Commonwealth v. Trinidad

• Decision Date: 21 April 2014
• Citation: 96 A.3d 1031,2014 PA Super 78
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Hector TRINIDAD, Appellant.

96 A.3d 1031

2014 PA Super 78

COMMONWEALTH of Pennsylvania, Appellee

v.Hector TRINIDAD, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 12, 2013.

Filed April 21, 2014.

Raymond C. Geary, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: GANTMAN, OLSON and WECHT, JJ.

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:

Appellant was under investigation for the shooting death of Keith Bolden, which occurred on September 2, 2008 in the 800 block of East Thayer Street in the Kensington section of Philadelphia. On October 2, 2008, Appellant and Robert Rosado (“Rosado”) both gave statements to homicide detectives inside the Homicide Division. After [their release from questioning], Appellant approached Rosado and asked if he implicated him to the police and Rosado told Appellant [that he did not implicate him in Keith Bolden's murder]. Appellant believed that Rosado had “snitched” on him in the murder investigation of Keith Bolden. On December 27, 2008, Appellant and a friend confronted Rosado as Rosado approached his mother's house at 822 East Thayer Street. Appellant's friend fired two (2) shots in Rosado's direction [ ] as Rosado ran down the steps of his mother's home. Appellant fired nine (9) shots at Rosado, striking him in his back. [A friend rushed Rosado to the hospital] with assistance from Philadelphia Police Officer Sergeant Jonah Conway. [A] bullet hit Rosado's abdomen, [striking] his kidney and fracturing a rib. The bullet and bullet fragments were left inside Rosado because the risk of removal was too great. As a result of his injuries, Rosado was hospitalized for eight (8) days and his health has declined.

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.¹ Thereafter, on September 5, 2012, the trial court imposed sentence upon Appellant. The court ordered Appellant to serve 17 1/2 to 40 years in prison for his criminal attempt conviction and ten to 20 years' incarceration for his conspiracy conviction. The court further directed Appellant to serve these sentences consecutively and that Appellant's aggregate sentence of 27 1/2 to 60 years should run consecutive to a sentence of six and one-half to 13 years' imprisonment Appellant was currently serving for a prior firearms conviction. The court merged Appellant's conviction for aggravated assault with his attempted murder conviction.

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:

Did the [trial c]ourt err when it overruled Appellant's hearsay objections?

Did the [trial c]ourt err when it denied Appellant's [after-discovered evidence motion filed pursuant to Pa.R.Crim.P. 720(C) ]?

Was there sufficient evidence to support the [guilty verdicts for] criminal attempt, aggravated assault and conspiracy?

Did the trial court abuse its discretion by sentencing Appellant to a sentence that would run consecutive to a sentence already being served in another case?

Appellant's Brief at 4 (we have re-ordered Appellant's claims for ease of discussion).²

Before we examine the substance of Appellant's contentions, we consider whether Appellant timely filed the present appeal. “It is well settled that the timeliness of an appeal implicates our jurisdiction and may be considered sua sponte.” Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa.Super.2011). “Jurisdiction is vested in the Superior Court upon the filing of a timely notice of appeal.” Id., quoting Commonwealth v. Nahavandian, 954 A.2d 625, 629 (Pa.Super.2008).

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. SeePa.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.³Pa.R.Crim.P. 720(A)(1); Pa.R.Crim.P. 720(C). Rule 720(C) states that such a post-sentence motion “must be filed in writing promptly after such discovery.” Pa.R.Crim.P. 720(C) (emphasis added).

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 formulatedin this way, we conclude that a defendant qualifies for an extension of the appeal period under Rule 720(A)(2) whenever he files a post-sentence motion that is timely because it complies with the requirements of Rule 720(C) as set forth above.

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. SeePa.R.Crim.P. 720(A)(2); see alsoPa.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. ⁴ For this reason, we believe that a timely post-sentence motion alleging after-discovered evidence pursuant to Rule 720(C) tolls the appeal period as provided in Rule 720(A)(2).

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 ⁵ to testify at the hearing. Herbert's testimony centered upon the information set forth in his affidavit. Herbert conceded, however, that he was incarcerated with Appellant at or around the time of trial in this case and that, prior to the conclusion of Appellant's trial, he told Appellant that he was willing to testify as a witness for the defense. N.T., 11/20/12, at 38–39. Ruiz testified about a conversation he had with Rosado in January or February 2012. According to Ruiz, Rosado confided during their...