Com. v. Bowler, M. (memorandum)

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J-S08019-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MAURICE BOWLER Appellant No. 674 EDA 2012 Appeal from the Judgment of Sentence December 9, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014779-2010, CP-51-CR-0014781-2010, CP-51-CR-0015780-2010 BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and MUSMANNO, J. MEMORANDUM BY LAZARUS, J. FILED MAY 15, 2013 Maurice Bowler appeals from the judgment of sentence imposed in the Court of Common Pleas of Philadelphia after a jury convicted him of three counts of robbery,1 two counts of terroristic threats2 and one count each of possession of instruments of crime (PIC)3 and persons not to possess a firearm.4 Upon careful review, we affirm. The trial court set forth the facts of this case as follows: ____________________________________________ 1 18 Pa.C.S.A. § 3701(a)(1)(ii). 2 18 Pa.C.S.A. § 2706(a)(1). 3 18 Pa.C.S.A. § 907(a). 4 18 Pa.C.S.A. § 6105(a)(1). J-S08019-13 On November 10, 2010, at approximately 6:00 p.m., complainants Patrice Beckwith, Mendy Gee, and Wilson Beckwith were at Ms. Beckwith s home at 6019 Walton Avenue in West Philadelphia. Ms. Beckwith, who knew Defendant Maurice Bowler, had asked him to come over to fix her television. At some point that evening, [Bowler] became very angry, and demanded Ms. Beckwith give him everything [she] had. [Bowler] then brandished a black handgun and ordered the Beckwiths and Ms. Gee into a room. Bowler pointed the gun at all three victims and threatened to kill them. [Bowler] then took cell phones belonging to Patrice Beckwith and Mendy Gee and fled. At approximately 6:30 p.m., Philadelphia Police Officer Adam O Donnell, Badge No. 6990, responded to a call at 6019 Walton Avenue. Officer O Donnell found the front door of the apartment complex open and encountered the three victims screaming, shouting, talking over each other. The three directed Officer O Donnell upstairs to the rear bedroom. [Officer] O Donnell searched the apartment and found no one on site. [Officer] O Donnell relayed information to Philadelphia Police Officer Eugene Roher, Badge No. 7065[,] that [Bowler] was heading toward 59th [Street] and Cedar Avenue. In a marked police vehicle, Officer Roher saw [Bowler] on foot at 59th [Street] and Larchwood [Avenue]. [Bowler] was ordered to stop but instead took flight. Officer Roher exited his police car and caught Bowler at 58th and Rodman [Streets]. On [Bowler s] person, Officer Roher found an Apple iPhone, and a grey Samsung cell phone, both belonging to Patrice Beckwith and Mendy Gee. A gun was not recovered. Patrice Beckwith positively identified Maurice Bowler as the assailant within moments of the robbery. Trial Court Opinion, 8/10/12, at 4-5 (internal citations omitted). -2- J-S08019-13 That same day, Bowler was arrested and charged with robbery and related offenses. He proceeded to a jury trial before the Honorable Ramy I. Djerassi on September 13, 2011 and was found guilty of the above offenses. On December 9, 2011, Judge Djerassi sentenced Bowler as follows: three concurrent sentences of 10 to 20 years imprisonment on the robbery convictions; two sentences of 2½ to 5 years imprisonment on the terroristic threats convictions, to run concurrently with each other and with the robbery sentences; and two two-year sentences of imprisonment on the possessory offenses, to run consecutively to the robbery sentences. On January 6, 2012, Bowler filed a post-sentence motion requesting a new trial, which was denied by the trial court on January 17, 2012. Because Bowler s post-sentence motion was filed beyond the ten-day period provided for under Pa.R.Crim.P. 720, Bowler s time to file an appeal was not extended to thirty days after the disposition of that motion. As such, he was unable to file a timely appeal to this Court. Accordingly, on January 17, 2012, Bowler filed a counseled petition under the Post Conviction Relief Act ( PCRA ), 5 seeking reinstatement of his appellate rights, nunc pro tunc. The PCRA court granted relief on February 21, 2012. This timely nunc pro tunc appeal follows, in which Bowler raises the following question: Whether the trial court erred by allowing into evidence ____________________________________________ 5 42 Pa.C.S.A. §§ 9541-46. -3- J-S08019-13 the preliminary hearing testimony of Patrice Beckwith in violation of the Rules of Evidence and the Pennsylvania and United States constitutional rights to confrontation. We begin by noting that the admissibility of evidence is a matter of trial court discretion and a ruling thereon will only be reversed upon a showing that the trial court abused that discretion. Commonwealth v. Williams, 58 A.3d 796, 800 (Pa. Super. 2012). An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. Id. Here, Bowler asserts that the trial court erred in allowing the Commonwealth to introduce the preliminary hearing testimony of key witness Patrice Beckwith after authorities were unable to locate her prior to trial. In particular, Bowler argues that: (1) the Commonwealth s belated and pro forma efforts to locate Beckwith were insufficient to satisfy the Commonwealth s burden Commonwealth s failure to to prove provide her unavailability discovery (in and particular, (2) the witness statements to police) prior to the preliminary hearing deprived the defense of a full and meaningful opportunity to cross-examine Beckwith and the trial court employed the incorrect standard in addressing this claim. We have reviewed the record, including the transcription of the preliminary hearing and the witnesses police statements, as well as the -4- J-S08019-13 parties briefs and the relevant law. We conclude that Judge Djerassi s wellwritten opinion thoroughly, comprehensively and correctly disposes of the issues Bowler raises on appeal. In particular, Judge Djerassi properly concluded that the Commonwealth sufficiently established that it made a good faith, reasonable attempt to locate Beckwith in the week leading up to trial by employing four Philadelphia Police detectives to engage in a multifaceted search that included interviewing neighbors, searching internet and police databases, and contacting hospitals and the morgue. See Commonwealth v. Campion, 672 A.2d 1328, 1331 (Pa. Super. 1996) ( The test for unavailability is whether the prosecution has made a good faith effort to produce the live testimony of the witness. prosecution must reasonableness. ) go to produce the The length to which the testimony is a question of Moreover, Judge Djerassi correctly determined that Bowler was given a full and fair opportunity to cross-examine Beckwith at his preliminary hearing and utilized the proper standard in evaluating Bowler s claim, i.e. that a defendant asserting a lack of a full and fair opportunity for cross examination must impeachment evidence. establish that he was deprived of vital Commonwealth v. Leak, 22 A.3d 1036 (Pa. Super. 2011). Bowler s claim that Beckwith s and Gee s police statements could have been used for impeachment purposes during the preliminary hearing is meritless; Judge Djerassi correctly notes that omissions are not inconsistencies and concludes that, viewed in context, the examples cited -5- J-S08019-13 by Bowler are not actually inconsistent and certainly do not rise to the level of vital impeachment evidence. See Commonwealth v. Hanford, 937 A.2d 1094, 1099 (Pa. Super. 2007) ( [D]issimilarities and omissions in prior statements must be substantial enough to cast doubt on a witness testimony to be admissible as prior inconsistent statements. ). Accordingly, we affirm based on Judge Djerassi s opinion and direct counsel to attach a copy of that opinion in the event of further proceedings in this matter. Judgment of sentence affirmed. Judgment Entered. Prothonotary Date: 5/15/2013 -6-

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