Com. v. Engelhardt, C.

J-A30018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

CHARLES ENGELHARDT

Appellant No. 2040 EDA 2013

Appeal from the Judgment of Sentence June 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003525-2011

BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.: FILED MARCH 25, 2015

Appellant, Charles Engelhardt, appeals from the June 12, 2013

aggregate judgment of sentence of six to 12 years’ imprisonment, plus five

years’ probation, imposed after he was found guilty of one count each of

endangering the welfare of a child (EWOC), corruption of minors, and

indecent assault.1 After careful review, we affirm.

The trial court summarized the relevant factual and procedural history

of this case as follows.

The victim’s parents, J.G. (hereinafter “Father”) and
S.G. (hereinafter “Mother”) married in 1981 and had
two sons, J.G., Jr. (hereinafter “Brother”) and the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 4304(a)(1), 6301(a)(1)(i) and 3126(a)(7), respectively.
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victim “D.G.” The victim and his family resided in
the northeast section of Philadelphia. Father was a
Philadelphia [p]olice [s]ergeant, and Mother was a
nurse. As both of D.G.’s parents had attended
Catholic school and wanted to provide their sons with
a similar education, they enrolled D.G. and Brother
at St. Jerome’s School, the Archdiocese parochial
school located within walking distance of their home.

D.G. began attending St. Jerome’s School in
kindergarten. Physically, D.G. was small for his age.
Despite this, D.G. was very active in school sports
and he participated in many extra-curricular
activities at St. Jerome’s, including serving as altar
boy. [Mother] recalled that [D.G.] was an active and
rambunctious young boy. D.G.’s classmate and
fellow altar boy, [J.S.P]., remembered D.G. as a
“happy kid [who] was always joking.”

When D.G. was in seventh and eighth grades
at St. Jerome’s, however, some of his friends noticed
a marked change in D.G.’s demeanor. According to
[J.S.P.], D.G. became “real dark,” and secluded
himself from everybody. Another friend, [R.B.],
confirmed this change in D.G.’s personality,
testifying that D.G. became a “loner” and “did not
talk to too many people.” During this same time
period, D.G. complained of testicular pain. D.G. was
examined by a pediatrician and a urologist but the
cause of the pain was never determined. According
to Mother, around this time D.G.’s appetite
diminished and he lost weight.

After graduating from St. Jerome’s, D.G.
attended Archbishop Ryan High School where his
behavior quickly spiraled out of control, and he
became a heavy drug abuser. D.G. was expelled
from Archbishop Ryan for possession of drugs and
weapons. After his expulsion, D.G. attended the
International Christian High School where he became
good friends with fellow student [L.H.]. Early in their
friendship, D.G. and [L.H.] were socializing in D.G.’s
basement when D.G. confided that two priests and a
teacher had sex with him when he was in the 5th

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and 6th grades. [L.H.] was stunned by this
revelation, but D.G. did not want to discuss further
details of the incident at that time.

[L.H.] testified that D.G. again confided in him
about being the victim of sexual abuse during a
conversation they were having about a teacher at
the International Christian High School whom neither
he nor D.G. liked because the teacher was “really
touchy, feely” and because of “weird vibes that came
from him all the time, weird sexual-type vibes.”
D.G. and [L.H.] were in a classroom at school when
the teacher exhibited what they deemed “creepy”
behavior. On this occasion, D.G. again mentioned
the abuse to [L.H.].

D.G.’s high school years were a nightmare for
D.G. and his parents. According to Mother, D.G. cut
his wrists, drew images of a gun to his head, and
wrote suicide notes. He obtained psychiatric help at
the Horsham Clinic, but the treatment did not help
and “things continued to get worse and worse.”
D.G.’s substance abuse worsened as he continued to
use drugs including marijuana, Percocet, Oxycontin,
LSD, and ultimately became a “full blown heroin
addict.” Over the years, D.G. was treated at over
twenty drug rehabilitation clinics. During this same
time period D.G. was arrested several times for
offenses including retail theft and possession of drug
paraphernalia. D.G.’s most recent arrest for
possession of heroin occurred in November 2011.

D.G.’s parents could not understand the
complete change in their son’s behavior and
personality and they were concerned that serious
issues were at the root of the problem. Mother and
Father pleaded with D.G. to open up to them but
D.G. refused. When D.G. was eighteen or nineteen
years old, however, he suddenly confessed to his
parents that a priest had sexually abused him. After
that revelation, D.G. immediately “shut down” again
and refused to discuss it further with his parents. It
was apparent to Mother and Father that D.G. was
not ready or willing to reveal his entire story. Out of

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concern for D.G.’s fragile and agitated state, and
fearing that he would disappear and overdose on
drugs, Mother and Father decided not to report this
revelation to the police.

The underlying issues driving D.G.’s self-
destructive behavior finally began to emerge in detail
in January 2009, when D.G. was approximately 20
years old. While undergoing treatment for his heroin
addiction at a drug rehabilitation facility, D.G. broke
down during a group therapy session and revealed to
his drug counselor that he had been sexually abused
while a young student at St. Jerome’s. On January
30, 2009, with the support of his counselor, D.G.
called the Philadelphia Archdiocese hotline to
officially report the abuse. Later that day, D.G.
spoke with Louise Hagner, the victim assistance
coordinator for the Archdiocese. Hagner’s duties
included receiving reports from victims alleging
sexual abuse and providing services to the victims.
The initial phone call D.G. made to Hagner ultimately
led to investigations by the Philadelphia District
Attorney’s Office and a Grand Jury investigation.
These investigations brought to light the details of
the sexual abuse of D.G. at the hands of Appellant
and Edward Avery, both priests at St. Jerome’s and
Bernard Shero, a lay teacher at St. Jerome’s. All
three men were indicted and warrants were issued
for their arrests.

D.G.’s accounts of the sexual abuse committed
by Appellant varied at different stages of the
investigations. A large portion of the jury trial
consisted of the defense presenting witnesses and
evidence highlighting the inconsistencies and
generally attacking D.G.’s credibility. The
prosecution provided evidence and witnesses to
account for the inconsistencies and corroborate
D.G.’s allegations. The jury, as fact-finders [sic],
ultimately made a credibility determination in favor
of D.G. and found Appellant guilty. The following
description of Appellant’s sexual abuse of D.G.
reflects the consistent [evidence presented and]

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sworn testimony of D.G. before the Grand Jury and
during the jury trial.

Appellant, a member of the Order of the
Oblates of St. Francis de Sales, was assigned to
serve as a priest at St. Jerome’s Parish and was
serving there when D.G. was in fifth grade. One of
Appellant’s responsibilities included presiding over
weekday morning masses. During the winter of
1998-1999, while D.G. was in fifth grade, D.G.
assisted Appellant and other priests as an altar boy.
D.G.’s responsibilities as an altar boy included
setting up for the mass, assisting the priests during
the mass, and cleaning up afterwards. One morning
that winter while D.G. was cleaning up after a mass
conducted by Appellant, Appellant caught D.G.
drinking the wine left over from the mass. Appellant
scolded D.G and commanded him to return to the
sacristy, a small room adjoining the church altar.
Once they were seated in the sacristy, Appellant
poured himself the remaining wine, offered some to
D.G., and asked if he had “ever looked at porno,” or
if he was sexually interested in boys or girls.
Appellant removed pornographic magazines from a
briefcase and began to show the pictures to D.G. as
he touched and rubbed D.G.’s back. Appellant told
D.G. that he wanted D.G. to “become a man.”
Appellant ended the encounter by telling D.G. that
they would see each other again and his “sessions
are going to begin soon.”

Approximately 1½ to 2 weeks later, D.G. again
served the early morning [m]ass with Appellant.
After the [m]ass, Appellant asked D.G. to stay
behind in the sacristy and told him that his
“sessions” were going to begin. According to D.G.
everyone else who had served that [m]ass had left
by that point. Appellant and D.G. sat down in the
same chairs in the sacristy as in their first encounter.
D.G. was wearing his school uniform and Appellant
was wearing black clothing and his priest collar.

Appellant told D.G., “[i]t’s time for [you] to
become a man,” and began rubbing and caressing

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D.G.’s back and leg while assuring D.G. that “God
loves [him] and everything is going to be okay. This
is what God wants.” He told D.G. to get undressed
and D.G. complied. Appellant then took off his
clothes. According to D.G., Appellant began to
masturbate D.G.’s penis and then performed oral
sex. D.G. acknowledged having a “slight erection”
but “did not ejaculate.” Appellant then told D.G. to
perform oral sex on him. D.G. complied and
Appellant ejaculated on the floor. At this point
Appellant told D.G. that he “did a good job” and he
was “dismissed.” Following this encounter, D.G.
walked home but did not tell anyone what had
happened. D.G. felt scared, embarrassed, and did
not want to get in trouble; he thought he had done
something wrong.

D.G. saw Appellant about a week later at which
time Appellant told him that they were “getting
ready for another session.” D.G. testified that he
told Appellant that “[i]f he came near me again, I
would kill him.” Following this conversation,
Appellant never talked to D.G. again about
“sessions.” From that point forward D.G. tried to
avoid serving mass with [] Appellant by switching his
[m]ass assignments with other altar servers.

Trial Court Opinion, 12/17/13, at 2-6 (footnotes and citations omitted).

On April 12, 2011, the Commonwealth filed an information, charging

Appellant with the above mentioned offenses, as well as one count each of

rape of a child, involuntary deviate sexual intercourse (IDSI), aggravated

indecent assault, as well as four counts of criminal conspiracy.2 On January

14, 2013, Appellant proceeded to a lengthy, joint jury trial with Bernard

____________________________________________
2
18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(a)(7), and 903(c), respectively.

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Shero.3 At the conclusion of the trial on January 30, 2013, the jury found

Appellant guilty of one count each of EWOC, corruption of minors, indecent

assault, and four counts of criminal conspiracy. The jury was deadlocked as

to IDSI. The rape of a child and aggravated indecent assault charges were

nolle prossed. On June 12, 2013, the trial court granted Appellant’s oral

motion for extraordinary relief to the extent it sought a judgment of

acquittal as to the four counts of criminal conspiracy, but denied the motion

in all other respects.4 That same day, the trial court imposed an aggregate

sentence of six to 12 years’ imprisonment, followed by five years’

probation.5 On June 20, 2013, Appellant filed a timely motion for

modification of sentence, which the trial court denied on July 10, 2013

____________________________________________
3
Shero’s appeal is currently pending before this Court at 2164 EDA 2013.
As discussed infra, Edward Avery pled guilty to certain charges in exchange
for a lighter sentence. Appellant agreed to be tried jointly with Engelhardt.
Commonwealth’s Brief at 8 n.1.
4
The Commonwealth has not filed a cross-appeal challenging the judgments
of acquittal notwithstanding the jury’s verdict on the criminal conspiracy
charges.
5
Specifically, the trial court imposed a sentence of three-and-one-half to
seven years’ imprisonment for EWOC, two-and-one-half to five years’
imprisonment for indecent assault, and five years’ probation for corruption of
minors. All sentences were to run consecutively.

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without a hearing. On July 11, 2013, Appellant filed a timely notice of

appeal.6

On appeal, Appellant raises the following seven issues for our review.

1. Whether it was [an] abuse of discretion for the
[trial] court to admit evidence of Dr. Gerald
Margiotti, a pediatrician, who testified that a young
patient’s complaint of testicular pain was consistent
with a child having been sexually abused in a case
where there was no objective factual support for his
opinion testimony?

2. (a) Whether the trial court erred in allowing
the jury to deliberate on whether Appellant was
guilty of conspiracy when the Commonwealth failed
to provide sufficient evidence to meet its burden of
proving that Appellant violated each element of the
crime[?]

(b) Whether the trial court erred in denying
Appellant’s motion for judgment of acquittal on the
charge of conspiracy at the close of the
Commonwealth’s case[-]in[-]chief and in giving
lengthy jury instructions on conspiracy and
accomplice liability applicable to the four original
separate charges against Appellant where the
Commonwealth failed to present sufficient evidence
to meet its burden of proof that Appellant violated
each element of conspiracy?

(c) Whether the trial court erred in providing
the jury with a separate full[-]page verdict sheet
listing four charges coupled with each of the four
original separate charges against Appellant where
the Commonwealth failed to meet its burden of
proving conspiracy and where the trial court
subsequently acknowledged this failure of proof by
____________________________________________
6
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.

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J-A30018-14

granting Appellant’s post-trial motion for judgment
of acquittal on the charge of conspiracy?

(d) Whether the [trial] court’s lengthy and
undue emphasis on conspiracy and accomplice
liability during its jury charge was reversible error
mandating a new trial?

(e) Whether the [trial] court’s unduly
repetitive and grueling conspiracy and accomplice
liability charge where the Commonwealth failed to
meet its burden of proof which permitted the jury in
this case to wrongly infer that Appellant violated the
other crimes charges based on erroneous conspiracy
and accomplice liability theories was reversible error
mandating a new trial?

(f) Whether the [trial] court’s instructions
wrongly permitted the jury to deliberate on the
conspiracy charge listing four separate counts along
with the four other charges of [IDSI], indecent
assault, [EWOC] and corrupting morals of a minor,
thereby making it impossible to determine whether
the jury’s verdicts were based on unproven
conspiracy liability, and this was reversible error
mandating a new trial?

3. Whether it was [an] abuse of discretion for the
[trial] court not to grant a mistrial on the basis of the
Commonwealth’s highly prejudicial summation which
included statements not supported by the trial
record?

4. Whether it was an abuse of discretion for the
[trial] court to allow the Commonwealth to cross[-
]examine its own witness, Edward Avery, the alleged
co-conspirator of Appellant, regarding five unrelated
allegations of sexual abuse, where there was no
evidence presented concerning these accusations,
where they were highly inflammatory and failed to
pass a probative/prejudicial test and were
inextricably intertwined with the conspiracy charge
against Appellant that had not been proven by the
Commonwealth and which engaged in further

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prosecutorial misconduct in its questioning and
summation?

5. Whether the [trial] court abused its discretion
and committed legal error in sentencing [] Appellant
to a six to twelve year term of imprisonment, as
discussed in Appellant’s post-sentence motion to
modify sentence filed on June 20, 2013, because it
substantially exceeded the aggravated range of the
applicable sentencing guideline range and was
outside the entire sentencing guideline range even
though the [trial c]ourt had announced that the
sentence would be in the aggravated sentencing
guideline range and where the sentence imposed
was excessive, unsupported and unreasonable?

6. Whether this Court should grant a remand to
the lower court based on newly discovered evidence
that could have changed the outcome of the trial?

7. Whether it was an abuse of discretion for the
[trial] court to refuse to issue a bench warrant or
grant a continuance where critical defense witness,
J.G., Jr., Esquire, brother of complainant D.G. failed
to appear after [being] subpoenaed and [the]
problem [was] compounded by [the trial] court’s
erroneous answer to [a] jury question on [the]
issue?

Appellant’s Brief at 5-8.

At the outset, we summarily address some of Appellant’s issues,

beginning with his entire second issue, surrounding the Commonwealth’s

failure to provide sufficient evidence to satisfy each element of criminal

conspiracy. As noted above, the trial court granted Appellant’s motion for a

judgment of acquittal on all criminal conspiracy counts. Although the

Commonwealth argues in its brief in response to Appellant’s arguments that

it did present sufficient evidence to prove conspiracy, the Commonwealth

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has not filed a cross-appeal from the trial court’s June 12, 2013 order

granting Appellant’s motion in part. As a result, any issue pertaining to the

criminal conspiracy charges is moot, and we decline to express any opinion

on them at this juncture. See generally Commonwealth v. Weis, 611

A.2d 1218, 1228 n.9 (Pa. Super. 1992).

We next address Appellant’s fifth issue pertaining to the discretionary

aspects of his sentence and his sixth issue pertaining to his request for a

remand to the trial court for an evidentiary hearing on his claim of after-

discovered evidence. We note that Appellant has passed away during the

pendency of this appeal.7 However, consistent with our cases, we decline to

dismiss this appeal as moot in its entirety. See generally Commonwealth

v. Bizzaro, 535 A.2d 1130, 1132 (Pa. Super. 1987).

In Bizzaro, the defendant was convicted of IDSI, indecent assault and

corruption of minors. Id. at 1131. During the pendency of his appeal,

Bizzaro passed away. Id. This Court noted that our Supreme Court had
____________________________________________
7
This Court was advised of Appellant’s death by the filing of a petition to
intervene, although no formal suggestion of death was filed in this matter at
that time. See Application for Leave for Third Party Intervention, 12/22/14,
at 2; Joe Dolinsky, Phila. Priest Dies While Appealing Sexual Abuse
Conviction, PHILA. INQUIRER, Nov. 18, 2014, http://articles.philly.com/2014-
11-18/news/56313260_1_engelhardt-altar-boy-former-catholic-priest.

On February 23, 2015, this Court entered an order directing the
parties to file a suggestion of death, along with documentation of the same
pursuant to Pa.R.A.P. 502(a). Superior Court Order, 2/23/15, at 1.
Appellant’s counsel filed a response to our order on March 6, 2015, enclosing
therewith a copy of Appellant’s death certificate.

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held that “it is in the interest of both a defendant’s estate and society that

any challenge initiated by a defendant to the regularity or constitutionality of

a criminal proceeding be fully reviewed and decided by the appellate

process.” Bizzaro, supra, quoting Commonwealth v. Walker, 288 A.2d

741, 742 n. * (Pa. 1972). The Bizarro Court ultimately held that the

defendant was entitled to relief on one issue, and in lieu of the normal

remedy of a new trial, vacated the judgment of sentence and remanded with

instructions for the trial court to “ent[er] … an order of abatement upon

record certification of [Bizzaro]’s death.” Id. at 1133.

Consistent with Bizzaro, and based on the issues raised by Appellant,

the most this Court could grant Appellant in the form of relief would be a

reversal of his judgment of sentence and either discharge or an instruction

for the trial court to enter “an order of abatement upon record certification

of [A]ppellant’s death.” Id. Conversely, the normal remedy Appellant would

receive from this Court addressing the discretionary aspects of his sentence

would be resentencing. Likewise, the normal remedy Appellant would get

from the Court on his claim of after-discovered evidence or a Brady8

violation would be a remand to the trial court for an evidentiary hearing.9 As

____________________________________________
8
Brady v. Maryland, 373 U.S. 83 (1963).
9
On July 29, 2014, this Court accepted Appellant’s “Application … to Amend
Brief and Reproduced Record for Appellant” as a supplemental brief.
Superior Court Order, 7/29/14, at 1.

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neither of these forms of relief is possible, we decline to address the merits

of these issues, as they do not directly “challenge … the regularity or

constitutionality of a criminal proceeding.” Walker, supra. We therefore

turn to the balance of Appellant’s issues that would warrant a reversal and

order of abatement if deemed meritorious.

We elect to next address Appellant’s first and fourth issues, as they

each challenge evidentiary rulings made by the trial court. In his first issue

on appeal, Appellant avers that the trial court abused its discretion when it

permitted Dr. Gerald Margiotti, D.G.’s pediatrician, to testify that D.G.’s

complaint of testicular pain was consistent with sexual abuse. Appellant’s

Brief at 23. We begin by noting our well-settled standard of review

regarding evidentiary issues.

The admissibility of evidence is at the discretion of
the trial court and only a showing of an abuse of that
discretion, and resulting prejudice, constitutes
reversible error. An abuse of discretion is not merely
an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as
shown by the evidence of record. Furthermore, if in
reaching a conclusion the trial court over-rides or
misapplies the law, discretion is then abused and it is
the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted), appeal denied, 83

A.3d 167 (Pa. 2013).

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The admission of expert testimony is governed by Pennsylvania Rule of

Evidence 702, which provides as follows.

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other
specialized knowledge is beyond that possessed by
the average layperson;

(b) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue; and

(c) the expert’s methodology is generally accepted in
the relevant field.

Pa.R.E. 702. Our Supreme Court has held that “the opinion of an expert

witness may be excluded where no attempt has been made to qualify such

witness as an expert in the disputed field.” Commonwealth v. Duffey,

548 A.2d 1178, 1186 (Pa. 1988) (citation omitted; emphasis added).

“Neither the Pennsylvania Rules of Evidence, nor the Federal Rules of

Evidence set out any special procedure for determining whether the witness

is qualified to testify as an expert.” 1 Leonard Packel & Anne Bowen Boulin,

West Pennsylvania Practice § 702-5 (4th ed. 2013).

Additionally, our Supreme Court has held that it is admissible for the

Commonwealth to present expert testimony that “the absence of physical

trauma is nevertheless consistent with the alleged sexual abuse.”

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Commonwealth v. Minerd, 753 A.2d 225, 227 (Pa. 2000). It therefore

follows, a fortiori, that it is equally permissible for an expert to testify that

the existence of trauma or pain could be consistent with alleged sexual

abuse. See Commonwealth v. Fink, 791 A.2d 1235, 1247 (Pa. Super.

2002) (stating, “[a] physician is permitted to testify that his or her findings

following examination are consistent with a victim’s allegations of abuse[]”).

In this case, Dr. Margiotti was asked if “based on [his] experience, []

testicular pain [has] been associated with child sexual abuse? Is it

consistent with child sexual abuse?” N.T., 1/22/14, at 44. Dr. Margiotti

responded that it was. Id. Under Minerd and Fink, this was a permissible

line of questioning. The Commonwealth never asked Dr. Margiotti if D.G.

was abused or if he believed D.G. was telling the truth, so as not to

improperly bolster D.G.’s credibility with the jury.

Although Appellant objects that the Commonwealth did not engage in

a voir dire of Dr. Margiotti, Appellant has not cited to any authority for the

proposition that a formal voir dire is required. To the contrary, as noted

above, our Supreme Court has held that a trial court may exclude expert

testimony if there is no formal qualification. Duffey, supra. Furthermore,

we note the Commonwealth elicited testimony from Dr. Margiotti on direct

examination that he had been a practicing pediatrician since 1986, became

board-certified in 1988, attended LaSalle University, and attended

Hahnemann University for medical school. N.T., 1/22/13, at 35. Dr.

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Margiotti also testified that he completed his internship and residency at

Hahnemann, is a member of the American Academy of Pediatrics and the

Pennsylvania Medical Society. Id. at 35-36. Appellant does not dispute any

of Dr. Margiotti’s medical credentials.

Appellant also argues that Dr. Margiotti never used the words “to a

reasonable degree of medical certainty.” However, there are no “magic

words” required for an expert’s opinion to be admissible. See

Commonwealth v. Dennis Miller, 987 A.2d 638, 656 (Pa. 2009) (stating,

“[a] review of the applicable law indicates that ‘magic words’ need not be

uttered by an expert in order for his or her testimony to be admissible[]”)

(citations omitted). “Rather, the substance of the testimony presented by

the expert must be reviewed to determine whether the opinion rendered was

based on the requisite degree of certainty and not on mere speculation.”

Id. Finally, to the extent Appellant argues that Dr. Margiotti should not

have been permitted to testify as an expert because he did not personally

perform the specific examination on D.G., we find this distinction to be

immaterial for the purposes of the Rule 702 issue.10 See generally

Sheeley v. Beard, 696 A.2d 214, 218 (Pa. Super. 1997) (stating, “[i]t is

well-settled in Pennsylvania that a medical expert is permitted to express an

opinion which is based, in part, on medical records which are not in
____________________________________________
10
Appellant has not made a hearsay argument.

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evidence, but which are customarily relied on by experts in her

profession[]”). Based on these considerations, we conclude the trial court

did not abuse its discretion in admitting Dr. Margiotti’s testimony. 11 See

Fischere, supra.

In his fourth issue, Appellant avers that the trial court erred when it

permitted the Commonwealth to “cross-examine [Edward] Avery concerning

a number of other supposed accusations for which there was no evidence at

trial.” Appellant’s Brief at 42. The Commonwealth counters that the

evidence was admissible to impeach Avery’s credibility and even if it was

improper, Appellant did not suffer any prejudice as a result.

Commonwealth’s Brief at 36.

At trial, the Commonwealth called Avery during its case-in-chief.

Avery previously pled guilty to IDSI and criminal conspiracy and was

sentenced to two-and-one-half to five years’ imprisonment. N.T., 1/17/13,

at 140-141. Relevant to this appeal, during its direct examination, the

Commonwealth read into the record the recitation of the facts from Avery’s

guilty plea hearing.12 Specifically, the factual basis for Avery’s guilty plea to

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11
Although our reasoning differs from the trial court, we note “[t]his [C]ourt
may affirm [the trial court] for any reason, including such reasons not
considered by the [trial] court.” Commonwealth v. Clemens, 66 A.3d
373, 381 n.6 (Pa. Super. 2013) (citation omitted).
12
Appellant did not object to the relevance of this testimony when Avery
took the stand at trial, nor does Appellant raise such a challenge on appeal.

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IDSI was that “sometime during the spring of 1999, [Avery] was 57 years

old at the time. While he was serving as a priest at Saint Jerome’s Parish,

he engaged in oral sexual intercourse with 10-year-old [D.G.]” Id. at 156-

157. Avery acknowledged he knew those were the facts to which he pled

guilty. Id. at 157. However, during questioning by the Commonwealth at

trial, Avery asserted his innocence, despite his guilty plea, and stated that

“[he] had no contact whatever with [D.G.]” Id. at 161. Avery also testified

that he only pled guilty to get a better sentence. Id. at 160. Avery

repeated these assertions on cross-examination. Id. at 177, 180-181. On

redirect examination, the Commonwealth questioned Avery about six other

complainants, R.F., R.C., H.A., M.M., G.F., and S.L., all of whom had made

claims of sexual abuse against Father Avery. Id. at 208-209. Avery denied

these allegations. Id. at 210. It is this testimony that Appellant objects to,

arguing that it was impermissible under Rule 404 and unfairly bolstered

D.G.’s credibility. Appellant’s Brief at 40.

However, before we may address the merits of this claim, we must

first ascertain whether Appellant has preserved it for our review. It is

axiomatic that “[i]ssues not raised in the lower court are waived and cannot

be raised for the first time on appeal.” Pa.R.A.P. 302(a). Our Supreme

Court has repeatedly emphasized the importance of issue preservation.

Issue preservation is foundational to proper
appellate review. Our rules of appellate procedure
mandate that “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on

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appeal.” Pa.R.A.P. 302(a). By requiring that an
issue be considered waived if raised for the first time
on appeal, our courts ensure that the trial court that
initially hears a dispute has had an opportunity to
consider the issue. This jurisprudential mandate is
also grounded upon the principle that a trial court,
like an administrative agency, must be given the
opportunity to correct its errors as early as possible.
Related thereto, we have explained in detail the
importance of this preservation requirement as it
advances the orderly and efficient use of our judicial
resources. Finally, concepts of fairness and expense
to the parties are implicated as well.

In re F.C. III, 2 A.3d 1201, 1211-1212 (Pa. 2010) (some internal citations

omitted); accord Commonwealth v. Cody Miller, 80 A.3d 806, 811 (Pa.

Super. 2013) (citation omitted).

In the case sub judice, when the Commonwealth first began its

questioning of Avery regarding the other complainants, counsel for Shero

objected stating “this is outside the scope of everything.” N.T., 1/17/13, at

208. The trial court immediately stated “[i]t is absolutely proper

impeachment at this time.” Id. The Commonwealth then continued with

this line of questioning. At no point, did Appellant note any objection on the

record, or join Shero in his objection. As a result, we deem this issue

waived on appeal. See F.C., supra; Cody Miller, supra; Commonwealth

v. Woods, 418 A.2d 1346, 1352 (Pa. Super. 1980) (stating that where

“[c]ounsel for appellant never joined in the[] objections [of his co-defendant,

the appellant] waived the argument[]”), appeal dismissed, 445 A.2d 106

(Pa. 1982).

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In his third issue, Appellant avers that the trial court erred when it

refused to grant a mistrial after the Commonwealth allegedly made an

improper remark when it implied that there were more charges to come

against Appellant. Id. at 32.

Our standard of review for a claim of
prosecutorial misconduct is limited to whether the
trial court abused its discretion. In considering this
claim, our attention is focused on whether the
defendant was deprived of a fair trial, not a perfect
one. Not every inappropriate remark by a
prosecutor constitutes reversible error. A
prosecutor’s statements to a jury do not occur in a
vacuum, and we must view them in context. Even if
the prosecutor’s arguments are improper, they
generally will not form the basis for a new trial
unless the comments unavoidably prejudiced the
jury and prevented a true verdict.

Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa. Super. 2012) (en

banc) (internal quotation marks and citations omitted), appeal denied, 57

A.3d 65 (Pa. 2012).

We note that “a prosecutor has considerable latitude during closing

arguments.” Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super.

2008) (citation omitted), appeal denied, 959 A.2d 928 (Pa. 2008). “In

reviewing prosecutorial remarks to determine their prejudicial quality,

comments cannot be viewed in isolation but, rather, must be considered in

the context in which they were made.” Commonwealth v. Sampson, 900

A.2d 887, 890 (Pa. Super. 2006) (citation omitted), appeal denied, 907 A.2d

1102 (Pa. 2006).

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The prosecutor is allowed to vigorously argue
his case so long as his comments are supported by
the evidence or constitute legitimate inferences
arising from that evidence. … Thus, a prosecutor’s
remarks do not constitute reversible error unless
their unavoidable effect … [was] to prejudice the
jury, forming in their minds fixed bias and hostility
toward the defendant so that they could not weigh
the evidence objectively and render a true verdict.

Commonwealth v. Ragland, 991 A.2d 336, 340-341 (Pa. Super. 2010),

appeal denied, 4 A.3d 1053 (Pa. 2010), quoting Commonwealth v. Smith,

985 A.2d 886, 907 (Pa. 2009) (citation omitted; brackets in original). In

addition, “comments made by a prosecutor must be examined within the

context of defense counsel’s conduct.” Commonwealth v. Chmiel, 889

A.2d 501, 543 (Pa. 2005) (citation omitted), cert. denied, Chmiel v.

Pennsylvania, 549 U.S. 848 (2006).

It is well settled that the prosecutor may fairly
respond to points made in the defense closing.
Moreover, prosecutorial misconduct will not be found
where comments were based on the evidence or
proper inferences therefrom or were only oratorical
flair.

Id. at 544 (internal citations and quotations omitted).

In this case, the Commonwealth made the following statement during

its summation to the jury.

[Appellant] told you [his] picture was everywhere.
You heard him choose his words carefully, not one
child, not one student has come forward. He picked
his words carefully. Sometimes the subtle is more
powerful than the obvious. What he also didn’t tell
you was no child, no student has come forward yet.

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No child, no student has had the courage that [D.G.]
has because what he did takes some guts[.]

N.T., 1/25/13, at 142 (emphasis added). It is the Commonwealth’s use of

the word “yet” that Appellant objected to, as it implied there were other

victims out in the world that just had not come forward to accuse Appellant.

Appellant’s Brief at 39.

However, before the Commonwealth made its closing argument to the

jury, Appellant made the following remarks in its summation.

[Appellant] surrendered and that was February 10,
2011 and that was the first public announcement
that [Appellant] was accused of a sexual abuse of an
altar boy at Saint Jerome’s back in ’98, ’99 and that
it was a brutal sexual attack and [Appellant]’s name
and picture was [sic] spread all over the region
nationally, the internet, TV, radio, newspapers,
national magazines, saying this is a child molester.
This man is accused of being a brutal sex abuser of a
child. Every pulpit in the Archdiocese of Philadelphia
and surrounding region read from the pulpit at every
mass that [Appellant] has been accused of these
crimes, had been removed from ministry and if you
had any information to contact the Archdiocese or
the District Attorney’s Office.

Ladies and gentlemen, there has not been one
child or one student from any of the institutions that
[Appellant] was associated with his entire life that
came forward to say when I was a student or I was a
child and his picture was saturating the media and
he sits here today two years later and that’s the
effect that went out about his reputation ….

N.T., 1/25/13, at 36-37.

The trial court concluded that the Commonwealth’s remark was a fair

response to the Appellant’s closing argument. See Trial Court Opinion,

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12/17/13, at 11-12 (stating, “[i]n this instance, the Commonwealth was

responding directly to a statement made [by] Appellant’s counsel with

respect to the fact that no other victims had [come] forward – which, per

Appellant’s counsel, was a reflection of [Appellant]’s innocence[]”). As noted

above, it is axiomatic that the Commonwealth “may fairly respond to points

made in the defense closing.” Chmiel, supra. Appellant, through his

summation attempted to argue that the Commonwealth had not met its

burden in part because D.G. was the only person to come forward and

accuse Appellant. In our view, the Commonwealth was permitted to respond

to that argument by logically pointing out that all that meant was that no

one else had come forward at that point in time. As a result, we conclude

the trial court did not abuse its discretion when it denied Appellant’s request

for a mistrial. See Bedford, supra.

In his seventh issue, Appellant argues that the trial court erred when it

denied his request for a bench warrant for D.G.’s brother, J.G., or in the

alternative a continuance to investigate why J.G. did not appear. Appellant’s

Brief at 55. Appellant also objects to the trial court’s response to a jury

question regarding why J.G. did not appear to testify. Id. Before we may

address this issue, we must first address the Commonwealth’s argument

that Appellant has waived this issue for failure to develop this issue in his

brief. Commonwealth’s Brief at 54.

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Generally, appellate briefs are required to conform to the Rules of

Appellate Procedure. See Pa.R.A.P. 2101. Pennsylvania Rule of Appellate

Procedure 2119(a) requires that the argument section of an appellate brief

include “citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a).

This Court will not consider an argument where an appellant fails to cite to

any legal authority or otherwise develop the issue. Commonwealth v.

Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied, Johnson v.

Pennsylvania, 131 S. Ct. 250 (2010); see also, e.g., In re Estate of

Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (stating, “[f]ailure to cite

relevant legal authority constitutes waiver of the claim on appeal[]”)

(citation omitted), appeal denied, 69 A.3d 603 (Pa. 2013). Nor will this

Court “act as counsel and … develop arguments on behalf of an appellant.”

Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (citation

omitted), appeal denied, 29 A.3d 796 (Pa. 2011).

In this case, Appellant’s argument is devoid of any discussion of our

cases, standards, or any other legal authority on the subject of bench

warrants, continuances, or jury questions. Appellant’s brief has one citation

to a civil case involving service and due process and one citation to the

Pennsylvania Rules of Civil Procedure. Appellant’s Brief at 56. Appellant

does not cite to any legal authority to explain or develop his argument as to

why he was entitled to a bench warrant or a continuance regarding J.G.’s

failure to appear to testify. Nor does Appellant cite to any type of legal

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authority to show how the trial court abused its discretion in its answer to

the jury’s question or how he was prejudiced by the same. Based on these

considerations, we conclude Appellant’s seventh issue on appeal is waived

for want of development. See Johnson, supra; Whitley, supra; Kane,

supra.

Based on the foregoing, we conclude all of Appellant’s reviewable

issues are either waived or devoid of merit. Accordingly, the trial court’s

June 12, 2013 judgment of sentence is affirmed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/25/2015

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