Com. v. Walker, D. ( 2021 )

J-A20029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARELL DEISEAN WALKER :
:
Appellant : No. 1177 WDA 2019
Appeal from the Judgment of Sentence Entered July 2, 2019
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0000255-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARELL D. WALKER :
:
Appellant : No. 1178 WDA 2019
Appeal from the Judgment of Sentence Entered July 2, 2019
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0005246-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARELL DEISEAN WALKER :
:
Appellant : No. 1179 WDA 2019
Appeal from the Judgment of Sentence Entered July 2, 2019
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0005247-2016
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
J-A20029-20
MEMORANDUM BY OLSON, J.: FILED JANUARY 08, 2021
Appellant, Darell Deisean Walker, appeals from the judgment of
sentence entered on July 2, 2019, following his jury trial convictions in the
Criminal Division of the Court of Common Pleas of Westmoreland County. We
affirm.
The facts and procedural history of this case are as follows. In late
2016, the Commonwealth charged Appellant with various offenses relating to
his sexual assault of two female victims, K.B. and A.D. On December 28,
2017, Appellant filed an omnibus pre-trial motion which included, inter alia, a
motion to suppress incriminating statements made by Appellant and a motion
to dismiss pursuant to Pa.R.Crim.P. 600. The trial court convened a hearing
on Appellant’s omnibus pre-trial motion on May 17, 2018. The next day, the
trial court denied Appellant’s motion to suppress and Rule 600 motion to
dismiss.
Appellant’s consolidated jury trial commenced on April 1, 2019. The
trial court summarized the relevant trial testimony as follows.
During trial, both [K.B.] and [A.D.] testified regarding their
involvement with [Appellant]. [K.B.] testified that in the fall of
2016, she was [13-years-old], and she lived in Greensburg[,
Pennsylvania] with her mother, her mother's boyfriend, and her
sisters. [K.B.] stated that in 2016, she received a friend request
from [Appellant] on Instagram and[,] after accepting it, she and
[Appellant] began talking. [K.B.] testified that on one occasion in
the fall of 2016 when [she] was still 13[-]years[-]old, she asked
[Appellant] to come over to her house. [K.B.] alleged that
[Appellant] drove to her house, and they had [sexual intercourse]
in [Appellant’s] vehicle which was parked in the alley behind her
house. … On a second occasion in the fall of 2016, [K.B.] testified
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that she asked [Appellant] to come over to her house, and they
had [sexual] intercourse in her bathroom. [K.B.] testified that the
night before she ran away from home, [Appellant] came over,
gave her [marijuana], and [Appellant] put his penis in her mouth,
and she performed oral sex. [K.B.] confirmed that the messages
that she exchanged with [Appellant] all occurred when she was
[13-years-old].
[A.D.] also testified at trial regarding her involvement with
[Appellant]. [A.D.] testified that in the summer of 2016, she was
14[-]years[-]old and lived in Greensburg[, Pennsylvania] with her
mother, her mother's boyfriend, and her brother. [A.D.] testified
that she met [Appellant] through her ex–boyfriend[.] [A.D.]
testified that[, after they met,] she and [Appellant] began [text
messaging one another.] On one occasion, [A.D.] testified that
she performed oral sex on [Appellant], and they engaged in
[sexual intercourse] in [Appellant’s] vehicle which was parked in
the alley in the back of her house. [A.D.] also testified that on a
different occasion, she had similar contact with [Appellant] at
[Appellant’s] home.
[Appellant] also elected to testify at trial. [Appellant] testified that
he met [K.B.] on Instagram when he sent her a friend request.
[Appellant] stated that when he first started talking to [K.B., she]
told him she was 18[-]years[-]old. [Appellant] testified that they
began to talk on Facebook, and then they eventually met in person
in 2016. During their first in-person encounter, [Appellant]
testified that [K.B.] invited him over and they watched a movie
for a little bit, and then he left. On the second occasion,
[Appellant] testified that [K.B.] came to his car and while they
were in his car, [K.B.] performed oral sex on him and they ended
up having sexual intercourse. On the third occasion, [Appellant]
stated that he and [K.B.] had sexual intercourse in [K.B.’s]
bathroom. [Appellant] testified that he was unaware that [K.B.]
was an underage minor until after these encounters occurred and
he learned that she was missing. [Appellant] indicated that he
met [A.D.] in[-]person though [a] friend[.] [Appellant] testified
that he did [know] how old [A.D.] was, but he had no reason to
believe that she was underage. [Appellant] testified that on the
first occasion that he met with [A.D] alone, he went to [A.D.’s]
home and she got into his car and they had sexual intercourse.
On two other occasions, [Appellant] stated that [A.D.] invited him
over to her [grandmother’s] house and then [her] house[.]
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[Appellant] testified that all of these events occurred in 2016 when
he was [21-years-old].
Trial Court Opinion, 11/4/19, at 3-5 (internal citations omitted).
On April 4, 2019, the jury convicted Appellant of the following offenses.1
Under docket number CP-65-CR-0000255-2017 (hereinafter, “Docket
255-2017”), the jury convicted Appellant of three counts of statutory sexual
assault2 and corruption of a minor.3 Under docket number
CP-65-CR-0005246-2016 (hereinafter, “Docket 5246-2016”) the jury
convicted Appellant of involuntary deviant sexual intercourse (“IDSI”) with a
person less than 16 years old;4 aggravated indecent assault of a complainant
less than 16 years old;5 indecent assault of a person less than 16 years old;6
and statutory sexual assault. Under docket number CP-65-CR-0005247-2016
(hereinafter, “Docket 5247-2016”), the jury convicted Appellant of unlawful
contact with a minor;7 corruption of a minor; possession of a controlled
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1 The jury acquitted Appellant of all charges for the crimes docketed at
CP-65-CR-0000253-2017. See Trial Court Opinion, 11/4/19, at 6, n.3.
2 18 Pa.C.S.A. § 3122.1(a)(1).
3 18 Pa.C.S.A. § 6301(a)(1)(ii).
4 18 Pa.C.S.A. § 3123(a)(7).
5 18 Pa.C.S.A. § 3125(a)(8).
6 18 Pa.C.S.A. § 3126(a)(8).
7 18 Pa.C.S.A. § 6318(a)(1).
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substance: marijuana;8 and possession of drug paraphernalia.9 On July 2,
2019, the trial court sentenced Appellant to an aggregate sentence of eight
and one-half to 17 years’ incarceration followed by five years’ probation.
Appellant “was also subjected to a lifetime registration under [the Sexual
Offender Registration Notification Act [(“SORNA”)].” Trial Court Opinion,
11/4/19, at 7.
On July 31, 2019, Appellant filed a single notice of appeal for all three
docket numbers.10 On September 20, 2019, this Court consolidated
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8 35 P.S. § 780-113(a)(31).
9 35 P.S. § 780-113(a)(32).
10 Pursuant to Pa.R.A.P. 1925(b)(1), on August 6, 2019, the trial court
entered an order directing Appellant to “file . . . a concise statement of errors
complained of on appeal” within 21 days. Trial Court Order, 8/6/19, at 1. The
order also mandated that Appellant “serve a copy of [the] statement” to the
trial court. Id. Thereafter, Appellant filed a motion for an extension of time
to file his concise statement. The trial court granted Appellant’s motion and
ordered him to “file his Rule 1925(b) statement by October 26, 2019.” Trial
Court Order, 8/27/19, at 1. In its Pa.R.A.P. 1925(a) opinion, the trial court
states that Appellant “filed [his 1925(b)] statement” on October 25, 2019.
Trial Court Opinion, 11/4/19, at 7. Appellant’s concise statement, however,
is not included within the certified record. In addition, a review of the trial
court’s docket reveals that no concise statement was filed. “It is well-settled
that an appellant's failure to comply with a trial court's Rule 1925(b) [o]rder
results in a waiver of all issues on appeal.” Commonwealth v. Chester, 163
A.3d 470, 472 (Pa. Super. 2017) (citation omitted). When a Rule 1925(b)
order is entered, however, “the clerk of courts must furnish copies of the order
to the parties and record the date of service of the order in the docket pursuant
to Pa.R.Crim.P. 114.” Id. Pa.R.Crim.P. 114 mandates that the clerk enter
the order “promptly” on the docket, and that the docket entry contain, inter
alia, “the date of service of the order or court notice.” Pa.R.Crim.P. 114(C).
A review of the entries at Docket 255-2017, Docket 5246-2016, and Docket
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Appellant’s appeals sua sponte and issued a rule to show cause why the appeal
should not be quashed pursuant to our Supreme Court’s decision in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). On September 25,
2019 counsel for Appellant responded to the rule to show cause. In his
response, Appellant’s counsel acknowledged that he failed to file three
separate notices of appeal. Response to Rule to Show Cause, 9/25/19, at *1
(un-paginated). Counsel, however, argued that, because this case “involve[d]
a single [Appellant] with similar issues at each docket” and this Court “would
[have] consolidated [the case] into one appeal, regardless of separate filings”
Appellant’s appeal was distinguishable from Walker. Id. Therefore, counsel
requested that this Court reach the merits of Appellant’s appeal or, in the
alternative, “grant Appellant leave of [c]ourt to file three separate [n]otices
of [a]ppeal nunc pro tunc, given the circumstances of this case.” Id. at *2.
On October 22, 2019, this Court discharged the rule to show cause by per
curiam order and permitted the appeal to continue with the proviso that the
ruling was not a binding, final determination and that the panel assigned to
address the merits of the appeal could further address the Walker issue.
____________________________________________
5247-2016 reveals that there is no notation that the original Rule 1925(b)
order or the trial court’s order granting Appellant’s motion for an extension
was forwarded to Appellant’s counsel, nor any indication of the date upon
which service supposedly occurred. “Based upon the lack of recordation in
the docket, we are unable to determine the date of service of the [o]rder[s],
as required under Criminal Rule 114, and cannot conclude that [Appellant]
failed to comply with the [] court's directive to file a concise statement.”
Chester, 163 A.3d at 472. As such, we decline to find Appellant’s claims
waived on this basis.
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Hence, before we consider the merits of Appellant's claim, we first
determine whether this appeal is properly before us. As this Court previously
explained:
Pennsylvania Rule of Appellate Procedure 341(a) directs that “an
appeal may be taken as of right from any final order of a
government unit or trial court.” Pa.R.A.P. 341(a). “The Official
Note to Rule 341 was amended in 2013 to provide clarification
regarding proper compliance with Rule 341(a)....” [Walker, 185
A.3d at 976]. The Official Note now reads:
Where . . . one or more orders resolves issues arising on
more than one docket or relating to more than one
judgment, separate notices of appeal[] must be filed.
Commonwealth v. C.M.K., 932 A.2d 111, 113 & n.3 (Pa.
Super. 2007) (quashing appeal taken by single notice of
appeal from order on remand for consideration under
Pa.R.Crim.P. 607 of two persons' judgments of sentence).
Pa.R.A.P. 341, Official Note.
In Walker, our Supreme Court construed the above-language as
constituting “a bright-line mandatory instruction to practitioners
to file separate notices of appeal.” Walker, 185 A.3d at
976-[9]77. Therefore, the Walker Court held that “the proper
practice under Rule 341(a) is to file separate appeals from an
order that resolves issues arising on more than one docket. The
failure to do so requires the appellate court to quash the appeal.”
Id. at 977. However, the Court tempered its holding by making
it prospective [and applicable only to appeals filed after June 1,
2018], recognizing that “[t]he amendment to the Official Note to
Rule 341 was contrary to decades of case law from this Court and
the intermediate appellate courts that, while disapproving of the
practice of failing to file multiple appeals, seldom quashed appeals
as a result.” Id. Accordingly, the Walker Court directed that “in
future cases Rule 341 will, in accordance with its Official Note,
require that when a single order resolves issues arising on more
than one lower court docket, separate notices of appeal must be
filed. The failure to do so will result in quashal of the appeal.” Id.
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Commonwealth v. Williams, 206 A.3d 573, 575–576 (Pa. Super. 2019)
(emphasis in original). Because Appellant filed his notice of appeal on July
31, 2019, the rule announced in Walker governs. As stated above, Appellant
filed a single notice of appeal listing all three docket numbers, rather than
three separate notices of appeal at each trial court docket. As such, Appellant
violated our Supreme Court’s mandate in Walker and this appeal is subject
to quashal.
This Court, however, in Commonwealth v. Stansbury, 219 A.3d 157(Pa. Super. 2019), declined to quash an appeal listing two docket numbers
because the trial court misinformed Stansbury that he could file a single notice
of appeal. Indeed, we determined that the trial court’s failure to advise
Stansbury properly regarding his appellate rights amounted to a “breakdown
in the court system” and, accordingly, we excused his failure to comply with
Walker. Stansbury, 219 A.3d at 160. Notably, this holding in Stansbury
was recently reaffirmed by an en banc panel of this Court. See
Commonwealth v. Larkin, 235 A.3d 350, 354 (Pa. Super. 2020) (en banc)
(holding that, because the trial court’s order informed Larkin that he had “[30]
days from the date of [the] order to file an appeal” a breakdown in the court
system occurred which excused non-compliance with Walker) (emphasis in
original). Thus, based upon both Stansbury and Larkin, “we may overlook
the requirements of Walker where [] a breakdown occurs in the court system,
and a defendant is misinformed or misled regarding his appellate rights.”
Larkin, 235 A.3d at 354.
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Here, our review of the record reveals a scenario similar to that
presented in Larkin and Stansbury. Indeed, during Appellant’s sentencing
hearing on July 2, 2019, the trial court explained his appellate rights as
follows.
You have two choices as far as your appeal. You can file a direct
appeal to the Superior Court, which must be filed within 30 days
from today’s date, and it must be in writing. [Appellant’s trial
counsel] will continue [to represent] you on direct appeal. If you
fail to file an appeal, any errors which may have occurred during
your trial or any complaints that you may have about your
sentence which I imposed will be lost forever[.]
N.T. Sentencing Hearing, 7/2/19, at 21 (emphasis added). The trial court
therefore “utilized the singular” when it advised Appellant to file an appeal
even though “Walker required that Appellant file separate notices of appeal
at each docket number.” Stansbury, 219 A.3d at 160. Accordingly, the trial
court misinformed Appellant regarding his appellate rights and a breakdown
in the court system occurred which permits us to overlook the requirements
of Walker. As such, we decline to quash the instant appeal.
Appellant raises the following issues on appeal:
I. Did the Commonwealth introduce sufficient evidence to sustain
the sex offense convictions by the jury verdict at these three
consolidated cases?
II. Did the [trial] court abuse [its] discretion by denying [Appellant’s]
[m]otion to [s]uppress[?]
III. Did the trial court abuse [its] discretion by denying [Appellant’s]
[Pa.R.Crim.P.] 600 [m]otion to [d]ismiss?
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Appellant’s Brief at 6.
In Appellant’s first issue, he contends that the evidence was insufficient
to support his convictions. Appellant specifically argues that the
Commonwealth failed to produce sufficient evidence to support his convictions
for: IDSI, aggravated indecent assault, statutory sexual assault, and
corruption of a minor. Upon review, we conclude that this issue is waived.
This Court has previously explained that Pa.R.A.P. 2119 compels a
finding of waiver “where an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review[.]” Tosi v. Kizis, 85 A.3d 585,
589 n.6 (Pa. Super. 2014) (citation omitted). “[W]e decline to become the
appellant's counsel. When . . . briefs are wholly inadequate to present specific
issues for review, [this] Court will not consider the merits thereof.” Branch
Banking & Trust v. Gesiorski, 904 A.2d 939, 942–943 (Pa. Super. 2006)
(internal alteration and citation omitted).
In the argument section of his brief devoted to this issue, Appellant,
aside from citing some of the relevant sections of the Criminal Code, fails to
support his claims with pertinent precedent or explain how the evidence was
insufficient to support his convictions. With regard to his convictions for IDSI
and aggravated indecent assault, Appellant simply claims that
[t]he fact that [K.B.] could not pinpoint the dates of the alleged
crimes is insufficient evidence that they occurred as charged.
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Appellant’s Brief at 11. Further, concerning his convictions for statutory
sexual assault and corruption of a minor, Appellant states that
[i]t was not proven by the Commonwealth that [Appellant] was
not mistaken and misled about [A.D.’s] age. [A.D.] also could not
remember the exact dates of the sexual encounters with
[Appellant].
Id. at 12. Thus, Appellant’s “argument” consists of three sentences and is
nothing more than a bald assertion without any analysis. We therefore
conclude that this issue is waived.11 See Wirth v. Commonwealth, 95 A.3d
822, 837 (Pa. 2014) (holding that “[w]here an appellate brief fails to ...
develop an issue in any [] meaningful fashion capable of review, that claim is
waived. It is not the obligation of an appellate court to formulate [an]
appellant's argument for him.”) (internal quotations omitted).
In his second issue, Appellant argues that the court erred in dismissing
his motion to suppress. Likewise, in his third issue, Appellant claims that the
trial court erred in denying his motion to dismiss filed pursuant to Pa.R.Crim.P.
600. Both of these motions were included in Appellant’s omnibus pre-trial
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11 Even if Appellant did not waive this issue on appeal, we would conclude that
the evidence was sufficient to sustain his convictions. We have reviewed the
briefs of the parties, the relevant law, the certified record, the notes of
testimony, and the opinion of the able trial court judge, the Honorable
Christopher A. Feliciani. We conclude that Appellant is not entitled to relief in
this case and that Judge Feliciani’s November 4, 2019 opinion accurately
disposes of Appellant’s challenge to the sufficiency of the evidence on appeal.
Therefore, we affirm on the basis of Judge Feliciani’s opinion and adopt it as
our own. In any future filing with this or any other court addressing this ruling,
the filing party shall attach a copy of Judge Feliciani’s November 4, 2019
opinion.
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motion filed December 28, 2017. The trial court convened a hearing for
argument on Appellant’s motion on May 17, 2018. Appellant, however, never
requested that the transcripts from this proceeding be prepared. This Court
previously explained:
The fundamental tool for appellate review is the official record of
the events that occurred in the trial court. To ensure that an
appellate court has the necessary records, the Pennsylvania Rules
of Appellate Procedure provide for the transmission of a certified
record from the trial court to the appellate court. The law of
Pennsylvania is well settled that matters which are not of record
cannot be considered on appeal. Thus, an appellate court is
limited to considering only the materials in the certified record
when resolving an issue. In this regard, our law is the same in
both the civil and criminal context because, under the
Pennsylvania Rules of Appellate Procedure, any document which
is not part of the officially certified record is deemed
non-existent—a deficiency which cannot be remedied merely by
including copies of the missing documents in a brief or in the
reproduced record. ... Simply put, if a document is not in the
certified record, the Superior Court may not consider it.
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006)
(citations omitted). “Our law is unequivocal that the responsibility
rests upon the appellant to ensure that the record certified on
appeal is complete in the sense that it contains all of the materials
necessary for the reviewing court to perform its duty.” Id. at 7;
see also Pa.R.A.P. 1911(d) (stating that “[i]f the appellant fails
to take the action required by these rules and the Pennsylvania
Rules of Judicial Administration for the preparation of the
transcript, the appellate court may take such action as it deems
appropriate, which may include dismissal of the appeal.”). Thus,
the failure by an appellant to ensure that the original record for
appeal contains sufficient information to conduct a proper review
constitutes a waiver of the issues sought to be examined. Id.Commonwealth v. Chilcote, 2020 WL 2617032, at *5 (Pa. Super. May 22,
2020). As Appellant failed to ensure that the transcripts from the May 17,
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2018 hearing on his motion to suppress12 and motion to dismiss13 were
prepared and included in the certified record, we conclude that his final two
issues are waived.14
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12 We note that, with regard to a claim that a trial court erred in denying a
motion to suppress, our “scope of review . . . is limited to the evidence
presented at the suppression hearing.” Commonwealth v. Shreffler, 201
A.3d 757, 758 n.3 (Pa. Super. 2018). Thus, Appellant’s failure to include the
transcripts of the May 17, 2018 hearing on appeal is especially fatal to his
claim that the trial court erred in denying his motion for suppression. See
Commonwealth v. Gillen, 798 A.2d 225, 229 (Pa. Super. 2002) (explaining
that the appellant waived his challenge to the suppression court’s ruling
because he failed “to provide [this Court] with the necessary [suppression]
transcript”).
13Even if Appellant did not waive his speedy trial issue, we would still conclude
that he is not entitled to relief. Pa.R.Crim.P. 600(A)(2)(a) mandates that “in
a court case in which a written complaint is filed against the defendant[, trial]
shall commence within 365 days from the date on which the complaint is filed.”
Pa.R.Crim.P. 600(A)(2)(a). This Court has explained
the courts of this Commonwealth employ three steps in
determining whether Rule 600 requires dismissal of charges
against a defendant. First, Rule 600(A) provides the mechanical
run date. Second, we determine whether any excludable time
exists pursuant to Rule 600(C). We add the amount of excludable
time, if any, to the mechanical run date to arrive at an adjusted
run date.
Commonwealth v. Bethea, 185 A.3d 364, 371 (Pa. Super. 2018) (cleaned
up) (emphasis omitted).
Excludable time includes, inter alia, any period of delay which “results from
either the unavailability of the defendant or the defendant’s attorney or any
continuance granted at the request of the defendant or the defendant’s
attorney.” Pa.R.Crim.P. 600, cmt. Moreover, after a Rule 600 motion to
dismiss is filed, “the time taken for [the court to render a decision] . . . is also
excludable.” Commonwealth v. Hyland, 875 A.2d 1175, 1191 (Pa. Super.
2005). Further, “periods of judicial delay are excludable from calculations
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under Rule 600.” Commonwealth v. Mills, 162 A.3d 326, 325 (Pa. 2017).
Excusable delay, on the other hand, “is delay that occurs as a result of
circumstances beyond the Commonwealth's control and despite its due
diligence.” Commonwealth v. Colon, 87 A.3d 352, 357 (Pa. Super. 2014).
Due-diligence is a fact-specific concept that is determined on a
case-by-case basis. Due diligence does not require perfect
vigilance and punctilious care, but rather a showing by the
Commonwealth that a reasonable effort has been put forth.
Judicial delay may justify postponing trial beyond the adjusted run
date if the Commonwealth was prepared to commence trial prior
to the expiration of the mandatory period but the court was
unavailable because of ‘scheduling difficulties and the like.’
Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super. 2012), appeal
denied, 63 A.3d 1245 (Pa. 2013) (internal citations and quotations omitted).
Herein, the Commonwealth filed two criminal complaints (Docket Number
5246-2016 and Docket Number 5247-2017) against Appellant on October 28,
2016. As such, the mechanical run date in this case is October 30, 2017. See
1 Pa.C.S.A. § 1908 (“Whenever the last day of any [period referenced in a
rule or statute] shall fall on Saturday or Sunday, or on any day made a legal
holiday by the laws of this Commonwealth or of the United States, such day
shall be omitted from the computation.”). We must, however, “account for
any ‘excludable time’ and ‘excusable delay’” to derive the adjusted run date.
Colon, 87 A.3d at 357. Upon review, we conclude that Appellant caused the
following periods of delay: March 20, 2017 to July 6, 2017 (continuance of
trial granted to allow Appellant to file pre-trial motions); September 26, 2017
to May 18, 2018 (continuance of trial granted to allow Appellant to file pre-trial
motions, including Appellant’s omnibus pre-trial motion containing a motion
to dismiss pursuant to Pa.R.Crim.P. 600; trial court’s deliberation over
Appellant’s motion to dismiss); July 30, 2018 to November 20, 2018 (multiple
continuances of trial granted at Appellant’s request); and January 16, 2019 to
April 1, 2019 (continuance of trial granted at Appellant’s request). A total of
530 days are attributable to Appellant and, as such, the aforementioned
periods are excludable. Thus, adding only the excludable time to the
mechanical run date, the final run date is, at the earliest, April 13, 2019 – 13
days after Appellant’s trial commenced. Hence, the trial court properly denied
Appellant’s Rule 600 motion.
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Because each of Appellant’s issues are waived, we affirm his judgment
of sentence.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/08/2021
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14 We note that all of the transcripts included in the certified record were
produced upon a specific request reflected in the trial court dockets. Upon
review, however, the trial court dockets do not show that a request was made
for the transcripts of the May 17, 2018 hearing and there are no transcripts
from that hearing in the certified record. The Superior Court’s prothonotary
made an informal inquiry into the whereabouts for the May 17, 2018 hearing
transcripts, but was unable to determine its location. As such, we are
constrained to conclude that the transcripts are missing from the certified
record and, as such, do not exist for purposes of this appeal, even though the
trial court made reference to the transcripts from the May 17, 2020 hearing
in its Rule 1925(a) opinion.
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Received 3/16/2020 1:53:49 PMCirculated 12/10/2020
Superior Court 02:22
Western PM
District
Filed 3/16/2020 1:53:00 PM Superior Court Western District
1179 WDA 2019
IN THE COURT OF COMMON PLEAS OF 'WESTMORELAND COUNTY,
PENNSYLVANIA CRIMINAL DIVISION -
COMMONWEALTH OF PENNSYLVANIA
NO. 255 C 2017
VS. 5246 C 2016
5247 C 2016
DARELL DEISEAN WALKER,
Defendant.
OPINION AND ORDER OF COURT
ISSUED PURSUANT TO PA.R.A.P. RULE 1925(A)
The defendant, Darell Deisean Walker, appeals from the judgment of sentence entered
July 2, 2019, wherein he was sentenced to an aggregate sentence of eight and one half (8 1/2 ) to
seventeen (17) years incarceration followed by five (5) years probation. This Opinion is issued in
compliance with Pa.R.A.P. Rule 1925.
FACTUAL HISTORY
The instant matter first arose out of an investigation into the whereabouts of minor,
Karizma Burton, who was alleged to have run away from her residence. As a result of that
investigation, a subsequent investigation led police to uncover allegations of sexual offenses
between the defendant, Darell Deisean Walker ("Mr. Walker") and minor victims, Karizma
Burton and Americus Dillon in Westmoreland County'. During trial, Detective Sergeant John
Swank of the Greensburg Police Department testified relative to his involvement with these
investigations. (Trial Transcript "TT" 4/1/19-4/4/19 at 381). Detective Swank testified that on
October 18, 2016, he was notified of a reported runaway of Ms. Burton. (TT at 382). Detective
Swank testified that he visited Greensburg Salem Middle School, in which Ms. Burton was
enrolled at and met with Principal, Adam Jones. (TT at 383). Together, Detective Swank and
Principal Jones conducted interviews with other students that Ms. Burton had socialized with,
r Mr. Walker was also charged at case number 253 C 2017 involving minor, Katherine Saluga.
1
including Ms. Burton's sister Dymonde Burton. (TT at 383). Through their interviews, they
learned that Ms. Burton had been socializing with and was seen entering the vehicle of a black
male who was operating a red vehicle, named Darell. (TT at 383-384). According to Detective
Swank, Principal Jones accessed Ms. Burton's Facebook account and identified Mr. Walker as
the possible person that Ms. Burton may have been talking with. (TT at 384). Both Dymonde
and fellow student. Americus Dillon confirmed that Mr. Walker was the individual that they saw
Ms. Burton with. (TT at 384). After obtaining an address from Mr. Walker's driver's license,
Detective Swank went to the Eastmont Estates in Greensburg and was met by Mr. Walker's
mother, Junita Walker. (TT at 385). Ms. Walker allegedly informed Detective Swank that her
son was living in Youngwood at that time and working at the Dollar General. (TT at 385). Ms.
Walker then called her son, and it is alleged that Mr. Walker initially reported to Detective
Swank that although he knew Ms. Burton, he had not seen her for several months. (TT at 386-
3 87). Detective Swank then went to the Dollar General where Mr. Walker was working and
requested him to come outside and speak with him. (TT at 386). Detective Swank testified that
eventually Mr. Walker admitted that he had seen Ms. Burton within the past couple weeks, and
she had been inside his vehicle. (TT at 386-387).
After obtaining additional information, Detective Swank returned to the Dollar General
and asked Mr. Walker if he would once again come outside and talk. (TT at 389). Detective
Swank testified that he informed Mr. Walker about the Facebook messages between him and Ms.
Burton and also told Mr. Walker that you know Ms. Burton is only 13 years old, to which Mr.
Walker allegedly responded I know, but that nothing happened. (TT at 389). Detective Swank
testified that eventually Mr. Walker made an admission that Ms. Burton had performed oral sex
on him in his vehicle in an alley behind her residence. (T1' at 389). Mr. Walker was
2
subsequently arrested, and charges were filed in relation to his involvement with Ms. Burton.
(TT at 390). On cross-examination, Detective Swank testified that when he went to the Dollar
General to speak with Mr. Walker, he did not inform Mr. Walker of his Miranda rights because
he was not under arrest at that time. (TT at 419-420).
Subsequently, on November 8, 2016, Detective Swank testified that he was contacted by
Detective James Williams from the Westmoreland County District Attorney's Office. (TT at
400). According to Detective Swank, Detective Williams advised him that he had infoiiiiation
via Mr. Walker's cellmate, Jared Letosky, regarding additional victims of Mr. Walker, including
Ms. Dillon who was 14 years old. (TT at 400-401). After speaking with Ms. Dillon, Detective
Swank filed additional charges against Mr. Walker. (TT at 404). At trial, Mr. Letosky
confirmed that he was cellmates with Mr. Walker in October 2016, and he testified that he
observed Mr. Walker writing him a letter detailing the sexual encounters. (TT at 165-175).
Specifically, Mr. Letosky testified that the letter included the specific names and the ages of the
girls in which Mr. Walker alleged to have sexual encounters with involving the above-referenced
cases. (TT at 173-174); See Commonwealth's Exhibits Two and Three.
During trial, both Ms. Burton and Ms. Dillon testified regarding their involvement with
Mr. Walker. Ms. Burton testified that in the fall of 2016, she was thirteen years old, and she
lived in Greensburg with her mother, her mother's boyfriend, and her sisters. (TT at 63-64).
Ms. Burton stated that in 2016, she received a friend request from Mr. Walker on Instagram. and
after accepting it, she and Mr. Walker began talking. (TT at 67-68). Ms. Burton testified that on
one occasion in the fall of 20162 when Ms. Burton was still 13 years old, she asked Mr. Walker
to come over to her house. (TT at 70). Ms. Burton alleged that Mr. Walker drove to her house,
2Commonwealth's Exhibit One consists of messages exchanged between Mr. Walker and Ms. Burton via Facebook
messenger between September 21, 2016 and October 8, 2016.
3
and they had vaginal sex in Mr. Walker's vehicle which was parked in the alley behind her
house. (TT at 70-71). Ms. Burton stated that she remembered Mr. Walker put his penis in her
vagina, and then Mr. Walker put his penis in Ms. Burton's mouth before ejaculating. (TT at 73).
On a second occasion in the fall of 2016, Ms. Burton testified that she asked Mr. Walker to come
over to her house, and they had vaginal intercourse in her bathroom. (TT at 74). Ms. Burton
testified that the night before she ran away from home, Mr. Walker came over, gave her weed,
and Mr. Walker put his penis in her mouth, and she performed oral sex. (TT at 76). Ms. Burton
confirmed that the messages that she exchanged with Mr. Walker all occurred when she was
thirteen years old. (TT at 114).
Ms. Dillon also testified at trial regarding her involvement with Mr. Walker. Ms. Dillon
testified that in the summer of 2016, she was 14 years old and lived in Greensburg with her
mother, her mother's boyfriend, and her brother. (TT at 222-223). Ms. Dillon testified that she
met Mr. Walker through her ex -boyfriend, Davis Shields. (TT at 223). Ms. Dillon testified that
she and Mr. Walker began texting back and forth. (TT at 226). On one occasion, Ms. Dillon
testified that she performed oral sex on Mr. Walker, and they engaged in vaginal sex in Mr.
Walker's vehicle which was parked in the alley in the back of her house. (TT at 226-228). Ms.
Dillon also testified that on a different occasion, she had similar contact with Mr. Walker at Mr.
Walker's home. (TT at 228-229).
Mr. Walker also elected to testify at trial. Mr. Walker testified that he met Ms. Burton on
Instagram when he sent her a friend request. (TT at 435-436). Mr. Walker stated that when he
first started talking to Ms. Burton, Ms. Burton told him she was 18 years old. (TT at 438). Mr.
Walker testified that they began to talk on Facebook, and then they eventually met in person in
2016. (TT at 438-439). During their first in-person encounter, Mr. Walker testified that Ms.
4
Burton invited him over and they watched a movie for a little bit, and then he left.
(TT at 438).
On the second occasion, Mr. Walker testified that Ms. Burton came to his car
and while they
were in his car, Ms. Burton performed oral sex on him and they ended up having sexual
intercourse. (TT at 438-439). On the third occasion, Mr. Walker stated that he and Ms.
Burton
had sexual intercourse in Ms. Burton's bathroom. (TT at 439). Mr. Walker
testified that he was
unaware that Ms. Burton was an underage minor until after these encounters occurred
and he
learned that she was missing. (TT at 440). Mr. Walker indicated that he met Ms.
Dillon in
person though his friend, David. (TT at 441). Mr. Walker testified that he did not
have any idea
how old Ms. Dillon was, but he had no reason to believe that she was
underage. (TT at 441).
Mr. Walker testified that on the first occasion that he met with Ms. Dillon alone,
he went to Ms.
Dillon's home and she got into his car and they had sexual intercourse. (TT at 442). On two
other occasions, Mr. Walker stated that Ms. Dillon invited him over to her
grandma's house and
then Ms. Dillon's house in Greensburg. (TT at 443). Mr. Walker testified that all of
these events
occurred in 2016 when he was twenty years old. (TT at 443, 472).
PROCEDURAL HISTORY
On October 18, 2016, a Criminal Complaint was filed against Mr. Walker at Case
Number 5247 C 2016, charging him with Unlawful Contact with Karizma Burton, a Minor;
Corruption of Minors; Possession of a Small Amount of Marijuana; and Possession of Drug
Paraphernalia. On October 20, 2016, a subsequent Criminal Complaint was filed against Mr.
Walker at Case Number 5246 C 2016, charging him with Involuntary Deviate Sexual
Intercourse, Aggravated Indecent Assault, Indecent Assault, and Statutory Sexual Assault (4-8
Years Older) of victim Karizma Burton. On November 14, 2016, a Criminal Complaint was
filed against Mr. Walker at Case Number 255 C 2017, charging him with three counts of
5
Statutory Sexual Assault (4-8 Years Older) in relation to victim
Americus Dillon and one count
of Corruption of Minors. On December 28, 2017, Mr. Walker filed
an Omnibus Pre -Trial
Motion including a Motion for Rule 600 Relief and a Motion
to Suppress. Both Motions were
denied by the Court following at hearing on May 17,
2018.
On April 1, 2019, Mr. Walker proceeded to a jury trial
before this Court. During trial,
Mr. Walker was represented by Attorney Timothy
Dawson. On April 4, 2019, the jury returned
a verdict of guilty of all counts at the above -referenced case numbers.3 On
July 2, 2019, Mr.
Walker was sentenced as follows: At Case Number 5246 C
2016, Mr. Walker was sentenced at
Count One to serve six (6) to twelve (12) years incarceration
at a state correctional institution; at
Count Two, Mr. Walker was sentenced to serve two and one half
(2 1/2) to five (5) years
incarceration consecutive to Count One followed by five (5) years
consecutive probation; at
Count Three, Mr. Walker was sentenced to serve twelve (12)
months probation concurrent to
Count One; and at Count Four, Mr. Walker was sentenced to serve one
(1) to two (2) years
incarceration concurrent to Count One. At Case Number 5247 C 2016,
Mr. Walker was
sentenced at Count One to serve six (6) to twelve (12) years incarceration
concurrent to Case
Number 5246 C 2016; at Count Two, Mr. Walker was sentenced
to serve one (1) to two (2) years
incarceration concurrent to Count One; at Count Three, Mr. Walker was
sentenced to serve thirty
(30) days probation concurrent to Count One; and at Count Four,
Mr. Walker was sentenced to
serve one (1) to two (2) years probation concurrent to Count
One. At Case Number 255 C 2017,
Mr. Walker was sentenced at Count One to serve one (1) to two
(2) years incarceration
concurrent to Case Number 5246 C 2016; at Count Two, Mr. Walker was
sentenced to serve one
(1) to two (2) years incarceration concurrent to Count One;
at Count Three, Mr. Walker was
3Mr. Walker also proceeded to trial at Case Number 253 C 2017
regarding alleged victim, Katherine Saluga. Mr.
Walker was acquitted of all of the charges at this case number.
6
sentenced to serve one (1) to two (2) years incarceration concurrent to Count One; and at Count
Four, Mr. Walker was sentenced to serve one (1) to two (2) years incarceration concurrent to
Count One. Mr. Walker was also subjected to a lifetime registration under SORNA. All
sentences imposed by the Court were within the standard range of the sentencing guidelines.
On July 31, 2019, Mr. Walker filed a timely Notice of Appeal to the Pennsylvania
Superior Court at the above -referenced case numbers. On August 5, 2019, this Court ordered
Mr. Walker to file a Concise Statement of the Errors Complained of on Appeal within twenty-
one (21) days. On August 26, 2019, Mr. Walker filed a Motion for Extension of Time to File a
Concise Statement of Errors in which he requested a sixty (60) day extension. This Court
granted said extension. On October 25, 2019, Mr. Walker filed said statement and raised three
issues: (1) Whether the jury's verdicts of guilty for the above -caption case numbers were
rendered with sufficient evidence, (2) Whether the trial court erred by denying the defendant's
Rule 600 Motion, and (3) Whether the trial court erred by denying the defendant's Motion to
Suppress. This appeal is before the Pennsylvania Superior Court at 1177 WDA 2019, 1178
WDA 2019, and 1179 WDA 2019.
ISSUES PRESENTED ON APPEAL
1. WHETHER THE JURY'S VERDICT OF GUILTY FOR THE ABOVE -
CAPTIONED MATTERS WERE RENDERED WITH SUFFICIENT EVIDENCE.
Mr. Walker's first allegations of error assert that the jury's verdicts of guilty for the
above -captioned matters were rendered with insufficient evidence. Specifically, Mr. Walker
alleges that at Case Number 5246 C 2016, the Commonwealth failed to establish the elements of
the crimes of Involuntary Deviate Sexual Intercourse, Indecent Assault, Aggravated Indecent
Assault, and Statutory Sexual Assault on the dates alleged in the Criminal Information; at Case
7
Number 5247 C 2016, Mr. Walker alleges that the Commonwealth failed to establish the
requisite elements of the crimes of Corruption of Minors and Unlawful Contact with a Minor on
the dates alleged in the Criminal Information; and at Case Number 255 C 2017, Mr. Walker
alleges that the Commonwealth failed to establish the requisite elements of the crimes of
Statutory Sexual Assault and Corruption of Minors on the dates alleged in the Criminal
Information.
To evaluate [a] sufficiency of evidence [claim], [a Court] must view the
evidence in the light most favorable to the Commonwealth as verdict
winner, accept as true all the evidence and reasonable inferences upon
which, if believed, the jury could properly have based its verdict, and
determine whether such evidence and inferences are sufficient in law to
prove guilt beyond a reasonable doubt.
Commonwealth v. Bundridge, 449 A.2d 681 (Pa. Super. 1982.)
"[W]here there is an insufficiency of evidence determination, the only remedy
is the discharge of the defendant for the crime or crimes charged." Commonwealth v.
Vogel, 461 A.2d 604 (Pa. 1983.)
Title 18, Section 3123(a)(7) states:
Involuntary deviate sexual intercourse.
(a) Offense defined. --A person commits a felony of the first degree when
the person engages in deviate sexual intercourse with a complainant:
(7) who is less than 16 years of age and the person is four or more years
older than the complainant and the complainant and person are not
married to each other.
18 Pa.C.S.A. § 3123(a)(7).
Title 18, Section 3125(a)(8) states:
Aggravated indecent assault.
(a) Offenses defined. --Except as provided in sections 3121 (relating to
rape), 3122.1 (relating to statutory sexual assault), 3123 (relating to
8
involuntary deviate sexual intercourse) and 3124.1 (relating to sexual
assault), a person who engages in penetration, however slight, of the
genitals or anus of a complainant with a part of the person's body for any
purpose other than good faith medical, hygienic or law enforcement
procedures commits aggravated indecent assault if:
(8) the complainant is less than 16 years of age and the person is four or
more years older than the complainant and the complainant and the person
are not married to each other.
18 Pa.C.S.A. § 3125(a)(8).
Title 18, Section 3126(a)(8) states:
Indecent assault.
(a) Offense defined. --A person is guilty of indecent assault if the person
has indecent contact with the complainant, causes the complainant to have
indecent contact with the person or intentionally causes the complainant to
come into contact with seminal fluid, urine or feces for the purpose of
arousing sexual desire in the person or the complainant and:
(8) the complainant is less than 16 years of age and the person is four or
more years older than the complainant and the complainant and the person
are not married to each other.
18 Pa.C.S.A. § 3126(a)(8).
Title 18, Section 3122.1(a)(1) states:
Statutory sexual assault.
(a) Felony of the second degree. --Except as provided in section 3121
(relating to rape), a person commits a felony of the second degree when
that person engages in sexual intercourse with a complainant to whom the
person is not married who is under the age of 16 years and that person is:
(1) four years older but less than eight years older than the complainant.
18 Pa.C.S.A. § 3122.1(a)(1).
Title 18, Section 6318(a)(1) states:
Unlawful contact with minor.
9
(a) Offense defined.--A person commits an offense if he is intentionally
in contact with a minor, or a law enforcement officer acting in the
performance of his duties who has assumed the identity of a minor, for the
purpose of engaging in an activity prohibited under any of the following,
and either the person initiating the contact or the person being contacted
is
within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating, to sexual
offenses).
18 Pa.C.S.A. § 6318(a)(1).
Title 18, Section 6301(a)(1)(ii) states:
Corruption of minors.
(a) Offense defined.-
(1) (ii) Whoever, being of the age of 18 years and upwards, by any
course of conduct in violation of Chapter 31 (relating to sexual offenses)
corrupts or tends to corrupt the morals of any minor less than 18 years of
age, or who aids, abets, entices or encourages any such minor in the
commission of an offense under Chapter 31 commits a felony of the third
degree.
18 Pa.C.S.A. § 6301(a)(1)(ii).
This Court, having reviewed the entire record in this case and viewing the evidence in
the
light most favorable to the Commonwealth as the verdict winner, finds that the
Commonwealth
has presented sufficient evidence to permit the jury, as trier of the facts, to find
Mr. Walker
guilty of all of the relevant charges. Although Mr. Walker does not specifically allege
which
elements of each crime he believes have not been proven by the Commonwealth beyond a
reasonable doubt, it is the opinion of this Court that the facts concerning the sexual acts between
Mr. Walker and both Ms. Burton and Ms. Dillon in 2016 are largely undisputed. During
trial,
both Ms. Burton and Ms. Dillon testified that they had both vaginal and oral sex with Mr. Walker
in 2016. Mr. Walker's testimony confirms that he in fact engaged in sexual acts
with Ms. Burton
and Ms. Dillon. The issue that appears to arise concerns the age of the parties involved.
10
Testimony at trial revealed that at all relevant times, Ms. Burton was 13 years old, Ms. Dillon
was 14 years old, and Mr. Walker was 20 years old when these sexual acts occurred. No
testimony was presented to establish that any party was married.
Mr. Walker contends that Ms. Burton informed him that she was 18 years old in 2016.
Contrary to Mr. Walker's testimony, the testimony of Commonwealth's witness Detective
Swank and Mr. Letosky reveal that Mr. Walker was aware that Ms. Burton was only 13 years old
at the time of the sexual conduct. Further, despite Mr. Walker's testimony, the Court finds that
mistake of age when a person is less than 14 years of age is not a defense to any of the charges at
Case Number 5246 C 2016. During the points of charge, the Court specifically instructed the
jurors for each offense under Case Number 5246 C 2016 to the following:
Except as otherwise provided, whenever in this chapter the criminality of
conduct depends on a child being below the age of 14 years, it is no
defense that the defendant did not know the age of the child or reasonably
believed the child to be the age of 14 years or older.
PA-JICRIM 15.3123D, 15.3125D, 15.3126D, 15.3122.1,Pa.SSJI (Crim), (2016).
At Case Number 5247 C 2017, Mr. Walker was charged with Unlawful Contact with Ms.
Burton and Corruption of Minors. Upon a review of the evidence presented by the
Commonwealth at trial, the Court finds that there was sufficient evidence for the jury to find that
Mr. Walker and Ms. Burton were in contact for the purpose of engaging in sexual acts. Both Ms.
Burton and Mr. Walker testified that they used social media to talk to each other, and both
parties indicated that sexual acts occurred between them as a result. As stated above, the
testimony from Detective Swank and Mr. Letosky disclosed that Mr. Walker was aware that Ms.
Burton was only 13 years old at the time of the sexual conduct. Testimony revealed that Mr.
Walker was above the age of 18 when he engaged in sexual contact with Ms. Burton.
11
At Case Number 255 C 2017, Mr. Walker was charged with offenses in relation to Ms.
Dillon. Testimony from both Mr. Walker and Ms. Dillon revealed that they engaged in sexual
intercourse on repeated occasions in 2016, and there was no testimony presented to establish that
the parties were married. Contrary to Mr. Walker's testimony, Mr. Letosky's testimony, as well
as Commonwealth's Exhibits Two and Three reveal that Mr. Walker was aware that Ms. Dillon
was 14 years old at the time of the sexual interactions.
During the points of charge, the Court specifically instructed the jurors to the following
regarding the offenses of Statutory Sexual Assault:
The fact that a defendant did not know the age of a child, or that a child
lied about his or her age, or that a defendant honestly, but unreasonably,
believed that a child was 16 or older would not by itself be a defense to
statutory sexual assault. It is a defense, however, if a defendant, even
though mistaken about a child's age, reasonably believed that the child
was 16 or older. A defendant has the burden of proving this defense by a
preponderance of the evidence, that is, the greater weight of the evidence.
This means that you cannot find the defendant guilty if you are satisfied
by a preponderance of the evidence that the defendant believed the child
was 16 or older and that the defendant's belief was reasonable under the
circumstances.
PA-JICRIM 15.3122.1, Pa.SSJI (Crim), (2016).
It is the opinion of this Court that the Commonwealth presented sufficient
evidence for the jury to conclude that Mr. Walker either knew Ms. Dillon's age or his
belief that she was older was unreasonable.
Additionally, based on Ms. Dillon's testimony as stated above, the Court finds
that Mr. Walker's actions in engaging in repeated sexual conduct with Ms. Dillon,
satisfies the requisite elements for corrupting, the morals of a minor. Based upon the
evidence presented and viewing the evidence in the light most favorable to the
Commonwealth, it is the opinion of this Court that the Commonwealth elicited
12
sufficient details concerning the sexual encounters from
Ms. Burton and Ms. Dillon at
the time of trial from which the jury could
have found Mr. Walker guilty beyond a
reasonable doubt of all charges.
2. WHETHER THE COURT OF COMMON PLEAS ERRED IN
DENYING THE
DEFENDANT'S RULE 600 MOTION.
Mr. Walker's second allegations of error assert
that the trial court erred by denying his
Rule 600 Motion on May 17, 20184 thereby violating his
speedy trial rights. Mr. Walker alleges
that the charges should have been dismissed with
prejudice.
Pennsylvania Rule of Criminal Procedure 600: Prompt Trial
states:
(B) PRETRIAL INCARCERATION
Except in cases in which the defendant is not entitled
to release on bail as
provided by law, no defendant shall be held in pretrial
incarceration in excess
of
(1) 180 days from the date on which the complaint
is filed
(C) COMPUTATION OF TIME
(2) For purposes of paragraph (B), only periods of
delay caused by the
defendant shall be excluded from the computation of the length
of time of any
pretrial incarceration. Any other periods of delay shall be
included in the
computation.
(3)(a) When a judge or issuing authority grants or denies a
continuance:
(i) the issuing authority shall record the identity of the
party requesting the
continuance and the reasons for granting or denying the continuance;
and
(ii) the judge shall record the identity of the party
requesting the continuance
and the reasons for granting or denying the continuance. The
judge also shall
record to which party the period of delay caused by the
continuance shall be
attributed, and whether the time will be included in or
excluded from the
4 In Mr. Walker's Concise
Statement of Matters Complained of on Appeal, he references to
"May 18, 2018." For purposes of clarification, the Court Order the Court Order dated,
denying Mr. Walker's Rule 600 and Suppression
Motions was dated "May 17, 2018."
13
computation of the time within which trial must commence in accordance
with this rule.
(b) The determination of the judge or issuing authority is subject to review as
provided in paragraph (D)(3).
(D) REMEDIES
(2) Except in cases in which the defendant is not entitled to release on bail as
provided by law, when a defendant is held in pretrial incarceration beyond the
time set forth in paragraph (B), at any time before trial, the defendant's
attorney, or the defendant if unrepresented, may file a written motion
requesting that the defendant be released immediately on nominal bail subject
to any nonmonetary conditions of bail imposed by the court as permitted by
law. A copy of the motion shall be served on the attorney for the
Commonwealth concurrently with filing. The judge shall conduct a hearing on
the motion.
Pa. R. Crim. P. 600.
If a defendant[] [is] incarcerated for over 180 days in violation of Rule 600,
the proper remedy [is] immediate release on nominal bail, not dismissal. [T]he
only occasion requiring dismissal of charges is when the Commonwealth fails
to commence trial within 365 days of the filing of the written complaint,
taking into account all excludable time and excusable delay.
Commonwealth v. Goldman., 70 A.3d 874 (Pa. Super. 2013);
Upon a review of the criminal court dockets at the above -referenced case numbers, it
appears to this Court that on December 28, 2017, Mr. Walker, through counsel, filed a Motion
for Rule 600 Relief. In the Motion, Mr. Walker sought (1) dismissal of all of the charges or (2)
nominal bond on all the pending cases for the reason that he was incarcerated for a period in
excess of 180 days. A hearing was held before this Court on May 17, 2018. Although it is the
opinion of this Court that this issue is technically moot, this Court is of the opinion that Mr.
Walker's Rule 600 has not been violated.
During the May 17, 2018 Hearing, the Court held that:
[E]ven though there may be some argument that [Mr. Walker has] been
[incarcerated] longer than 180 days on [the] two [2016] cases, I'm still going
to deny the motion on the basis of community protection. I'm denying the
14
motion of that basis...On the 2017 cases, my calculation, the fact that all four
cases were consolidated. The most recent complaint was filed on December
15th of 2016, I don't think either one of those, especially that case, is even
close to 180 days on rule 600 because of defense continuances. So I'm going
to deny the motions on both the 2017 cases on that [basis]. So the Rule 600 is
denied for the reasons stated in the record.
(N.T. 5/17/18 at 56).
It is the opinion of this Court that Mr. Walker was not entitled to an outright dismissal of
the charges. Although Mr. Walker may have been released on nominal bond for the two 2016
cases, it is the opinion of this Court that based upon the allegations as set forth in the Criminal
Complaints, Mr. Walker would have posed a threat to the safety of the community had he been
released. Further, it is the opinion of this Court that had this Court granted nominal bond or a
conditional bond to Mr. Walker on the 2016 cases, Mr. Walker would still be detained on the
2017 cases as he was not entitled to such relief on those cases.
3. WHETHER THE COURT OF COMMON PLEAS ERRED IN DENYING THE
DEFENDANT'S SUPPRESSION MOTION.
Mr. Walker's third allegations of error assert that the trial court erred by failing to
suppress his incriminating statements to detectives at Case Number 5246 C 2016 on May 17,
2018.
The overlying test to determine whether a person is being subjected to a
custodial interrogation necessitating Miranda warnings is whether he is
physically deprived of his freedom in any significant way or is placed in a
situation in which he reasonably believes that his freedom of action or
movement is restricted by such interrogation. The factors that the court
considers to determine whether there has been a custodial interrogation
include: the basis for the detention; its length; its location; whether the suspect
was transported against his or her will, how far and why; whether restraints
were used; whether the law enforcement officer showed, threatened or used
force; and the investigative methods employed to confirm or dispel
suspicions.
Commonwealth v. Turner, 772 A.2d 970 (Pa. Super. 2001).
15
"[T]he mere fact that [a] police investigation has focused on a particular person will not
require Miranda warnings before police interviews with that person." Commonwealth v.
Anderson, 385 A.2d 365 (Pa. Super. 1978).
Upon a review of the testimony at the Omnibus Pre -Trial Motion Hearing, the Court
finds that despite Mr. Walker's contention that his incriminating statements were obtained in
violation of his Miranda rights, Mr. Walker was not subjected to a custodial interrogation and
thus Miranda warnings were not required. Mr. Walker voluntary spoke with Detective Swank
outside of his place of employment and was interviewed during the normal course of an
investigatory fact-finding process in regard to the disappearance of Ms. Burton. Prior to making
said statements, Mr. Walker was not handcuffed or placed under arrest. Further, the detectives
did not give him any other reason to suspect that he was not free to leave or terminate the
interaction with the detectives. As Detective Swank ceased all questioning after Mr. Walker
voluntarily made an admission that he had oral sex with Ms. Burton, the Court finds that said
statement(s) was admissible at trial.
For the foregoing reasons, the issues raised on appeal are meritless, and the Court enters
the following Order:
16
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
PENNSYLVANIA - CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
NO. 255 C 2017
VS. 5246 C 2016
5247 C 2016
DARELL DEISEAN WALKER,
Defendant.
ORDER OF COURT
AND Now, to wit, this 4th day of November, 2019, it is hereby ORDERED, ADJUDGED
and DECREED that the foregoing Opinion shall constitute the Court's brief statement of reasons
for the July 2, 2019 Judgment of Sentence and the May 17, 2018 Order of Court, pursuant to Pa.
R.A.P. 1925.
BY THE COURT:
,J
Christopher A. Feliciani, Judge
ATTEST:
Clerk of Courts
cc: File
Judith Petrush, Esq. -Assistant District Attorney
-
Timothy Dawson, Esq. Counsel for the Defendant
Pamela Neiderheiser, Esq., Court Administrator's Office
Law Clerk
17