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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
FREDERICK CAMPBELL :
:
Appellant : No. 1709 EDA 2016
:
Appeal from the Judgment of Sentence January 22, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002422-2012,
CP-51-CR-0002751-2012
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 25, 2018
Appellant, Frederick Campbell, appeals from the January 22, 2016
judgment of sentence entered in the Court of Common Pleas of Philadelphia
County following a jury trial. We affirm.
The trial court summarized the facts of the crimes as follows:
On November 16, 2011, at about 2:30 a.m., [T.T.] was
studying in her bed while her 2-year-old slept in the same bed.
When [T.T.] woke up[1] she saw Appellant standing in her
bedroom. [T.T.] asked Appellant how he entered into her
apartment and Appellant stated: “you left the door open. Why
wasn’t your door locked?” Although they were romantically
involved on one occasion, [T.T.] stated that she and Appellant
were not involved at that time. [T.T.] took her daughter and put
her in the other bedroom. Appellant then got in [T.T.]’s bed, took
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1 T.T.’s testimony was that she ultimately “fell asleep on [her] schoolbooks.”
N.T., 9/2/15, at 64.
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* Retired Senior Judge assigned to the Superior Court.
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his clothes off and started touching her legs. [T.T.] moved his
hand and said, “I don’t feel like that, I had a long day.” Appellant
then got on top of [T.T.] and started moving her legs over with
his knees while [T.T.] kept closing her legs tight. Appellant put a
rope around [T.T.’s] neck. [T.T.] placed her chin down, grabbed
the rope and pulled it over the top of her head. [T.T.] attempted
to get Appellant off of her by telling him that she had to use the
restroom. [T.T.] also tried to get Appellant off of her by telling
him to use a condom. At this time, Appellant took his penis out,
put it in [T.T.’s] vagina and started “pumping.” Appellant finished
and followed [T.T.] to the bathroom and told her, “I'm sorry, I
wouldn’t hurt you.” He then followed her back to the bedroom,
grabbed her cell phone, tossed it on the bed and asked her if she
was going to call the police. [T.T.] waited approximately 45
minutes until Appellant fell asleep in her bed. At this time, she
took her daughter, went to her car and drove to the police station.
[T.T.] then called the police outside their station and the police
escorted her back to her apartment. The officers took Appellant
out of [T.T.]’s apartment and had her identify him as the person
who committed the sexual assault. [T.T.] then gave a statement
and went for a sexual assault examination.
The second incident occurred on December 30, 2011. On
that date, at roughly 2:30 a.m., [T.W.] came into contact with
Appellant outside of the barbershop where he was employed.
[T.W.] had a drug problem and had a history of performing oral
sex on Appellant in exchange for drugs or money. On that night,
Appellant waved [T.W.] over and they both went into the
barbershop. Once inside, Appellant shut the door and locked the
grates from the inside. [T.W.] asked for money but Appellant did
not have any money. Appellant instructed [T.W.] to take her
clothes off, but she told him not until he pays her first. [T.W.]
then began to walk away but Appellant grabbed her by her throat
and pushed her against the wall. [T.W.] broke free and ran
towards the front door but Appellant caught up to her and grabbed
her by her throat again. They then both fell backwards and [T.W.]
began kicking the windows in an attempt to get someone’s
attention outside. [T.W.] broke the glass windows, grabbed a
piece of glass and started to cut Appellant’s hands because she
could barely breathe. Appellant then dragged [T.W.] to the back
of the store, punched her in the head and told her to suck his dick.
Appellant threatened [T.W.] that if she did not comply, he would
slit her throat with a straight razor. [T.W.] performed oral sex on
Appellant, against her will. Appellant then told [T.W.] to turn
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around and get on her knees on top of the barber chair. Appellant
then inserted his penis into her vagina from behind. When
Appellant was finished, he held his head and started crying. He
said his life was over and that he was sorry. [T.W.] was still in
fear of her life, so she helped him clean up the barbershop and
then Appellant let her leave. [T.W.] ran straight home and
knocked on the front door to her home until her husband
answered. [T.W.’s] husband and her husband’s friend went to the
barbershop where they saw Appellant standing outside. [T.W.’s]
husband and his friend chased Appellant but could not catch him.
[T.W.’s] uncle called 911 and told them “I want to report a rape.
[T.W.’s] husband also called 911 and stated that “he’s running,”
referring to Appellant. Police then apprehended Appellant.
Trial Court Opinion, 4/17/17, at 3–5 (internal citations omitted).
Police arrested Appellant on December 30, 2011, and charged him with
multiple offenses at Docket Number CP-51-CR-0002751-2012, relating to
T.T., and at Docket Number CP-51-CR-0002422-2012, relating to T.W. On
August 27, 2012, the Commonwealth filed a Motion to Consolidate Bills of
Information, which the common pleas court granted on November 6, 2012,
after a hearing. Following a three-day trial beginning on September 1, 2015,
a jury found Appellant guilty on September 4, 2015, of aggravated assault,
rape by forcible compulsion, involuntary deviate sexual intercourse (“IDSI”)
by forcible compulsion, aggravated indecent assault, and sexual assault2
under Docket Number CP-51-CR-0002422-2012, and rape by forcible
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2 18 Pa.C.S. §§ 2702(a), 3121(a)(1), 3123(a)(1), 3125(a)(1), 3124.1,
respectively.
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compulsion and sexual assault3 under Docket Number CP-51-CR-0002751-
2012.4 On January 22, 2016, the trial court sentenced Appellant to an
aggregate sentence of imprisonment of twenty-seven and one-half to sixty-
five years. Appellant filed a post sentence motion on February 1, 2016, that
was denied by operation of law on May 31, 2016.
Appellant filed a notice of appeal on June 1, 2016. Pursuant to the trial
court’s order, Appellant filed a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal on June 24, 2016, along with a motion for extension
of time to file a supplemental statement upon receipt of the notes of
testimony. Despite the fact that the trial court never ruled on Appellant’s
motion, Appellant filed a supplemental statement of errors on September 29,
2016.
Appellant raises the following issues on appeal:
1. Did not the lower court err in granting the Commonwealth’s
motion to consolidate the two cases for trial where the facts
of the cases did not demonstrate sufficient similarity to
establish a common plan, scheme and design, and should
not joinder have been denied where the probative value of
the evidence introduced through consolidation of the cases
was outweighed by the prejudice resulting from the
consolidation?
2. Did not the lower court err in not permitting defense counsel
to introduce into evidence, through questioning a
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3 18 Pa.C.S. §§ 3121(a)(1) and 3124.1, respectively.
4 Under Docket Number CP-51-CR-0002751-2012 relating to T.T., the jury
acquitted Appellant of aggravated assault. Prior to trial, various other charges
were nol prossed by the Commonwealth under both bills of information.
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complainant or otherwise, evidence as to the nature of the
specific charges for which the complainant had been
convicted (involuntary manslaughter of the complainant’s
child and [endangering the welfare of a child (“EWOC”)]
where the complainant was currently charged again with
EWOC, in that the nature of the complainant’s prior
convictions, in light of the new charges, demonstrated
heightened reasons for the complainant to testify favorably
for the Commonwealth, and in that the complainant’s prior
convictions also demonstrated a tendency to abrupt violence
on the part of the complainant that would have supported a
claim that the complainant was the initial aggressor and that
the [Appellant] acted in self-defense?
3. Did not the lower court err in permitting the 911 radio tapes
to be played to the jurors as they contained inadmissible
hearsay (to wit, statements from nontestifying declarants
that a complainant had been raped)?
4. Did not the lower court err in not permitting defense counsel
to introduce into evidence, through questioning a police
officer or otherwise, the fact that the [Appellant] made
statements to the police (as opposed to introducing the
content of those statements) as this evidence was relevant
and not outweighed by the possibility of prejudice?
Appellant’s Brief at 4–5.
Appellant first argues that the trial court erred in granting the
Commonwealth’s motion to consolidate the bills of information pursuant to
Pa.R.Crim.P. 582(A)(1)(a), which states that the offenses charged in separate
informations may be tried together if “the evidence of each of the offenses
would be admissible in a separate trial for the other and is capable of
separation by the jury so that there is no danger of confusion . . . .”
Pa.R.Crim.P. 582(A)(1)(a). Appellant maintains the two cases failed to
demonstrate a common plan, scheme, or design, and any probative value of
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the evidence introduced through consolidation was outweighed by resulting
prejudice. Appellant’s Brief at 27. Appellant asserts that any similarities
between the two cases were superficial, and he discounts the extent of the
admitted similarities. Id. at 33, 35, 36.
We review a trial court’s decision to consolidate offenses for trial under
an abuse-of-discretion standard. Commonwealth v. Collins, 703 A.2d 418,
422 (Pa. 1997).
Offenses charged in separate informations may be tried together
if they are “based on the same act or transaction” or if “the
evidence of each of the offenses would be admissible in a separate
trial for the other and is capable of separation by the jury so that
there is no danger of confusion.” Pa.R.Crim.Pro. 582(A)(1). The
court has discretion to order separate trials if “it appears that any
party may be prejudiced” by consolidating the charges.
Pa.R.Crim.Pro. 583.
Our Supreme Court has established a three part test,
incorporating these two rules, for deciding the issue of joinder
versus severance of offenses from different informations. The
court must determine
whether the evidence of each of the offenses would be
admissible in a separate trial for the other; whether such
evidence is capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these inquiries
are in the affirmative, whether the defendant will be unduly
prejudiced by the consolidation of offenses.
Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491,
497 (1988) (quoted in Collins, supra at 55, 703 A.2d at
422).
Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005);
Commonwealth v. Johnson, 179 A.3d 1105, 1115 (Pa. Super. 2018)
(“While evidence of other criminal behavior is not admissible to show a
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propensity to commit crimes, such evidence ‘may be admitted for other
purposes such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident’ as long as the
‘probative value of the evidence outweighs its prejudicial effect.’ Pa.R.E.
404(b)(2), (3).” Furthermore, “Appellant bears the burden of establishing
such prejudice.” Commonwealth v. Ferguson, 107 A.3d 206, 210 (Pa.
Super. 2015) (citing Commonwealth v. Melendez–Rodriguez, 856 A.2d
1278, 1282 (Pa. Super. 2004) (en banc)).
The commission of the crimes need not be identical in order to be
consolidated. Compare Commonwealth v. Smith, 47 A.3d 862, 869 (Pa.
Super. 2012) (severance not required even though one crime occurred
daylight and one at night, accused’s pretexts for entering victims’ houses was
different, and assaults began differently), with Commonwealth v. Brown,
505 A.2d 295 (Pa. 1986) (error to deny severance of cases four months apart
where only similarity was theft of television sets during daylight hours from
ransacked houses).
Our review of the record supports the trial court’s conclusion that
consolidation of Appellant’s two criminal informations was proper. We rely on
the trial court’s explanation regarding the similarities upon which it relied:
Here, the similarities between the two assaults are
extensive. The events occurred only about 45 days apart.
Appellant knew both individuals before the assaults. Appellant
ejaculated inside both victims’ vaginas. Appellant then apologized
after each assault. Both women targeted were from his
neighborhood. Both were African American females. Both
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previously engaged in sexual relations with Appellant. Both
victims were assaulted at the same time of night, around 2:30
a.m. Appellant had been drinking before both assaults. Both
victims suffered from Appellant’s attempts to strangle or choke
them. Appellant did not use a condom for either assault.
[Commonwealth v.] Smith[, 47 A.3d 862 (Pa. Super. 2012),] and
[Commonwealth v.] Newman[, 598 A.2d 275 (Pa. 1991),] control
this matter, supporting consolidation of both indictments before
Appellant.
Trial Court Opinion, 4/17/17, at 15–16 (internal citations omitted). In
addition, both women knew Appellant by his nickname, Turtle. N.T., 9/2/15,
at 62, 174. Both victims previously had received money from Appellant. Id.
at 120, 175. Both victims weighed about 130 pounds. Id. at 78–79, 186.
The extent of the similarities comports with relevant case law. See, e.g.,
Commonwealth v. Keaton, 729 A.2d 529, 537–538 (Pa. 1999) (similarities
among cases such as that offenses were committed over six-month period, all
three victims lived in the defendant’s neighborhood, all three victims were
African American, and each offense involved strangulation compelled that
consolidation for trial was proper); Commonwealth v. Larkins, 449 A.2d 42
(Pa. Super. 1982) (consolidation proper where all the crimes occurred within
a three-mile area, all occurred during early morning hours, victims were
attacked from behind by an assailant who was African American and who wore
leather gloves, and the methods of assault were similar). The record supports
the trial court’s conclusion that there were sufficient similarities between the
crimes to support consolidation of the informations.
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Moreover, Appellant fails to establish that the jury was incapable of
separating the crimes to avoid confusion. Our Supreme Court has held that
“[w]here a trial concerns distinct criminal offenses that are distinguishable in
time, space and the characters involved, a jury is capable of separating the
evidence.” Collins, 703 A.2d at 423. Here, the situations surrounding each
rape were easily separated by the jury, where the attack on T.T. occurred in
her bedroom after Appellant broke into her apartment, and the attack on T.W.
occurred in the barbershop where Appellant worked. N.T., 9/2/15, at 64,
175–176. The rapes occurred on different dates, in different locations, and
involved different victims. Thus, while significantly similar, the evidence
relating to each crime was distinct enough to allow the jury to separate the
facts and apply them to each individual assault in assessing Appellant’s
culpability. Commonwealth v. Burton, 770 A.2d 771, 779 (Pa. Super.
2001). There was no risk of confusing the jury.5
Finally, the trial court found that consolidation did not prejudice
Appellant. The type of prejudice at issue is “that which would occur if the
evidence tended to convict a defendant only by showing his propensity to
commit crimes, or because the jury was incapable of separating the evidence.”
Commonwealth v. Lark, 543 A.2d 491, 496, 499 (Pa. 1988). Here, the
evidence did not merely show Appellant’s propensity to commit crimes; it also
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5 The record reveals that the trial court also provided the jurors with
notebooks to take notes and record details. N.T., 9/2/15, at 12.
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demonstrated a common plan that Appellant employed to commit each sexual
assault. As discussed above, each sexual assault involved distinct facts that
permitted the jury to examine each crime individually. Consequently, we
conclude that the trial court did not abuse its discretion in consolidating the
bills of information in this case.
Appellant’s second issue avers error by the trial court in refusing to allow
defense counsel to cross-examine T.W. “or otherwise present[] evidence, as
to the exact nature of the charges for which [T.W.] was then on parole and
the charges which [T.W.] then currently faced in an open case.” Appellant’s
Brief at 40. This issue concerns T.W.’s 2001 convictions for involuntary
manslaughter and EWOC as well as a pending charge of EWOC. On September
1, 2015, the day before the jury was sworn, the Commonwealth asserted on
the record that it wished to address two motions in limine. N.T., 9/1/15, at
3. We note that there are no written motions in limine in the certified record.
The Commonwealth explained that T.W. currently was on parole for
involuntary manslaughter and EWOC relating to a deceased child. Id. at 5.
T.W. also had an open case pending for EWOC relating to another child. Id.
At that time, with the Commonwealth’s concession, the trial court ruled that
Appellant could introduce evidence that T.W. had a prior felony conviction,
she was on parole at the time of trial, and she had an open charge pending
against her. Id. at 5–8. It deferred a decision concerning whether the
defense could admit evidence that the open charge was for EWOC and whether
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it could inquire about the nature of the prior convictions. Id. at 9–12. The
court ultimately ruled that the defense could not name the crimes nor inquire
about the details. N.T., 9/2/15, at 3–10. Appellant asserts that the omission
of this evidence was error and suggests the nature of the charges against T.W.
indicated a “heightened reason for bias” by her. Id. at 41. Appellant also
maintains that the charges suggest that T.W. was the initial aggressor in the
present case, “which would have supported [Appellant’s] self-defense claim
as to physical assault charges involving [T.W.]” Id. at 41, 43.
Questions concerning the admission of evidence are within the sound
discretion of the trial court and will not be reversed on appeal absent an abuse
of discretion. Commonwealth v. Baumhammers, 960 A.2d 59 (Pa. 2008).
“An abuse of discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Commonwealth v. Dillon, 925 A.2d
131, 136 (Pa. 2007). “It is not sufficient to persuade the appellate court that
it might have reached a different conclusion; it is necessary to show an actual
abuse of the discretionary power.” Commonwealth v. Bryant, 67 A.3d 716,
726 (Pa. 2013). “Evidence may be excluded ‘if its probative value is
outweighed by ... unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.’”
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Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015) (citing Pa.R.E.
401, 402).
We reject Appellant’s assertion of error. The jury received ample
evidence to support a bias theory. T.W. testified she was on parole for a
felony at the time she was raped. N.T., 9/2/15, at 237. She admitted all of
the following: having served time in prison; she currently was on parole; she
had an open criminal charge for the same crime of which she had been
previously convicted; and admitted to prostitution and drug use, which she
acknowledged were probation violations. Id. at 198–199, 237–241.
In addition, like the trial court, we reject Appellant’s alternate reason,
that admission of the details of the involuntary manslaughter conviction and
open EWOC charge would have suggested to the jury that T.W. was the initial
aggressor and would have supported a self-defense claim by Appellant
regarding the physical assault on T.W. Trial Court Opinion, 4/17/17, at 10;
Appellant’s Brief at 8. Before self-defense is properly in issue, there must be
some evidence to justify the finding. Commonwealth v. Mouzon, 53 A.2d
738, 741 (Pa. 2012). Here, there was no evidence from any source that the
six-feet, four-inch Appellant, who locked the smaller, 130-pound victim in the
barbershop at 2:30 a.m., choked her, and threatened her with a straight razor,
acted in self-defense, either before or after he raped her vaginally and anally.
Moreover, the facts establish that T.W.’s involuntary manslaughter
conviction resulted from T.W. hitting her child’s head against the ground
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because he was crying. She put the child to bed, later found him
unresponsive, and the child ultimately died. N.T., 9/1/15, at 7. The trial court
determined that the facts of that crime “couldn’t be more dissimilar” from the
altercation in the barbershop and did not demonstrate that T.W. was, in fact,
the initial aggressor with Appellant to support a self-defense claim. N.T.,
9/2/15, at 4–5; N.T., 9/3/15, at 124–125. As horrific as the facts of the prior
crime were, we agree with the trial court. See Christine, 125 A.3d at 399
(no abuse of discretion to exclude victim’s conviction of simple assault for
grabbing, pushing, and threatening his girlfriend because it was too dissimilar
from accused’s assertion that victim threw hot coffee in his face and punched
him several times). The trial court herein underscored that the two crimes
were eleven years apart with clearly dissimilar facts. Trial Court Opinion,
4/17/17, at 10. We conclude this issue lacks merit.
In his third issue, Appellant avers that the trial court erred in permitting
the 911 telephone calls initiated by T.W.’s husband and uncle to be played for
the jury because “they contained inadmissible hearsay.” Appellant’s Brief at
46. We note this one-and-one-half page argument by Appellant is conclusory,
fails to develop the issue, importantly fails to include citation to the record
where such tapes were played, and fails to support the issue with citation to
relevant case law. For these reasons, the issue is waived. Commonwealth
v. Perez, 93 A.3d 829, 838 (Pa. 2014) (claims failing to advance developed
argument or citation to supporting authorities and record are waived).
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Further, we note that in his brief, Appellant contends that the source of
the information that T.W. was raped in the 911 calls “is unknown.” Appellant’s
Brief at 46. Appellant did not assert that claim at trial nor in his Pa.R.A.P.
1925(b) statement, where he merely averred that the 911 calls were hearsay
and no exception applied. N.T., 9/1/15, at 183–190; Pa.R.A.P. 1925(b)
Statement, 6/24/16; Supplemental Pa.R.A.P. 1925(b) Statement, 9/29/16.
For this additional reason, the claim is waived. Commonwealth v. Hansley,
24 A.3d 410, 415 (Pa. Super. 2011) (Appellant’s Pa.R.A.P. 1925(b) statement
was too vague to allow the court to identify the issues raised);
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (As a general
rule, any issues not raised in a Rule 1925(b) statement will be deemed
waived).
Finally, even if the issue was not waived, we would rely on the trial
court’s explanation. Trial Court Opinion, 4/17/17, 5–8. Thus, we reject this
claim.
Appellant’s final issue is that the trial court abused its discretion when
it precluded him from eliciting testimony from detectives that Appellant had
given a statement in each case. Appellant’s Brief at 48. Appellant maintains
that the evidence was relevant, but once again, he fails to cite any cases or
law in support. Id. Appellant contends that if evidence is admissible, “it is
not within the purview of the court to decide what evidence” Appellant may
present. Id. at 49. He suggests that “[w]ithout the content of the statements
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being divulged, there appeared to be little prejudice outweighing” their
admission. Id. at 48.
In addition to failing to cite case law in support of his argument,
Appellant fails to cite to the place in the record where the court refused such
evidence. In Commonwealth v. Harris, 979 A.2d 387 (Pa. Super. 2009),
we stated:
When an allegation is unsupported [by] any citation to the record,
such that this Court is prevented from assessing this issue and
determining whether error exists, the allegation is waived for
purposes of appeal. Pa.R.A.P. 2119(c) (requiring that if reference
is made to the record, it must be accompanied by a citation to the
record); Commonwealth v. Einhorn, 911 A.2d 960, 970
(Pa.Super.2006) (“An appellate brief must provide citations to the
record and to any relevant supporting authority. This Court will
not become the counsel for an appellant, ‘and will not, therefore,
consider issues ... which are not fully developed in the brief.’”).
See also Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa.
Super.2007); Commonwealth v. Judd, 897 A.2d 1224, 1233
(Pa. Super.2006).
Id. at 393. See also Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa.
Super. 2014) (“The Rules of Appellate Procedure require that appellants
adequately develop each issue raised with discussion of pertinent facts and
pertinent authority. See Pa.R.A.P. 2119. It is not this Court’s responsibility
to comb through the record seeking the factual underpinnings of an appellant’s
claim.”). This issue is waived.
Even if not waived, we would conclude the claim lacks merit. In
disallowing the evidence, the trial court recognized that admitting evidence
that Appellant spoke to police could potentially be harmful because first, it
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would not inform the jury what he actually said in his statements, second, it
would invite jurors to speculate regarding what Appellant had said, and third,
it would invite jurors to question why Appellant was not testifying. N.T.
9/1/15, at 15–17; Trial Court Opinion, 4/17/17, at 12. We cannot say the
trial court abused its discretion, and we would find the issue without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/18
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