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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DERRICK WILSON MCCRAY, :
:
Appellant :
: No. 2578 EDA 2015
Appeal from the Judgment of Sentence March 23, 2015,
in the Court of Common Pleas of Bucks County,
Criminal Division, at No(s): CP-09-CR-0003589-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 14, 2016
Derrick Wilson McCray (Appellant) appeals from the judgment of
sentence entered following his convictions for rape - threat of forcible
compulsion, indecent assault - threat of forcible compulsion, criminal
trespass, false imprisonment, simple assault, and possession of an
instrument of crime. We affirm.
The aforementioned charges stem from the rape and sexual assault of
Appellant’ ex-wife, Constance Linke, on March 18, 2014. Ms. Linke testified
that, on that date, Appellant entered her home through a basement window
while she was getting ready for work and raped her at knifepoint. Ms. Linke
indicated that she was afraid of Appellant and told him that she did not want
to have sexual relations with him. At trial, Appellant maintained that the
encounter was pre-arranged and consensual. Appellant was convicted
following a jury trial and, on March 23, 2015, he was sentenced to an
*Retired Senior Judge assigned to the Superior Court.
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aggregate term of nine to 24 years’ incarceration. Appellant’s timely-filed
post-sentence motions were denied on August 20, 2015. This appeal
followed. Both Appellant and the trial court complied with the mandates of
Pa.R.A.P. 1925.
Appellant raises the following issues for our review, which we have
renumbered for ease of disposition.
1. Did the trial court err in failing to grant the defense request
for a continuance to investigate and subpoena a witness, whose
statement was provided by the Commonwealth on the day of
trial?
2. Did the trial court err in allowing the Commonwealth to elicit
background information from [Ms. Linke] regarding her job, work
history, military history, and educational background that was
not provided in discovery and unfairly buttressed her testimony?
3. Did the trial court err in allowing evidence that [Ms. Linke]
paid Appellant’s bills?
4. Did the trial court err in refusing to allow the defense to cross-
examine [Ms. Linke] regarding her mental health status?
5. Were the guilty verdicts on counts of rape, indecent assault,
criminal trespass, false imprisonment, and simple assault against
the clear weight of the evidence that showed that [] Appellant
was admitted into [Ms. Linke’s] home, where they engaged in
consensual sex and no force was employed or weapon used by []
Appellant?
6. Was the sentence of one to five years on the count of
indecent assault running consecutively with the seven to
fourteen year sentence imposed on rape, illegal and excessive,
because the two counts merged for purposes of sentence and
the sentence essentially punishes the same conduct twice?
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7. Did the trial court abuse its discretion in imposing an
aggregate sentence of nine to twenty-four years, which was
excessive under the circumstances in light of [] Appellant’s
personal circumstances, his character, and the circumstances of
the offense?
Appellant’s Brief at 6-7 (unnecessary capitalization, parenthetical references,
and trial court answers omitted).
In his first argument, Appellant claims the trial court erred in denying
his request for a continuance to permit him to investigate, and if necessary,
subpoena, Laura Norwood, an employee of the daycare center attended by
the parties’ minor child. Appellant’s Brief at 18-20. Appellant contends that
he was unaware of Norwood’s existence until the Commonwealth provided
his counsel with a copy of her statement (taken two days before trial) on the
morning of trial. Id. According to her statement, Norwood, now residing in
Arkansas, claimed that Ms. Linke was well-dressed and wearing her hair
down when she came to the daycare to pick up the parties’ child the day of
the incident, which was so unusual that Norwood was compelled to ask if Ms.
Linke had a job interview that day, to which Linke responded that Appellant
had raped her at knifepoint that morning. Id. at 19. Appellant claims that
this statement supported his defense that the encounter was planned and
consensual, and that the court erred in denying his request for a
postponement to investigate further. Id. at 19-20.
We review this claim mindful of our standard of review.
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The grant or denial of a motion for a continuance is within the
sound discretion of the trial court and will be reversed only upon
a showing of an abuse of discretion. An abuse of discretion is not
merely an error of judgment; rather discretion is abused when
the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence or the record[.]
Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa. Super. 2014)
(citations and quotation marks omitted).
The trial court determined that Appellant had had ample opportunity to
discover the existence of and investigate Norwood as she was “discovered”
while the Commonwealth was interviewing two other daycare workers
defense counsel had subpoenaed for trial. N.T., 11/12/2014, at 10-14; Trial
Court Opinion, 12/14/2015, at 16. Under such circumstances, Appellant’s
claim that he was unaware of Norwood’s existence until she was interviewed
by the Commonwealth is unavailing. We are unconvinced that he was
prejudiced when Norwood was discoverable before trial through exercise of
due diligence. Accordingly, we find no error in the trial court’s refusal of
Appellant’s request for a postponement.
Appellant’s next three issues concern the admission at trial of various
items of evidence. We evaluate those claims mindful of the following
standard of review.
Questions concerning the admissibility of evidence lie
within the sound discretion of the trial court, and a reviewing
court will not reverse the trial court’s decision absent a clear
abuse of discretion. Abuse of discretion is not merely an error of
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judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill
will.
Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citations
omitted).
The threshold inquiry with admission of evidence is
whether the evidence is relevant. Evidence is relevant if it
logically tends to establish a material fact in the case, tends to
make a fact at issue more or less probable, or supports a
reasonable inference or presumption regarding the existence of a
material fact. In addition, evidence is only admissible where the
probative value of the evidence outweighs its prejudicial impact.
However, where the evidence is not relevant there is no need to
determine whether the probative value of the evidence
outweighs its prejudicial impact. Instead, once it is determined
that the trial court erred in admitting the evidence, the inquiry
becomes whether the appellate court is convinced beyond a
reasonable doubt that such error was harmless. Harmless error
exists where: (1) the error did not prejudice the defendant or
the prejudice was de minimis; (2) the erroneously admitted
evidence was merely cumulative of other untainted evidence
which was substantially similar to the erroneously admitted
evidence; or (3) the properly admitted and uncontradicted
evidence of guilt was so overwhelming and the prejudicial effect
of the error was so insignificant by comparison that the error
could not have contributed to the verdict.
Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998) (citations and
quotation marks omitted).
Appellant first complains that the trial court erred in permitting the
Commonwealth to elicit background information from Ms. Linke, including
her employment, military, and educational background. Appellant’s Brief at
21-22. Appellant contends that this information was not provided in
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discovery1 and its admission served to bolster improperly Ms. Linke’s
testimony, resulting in prejudice. Id.
The trial court addressed this claim as follows.
Appellant’s [c]ounsel objected to all testimony [Ms. Linke]
provided regarding where she worked, which she testified that
she is “a special agent for the United States Office of Personnel
Management, Federal Investigative Services.” Appellant’s
[c]ounsel also objected to testimony regarding the length of time
she worked there, and what she generally did as a living, which
she testified to conducting “background investigations for
positions of employment involving national security of the
public’s trust.” Appellant’s [c]ounsel also objected when she was
questioned about where she traveled to as part of her job and
whether she worked from home. After this last objection, the
[c]ourt called both parties to sidebar to discuss the Appellant’s
objections. During a sidebar conversation, the [c]ourt stated
that:
THE COURT: Obviously, you’re entitled to lay some
background, but at this point I’m starting to lose
sight of the relevance of this. And I assume
relevance is your objection?
[APPELLANT’S COUNSEL]: Relevance, and I have no
information about any of this. I have no idea where
this is going. I don’t know what she’s going to say.
This has not been provided to me in discovery, and I
have no idea where this is going.
I think she’s trying to make, you know, her job
buttress her testimony, and i think it’s unfair. It has
no relevance to this case whatsoever.
1
In his brief, Appellant does not argue that the Commonwealth violated the
rules of discovery with respect to this issue. It is worth noting that the
parties were married prior to this incident and, arguably, any information
about Ms. Linke’s military or employment background was known to
Appellant at the time of trial.
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[ASSISTANT DISTRICT ATTORNEY (ADA)]: Defense
counsel had indicated that a witness that - from the
day care center that they’re going to testify that she
showed up like she had never before, dressed up like
she never had been before. I think the implication
was in her opening statement that the victim in this
case dressed up to meet [Appellant].
The relevance of what she’s going to say is
that every - most days she stays at home and works
in sweatpants and a sweatshirt and doesn’t do
anything other than work from home.
On the days that she doesn’t work from home,
she goes out and interviews people. And when she
does that, she does get dressed up.
THE COURT: And I’m assuming --
[ADA]: And on this day she was scheduled to
conduct five interviews, and that’s why she appeared
differently than she had any -
THE COURT: All right. That’s appropriate. Let’s get to
that point, though.
The Commonwealth then questioned the witness as to her
education and whether she was in the armed forces in order to
explain how she received her current job. Finally, after being
questioned whether she went overseas while being in the Navy,
Appellant’s [c]ounsel objected. The [c]ourt overruled the
objection because “credibility of a witness is always an issue,”
but only allowed some testimony. The Supreme Court of
Pennsylvania has held that “it is the province of the trier of fact
to pass upon the credibility of witnesses and the weight to be
accorded the evidence produced. The fact finder is free to
believe all, part or none of the evidence.” The [c]ourt did not
abuse its discretion in allowing [Ms. Linke] to testify about
background information and the jury had the ability to determine
the credibility of [Ms. Linke’s] testimony throughout the direct
and cross-examinations.
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Trial Court Opinion, 12/14/2015, at 17-18 (citations to notes of testimony
omitted).
It is well-settled that, “in a rape case, Pennsylvania law has long
stated that the credibility of the complaining witness is always at issue.”
Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004).
Accordingly, evidence of Ms. Linke’s credibility was relevant to the
proceeding. We note that the defense herein was one of consent and relied
heavily on Ms. Linke’s appearance the day of the incident, which was directly
tied to her employment and personal history. Given this defense, and the
relevance of Ms. Linke’s credibility, the probative value of the complained of
background information outweighed any prejudice to Appellant. Thus, we
find no error in the trial court’s admission of Ms. Linke’s background
testimony to establish her credibility and rebut Appellant’s defense.
Appellant also claims that the court erred in admitting evidence that
Ms. Linke paid Appellant’s bills. Appellant’s Brief at 23-24. Specifically,
Appellant contends that this information was not relevant and served to
prejudice him. Id. This argument is belied by the record. As the trial court
explained,
the testimony was introduced for an explanation as
to why [Ms. Linke] and [] Appellant were
communicating and planned to meet on February 14,
2014. Appellant contacted [Ms. Linke], asking her to
help him pay his phone bill so it would not get shut
off. [Ms. Linke] testified she agreed to help because
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she knew he was looking for jobs and could receive
calls for interviews, and ultimately this would help
support their daughter. [Ms. Linke] then testified to
helping [] Appellant financially after she moved out
by paying the rent for their apartment, the utility
bills, and food if the Appellant needed help. Later,
Appellant had the opportunity to provide an
explanation for why he contacted [Ms. Linke] for
financial assistance. Appellant testified that he found
out that the money in his bank account was no
longer there and [Ms. Linke] helped [] Appellant rent
cars and pay his cellphone bill. Therefore,[]
Appellant had the opportunity to present an
explanation of [Ms. Linke’s] testimony regarding
financially supporting the Appellant and the jury was
able to weigh the credibility of [Ms. Linke] and the
Appellant.
Trial Court Opinion, 12/14/2015, at 18-19 (citations to notes of testimony
omitted).
As the trial court explained, Ms. Linke’s testimony was admitted not to
establish Appellant’s indigence, but to explain why she had planned to see
Appellant on the day of the incident. Because such testimony is relevant to
Ms. Linke’s credibility, and to Appellant’s defense that the parties were in
contact despite their separation and that the encounter was consensual, we
determine that the trial court did not err in admitting the testimony of which
Appellant now complains.
Appellant also argues that the trial court erred in refusing to allow Ms.
Linke to be cross-examined as to her mental health status. Appellant’s Brief
at 25-26.
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During trial, Appellant’s [c]ounsel attempted to question
Karen Dougherty, a registered nurse in the emergency
department and director of the forensic nursing program at
Abington Memorial Hospital, about [Ms. Linke’s] mental health
and past medical history taken as part of the victim’s [sexual
abuse] exam. The Commonwealth objected and Appellant’s
[c]ounsel explained that the “Commonwealth put on evidence
that that was part of what the examination entailed. I’m just
asking what the result of that was.” At sidebar, the [c]ourt ruled
that:
THE COURT: First of all, there is a big difference
between saying: Do you take a past medical history,
and, what is that. A victim of a sexual assault does
not leave any right to what their past medical history
is. I don’t know what you’re trying to elicit here.
What’s in the report that you wish to get out of
there?
[APPELLANT’S COUNSEL]: It indicates a past medical
history of post-traumatic stress disorder, anxiety and
depression, and they take Depakote.
THE COURT: How is that relevant today in this
matter?
[APPELLANT’S COUNSEL]: Well, it indicates that [Ms.
Linke] has a psychiatric history.
THE COURT: How is that relevant in this matter? Do
you have some testimony that you are going to elicit
to show that at time time of this proceeding, that
she was psychotic, or on this medication, that the
medication would in some way affect her ability to
understand or recall the events?
[APPELLANT’S COUNSEL]: We’re not putting on
testimony, Judge, but I do think I’m allowed to ask
that question [of Nurse Dougherty].
THE COURT: You wish to blacken a reputation? Is
that what you are attempting to do?
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[APPELLANT’S COUNSEL]: No. It’s part of her
medical history.
THE COURT: The objection is sustained. It’s
irrelevant.
(Sidebar concluded).
Trial Court Opinion, 12/14/2015, at 19-20 (citations to notes of testimony
omitted).
“When reviewing a challenge to the scope of cross-examination, we
employ the following standard: The scope and the manner of cross-
examination are within the sound discretion of the trial court and will not be
overturned unless the court has abused that discretion.” Commonwealth v.
Nunn, 947 A.2d 756, 761 (Pa. Super. 2008) (citation omitted). Further,
when determining the admissibility of evidence of a witness’
mental instability,
[t]he crucial determination that a trial judge must
make ... is whether [this evidence] is related to the
subject of the litigation or whether it affects the
testimonial ability of the witness so as to impeach
him. The evidence can be said to affect the credibility
of a witness when it shows that his mental
disorganization in some way impaired his capacity to
observe the event at the time of its occurrence, to
communicate his observations accurately and
truthfully at trial, or to maintain a clear recollection
in the meantime.
Commonwealth v. Gonzalez, 109 A.3d 711, 726 (Pa. Super. 2015)
(citation omitted).
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Applying Gonzalez, we find no error in the trial court’s limitation of
Appellant’s cross-examination where Appellant offered nothing to suggest
that evidence of Ms. Linke’s mental health history was relevant in any way to
the incident in question or her testimonial capacity regarding the incident.
Moreover, Appellant has failed to establish that the court “erred in not
allowing the defense to inquire of [Ms. Linke] whether her multiple mental
health diagnoses impacted her ability to recall the events.” Appellant’s Brief
at 26. The record reflects that Ms. Linke testified second, after a responding
officer and immediately before the attending nurse performing the assault
examination. N.T., 11/12/2014. The notes of testimony make clear that
Appellant did not attempt to cross-examine Ms. Linke regarding her mental
health history, but instead chose to question the attending nurse regarding
what Ms. Linke reported during her sexual assault examination. Id. at 126-
169. Accordingly, this claim fails.
Appellant next argues that his verdicts are against the weight of the
evidence presented at trial. Appellant’s Brief at 14-17.
The law pertaining to weight of the evidence claims is well-
settled. The weight of the evidence is a matter exclusively for
the finder of fact, who is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses. A new
trial is not warranted because of a mere conflict in the testimony
and must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice.
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On appeal, our purview is extremely limited and is
confined to whether the trial court abused its discretion in
finding that the jury verdict did not shock its conscience. Thus,
appellate review of a weight claim consists of a review of the
trial court’s exercise of discretion, not a review of the underlying
question of whether the verdict is against the weight of the
evidence.
Gonzalez, 109 A.3d at 723 (quotation marks and citations omitted).
Here, Appellant’s limited argument on this point assails alleged
inconsistencies in Ms. Linke’s testimony and suggests that the jury erred in
disbelieving his version of events. Appellant’s Brief at 14-17. Our case law
is clear that a jury sitting as finder of fact is “in the best position to view the
demeanor of the Commonwealth’s witnesses and to assess each witness’[s]
credibility.” Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa. Super.
2013) (citation omitted). Here, the Commonwealth presented the testimony
of the responding officers and detectives, Ms. Linke, and the attending
nurse, as well as that of Appellant’s girlfriend and her grandfather.
Appellant testified on his own behalf and presented the testimony of a
daycare worker who observed Ms. Linke on the day of the incident. The jury
was free to find the Commonwealth’s witnesses’ testimony credible and
resolve any inconsistencies in the Commonwealth’s favor. See generally
Commonwealth v. Horne, 89 A.3d 277, 286 (Pa. Super. 2014) (holding
that Horne’s weight of the evidence claim could not prevail as “the jury
resolved the inconsistencies among the testimonies as it saw fit and reached
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a verdict.”); Commonwealth v. Simmons, 662 A.2d 621, 630 (Pa. 1995)
(“After examining the evidence in this case, we find that appellant’s
assertion that the inconsistencies in the witnesses’ testimony rendered them
incredible to have no merit since the inaccuracies claimed are only minor
and a witness’s credibility is solely for the [fact-finder] to determine.”). We
discern no abuse of discretion in the trial court’s finding that the jury’s
verdict was not against the weight of the evidence. Accordingly, Appellant’s
weight claim does not warrant relief.
Appellant next argues that his sentence is illegal because the crimes of
indecent assault and rape should have merged for the purposes of
sentencing. Appellant’s Brief at 27-28. Our standard of review is de novo
and the scope of our review is plenary. Commonwealth v. Baldwin, 985
A.2d 830, 833 (Pa. 2009) (citation omitted).
It is well-settled that “[n]o crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act and all of the statutory
elements of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court may
sentence the defendant only on the higher graded offense.” 42 Pa.C.S.
§ 9765. Thus, merger is “prohibited unless two distinct facts are present: 1)
the crimes arise from a single criminal act; and 2) all of the statutory
elements of one of the offenses are included in the statutory elements of the
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other.” Baldwin, 985 A.2d at 833.
This Court has determined that “when an indecent assault conviction is
predicated upon an act separate from the act of forcible intercourse, the
indecent assault conviction does not merge with a conviction for rape. This is
true whether the act which constitutes indecent assault is committed
immediately prior to, or concurrently with the rape.” Commonwealth v.
Richter, 676 A.2d 1232, 1236 (Pa. Super. 1996). Applying this precedent,
the trial court explained,
A person commits rape, “when the person engages in
sexual intercourse with complainant: (2) by threat of forcible
compulsion that would prevent resistance by a person of
reasonable resolution.” 18 Pa.C.S.[] §3121(A)(2). A person is
guilty of indecent assault “if the person has indecent contact
with the complainant, causes complainant to have indecent
contact with the person or intentionally causes the complainant
to come into contact with seminal fluid, urine or feces for the
purpose of arousing sexual desire in the person or the
complainant and: (2) the person does so by forcible
compulsion.” 18 Pa.C.S.[] §3126(a)(2). Here, [Appellant’s] two
acts are two distinct crimes which do not merge. [] Appellant,
while holding a knife, forced the victim into her bedroom, made
her undress and demanded she turn around and bend over. []
Appellant then inserted his penis into her vagina for a few
minutes. Therefore, the jury found the Appellant guilty of rape
by forcible compulsion. Next, [] Appellant while still holding the
knife, made the victim turn around and get on her knees. []
Appellant then ejaculated onto her face. Therefore, the criminal
acts were committed successively and were not necessarily an
ingredient of the other, so the sentence[es] of the two
convictions do not merge.
Trial Court Opinion, 12/14/2015, at 13.
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We agree with the court’s reasoned analysis and, thus, find no error in
the trial court’s imposition of a separate sentence for indecent assault and
rape under these facts. Accordingly, we hold that Appellant is not entitled to
relief on this issue.
Finally, Appellant presents a challenge to the discretionary aspects of
his sentence, arguing that the imposition of consecutive, rather than
concurrent sentences was an abuse of the court’s discretion. Appellant’s
Brief at 29-30. We address this claim mindful of the following:
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code…. [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Appellant sought reconsideration of his sentence in a post-sentence
motion and he timely filed a notice of appeal. Additionally, he has included a
Rule 2119(f) statement in his brief to this Court. Nonetheless, the
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Commonwealth asks that we find this issue waived on the basis that
Appellant’s post-sentence motion and 1925(b) statement claim that the
sentence is excessive “in light of [Appellant’s] personal circumstances, his
character and the circumstances of the offense” and fail to raise an issue
regarding the consecutive nature of the sentence. Commonwealth’s Brief at
46. Thus, the Commonwealth argues that the particular claim Appellant
seeks to raise on appeal is waived for failure to raise it in the court below.
Id.; Pa.R.A.P. 302(a). We are constrained to agree.
[F]or any claim that was required to be preserved, [an
appellate court] cannot review a legal theory in support of that
claim unless that particular legal theory was presented to the
trial court. Thus, even if an appellant did seek to withdraw pleas
or to attack the discretionary aspects of sentencing in the trial
court, the appellant cannot support those claims in this Court by
advancing legal arguments different than the ones that were
made when the claims were preserved.
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008). Because
the legal theory advanced before this Court differs from that raised before
the trial court in Appellant’s post-sentence motion and his 1925(b)
statement, Appellant has waived this claim.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2016
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