Com. v. Duncan, R. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROY DUNCAN, :
:
Appellant : No. 521 EDA 2014
Appeal from the Judgment of Sentence January 15, 2014,
Court of Common Pleas, Delaware County,
Criminal Division at No. CP-23-CR-0007700-2010
BEFORE: DONOHUE, WECHT and JENKINS, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 13, 2015
Roy Duncan (“Duncan”) appeals from the January 15, 2014 judgment
of sentence entered by the Delaware County Court of Common Pleas
following the revocation of his probation and parole for, inter alia,
committing the crime of involuntary deviate sexual intercourse (“IDSI”). 1 In
so finding, the trial court reviewed the notes of testimony from the
preliminary hearing on the IDSI charge. The charge was ultimately nol
prossed because of a violation of Duncan’s speedy trial rights pursuant to
Rule of Criminal Procedure 600. On appeal, Duncan asserts that the trial
court erred by considering the evidence presented at the preliminary hearing
on the IDSI charge. Duncan’s Brief at 6. According to Duncan, in finding
that it could consider this evidence, the trial court’s reliance on
1
18 Pa.C.S.A. § 3123(b).
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Commonwealth v. Castro, 856 A.2d 178 (Pa. Super. 2004), was
misplaced.2 Duncan’s Brief at 9-10. The trial court contends that this
argument is waived, as Duncan failed to raise it below. Trial Court Opinion,
6/17/14, at 10-12.
Our review of the record reveals that the trial court is correct. At the
revocation hearing, counsel for Duncan began by stating that in advance of
the hearing he had submitted to the trial court the case of Commonwealth
v. Brown, 469 A.2d 1371 (Pa. 1983),3 and believed, based on that case,
that “the Commonwealth would be estopped [from] introducing [evidence
related to the IDSI charge].” N.T., 1/15/14, at 5. Counsel went on to state
that he reviewed Castro that day. Although counsel’s argument is difficult
to discern, it appears he concedes that Castro is applicable. Instead of
contesting the admissibility of the preliminary hearing transcript, counsel
requested that the trial court “give less weight to the conduct that
stemmed from the [p]reliminary [h]earing than [you would] otherwise if it
would have been a conviction [or] some sort of plea, Your Honor.” Id. at 6
(emphasis added).
2
In Castro, this Court held the trial court did not err by finding the
defendant violated his probation and parole, relying upon evidence that had
been suppressed in a separate criminal proceeding, which resulted in the
withdrawal of the underlying criminal charges. Castro, 856 A.2d at 182.
3
In Brown, our Supreme Court held that a trial court could not revoke a
defendant’s probation/parole based upon evidence that he committed a
crime for which he was acquitted in a separate criminal proceeding. Brown,
469 A.2d at 1377-78.
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The remainder of the record supports the conclusion that the issue was
waived. Upon the trial court agreeing that Castro controlled, the
Commonwealth requested to enter into evidence the notes of testimony from
the preliminary hearing on the IDSI charge. Counsel for Duncan raised no
objection, but reiterated his request that the trial court “give it less weight
[than] if it was a conviction[.]” Id. at 9. Duncan did not file any post-
sentence motions.
At no point did counsel for Duncan advance the argument before the
trial court he now raises on appeal – that nol prossing the charges on Rule
600 grounds is more akin to an acquittal than the withdrawal of charges
following the grant of suppression, rendering Castro inapposite and Brown
controlling. Duncan’s Brief at 6-12. To the contrary, there is no indication
that Duncan ever contested the applicability of Castro or asserted that the
case differed in any significant respect from the procedural posture present
in Castro.
The law is well settled that in order to preserve an issue for appellate
review, a party must make a timely and specific objection. Pa.R.A.P.
302(a). Failure to do so results in waiver of that issue on appeal.
Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014). Our
Supreme Court has held that agreement to an issue that the party
previously objected to is “in legal effect a deliberate withdrawal of his earlier
objection,” and cannot subsequently be argued on appeal before this Court.
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Commonwealth v. LaCourt, 292 A.2d 377, 379 (Pa. 1972). We therefore
find the issue waived.
As we find waived the sole issue raised by Duncan, we dismiss his
appeal.
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2015
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