Com. v. Frick, B.

J-A14044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

BRANDON D. FRICK,

Appellant No. 1424 MDA 2015

Appeal from the Judgment of Sentence March 12, 2015
in the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0000680-2014

BEFORE: BOWES, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED AUGUST 19, 2016

Appellant, Brandon D. Frick, appeals from the judgment of sentence

imposed on March 12, 2015, following his jury conviction of simple assault

and recklessly endangering another person (REAP).1 On appeal, Appellant

challenges the denial of his post-sentence motion alleging prosecutorial

misconduct, the discretionary aspects of his sentence, and the trial court’s

decision not to allow him to call all of his character witnesses. For the

reasons discussed below, we affirm.

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2701(a)(1) and 2705, respectively.
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We take the underlying facts and procedural history in this matter

from our independent review of the certified record.

On April 12, 2014, Charles Garrett Adams (Adams) and his friend, Eli

Diehl (Diehl), drove up to State College in anticipation of attending the Penn

State University Blue and White game the following day. (See N.T. Trial,

1/07/15, at 106). The two initially intended to stay with a male friend at a

location known as “The Retreat.” (Id. at 106-07). At some point during the

evening, the two went to visit Adams’ friend, Chloe Strader (Strader), and

spent some time drinking and partying with Strader and her friends. (See

id. at 106, 110-13). A group of people, including Strader, Adams, and

Diehl, left the residence, went out to local bars, and had a few drinks. (See

id. at 113-14). When the bar closed, the group separated. (See id. at

114). Diehl testified that, at some point during the evening, Strader had

invited him and Adams to stay at her apartment. (See id. at 115).

At the end of the evening, Adams and Diehl returned to Strader’s

apartment, either intending to stay there or obtain directions back to the

Retreat. (See id. at 116, 208-09). When they arrived at the apartment,

they knocked on the door and three hostile men,2 opened the door. (See id.

at 116-17, 210, 293, 296-97; N.T. Trial, 1/08/15, at 31). While these men

had met Adams and Diehl earlier in the evening, they now denied this and
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2
The men were Strader’s roommates, Robert Donaldson (Donaldson) and
William Stranburg (Stranburg), and Appellant, who was visiting that night.

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said that Strader did not want them there, and then closed the door. (See

N.T. Trial, 1/07/15, at 116, 210). Adams and Diehl went downstairs and

Adams unsuccessfully attempted to contact Strader by phone. (See id. at

116, 211-12). Confused and uncertain where to go, Adams and Diehl went

back up to the apartment and knocked on the door. (See id. at 118-19,

212-13). This time the three men answered the door with raised knives and

immediately confronted Adams and Diehl. (See id. at 118-19, 213). Adams

and Diehl attempted to leave but one of the men punched Diehl in the face

and he fell down the stairs. (See id. at 120-23, 214-17, 220-23). Adams

ran down the stairs to Diehl and, while he was running, Appellant stabbed

him in the back and the three men pushed and kicked him down the stairs to

the door. (See id.). Appellant then returned to the apartment, cleaned the

blood off the knife, and hid it in a box of cereal. (See N.T. Trial, 1/08/15, at

145-48).

After Adams and Diehl escaped the residence, Adams asked Diehl to

check his back because it was hurting. (See id. at 124). Diehl observed a

bleeding stab wound and then called 911. (See id.).

Because of the assault, Diehl suffered a black eye and had cuts on his

back, from either slashes or falling down the stairs. Diehl testified that he

also had an injury to his foot. (See N.T. Trial 1/07/15, at 126). Adams

suffered a stab wound and was taken to Mount Nittany Medical Center.

(See id. at 159-60, 227). After a trauma evaluation, medical personnel

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determined that Adams suffered a penetrating wound to the spine; he was

transferred to Altoona because of concerns about possible serious injuries to

his spine, lung, spleen, or kidney. (See id. at 163-64, 171). At Altoona, he

received staples to repair the damage. (See id. at 227).

On May 7, 2104, the Commonwealth filed a criminal information

charging Appellant two counts of aggravated assault, one count of terroristic

threats, one count of possessing an instrument of crime (PIC),3 as well as

the aforementioned charges of simple assault and REAP. Immediately prior

to the start of trial, the Commonwealth nolle prossed one of the aggravated

assault charges.

A jury trial took place on January 7 and 8, 2015. On the second day of

trial, Appellant sought to call co-defendant William Stranburg to testify on

his behalf. (See N.T. Trial, 1/08/07, at 195-99). However, Stranburg

asserted his Fifth Amendment right against self-incrimination and refused to

testify. (See id.). Later that day, Appellant sought to call twenty-five

character witnesses to testify on his behalf. (See id. at 263). Over

Appellant’s objection, the trial court allowed Appellant to call only seven

character witnesses. (See id. at 264-92). Following testimony, as noted

above, the jury found Appellant guilty of simple assault and REAP.

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3
18 Pa.C.S.A. § 2702(a)(1) and (4); 2706(a)(1); and 907(a), respectively.

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On March 6, 2015, the trial court sentenced Appellant to an aggregate

term of incarceration of not less than eight nor more than twenty-three and

one-half months.4 On March 13, 2015, Appellant filed a post-sentence

motion. He filed an amended post-sentence motion on July 2, 2015. On

August 12, 2015, the trial court held an evidentiary hearing on Appellant’s

post-sentence motions. The hearing mainly concentrated on Appellant’s

claim that the Commonwealth committed prosecutorial misconduct by

directing co-defendant Stranburg to assert his Fifth Amendment rights

because his testimony was damaging to the Commonwealth. (See Trial

Court Opinion, 10/22/15, at 2). The trial court summarized the testimony at

the hearing thusly:

Matthew McClenahen, Esquire, counsel for [Stranburg],
testified that A[ssistant] D[istrict] A[ttorney (ADA) Nathan] Boob
got in touch with him after the first day of the jury trial and
advised that he “did not think he needed” [Stranburg] to testify
because he “had enough” and it would “muddy the waters.”
Attorney McClenahen advised [ ] Stranburg to plead the Fifth
Amendment because he did not want his client to testify in a
manner that the Commonwealth would consider to be perjury.
He noted that [ ] Stranburg’s account differed from the other
defendants . . . . Attorney McClenahen was of the opinion that
ADA Boob and [State College] Detective [Christopher] Weaver
[the primary detective on the case] did not accept [ ]
Stranburg’s account. Attorney McClenahen testified there was
no plea offer to his client until after [Appellant’s] sentencing and
there was no exchange of a plea offer for his client pleading the
Fifth Amendment. He noted that his client had the absolute right
to plead the Fifth Amendment because his written statement
implicated him. Attorney McClenahen unequivocally testified
____________________________________________

4
The trial court filed an amended sentencing order on March 12, 2015.

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that ADA Boob did not direct him to have his client plead the
Fifth Amendment. Furthermore, ADA Boob unequivocally
testified that he did not tell [ ] Stranburg to plead the Fifth
Amendment or instruct Attorney McClenahen to tell [ ] Stranburg
to plead the Fifth Amendment. Based on the testimony adduced
at the hearing, [the trial c]ourt was convinced that Attorney
McClenahen advised his client to plead the Fifth Amendment and
was not directed by ADA Boob to do so.

(Id. at 2-3) (record citations omitted).

Following the hearing, the trial court denied Appellant’s post-sentence

motions in their entirety. The instant, timely appeal followed. On

September 11, 2015, the trial court directed Appellant to file a concise

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).

Appellant filed a timely Rule 1925(b) statement on September 22, 2015.

See id. On October 22, 2015, the trial court issued an opinion. See

Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for our review:

I. Whether the trial court erred in denying Appellant’s post-
sentence motion alleging prosecutorial misconduct after
the attorney for the Commonwealth persuaded a co-
defendant to assert his Fifth Amendment privilege for the
improper purpose of depriving Appellant of favorable
testimony at trial[?]

II. Whether the trial court erred in applying the deadly
weapon sentencing enhancement[?]

III. Whether the trial court improperly limited defense
counsel’s presentation of character testimony[?]

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(Appellant’s Brief, at 9) (unnecessary capitalization and footnote omitted). 5

In his first claim, Appellant argues that the trial court erred in denying

his amended post-sentence motion claiming prosecutorial misconduct. (See

Appellant’s Brief, at 22). Specifically, Appellant claims the Commonwealth

violated his “Fourteenth Amendment right to due process and Sixth

Amendment right to compulsory process by substantially interfering with the

choice of [Stranburg], a key defense witness, to testify at Appellant’s trial

because Stranburg’s testimony would have undermined the Commonwealth’s

theory of the case.” (Id.). Appellant contends that the misconduct was so

egregious as to bar retrial on double jeopardy grounds. (See id. at 33-34).

Appellant also appears to claim that Stranburg did not properly assert

his Fifth Amendment right because Stranburg’s assertion of the right was

illegitimate and the trial court failed to conduct the requisite inquiry into

Stranburg’s assertion of his Fifth Amendment right, which would have

revealed its impropriety. (See id. at 28-32). We find that Appellant waived

any claim that Stranburg’s assertion of the right was illegitimate and waived
____________________________________________

5
We note that Appellant’s brief is fifty pages in length and does not contain
the certification required by Pa.R.A.P. 2135. See Pa.R.A.P. 2135(a)(1) (“A
principal brief shall not exceed 14,000 words, except as stated in
subparagraphs (a)(2)-(4) [involving cross appeals and capital cases]. A
party shall file a certificate of compliance with the word count limit if the
principal brief is longer than [thirty] pages or the reply brief is longer than
[fifteen] pages when prepared on a word processor or typewriter.”) As we
concluded that this single deviation from the rules applicable to briefs does
not impede our review, we will overlook it. Cf. Commonwealth v. Spuck,
86 A.3d 870, 876 (Pa. Super. 2014), appeal denied, 99 A.3d 77 (Pa. 2014).

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any claim regarding the trial court’s lack of inquiry. In addition, we find

Appellant’s claim of prosecutorial misconduct lacks merit.

The Fifth Amendment to the United States Constitution provides that

“[n]o person . . . shall be compelled in any criminal case to be a witness

against himself. . . .” U.S. Const. amend. V. The United States Supreme

Court has stated that we must liberally interpret this privilege. See

Hoffman v. U.S., 341 U.S. 479, 486 (1951). The Supreme Court held that:

[t]he privilege reflects a complex of our fundamental values and
aspirations, and marks an important advance in the development
of our liberty. It can be asserted in any proceeding, civil or
criminal, administrative or judicial, investigatory or adjudicatory;
and it protects against any disclosures which the witness
reasonably believes could be used in a criminal prosecution or
could lead to other evidence that might be so used.

Kastigar v. U.S., 406 U.S. 441, 444-45 (1972). Our Supreme Court has

held that the guarantee against self-incrimination is absolute, stating:

[h]e cannot be compelled to give evidence against himself. This
does not refer to any particular place or at any particular time.
He may not be compelled, under any circumstance, to testify
against himself where criminal prosecution is involved. The
constitutional privilege is not like a coat which may be taken off
and thrown away. It is as much a part of the accused as his skin
and may not be stripped away by himself or by others. It is an
inviolable power accorded him in exchange for what he
surrenders in being a member of the society of the
Commonwealth. Of course, he may, if he so desires, testify
against himself, but the constitutional privilege continues to
remain with him, and the fact that he has willingly admitted
circumstances adverse to his own interests can never be made
the basis for compelling him to make further admissions. Even if
an accused makes a hundred statements prior to trial he may
still refuse to testify against himself at the trial. His
constitutional privilege against self-incrimination is inalienable,
inviolable and irrevocable.

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J-A14044-16

Commonwealth v. Fisher, 157 A.2d 207, 210 (Pa. 1960) (quotation marks

omitted). As the issue of whether Stranburg properly invoked his Fifth

Amendment right against self-incrimination is a pure question of law, our

standard of review is de novo and our scope of review is plenary. See

Commonwealth v. Knoble, 42 A.3d 976, 979 (Pa. 2012).

However, before we can reach the merits of Appellant’s contention that

Stranburg did not legitimately invoke his Fifth Amendment right and that the

trial court failed to undertake a proper colloquy, we must determine if this

claim is properly before us. The record reflects that, at trial, Appellant did

not object to Stranburg’s invocation of his right as illegitimate and did not

object to the trial court’s colloquy. (See N.T. Trial, 1/08/15, at 195-99).

The only concern raised by Appellant was the manner in which he would be

able to “use the fact that he pled the Fifth for the balance of the trial and

closing.” (Id. at 198). It is settled that failure to raise a contemporaneous

objection constitutes a waiver of the claim. See Commonwealth v.

Powell, 956 A.2d 406, 419 (Pa. 2008), cert. denied, 556 U.S. 1131 (2009).

Moreover, Appellant did not raise this claim in his amended post-

sentence motion, which only raised the prosecutorial misconduct claim.

(See [Appellant’s] Amended Post-Sentence Motion, 7/02/15, at unnumbered

pages 1-4). Thus, Appellant waived his claim for this reason as well. See

Commonwealth v. P.L.S., 894 A.2d 120, 132 (Pa. Super. 2006), appeal

denied, 906 A.2d 542 (Pa. 2006) (holding appellant waived claim that his

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Fifth Amendment rights were violated by use of Sexual Offender Assessment

Board assessment when he failed to object either during hearing or raise

claim in post-sentence motion). Thus, we find that Appellant waived any

challenge to the legitimacy of Stranburg’s invocation of his right against self-

incrimination or to the adequacy of the trial court’s colloquy.6

As noted above, Appellant claims that the Commonwealth committed

misconduct by inducing Stranburg to assert his Fifth Amendment right

against self-incrimination. (See Appellant’s Brief, at 22). We disagree.

Our standard of review is well settled. Our 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
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6
We note that Appellant also failed to raise the issue in his Rule 1925(b)
statement. (See [Appellant’s] Concise Statement of Errors Complained of
on Appeal, 9/22/15, at unnumbered page 1). As amended in 2007,
Pennsylvania Rule of Appellate Procedure 1925 provides that issues that are
not included in the Rule 1925(b) statement or raised in accordance with Rule
1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by
rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d
428, 431 (Pa. Super. 2009). Moreover, an appellant cannot raise a new
issue on appeal. See Pa.R.A.P. 302(a). Lastly, Appellant did not raise this
claim in his statement of the questions involved. (See Appellant’s Brief, at
9). The Rules of Appellate Procedure provide that issues to be resolved
must be included in the statement of questions involved or “fairly suggested”
by it. Pa.R.A.P. 2116(a). This issue is not included in the statement of
questions involved, nor is it “fairly suggested” by it. Thus, we hold that
Appellant has waived this claim for these reasons as well. See Pa.R.A.P.
1925(b)(4)(vii); see also Commonwealth v. Harris, 979 A.2d 387, 397
(Pa. Super. 2009) (holding claim waived when not included in statement of
questions involved).

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defendant was deprived of a fair trial, not a perfect one.” Commonwealth

v. Helsel, 53 A.3d 906, 920 (Pa. Super. 2012), appeal denied, 63 A.3d 1244

(Pa. 2013) (citation omitted). Further, our Supreme Court has stated:

We now hold that the double jeopardy clause of the Pennsylvania
Constitution prohibits retrial of a defendant not only when
prosecutorial misconduct is intended to provoke the defendant
into moving for a mistrial, but also when the conduct of the
prosecutor is intentionally undertaken to prejudice the defendant
to the point of the denial of a fair trial.

Commonwealth v. Martorano, 741 A.2d 1221, 1223 (Pa. 1999) (citation

omitted).

Here, the record reflects that both the Commonwealth and the defense

subpoenaed Stranburg. (See N.T. Trial, 1/08/15, at 196). At the time of

trial, while Stranburg was cooperating with the Commonwealth, he remained

a co-defendant and did not have a “deal.” (N.T. Post-Sentence Motions

Hearing, 8/12/15, at 37-39, 46, 53, 60-61). At the evidentiary hearing,

Stranburg’s attorney, Matthew McClenahen testified unequivocally and

repeatedly that it was his decision alone to have Stranburg invoke his Fifth

Amendment rights. (See id. at 43-46, 64, 67-68, 76-77, 88-89, 97-100,

102-03). Attorney McClenahen explained the events and his decision-

making process as follows:

Okay. So [ADA] Boob called me after hours. I think it was
January 7th because I think it was a two-day trial and it was after
the night of the first day and he said I don’t think I need your
guy, I think we have enough, and I think it would just muddy
the waters to put him on at this point. . . . So I said what if
[defense counsel] calls him. I mean, is it going to be helpful or
do you think it will hurt. . . .

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* * *

Well that — January 7th. I didn’t want [Stranburg] to take the
stand and testify in a manner which Detective Weaver and [ADA]
Boob would consider to be perjury. I thought he would have
testified truthfully from my opinion but my opinion doesn’t really
count when it comes to determining what type of plea offers are
extended and there was a major discrepancy between
[Stranburg’s account and those of other witnesses]. . . .
Detective Weaver and [ADA] Boob didn’t believe Mr. Stranburg .
. . . so if Mr. Stranburg would have testified in that manner it
would have been inconsistent with the Commonwealth’s
witnesses and [ADA] Boob would have thought he was lying. . . .
Well from my perspective I thought [ADA] Boob would perceive
[Stranburg’s testimony] as being dishonest testimony and the
last thing you want to do if you are trying to get a plea
agreement is have your client testify in a way that the
prosecutor thinks is a lie.

(Id. at 43-46).

Attorney McClenahen stated that the Commonwealth did not offer his

client a “deal” until after Appellant’s sentencing and “there was no bargain

for exchange that [Stranburg] would get a plea to a M3 DC in exchange for

pleading the Fifth. That never happened. Never happened.” (Id. at 60-61).

Attorney McClenahen testified that he believed defense counsel

misunderstood a conversation that occurred during a post-sentence hearing,

stating:

Okay. So you, and Adam Morris [attorney for Donaldson],
and I were talking about logical issues like what witnesses still
needed to testify and things like that and I indicated that
[Stranburg] didn’t get a chance to testify at trial because [ADA
Boob] didn’t want to call him because it would have undermined
the Commonwealth’s theory of the case . . . . So [ADA Boob]
didn’t call him and I indicated I had him plead the Fifth and
apparently you took that to mean that [ADA] Boob directed me

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to have him plead the Fifth when all I was saying was that [ADA
Boob] didn’t call him and I told him to plead the Fifth. That’s
why he didn’t get a chance to testify. There was no directive
from [ADA] Boob to me telling him to plead the Fifth. In
fact, if I remember correctly when I said to [ADA Boob] that I
am going to have him plead the Fifth he said something to the
effect of well that’s your call.

(Id. at 67-68) (emphasis added).

When Appellant’s counsel again tried to elicit an admission that the

Commonwealth induced Stranburg to plead the Fifth, Attorney McClenahen

retorted:

. . . I explained that that is not what happened and no matter
how much you try to dance around or twist words that objective
reality is not going to change.

You cannot magically bring something into existence by
playing with words that did not happen. The objective reality is
[ADA] Boob did not direct me to have [Stranburg] plead the
Fifth, and, secondly, we did not get a plea offer until March 19 th.
You have filed a motion in which you have alleged things that
are objectively and factually not true and it was very reckless for
you to file something like that without first having talked to me.

(Id. at 76-77).

During the Commonwealth’s cross-examination of Attorney

McClenahen, he again clearly stated that there was no truth to Appellant’s

assertion that ADA Boob directed his client to take the Fifth or conditioned a

plea deal on his client taking the Fifth. (See id. at 88-94).

Attorney McClenahen summarized his reasoning for having Stranburg

assert his Fifth Amendment right against self-incrimination as follows:

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I see no other option I had other than to have my client plead
the Fifth. Number one, he had a right to plead the Fifth contrary
to [Appellant’s counsel’s] misinterpretation of the law because
he was charged with a crime and had he told the truth, the
whole truth, and nothing but the truth he would have been
admitting criminal offenses, and, number two, he exposed
himself to the possibility of the Commonwealth perceiving him as
committing perjury, which is just as bad as committing perjury
for all practical purposes.

(Id. at 105-06).

Further, at the hearing, Detective Christopher Weaver, the primary

detective on the case, testified that he advised ADA Boob not to call

Stranburg as a witness because he did not believe Stranburg was “truthful

and honest[.]” (Id. at 167, see id. at 167-68). ADA Boob’s testimony was

consistent with Attorney McClenahen’s. He testified that he chose not to put

Stranburg on the stand because he believed it would be tantamount to

suborning perjury. (See id. at 188-90). He confirmed that he did not offer

a plea deal to Stranburg until after Appellant’s trial, and that his decision to

offer that deal was not based on Stranburg’s invocation of his Fifth

Amendment right, but upon the relative weakness of the evidence against

him. (See id. at 193-94, 211, 220-21). Moreover, ADA Boob observed that

had Stranburg not invoked his Fifth Amendment right, he would have

“relished” the opportunity to cross-examine him because he believed it

would have strengthened his case against him and given him the opportunity

to file additional charges against Stranburg. (Id. at 201; see id. at 200-03,

207, 216). ADA Boob also clearly said that he did not instruct Attorney

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McClenahen to have his client invoke his Fifth Amendment rights. (See id.

at 221-23, 228).

Thus, in sum, the evidence adduced at the post-sentence motions

hearing showed that Stranburg had cooperated with the Commonwealth by

making a statement to the police. However, neither Detective Weaver nor

ADA Boob felt the statement was truthful. Thus, the Commonwealth did not

call Stranburg as a witness. The Commonwealth and Stranburg had not

reached a plea agreement at the time of Appellant’s trial. Therefore, when

informed that the Commonwealth would not call his client, Attorney

McClenahen instructed him to invoke his Fifth Amendment privilege against

self-incrimination if called by the defense. Attorney McClenahen did so

because Appellant’s statement to the police contained admissions to criminal

activity and because he was aware that the Commonwealth did not believe

his client and was concerned about both possible perjury charges and the

possibility of being unable to obtain a plea agreement in the future. There is

simply no evidence of record to substantiate Appellant’s contention that the

Commonwealth induced or interfered in any way with Stranburg’s decision to

invoke his Fifth Amendment rights. Thus, the trial court did not abuse its

discretion in denying Appellant’s amended post-sentence motion claiming

prosecutorial misconduct. See Helsel, supra at 920.

In his second claim, Appellant argues that the trial court erred in

applying the deadly weapon sentencing enhancement. Specifically, he

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argues that a pocketknife is a not a deadly weapon. (See Appellant’s Brief,

at 36). In the alternative, Appellant argues that, even if the trial court

properly applied the deadly weapon enhancement, the trial court erred in

applying the DWE/Used matrix rather than the DWE/Possessed matrix. (See

id. at 43-45). We disagree with Appellant’s first contention, and find his

second contention waived.

Preliminarily, we note, “[i]ssues challenging the discretionary aspects

of sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings. Absent such

efforts, an objection to a discretionary aspect of a sentence is waived.”

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004), appeal

denied, 860 A.2d 122 (Pa. 2004) (citations and internal quotations marks

omitted). Here, Appellant properly preserved his claim that the trial court

erred in applying the deadly weapon enhancement by filing a post-sentence

motion. (See [Appellant’s] Post-Sentence Motion, 3/13/15, at unnumbered

pages 2-3).

The right to appeal the discretionary aspects of a sentence is not

absolute. See McAfee, supra at 274. When an appellant challenges the

discretionary aspects of the sentence imposed, he must present “a

substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted). An appellant must, pursuant to Pennsylvania Rule of

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Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to the fundamental norms underlying the sentencing scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we

determine whether a substantial question exists. See Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,

759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which

the appeal is sought, in contrast to the facts underlying the appeal, which

are necessary only to decide the appeal on the merits.” Id. (emphases in

original).

Here, Appellant has included a Rule 2119(f) statement in his brief,

(see Appellant’s Brief, at 35-36), arguing that the trial court improperly

applied the deadly weapon enhancement. (See id. at 35). This Court has

held that a claim that a trial court wrongfully applied the deadly weapon

enhancement7 raises a substantial question. See Commonwealth v.

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7
The deadly weapon enhancement is codified at 204 Pa. Code Section
303.10, and provides in pertinent part:

(a) Deadly Weapon Enhancement.

(1) When the court determines that the offender possessed a
deadly weapon during the commission of the current conviction
(Footnote Continued Next Page)

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Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2104), appeal denied, 104

A.3d 1 (Pa. 2014). Therefore, we will discuss the merits of this contention.

18 Pa.C.S.A. § 2301 defines a “deadly weapon” as:

_______________________
(Footnote Continued)

offense, the court shall consider the DWE/Possessed Matrix (§
303.17(a)). An offender has possessed a deadly weapon if any
of the following were on the offender’s person or within his
immediate physical control:

(i) Any firearm, (as defined in 42 Pa.C.S. § 9712)
whether loaded or unloaded, or

(ii) Any dangerous weapon (as defined in 18 Pa.C.S.
§ 913), or

(iii) Any device, implement, or instrumentality
designed as a weapon or capable of producing death
or serious bodily injury where the court determines
that the offender intended to use the weapon to
threaten or injure another individual.

(2) When the court determines that the offender used a deadly
weapon during the commission of the current conviction offense,
the court shall consider the DWE/Used Matrix (§ 303.17(b)). An
offender has used a deadly weapon if any of the following were
employed by the offender in a way that threatened or injured
another individual:

(i) Any firearm, (as defined in 42 Pa.C.S. § 9712)
whether loaded or unloaded, or

(ii) Any dangerous weapon (as defined in 18 Pa.C.S.
§ 913), or

(iii) Any device, implement, or instrumentality
capable of producing death or serious bodily injury.

204 Pa. Code Section 303.10(a)(1)-(2).

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Any firearm, whether loaded or unloaded, or any device
designed as a weapon and capable of producing death or serious
bodily injury, or any other device or instrumentality which, in the
manner in which it is used or intended to be used, is calculated
or likely to produce death or serious bodily injury.

18 Pa.C.S.A. § 2301. In arguing that the knife used in the instant matter

did not constitute a deadly weapon, Appellant relies on this Court’s decision

in Commonwealth v. Blake, 605 A.2d 427 (Pa. Super. 1992). (See

Appellant’s Brief, at 36-42). We find this reliance misplaced.

In Blake, the appellant used a knife to gain entry to the victims’

home; the appellant punched one victim in the eye, and, during a struggle,

the other victim was stabbed in the thigh by the knife that was in the

appellant’s pocket. See Blake, supra at 428. There was no evidence of

record that the appellant wielded the knife in any manner and no description

of the knife. See id. In determining that the trial court erred in applying

the deadly weapon enhancement, this Court found that, because the knife

had not been described, there was no evidence of record to support a claim

that it had been designed as a weapon. See id. Further, we found that,

based upon the fact that the knife was in the appellant’s pocket during the

stabbing, appellant did not use it in a manner that could cause death or

serious bodily injury. See id. at 428-29.

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In the instant matter, this is simply not the case, viewing the evidence

as we must in the light most favorable to the verdict winner,8 see

Commonwealth v. Duxbury, 674 A.2d 1116, 1118-19 (Pa. Super. 1996),

the record demonstrates that Appellant wielded the knife in such a manner

as to potentially cause death or serious bodily injury. Here, the record

reflects that, when Appellant heard Stranburg arguing with the victims, he

removed his knife from his pocket and opened it. (See N.T. Trial, 1/08/15,

at 214, 238-39). When Stranburg opened the door, he, Donaldson, and

Appellant all brandished knives at the victims. (See N.T. Trial, 1/07/15, at

118-19, 213). The men, with brandished knives, chased the fleeing victims

down the stairs, and, during that chase, Appellant stabbed Adams in the

back. (See id. at 120-23, 214-17, 220-23). Adams suffered a penetrating

stab wound to his back and there were concerns about more serious

consequences because of the location of the injury in close proximity to his

spine and other vital organs. (See id. at 159-64, 171, 227). This evidence

is more than sufficient to support a finding that Appellant used the knife in a

manner that could cause death or serious bodily injury, therefore,

Appellant’s claim lacks merit. See Commonwealth v. Chapman, 528 A.2d

990, 992 (Pa. Super. 1987), appeal denied, 536 A.2d 1328 (Pa. 1987)
____________________________________________

8
Throughout the argument on this issue, Appellant continually views the
evidence in the light most favorable to himself. (See Appellant’s Brief, at
38, 41-43).

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(finding razor blade held to victim’s face during robbery had sufficient

potential to cause harm to justify application of deadly weapon

enhancement).

Appellant also contends that the trial court erred in applying the

DWE/Used matrix rather than the DWE/Possessed matrix. (See Appellant’s

Brief, at 43-45). However, Appellant waived this claim. Appellant did not

raise this claim in his post-sentence motion, where he only raised the claim

that the trial court erred in applying the deadly weapon enhancement. (See

[Appellant’s] Post-Sentence Motions, 3/13/15, at unnumbered pages 2-3).

It is settled that an appellant waives any discretionary aspects of sentence

issue not raised in a post-sentence motion; further, an appellant cannot

raise an issue for the first time on appeal. See Commonwealth v. Mann,

820 A.2d 788, 793-94 (Pa. Super. 2003), appeal denied, 831 A.2d 599 (Pa.

2003) (finding claim sentencing court did not put sufficient reasons to justify

sentence on record waived where issue was not raised in post-sentence

motion); see also Pa.R.A.P. 302(a).9 Thus, Appellant waived this

discretionary aspect of sentence claim.

____________________________________________

9
Again, we note that Appellant also waived this claim because he failed to
raise it in his Rule 1925(b) statement. (See [Appellant’s] Concise
Statement of Errors Complained of on Appeal, 9/22/15, at unnumbered page
1); see also Pa.R.A.P. 1925(b)(4)(vii).

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In his third and final claim, Appellant avers that the trial court abused

its discretion by “only permitting defense counsel to call six[10] character

witnesses.”11 (Appellant’s Brief, at 46). Specifically, Appellant claims that

the “nature and complexity of the case justified permitting Appellant to

present a substantial number of character witnesses[.]” (Id.). Appellant

claims that the exclusion of their testimony “restrict[ed] his ability to present

a full defense.” (Id.). We disagree.

In Pennsylvania, it is settled that

[e]vidence of good character is always admissible for the
defendant in a criminal case. It is to be weighed and considered
in connection with all the other evidence in the cause. It may of
itself, in some instances, create the reasonable doubt which
would entitle the accused to an acquittal.

Commonwealth v. Sandusky, 77 A.3d 663, 673 (Pa. Super. 2013)

(citation, quotation marks, and emphasis omitted). However,

[t]he admissibility of evidence is a matter solely within the
discretion of the trial court. Subject to the requirements of due
process of law and of the constitutional rights of the parties, the
court may make and enforce rules and orders covering any of
____________________________________________

10
The record reflects that Appellant called seven character witnesses. (See
N.T. Trial, 1/08/15, at 264-92). However, the trial court, with the
agreement of the parties, struck the character testimony of witness Donna
Lopp as impermissible. (See id. at 287).
11
It is not entirely clear how many character witnesses Appellant wished to
call. At trial, Appellant initially sought to call twenty-five character
witnesses. (See N.T. Trial, 1/08/15, at 263). Later, he stated that he
wished to call nine additional character witnesses. (See id. at 288-89). In
his brief, Appellant does not specify how many additional witnesses he
wished to call.

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the following matters, inter alia: (1) limiting the number of
witnesses whose testimony is similar or cumulative. As with any
other evidentiary ruling, we will reverse the trial court’s
determination to exclude testimony only if there has been an
abuse of discretion.

Commonwealth v. Walsh, 36 A.3d 613, 621 (Pa. Super. 2012) (citations

and internal quotation marks omitted). Further, the Pennsylvania Rules of

Evidence provide: “[t]he court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following . .

. needlessly presenting cumulative evidence.” Pa.R.E. 403. We have

defined cumulative evidence as: “additional evidence of the same character

as existing evidence and that supports a fact established by the existing

evidence.” Commonwealth v. G.D.M., Sr., 926 A.2d 984, 989 (Pa. Super.

2007), appeal denied, 944 A.2d 756 (Pa. 2008) (citation omitted).

Here, Appellant called six witnesses who testified as to his reputation

for being peaceful and nonviolent. (See N.T. Trial, 1/08/15, at 265-92). It

was Appellant’s choice as to which character witnesses he chose. Appellant

has not pointed to anything in the testimony of the remaining character

witnesses that would have differentiated their testimony from the first six.

(See Appellant’s Brief, at 46-49). Further, while claiming prejudice, (see

id.), Appellant has not demonstrated any. Rather, we note that the jury

acquitted Appellant of both aggravated assault and PIC. We have

thoroughly reviewed the record in this matter, there is nothing in this case

that was so inherently complex that it required calling more than six

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character witnesses nor did the limitation in the number of witnesses impair

Appellant’s ability to present his defense that he accidentally stabbed

Adams. Accordingly, we find that Appellant has not shown that the trial

court abused its discretion by only allowing him to present six character

witnesses. See Walsh, supra at 621.

Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

Judgment of sentence affirmed.

Judge Bowes joins the Memorandum.

Judge Ott concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/19/2016

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