Com. v. Walker, R.

J-S31027-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD WALKER :
:
Appellant : No. 712 EDA 2017

Appeal from the Judgment of Sentence September 15, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012167-2014,
CP-51-CR-0013498-2014, CP-51-CR-0013501-2014,
CP-51-CR-0013502-2014

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 23, 2018

Ronald Walker appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after a jury convicted him of

burglary, aggravated assault, involuntary deviate sexual intercourse (“IDSI”),

and related offenses.1

The evidence at trial established that complainant . . . and
[Walker] had been in a relationship for approximately six []
months in 2014 after having met at [the victim’s] [d]aycare
[c]enter where [Walker’s] children attended. After living together
for a while, [the victim] ended the relationship. On August 10,
2014, a week after [Walker] moved out, he returned to [the
victims’] home brandishing a gun and awakened [the victim.] . . .
____________________________________________

1 The jury convicted Walker of burglary, 18 Pa.C.S.A. § 3502; aggravated
assault, 18 Pa.C.S.A. § 2702; IDSI, 18 Pa.C.S.A. § 3123(a)(1); intimidation
of a witness, 18 Pa.C.S.A. § 4952; retaliation against a witness, 18 Pa.C.S.A.
§ 4953; arson, 18 Pa.C.S.A. § 3301; and criminal mischief, 18 Pa.C.S.A. §
3304.
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[Walker,] who was initially wearing a mask and gloves . . .
continuously punched [the victim] in the head and stomach,
interrogated [the victim] about messages on [the victim’s] phone,
and forced [the victim] to perform oral sex on him. The violent
physical and sexual assault went on for hours, culminating with
[Walker] transporting [the victim] to his home where [the victim]
begged to receive medical attention. Finally [Walker] drove [the
victim] to the hospital, but gave an implied threat that [the
victim’s] family would be harmed if [the victim] did not fabricate
a story that [the victim] was jumped by a group of [women]. At
the hospital, [Walker] posed as the [victim’s] fiancé[] [and]
remained nearby as [the victim] was treated. The [victim’s]
injuries were so severe that [the victim] remained heavily
medicated for several days. [Walker] remained close throughout
the [victim’s] hospitalization, drove [the victim] home when
discharged and remained and cared for [the victim’s] children
while [the victim] recuperated. Fearing for [one’s] life and that of
[one’s own] family, [the victim] did not disclose the incident to
anyone.

As [the victim] recovered and returned to work, [Walker’s]
behavior, once again, became increasingly abusive and
threatening. Finally, [the victim] decided to tell [immediate]
family about the August [10, 2014] incident; and, ultimately,
[Walker’s] barrage of harassment and threats compelled [the
victim] to contact the police on August 29, 2014. Following the
report to the police, [the victim] attempted to serve [Walker] with
a Protection from Abuse [(“PFA”)] [o]rder, but he refused to meet
[the victim]. A few days later [the victim] learned that [the
victim’s] [d]aycare [c]enter had been burglarized and items stolen
and another center that [the victim] was in the process of
renovating had been set on fire. [The victim] also learned that an
attempt had been made to attack [the victim’s] brother and that
[the victim’s] [d]aycare van had been stolen. Afraid for [one’s]
life[,] [the victim] took [the victim’s] mother and children to a
hotel in New Jersey. [Walker] continued to try to contact [the
victim], who ultimately, out of fear[,] agreed to meet with him.
During the meeting, [Walker] admitted to the damages to [the
victim’s] businesses and the attack on [the victim’s] family
member. Despite [the victim’s] fears, [the victim] agreed to move
back into [Walker’s] home in the hope that [the victim’s] family
would be spared further attacks. While there, [the victim] was
constantly reminded by [Walker] that [the victim] was not to tell
anyone about his beating [the victim] up, destroying [the victim’s]

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businesses or attacking [the victim’s] brother. [The victim]
remained with [Walker] for several weeks until he was arrested
for the August [10, 2014] [assault]. After [Walker] was arrested,
[the victim] [arranged] to move out of [Philadelphia] to an
undisclosed location.

The trial evidence included a surveillance camera video showing
[Walker] in the vicinity of [the victim’s] [d]aycare [c]enter at the
time of the fire. [Pennsylvania Rule of Evidence] 404(b) evidence
of [Walker’s] prior abuse against women he had relationships with
was also admitted.[2] Detectives and police officers testified to
their investigations into the incidents which occurred on
September 3, 2014 at the Prestige Daycare Center, 4907 N. 5 th
Street in Philadelphia (vandalism and theft); at 5060 Copley Road
in Philadelphia (shattered window and spent cartridge casings);
and at 1509-1511 Wadsworth Avenue in Philadelphia (fires set in
six (6) different locations and heavy smell of gasoline).

[The victim’s] assistant . . . testified that on September 3, 2014,
[the assistant] noticed that the Dodge van [the assistant] used for
[the assistant’s] job at the [d]aycare [c]enter was missing from
[the assistant’s] back driveway. Inside the van[,] among other
things[,] was a bag that contained [a familial child’s] uniforms.
Sometime thereafter, [Walker] contacted [the assistant] and
arranged to meet . . . near the [d]aycare [c]enter. At the time[,
Walker] gave [the assistant] the bag with [the child’s] uniforms.
The van was recovered later parked on the street.

[Walker] testified and denied all of the accusations against him.
He testified that he had no idea why [the victim], [the victim’s]
brother and the [d]aycare assistant would testify and implicate
him the way they did. He also presented his mother, daughter
and son who all stated, after viewing the surveillance video, that
they could not recognize the man in the video who was seen in
the back of the [d]aycare the night of the fire.

Trial Court Opinion, 6/25/17, 2-5 (citations to record omitted).

____________________________________________

2 The trial court admitted evidence of two domestic violence incidents at
Walker’s trial. In the first, Walker assaulted a former partner, D.P., after
accusing D.P. of infidelity. In the second, Walker assaulted another former
partner, S.W., during an argument about alleged infidelities.

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On April 15, 2015, a jury convicted Walker of the above offenses. On

September 15, 2015, the trial court sentenced Walker to an aggregate term

of 36 to 90 years’ incarceration. On September 26, 2015, Walker filed a timely

motion for reconsideration of sentence. The trial court denied Walker’s motion

by operation of law on January 30, 2017. On February 13, 2017, Walker filed

a timely notice of appeal. Both Walker and the trial court have complied with

Pa.R.A.P. 1925. On appeal, Walker raises the following issues for our review:

1. Was there sufficient evidence to sustain Walker’s convictions?

2. Did the trial court abuse its discretion when it denied Walker’s
motion for a new trial based on the weight of the evidence,
grounded in the credibility of witnesses?

3. Did the trial court abuse its discretion when it admitted
evidence of conduct of which Walker was previously acquitted?

4. Was the Commonwealth’s arrest warrant valid?

5. Was trial counsel ineffective for failing to present exculpatory
evidence and/or failing to object to prior bad act evidence?

6. Did the trial court err in allowing the Commonwealth to call
Walker a liar in its closing argument?

7. Was Pa.R.Crim.P. 704 violated by good cause delays in
sentencing?

8. Did the trial court abuse its discretion by considering facts of
record and imposing consecutive sentences?

9. Did the trial court err in imposing a sentence mandating Walker
register as a sexual predator without a hearing?

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Brief of Appellant, at 4-5 (reworded for clarity and brevity).3

Walker first claims that the evidence is insufficient to sustain his

convictions for aggravated assault, arson, burglary, PIC, IDSI, intimidation of

witness, and retaliation against witness.

The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for the fact-
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all evidence
actually received must be considered. Finally, the [trier] of fact
while passing upon the credibility of witnesses and the weight of
the evidence produced, is free to believe all, part or none of the
evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (emphasis

added) (quoting Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.

Super. 2005)).

Walker maintains that he is completely innocent, and argues that the

“Commonwealth failed to establish every essential element of the offenses

____________________________________________

3On July 30, 2018, Walker, proceeding pro se, filed an addendum to his brief,
which this court received and considered in coming to its decision.

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charged[.]” Brief of Appellant, at 18. Walker’s various offenses arise from

the same factual nexus as one another, and thus, we address them together.

A person is guilty of aggravated assault where they “attempt[] to cause

serious bodily injury to another, or cause[] such injury intentionally, knowingly

or recklessly under circumstances manifesting extreme indifference to the

value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Serious bodily injury is

“[b]odily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement, or a protracted loss or impairment of the

functions of any bodily member or organ.” 18 Pa.C.S.A. § 2301.

In order to be convicted of IDSI, a defendant must “engage in deviate

sexual intercourse with a complainant . . . by threat of forcible compulsion

that would prevent resistance by a person of reasonable resolution.” 18

Pa.C.S.A. § 3101. The definition of deviate sexual intercourse includes oral

intercourse. Commonwealth v. Kelley, 801 A.2d 551, 556 (Pa. 2002).

Forcible compulsion is “[c]ompulsion by use of physical, intellectual, moral,

emotional or psychological force, either express or implied. 18 Pa.C.S.A. §

3101. “[I]n a prosecution for sex offenses, a guilty verdict may rest on the

uncorroborated testimony of .” Commonwealth v. Owens, 649 A.2d 129,

133 (Pa. Super. 1994) (citing 18 Pa.C.S.A. § 3106).

A person is guilty of PIC if he “possesses any instrument of crime with

the intent to employ it criminally.” 18 Pa.C.S.A. § 907(a). A gun qualifies as

an instrument of crime when used to commit an assault. See

Commonwealth v. Mack, 850 A.2d 690, 692-93 (Pa. Super. 2004).

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“To sustain a burglary conviction, the Commonwealth is required to

prove beyond a reasonable doubt that the offender entered the premises with

the contemporaneous intent of committing a crime therein, at a time when he

or she was not licensed or privileged to enter.” Commonwealth v. Jacoby,

170 A.3d 1065, 1078 (Pa. Super. 2017) (quotation marks and citation

omitted). The intent to commit a crime “need not be directly proved, but may

be inferred from the circumstances surrounding the incident[.]”

Commonwealth v. Hardcastle, 546 A.2d 1101, 1109 (Pa. 1988).

A person is guilty of arson endangering property where “he intentionally

starts a fire or causes an explosion, whether on his own property or that of

another . . . with the intent of destroying or damaging a building or unoccupied

structure of another[.]” 18 Pa.C.S.A. § 3301(c)(1).

A person is guilty of intimidation of witnesses or victims

if, with the intent to or with the knowledge that his conduct will
obstruct, impede, impair, prevent or interfere with the
administration of criminal justice, he intimidates or attempts to
intimidate any victim or witness to . . . refrain from informing or
reporting to any law enforcement officer . . . any information
relating to the commission of a crime.

18 Pa.C.S.A. § 4952(1). Relatedly, a person is guilty of retaliation against a

witness or victim if “he harms another by any unlawful act or engages in a

course of conduct or repeatedly commits acts which threaten another in

retaliation for anything lawfully done in the capacity of witness[.]” 18

Pa.C.S.A. § 4953(a).

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On August 10, 2014, Walker, without permission, entered the victim’s

home. Walker, who was wearing a ski mask and gloves, brandished a pistol,

which he pointed at the victim’s head. Walker removed his ski mask, and

interrogated the victim about whether the victim had slept with a repair

person with whom the victim had contracted. The victim denied the

allegations, to no avail; for approximately seven hours, Walker beat various

areas of the victim’s body and face with his pistol. Following the assault, the

victim experienced side effects symptomatic of a concussion and suffered

internal bleeding, spleen lacerations, substantial bruising, and ruptured blood

vessels. At the time of trial, the victim had not fully recovered from the

injuries inflicted by Walker. At some point during the time Walker was present

in the victim’s home, he forced the victim to perform oral sex on him. The

victim complied with Walker’s demand to perform oral sex because he

threatened the victim with his pistol. Walker argues that there is no evidence

to corroborate the victim’s testimony with regard to IDSI, but the victim’s

testimony alone is sufficient to sustain Walker’s conviction for IDSI. Owens,

supra.

Before Walker brought the victim to the hospital, the victim noticed duct

tape in a bag Walker had brought with him. The presence of gloves, a black

mask, duct tape and a firearm is sufficient for the jury to conclude that Walker

had already formed the intent to assault the victim physically and sexually

prior to entering the home. See Commonwealth v. Simpson, 462 A.2d

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821, 823-25 (Pa. Super. 1983) (sustaining burglary conviction where

defendant approached victim’s bed and threatened her with weapon).

On September 2, 2014, the victim reported the August 10, 2014

incident to police. The next day, Walker burglarized two daycare centers

owned and operated by the victim. The Wadsworth daycare center sustained

fire damage and the Fifth Street daycare center sustained damage from

vandalism. On the charges of burglary, the jury considered the following: (1)

video of Walker walking towards a vehicle parked adjacent to the Wadsworth

Street Daycare Center; (2) video of Walker in possession of artwork taken

from the Wadsworth Street Daycare Center office; (3) the proximity of the

Wadsworth Street Daycare Center to the Fifth Street Daycare Center; (4) the

victim’s identification of Walker from the aforementioned video footage; and

(5) the time proximity of the burglaries to the victim’s police report.

Additionally, the victim testified that Walker admitted that he burglarized the

Fifth Street Daycare Center and vandalized existing structures within. Walker

also admitted to the victim that he set the Wadsworth Street Daycare Center

ablaze. The fire damage proved catastrophic – following the fire, the victim

never opened the daycare center for business.4

____________________________________________

4 Walker baldly asserts, without citation to the record, that the Commonwealth
argued he committed arson with a person present, 18 Pa.C.S.A. § 3301(a)(1).
The record belies Walker’s argument. The jury instructions and Walker’s
sentencing hearing transcripts inconvertibly show the trial court instructed the
jury and the jury convicted Walker of arson under section 3301(c)(1), not
section 3301(a)(1).

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Walker also challenges his four convictions of intimidation of a witness

and three convictions of retaliation against a witness. Specifically, Walker

contends that because he did not commit the acts underlying the intimidation

and retaliation charges, a jury cannot find him guilty of the derivative

offenses. Additionally, he argues that because the jury acquitted him of the

predicate offenses stemming from a drive-by-shooting of the victim’s brother’s

home, he is innocent of attempting to retaliate or intimidate the victim and

the victim’s family. Walker’s argument is without avail. The evidence was

sufficient to sustain all of the foregoing convictions.

Testimony established that when Walker was taking the victim to the

hospital following the August 10, 2014 assault, he stated that if the victim

revealed that he committed an assault, he knew where the victim’s family

lived. He also instructed the victim to lie about the cause of the injuries.

Furthermore, the same day Walker perpetrated the two burglaries and arson,

he orchestrated a drive-by-shooting on the victim’s brother’s residence.

Walker later confessed to the victim that he was responsible for the shooting.

Walker’s burglaries and his orchestration of a drive-by-shooting were

consistent with prior threats he made to dissuade the victim from reporting

the August 10, 2014 assault to police. In light of the circumstances, it was

reasonable for the jury to conclude Walker’s prior threats were credible.

Furthermore, Walker’s acquittal on the charge of discharging a firearm into an

occupied structure, 18 Pa.C.S.A. § 2707.1, does not preclude a conviction for

retaliation against a witness; the Commonwealth was not required to prove

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the elements of section 2707.1 to prove he retaliated against the victim. See

Commonwealth v. Miller, 35 A.3d 1206, 1212-13 (Pa. 2012) (acquittal of

predicate offense does not preclude conviction for crime that does not require

commission of predicate offense as element of crime). Moreover, the

aforementioned time proximity of the burglaries and arson to the victim’s

report to police indicate the offenses were retaliatory. In light of the forgoing,

Walker’s claims that the evidence was insufficient to sustain his convictions

on all charges warrants no relief.

Walker next claims that his convictions were against the weight of the

evidence. Specifically, Walker challenges the credibility of several witnesses

and points to various discrepancies between evidence introduced at trial by

the Commonwealth and evidence not of record.

A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the jury is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses, and a new trial based on a weight of
the evidence claim is only warranted where the jury’s verdict is so
contrary to the evidence that it shocks one’s sense of justice. In
determining whether this standard has been met, appellate review
is limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (quotation

marks and citations omitted).

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Walker first argues that fatal discrepancies exist between evidence

introduced at trial and both grand jury testimony and statements made to

detectives. However, weight of the evidence claims concern only evidence

presented to the fact-finder, and thus, a trial court’s failure to consider

evidence not of record (i.e., grand jury testimony, statements to detectives)

does not constitute an abuse of discretion. See Rozanc v. Urbany, 664 A.2d

619, 622 (Pa. Super. 1995) (appellant’s request for new trial should be

granted based upon evidence offered at trial).

Walker’s remaining weight claims all relate to the credibility of

witnesses, primarily the victim. The jury is the “sole arbiter of the credibility

of . . . witnesses.” Commonwealth v. Jacoby, 170 A.3d 1065 (Pa. 2017).

Witness credibility includes “questions of inconsistent testimony and improper

motive.” Id. (citation omitted). “A jury is entitled to resolve any

inconsistencies in the Commonwealth’s evidence in the manner that it sees

fit.” Id. (citation omitted).

Here, the jury believed the victim’s testimony; this was not shocking.

It was within the purview of the jury to conclude that any former inconsistent

statements (e.g., the statement to medical professionals that the victim

sustained the injuries because the victim was ‘jumped’ by a group of women)

were the result of Walker’s intimidation and/or undue influence. Therefore,

we find no abuse of discretion in the trial court’s denial of Walker’s post-

sentence motion challenging the weight of the evidence.

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Walker next claims that admission into evidence of his prior acquitted

misconduct was improper, arguing: (1) that admission of the evidence with

respect to his assault of a minor violated the prohibition on double jeopardy;

and (2) that the trial court improperly admitted prior bad act evidence under

Pa.R.E. 404(b).

The standard or review employed when faced with a challenge to
the trial court’s decision as to whether or not to admit evidence is
well settled. 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 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) (quoting

Commonwealth v. Bishop, 936 A2d 1136, 1143 (Pa. Super. 2007) (citation

omitted)).

First, Walker contends that the admission of prior bad act evidence

violated the prohibition on double jeopardy because a jury previously

acquitted him of criminal charges stemming from the misconduct proffered by

the Commonwealth as prior bad act evidence. However, “[a]n acquittal in a

criminal case does not preclude the [Commonwealth] from re-litigating [an]

issue when it is presented in a subsequent action governed by a lower

standard of proof.” Dowling v. United States, 493 U.S. 342, 349 (1990).

Instantly, Walker filed a motion in limine to preclude the Commonwealth

from proffering prior bad act evidence pursuant to Rule 404(b). “[W]here a

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motion to suppress has been filed, the burden is on the Commonwealth to

establish by a preponderance of the evidence that the challenged evidence

is admissible.” Commonwealth v. DeWitt, 608 A.2d 1030, 1031 (Pa. 1992)

(emphasis added). Here, the court needed only find that Walker committed

the prior crime by a preponderance of the evidence, not beyond a reasonable

doubt. Therefore, the Commonwealth’s proffer of such evidence did not

violate the double jeopardy clause.

Second, Walker avers that the trial court improperly admitted evidence

of prior bad acts, i.e., assault charges stemming from domestic incidents,

under Rule 404(b).

Instantly, the Commonwealth argues that Walker’s Rule 1925(b)

statement was overly vague, and thus he failed to preserve his Rule 404(b)

claim in his Pa.R.A.P. 1925(b) statement. In support of its position, the

Commonwealth cites Commonwealth v. Lemon, 804 A.2d 34, 38 (Pa.

Super. 2002) (finding defendant waived certain claims because he “made only

a very general and vague 1925(b) statement . . . without discussing the

specific reasons [he] raised in his brief.”). Walker’s Rule 1925(b) statement

states, in relevant part, as follows:

The testimony of two female witnesses who were involved in prior
incidents with [Walker] was highly prejudicial and should have
been barred by the trial court.

Rule 1925(b) Statement, 3/10/17. Handwritten next to this sentence is

“404(b).” Here, the trial court addressed, to the best of its ability, the merits

of Walker’s claim – however, the trial court’s decision to do so does not

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constrain us to address Walker’s overly vague issue. See 202 Island Car

Wash, L.P. v. Monridge Const., Inc., 913 A.2d 922, 925 (Pa. Super. 2006)

(when appellant fails to identify, in vague statement of matters complained

of, specific issue appellant wants to raise on appeal, issue is waived, even if

trial court guesses correctly and addresses issue in opinion in support of

order); see Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super.

2002) (concise statement of matters complained of on appeal, which is too

vague to allow court to identify issues raised on appeal, is functional

equivalent to no concise statement at all; even if trial court correctly guesses

issues appellant raises on appeal and writes opinion pursuant to that

supposition, issue is still waived). Accordingly, we find Walker’s Rule 404(b)

issue waived.5 Lemon, supra.

In Walker’s fourth claim on appeal, he avers that no probable cause

existed to support his arrest, and thus, the trial court must vacate his

convictions. This claim is moot – any possible defect in his arrest warrant was

____________________________________________

5 Even if Walker had not waived this issue, he is entitled to no relief. Evidence
of prior bad acts is admissible if it is “offered for a valid purpose such a proving
the existence of a common scheme[.]” Commonwealth v. Arrington, 86
A.3d 831, 842 (Pa. 2014). A common scheme exists “where there is a striking
similarity – or logical connection – between the proffered prior bad acts and
the underlying charged crime.” Commonwealth v. Hicks, 156 A.3d 1114,
1125 (Pa. 2017). “‘Sufficient commonality factors’ between the other incident
and the underlying crime ‘dispels the notion that they are merely coincidental
and permits the contrary conclusion that they are so logically connected they
share a perpetrator.’” Id. (citation omitted). The prior bad act evidence
introduced in the Commonwealth’s case are admissible.

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cured by his conviction based upon evidence that established guilt beyond a

reasonable doubt. See Commonwealth v. Krall, 304 A.2d 488, 490 (Pa.

1973). Once the trial court entered Walker’s verdict, his challenge to the

arrest warrant became moot. Commonwealth v. Owens, 649 A.2d 129,

135 (Pa. Super. 1994).

Walker next avers that the Commonwealth’s prosecutorial misconduct

merits a mistrial.

Our Supreme Court has defined prosecutorial misconduct as follows:

The phrase “prosecutorial misconduct” has been so abused as to
lose any particular meaning. The claim either sounds in a specific
constitutional provision that the prosecutor allegedly violated or,
more frequently, like most trial issues, it implicates the narrow
review available under Fourteenth Amendment due process. See
Greer v. Miller, 483 U.S. 756, 765[](1987) (“To constitute a due
process violation, the prosecutorial misconduct must be of
sufficient significance to result in the denial of the defendant’s
right to a fair trial.”) (internal quotation marks omitted);
Donnelly v. DeChristoforo, 416 U.S. 637, 643[](1974) (“When
specific guarantees of the Bill of Rights are involved, this Court
has taken special care to assure that prosecutorial conduct in no
way impermissibly infringes them.”). However, “[t]he Due
Process Clause is not a code of ethics for prosecutors; its concern
is with the manner in which persons are deprived of their liberty.”
Mabry v. Johnson, 467 U.S. 504, 511[](1984). The touchstone
is the fairness of the trial, not the culpability of the prosecutor.
Smith v. Phillips, 455 U.S. 209, 219[](1982).

Commonwealth v. Cox, 983 A.2d 666, 685 (Pa. 2009).

Here, Walker alleges that the Commonwealth committed misconduct in

three ways: (1) by characterizing three text messages used to impeach him

as coming from a forensic report; (2) by expressing personal views about his

veracity at closing argument; and (3) by introducing pictures of the victim’s

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basement. However, Walker has waived all three of these claims by failing to

make a contemporaneous objection to these alleged misconducts at trial.

Pa.R.A.P. 302(a); see Commonwealth v. Powell, 956 A.2d 406, 423 (Pa.

2008) (finding prosecutorial misconduct claims waived by counsel’s failure to

contemporaneously object at trial).6

Walker next argues that counsel was ineffective. Absent certain specific

circumstances, claims of ineffective assistance of counsel are to be deferred

to Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546, review.

Commonwealth v. Holmes, 79 A.3d 562, 577 (Pa. 2013). Therefore, trial

courts should not entertain claims of ineffectiveness upon post-verdict

motions and such claims should not be reviewed upon direct appeal. Id. An

exception exists to the general rule requiring a defendant to wait until

collateral review to raise claims of ineffective assistance of trial counsel, so as

to permit raising of such claims on direct appeal, when claims have been

raised and fully developed at a hearing in trial court. Commonwealth v.

Bomar, 826 A.2d 831, 855 (Pa. 2003).

Here, Walker has failed to invoke an exception meriting review of his

ineffective assistance of trial counsel claim on direct appeal. Moreover, Walker

has not presented this issue to the trial court, and thus, this issue has not

been fully developed at a hearing or otherwise. Accordingly, we are

____________________________________________

6In any event, Walker does not forward any cogent argument as to why the
Commonwealth’s actions and/or trial strategy constitutes prosecutorial
misconduct.

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constrained to conclude that Walker’s issue is not yet ripe, and that he must

defer this claim for collateral review. Holmes, supra.

In Walker’s seventh claim, he argues the considerable delay between

his conviction and sentencing prejudiced his due process rights.

To determine whether a defendant’s speedy trial or due process
rights were violated, the trial court should consider: (1) the length
of the delay falling outside of the 60-day-and-good-cause
provisions for incarceration without sentence; (2) the reason for
the improper delay; (3) the defendant’s timely or untimely
assertion of his rights; and (4) any resulting prejudice to the
interests protected by his speedy trial and due process rights. Our
approach has always been to determine whether there has in fact
been prejudice, rather than to presume that prejudice exists. The
court should examine the totality of the circumstances, no one
factor is necessary, dispositive, or of sufficient importance to
prove a violation.

Commonwealth v. Still, 783 A.2d 829, 832 (Pa. Super. 2011) (quoting

Commonwealth v. Anders, 699 A.2d 1258, 1264 (Pa. Super. 1997) (citation

omitted) (abrogated on different grounds)).

Here, the trial court thoroughly explained the reasons for each

continuance, the majority of which were due to either preparation of Walker’s

defense or case congestion:

[Walker] was [] sentenced 519 days after conviction[.] . . . On
July 27, 2015, [Walker’s] sentencing was continued and the
record is silence as to the reason. However, it is presumed the
continuance was necessary to obtain a Megan’s Law Assessment
which usually takes [90] to [130] days to complete. [The trial
court] was on trial on September 18, 2015, and could not reach
the matter so it was continued once again. On November 20,
2015, sentence was continued because [defense] counsel was on
trial and unavailable. The timely Sentencing Rule was waived. On
February 12, 2016, sentencing was continued because the
Commonwealth’s doctor was not available and counsel was

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permitted to withdraw. The withdrawal of counsel is particularly
important because it was caused by [Walker]. Threats made by
[Walker] to his counsel included a threat to sue civilly, improper
representation, intentionally undermining his case to secure a
guilty verdict and colluding with the prosecutor to have him
convicted. New counsel was ordered and appointed and the
Timeliness Rule was waived. A March 3, 2016 listing resulted in a
continuance since this court was not sitting on that date. Then on
June 10, 2016, the matter was continued because new counsel
was unavailable. Once again, the Timeliness Rule was waived.
Finally, on August 26, 2016, [] sentencing was continued due to
this court being on trial. [Walker] was sentenced on September
15, 2016.

Trial Court Opinion, 6/25/17, at 10-11. The trial court aptly detailed the

reasons for delays in sentencing extending beyond the 60-days-and-good-

cause provisions for incarceration without sentence. Furthermore, Walker has

forwarded no colorable argument that the delay prejudiced his defense and

we do not discern from the circumstances that any such prejudice exists.

Therefore, he is entitled to no relief. Still, supra.

In Walker’s next claim on appeal, he challenges the discretionary

aspects of his sentence. Specifically, Walker argues the trial court relied on

impermissible sentencing factors and that it improperly imposed consecutive

sentences. Our standard of review regarding claims of the discretionary

aspects of sentence is well settled:

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.

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Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted).

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

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004). To determine if this Court may review the discretionary aspects of a

sentence, we employ a four-part test:

(1) [W]hether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify [the] sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (internal

citations omitted).

Here, Walker filed a timely notice of appeal, and preserved his issues in

a motion for reconsideration of sentence. Further, Walker’s brief includes a

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Accordingly, we now determine whether Walker has raised

a substantial question for review and, if so, proceed to a discussion of the

merits of the claim. See Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki,

522 A.2d 17 (Pa.1987).

“A substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the [Sentencing] [C]ode or is contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v.

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Christine, 78 A.3d 1, 10 (Pa. Super. 2013) (internal citations omitted); see

also 42 Pa.C.S.A. § 9781(b). “We determine whether a particular case raises

a substantial question on a case-by-case basis.” Id. A bald or generic

assertion that a sentence is excessive does not raise, by itself, a substantial

question justifying this Court’s review of the merits of the underlying claim.

Id.; see also Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super.

2013).

Walker first avers his sentences are unreasonable because the trial court

imposed them consecutively. Under 42 Pa.C.S.A. § 9721, the sentencing

court has discretion to impose sentences consecutively or concurrently and,

ordinarily, a challenge to this exercise of discretion does not raise a substantial

question. Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa. Super.

2006). “The imposition of consecutive, rather than concurrent, sentences may

raise a substantial question only in the most extreme circumstance, such as

where the aggregate sentence is unduly harsh, considering the nature of the

crimes and the length of the imprisonment.” Commonwealth v. Radecki,

180 A.3d 441, 469 (Pa. Super. 2018) (citation omitted). Furthermore,

“[t]here is no question that the trial judge may, at [its] discretion, impose

consecutive sentences for multiple convictions.”

Walker argues that his sentence amounts to a life term and that the

multiple sentences all stem from a single scenario. His first argument is

without avail. Simply put, this is not a case where the trial court’s exercise of

discretion resulted in a sentence that is grossly disparate to Walker’s conduct

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or that “viscerally appear[s] [to be] patently unreasonable.”

Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, (Pa. Super. 2010).

The latter argument is untrue – Walker’s crimes stem from four distinct

incidents. Accordingly, we conclude that Walker fails to raise a substantial

question with respect to his excessiveness claim premised on the imposition

of consecutive sentences.

Walker also argues that the sentencing court relied on impermissible

sentencing factors. When fashioning a sentence, the sentencing court “shall

follow the general principle that the sentence imposed should call for

confinement that is consistent with the protection of the public, the gravity of

the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. §

9721(b). The sentencing court may consider the defendant’s misconduct

associated with his crimes, even if it did not convict him of the crime itself.

See e.g. Commonwealth v. Ali, 149 A.3d 29, 39 (Pa. 2016). Additionally,

where the trial court has the benefit of a pre-sentence investigation (“PSI”)

report, we shall continue to presume that the sentencing judge was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors. Commonwealth v.

Devers, 546 A.2d 12, 18 (Pa. 1988).

Walker fails to raise a substantial question that the sentencing court

used impermissible considerations. Although Walker’s jury acquitted him of

discharging a firearm into an occupied structure, it still convicted him of

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several charges arising from the same incident. The record supports the

court’s determination that Walker shot at victim’s brother’s house, and that

the brother’s young child was at home at the time. Attempting to intimidate

victim’s family with a firearm, while a child was in the house, substantially

relates to the gravity of the offense and to the impact on the victim and the

community, and thus this consideration was proper, particularly in light of the

fact that the sentencing court also had the benefit of a PSI.

Lastly, Walker avers that the trial court erred in designating him a sexual

predator at sentencing without a hearing. Contrary to Walker’s claim, the trial

court, in fact, did not designate Walker a sexual predator. Therefore, this

claim is moot.7

Judgment of sentence affirmed. Motion for extraordinary relief denied.8

____________________________________________

7 The trial court did not require Walker to register as a sexually violent
predator (“SVP”); at sentencing, the Commonwealth withdrew its request for
a hearing to determine if Walker was a SVP. N.T. Sentencing, 9/15/16, at 4.
The trial court, however, did designate Walker a Tier III offender under the
Sexual Offender and Notification Act (“SORNA”), 42 Pa.C.S.A. § 9799.10-
9799.41, thus, subjecting him to a lifetime registration requirement pursuant
to SORNA. N.T. Sentencing, 9/15/16, at 46-47. However, Walker did not
challenge his designation as a Tier III offender in his Rule 1925(b) statement
or brief, and thus, he has waived any claim challenging his lifetime registration
requirement on appeal. Commonwealth v. McMullen, 745 A.2d 683, 689
(Pa. Super. 2000) (finding issues waived where appellant failed to develop
any argument for the claims and noting that meaningful appellate review is
impossible in such a situation).

8 Walker filed a motion for extraordinary relief requesting discovery of
documents relating to four separate arrest warrants in this case. However, as

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/23/18

____________________________________________

the issues relating to said arrest warrants are moot, we deny his motion. See
Memorandum, at 15.

Additionally, Walker has filed a motion for writ of mandamus, in which he asks
the lower court to provide him with what he characterizes as a “forensic text
analysis report.” Walker alleges that the “forensic text analysis report” may
contain exculpatory evidence that the Commonwealth withheld from the
defense. Walker premises his theory that such a report would reveal the
existence of exculpatory evidence on his mistaken belief that his arrest
warrant was deficient/illegal. However, as previously stated, any issues
relating to his arrest warrant are moot. Additionally, in Walker’s writ of
mandamus, he also apparently asks the lower court to provide the grand jury
indictment presentment testimony of the victim and the two investigating
detectives. As far as this Court can discern, Walker believes the
Commonwealth failed to prove by a preponderance of the evidence that he
was culpable for the aforementioned crimes. However, a jury convicted
Walker of all the aforementioned crimes, and thus, this motion is moot.
Accordingly, we hereby deny Walker’s petition for writ of mandamus.

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