Com. v. Bailey, D. ( 2023 )

J-A02023-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRICK WA-KEEN BAILEY :
:
Appellant : No. 1038 WDA 2021
Appeal from the Judgment of Sentence Entered July 20, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014153-2019
BEFORE: BOWES, J., OLSON, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED: July 7, 2023
Appellant, Darrick Wa-Keen Bailey, appeals from the judgment of
sentence entered on July 20, 2021, as made final by the denial of his
post-sentence motion on August 3, 2021. We affirm, in part, vacate, in part,
and remand this matter to the trial court for resentencing.
The facts and procedural history of this case are as follows. On
November 27, 2019, at approximately 1:30 a.m., Officer Gino Macioce of the
Pittsburgh Police Department was dispatched to a residence in the East Hills
section of Pittsburgh, Pennsylvania, following a report of “a violent domestic
[incident] involving a male and female.” N.T. Trial, 4/7/21, at 18-19. Upon
arrival, Officer Macioce met with the victim who “related to the officers that
she was physically assaulted by her intimate partner, [Appellant].” Trial Court
Opinion, 1/18/22, at 2. In particular, the victim stated that the altercation
began after Appellant arrived at her apartment in a “bad mood” and after the
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victim confronted Appellant about living with her without paying bills. Id. at
48. The victim also confronted Appellant about a dinner receipt she found
wherein Appellant spent a large amount of money, causing her to believe that
he had a romantic dinner with another individual. Id. at 80. Thus, the victim
started removing Appellant’s belongings from the apartment. Id. at 49. At
that time, Appellant “began to assault [her].” Trial Court Opinion, 1/18/22,
at 2. Specifically, Appellant
struck the victim in the head with his fists, bit her and strangled
her until she became unconscious. [Appellant also] threatened
[her, stating] that if she called the police[,] he would have
people find her.
Id.
Then, Appellant left the victim’s apartment. Shortly thereafter,
[p]olice officers located [Appellant] not far from the residence.
[Appellant] fled from the police [] but was eventually
apprehended. [Appellant also] refused to comply with the
police officers’ commands but he was eventually taken into
custody. Marijuana and packaging materials were recovered
from [Appellant upon his seizure].
Id.
The Commonwealth charged Appellant with strangulation; robbery;
intimidation of a witness; simple assault; resisting arrest; possession with
intent to deliver; two counts of possession of a controlled substance; and
possession of drug paraphernalia. The matter proceeded to a non-jury trial
on April 7, 2021, during which the victim, as well as other police officers
testified. During the victim’s testimony, the Commonwealth sought to admit
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five photographs of the victim depicting her injuries from the November 27,
2019 assault. N.T. Trial, 4/7/21, at 69. Counsel for Appellant objected,
claiming that the photographs were not provided to Appellant prior to trial.
Id. at 70. While the Commonwealth disputed counsel’s statement, the trial
court accepted defense counsel’s assertion that the photographs “somehow
escaped production.” Id. at 72-73. The court, however overruled counsel’s
objection and the photographs were admitted into evidence. Id. at 73 and
77. Ultimately, the trial court found Appellant guilty of strangulation,1
intimidation of a witness,2 simple assault,3 resisting arrest,4 and possession of
drug paraphernalia.5
The matter proceeded to sentencing, which occurred on July 20, 2021.
That day, the trial court sentenced Appellant to a term of 36 to 72 months’
imprisonment followed by five years’ probation for Appellant’s conviction for
strangulation. The trial court also imposed a sentence of six to 12 months’
incarceration relating to Appellant’s conviction for intimidation of a witness.
The trial court ordered Appellant’s sentence for intimidation of a witness to
run consecutive to his sentence for strangulation. No further penalty was
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1 18 Pa.C.S.A. § 2718(a)(1).
2 18 Pa.C.S.A. § 4952(a)(1).
3 18 Pa.C.S.A. § 2701(a)(1).
4 18 Pa.C.S.A. § 5104.
5 35 P.S. §§ 780–113(a)(32).
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imposed as to Appellant’s remaining convictions. Appellant filed a
post-sentence motion for a new trial on July 28, 2021, which the trial court
denied on August 3, 2021. This timely appeal followed.
Appellant raises the following issues on appeal:
1. Whether the trial court abused its discretion by admitting
photographic evidence the Commonwealth failed to turn over
in mandatory discovery, causing [Appellant] prejudice?
2. Whether [Appellant’s] sentence [for] [s]trangulation is illegal
because his aggregate sentence of 132 months is in excess
of the statutory maximum allowable sentence of 120 months
under 18 Pa.C.S.[A.] § 106?
Appellant’s Brief at 5.
In his first issue, Appellant claims the trial court erred in admitting
photographic evidence depicting the victim’s injuries because the
Commonwealth failed to produce or disclose the photographs in violation of
Pa.R.Crim.P. 573 prior to trial. Appellant’s Brief at 13. Appellant asserts that
admission of the photographs, despite nondisclosure, prejudiced him because
the photographs impermissibly bolstered the victim’s testimony which, he
claims the trial court characterized as “shaky.” Id. at 18. We disagree.
“We note that questions involving discovery in criminal cases lie within
the discretion of the trial court.” Commonwealth v. Rucci, 670 A.2d 1129,
1140 (Pa. 1996), cert. denied, 520 U.S. 1121 (1997). Pennsylvania Rule 573
of Criminal Procedure provides, in relevant part, as follows:
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which the
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Commonwealth might obtain under this rule, the
Commonwealth shall disclose to the defendant's attorney
all of the following requested items or information,
provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the
defendant's attorney to inspect and copy or photograph
such items.
***
(g) any tangible objects, including documents,
photographs, fingerprints or other tangible
evidence[.]
Pa.R.Crim P. 573(B)(1)(g). If a party fails to comply with Rule 573(B), the
court may
grant a continuance, or may prohibit such a party from
introducing evidence not disclosed, other than testimony of the
defendant, or it may enter such other order it deems just under
the circumstances.
Pa.R.Crim P. 573(E).
Herein, on February 25, 2020, Appellant asked the Commonwealth to
provide him with information and material discoverable under Rule
573B(1)(a-g). Appellant's Pro Se Request for Pre-Trial Discovery, 2/25/20, at
1. Yet, the Commonwealth failed to produce the photographs of the victim’s
injuries to Appellant until trial. N.T. Trial, 4/7/21, at 72-73. Delayed
production of materials subject to mandatory disclosure “‘does not[,
however,] automatically entitle [A]ppellant [to relief].’” Commonwealth v.
Causey, 833 A.2d 165, 171 (Pa. Super. 2003) (citation omitted). To obtain
relief, Appellant must show prejudice. Id. To establish prejudice, Appellant
“must demonstrate how a more timely disclosure would have affected his trial
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strategy or how he was otherwise prejudiced by the alleged late disclosure.”
Id. Appellant claims he was prejudiced by the Commonwealth’s failure
because the photographs, in essence, bolstered the victim’s testimony, which
“was ‘shaky’ according to the trial court.” Appellant’s Brief at 18.
Initially, we note that, while Appellant argues that the trial court
considered the victim to be a “shaky” witness, the record belies this claim.
The full exchange from which Appellant highlights the court’s statement is as
follows:
[Defense Counsel]: [] Your Honor, I would argue that the
Commonwealth has not proven their case beyond a reasonable
doubt with the exception of possession.
The court: You want to attack the credibility of [the victim] and
say that her testimony is such that it does [not] rise to the level
of proof beyond a reasonable doubt for, among other reasons,
she argued with him, she went after him after he left, she was
throwing stuff out of the apartment, showing that she had her
own aggressive behavior. Fair?
[Defense Counsel]: Yes, Your Honor. In addition to that, I
would ask you to acknowledge her demeanor and the fact that
she showed up for court several hours later, because – she
showed up for court several hours late.
***
I [am] not going to go through everything that you just heard
because we have all been sitting here all morning, but I would
submit to the court that when you are looking at cases like this,
you have to look at the credibility of all the witnesses, and I
would say not just [the victim.]
The court: All right. [Assistant District Attorney] Stelzer, your
witness is a little shaky. That [is] what – [defense counsel]
says your witness is shaky to the point where I should not rely
on her testimony, which I have to do to find him guilty of the
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strangulation, the robbery, the intimidation and the assault.
What do you think?
N.T. Trial, 4/7/21, at 122-124 (superfluous capitalization omitted). Thus, it is
evident that, in making the statement that the victim was a “shaky witness,”
the court was simply summarizing Appellant’s argument, not judging the
victim’s credibility.
Moreover, a further review of the record undercuts Appellant’s current
claim of prejudice because, as admitted by Appellant’s counsel during trial,
the photographs in question depicted injuries attested to by the victim, as well
as Detective Macioce. See N.T. Trial, 4/7/21, at 73 (Appellant’s counsel
agreeing with the court’s statement that the photographs “only show what
you already heard about, not a different injury”); see also id. at 72 (the court
asking if the photographs showed “the bruises that the witness already
identified” and included the “ones on her hand and arm, the bite mark, that
kind of thing?” to which the Commonwealth answered in the affirmative).
Indeed, during trial, the victim described the altercation that occurred
between her and Appellant, including that he struck her in the head multiple
times, “choked her up against [the bathroom] wall,” “threw [her] to the
ground,” and bit her arm. Id. at 50, 53, 60-61, at 63. In addition, the victim
specifically described her injuries, stating that she “got bit . . . had marks on
[her] face, the side of [her] face, [her] back” and “had scratches on [her]
neck.” Id. at 66. The victim also showed a scar from the bite mark during
her testimony. Id. at 63-64. Importantly, the victim’s testimony was
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corroborated by Detective Macioce, who explained that he responded to the
scene and observed the injuries to the victim’s head, face, neck and upper
right arm. Id. at 20 and 41-42. Hence, in view of the cumulative nature of
the photographs, the prejudicial impact of the photographic evidence, if any,
was de minimus. Accordingly, Appellant’s claim of error fails.
In Appellant’s second issue, he challenges the legality of his sentence
regarding his conviction for strangulation.6 In particular, Appellant claims that
his sentence of 36 to 72 months incarceration, followed by an additional five
years of probation, exceeds the statutory maximum for strangulation.
Appellant’s Brief at 21. We agree.
The relevant standard and scope of review are as follows:
[T]he determination as to whether the trial court imposed an
illegal sentence is a question of law; our standard of review in
cases dealing with questions of law is plenary. This case will
also necessarily call upon us to engage in statutory
construction, which similarly presents a pure question of law
and also implicates the legality of [the] sentence. Thus, our
standard of review is de novo and our scope of review is
plenary.
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6 In general, issues not properly raised and preserved before the trial court
“are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a). “A challenge that implicates the legality of an appellant's sentence,
however, is an exception to this issue preservation requirement.”
Commonwealth v. Thorne, 276 A.3d 1192, 1196 (Pa. 2022). “Stated
succinctly, an appellate court can address an appellant's challenge to the
legality of his sentence even if that issue was not preserved in the trial court;
indeed, an appellate court may [even] raise and address such an issue sua
sponte.” Id.; Commonwealth v. Hill, 238 A.3d 399, 407 (Pa. 2020). Hence,
because Appellant challenges the legality of his sentence, his failure to raise
the claim by way of post-sentence motion does not preclude our review.
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Commonwealth v. Hunt, 220 A.3d 582, 585 (Pa. Super. 2019) (internal
citations and quotation marks omitted).
It is well-settled that a sentencing court “may imposed a split sentence
including both incarceration and probation.” Commonwealth v. Eid, 249
A.3d 1030, 1036 (Pa. 2021) (citation omitted). “When determining the lawful
maximum allowable on a split sentence, [however,] the time originally
imposed cannot exceed the statutory maximum.” Commonwealth v.
Crump, 995 A.2d 1280-1283 (Pa. Super. 2010). “Thus, where the maximum
is ten years, a defendant cannot receive a term of incarceration of three to six
years followed by five years probation.” Id.Herein, the trial court sentenced Appellant to 36 to 72 months’
incarceration, followed by a five-year term of probation, for his strangulation
conviction, a felony of the second degree. Hence, the trial court imposed a
maximum sentence of 132 months (11 years), which exceeds the statutory
maximum. See 18 Pa.C.S.A. § 106(b)(3) (“A crime is a felony of the second
degree if it is so designated in this title or if a person convicted thereof may
be sentenced to a term of imprisonment, the maximum of which is not more
than ten years.”). As such, the trial court imposed an illegal sentence under
Section 106(b)(3).7
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7 Both the Commonwealth and the trial court agreed with Appellant’s
contention that he received an illegal sentence with respect to his conviction
for strangulation. See Trial Court Opinion, 1/18/22, at 4-5; see also
Commonwealth’s Brief at 17-18.
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Based upon the foregoing, we vacate Appellant’s judgment of sentence
with respect to his strangulation conviction and remand for resentencing. In
all other respects, we affirm.
Judgment of sentence affirmed, in part, and vacated, in part. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2023
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