OPINION BY OLSON, J.:
Appellant, Hector Trinidad, appeals from the judgment of sentence entered on September 5, 2012, as made final by the January 17, 2013 order denying his post-sentence motion. We affirm.
The trial court aptly summarized the historical facts in this case as follows:
Trial Court Opinion, 7/11/13, at 2-3.
Following trial on June 25-28, 2012, a jury found Appellant guilty of criminal attempt (murder), aggravated assault, and criminal conspiracy.
On September 27, 2012, Appellant filed a post-sentence motion pursuant to Pa. R.Crim.P. 720(C) alleging that he had recently acquired newly-discovered evidence. The trial court convened a hearing on November 20, 2012, at which two defense witnesses offered testimony. Subsequently, Appellant and the Commonwealth presented argument to the court on January 14, 2013. By order entered January 17, 2013, the trial court denied Appellant's post-sentence motion. Appellant filed a notice of appeal on February 5, 2013.
In his brief, Appellant raises the following questions for our review:
Appellant's Brief at 4 (we have re-ordered Appellant's claims for ease of discussion).
Before we examine the substance of Appellant's contentions, we consider
Our discussion is necessary due to our initial review of the record in this matter which indicates that Appellant's post-sentence motion alleging after-discovered evidence was filed 22 days after the imposition of sentence, which raises questions as to the timeliness of his motion and his notice of appeal. After careful review of Pa.R.Crim.P. 720, together with a close inspection of the record, we conclude that Appellant's motion was timely filed and that the instant appeal is properly before us for review.
Pursuant to Pa.R.Crim.P. 720(A)(2), only a timely-filed post-sentence motion triggers an extension of the time for filing a notice of appeal. Pa.R.Crim.P. 720(A)(2); Commonwealth v. Dreves, 839 A.2d 1122, 1127 (Pa.Super.2003) (en banc) (the filing of untimely post-sentence motions does not toll the 30-day period to file an appeal from the judgment of sentence). Ordinarily, a timely post-sentence motion must be filed within ten days of the imposition of sentence. See Pa.R.Crim.P. 720(A)(1). Rule 720(A)(1) lists two exceptions, however. Relevant to the instant appeal, the first exception applies where the defendant files, pursuant to Rule 720(C), a post-sentence motion seeking a new trial on grounds of after-discovered evidence.
We have been unsuccessful in locating a published decision that considers the impact of the bolded language (above) found in Rule 720(C) on the timing requirements contained in Rule 720(A) for filing a postsentence motion and taking an appeal. We therefore hold that a defendant files a "timely" post-sentence motion within the contemplation of Rule 720(A)(2), and thus is eligible for an extension of the appeal period, where he files a post-sentence motion pursuant to Rule 720(C) promptly after the acquisition of after-discovered evidence.
We find support for our holding in the text of Rule 720(A)(2). Under Rule 720(A)(2), if the defendant files a timely post-sentence motion, his notice of appeal must be filed within 30 days of the entry of the order disposing of the motion, within 30 days of the entry of an order denying the motion by operation of law, or within 30 days of the entry of an order confirming that the motion has been withdrawn. Pa. R.Crim.P. 720(A)(2). Although Rule 720(A)(2) conditions extensions of the appeal period upon the filing of a timely post-sentence motion, the rule does not restrict such extensions to circumstances in which the post-sentence motion has been deemed timely because it was filed within the ten-day limitations period found in Rule 720(A)(1). Because Rule 720(A)(2) is formulated
Our concern about the preservation of direct appeal rights offers further support for our holding. This concern is best illustrated by way of example. If a defendant acquires after-discovered evidence more than ten days after his sentence is imposed, but before the 30-day appeal period expires (as in the present case), he can take prompt action pursuant to Rule 720(C) and file his post-sentence motion before the trial court. If he elects this course, however, he cannot file an appeal until his motion is decided. See Pa. R.Crim.P. 720(A)(2); see also Pa.R.Crim.P. 720 cmt. ("No direct appeal may be taken by a defendant while his or her post-sentence motion is pending."). Without the rule we have adopted above, a defendant who finds himself confronted with this circumstance would be unable to file a timely direct appeal if his motion is not decided before the appeal period runs.
We now consider whether Appellant promptly requested relief under Rule 720(C) and, hence, filed a timely post-sentence motion for purposes of Rule 720(A)(2), thereby triggering an extension of the time in which he was permitted to file his notice of appeal.
After the jury found Appellant guilty, the trial court imposed sentence on September 5, 2012. Thereafter, on September 27, 2012 (22 days after the imposition of sentence), counsel for Appellant filed a post-sentence motion pursuant to Rule 720(C). The motion alleged that "[o]n September 21, 2012 counsel for [Appellant] received an [a]ffidavit from Khary Herbert stating that he was a witness to the crime and had exculpatory evidence to offer on behalf of [Appellant]." Post-Sentence Motion, 9/27/12, at 1. Counsel for Appellant attached Herbert's affidavit to the motion.
The trial court convened a hearing on Appellant's post-sentence motion on November 20, 2011. Appellant called Herbert and Danny Ruiz
The parties presented oral argument on Appellant's post-sentence motion on January 13, 2013. At the outset, counsel for Appellant withdrew the motion insofar as it related to Herbert's testimony since Appellant was aware of his availability as a witness prior to trial. Counsel argued, however, that Appellant was entitled to relief based upon Ruiz' testimony, which was unavailable at the time of trial. The Commonwealth did not oppose the motion on grounds that it was not promptly filed; instead, the Commonwealth opposed the motion on substantive grounds, stressing that Ruiz' testimony was offered merely for its impeachment value. The trial court denied relief by order entered on January 17, 2013.
We conclude that Appellant's post-sentence motion under Rule 720(C) was promptly filed on September 27, 2012 following the acquisition of after-discovered evidence, and that his February 5, 2013 notice of appeal was timely filed within 30 days of the entry of the trial court's order denying the post-sentence motion on January 17, 2013. Pa.R.Crim.P. 720(A)(2)(a). The record confirms that Appellant's counsel acted without delay in filing, pursuant to Rule 720(C), a written motion seeking relief based upon after-discovered evidence. Because we conclude that Appellant promptly pursued relief under Rule 720(C), we conclude that he filed a timely post-sentence motion within the meaning of Rule 720(A)(2). As such, Appellant's notice of appeal was due 30 days after entry of the trial court's order that denied the post-sentence motion. Since Appellant filed the instant appeal in compliance with this deadline, we may exercise jurisdiction in this case and address the merits of Appellant's claims.
In his first issue, Appellant claims that the trial court erred when it allowed Detective James Pitts to testify about a recorded statement he took from Bryan Mejias concerning the murder of Keith Bolden. The statement described Appellant's involvement in Bolden's shooting. Appellant alleges that Detective Pitts' testimony constituted inadmissible hearsay.
"Questions regarding the admission of evidence are left to the sound discretion of the trial court, and we, as an appellate court, will not disturb the trial court's rulings regarding the admissibility of evidence absent an abuse of that discretion." Commonwealth v. Russell, 938 A.2d 1082, 1091 (Pa.Super.2007). An abuse of discretion is not merely an error of judgment; rather, discretion is abused when "the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record." Commonwealth v. Busanet, 572 Pa. 535, 817 A.2d 1060, 1076 (2002). Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa.R.E. 801(c).
In this case, the trial court properly overruled Appellant's hearsay objection and admitted Detective Pitts' testimony regarding the recorded statement he took from Bryan Mejias. Once the trial court overruled Appellant's hearsay objection,
Appellant asserts in his second issue that the trial court erred in denying his request for a new trial predicated upon after-discovered evidence. Specifically, Appellant claims that, after he was convicted and sentenced, Ruiz came forward and advised his attorney about a conversation he had with Rosado in January or February 2012. According to Ruiz, Rosado stated during the conversation that the shooter was a black male and that the district attorney's office was pressuring him to identify Appellant as his assailant.
Commonwealth v. Lyons, ___ Pa. ___, 79 A.3d 1053, 1068 (2013).
Appellant is not entitled to relief on this claim. The thrust of Appellant's argument is that Ruiz' testimony "would likely cast doubt about the credibility of [Rosado] in the mind of the jury and give the jury an insight as to the mind of [Rosado] and his testimony[.]" Appellant's Brief at 14. Appellant's newly discovered basis for impeaching Rosado's identification testimony does not entitle him to another trial. Commonwealth v. Bormack, 827 A.2d 503, 505-507 (Pa.Super.2003) (evidence that "would have allowed the jury to see [an eyewitness] in a different light" was for impeachment alone and did not establish right to a new trial), appeal denied, 577 Pa. 693, 845 A.2d 816 (2004).
In his third issue, Appellant argues that the Commonwealth presented insufficient evidence to establish his identity as the individual who shot Rosado.
Commonwealth v. Emler, 903 A.2d 1273, 1276-77 (Pa.Super.2006).
In this case, Rosado identified Appellant as the individual who shot him on December 27, 2008. N.T., 6/26/12, at 147-149; see Commonwealth v. Wilder, 259 Pa.Super. 479, 393 A.2d 927, 928 (1978) (stating a positive identification by one witness is sufficient for conviction). We also find that most of Appellant's challenges to Rosado's identification relate to the weight of the evidence, not to its sufficiency. See Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220, 1222 (1981) (stating that variances in testimony go to the credibility of the witnesses and not the sufficiency of the evidence); Commonwealth v. Halye, 719 A.2d 763, 764 (Pa.Super.1998) (en banc), appeal denied, 560 Pa. 699, 743 A.2d 916 (1999), cert. denied sub nom, Pennsylvania v. Halye, 529 U.S. 1012, 120 S.Ct. 1287, 146 L.Ed.2d 233 (2000) (mere conflict in the testimony does not render the evidence insufficient because it is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence). Therefore, viewing the evidence in the light most favorable to the verdict winner, we find that the Commonwealth presented sufficient evidence to identify Appellant as Rosado's shooter.
In his fourth and final claim, Appellant challenges the discretionary aspects of his sentence. Specifically, Appellant claims that the trial court abused its discretion by ordering that Appellant serve his sentence in the present case consecutive to a six and one-half to 13 year sentence Appellant was currently serving for a prior firearms conviction. Appellant's Brief at 10-11. We conclude that Appellant has waived appellate review of this claim.
Pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for permission to
As this Court has explained:
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa.Super.2007).
Appellant has not satisfied the procedural prerequisites for appellate review of his objection to the discretionary aspects of his sentence. Our review of the record confirms that Appellant failed to raise his discretionary sentencing claim at his sentencing hearing or by way of post-sentence motion. In addition, Appellant failed to include a separate Pa.R.A.P. 2119(f) statement in his brief, immediately preceding the argument section. Because Appellant neglected to include a separate Rule 2119(f) statement in his brief and because the Commonwealth has objected to this omission, we deem Appellant's challenge to be waived. See Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa.Super.2003).
Judgment of sentence affirmed.
WECHT, J., files a Concurring Opinion.
CONCURRING OPINION BY WECHT, J.:
I join the learned Majority's opinion in all respects. I write separately to expound further upon Appellant's hearsay claim.
In this case, Appellant was on trial for the non-fatal shooting of Robert Rosado. Appellant apparently shot Rosado because Appellant believed that Rosado had informed law enforcement authorities that Appellant had shot and killed a man named Keith Bolden. At trial, the Commonwealth sought to introduce two out-of-court statements that implicated Appellant in the shooting of Keith Bolden. One statement was made by an individual named Brian Mejias to police detectives (the "Mejias statement"). The other statement was made by a man named Alvin
The Mejias statement was a first-hand account of the Bolden shooting, in which Mejias told the detectives that he personally observed Appellant as one of the men who shot Bolden. However, the Santiago statement was not a first-hand account. Rather, Santiago told the detectives that Mejias told him what Mejias had observed regarding the Bolden murder, which, again, included an identification of Appellant as one of the shooters.
Before trial commenced, Appellant purported to object to both statements. However, when the matter was argued before the trial court, Appellant agreed to the admissibility of the Mejias statement, but argued that the Santiago statement constituted inadmissible hearsay. Notes of Testimony ("N.T."), 6/25/2012, at 18. The trial court agreed, and ruled that the Santiago statement was inadmissible. Id. at 24.
During trial, the Commonwealth attempted to introduce the Mejias statement by having a detective read the statement to the jury. Appellant objected to the Mejias statement as being inadmissible hearsay. N.T., 6/26/2012, at 73. Apparently, Appellant's initial concession regarding the admissibility of the statement was predicated upon his belief that Mejias himself would testify that he made the statement, or that he would testify directly about what he had observed, because the stated basis for Appellant's objection was that the detective's reading of the statement to the jury rendered the statement inadmissible hearsay. Id. The Commonwealth responded that it was not offering the statement for its truth, but rather to show Appellant's motive, and to demonstrate the course of police conduct in this case. Id. at 74. The trial court overruled Appellant's objection.
Appellant contends that the trial court's ruling in this regard was an abuse of discretion. Notably, throughout the proceedings, the Commonwealth repeatedly asserted that the Mejias statement was not being offered to prove the truth of the statement, but rather to prove Appellant's motive and to demonstrate the course of the police's investigation that ultimately led to Appellant's arrest. The Majority acknowledges both of these stated bases, but addresses only the course of police conduct argument. Upon doing so, the Majority concludes that the statement, in fact, was not offered for the truth of the matter asserted, but to show the steps taken by the police that led to Appellant's arrest. On this point, I agree with the Majority that the statement was admissible for that purpose. However, I believe that the Commonwealth's argument that the statement simultaneously can be offered to show a defendant's motive, but not for the truth of the matter asserted, warrants further discussion.
Instantly, the Mejias statement was an out-of-court statement that was offered to prove Appellant's motive for shooting Rosado. The Commonwealth's theory at trial was that Appellant shot Rosado in retaliation for, as Appellant believed, Rosado informing the police that Appellant murdered Bolden. The Mejias statement was integral to demonstrating Appellant's motive in that it proved that Appellant, in fact, killed Bolden. The statement had absolutely no value to the Commonwealth if not introduced for the truth of the matter asserted in the statement. The mere fact that Mejias made the statement has no probative value in regard to motive. Only the contents of the statement, and necessarily the truth of those contents, could establish Appellant's motive. In short, the statement only has value in proving Appellant's motive if it is taken as true. In my view, it is logically inconsistent to argue that the statement was not offered for its truth and to show motive at the same time. Therefore, to the extent that the trial court ruled that the statement was admissible based upon the Commonwealth's motive argument, I would conclude that the trial court did so erroneously.
As I stated above, the Majority properly concludes that the statement was admissible to demonstrate the course of the police investigation in this case. Nevertheless, even if motive was the only stated basis in support of the admissibility of the statement, Appellant still would not be entitled to relief. "Not all errors at trial ... entitle an appellant to a new trial, and [t]he harmless error doctrine, as adopted in Pennsylvania, reflects the reality that the accused is entitled to a fair trial, not a perfect trial." Commonwealth v. West, 834 A.2d 625, 634 (Pa.Super.2003), (quoting Commonwealth v. Drummond, 775 A.2d 849, 853 (Pa.Super.2001), (internal citations and quotations omitted)).
Commonwealth v. Passmore, 857 A.2d 697, 711 (Pa.Super.2004), (quoting Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057, 1062-63 (2001)).
Having reviewed the trial transcripts, it is clear to me that the evidence presented at trial proving Appellant's guilt was overwhelming.
Trial Court Opinion, 7/11/2013, at 5-6 (references to notes of testimony omitted).
This evidence, combined with the facts presented in the trial court's initial summary of the trial evidence, overwhelmingly established Appellant's guilt. As such, to the extent that the trial court ruled on Appellant's objections based upon the Commonwealth's motive argument, I conclude that any such error was harmless. Accordingly, I concur in the result reached by the learned Majority.