J-S34027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA


                       v.

KEVIN WILSON

                             Appellant                        No. 3537 EDA 2014


          Appeal from the Judgment of Sentence Dated July 17, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008471-2011
                                        CP-51-CR-0008472-2011

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                               FILED SEPTEMBER 27, 2017

        Appellant, Kevin Wilson, appeals from the judgment of sentence

imposed     after   the     trial   court   convicted   him   of   aggravated   assault,

conspiracy, simple assault, and recklessly endangering another person.1 We

affirm.

        Appellant’s convictions arose from an altercation in a Philadelphia

neighborhood, where two brothers, Jesus Nieves and Alberto Nieves, were

attacked and beaten by a group of men that included Appellant “and at least

two or three” others. N.T., 5/15/14, at 11, 27. Christina Koch testified that

Jesus Nieves was her fiancé, and she and Jesus Nieves lived with their

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2702, 903, 2701 and 2705, respectively.
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children, as well as Ms. Koch’s brother, William Keith. Jesus Nieves’ brother,

Alberto, came to their home on the evening of June 15, 2011.          Ms. Koch

explained the ensuing altercation:

      My brother William was selling drugs on the porch next door to
      my house. And we have children. And I don’t approve of my
      children seeing that. So we kept asking him not to do it there.
      And he proceeded to. And that’s what it was all about.

Id. at 30. That evening, Alberto Nieves confronted William Keith about the

drug dealing.    Alberto Nieves subsequently exited the home and was

attacked by the group of men who “kicked and stomped” him and rendered

him unconscious.    Id. at 11, 14, 22, 80.       Alberto Nieves sustained a

fractured skull, a broken jaw, and permanent scarring. N.T., 5/14/14, at 66.

Jesus Nieves, too, exited the home and was beaten unconscious.           Id. at

106. He stated that others, “at least five,” were involved in the assault, but

Appellant was the main assailant. Id. at 111.

      On July 17, 2014, the trial court sentenced Appellant to 6 to 12 years’

incarceration. Appellant filed a post-sentence motion seeking a new trial on

the basis that the verdict was against the weight of the evidence. The trial

court denied the motion on November 20, 2014.           Appellant filed a timely

appeal on December 18, 2014.

      Appellant presents three issues for our review:

      1. Did the trial court err when it denied the defense motion to
         dismiss pursuant to Pa.R.Crim.P. 600(A) as, even after taking
         excludable time into consideration, Appellant Kevin Wilson
         was not brought to trial within 365 days of the filing of the
         criminal complaint (June 15, 2011)?

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      2. Did the trial court err when it found that the Commonwealth
         disproved the defense of self-defense/defense of others
         beyond a reasonable doubt?

      3. Did the trial court err when it found Appellant Kevin Wilson
         guilty of the criminal offense of criminal conspiracy as there
         was insufficient evidence to prove this crime beyond a
         reasonable doubt?

Appellant’s Brief at 2.

      With regard to Appellant’s first issue asserting that he was denied a

prompt trial as mandated by Pa.R.Crim.P. 600, we note that a written

motion to dismiss is absent from the record. Commonwealth v. Brock, 61

A.3d 1015, 1019 (Pa. 2013) (to preserve a claim for relief under Rule 600,

an appellant must file and serve upon the Commonwealth a written motion

requesting such relief). Our Supreme Court has explained:

      In [Commonwealth v.] Drake, [489 Pa. 541, 414 A.2d 1023
      (1980)], the defendant made an oral motion for dismissal
      pursuant to former Pa.R.Crim.P. 1100, now Rule 600. The trial
      court denied the motion on the merits. On appeal, the Superior
      Court affirmed, but concluded the defendant had waived his Rule
      1100 claim by failing to file a written application to dismiss.
      Upon further appeal, this Court affirmed the Superior Court's
      decision, explaining that Rule 1100(g):

            requires a copy of an application to dismiss the charges be
            served upon the attorney for the Commonwealth. This
            clearly indicates the Rule mandates a written application.
            The same purposes of providing the trial courts with
            specific facts and issues for determination and providing
            certainty in the record on appeal which were advanced by
            our ruling in Commonwealth v. Blair, [460 Pa. 31, 331
            A.2d 213 (1975)], will be served by enforcement of the
            written application requirement under Rule 1100(f).

      Id. at 544, 414 A.2d at 1024–25 (footnotes omitted).

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Commonwealth v. Brock, 61 A.3d 1015, 1017–18 (Pa. 2013) (footnote

omitted). The record contains the trial court’s May 14, 2014 order denying

“A Motion by the Attorney for the Defendant.”           However, there is no

indication that the referenced motion was in writing and properly filed. This

issue therefore appears to have been waived.

      In any event, apart from waiver, we find no merit to this claim or to

Appellant’s other claims for the reasons detailed in the trial court’s opinion.

See Trial Court Opinion, 7/11/16, at 1-3, 10-15 (addressing Rule 600 issue).

In addition to Appellant’s Rule 600 issue, the trial court properly addressed

Appellant’s two remaining issues assailing the Commonwealth’s disproof of

self-defense and the sufficiency of the evidence to support his conviction of

criminal conspiracy. The trial court amply cites to the notes of testimony,

and states the relevant standards of review and prevailing legal authority in

its analysis and ultimate determination that Appellant’s judgment of

sentence should be affirmed. See id. at 15-19. Accordingly, we adopt and

incorporate the trial court’s July 11, 2016 opinion, in its entirety, as our own

in disposing of this appeal. The parties shall attach a copy of the trial court

opinion when relevant to any future proceedings.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2017




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