Commonwealth v. Honesty

850 A.2d 1283, 2004 Pa. Super. 190, 2004 Pa. Super. LEXIS 1302
CourtSuperior Court of Pennsylvania
DecidedMay 27, 2004
StatusPublished
Cited by3 cases

This text of 850 A.2d 1283 (Commonwealth v. Honesty) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Honesty, 850 A.2d 1283, 2004 Pa. Super. 190, 2004 Pa. Super. LEXIS 1302 (Pa. Ct. App. 2004).

Opinion

STEVENS, J.

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following Appellant’s conviction on the charges of aggravated assault, 18 Pa.C.S.A. § 2702, and possessing an instrument of crime, 18 Pa.C.S.A. § 907. On appeal, Appellant argues (1) the trial court erred in denying Appellant’s request for a mistrial due to the Commonwealth’s discovery violation, and (2) the trial court erred in limiting Appellant’s cross-examination of the victim. We affirm.

¶ 2 The trial court has summarized the facts of this case as follows:

Michael Anthony Veitz, the victim in this case, had known Appellant for several years before November 13, 2002, when the incident occurred.' Veitz was addicted to crack cocaine and Appellant was his supplier. '
At about 8:45 p.m. on November 13, 2002, Veitz asked his friend, Bob Hand, to give him a ride. Veitz testified that previously he had called Appellant and arranged a drug purchase. .
Prior to this, Veitz already owed Appellant $40 for a previous drug purchase. When'Appellant reminded him about the money, Veitz told him this purchase was for someone else.
After the drug exchange, Appellant then told Veitz to meet him, alone, at Welsh and Rhawn. Veitz said he was concerned about meeting him there because the area was secluded and he feared Appellant was planning something bad for him because he owed him $40.
Veitz told his friend to drive home. When they arrived home, Veitz saw the Lincoln in which Appellant had been [1285]*1285riding minutes earlier when he purchased the drugs. The Lincoln pulled directly behind Bob Hand’s truck. As Veitz exited the truck, Appellant called him over to his side of the car*. When Veitz leaned to the window, with his face about two feet away, Appellant pulled out a gun and shot Veitz directly in the face. As he lay in the street, Veitz recalled hearing Appellant shooting again.
He testified regarding his injuries, which were extensive: five weeks hospitalization, [a] titanium plate in his face, ciacked facial bones, deafness in one ear, inability to swallow solid foods, affected speech and various problems with nerves, bones, and muscles throughout his body.
Bob Hand testified that he drove Veitz to Bridge Street, near Frankford Avenue, presumably so Veitz could buy drugs. He testified that Veitz got out of the car and met several guys and went around the corner for several minutes. When Veitz came back to Hand’s truck, he said they could go home. W/hen Hand returned home, he parked his truck and started to walk toward his home. Someone pulled up in a car and yelled ‘Mike.’ Veitz told hand that he would come inside in a minute. Before Hand got to the house, he heard the gunshots and noticed the car leaving.
Once he was able to communicate, Veitz easily identified Appellant as the shooter and a mán named Dante as the driver. The Lincoln in which the men were traveling was registered to Dante’s fiancée who is also the mother of his child.

Trial Court Opinion filed 10/20/03 at 2-3.

¶ 3 Appellant was arrested, and he filed a motion seeking to suppress the victim’s identification of Appellant. The trial court denied the motion to suppress, and Appellant proceeded to a jury trial. On May 27, 2003, the jury convicted Appellant of the offenses indicated supra, and on July 7, 2003, the trial court sentenced Appellant to an aggregate of ten to twenty years in prison, to be followed by ten years of probation. Appellant filed post-sentence motions, which were denied, and this timely appeal followed.1

¶4 Appellant first contends that the Commonwealth violated Pa.R.Crim.P. 573(B)(1)(d) and (D) by failing to disclose to Appellant that, during trial, Robert Hand was going to identify Appellant as the shooter in this case, and, therefore, the trial court erred in denying Appellant’s oral motion for a mistrial. We find that no relief is due.

¶ 5 The record reveals that, prior to trial, the Commonwealth provided Appellant with Mr. Hand’s police statement, wherein Mr. Hand gave a detailed description of the shooter. N.T. 5/22/03 at 157-158. Prior to trial, Mr. Hand was unable to positively identify Appellant as the shooter when he was shown a photo array and various mug shots, and Mr. Hand did not testify at Appellant’s preliminary hearing. N.T. 5/22/03 at 148, 158. However, during trial, on direct and cross-examination, Mr. Hand identified Appellant as the shooter. N.T. 5/22/03 at 137-139, 149-150. When questioned, Mr. Hand indicated that he realized that Appellant was the shooter when he saw Appellant enter the courtroom for trial at 12:45 p.m. and that, approximately one-half hour later, Mr. Hand told the prosecutor that he recognized Appellant as the shooter. N.T. 5/22/02 at 149-150, 168. Appellant argues on appeal that, under Pa.R.Crim.P. 573, the prosecu[1286]*1286tor should have immediately disclosed to Appellant that Mr. Hand recognized Appellant as the shooter on the day of trial and that Mr. Hand would be testifying to that effect.

¶ 6 Initially, we note that the trial court properly denied Appellant’s request for a mistrial, which was made during cross-examination, since such request was untimely made and Mr. Hand’s identification testimony offered during cross-examination was merely cumulative of his identification testimony offered during direct examination. Mr. Hand testified during direct examination that he heard two shots, turned around, saw Appellant sitting in the front passenger side of the car, saw Appellant leaning out of the car with his arm extended, and saw the victim lying on the ground. N.T. 5/22/03 at 137-139. Appellant did not object to this testimony offered on direct, and he then cross-examined Mr. Hand extensively about his identification of Appellant until finally requesting a mistrial. N.T. 5/22/02 at 144-150. As such, the trial court properly denied Appellant’s request for a mistrial. See Commonwealth v. Dent, 837 A.2d 571 (Pa.Super.2003) (discussing harmless error).

¶ 7 In any event, we conclude that the Commonwealth did not violate Pa. R.Crim.P. 573, as is alleged by Appellant.

¶ 8 Pa.R.Crim.P. 573 provides, in relevant part, the following:

(B) Disclosure by the Commonwealth
(1) Mandatory:
In all court cases, on request by the defendant, and subject to any protective order which the 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 ease. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
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(d) the circumstances and results of any identification of the defendant by voice, photograph, or in person identification; ....
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(D) Continuing Duty to Disclose

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Cite This Page — Counsel Stack

Bluebook (online)
850 A.2d 1283, 2004 Pa. Super. 190, 2004 Pa. Super. LEXIS 1302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-honesty-pasuperct-2004.