Com. v. Minner, E.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 1699 WDA 2018

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 224 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 225 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 226 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 227 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 228 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

3

EDWARD ROY MINNER :

:

Appellant : No. 229 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 230 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 231 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 232 WDA 2019

4

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 233 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 234 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 235 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County

5

Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 236 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 237 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 238 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

6

: PENNSYLVANIA :

v. :

: :

EDWARD ROY MINNER :

:

Appellant : No. 239 WDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2018 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000251-2018

BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 11, 2020

Edward Roy Minner appeals from the October 18, 2018 judgment of

sentence entered in the Court of Common Pleas of Jefferson County, which

followed his nonjury conviction of person not to possess firearms1 and his jury

conviction of thirteen counts of delivery of a controlled substance, one count

of conspiracy, and one count of recklessly endangering another person.2 After

thorough review, we affirm.

The criminal charges against Minner stem from the finding of a female

body at a condemned residence in Jefferson County, Pennsylvania. A

subsequent law enforcement investigation led to the uncovering of witnesses

that were present with the deceased prior to her death. Those witnesses

indicated that Minner had been dealing drugs and consequently gave the

____________________________________________

1 See 18 Pa.C.S.A. § 6105(a)(1).

2See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 901(a)(1); 18 Pa.C.S.A. § 2705, respectively.

7

deceased the dose of heroin that ultimately killed her. Furthermore, the

witnesses stated that Minner sold them methamphetamine. During the

investigation, law enforcement personnel discovered a firearm that Minner

owned.

Based on the witnesses’ statements and physical evidence, Minner was

arrested, his mobile phone was seized, and information on his mobile phone

was extracted.

Prior to trial, Minner’s firearm charge was severed from the other

charges. Some two weeks before trial, the court denied Minner’s request for

a continuance, granted Minner’s request for funds to hire an expert, and

granted the Commonwealth’s request to file an information against Minner

without a preliminary hearing and consolidate it into this case.

Minner was found guilty of all of the counts that he faced at both the

jury and nonjury trials and was sentenced to an aggregate term of

incarceration of thirty to sixty years. Having been found guilty of sixteen

different counts, Minner’s sentence consisted of sixteen separate orders at

sixteen different case numbers.

After sentencing, Minner filed timely post-sentence motions, which were

denied. Minner then filed a timely notice of appeal, but only appealed one of

the sixteen sentencing orders. This error was corrected when the court

granted Minner’s motion for leave to file notices of appeal nunc pro tunc.

Thereafter, we consolidated Minner’s appeals sua sponte. Both Minner and the

trial court have complied with the dictates of Pa.R.A.P. 1925.

8

In this appeal, Minner raises three issues for our review:

1) Did the lower court err when it denied Minner’s request for a continuance to secure an expert witness?

2) Did the lower court err in granting the Commonwealth’s request to amend the Information, as it added nine charges nine days prior to trial?

3) Did the lower court err in denying Minner’s request for a continuance where the continuance request was based on the amended Information?

See Appellant’s Brief, at 4.

Minner’s first contention is that the court should have granted him a

continuance when it granted his request to secure an expert witness for trial.

Minner notes that he had only thirteen days to do so prior to trial. See id., at

13. Accordingly, Minner asserts that the court erroneously focused on

expeditiousness in getting him to trial even though he had presented a

justifiable request for a delay. See id., at 13-14.

The matter of granting or denying a continuance is within the discretion

of the trial court. See Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

Nevertheless, a trial court’s discretion is not unlimited. “[A] myopic insistence

upon expeditiousness in the face of a justifiable request for delay can render

the right to defend with counsel an empty formality.” Id.

However, “[n]ot every restriction on counsel's time or opportunity to

investigate or to consult with his client or otherwise to prepare for trial violates

a defendant's Sixth Amendment right to counsel.” Morris v. Slappy, 461 U.S.

9

1, 11 (1983). “Trial judges necessarily require a great deal of latitude in

scheduling trials. Not the least of their problems is that of assembling the

witnesses, lawyers, and jurors at the same place at the same time, and this

burden counsels against continuances except for compelling reasons.” Id.

The United States Supreme Court has emphasized that there are no

mechanical tests in determining whether the denial of a continuance was

arbitrary and therefore violative of due process. See Ungar, 376 U.S. at 589.

Conversely, “a trial court exceeds its constitutional authority only when

it exercises its discretion to deny a continuance on the basis of an unreasoning

and arbitrary insistence upon expeditiousness in the face of a justifiable

request for delay.” Commonwealth v. Sandusky, 77 A.3d 663, 671-72 (Pa.

Super. 2013) (citation and quotation marks omitted). “To determine whether

a constitutional violation occurred, we must examine the circumstances

present in the case, especially the reasons presented to the trial court for

requesting the continuance.” Id., at 672.

Here, Minner was initially charged with several drug-related offenses,

which generated a case management sheet. That sheet enumerated several

important dates such as the first day of jury selection for Minner’s trial.

Thereafter, the Commonwealth filed a new case with additional charges

against Minner. Minner waived his arraignment for these new charges.

Ultimately, the second series of charges was then attached to the

scheduling order of the initial charges, consolidating them all to be tried on

10

the same date. As a result, the consolidated trial occurred approximately three

weeks prior to the initial scheduling date for formal arrangement on the

second set of charges.

In a pretrial motion, Minner requested funding for an expert to opine on

the effect methamphetamine use had on several of the witnesses’ mental

capacities. The court granted the request for funding, but denied the request

for a continuance. This motion was decided orally on August 3, thirteen days

prior to trial, and the funding of an expert was formally granted in writing on

August 7. The court explained its denial of the continuance as follows:

Even though this preliminary hearing was only held in May and while the charges had been in the court for over a year that were nolle prossed and subsumed by this, so my intention is to deny the motion for a continuance[.]

…

I mean, really, the entire thing has gone on for over a year, and unfortunately, Mr. Minner has been in jail for over a year.

So I think he needs to go to trial. We’re certainly aware generally of the facts. As we get into more specifics now as everybody is prepping for trial, especially with regard to the phone records and the other things, the re-interviews, so my intention is to deny the continuance and to grant the expert.

Omnibus Pretrial Motion Hearing, 8/3/18, at 2, 47-48.

Minner renewed his motion for a continuance just prior to the

commencement of trial.

I want to put on the record since the motions had been filed requesting funding for an expert and the [c]ourt had indicated go ahead and get an expert, we’ve made countless efforts to reach out to neurologists, psychologists, addiction specialists, anybody

11

who could testify as the motion has indicated.

…

Two of the witnesses will indicate - - one will indicate that she had been using methamphetamine and had been awake for the previous six days to the events.

Another witness will testify - - has testified that he had been using for two to three days methamphetamine and had been awake. There was some discovery that was provided where he indicates he had also been using and awake for six days prior to the events.

N.T., 8/16/18, at 6-7. The court dismissed Minner’s request for a continuance

based on the asserted necessity of an expert’s testimony:

But unless there’s somebody who uses methamphetamine on the [j]ury, I don’t think a normal human being could be up for six days, so nobody is going to be able to relate to the experience. So I am going to deny the motion to continue.

Id., at 9.

In his brief, Minner emphasizes that the requested expert’s purpose

“was to explain to the jurors the effects of the drug and the lack of sleep on

the ability to perceive and remember, not simply to explain what it’s like to

use meth.” Appellant’s Brief, at 14. Stated differently, Minner wanted to

demonstrate to the jury that “the continual use of methamphetamine and lack

of sleep for … extended periods of time have a significant impact on the

condition of the witnesses’ testimony.” Omnibus Pretrial Motion, 7/25/18, at

3.

For argument’s sake, we will assume Minner intended to utilize an expert

in the way he has presented and that such a use would have been permissible

12

under the Pennsylvania Rules of Evidence.3 We will also take note of the rigidly

small turnaround time that the trial court gave to Minner in order to find an

expert, which, at a minimum, contradicted the spirit of the court’s expert

funding. However, even if we were to find that the trial court did commit an

error in denying Minner’s continuance requests, we find that error to be

harmless. See Sandusky, 77 A.3d at 672 (finding that a court’s erroneous

denial of a continuance request is subject to a harmless error analysis).

A harmless error inquiry requires us to ascertain whether Minner has

suffered from prejudice. See id., at 673. The Commonwealth indicates that it

“spent its entire closing argument explaining to the jury that it was not

expecting the jury to believe those witnesses because they were inherently

credible[.]” Appellee’s Brief, at 4. Instead, it was merely reinforcing the

information extracted from Minner’s cell phone, which it had already placed

into the record:

I want to talk about the concept of corroboration … and that word deals with bolstering people’s testimony. See, we’re not coming in here today and asking you simply to buy the word of the witnesses. We’re not doing that. We spent a lot of time yesterday, and I know it got laborious at times putting all that paper into evidence, going through all those text conversations, Facebook conversations; but those, boy, those spoke a lot. See, I often say

____________________________________________

3 It is not clear, under present law, that Minner’s proposed expert testimony would have been admissible. See, e.g., Commonwealth v. Walker, 92 A.3d 766, 781 (Pa. 2014) (recounting long-held prohibition on expert testimony that intrudes upon the jury’s traditional function of assessing witness credibility). However, we need not reach this issue, as Minner has failed to establish that he suffered any prejudice from the denial of his request for a continuance.

13

to people that if you give me a few minutes with your phone or if you give me a few minutes with your checkbook, I’m going to be able to say who you are. … It tells you so much about them, and we’ve got a window into Mr. Minner through various messaging that we talked about.

…

Now, there has been some statements made about our witnesses being drug users, being up for days on crystal meth. Certainly true. But I would like to point this out. It’s a bit of a cliché, but I’ll tell you right now, we didn’t pick our witnesses. Ed Minner picked our witnesses. Those were the people he was hanging out with. Those were the people who were in the market for his substances. … That’s where the information’s going to come from. And I’m not – I’m not going to talk much longer about it because you’re familiar with it. When our witnesses told you he wanted out there, when she went unresponsive, he started trying to get a ride, you heard the text messages. He was frantically trying to get a ride. … You heard all the technological evidence from that phone, the texting, the Facebook. It corroborated our witnesses. I mean, you can complain or you can ask them all day long how may days they had been up, how much drugs they had been doing, what they had been doing, but let me tell you what, all of the technological evidence backed up their accounts. It fit like a glove. The timeline, everything, it fit perfect. … [L]adies and gentlemen, you don’t have to stand just on your observations of them and their demeanor and what they can remember and what they couldn’t. You don’t because all of their accounts were corroborated. You don’t just have to take their word, and because of that, I would submit that you should their word because they were bolstered in so many ways.

N.T., Jury Trial, 8/17/18, at 235-236, 254-255.

Through our independent review of the record, we conclude that the

Commonwealth’s case was built primarily through Minner’s texts and

Facebook messages. We also conclude that the relevant eyewitness

testimonies were largely, if not entirely, duplicitous of the information

acquired from Minner’s cell phone.

14

In turning to his brief, Minner has not identified any pieces of the

eyewitnesses’s testimonies that were wholly independent of the cell phone

evidence. Further, Minner does not challenge anything unearthed from his cell

phone. Therefore, even if an expert would have served to controvert every

aspect of the witnesses’s testimonies, the fact remains that Minner has not

identified any salient testimony that was not corroborated by the electronic

evidence. Consequently, we find no basis to conclude that Minner has suffered

any prejudice from not having had an expert at trial. In the absence of

prejudice, his first continuance-based claim fails.

In Minner’s second issue, he suggests it was error for the trial court to

grant the Commonwealth’s request to amend the information against him,

which added nine charges nine days prior to trial. Preliminarily, we note that

the Commonwealth sought amendment pursuant to both Pa.R.Crim.P. 565(A),

which provides the Commonwealth an opportunity to file an information

without a preliminary hearing, and 582(B)(2), which creates a procedure for

joinder of separate informations. See Motion for Leave to File an Information

without a Preliminary Hearing and for Joinder [of] Informations, filed 8/2/18.

Nevertheless, the trial court granted the Commonwealth’s Motion, but

did so under Pa.R.Crim.P. 564. See Opinion on Pretrial Motions, 8/7/19, at 3.

Minner argues that the trial court was wrong to address the Commonwealth’s

request under Pa.R.Crim.P. 564 and not Rules 565 and 582. See Appellant’s

Brief, at 16-17. However, we agree with the Commonwealth that “[t]he effect

15

of either scenario [, i.e., amendment versus a new information filing and

subsequent joinder] is identical[.]” Appellee’s Brief, at 10. Accordingly, we will

treat the new Information against Minner as an amendment.

“The purpose of Rule 564 is to ensure that a defendant is fully apprised

of the charges, and to avoid prejudice by prohibiting the last minute addition

of alleged criminal acts of which the defendant is uninformed.”

Commonwealth v. Mentzer, 18 A.3d 1200, 1202 (Pa. Super. 2011) (citation

omitted). When evaluating a challenge to an amended information, we employ

the following analysis:

Whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.

Commonwealth v. Jackson, 215 A.3d 972, 979 (Pa. Super. 2019) (citation

omitted). “Relief is warranted only when the amendment to the information

prejudices a defendant.” Id.

Factors to be considered when determining whether Appellant was prejudiced by the Commonwealth's amendment include whether the amendment changes the factual scenario; whether new facts, previously unknown to appellant, were added; whether the description of the charges changed; whether the amendment necessitated a change in defense strategy; and whether the timing of the request for the amendment allowed for ample notice and preparation by appellant.

16

Id.

Minner attempts to demonstrate prejudice in several ways. First, he

indicates that he was forced to face an entirely different charge, conspiracy,

than he had considered to that point. See Appellant’s Brief, at 17-18. Minner

asserts that the new conspiracy charge “added elements not previously

considered[.]” Id. at 18. Second, Minner avers that he faced prejudice through

new drug-related charges featuring “the addition of deliveries to individuals

not previously identified as targets of delivery.” Id.

In response, the trial court found that

the subject amendment added charges of the same nature and committed within the same timeframe as those which [Minner] was already taking to trial, and the information upon which it was founded came directly from [Minner’s] cell phone and was confirmed by the same witnesses already identified in police reports—witnesses who had been less than truthful when initially interviewed but who were forced to be honest when confronted with the messages discovered on [Minner’s] phone. As the other party to each of the relevant communications, and fully aware that the witnesses, who were his former clients, lied during their interviews, therefore, [Minner] can hardly claim surprise.

Trial Court Opinion, 1/17/19, at 2-3. The trial court continued:

It bears repeating, too, that none of the witnesses [the Commonwealth intended to utilize for these new charges] was unknown to [Minner]; all were the subjects of police interviews disclosed to him more than a year earlier. Certainly their stories changed between May 2017 and July/August 2018, and [Minner] may not have expected that development. Knowing that the Commonwealth was in possession of his cell phone and that a careful search would uncover the truth, however, he certainly could have anticipated it.

Id., at 3.

17

We agree with the trial court’s conclusion that the amendment involved

the same general set of facts and timeframe as those included in the prior

information. We further agree that Minner was, or at a minimum should have

been, well apprised of the witnesses and evidence that would be utilized

against him, and he should have anticipated that new, similarly situated

charges would follow. While the conspiracy charge may have added new

elements for Minner to attack at trial, the factual underpinnings of the charged

crimes are all derived from a largely overlapping series of circumstances.

Clearly, the originally charged offenses dealt with drug-related activity

that was not wholly distinct from the charges he faced after the amendment.

Moreover, Minner knew his own cell phone’s contents, which led to further

evidence of his criminal activity, and he cannot now feign surprise at the

uncovering of the information it contained. Therefore, as there has been no

deviation from the pre-amendment Information’s factual scenario, Minner has

not suffered prejudice from the Commonwealth’s amendment and is due no

relief.

In his third issue, Minner believes that the trial court should have

granted a continuance when he asked for one during his hearing for the

additional charges. Minner contends that the trial court’s denial was

erroneous, as the Commonwealth was not providing timely discovery as to the

nine charges that were added to the original information. See Appellant’s

Brief, at 20. However, Minner concedes that “the arguments made in [his]

18

first issue are identical to those raised here[.]” Id.

As we found Minner’s first issue to be unmeritorious, we see no basis to

conclude differently on this occasion. Other than a temporal argument, Minner

has not articulated a salient basis for a continuance that could cast doubt on

the trial court’s exercise of discretion. Simply put, Minner does not effectively

explain what the granting of additional time prior to his trial would have

allowed him to do. He has not pointed to any unknown piece of evidence that

was contained within the amendment nor has he taken issue with the

introduction of someone he could claim to be a surprise witness.

Moreover, other than cursorily stating that the crime of conspiracy

involves different elements when compared to his other charged crimes,

Minner does not reasonably distinguish between the facts used in support of

his initial Information and those supporting the amended information. Finally,

Minner does not contest any element of the information gleaned from the

extraction of his cell phone, which was possessed and utilized by him

throughout the commission of his crimes.

As we find none of Minner’s issues to be due any relief, we affirm his

judgment of sentence.

Judgment of sentence affirmed.

19

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/11/2020