J-S34027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSHUA D. MCCRAE

                            Appellant                   No. 630 MDA 2015


         Appeal from the Judgment of Sentence entered June 30, 2014
              In the Court of Common Pleas of Dauphin County
              Criminal Division at No: CP-22-CR-0000346-2013


BEFORE: PANELLA, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                               FILED JULY 21, 2016

        Appellant, Joshua D. McCrae, appeals from the judgment of sentence

entered on June 30, 2014 in the Court of Common Pleas of Dauphin County

following his convictions of criminal use of a communication facility, criminal

conspiracy, and promoting prostitution.1       Appellant raises an issue relating

to Rule 600 and presents challenges to the sufficiency of the evidence and

the discretionary aspects of sentencing. Following review, we affirm.

        The trial court summarized the factual background of this case as

follows:

        At trial, the evidence showed that the Pennsylvania State Police
        were conducting a position detail when they set up an encounter
        with a woman named “Erica[.”] This woman was later identified
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1
    18 Pa.C.S.A. §§ 7512(a), 903(c), and 5902(b)(1).
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        as Katerina Zisimopoulos. Katerina was driven to her encounter
        by [Appellant] who gave police his number to give to her to
        contact him. Several months later, Katerina was arrested again
        for prostitution.    Again, the Appellant drove her to the
        encounter.     Further, text message conversations between
        Katerina and the Appellant and Katerina and unknown numbers
        indicated that sexual encounters were being set up, she was
        being paid for them and that she would communicate with
        Appellant about the sexual encounters, whether she should
        accept them, how much she should charge[,] etc.

        Katerina Zisimopoulos did not testify at trial, nor was she
        charged with [c]riminal [c]onspiracy.

        [The] Deputy Warden for Security at Dauphin County Prison
        testified in regards to calls made from the prison. Per his
        testimony, every time a prisoner makes a call, they must enter
        their 6 digit PIN prior to placing the call.        The calls are
        monitored, recorded and the prisoner is notified that the calls
        are being monitored and recorded. The prison cannot identify
        who receives the calls, only the number that the calls were
        placed to. A CD containing calls from Appellant was entered into
        evidence at trial. No objection as to authenticity was made.

Trial Court Rule 1925(a) Opinion (T.C.O.), 6/3/15, at 2.

        Following trial, a jury found Appellant guilty of crimes identified above.

The trial court imposed a sentence totaling 3-1/2 to 7 years in a state

correctional institution.    Trial counsel withdrew and the court appointed

appellate counsel who filed a post-sentence motion on January 8, 2015 after

securing reinstatement of Appellant’s direct appeal rights on December 29,

2014.     In his post-sentence motion, Appellant sought modification of his

sentence and argued the verdict was against the weight of the evidence.

The trial court denied his post-sentence motion on March 13, 2015.           This




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timely appeal followed.         Both the trial court and counsel complied with

Pa.R.A.P. 1925.

       In his brief on appeal, Appellant restates verbatim the five issues he

raised in his Rule 1925(b) statement.2

       1. Whether the trial court erred in denying Appellant’s Rule 600
          motion for nominal bail?

       2. Whether the evidence presented at trial was insufficient to
          convict Appellant of the crime of Criminal Use of a
          Communication Facility and Criminal Conspiracy when the
          alleged codefendant was not charged with Criminal
          Conspiracy and was not called to testify against Appellant?

       3. Was trial counsel ineffective for (a) failing to object to the
          admission and use of telephone conversations allegedly
          involving Appellant without verifying their authenticity and (b)
          failing to move for a mistrial?

       4. Was counsel ineffective in failing to raise a Batson[3]
          challenge during and after jury selection?

       5. Whether the imposition of an aggregate sentence of three and
          one-half to seven years[’] incarceration was excessive given
          the circumstances of Appellant, Joshua McCrae?

Appellant’s Brief at 4.

       At the outset, we note we shall not consider Appellant’s third and

fourth issues, both of which raise ineffectiveness of counsel challenges.

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2
  We remind Appellant’s counsel of the Rule 2111 requirement to append a
copy of the Rule 1925(b) statement of errors complained of appeal to an
appellant’s brief. Pa.R.A.P. 2111(a)(11) and (d).
3
    Batson v. Kentucky, 476 U.S. 79 (1986).




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Ineffectiveness claims are properly raised in collateral proceedings rather

than on direct appeal. Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.

2002). Appellant concedes this fact. See Appellant’s Brief at 14-15.

          In his first issue, Appellant argues the trial court erred by denying his

motion for nominal bail pursuant to Pa.R.Crim.P. 600. As an issue involving

a question of law, our standard of review is de novo and our scope of review

is plenary. Commonwealth v. Dixon, 907 A.2d 468, 472 (Pa. 2006).

          The Commonwealth contends the Rule 600 issue is moot because

Appellant is no longer serving pre-trial incarceration and he received credit

for time served upon sentencing. Commonwealth’s Brief, at 10. We agree.4

However, even if the issue were not moot, Appellant would not be entitled to

relief.

          Rule 600 requires that a defendant be afforded a prompt trial.       The

provisions of the rule in effect at all times relevant to this case direct that:

          No defendant shall be held in pretrial incarceration in a given
          case for a period exceeding 180 days excluding time described in
          paragraph (C) above (relating to exclusions from calculation of
          period for commencement of trial).        Any defendant held in
          excess of 180 days is entitled upon petition to immediate release
          on nominal bail.
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4
  Our Supreme Court found this same issue moot in Dixon but considered it
as an exception recognized in instances “when a case is capable of repetition
yet evading review.” Id. at 472 (citation omitted). Ultimately, the Court
determined that only those delays caused by the defendant would expand
the 180-day pretrial incarceration period based on the language of the rule.




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Pa.R.Crim.P. 600(E).5        Rule 600(C) provided, in relevant part, that “[i]n

determining the period for commencement of trial, there shall be excluded

therefrom . . . such period of delay at any stage of the proceedings as

results from . . . any continuance granted at the request of the defendant or

the defendant’s attorney.” Pa.R.Crim.P. 600(C)(3)(b).

       Here, the complaint was filed on October 17, 2012. Appellant filed his

motion for nominal bail 203 days later, on May 8, 2013.          However, the

record reflects that Appellant’s counsel filed a motion for continuance that

the trial court granted on March 12, 2013, continuing the case until May 21,

2013. Scheduling Order, 3/12/13. The order is signed not only by the trial

judge but also by Appellant’s counsel and reflects that the continuance was

granted on Appellant’s motion and that “Rule 600 [is] waived[.]”       Id.   As

such, the period following the grant of the continuance is excluded from the

computation of the days of his pretrial incarceration, resulting in a period of

pretrial incarceration well short of the 180-day period provided in Rule

600(E).

____________________________________________


5
  Prior Rule 600 was rescinded and replaced with the current version in
2012, effective July 1, 2013. The 2013 version of the rule reorganized and
clarified the provisions of the rule and incorporated the elements of the prior
rule, including the 180-day time limits on pretrial incarceration.         Our
references to Rule 600 in this Memorandum relate to the version in effect
prior to July 1, 2013.




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       Appellant argues he “did not agree to several of the continuances” in

this case and, therefore, the trial court erred in denying his motion for

nominal bail. Appellant’s Brief at 10. Appellant fails to appreciate the fact

that Rule 600(C)(b)(3) excluded any delays resulting from a continuance

made by his counsel. The scheduling order clearly reflects that Appellant’s

counsel requested the continuance. Appellant’s first issue fails.

       In his second issue, Appellant asserts that the evidence was

insufficient to support his conviction of criminal use of a communication

facility   and   his   conviction    of   criminal   conspiracy   because   Katerina

Zisimopoulos was not charged with conspiracy and was not called to testify

against Appellant.6       We employ the following standard of review for a

sufficiency of evidence challenge:

       As a general matter, our standard of review of sufficiency claims
       requires that we evaluate the record in the light most favorable
       to the verdict winner giving the prosecution the benefit of all
       reasonable inferences to be drawn from the evidence. Evidence
       will be deemed sufficient to support the verdict when it
       establishes each material element of the crime charged and the
       commission thereof by the accused, beyond a reasonable doubt.
____________________________________________



6
 In the Argument section of his brief, Appellant also suggests the evidence
was insufficient to support his conviction for promoting prostitution.
Because Appellant did not raise the issue in his Rule 1925(b) statement, he
has waived that issue on appeal. Commonwealth v. Hill, 16 A.3d 484,
494 (Pa. 2011).




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      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant's innocence. Any doubt about
      the defendant’s guilt is to be resolved by the fact finder unless
      the evidence is so weak and inconclusive that, as a matter of
      law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(quoting Commonwealth v. Rahman, 75 A.3d 497, 500-501 (Pa. Super.

2013)).

      Addressing Appellant’s conviction of criminal use of a communication

facility, we note that the crime is defined in relevant part as follows:

      A person commits a felony of the third degree if that person uses
      a communication facility to commit, cause or facilitate the
      commission or the attempt thereof of any crime which
      constitutes a felony under this title []. Every instance where the
      communication facility is utilized constitutes a separate offense
      under this section.

18 Pa.C.S.A. § 7512(a) (footnote omitted).          A “communication facility”

includes a telephone. 18 Pa.C.S.A. § 7512(c).

      As the trial court recognized:

      It is clear from the testimony that Appellant used his cell phone.
      It is also clear [from] the testimony that he used it to instruct
      Ms. Zisimopoulos on the proposed sexual encounters with
      various men, whether she should accept them, how much she
      should charge[,] etc. There was sufficient evidence for the jury
      to convict him of said crime.

T.C.O., 6/3/15, at 4. We agree. Viewing the testimony and evidence in light

most favorable to the Commonwealth, the evidence was sufficient to support

Appellant’s conviction of criminal use of a communication facility.

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      With respect to his conviction for conspiracy, we note that:

      A person is guilty of conspiracy with another person or persons
      to commit a crime if with the intent of promoting or facilitating
      its commission he . . . agrees with such other person or persons
      that they or one or more of them will engage in conduct which
      constitutes such crime or an attempt or solicitation to commit
      such crime[.]

18 Pa.C.S.A. § 903(a)(1). As this Court has explained:

      To prove criminal conspiracy, the Commonwealth must show a
      defendant entered into an agreement to commit or aid in an
      unlawful act with another person; that he and that person acted
      with a shared criminal intent; and that an overt act was taken in
      furtherance of the conspiracy. 18 Pa.C.S.A. § 903. “An explicit
      or formal agreement to commit crimes can seldom, if ever, be
      proved and it need not be, for proof of a criminal partnership is
      almost invariably extracted from the circumstances that attend
      its activities.” Commonwealth v. Johnson, 719 A.2d 778, 785
      (Pa. Super. 1998) (en banc), appeal denied, 559 Pa. 689, 739
      A.2d 1056 (1999) (citations omitted). Therefore, where the
      conduct of the parties indicates that they were acting in concert
      with a corrupt purpose in view, the existence of a criminal
      conspiracy may properly be inferred.        Commonwealth v.
      Snyder, 335 Pa. Super. 19, 483 A.2d 933, 942 (Pa. Super.
      1984).

Commonwealth v. Kinard, 95 A.3d 279, 293 (Pa. Super. 2014).

      Although Appellant is correct in asserting that Ms. Zisimopoulos was

not charged with conspiracy, he fails to appreciate that she was identified as

a co-conspirator in the criminal information. As the trial court observed:

      Proof of the agreement can be found in the circumstances.
      Appellant was in contact with Ms. Zisimopoulos. He instructed
      her on whether to accept clients or not. He instructed her on
      prices to charge. Clearly from the circumstances, an agreement
      to commit and promote prostitution can be inferred.

      ....


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       In the present case, an agreement can be inferred based on the
       circumstances. Ms. Zisimopoulos’s phone conversations may be
       admitted under [the co-conspirator exception to the hearsay
       rule] as they were made in furtherance of the conspiracy.
       Whether she is on trial or not is irrelevant.

T.C.O., 3/6/15, at 5 (citing Commonwealth v. Basile, 458 A.2d 587, 590

(Pa. Super. 1983)).

       We    agree    with    the    trial     court   that   the   evidence,   including

circumstantial evidence, was sufficient to support both his communication

facility and conspiracy convictions. Therefore, Appellant’s second issue fails

for lack of merit.7

       In his final issue, Appellant contends his aggregate sentence of 3-1/2

to 7 years in prison is excessive given Appellant’s circumstances.               As this

Court recently reiterated:

       Challenges to the discretionary aspects of sentencing do not
       entitle a petitioner to review as of right. Before this Court can
       address such a discretionary challenge, an appellant must
       comply with the following requirements:

          An appellant challenging the discretionary aspects of his
          sentence must invoke this Court's jurisdiction by satisfying
          a four-part test: (1) whether appellant has filed a timely
          notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
          the issue was properly preserved at sentencing or in a
          motion to reconsider and modify sentence, see
          Pa.R.Crim.P. [720]; (3) whether appellant's brief has a
          fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a

____________________________________________


7
  To the extent Appellant argues trial counsel was ineffective for failing to
object to hearsay testimony under the co-conspirator exception, we decline
to address the issue. See Grant, supra.



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          substantial question that the sentence appealed from is
          not appropriate under the Sentencing Code.

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en

banc) (citations omitted).

      Our review reveals that Appellant filed a timely notice of appeal,

preserved the issue in his post-sentence motion, and included the requisite

Rule 2119(f) statement in his brief.           We also find that his claims of

excessiveness and failure to consider rehabilitative needs present a

substantial question warranting review.        See, e.g., Caldwell, 117 A.2d at

768-70.

      “When    reviewing     a   challenge   to   the   discretionary   aspects   of

sentencing, we determine whether the trial court has abused its discretion.”

Id. at 770. We will not disturb the sentence “absent a manifest abuse of

discretion.” Id. “[T]he appellant must establish, by reference to the record,

that the sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a

manifestly unreasonable decision.” Id. (citations omitted).

      Despite presenting a sentencing question warranting review, Appellant

has waived this issue on appeal for failure to cite any pertinent authority in

developing his argument.         See Commonwealth v. Figueroa, 859 A.2d

793, 800 (Pa. Super. 2004).        However, even if not waived, we would find

that Appellant’s claims lack merit.

      As the trial court explained:

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     [Appellant] was sentenced within the standard range on each
     count; we did not ignore or misapply the law. Pursuant to our
     discretion in sentencing, these were set to run consecutive to
     each other and he was not permitted to be sent to New York on
     his detainer there. A pre-sentence investigation was made part
     of the record at the sentencing hearing. That investigation
     reveals an extensive criminal history dating back to 2000 which
     includes drug sales, false identifications to law enforcement,
     receiving stolen property and the list goes on. [Appellant] has
     several parole violations from New York and was in fact on
     parole supervision with New York at the time of his offense here.
     He had a fugitive warrant out on him at the time for his parole
     violation.

     It is not manifestly unreasonable that we should determine that
     a lengthy confinement is in the best interest of the public safety
     as [Appellant] has proven through his criminal history that he
     cannot refrain from criminal activity.

Order and Opinion Denying Post-Sentence Motion, 3/13/15, at 2-3.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




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