Commonwealth v. Tucker
Decision Date | 19 July 2016 |
Docket Number | No. 1411 EDA 2015,1411 EDA 2015 |
Citation | 143 A.3d 955,2016 PA Super 157 |
Parties | COMMONWEALTH of Pennsylvania, Appellee v. Dan TUCKER, Appellant. |
Court | Pennsylvania Superior Court |
Karl Baker, Public Defender, Philadelphia, for appellant.
Hugh J. Burns, Jr., Assistant District Attorney, and Alison J. Guest, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
Daniel “Dan” Tucker (“Appellant”) appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County after a jury convicted him of third-degree murder, two counts of attempted murder, aggravated assault, possession of an instrument of crime (“PIC”), and two counts of violation of the Uniform Firearms Act (“VUFA”). Sentenced to consecutive sentences aggregating to a 35 to 70–year term of incarceration, Appellant challenges the legality of his sentence, the sufficiency of evidence pertaining to attempted murder, the denial of his motions for mistrial and continuance to conduct DNA testing of evidence, respectively, and an evidentiary ruling permitting the Commonwealth to introduce a witness's prior statement to bolster his testimony. We affirm Appellant's convictions but are compelled to vacate judgment of sentence and remand for resentencing consistent with this decision.1
The trial court aptly summarizes the factual history of the case as follows:
Trial Court Opinion, filed November 13, 2015, at 3–5.
Appellant's six-day jury trial culminated with a verdict of not guilty on the charge of first-degree murder and guilty verdicts on the remainder of charges, as noted supra. After the court imposed sentence, Appellant filed no post-sentence motion, but he filed a timely notice of appeal to this Court. He subsequently complied with the trial court's order to file a Pa.R.A.P.1925(b) statement of errors complained of on appeal, and the trial court filed a responsive Rule 1925(a) opinion.
Appellant raises the following five issues for our review:
Appellant's brief at 4–5.
Appellant first contends that his five to ten year sentence imposed for VUFA at 18 Pa.C.S. § 1103(3) exceeds the statutory maximum of seven years' incarceration for a felony of the third degree and, therefore, represents an illegal sentence. For its part, the Commonwealth agrees that this aspect of Appellant's sentence is illegal, may be raised for the first time on appeal, and requires remand for resentencing.
The scope and standard of review applied to determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court's application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.
Commonwealth v. Leverette, 911 A.2d 998, 1001–1002 (Pa.Super.2006) (citations omitted). A challenge to the legality of a sentence:
is essentially a claim that the trial court did not have jurisdiction to impose the sentence that it handed down.... A trial court ordinarily has jurisdiction to impose any sentence which is within the range of punishments which the legislature has authorized for the defendant's crimes.
Commonwealth v. Cappellini, 456 Pa.Super. 498, 690 A.2d 1220, 1226 (1997), (quoting Commonwealth v. Catanch, 398 Pa.Super. 466, 581 A.2d 226, 228 (1990) ).
The statutory maximum penalty for a third degree felony is seven years' incarceration. 18 Pa.C.S. § 1103(3). Thus, we concur that the sentence imposed for VUFA is illegal as it exceeded seven years. We, therefore, vacate the sentence for VUFA and remand for resentencing consistent with Section 1103(3).
Appellant next asserts that he was denied a fair trial when the prosecutor read for a witness, Brianna Poole, a transcript of her pre-trial interview with investigators which included her statement that Appellant previously “went to jail.” N.T. 2/5/15 at 115. The prosecutor's act was particularly egregious, Appellant maintains, because the trial court had reminded the prosecutor just moments earlier to avoid reading answers that referred to Appellant's previous time in jail. See N.T. at 112.
A motion for mistrial is the appropriate means by which to challenge prosecutorial misconduct.
Pa.R.Crim.P 605(B).2 The following standards govern our review:
In criminal trials, declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. By ifying the tainted process of the former trial and allowing a new trial to convene, declaration of a mistrial serves not only the defendant's interest but, equally important, the public's interest in fair trials designed to end in just judgments. Accordingly,...
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