J-S57009-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENNISON REHM
Appellant No. 1525 EDA 2014
Appeal from the Judgment of Sentence November 25, 2013
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001154-2013
BEFORE: MUNDY, J., OTT, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 23, 2015
Appellant, Dennison Rehm, appeals from the November 25, 2013
judgment of sentence of four and a half to ten years’ incarceration, imposed
after a jury convicted Appellant of sexual assault, aggravated indecent
assault, and indecent assault.1 After careful review, we affirm.
The trial court detailed the factual background leading to Appellant’s
convictions as follows.
On May 11, 2012, [J.G.] reported to the
Pennridge Regional Police Department (“PRPD”) that
she was raped by Appellant. The investigation was
conducted by Detective Daryl Lewis of PRPD.
On Thursday, May 10, 2012, J.G. and a friend,
[H.S.], went to sing karaoke at the Horse Tavern &
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18 Pa.C.S.A. §§ 3124.1, 3125(a)(1), and 3126(a)(1), respectively.
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Grill in West Rockhill Township to celebrate the end
of her spring semester at college. [H.S.]’s boyfriend
drove J.G. and [H.S.] to the bar before it started at
approximately 9:30 or 10:00, and the two stayed
until karaoke finished later that night. J.G.’s
boyfriend was supposed to join them at karaoke, but
did not meet the two women there. Still, J.G. and
[H.S.] chose to stay at karaoke without J.G.’s
boyfriend.
Near the end of the karaoke session, J.G. and
[H.S.] were joined by some of [H.S.]’s friends,
including Appellant. J.G. and Appellant did not meet
prior to that evening. The two interacted socially
among the group of friends, with Appellant buying
J.G. a drink while at the bar. J.G. possibly sat on
Appellant’s lap at some point during the night;
however, there was no other physical contact such
as kissing, hugging, or her placing her arms around
him.
J.G., [H.S.], Appellant and two other friends
then returned to [H.S.]’s boyfriend’s house after
karaoke ended. After arriving back at the house,
which was a two bedroom trailer, the group shared a
celebratory shot together. At this point, [H.S.]’s two
other friends left for the evening and her boyfriend
went to sleep in another room. J.G. then went to
sleep on a futon in the living room. After J.G. was
asleep, [H.S.] set up a sleeping bag for Appellant
which she placed in the living room near the futon.
J.G. went to sleep alone, with her clothes on
and hearing aid turned down, and did not consent to
anyone touching her or having sex with her. She
later awoke with her pants and underwear removed
and with Appellant on top of her penetrating her
vagina with his penis. J.G. told Appellant to stop and
that she had a boyfriend. She tried calling to her
friend in the other room for help, but Appellant used
his hand to cover her mouth. Given Appellant’s
heavier weight and the fact that she was still feeling
the effects of the alcohol she consumed that
evening, J.G. could not remove Appellant from on
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top of her body. After Appellant stopped having sex
with J.G., Appellant helped with her underwear and
leggings and then went to bed. J.G. then passed out
and went back to sleep on the futon.
After waking up the next morning, J.G., [H.S.],
and Appellant ordered pizza and other food, which
J.G. did not eat much of. When Appellant left the
house sometime in the early afternoon after eating,
J.G. went to the bathroom and observed blood on a
piece of toilet tissue that she had just used. Soon
after, J.G. told [H.S.] what had happened the
previous night, and J.G. then reported the incident to
PRPD.
Detective Daryl Lewis of the PRPD conducted
the investigation into J.G.’s claims against Appellant.
The Detective transported J.G. to Doylestown
Hospital for an exam, where [a specialized sexual
assault nurse examiner] found evidence of multiple
abrasions inside J.G.’s vaginal area that indicated
blunt force trauma. Detective Lewis later conducted
an interview with Appellant at Appellant’s residence.
When asked about J.G., Appellant denied having any
knowledge of her. After observing a photograph,
Appellant still denied recognizing her or having sex
with her. Appellant never contacted Detective Lewis
to revise his statements and declined to give his DNA
when asked, accusing the police of going on a
“fishing expedition.”
The Detective obtained a search warrant for
Appellant’s DNA to test against the sample found on
J.G.’s underwear that was preserved in the sexual
assault kit. When Detective Lewis arrived to collect
Appellant’s DNA in accordance with the search
warrant, Appellant stated that he would not
voluntarily give the Detective a sample of his DNA.
Appellant did not resist when the Detective collected
his DNA, but he continually maintained that he was
not voluntarily giving his sample. On November 16,
2012, Detective Lewis received the results of the
DNA comparison from State Police, and Appellant
was a match for the DNA recovered from J.G.’s
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clothing. Appellant later admitted that he lied to
Detective Lewis when questioned at his home.
Appellant also contended that the sexual encounter
was consensual, even going so far as to say J.G. not
only instigated the encounter, but even acted
“whorish” in their interactions.
Based upon the above evidence, the jury
returned a guilty verdict on the charges of Sexual
Assault, Aggravated Indecent Assault, and Indecent
Assault.
Trial Court Opinion, 5/4/15, 2-5 (internal citations and footnote omitted).
In his appeal to this Court, Appellant presents us with the following
two evidentiary issues.
A. Should the Commonwealth have been permitted
to elicit testimony that Appellant refused to
voluntarily submit a DNA sample?
B. Should defense witness, Dave Edelsberger, have
been subject to cross examination on the topic of
liquor code violations when they were not relevant
to his credibility as a witness?
Appellant’s Brief at 4.
We initially note that generally, a trial court’s ruling on the
admissibility of evidence will only be reversed upon a showing that the trial
court abused its discretion. See, e.g., Commonwealth v. Buford, 101
A.3d 1182, 1195 (Pa. Super. 2014) (citation omitted), appeal denied, 114
A.3d 415 (Pa. 2015). In particular, an appellate court may reverse a trial
court’s ruling on the admissibility of testimonial evidence only upon a
showing that the trial court abused its discretion. Commonwealth v.
Randall, 758 A.2d 669, 679 (Pa. Super. 2000). An abuse of discretion is
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more than just an error in judgment, and, on appeal, the trial court will not
be found to have abused its discretion unless the record discloses that the
judgment exercised was manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will. Commonwealth v. Randall, 758 A.2d 669, 679
(Pa. Super. 2000), appeal denied, 764 A.2d 1067 (Pa. 2001).
In his first issue, Appellant asserts that his “refusal to comply with the
warrant for a DNA sample should not have been presented to the jury as
evidence of his guilt.” Appellant’s Brief at 11. Appellant maintains that “to
allow testimony on the topic of Appellant’s refusal to comply with a
Commonwealth search warrant unfairly penalizes Appellant’s good faith, if
misguided, exercise of constitutional protections.” Id.
The testimony to which Appellant refers is as follows.
COMMONWEALTH: Mr. Brocco, you are
employed as a law enforcement officer in
Montgomery County; is that correct?
OFFICER BROCCO: Yes.
COMMONWEALTH: And on or about August 27,
2012, were you contacted by Detective Lewis here of
the Pennridge Regional Police Department to contact
[Appellant] regarding whether or not he would
provide a DNA sample?
OFFICER BROCCO: Yes.
COMMONWEALTH: And did you, in fact, contact
[Appellant] by phone to see if he would provide that
sample?
OFFICER BROCCO: Yes, I did.
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COMMONWEALTH: And what was [Appellant’s]
response to you regarding providing that sample?
OFFICER BROCCO: First it was, I didn’t have
enough gas money to go up to Pennridge. And I
provided him with a different meeting arrangement
and he said that he wasn’t willing to help with their
fishing expedition.
COMMONWEALTH: And you relayed that
information to Detective Lewis?
OFFICER BROCCO: I did later.
Appellant’s Brief at 12-13, citing N.T., 7/15/13, at 74-75.
In addition, Appellant references the following testimony from
Detective Lewis.
COMMONWEALTH: And describe the interaction
between you and [Appellant] when you arrived at
[Appellant’s] home to serve the search warrant?
DETECTIVE LEWIS: I arrived at the residence. I
went up to a landing. It is the second floor
apartment. His mother was on the landing. I
advised her that I need to speak to [Appellant]. She
went inside and eventually [Appellant] came outside.
I advised him that I had a search warrant to obtain a
sample of his DNA.
COMMONWEALTH: What was his reaction to
this?
DETECTIVE LEWIS: He advised that he was not
going to voluntarily give me a DNA sample.
COMMONWEALTH: Did he use the term consent,
voluntarily consent to a DNA sample?
DETECTIVE LEWIS: Correct.
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COMMONWEALTH: Did he give a reason as to
why he would not consent to the DNA sample?
DETECTIVE LEWIS: He advised that his attorney
had advised him that he did not have to give a
sample pursuant to the search warrant.
COMMONWEALTH: Okay. And what did you tell
[Appellant], if anything, at that point?
DETECTIVE LEWIS: I advised him the search
warrant is a legal document that gives us a right to
legally obtain the DNA sample.
COMMONWEALTH: And describe the rest of the
interaction between you and [Appellant].
DETECTIVE LEWIS: At some point his mother
went inside, came back outside and said she phoned
their attorney and their attorney said that he should
give the DNA sample. At that point again he said he
was not going to voluntarily give consent or give up
his DNA. I advised him that the search warrant
states that we are entitled to it or we have a right to
his DNA, and then he basically said that he was not—
he was not resisting to give DNA, he was just not
voluntarily giving it. At that point I put rubber
gloves, latex gloves on my hand, opened up two
swabs and I swabbed the inside of his mouth for the
DNA.
Id., citing N.T., 7/15/13, at 27-28.
Upon review, we conclude that the trial court did not abuse its
discretion in admitting the foregoing testimony, and has ably addressed this
issue in its opinion, referencing Pennsylvania Rule of Evidence 803(25) and
voluntary extrajudicial statements. See Trial Court Opinion, 5/4/15, at 10-
12. The trial court determined that each of Appellant’s statements
“represents an admission by a party opponent and was validly admitted into
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evidence.” Id. at 11. In addition, the trial court concluded that “even if
Appellant’s statements refusing to voluntarily give DNA evidence are
protected by Pennsylvania law, they were still validly admitted into evidence
as Appellant’s counsel opened the door to their admission in her opening
statement.” Id. at 12. Accordingly, we discern no abuse of discretion by
the trial court, and adopt the trial court’s reasoning as our own in disposing
of Appellant’s first evidentiary issue. See Buford, supra.
In his second evidentiary issue, Appellant argues that the trial court
erred in permitting his defense witness, Mr. David Edelsberger, who owns
the Horse Tavern & Grill, to be cross-examined about liquor code violations
“when they were not relevant to his credibility as a witness.” Appellant’s
Brief at 20. Appellant maintains that the “Commonwealth eclipsed the
bounds of permitted impeachment testimony when it commenced
questioning on liquor code violations.” Id. Although Appellant cites Pa.R.E.
607, noting that “[t]he credibility of a witness may be impeached by any
evidence relevant to that issue, except as otherwise provided by state of
these rules,” he otherwise fails to develop his argument, citing only one
case, Commonwealth v. Robinson, 491 A.2d 107 (Pa. 1985), for the
general proposition that “bias, improper motive, and prejudice are fertile
grounds for impeachment of a witness’s credibility.” Id.
The Commonwealth recognizes the deficiency of Appellant’s argument,
stating that Appellant’s “bald, unsupported statement does not serve to
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provide him with a meritorious claim. It is therefore waived.”
Commonwealth Brief at 24. We agree.
We recently detailed such waiver as follows.
We need not reach the merits of [an] issue [where]
the argument section of Appellant’s brief merely
consists of general statements unsupported by any
discussion and analysis of relevant legal authority.
Pennsylvania Rule of Appellate Procedure 2119
addresses the argument section of appellate briefs
and provides, in part, as follows:
Rule 2119. Argument
(a) General rule. The argument shall be divided
into as many parts as there are questions to be
argued; and shall have ... such discussion and
citation of authorities as are deemed pertinent.
Pa.R.A.P. 2119(a).
“The Rules of Appellate Procedure state
unequivocally that each question an appellant raises
is to be supported by discussion and analysis of
pertinent authority.” Estate of Haiko v. McGinley,
799 A.2d 155, 161 (Pa. Super. 2002); Pa.R.A.P.
2119(b). “Appellate arguments which fail to adhere
to these rules may be considered waived, and
arguments which are not appropriately developed
are waived. Arguments not appropriately developed
include those where the party has failed to cite any
authority in support of a contention.” Lackner v.
Glosser, 892 A.2d 21, 29–30 (Pa. Super. 2006)
(citations omitted). This Court will not act as
counsel and will not develop arguments on behalf of
an appellant. Irwin Union National Bank and
Trust Company v. Famous and Famous and ATL
Ventures, 4 A.3d 1099, 1103 (Pa. Super. 2010)
(citing Commonwealth v. Hardy, 918 A.2d 766,
771 (Pa. Super. 2007)). Moreover, we observe that
the Commonwealth Court, our sister appellate court,
has aptly noted that “[m]ere issue spotting without
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analysis or legal citation to support an assertion
precludes our appellate review of [a] matter.”
Boniella v. Commonwealth, 958 A.2d 1069, 1073
n. 8 (Pa. Cmwlth. 2008) (quoting Commonwealth
v. Spontarelli, 791 A.2d 1254, 1259 n. 11 (Pa.
Cmwlth. 2002)).
Here, the argument portion of [Appellant]’s brief
does not contain meaningful discussion of, or citation
to, relevant legal authority. Appellant’s Brief at 19–
21. While the portion of the argument pertaining to
[Appellant]’s issue does contain reference to case
law regarding contents of the certified record, this
section completely lacks any discussion or developed
analysis relevant to the issue. This lack of analysis
precludes meaningful appellate review. Accordingly,
… we conclude that the issue is waived.
Coulter v. Ramsden, 94 A.3d 1080, 1088-1090 (Pa. Super. 2014), appeal
denied, 110 A.3d 998 (Pa. 2014), cert. denied, Coulter v. Allegheny Cnty.
Bar Assoc., --- S. Ct. ---, 14-1316 (2015).
Similarly, we find that Appellant in this case has failed to develop his
second issue, such that we are precluded from meaningful review, and the
issue is waived.
In sum, we find no abuse of discretion by the trial court with regard to
the testamentary evidence challenged by Appellant in his first issue, and
deem Appellant’s second issue waived for lack of development. We thus
affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2015
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Circulated 10/20/2015 11:47 AM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-09-CR-0001154-2013
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