Commonwealth v. Baldwin
8 A.3d 901
Pa. Super. Ct.
2010
Check Treatment

*1 Pennsylvania, COMMONWEALTH

Appellee BALDWIN, Appellant. Monroe

James Pennsylvania.

Superior Court of 17, 2009.

Argued Nov. 8, 2010.

Filed Nov. Debbis, Pittsburgh,

Matthew appel- lant. Deputy

Michael Streily, Atty., W. Dist. Preuhs, and Sandra Asst. Dist. Atty., Commonwealth, Pittsburgh, appellee. PANELLA, BEFORE: SHOGAN and *, COLVILLE JJ. SHOGAN, BY

OPINION J.: Appellant, Baldwin, ap- James Monroe peals from of sentence judgment his of life parole without sentence consecutive years one to two entered degree convictions of murder first appeal, abuse of a On corpse. challenges the court’s denial of his on his own behalf after he had waived previous day evidentiary and after of the case closed. phase Because we hold that the trial did not abuse its to reopen discretion in refusing case for submission of this additional we affirm.

* Judge assigned Superior Senior Court. Retired

902 (foot- 12/19/08, Trial 1-2 Opinion, the factual and Court at

The trial court stated omitted). appeal note This followed. as follows: history procedural the Appellant raises issue 2006, 26, a depart- road January On appeal: employee ment discovered shallow was his fun- Appellant Whether denied grave. police were called makeshift damental, constitutional to right scene, recovered from the to the and Fifth, pursuant on his own behalf containing a grave piece of backpack Sixth, Fourteenth to and Amendments name on it. paper [Appellant’s] Constitution, well States as United from the burial site were Also recovered I, Pennsylva- as Section 9 of the Article contained plastic bags five the dis- nia Constitution? [Appellant’s] membered remains at 5. housemate, Appellant’s Brief Martin. Mr. Mar- Brendan manner tin had been eviscerated. The Appellant presented in this case an to be of death was determined homicide. insanity at trial. an on the defense After colloquy, record he to waived his [Appellant] by po- interviewed was 2/21/08, testify. N.T., at 323-324. Follow and had Mr. lice admitted he attacked ing presentation testimony by of rebuttal First, hit victim [Appellant] Martin. expert regarding Ap the Commonwealth’s Then, with a claw used a hammer. he incident, pellant’s sanity at the time of the victim in large knife stab the the neck his Appellant changed attempted mind and Finally, [Appellant] and heart. said N.T., to reassert his housemate; he dismembered his at- 2/22/08, Appellant at 359-360. made his scene, tempted up clean crime day after his and waiving transported and the remains to the loca- evidentiary after phase the closure of body parts tion were eventu- [where] trial, prior closing arguments but ally found. jury Appellant and instructions. Id. did [Appellant] charged was with one give mind. changing a reason Homicide,1 count each of Criminal Id. re The trial court denied 20, Corpse.2 February Abuse of On quest because the case was 2008, trial, following jury [Appellant] day closed was previous and the Murder, Degree was First convicted of brought set to in for Id. be instructions. Abuse Corpse. of a 360. Appellant at maintains that the Com prejudiced monwealth would not been 2501(a), § 18 Pa.C.S. as amended[J by Appellant’s reassertion of his 5510, § 18 Pa.C.S. as amended!.] testify, therefore the court should trial testimony. Appellant’s have allowed the sentencing, Prior to trial counsel was Appellant Brief 22. argues permission granted to withdraw. New court’s failure the case appearance, counsel entered his and on Appellant’s testimony allow on his own 14, 2008, May [Appellant] was sentenced behalf an abuse of man discretion and prison life in the possibility without dates trial. Id. a new at 36. parole, one[-]year and a consecutive does not contend that waiver was invol two-year prison sentence on the Abuse untary, Id. unintelligent unknowing. Corpse offense. Post-sentence mo- 21. 28, 2008, July tions were filed on The right

denied on October of an accused to on his Court is a fundamental tenet of behalf American jurisprudence explicitly Mississippi, and is 410 U.S. 93 S.Ct. I, guaranteed by 1038, 1046, (1973)). Article Section 9 of the 35 L.Ed.2d 297 Fur- Pennsylvania thermore, Constitution. Common- our Supreme Court has never *3 Nieves, 529, 584-535, wealth v. 560 Pa. 746 held: (2000). 1102,

A.2d 1105 See also U.S. that our constitution confers upon crimi- Amend. (guaranteeing right Const. VI nal defendants an unfettered right of behalf). of an accused to on his own self-expression in the courtroom during In addressing right on one’s guilt-determination phase of trial. behalf, Supreme the United States Rather, the right is, to be heard as Court has held: always, by circumscribed the rules of right to testify on one’s own be- evidence. half at a criminal trial has sources in several provisions 460, Commonwealth v. Jermyn, Constitution. 516 Pa. 468-469, It rights 74, (1987). is one of the that “are essential Thus, 533 A.2d 78 process adversary to due of law in a fair applying its evidentiary “[i]n rules a process.” The necessary ingredients of must evaluate [court] whether the inter the Fourteenth guarantee Amendment’s ests by justify served a rule the limitation that no one shall be of deprived liberty imposed on the Defendant’s constitutional process without due of law include a Rock, right testify.” 56, 107 483 U.S. at testimony: to be heard and to offer S.Ct. A person’s right to reasonable notice regard case, With reopening a him, charge against of a an oppor- and is within the “[i]t discretion of the trial tunity to be heard in his defense—a judge permit either side to reopen its day to his in court—are basic present case to additional evidence.” system our jurisprudence; of Mathis, v. Commonwealth 317 Pa.Super. include, minimum, rights these as a 226, 1167, (1983) (citations 463 A.2d 1171 right to examine the against witnesses omitted). quotations “Under the law him, to offer and to be of this Commonwealth a trial court has the represented by counsel. side, discretion to a case for either Arkansas, 44, 51, Rock v. 488 U.S. 107 prior entry of judgment, final 2704, 2708-2709, S.Ct. 97 L.Ed.2d 37 prevent order to miscarriage failure or (1987) omitted). (quotations and citations justice.” Commonwealth v. Tharp, 525 Additionally, we note that the decision to 94, 98, 557, (1990). Pa. 575 A.2d 558-559 testify on one’s ultimately own behalf is Supreme Our Court has stated: decision to be made the accused after consultation with counsel. Commonwealth We will deem a trial court to have O’Bidos, (Pa.Su- v. 849 A.2d 250 only abused its discretion if we deter- (citations omitted), per.2004) appeal de- mine that the trial ruling court’s exhibit- nied, (2004). 580 Pa. 860 A.2d 123 unreasonableness, ed manifest partiality, prejudice, bias or such lack of support as

Although criminal defendants have a clearly to render it erroneous. We will constitutional right on their own behalf, ruling not condemn a trial court’s as is not without limitations. merely an abuse of Sometimes this discretion because must “bow to accom- might we legitimate modate other have reached a different interests Rock, process.” criminal trial 483 U.S. at conclusion had the been decision ours 55, 107 (quoting S.Ct. at 2711 Chambers v. in the first instance.

904 84, 89, in an reading poetry Pa. Bango, stated

Commonwealth (citation (1999) 1070, 1072 omit- al- “attempt Appellant’s A.2d to demonstrate added). ted) (emphasis illness leged mental would have taken out of of the fact- proceedings the realm Jermyn, upon relies The Commonwealth inflamma- finding process into that of Ap- support position its supra, theater, speculation, if that of tion and from testi- properly precluded pellant it was within the discretion of the testimony would fying Appellant’s evidentiary Petras’, to limit such a display Dr. only expert’s, corroborate Id., 533 A.2d at grounds.” Pa. at insanity through conclusion *4 and actions. Commonwealth’s 79-80. demeanor Supreme In our Jermyn, Brief at 26.1 in Jermyn distinguishable We find to be court did concluded that the trial Court Jermyn was to take the requesting reading precluding Jermyn in from

not err purpose reading stand for the limited attempt open in in an poetry statement, form.2 In prepared verse insanity. Jermyn, the defense of establish fact, Pennsylvania our review of law re 471, support In Pa. at 533 A.2d at 79. 516 specifically addressing no case veals conclusion, the stated: of this Court However, presented by case. issue elected take the witness Appellant Pennsylvania rejecting there is case law stand, testify not to as to either the corollary proposition that trial counsel the crime or surrounding circumstances failing implement can be ineffective for mental condition the commis- strategy permits exercise crime, a pre- sion of the but to read after a waiver. See O’Bi statement, form, in verse directed pared dos, 251, A.2d at 2 was (appellant 849 n. jury. The of this purpose at the obvious deprived of his fundamental appellant’s statement was to dramatize testify on his own behalf and counsel was purported display delusions and his de- appellant not ineffective for to call failing meanor, subjective thus re- inducing and vol knowingly as witness he sponse jurors as to minds of untarily testify). waived his Fur his mental Such a demon- condition. thermore, there are cases several federal subject would to no stration have been point on which we find instructive.3 evidentiary would have constraints and as- underlying insulated testimonial Peterson, States 233 F.3d United v. sertion, i.e., legally appellant (1st 101, Cir.2000), 105 after the defense crime, at the from insane time of the rested, jury the district court told meaningful cross-examination. expect closing arguments within the hour recess, Pa. at into Jermyn, 516 533 A.2d 79. and went recess. After further a brief Supreme Jermyn charging Court court held conference. contained, We note that the record does not lant's it does 1. certified would exactly what he indicate have been includ- show that was informed that Appellant's subject proposed but he would be See ed cross-examination. N.T., 2/21/08, in his brief that he “would have cor- and 318-324. asserts 224-255 only through roborated Dr. Petras not testi- that, recognize binding, 3.We while not feder- mony demonstrably through but also his de- Eitak, may guide Campbell law al us. See and actions.” Brief at meanor Inc., (deci- (Pa.Super.2006) 893 A.2d 33. jurisdictions may provide other sions from binding Although guidance clearly are the certified record in the case sub but on this Court). judice exactly Appel- does not reveal what conference, Id. At the end of the Peter- vide a reasonable explanation for failure advised the to present son’s counsel court that Peter- the evidence in its case-in- behalf, on his own chief. The proffered son -wished evidence should be relevant, admissible, despite previous Peterson’s decision not to technically ade- Id,4 any quate, helpful evidence in the put case. in ascer- taining the guilt also or innocence of Counsel advised court that for accused. The receipt ethical reasons he belated of such could not examine Pe- testimony should not imbue the evidence testify. terson if Peterson were allowed to importance, prejudice distorted gave Id. Peterson no excuse for not testi- case, opposing party’s or preclude an fying during his case-in-chief. Id. at 107. adversary having from an adequate op- The court to reopen refused the evidence portunity to meet the additional evi- in order to allow Peterson to Id. dence offered. appeal, at 105. On Peterson claimed that court’s district refusal to do so violated Peterson, 233 F.3d (quoting at 106 United constitutional his own Walker, (5th States v. 772 F.2d *5 defense. Id. Cir.1985) (citations quotation marks omitted)). short, the First Circuit Rock, Citing the First Circuit outlined looked at likely “whether the value of the applicable the law as follows: defendant’s testimony outweigh[ed] po- the defendant does not have an unre- [A] tential for disruption prejudice stricted right any point proceedings, and if so whether the defen- Generally, trial. if he wishes to dant [had] reasonable excuse for failing testify, he must do so he before rests his to present testimony the during his case- case; otherwise, he can move the trial in-chief.” Id. evidence, reopen court to the but the initially First Circuit found that the choice whether to reopen is left to the timeliness of defendant’s motion to reopen, court’s sound discretion. Such a rule rested, a half-hour after the posed defense serves to proceeds ensure that the trial relatively small threat. Id. In further manner, in a fair orderly with the matter, however, considering the the court defendant’s testimony occurring when stated: judge, jury, prosecution reason- Nonetheless, small, while potential ably expect it. disruption upon reopening the evi- Id. at 106. dence was not insignificant. For exam- The Peterson court further stated that ple, reopening may the evidence trial court should consider the jurors confused the they after had been factors, as enumerated the Fifth Cir- told to expect closing arguments when cuit, deciding reopen when the evidence they Moreover, returned from recess. testify: to allow a defendant to attorney Peterson’s had indicated he discretion, In exercising its the court would not be participate any able to must Peterson, consider the timeliness of the mo- examination of posing proce- tion, the character of dural problems judge for the if Peterson the effect of granting of the motion. permitted were to testify. Given the party moving to reopen pro- sense, should for disruption in this However, opinion colloquy. the First Circuit’s does not indicate that there anwas on-the-record closed, has been the evidence liberty deny Once court was

district of ad- for submission testimony reopen if Peterson’s whether motion to left to the testimony And the is a matter value. ditional of little likely to be that conclu- discretion. sufficiently supports trial court’s record hardly gave sion. Peterson he wished as to what indication any have a criminal defendants Although only “just about, stating he on their constitutional about certain facts bring out

want[ed] behalf, right must sometimes allegedly his counsel certain issues” legitimate other “bow to accommodate during cross-examina- develop failed process.” interests in the criminal witnesses. government’s tion of the the need for order and Unquestionably, trials is sufficient fairness criminal to the reasonableness Finally, as firm, inflexi- though always justify testifying dur- excuse for Peterson’s testify; ble, limiting rules case-in-chief, Peterson offered no ing his and, course, of un- numerous rules Pe- excuse, reasonable one. let alone a circum- constitutionality do doubted during his case- ample time terson had right. scribe testimony; he admitted to offer in-chief he agreed had he and counsel limiting generally The rule option. Even not exercise *6 trial does evidence-taking stage of to the testimony would Peterson’s assuming unconstitutionally infringe upon valuable, Peterson still owed have been right testify. plac- to While defendant’s expla- some sort of reasonable the court right, limitation on the ing only minor change in tack. for his sudden nation and or- both fairness promotes the rule requirement of ex- such a Without which, course, trials, interests der limiting cuse, generally testi- the rule the trial legitimacy to the are crucial mony evidence-taking stage of a and In the interests of fairness process. all, hardly and be a rule at trial would order, a commonsense simply imposes it easy a defendant to be too it would testify right that the be requirement strategic testifying rea- postpone timely in a fashion. exercised close of evidence. until after the sons added). Thus, citations omit- (quotations (emphasis Id. at 107 Id. at 59-60 ted). no abuse of discretion First Circuit found infringement court and no

by the district by the court then noted that The Jones testify. right constitutional of Peterson’s testify, the was made to time the Id. jury instructions parties prepared had Jones, 880 F.2d find States v. We United rebuttal wit- summations Cir.1989) (8th as well. to be instructive released and were un- had been nesses Jones, argued that In the defendant also Additionally, n. Id. at available. his constitutional the district court violated that Jones acknowl- the court also noted the evi- rights when it refused that he knew he had on the record edged Jones, 880 him to dence to allow testify during the evidence issue, the addressing F.2d at 59. to do so. voluntarily chose not phase, but factors, stated: Eighth Circuit these at n. 6. Given Id. abuse of that there was no court concluded must be exercised testify The refusing to court in by the trial of trial. discretion evidence-taking stage reopen the evidence to allow Jones to testi- The you Court: Do understand that no Id. fy. at 60. one can you testify force to your [sic] own trial? us, Appellant In the case before volun- The Defendant: Yes. tarily testify. Although waived his The you Court: Have discussed this de- requirement there is no that the trial court cision of whether or testify not to colloquy conduct an on-the-record when a your attorney? testify5, defendant waives his trial court in fact thorough did conduct a The Defendant: Yes. colloquy before Appellant that, The Having Court: done you do

rested his case. The colloquy wish to in this trial? place took on the record: The Defendant: I’m not sure. Baldwin, The Court: Mr. I have a cou- Well, Okay. Court: I’m going to let

ple questions I want to you ask about you speak to Mr. Elash a little longer. your decision of whether or not to Mr. Elash: I say Can something on the in this trial. my understanding It’s record, Honor, Your maybe clarify you give up your right intend to to take James, your— that? is it the stand and your own be- The Court: Sure. half. I want you questions to ask a few James, Mr. your Elash: desire would be about this decision. Please understand get statement; up give is that that I am neither encouraging nor dis- correct? your couraging you decision. Do under- The Defendant: Yes. stand that? Mr. your mind, Elash: And in that was (Witness head.) The Defendant: nods you what would consider testifying? yes Court: I need or no for the The Defendant: Yes. reporter. Mr. Elash: I explained you that the *7 The Defendant: Yes. procedure, rules of procedure The you Court: Do understand that un- permit you would not to do that. der both the Constitution the United The Defendant: Yes. States of America Constitution Mr. Elash: you So understand that even of the Commonwealth of Pennsylvania, though you testify would want to you have an testify absolute on you form that by just want to giving a your own behalf. statement, you’re permitted not to. You The Defendant: Yes. have questions to answer and then The you Court: And do understand that would be by cross-examined Ms. Neces- deny you no one can the opportunity to sary. youDo understand that now? your on own behalf? The Defendant: Yes. The Defendant: Yes. Mr. my Elash: So is it understanding The you Court: Do also understand that you that do not want to under the you have an absolute not to testify Court, Rules of you’d subject that be your own behalf? questions and answers and cross-exami- The Defendant: Yes. nation? 1132, denied, Duffy,

5. See per.2003), appeal Commonwealth 832 A.2d 574 Pa. (Pa.Super.2003) (citing n. 3 (2003)). Common- A.2d 143 Todd, (Pa.Su- wealth v. 820 A.2d going to be any attorney, you’re not sure. I’m still Defendant: The attorney that an anything do allowed to Elash: Go on. Mr. you to do. Do not be allowed would you’re You’re—not Defendant: that? understand if I fire but anything, doing job a bad Yes. The Defendant: argu- my closing I make you, can myself? change representing ment The rules will The Court: yourself. representing you’re Mr. Elash: Well— that? youDo understand hear sorry. I couldn’t I’m The Court: Yes. The Defendant: he said. everything why And don’t Okay. him- Court: represent wants to Elash: He Mr. also— doesn’t me a second. That you just give now, Your Honor. self to tes- anything your right about change how—well— Really? And The Court: up can’t stand tify you as far as still mean, you have a I Mr. Elash: you If want to just give a statement. to. You’d you if want represent yourself have to be cross- testify, you’re going to every rules that by the same be bound cross- going You’re be examined. how by bound as far as lawyer is other Do Attorney. examined the District not be probably It try a case. that? you understand your- represent interest your best Yes. The Defendant: you do have a to do so. But self. making your you any questions decision? help The Court: Do Does any of this? about Yes. The Defendant: stay I I’ll guess The Defendant: No. Well, you’re going to have— Mr. Elash: my attorney. with speak want to you Do The Court: Well, I think that is a smart The Court: for a while? We your attorney privately decision, to make. your but it’s decision that. arrange can Yes. okay. No. That’s The Defendant: The Defendant: you want. you Elash: Whatever Mr. So if that’s what want The Court: fíne, do, you that will be too. Do wish you. I hear The Court: can’t is, you Again, in this trial? speak I don’t need to The Defendant: know, attorney your like privately. him would be you, you where described *8 you pro- want to How did The Court: That’s subject to cross-examination. point? ceed at this your right, your and it’s decision Defendant: I wanted to— The with Mr. Elash speak make. You can you want to do The What do Court: in speak I said. You can again, like right now? you want to do. private. Whatever I really I’m not sure. The Defendant: record.) (Discussion off the was held about court. really know that much don’t going I decided I’m not The Defendant: No, course, you of The Court: testify. probably You go didn’t to law school. decision right. All Is this The Court: attorney or your much as don’t know as your own free will? not to matter. You any attorney, for that The Defendant: Yes. know, by all the rules you will be bound you anyone Has threatened The Court: procedure. and court of criminal court making this decision? you forced into the same as going to be treated You’re attorney so that he could make a The Defendant: No. direct in closing argument. address After being accept your waiver then. The I Court: advised that he held to the would be same Elash, anything you else Mr. is there standard as attorney, that of an the trial clarify regarding the wanted to add to or gave Appellant ample opportunity to testify or anything? decision not to think about his and to decision discuss the No, Mr. Elash: Your Honor. Thank matter attorney. further with Appel- you. lant attorney, decided to retain his and to N.T., 2/21/08, at 818-324. on his own behalf. jury the colloquy, After the returned to Additionally, colloquy this was not the Appellant the court room rested his and Appellant first time during sought 2/21/08, N.T., case. at 326-827. The directly. address the court and jury While its rebuttal witness Commonwealth called the court were parties discussing and Id. at 327-356. and then rested its case. matter involving juror and a parties began trial court to dis- The and conflict of interest the Common- instructions, jury pres- outside of the cuss case-in-chief, wealth’s Appellant indicated jury ence of was jury, dis- that he with speak wanted to the court. Id. at 356-359. On for day. missed N.T., 2/21/08, at 224. The court informed morning, prior jury to the following Appellant that he need to would address instructions, being brought Appel- Id. After attorney. the court through his lant notified of his change the court record, discussion was held off the Appel- N.T., position and desire attorney relayed lant’s 2/22/08, at 359-360. court: Upon being presented Honor, just Mr. Elash: Your for the to withdraw waiver and to record, he exert a right wanted to testify, the trial court ruled: allocution to I jury'. And told him Well, legal procedure, that’s not in our go

The All we right. Court: did that he would have take the stand through plenty There was everything. subject be time, fact, to cross-examination. He we, had come to only ques- be allowed to answer charge. work on The points case know, later, tions. You that’s I know afternoon, so yesterday was I’m closed going colloquy we’re to have a concern- going any further allow ing that. anyone from time. have We brought Right. set to for the instruc- Court: be tions. question. Mr. Elash: That was said, attorney your Court: What N.T., 2/22/08, at 360. course, you’ll is correct. But some colloquy, As reflected you time to think about how want to initially uncertain as to whether he *9 proceed. happen to for going That’s testify wanted to on his behalf. After Certainly you’ll little while. by attorney, it was clear questioning his more time to it with him and discuss as Appellant opportunity that wanted the to need, fact, you much time in to as decide the make a statement to court and in you regard. what want to that do to being subject without cross-examina- N.T., 2/21/08, at 224-225. explained Appellant to tion. When it was clearly of his simply Appellant that he to make a was advised would be unable statement, in rights testifying and what his own de- dismissing he considered his Appellant’s at at 79. given entail. was 516 Pa. A.2d Appellant would

fense testify Appellant, to consists of the right to his decision consider ample opportunity witness, testifying other under attorney. any like the with his discuss matter answering designed to by questions oath wish to Appellant’s record reflects relevant facts. is not enti- being Appellant elicit jury directly without address the right self-expres- tled to an unfettered of cross-examina- subject questioning to Id., 516 Pa. 533 A.2d at 78. sion. proce- it was that explained tion. When Thus, likely Appellant’s pro- the value of that, Appel- rules did allow for dural testimony questionable. is posed to to waive his lant decided mind, changed later his Appellant When Additionally, after and volun- knowingly closed, it in the after the evidence was was testify, tarily waiving Appel- his to the discretion of trial court to sole presented explain lant no excuse to his testimony. Upon the case to allow the As the change previously, of tack. noted review, may we disturb the determinations a defen- Peterson determined that abuse only of the trial court if there is an his forgoes who to should dant of that discretion. for the explanation a reasonable provide subsequent change attempt of tack and determining the trial court whether reassert the close of evi- after disallowing its discretion in the abused court, As dence. stated the weigh Appellant’s right we [wjithout excuse, of requirement such against after close of evidence testimony generally limiting the rule need for order fairness in the a trial evidence-taking stage to fol- proceedings. Additionally, we elect all, hardly be and it a rule analysis the First in Peterson low Circuit’s easy would be too for a defendant likely and consider whether the value postpone testifying strategic for reasons Appellant’s testimony outweighed until after the close of evidence. disruption potential prejudice proceedings, Appellant and whether Peterson, pro- 233 F.3d at 107. Failure to failing pres- had a reasonable excuse for explanation support vide an of the ent the during his case-in-chief. change approach weighing a factor was Peterson, 288 See F.3d at 106. against opening the allow defen- case to Peterson, testimony in dant’s and we de- Here, Appellant attempts several made weighing against it to be a termine factor directly jury, address the court here, in Appellant deciding whether the subject being without to cross-examina- reopened trial court should have the case. Appellant’s It that his position tion. is tack, an excuse change Without for his testimony would Dr. Petras’ corroborate only presume Appellant we can testimony, through demeanor and ac- his after the postponing testimony until It appears tions. Brief at 33. strength close of evidence so to test the as Appellant did not want of the case. Commonwealth’s circumstances the crime surrounding Furthermore, or his mental the commis- disrup- condition crime, of the prejudice upon sion but rather to dramatize tion or the proceedings, demeanor, attempting reopening thus allow perhaps evidence to subjective response testify, insignificant. induce a in the minds would not be As Peterson, jurors as to evidence reopening his mental condition. cited *10 Jermyn may jurors, Ap- This is the situation have confused as the the Court sought protect Jermyn, expressly See had rested its case against. pellant 911 N.T., 2/21/08, presence jury. of the for failing present excuse the testimony Also, through 326-327. Having his case-in-chief. discerned opportunity would have had the no abuse of part discretion on the of the warranting case, raise a response issues or trial court in this we affirm Appel- from follow-up judgment the Commonwealth. The lant’s of sentence. previously presented Commonwealth had Judgment of sentence affirmed. witness, its rebuttal rested its case and Thus, its allowing dismissed witnesses. COLVILLE, J., a files Concurring Appellant’s testimony could have resulted Opinion. in potential prejudice to the Common- CONCURRING OPINION BY

wealth or significant delay in the trial COLVILLE, J. case, proceedings. in As the Jones Appellant certainly had the constitution- parties here begun preparing jury had in- al to testify during the presentation structions, jury given was about to be of his defense. He chose to waive that instructions, begin, summations were to right. After the case was closed but be- potential rebuttal witnesses had been instructions, fore the received their released. Appellant asked that permitted he be Consequently, weighing the factors in testify. Majority appropriately con- case, we cannot conclude that the trial request siders this as a request to reopen reopen court’s refusal to the evidence was the case. The governs law which such a unreasonable, manifestly a misapplication request is well-settled. law, partiality, of the or the result of preju- Under the law of this Commonwealth a dice, bias or ill will. We are reminded that trial court has the discretion to reopen a appellate an court cannot condemn trial side, case prior for either entry ruling court’s as an abuse of discretion judgment, final prevent order to merely might because we have reached a failure or miscarriage justice. different conclusion had the decision been Commonwealth v. Tharp, 525 Pa. ours in the first Bango, instance. See (1990) (citations omitted). A.2d Thus, Pa. at 742 A.2d at 1072. under circumstances, these trial, we cannot conclude At Appellant offered no reason for that the trial He, court abused its discretion his belated desire to there- denying Appellant’s fore, reopen did not establish a need for his testi- case to allow him to on his own mony prevent miscarriage failure or behalf. justice. Consequently, the trial court did not abuse its discretion when it denied conclusion, we hold that the Appellant’s request to reopen the case. testify generally must be exercised at the reasons, I, too, For these would affirm the evidence-taking stage of trial. Once the judgment of sentence. closed, evidence has been the matter of reopen whether to for Majority submission addi- announces a new test a tional left is to the discretion of apply court must when a defendant the trial court. In exercising that discre- seeks to his case to offer his testi- tion, (“In a trial court must consider mony. Majority whether Memorandum at 911 likely value discretion, testimo- exercising that a trial court ny outweighs potential disruption likely must consider whether the value of prejudice proceedings, or in the testimony outweighs and the [defendant’s] whether the defendant has a reasonable disruption prejudice *11 the defendant whether

proceedings, failing pres- excuse

has a reasonable his case-in- testimony during

ent test,

chief.”). this new announcing After of discre- no abuse Majority discerns trial court. of the part

tion on the propriety any comment

I reserve Majority by the new test announced current state of I believe dispose Appellant’s sufficient

law is however, note, that neither

issue. I opinion support the trial court’s

record nor the court considered

a conclusion tes- likely value of

whether for dis-

timony outweighed proceedings, prejudice

ruption had a reasonable

and whether failing present

excuse his case-in-chief. Pennsylvania,

COMMONWEALTH

Appellee Jr., Appellant.

Ross RHOADES Pennsylvania.

Superior Court 25, 2010.

Argued Aug.

Filed Nov.

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