parole violation sentence that he served during the time the Commonwealth

could have brought charges but did not.     Id. at 28.   See also Motion to

Dismiss for Excessive Delay, 2/3/17, at ¶¶ 22-24, 27.

     The trial court determined that Appellant failed to establish actual

prejudice, and we agree. As this Court has explained:

     In 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 an essential
     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.

Commonwealth v. Neff, 860 A.2d 1063, 1074 (Pa.Super. 2004) (quoting

Scher, supra at 1222).

     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, 92 (Pa.Super. 2007) (internal

quotation marks and citations omitted).



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      Regarding   the   deceased   witnesses,   Appellant   offers   mere   bald

assertions with no evidentiary support. Appellant did not submit any evidence

of what testimony the two deceased witnesses could have offered, let alone

that they were willing and able to testify at some point before Appellant was

charged with the robbery. Appellant did not even establish when within the

period between the robbery and the arrest that the witnesses died. For all we

can tell from the record, they could have died in 2011 or 2012, such that they

would not have been available even if there had been no delay on the part of

the Commonwealth.       Moreover, Appellant offered no evidence that the

information allegedly possessed by these witnesses was not available through

other means. Accordingly, his allegations regarding the deceased witnesses

did not satisfy his burden of proving actual prejudice. See, e.g., Tielsch,

supra at 92 (holding defendant failed to establish actual prejudice where he

failed to allege or show that the evidence that his deceased uncle could have

offered was not available through other means).

      Nor did Appellant satisfy his burden by noting that he was no longer able

to serve his sentence in the instant case concurrently with his prior sentence.

The cases Appellant cites to support this argument do not concern delayed

prosecution, but rather violation of speedy trial rights. See Appellant’s brief

at 28.   The focus in the speedy-trial situation is “to prevent undue and

oppressive incarceration prior to trial,” to limit the defendant’s “anxiety and

concern accompanying public accusation,” and “to limit the possibilities that

long delay will impair the ability of an accused to defend himself.”

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Commonwealth v. Kirk, 283 A.2d 712, 714 (Pa.Super. 1971) (quoting

Smith v. Hooey, 393 U.S. 374, 377 (1969)).

      In a delayed prosecution case such as the instant case, the

Commonwealth has avoided the primary ill cited in Appellant’s speedy-trial

cases: it did not incarcerate the accused on a new charge while it continued

to put its case against him together. Not only does Appellant’s concurrent-

sentence claim of prejudice in the case sub judice in no way suggest the type

of prejudice relevant to a delayed-prosecution case, i.e., that he “was

meaningfully impaired in his . . . ability to defend against the state’s charges,”

but it is no more than a “speculative or conclusory claim[] of possible

prejudice” that is insufficient to establish his entitlement to relief. Neff, supra

at 1074.

      Therefore, we hold that the trial court’s determination that Appellant

failed to establish that he suffered actual prejudice as a result of the

Commonwealth’s delay in prosecuting him is supported by the record and does

not constitute an abuse of discretion. Further, because Appellant failed to

meet his burden of proving prejudice, the burden did not shift to the

Commonwealth to show that it had a reasonable basis for the delay.

Accordingly, Appellant’s first claim of error merits no relief.

      With his remaining issue, Appellant challenges a pretrial evidentiary

ruling of the trial court. As such, the following law applies.

      When ruling on a trial court’s decision to grant or deny a motion
      in limine, we apply an evidentiary abuse of discretion standard of
      review. A trial court has broad discretion to determine whether

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J-S42003-18


      evidence is admissible, and a trial court’s ruling regarding the
      admission of evidence will not be disturbed on appeal unless that
      ruling reflects manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support to be clearly erroneous. If
      the evidentiary question is purely one of law, our review is
      plenary.

Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa.Super. 2014) (citations

omitted).

      Appellant contends that the trial court erred in denying his pretrial

motion to preclude police officers from referencing at trial that they were given

information by a reliable informant that Appellant was the robber of the

MidPenn Bank. Appellant’s brief at 29. Appellant argues that this testimony

was inadmissible hearsay if offered for the truth of the matter asserted, and

unnecessarily prejudicial as offered to explain the police’s course of conduct

in going to Appellant’s home on the date of the robbery, where they found

evidence of the red dye and the sweatshirt with Appellant’s DNA. Id. at 29-

32.

      The trial court succinctly addressed Appellant’s claim as follows: “All the

officers testified to was that an informant provided information that led them

to an address.   In fact, upon arriving there the officers did find important

evidence in this case. Nothing about their references was the slightest bit

prejudicial.” Trial Court Opinion, 12/19/17, at 7-8.

      The record supports the trial court’s conclusion.       Marshall Duncan’s

testimony covers a mere three pages and includes in relevant part as follows.

      Q.    As part of your work with the U.S. Marshals, do you work
      with informants?


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J-S42003-18



      A.    On a regular basis.

      Q.    Approximately how often?

      A.    Daily.

      Q.   If I could draw your attention to January 28 of 2011, at
      some point did an informant come to you with information?

      A.    Yes, ma’am, he did.

      Q.    Was that over the telephone, in person?

      A.    It was over the telephone.

      Q.    You knew the person that called you ?

      A.    Yes, ma’am, I did.

      Q.   And they provided you with information about a bank
      robbery that had happened that day?

      A.    That is correct.

      Q.    That was about the Mid Penn Bank robbery at 2615 North
      Front Street?

      A.    I believe that’s correct, yes, ma’am.

      Q.   And then you provided that information to Detective
      Gibney?

      A.    That’s correct. With the fact that it was a bank robbery and
      knowing Detective Gibney was working with the FBI task force,
      FBI generally handles the bank robberies. Because it occurred in
      the City of Harrisburg, he was my first point of contact.

N.T. Trial, 4/26-28/17, at 95-96.

      Detective Gibney also offered only a few pages worth of testimony,

including the following.



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J-S42003-18


     Q.    Do you know where you responded initially on January 28th
     of 2011?

     A.    I believe I got a phone call to respond to the bank. I went
     to the bank and met with I believe it was Lieutenant Fagan was
     there, Detective Taylor, and there was other officers and
     detectives in the area. The vehicle was still out front.

     Q.      At some point you got a call from Marshal Duncan. Correct?

     A.      Yes.

     Q.      And he provided you with some information—

     A.      Yes, he did.

     Q.      — that he had received?

     A.      Correct.

     Q.    And then you proceeded to send detectives out to 537 Curtin
     Street?

     A.      Yes, I did.

     Q.      And that was known to be the home of [Appellant]?

     A.      Yes, it was.

     Q.      That was his registered address as you knew it at that time?

     A.      Yes.

Id. at 207-08.

     We find no error in the trial court’s decision to allow the above

testimony. Our Supreme Court explained as follows in a case relied upon by

Appellant.

     It is, of course, well established that certain out-of-court
     statements offered to explain a course of police conduct are
     admissible. Such statements do not constitute hearsay since they


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J-S42003-18


      are not offered for the truth of the matters asserted; rather, they
      are offered merely to show the information upon which police
      acted.

      Nevertheless, it cannot be said that every out-of-court statement
      having bearing upon subsequent police conduct is to be admitted,
      for there is great risk that, despite cautionary jury instructions,
      certain types of statements will be considered by the jury as
      substantive evidence of guilt. Further, the police conduct rule
      does not open the door to unbounded admission of testimony, for
      such would nullify an accused’s right to cross-examine and
      confront the witnesses against him.

Commonwealth v. Palsa, 555 A.2d 808, 810 (Pa. 1989).

      Here, the witnesses did not testify that the informant identified

Appellant as the robber, or even offer the contents of the informant’s out-of-

court-statements. They merely informed the jury why it was that the police

went to Appellant’s home. Otherwise, the jury would have been left wondering

why the officers had any reason to go to Appellant’s address shortly after the

robbery to recover in its vicinity the sweatshirt worn by the robber and snow

stained by the red dye. The evidence was relevant but not unduly prejudicial,

and thus was properly admitted. See, e.g., Commonwealth v. Weiss, 81

A.3d 767, 805 (Pa. 2013) (holding testimony that anonymous call informing

trooper that the appellant was with the victim on the night she disappeared

was properly admitted to explain what prompted the trooper’s interview of the

appellant). Therefore, Appellant’s second claim warrants no relief from this

Court.

      Judgment of sentence affirmed.




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J-S42003-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/19/2018




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