J-E03006-15
2016 PA Super 51
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WANYA ROSSER,
Appellant No. 3258 EDA 2013
Appeal from the Judgment of Sentence June 4, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008571-2010
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
SHOGAN, J., LAZARUS, J., OTT, J., STABILE, J., AND JENKINS, J.
CONCURRING STATEMENT BY BOWES, J.: FILED FEBRUARY 26, 2016
I concur in the result reached by the distinguished majority.
Preliminarily, I agree that Appellant waived his federal and state
confrontation clause argument and that his weight of the evidence position is
without merit. However, I cannot agree that Commonwealth v. Briggs,
12 A.3d 291 (Pa. 2011), implicitly speaks to the merits of the waived
constitutional issue in question. The Briggs Court, as recognized by the
learned majority, nowhere mentioned the confrontation clause. Accordingly,
Briggs is simply inapposite as to a confrontation clause analysis. I would
refrain from addressing the merits of an important constitutional question
based in part on a case that simply does not speak to the issue and await
the proper case.
J-E03006-15
By addressing an issue that is not properly preserved, the majority
precludes any development of this argument under the ineffective assistance
of counsel rubric that could be advanced in a PCRA petition. The underlying
claim is one which at least two members of the current Pennsylvania
Supreme Court consider to have potential merit.1 Indeed, part of the
rationale used for upholding the trial court’s decision to prohibit the question
at issue is that Appellant did not testify and counsel did not provide a
foundation for the proposed cross-examination. Both of these matters could
implicate counsel’s representation. Since I believe it is imprudent to address
the merits of Appellant’s waived argument under the facts of this case, I
concur in the result.2
____________________________________________
1
The original panel majority in this matter consisted of Judges, now
Justices, Christine Donohue and David Wecht.
2
I note that the trial court erroneously concluded that Appellant’s question
would elicit hearsay as the answer would not have been introduced to prove
the truth of the matter asserted.
-2-