J-A04020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JON LEE,

                         Appellant                  No. 1264 WDA 2014


      Appeal from the Judgment of Sentence Entered March 13, 2014
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0010514-2012


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED MARCH 23, 2016

      Appellant, Jon Lee, appeals from the judgment of sentence of 14-30

years’ incarceration, imposed following his conviction for third-degree

murder, robbery, and conspiracy.      In this appeal, Appellant raises three

claims for our review. Unfortunately, we have determined we are unable to

sufficiently address two of these claims at this time. The Pa.R.A.P. 1925(a)

opinion filed in this matter was authored by the Honorable Philip Ignelzi of

the Allegheny County Court of Common Pleas, who presided over Appellant’s

trial, but who did not rule on two of the pre-trial matters at issue in this

appeal.    Accordingly, we remand for the filing of a supplemental Rule

1925(a) opinion by the Honorable Jeffrey Manning, President Judge of the

Allegheny County Court of Common Pleas, whose decisions are at-issue. As

to Appellant’s trial-related claim, we conclude that it has been waived.
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      Appellant was charged, tried, and convicted for his role in the shooting

death of Jordan Coyner, which occurred on June 18, 2012. Appellant, who

was sixteen years old when Coyner was murdered, purportedly played the

role of lookout in a robbery conspiracy that resulted in Coyner’s death. This

lethal scheme was concocted and executed by Appellant and his cohorts:

Michael Shearn, Brandon Lind, Devele Reid, and Dmetrei McCann.               The

specific facts underlying this crime, and Appellant’s role therein, are detailed

in the trial court’s Rule 1925(a) opinion, but are unnecessary to our

disposition in the instant memorandum.        See Trial Court Opinion (TCO),

2/26/15, at 7-17.

      On August 24, 2012, Appellant was charged as an adult with criminal

homicide generally (18 Pa.C.S. § 2501), robbery (18 Pa.C.S. § 3701), and

criminal conspiracy (18 Pa.C.S. § 903). See Commonwealth v. Sanders,

814 A.2d 1248, 1250 (Pa. Super. 2003) (“Pursuant to 42 Pa.C.S.A. §

6322(a), when a juvenile has committed a crime, which includes murder, or

any of the other offenses listed under paragraph (2)(ii) or (iii) of the

definition of “delinquent act” in 42 Pa.C.S.A. § 6302, the criminal division of

the Court of Common Pleas is vested with jurisdiction.”). On March 7, 2013,

Appellant filed a petition to transfer his case to Juvenile Court, often called a

decertification petition. See id. (“When a [juvenile’s] case goes directly to

criminal division, the juvenile has the option of requesting treatment within

the juvenile system through a transfer process of ‘decertification.’”).




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      On April, 15, 2013, Appellant filed an amended omnibus pretrial

motion which included, inter alia, a discovery motion requesting information

concerning a potential witness for the decertification hearing, Michael

Shearn.    At a hearing on that motion, “Judge Manning ruled that the

Commonwealth did not have to provide the contact information to the

defense.   Instead, the court ruled that defense counsel should give the

subpoena to the prosecutor to serve on Mr. Shearn.” TCO, at 26.

      However, at the decertification hearing:

      [T]he prosecutor conceded that although defense counsel had
      submitted a subpoena, the Commonwealth had not served it on
      Mr. Shearn, nor had the Commonwealth moved to quash it. In
      fact, Mr. Shearn was in Arkansas at the time of the hearing. The
      Commonwealth requested that the defense make an offer of
      proof as to why Mr. Shearn's testimony would be relevant in the
      decertification proceedings. Defense counsel argued that Mr.
      Shearn's testimony would establish that his involvement and the
      involvement of others in the incident in question showed a much
      greater degree of criminal sophistication than [Appellant
      possessed].     Defense counsel also sought to establish that
      despite Mr. Shearn's involvement in the incident, he was not
      charged with any crimes because of a family contact with the
      police. It is apparent that it is the position of the defense that
      [Appellant] was no more culpable than Mr. Shearn, and
      therefore, the public interest would be served by decertifying
      [Appellant] to Juvenile Court. Judge Manning sustained the
      Commonwealth's objection to Mr. Shearn's presence upon
      finding that his testimony was irrelevant for purposes of the
      decertification proceedings.

TCO, at 26-27 (citations to the decertification hearing held on May 28 th and

May 30th of 2013 omitted).     Ultimately, Judge Manning denied Appellant’s

decertification petition.




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     Appellant re-raised the claim regarding Mr. Shearn in a post-sentence

motion seeking a new trial on March 17, 2014, before Judge Ignelzi.       An

evidentiary hearing was held on June 11, 2014, at which time defense

counsel and the prosecutor reiterated the same arguments regarding the

subpoena for Mr. Shearn that had been made at the decertification hearing.

That post-sentence motion was denied on July 2, 2014.

     In this appeal, Appellant contends that the decertification court abused

its discretion by failing to decertify Appellant’s case to juvenile court for

three reasons. First, Appellant claims that the Commonwealth’s sole expert

impermissibly relied on Appellant’s assertion of his right against self-

incrimination to conclude that he was not amenable to treatment within the

juvenile system.   Second, Appellant asserts that he clearly established his

amenability to treatment in the juvenile system by a preponderance of the

evidence.   Third, Appellant claims he was erroneously denied his right to

compel Mr. Shearn’s testimony at the decertification hearing, in violation of

Appellant’s state and federal due process rights.       The Commonwealth

concedes that:

     Review of Appellant’s claim is hampered by the lack of an
     Opinion from Judge Manning.         While the trial court, Judge
     Ignelzi, has offered his analysis as to why Judge Manning denied
     decertification, it is nothing more than mere speculation.
     Pa.R.A.P. 1925(a)(1) provides: [if]f the case appealed involves a
     ruling issued by a judge who was not the judge entering the
     order giving rise to the notice of appeal, the judge entering the
     order giving rise to the notice of appeal may request that the
     judge who made the earlier ruling provide an opinion to be
     filed….” An opinion from Judge Manning containing his reasons


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        for denying decertification is critical to this Court’s examination
        of whether a gross abuse of discretion occurred given that Judge
        Manning never discussed his ruling on-the-record and instead
        issued a written Order denying Appellant’s petition without any
        analysis. The lack of an opinion from Judge Manning poses a
        substantial impediment to meaningful and effective appellate
        review.

Commonwealth’s Brief, at 35 (internal citations omitted).

        Separately, Appellant also claims in this appeal that the suppression

court, also presided over by Judge Manning, erred when it denied Appellant’s

motion to suppress the statement he gave to police before dawn on the

morning after the shooting.          Specifically, Appellant claims that the police

violated his constitutional rights by failing to issue Miranda1 warnings, and

by failing to ensure that his parents were present, when police solicited an

inculpatory statement from him at a police station.           The Commonwealth

argued at the suppression hearing, and continues to maintain, that Appellant

was not a suspect, was not under arrest, and was not subject to an

interrogation when he made that statement.

        However, in its Brief, the Commonwealth acknowledges that “the lower

court herein made no findings of fact or conclusions of law on the record as

required by Pa.R.Crim.P. 581(I).           It merely entered an oral order and a

written order denying the motion at the end of the [suppression] hearing.”

Commonwealth’s Brief, at 19.           And while the Commonwealth “respectfully

submits that this Court may review the record of the suppression hearing,
____________________________________________


1
    Miranda v. Arizona, 384 U.S. 436 (1966).



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like the trial court did in its Pa.R.A.P. 1925(a) Opinion,”                  id., the

Commonwealth also states that it “has no objection to the case being

remanded for Judge Manning to prepare an Opinion addressing all the

pretrial matters he presided over that Appellant has challenged on appeal.”

Id. at 19 n.8.

      Despite his best efforts, we conclude that Judge Ignelzi’s Rule 1925(a)

opinion   does    not      adequately   address    Appellant’s   decertification   and

suppression      issues,    given   that   Judge    Manning      presided   over   the

decertification and suppression hearings and issued the critical orders

regarding those matters.        Accordingly, we remand this matter to the trial

court for Judge Manning to file, within 60 days of the date of this

memorandum, a supplemental Rule 1925(a) opinion addressing claims 5(a),

5(b), and 5(c), as set forth in Appellant’s Rule 1925(b) statement.                See

Appellant’s Rule 1925(b) Statement, 10/27/14, at 2-3 ¶ 5.

      Appellant’s final claim concerns the trial testimony of Dmetrei McCann.

In what he believes to be a matter of first impression, Appellant asserts that

McCann’s testimony was unlawfully obtained and, as a result, should have

been prohibited.     Appellant’s Brief, at 6, 51-55.       Appellant contends that

McCann’s testimony was unlawfully obtained because the prosecutor

ostensibly only secured that testimony by permitting McCann to be

automatically transferred to juvenile court, where McCann then plead guilty

to third-degree murder, robbery, and conspiracy. Appellant argues that this

was unlawful because of standing precedent that “[t]he ultimate decision of

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whether to certify a minor to stand trial as an adult is within the sole

discretion of a decertification court.” Commonwealth v. Brown, 26 A.3d

485, 493 (Pa. Super. 2011).

      Appellant maintains:

      Dmetrei McCann is 350 days older tha[n] [Appellant], and stood
      at the top of the victim’s driveway armed with a pellet gun while
      [Appellant] stood unarmed. Yet, the lower court had no hearing
      to determine if McCann was amenable to treatment in the
      juvenile system. The Commonwealth never hired an expert to
      “evaluate” McCann to determine the threat to public safety
      risked by potential juvenile placement. The Commonwealth’s
      use of the juvenile transfer process as a bargaining tool reduces
      the entire juvenile decertification process into a legal sham. The
      decertification process is now something to be traded away at
      the grace of the Commonwealth to garner helpful testimony,
      rather than a serious inquiry into the interests of society and the
      rehabilitative needs of the defendant.

Appellant’s Brief, at 52 (internal citation omitted).

      The Commonwealth argues that this claim has been waived.              See

Commonwealth’s Brief, at 64 (“Prior to addressing Appellant’s argument, the

Commonwealth is compelled to note that he never challenged McCann[’s]

testifying at his trial in pretrial motions. Then, at trial, he lodged no

objection to McCann[’s] testifying and he offered no motion to strike

McCann’s testimony. Consequently, Appellant’s argument should be deemed

waived.”).   Our own review of the record confirms the Commonwealth’s

contentions, and Appellant presents no argument regarding how or when his

claim was adequately and timely preserved.




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       Appellant ostensibly first raised the instant matter in his post-trial

motion. See Post-Trial Motion, 12/16/13, ¶¶ 11-14. However, even if we

were to accept that Appellant now presents the same claim as raised in that

post-trial motion,2 we are still compelled to find that it has been waived.

       Case law in this jurisdiction has consistently held that the
       cornerstone of our waiver doctrine is that issues below not raised
       in a timely manner are foreclosed for purposes of appellate
       review. Commonwealth v. Pritchett, 468 Pa. 10, 359 A.2d
       786 (1976). In the vast majority of cases, the rubric “in a timely
       manner” requires contemporaneous objection; and our rules and
       cases rigorously enforce the contemporaneous objection rule.
       See, e. g., Commonwealth v. Chuck, 323 A.2d 123 (1974); …
       Pa.R.A.P. 302.

Commonwealth v. Griffin, 412 A.2d 897, 901 (Pa. Super. 1979).

       Here, the relevant facts, those germane to Appellant’s admittedly

novel theory to exclude McCann’s testimony, were known to Appellant when

McCann testified. Appellant’s counsel cross-examined McCann regarding the

specific details of his bargain with the Commonwealth, which were also

memorialized in a written agreement entered into evidence by the defense.

See N.T. Vol. I,         12/5/13-12/13/13, at 346-48; Defense       Exhibit E.

Accordingly, we are constrained to conclude that Appellant’s claim regarding




____________________________________________


2
  There is reason to believe this is not the case. In his brief, Appellant
couches his claim in terms of due process and fair trial rights. However, in
his post-trial motion, Appellant instead cited the prosecution’s handling of
McCann as a reason to “have his [own] case transferred to the jurisdiction of
the juvenile court.” Id. at ¶ 14.



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J-A04020-16



McCann’s testimony has been waived because it was not raised in a timely

manner below. Griffin, supra.

     In sum, we conclude that Appellant’s claim that McCann’s testimony

should have been prohibited has been waived.        Regarding Appellant’s

remaining claims, we remand to the trial court for Judge Manning to file a

supplemental Rule 1925(a) opinion in accordance with this memorandum.

     Case remanded. Jurisdiction retained.




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