J-S69038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEANCELIN NOCENT,

                            Appellant                 No. 438 MDA 2016


           Appeal from the Judgment of Sentence February 17, 2016
                 in the Court of Common Pleas of York County
              Criminal Division at No.: CP-67-CR-0001997-2015


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

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 05, 2016

        Appellant, Jeancelin Nocent, appeals from the judgment of sentence

imposed pursuant to his jury conviction of delivery of cocaine, possession of

cocaine with intent to deliver (PWID), possession of a small amount of

marijuana, and driving while operating privilege is suspended.1 We affirm.

        We take the following factual and procedural background from our

independent review of the certified record.      We provide only those facts

necessary for disposition of this appeal.       The Commonwealth filed an

information against Appellant containing the above charges on April 9, 2015.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  35 P.S. §§ 780-113(a)(30) and (a)(31)(i), and 75 Pa.C.S.A. § 1543(b)(1),
respectively.
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The charges against Appellant were a result of his March 17, 2015 sale of

crack cocaine to a confidential informant (CI) during a controlled buy.

      Appellant’s two-day trial began on January 14, 2016. On the previous

day, January 13, 2016, the Commonwealth provided Appellant’s counsel

with three photographs of Appellant with the CI. (See N.T. Trial, 1/14/16,

at 3-4). At trial, Appellant stated that he knew the CI by his street name,

“Bee.” (See id. at 203, 205). According to Appellant, he smoked crack and

marijuana with Bee, who is a friend to both him and his child’s mother.

(See id. at 194-95, 213, 217). Appellant testified that “[Bee] always buys

crack for me and I go buy weed.” (Id. at 217). He maintained that, on the

day of Appellant’s arrest, Bee asked him to buy marijuana for them to use

together. (Id. at 194, 217). In turn, Appellant “gave $100 to [his] friend[,

Bee,] to buy crack so that [they] could smoke.” (Id. at 195; see also id. at

217). Prior to the arrest, Appellant and Bee intended to return to Appellant’s

house to get high. (See id. at 195, 213-14). Appellant also testified that

Bee would entrust him with money for safe-keeping so that he did not spend

it on drugs. (See id. at 195 (“[Bee] gave me [sixty dollars] and asked me

to keep it for him because he did not want to buy drugs with it.”); see also

id. at 213).




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        Because the Commonwealth did not call Bee as a witness, Appellant

requested that the court give a missing witness instruction. 2         The court

denied the request on the basis that “the missing witness rule applies when

you don’t know who [the witness] is and you couldn’t have called him in.”

(N.T. Trial, 1/15/16, at 221). More specifically, the court stated to defense

counsel: “[Y]ou did know who he was. [Appellant] testified it’s his buddy

Bee. They do crack together. He comes over to his house. . . .” (Id. at

222).

        Appellant did not object to the court’s denial. (See id.). Also, at the

close of the jury charge, when the trial court asked both counsel if they

“ha[d] any additions or corrections,” they expressly responded that they did

not. (Id. at 264).

        The jury immediately retired to deliberate and returned with a verdict

convicting Appellant of all charges.             Appellant waived a pre-sentence

investigation report, and the trial court sentenced him to an aggregate term
____________________________________________


2
  Appellant fails to identify where in the certified record his request for the
instruction appears. (See Appellant’s Brief, at 8-14); see also Pa.R.A.P.
2119(c) (“If reference is made to . . . any . . . matter appearing in the
record, the argument must set forth, in immediate connection therewith, or
in a footnote thereto, a reference to the place in the record where the
matter referred to appears.”). Also, after our independent review of the
certified record, it does not appear that the request is in the notes of
testimony provided to this Court. However, because the trial court’s denial
is in the certified record, and the Commonwealth does not dispute that
Appellant sought the charge, (see Commonwealth’s Brief, at 13), this does
not affect our review.




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of not less than time served nor more than twenty-three months’

incarceration, plus probation and costs.         The trial court denied Appellant’s

post-sentence motion challenging the weight of the evidence.            (See Post-

Sentence Motion, 1/27/16, at unnumbered pages 2-3).                It granted the

Commonwealth’s motion for reconsideration of sentence, and, on February

17, 2016, it modified the judgment of sentence to correct the numbering of

the counts so that they matched the information.            (See Order, 2/17/16).

Appellant timely appealed.3

       Appellant raises one question for our review:          “[Whether] the trial

court erred when it failed to provide a missing witness instruction to the

jury?” (Appellant’s Brief, at 4) (unnecessary capitalization omitted).

       It is well settled that:

       “[O]ur 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.” The Rules of Criminal Procedure provide that
       “[n]o portions of the charge nor omissions from the charge may
       be assigned as error, unless specific objections are made thereto
       before the jury retires to deliberate.” Pa.R.Crim.P. 647(B).

Commonwealth v. Janda, 14 A.3d 147, 163 (Pa. Super. 2011) (case

citation omitted).

       Importantly, the Pennsylvania Supreme Court held that:
____________________________________________


3
   Pursuant to the trial court’s order, Appellant filed a timely statement of
errors complained of on appeal on April 26, 2016, and the court filed an
opinion on May 13, 2016. See Pa.R.A.P. 1925. Appellant’s statement listed
five issues. However, he has only raised one on appeal.



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        [U]nder Criminal Procedural Rules 603 and 647(B), the mere
        submission and subsequent denial of proposed points for charge
        that are . . . omitted from the instructions actually given will not
        suffice to preserve an issue, absent a specific objection or
        exception to the charge or the trial court’s ruling respecting the
        points.

Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005) (footnote

omitted).

        Here, Appellant requested the missing witness instruction because the

Commonwealth did not call Bee to testify. (See Appellant’s Brief, at 6). The

court denied the request on the basis that Bee was equally available to both

parties.4 (See N.T. Trial, 1/15/16, at 220-22). Counsel did not object to the

denial and, at the close of jury instructions, when the trial court expressly

asked the attorneys whether they had “any additions or corrections to the

charge,” they both replied, “[n]o, Your Honor.” (Id. at 264; see id. at 222).

The jury immediately exited the courtroom. (See id. at 265).

        Therefore, Appellant has failed to preserve his issue on appeal. See

Pressley, supra at 225; Janda, supra at 163 (concluding appellant waived

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4
    The missing witness rule provides, in relevant part, that:

              When a potential witness is available to only one of the
        parties to a trial, . . . then if such party does not produce the
        testimony of this witness, the jury may draw an inference that
        [the testimony] would have been unfavorable.

Commonwealth v. Boyle, 733 A.2d 633, 638 (Pa. Super. 1999) (citation
omitted). However, where the uncalled witness is equally available to both
parties, the instruction is precluded. See id.



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issue for review where his requested jury instruction was denied, and he

failed to object at close of court’s charge); see also Pa. R.Crim.P. 647(B).5

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2016




____________________________________________


5
  Moreover, we briefly note that, based on our review of the record,
specifically Appellant’s testimony about his relationship with Bee, the trial
court properly denied his request for the missing witness jury instruction.
See Boyle, supra at 638.



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