Com. v. Pastrana, G.

J-S24034-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GABRIEL PASTRANA :
:
Appellant : No. 3056 EDA 2018

Appeal from the Judgment of Sentence May 17, 2018
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-XX-XXXXXXX-2017

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 12, 2019

Appellant Gabriel Pastrana appeals from the judgment of sentence

entered on May 17, 2018, in the Court of Common Pleas of Monroe County as

made final by the denial of post-sentence motions on September 13, 2018.1

We affirm.

The trial court aptly set forth the relevant facts and procedural history

herein as follows:

[Appellant] was convicted by jury on February 8, 2018 of
two criminal offenses and by the [c]ourt of several summary
____________________________________________

1 We note that Appellant purported to appeal the “Order and Opinion imposed
in this matter on September 13, 2018,” wherein the trial court denied his post-
sentence motions. In a criminal action, appeal properly lies from the judgment
of sentence made final by the denial of post-sentence motions. See
Commonwealth v. Shamberger, 788 A.2d 408, 410 (Pa.Super. 2001). We
have corrected the caption accordingly.

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S24034-19

criminal offenses. [Appellant] was convicted by jury of Count III,
75 Pa.C.S. §3802(a)(1), Driving Under the Influence of Alcohol -
General Impairment, Third Offense; and Count IV, 75 Pa. C.S.
§3742.1(a). Accident Involving Death or Injury-Not Properly
Licensed. Count I and II of the Criminal Information were
withdrawn by the Commonwealth at trial. [Appellant] was found
guilty by the [c]ourt of the following summary offenses: 75 Pa.
C.S. §1543(b)(1), Driving With A Suspended License Pursuant to
§3802/1547(b)(1); 75 Pa. C.S. §3323(b), Duties at Stop Sign; 75
Pa. C.S. §3361, Driving at Safe Speed; 75 Pa. C.S. §3714(a),
Careless Driving; 75 Pa. C.S. §3736(a), Reckless Driving.
The facts of this case were testified to during trial. The
underlying act involved a two-vehicle accident which occurred late
on February 4, 2017 into early morning February 5, 2017. That
time period coincided with Super Bowl Sunday. N.T., 2/8/18, p.
19. During half-time of the game, Thomas Cunningham drove his
wife from their home in Monroe County to St. Luke's Hospital-
Anderson Campus in Bethlehem Twp. to retrieve her vehicle. N.T.,
2/8/18, p.21. On the return trip Mr. Cunningham was driving by
himself along Old Route 115 in the area of Saylorsburg, Monroe
County, PA. N.T. 2/8/18, p. 22. Old Route 115 and Hamilton South
Road intersect in the vicinity of Saylorsburg with a stop sign facing
drivers turning from Hamilton South onto Old Route 115. N. T
2/8/18, p.70. There is no stop sign on Old Route 115. N.T.,
2/8/18, p.70. As Mr. Cunningham approached the intersection he
observed a vehicle that did not appear to be slowing for the stop
sign on Hamilton South. NJ., 2/8/18, p.22. Fearing the oncoming
driver would run the stop sign and strike him, Mr. Cunningham
sped up. N.T., 2/8/18, p. 22. Nevertheless, a collision occurred.
Mr. Cunningham remained in his vehicle until assistance arrived
and was later taken to the hospital with a broken rib and
contusions to his knee, ankle, and lower leg. N.T., 2/8/18, p.30-
31.
Meanwhile, the occupants of the other vehicle, [Appellant]
and his 18 year-old brother, Elson Pastrana, exited their vehicle.
[Appellant] and Elson Pastrana were returning from a Super Bowl
Party at the home of friends of Elson Pastrana's girlfriend's
parents. N.T., 2/8/18, p.42. The car they were in was owned by
and registered to [Appellant]. N.T., 2/8/18, p. 156. [Appellant]
estimated that he had consumed approximately six beers during
the party and at least one shot of clear liquor. N.T., 2/8/18.,
p.159. An ambulance operated by EMT Joyce Schuster arrived on
the scene prior to the arrival of Pennsylvania State Troopers Justin
S. Magluilo and Kevin Kreidler. During the course of the troopers'

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investigation, [Appellant] and his brother were separated. N.T.,
2/8/18, p.118. By all accounts of the testimony offered at trial,
[Appellant] was severely intoxicated at this point. Trooper Kreidler
interviewed Elson Pastrana at the scene. N.T., 2/8/18, p. 118.
Elson Pastrana initially stated he was operating the vehicle at the
time of the accident, but upon further questioning by Trooper
Kreidler, admitted [Appellant] had actually been operating the
vehicle. N.T., 2/8/18, p.118. Elson Pastrana then also told Trooper
Magluilo that he was the passenger and [Appellant] was the
driver. N.T., 2/8/18, p.72. [Appellant] was requested to perform
field sobriety tests which he refused. N.T., 2/8/18, p. 77. At that
point, [Appellant] was arrested and placed in the back of Trooper
Kreidler's car on suspicion of driving under the influence. Trooper
Magluilo then gave Elson Pastrana a ride to his girlfriend's home.
N.T 2/8/18, p.78.
[Appellant] was sentenced by the [c]ourt on May 17, 2018.
As to Count III, [Appellant] was sentenced to a minimum of three
months[’] incarceration and maximum of twelve months plus fines
and costs. As to Count IV, [Appellant] was sentenced to a
minimum of three months[’] incarceration and a maximum of six
months plus fines and costs. These two sentences were ordered
to run consecutively. As to the 75 Pa. C.S. §1543(b) violation,
[Appellant] was sentenced to the statutorily required minimum
sixty days[’] incarceration to run concurrent to the sentences in
Count III and IV. [Appellant] was ordered to pay fines and costs
for the remainder of the summary offenses. [Appellant] filed
timely Post-Sentence Motions on May 25, 2018. A hearing was
held on [Appellant’s] motions on June 25, 2018, at which time the
Court heard argument from defense counsel and the
Commonwealth.

Trial Court Opinion, filed 9/13/18, at 1-3.

On September 13, 2018, the trial court denied Appellant’s post-

sentence motions, and on October 12, 2018, Appellant filed his notice of

appeal. On October 15, 2018, the trial court ordered Appellant to file a concise

statement of the matters complained of on appeal, and Appellant complied on

October 30, 2018. On that same date, the trial court filed its Statement

Pursuant to Pa.R.A.P. 1925(a) wherein it stated it had adequately addressed

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in its September 13, 2018, Opinion and Order the issues Appellant raised in

his Statement of Matters Complained of Pursuant to Pa.R.A.P. 1925(b).

In his appellate brief, Appellant presents the following questions for this

Court’s review:

1. Should a judgment of acquittal be granted because the
jury verdict was against the weight of the evidence,
which was insufficient to convict, and the verdict was
based upon conjecture?

2. Should Appellant be granted a new trial because the
Commonwealth presented two eyewitnesses at trial,
one of whom was not identified in the discovery
materials and the other, who was listed as an
eyewitness, made a statement regarding the Appellant
which was not included in the discovery materials?

Appellant’s Brief at 4 (unnecessary capitalization omitted).2

In both his Statement of Matters Complained of Pursuant to Pa.R.A.P.

1925(b) and his appellate brief, Appellant conflates challenges to the

sufficiency and weight of the evidence in arguing that the sole witness who

could identify Appellant as the driver of the vehicle was his brother, Elson

Pastrana, who testified that he, not Appellant, was operating the vehicle at

the time of the collision. However, this Court has stressed that challenges to

the weight and sufficiency of the evidence are distinct. Commonwealth v.

Richard, 150 A.3d 504, 517–18 (Pa.Super. 2016). As we have explained,

[a] challenge to the weight of the evidence is distinct from a
challenge to the sufficiency of the evidence in that the former
concedes that the Commonwealth has produced sufficient
____________________________________________

2 The Commonwealth has not filed an appellate brief.

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evidence of each element of the crime, “but questions which
evidence is to be believed.” Commonwealth v. Charlton, 902
A.2d 554, 561 (Pa.Super. 2006), appeal denied, 590 Pa. 655, 911
A.2d 933 (2006). “A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion.”
Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1055
(2013). “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.” Id. (citation omitted). “It has often
been stated that a new trial should be awarded when the jury's
verdict is so contrary to the evidence as to shock one's sense of
justice and the award of a new trial is imperative so that right may
be given another opportunity to prevail.” Id.

Richard, supra, at 516–17. In addition, in reviewing a challenge to the

weight of the evidence, this Court has stated:

The weight of the evidence is 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 witness. An appellate court cannot
substitute its judgment for that of the finder of fact. Thus, we may
only reverse the lower court's verdict if it is so contrary to the
evidence as to shock one's sense of justice. Moreover, where the
trial court has ruled on the weight claim below, an appellate
court's role is not to consider the underlying question of whether
the verdict is against the weight of the evidence. Rather, appellate
review is limited to whether the trial court palpably abused its
discretion in ruling on the weight claim. Commonwealth v.
Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003).

Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013), appeal

denied, 622 Pa. 755, 80 A.3d 774 (2013).

Herein, Appellant challenged the weight of the evidence to support his

convictions in a timely post-sentence motion which the trial court denied;

therefore, he properly raised this challenge before the trial court. See

Pa.R.Crim.P. 607(A)(1)-(3) (claim the verdict was against the weight of the

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evidence shall be raised before or after sentencing). Notwithstanding,

although he claims the “verdict was against the weight of the evidence” he

provides no legal argument or support to develop this claim, for in his concise

statement and the first question presented in his appellate brief, he further

states that evidence was “insufficient to convict.” Also, in the first sentence

of the argument portion of his brief, Appellant states his “first claim is a

challenge to the sufficiency of the evidence[,]” and he cites to caselaw

pertaining only the sufficiency of the evidence thereafter. See Brief for

Appellant at 13-16. In addition, the trial court viewed Appellant’s challenge

as to the sufficiency of the evidence. See Trial Court Opinion, filed 9/13/18,

at 4. As such, Appellant has waived a challenge to the weight of the evidence

on appeal due to his failure to develop it fully in his brief. See

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super. 2007), appeal

denied, 603 Pa. 679, 982 A.2d 509 (2017) (noting failure to develop

adequately an argument in an appellate brief may result in waiver of the claim

under Pa.R.A.P. 2119).

Even if Appellant had developed a proper challenge to the weight of the

evidence, such a claim provides him no basis for relief. When, as herein, the

challenge to the weight of the evidence is predicated on the credibility of trial

testimony, this Court’s review of the trial court's decision is extremely limited.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.Super. 2009), appeal

denied, 607 Pa. 690, 3 A.3d 670 (2010). “On issues of credibility and weight

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of the evidence, an appellate court defers to the findings of the trial [court],

who has had the opportunity to observe the proceedings and demeanor of the

witnesses.” Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa.Super.

2002) (citations omitted), appeal denied, 573 Pa. 663, 820 A.2d 703 (2013).

Thus, generally, unless the evidence is so unreliable or contradictory as to

make any verdict based thereon pure conjecture, these types of claims will be

rejected on appellate review. Commonwealth v. Trippett, 932 A.2d 188,

198 (Pa.Super. 2007).

The trial court opined on the credibility of the witnesses as follows:

Upon careful review of the trial transcript and exhibits
produced in this case we find that the Commonwealth provided
sufficient evidence that [Appellant] was operating his vehicle on
the night of the accident. [Appellant] is correct that no eyewitness
was able to definitively testify that he was driving. However, the
Commonwealth may establish its case through circumstantial
evidence. Com. v. Wilson, 225 Pa. Super. 513, 312 A.2d 430, 432
(1973). "Our jurisprudence does not require fact-finders to
suspend their powers of logical reasoning or common sense in the
absence of direct evidence." Com. v. Teems, 2013 PA Super 147,
74 A.3d 142, 148 (2013).
Both [Appellant] and Elson Pastrana claimed at trial that
[Appellant] had not been driving. Elson Pastrana stated that he
had told one of the troopers that he was the designated driver,
but that the trooper "got up in [his] face and [the trooper] was
questioning [him.]." N.T., 9/8/18, p.45. Elson Pastrana further
testified that he felt disorientated and threatened and finally just
agreed with the trooper in implicating his brother so that he could
leave and go home. N.T., 9/8/18, p.45. However, Trooper Kreidler
denied threatening Elson Pastrana. N.T., 9/8/18, p.135. Trooper
Kreidler explained that he did not believe Elson Pastrana's
explanation because in his experience the crash scene did not lend
itself to have been caused by a sober driver, and that it was not
unusual for him to further question someone who did not appear
truthful at the scene of an accident. N.T., 9/8/18, p.1 18, 137
Trooper Kreidler also stated that while questioning Elson Pastrana,

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he would not meet his eyes and was answering very quietly. N.T
9/8/18, p.118.
This information alone could cast sufficient doubt on the
validity of Elson Pastrana's testimony at trial for the jury to have
disregarded it. By Elson Pastrana's own admission, he gave two
conflicting statements to the troopers who responded to the
accident. The [c]ourt's charge advised the jury to consider
whether testimony was "uncertain or confused, self-contradictory
or evasive." N.T., 9/8/18, p.204. Further, the jury was told to
consider whether a witness had any motive that may have
affected [his or her] testimony. N.T., 9/8/18, p.204. As the
Commonwealth pointed out, Elson Pastrana had a very real
interest in protecting his brother from conviction and possible
imprisonment, casting his testimony into doubt. As already stated,
"[t]he 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." Com. v. Johnson at 262-263
(emphasis added). This was also an instruction given to the jury.
The validity of Elson Pastrana's testimony was further called
into doubt by Trooper Magluilo's testimony. Trooper Magluilo
testified that during all of his interactions with the witness, Elson
Pastrana stated that he had been the passenger in [Appellant’s]
vehicle and [Appellant] was driving. N.I 2/9/18, p.72. Also, upon
questioning by the Commonwealth, Elson Pastrana denied making
any statements about Defendant to Trooper Magluilo while being
transported to his girlfriend's home. N.T., 2/8/18, 47-48.
However, Trooper Magluilo stated that during the ride, Elson
Pastrana had a "disappointed look on his face" and repeatedly
mentioned that he did not understand why [Appellant] kept "doing
things like this" and making mistakes. N.T., 2/9/18, p.79. Again,
this testimony could clearly call into question Elson Pastrana's
statements made at trial and lead the jury to disbelieve him. The
jury was free to accept the testimony of Elson Pastrana at trial, or
the troopers' testimony at trial, or some or none. The jury chose
to believe the troopers' testimony in finding [Appellant] guilty.
In addition to the testimony of Elson Pastrana and the
troopers, the Commonwealth presented two other witnesses that
reported odd behavior between [Appellant] and Elson Pastrana at
the accident scene. Mr. Cunningham reported that after the
accident, while still in his vehicle, [Appellant] approached his
vehicle and began demanding to know how much Mr. Cunningham
had been drinking. N.T., 2/8/18, p.31-32. As the Commonwealth
suggested during its closing, and the jury could have inferred, this

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was odd behavior from someone who had just been in an accident.
It is possible that with the sum of all of the evidence before it, the
jury believed that [Appellant] asked Mr. Cunningham this question
in hopes that the victim had also been drinking and would not
report the accident to the police. Finally, the responding EMT, Ms.
Schuster, testified to her unusual observations of the [Appellant].
The [Appellant] physically pushed her towards Mr. Cunningham's
vehicle, was slurring his speech, and acted in a belligerent
manner. N.T., 2/8/18, p.104. While she was administering to Mr.
Cunningham, Ms. Schuster heard [Appellant] say to Elson
Pastrana "tell them you were driving. You were driving, right? Just
tell them that you were driving." NJ., 2/8/18, p.107. All of this
evidence certainly could have convinced the jury [Appellant] was
the driver, and that he was under the influence of alcohol. The
testimony conflicted in part with [Appellant’s] testimony and Elson
Pastrana's testimony, but does not mean the jury had to find it
less convincing.
In response to the evidence provided by the
Commonwealth, [Appellant] chose to testify on his own behalf
during trial. [Appellant] adamantly denied driving his vehicle the
night of the accident and stated his brother had always been the
planned designated driver. N.T., 2/8/18, p.150. [Appellant] stated
that he was using the GPS on his phone to guide his brother and
that the accident occurred when they were both looking at the
phone. N.T., 2/8/18, p.151-152. However, considering all of the
testimony as a whole, we do not find it unreasonable that the jury
disbelieved [Appellant’s] testimony. First of all, it is undisputed
that [Appellant] was severely intoxicated at the time of the
accident. Ms. Schuster, Mr. Cunningham and both troopers
reported [Appellant] showed signs of intoxication. On cross-
examination, [Appellant] admitted that when he approached Mr.
Cunningham he was still under the effects of alcohol. N.T., 2/8/18,
p. 163. Additionally, the jury viewed an MVR from Trooper
Magluilo's vehicle. In the video [Appellant] is seen speaking to the
trooper in a belligerent manner and visibly wavering back and
forth while leaning against the trooper's vehicle, unable to keep
himself upright. Commonwealth's Exhibit "5," 17:50-18:12. This
level of intoxication could easily have caused the jury to doubt
[Appellant’s] recollection of the events, especially in light of the
testimony of the other witnesses. The jury could also have chosen
to disbelieve [Appellant] and Elson Pastrana in part or in full. A
"witness's credibility is solely for the jury to determine." Com. v.
Simmons, 541 Pa. 211, 229, 662 A.2d 621, 630 (1995). Viewing
this testimony in the light most favorable to the verdict winner, it

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could clearly be inferred that there was sufficient evidence
[Appellant] had been driving and attempted to persuade his
brother to lie to the police. Therefore, we find that the
Commonwealth provided sufficient evidence at trial to sustain the
verdict.

Trial Court Opinion, filed 9/13/18, at 5-9.

After a careful review of the certified record, we would ascertain no

abuse of discretion by the trial court.

To the extent Appellant attempts to develop a challenge the sufficiency

of the evidence, we note that:

In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant's Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient. Such
specificity is of particular importance in cases where, as here, the
appellant was convicted of multiple crimes each of which contains
numerous elements that the Commonwealth must prove beyond
a reasonable doubt. Commonwealth v. Stiles, 143 A.3d 968,
982 (Pa.Super. 2016) (internal quotation marks omitted).

Commonwealth v. Richard, 150 A.3d 504, 517–18 (Pa.Super. 2016).

Herein, Appellant was convicted of multiple offenses each of which

contains numerous elements, yet his Rule 1925(b) statement does not identify

with specificity the elements of any crime or identify those which he alleges

the Commonwealth has failed to prove. On this basis alone, we could find this

issue waived. See Richard, supra.

Notwithstanding, even if Appellant had presented an adequate Rule

1925(b) statement, we would find no merit to this claim. While Appellant did

not specify the allegedly unproven element or elements of his convictions in

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his Rule 1925(b) statement, his sufficiency challenge developed in his

appellate brief stems from his position that he was not driving the vehicle, as

proven by his brother’s testimony. As stated previously, such a challenge

goes to the weight, not the sufficiency of the evidence. See Commonwealth

v. Samuel, 102 A.3d 1001, 1005 (Pa.Super. 2014), appeal denied, 635 Pa.

742, 134 A.3d 56 (2016) (stating a claim that the Commonwealth's evidence

was incredible goes to the weight, not the sufficiency, of the evidence).

Appellant next argues he should be granted a new trial because, over

objection, the Commonwealth presented the testimony of Joyce Schuster who

had not been identified in the discovery materials and Thomas Cunningham

who was listed as an eyewitness but made a statement at trial regarding

Appellant that had not been included in the discovery materials. Appellant

first maintains that Mr. Cunningham was permitted to “amplify” at trial the

information he had provided to the police to include a statement that Appellant

approached the window of his vehicle as asked Mr. Cunningham how much he

had been drinking. Appellant stresses the Commonwealth did not supplement

the discovery prior to trial, although the prosecutor indicated that he learned

of this information, which Mr. Cunningham stated he had not told police, late

the previous evening. Brief for Appellant at 17-18.

Appellant next maintains the Commonwealth’s failure to disclose the

existence of Joyce Schuster, whose testimony “is tantamount to a confession

from the Appellant, [as] it corroborates the Commonwealth’s theory of the

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case with words directly from the mouth of the Appellant” was “extremely

prejudicial” to him. Id. at 18-20. Specifically, Appellant avers “[t]he

testimony offered by Ms. Schuster was extremely prejudicial to [] Appellant

because she not only claimed that he was drunk and disorderly, even pushing

her, but also that he was attempting to convince Elson Pastrana to tell the

police that he was driving.” Id. at 19. Appellant argues that the

Commonwealth was under a continuing duty to disclose this additional

evidence, which was discovered on the eve and morning of trial, and its failure

to do so deprived him of an opportunity to reconsider his trial strategy and

entitles him to a new trial. Id. at 21-23.

This Court will reverse a trial court's decision regarding the admissibility

of evidence only when the appellant sustains the heavy burden of establishing

that the trial court has abused its discretion. An abuse of discretion will not be

found based on a mere error of judgment, but rather exists where the court

has reached a conclusion which overrides or misapplies the law, or where the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will. Commonwealth v. Frein, 2019 WL 1866731, at

*14 (Pa. Apr. 26, 2019) (citation and quotation marks omitted).

Appellant’s first argument pertains to the following exchange between

the prosecutor and Mr. Cunningham:

[The Prosecutor] Okay. Now, after this collision occurred, you
stated you weren’t able to get out of your car. But did you have
any contact or see anybody come up to your car?

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[Mr. Cunningham]: Very shortly after the impact, someone came
up to my window and was yelling into the car, How much you been
drinking? How much you been drinking?

[The Prosecutor] Okay. And how did that strike you?

[Mr. Cunningham]: I said, What? Why is somebody asking me
this?

[The Prosecutor]: And was there any other conversation with that
person?

[Mr. Cunningham]: They continued to ask me, How much you
been drinking? I said, I haven’t drank anything. Who the hell are
you? Get away from me. It was really odd.

[The Prosecutor: And who was—

[Defense Counsel]: Your Honor, may we approach?

THE COURT: Yes.

(Whereupon, the following took place outside the hearing of
the jury.)

[Defense Counsel]: I don’t have anything in discovery or in a
police report regarding this. Nothing at all regarding any
statements made by this person.

THE COURT: Uh-huh.

[Defense Counsel]: So—

[The Prosecutor]: That’s accurate. The witness told me--I talked
to him late yesterday. He told me he didn’t tell the police this.
He didn’t view it as important to the accident itself.

THE COURT: All right. Well, I’ll allow it.

[Defense Counsel]: It wasn’t in the report.

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THE COURT: You can cross-examine him on that. . . .

N.T. Trial 2/8/18, at 31-33. At no point thereafter did defense counsel ask for

a recess or continuance, nor did he otherwise express a view that the

Commonwealth had committed a discovery violation. To the contrary, he did

not respond at all when the trial court indicated Mr. Cunningham would be

subject to cross-examination on Appellant’s alleged statement to him. Id. at

33. Instead, counsel cross-examined Mr. Cunningham regarding his failure to

tell police previously that someone from the other vehicle had spoken to him

at the scene, at which time the latter indicated he could not recall being

questioned by any officer at that time. Id. at 37-39.

Initially, we note that the basis of Appellant’s objection at trial that Mr.

Cunningham’s aforementioned testimony was outside the scope of the police

report is not the same as the prosecutorial misconduct argument he advances

in his appellate brief. It is axiomatic that in order to preserve a claim for

appeal, a party must make a timely and specific objection at trial. Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”); Commonwealth v Pearson, 685 A.2d 551,

555 (Pa.Super. 1996), appeal denied, 549 Pa. 699, 700 A.2d 439 (1997) “[A]n

appellant may not raise a new theory for an objection made at trial on his

appeal[;]” see also Commonwealth v. McGriff, 160 A.3d 863, 866,

reargument denied (June 20, 2017), appeal denied, 644 Pa. 372, 176 A.3d

853 (2017) (to preserve an issue for review, a party must make a timely and

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specific objection at trial, for this Court will not consider claim on appeal not

called to trial court's attention at a time purported error could have been

corrected). Even constitutional claims are waived if they are not raised before

the trial court. Commonwealth v. Kennedy, 598 Pa. 621, 959 A.2d 916,

922 (2008) cert. denied, 556 U.S. 1258, 129 S.Ct. 2433, 174 L.Ed.2d 229

(2009) (finding Sixth Amendment issue waived where defendant failed to raise

objection on this basis at trial). The penalty of waiver is the result for failing

to object, even in capital appeals. Commonwealth v. Ballard, 622 Pa. 177,

80 A.3d 380, 406 (2013), cert. denied, 573 U.S. 940, 134 S.Ct. 2842, 189

L.Ed.2d 824 (2014). As such, we find this claim waived.

Notwithstanding the foregoing, on cross-examination, Mr. Cunningham

explained that while he may have been asked “one or two questions” by police,

he did not have extensive discussions with them, and he could not remember

the details of the conversations he might have had with the officers. N.T. at

38. He did specifically state that he “did not have any conversations with

police regarding someone speaking with [him].” Id. He indicated that he did

not reveal this information to the ADA until a “couple days ago.” This

testimony explains why such information was not in any police report and

evinces that Mr. Cunningham did not reveal it until the eve of trial; therefore,

as the trial court determined, the Commonwealth did not fail to provide

evidence or written discoverable statements within its possession or

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knowledge, because there was no written or recorded statement pertaining to

Mr. Cunningham’s conversation with Appellant to obtain.

Moreover, as one who was present at the scene of the accident, Mr.

Cunningham hardly can be deemed a surprise witness, and it is not unforeseen

that he may have observed more than the brief details noted in the police

report. Appellant subjected Troopers Magluilo and Kreidler as well as Mr.

Cunningham to a thorough cross-examination in this regard, and the jury was

free to make credibility determinations following that testimony. Finding no

error in the trial court’s evidentiary rulings in this regard, no relief is due.

Appellant next contends the Commonwealth had a continuing duty to

disclose Joyce Schuster’s anticipated testimony. Prior to her testifying at trial,

defense counsel requested an offer of proof. N.T. Trial, 2/8/18, at 97. The

Commonwealth responded by explaining that Ms. Schuster was an EMT who

responded to the scene of the accident and witnessed Appellant tell his brother

to indicate that he had been driving. She would express her belief that

Appellant had been intoxicated and describe his behavior as “belligerent.” Id.

at 97-98. In response, the following exchange occurred:

[Defense Counsel]: Yeah. I’m just going to make an
objection based upon the fact that none of this was in the
discovery. Nothing with Ms. Schuster, no statements, no mention
of her person. I don’t think she’s even mentioned as an individual
who was present.
[The Prosecutor]: It is not in the police reports. We—I
discovered it this morning in speaking with Trooper Magluilo who
is not the affiant. He is right, Trooper – I’m sorry, [defense
counsel]. It was not in reports, but he did mention her presence
at the scene.

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J-S24034-19

And actually, interestingly, Judge, as the [c]ourt will hear
when the MVR is played later, this is what drew my attention to
it. I listened to the MVR previously and was focused more on the
field sobriety test portion. But as I listened to other portions of
the MVR last evening, I heard Trooper Magluilo making a reference
to hearing from someone, meaning Trooper Magluilo hearing from
someone that the brother had been witnessed putting pressure on
the other brother. In other words, [Appellant] had been witnessed
putting pressure on the other brother.
So that led to my curiosity because as I heard Trooper
Magluilo say it on the MVR last evening. I questioned Trooper
Magluilo about it this morning. He then referenced that he
believed it was this particular person. He then reached out to her
and arranged for her to come and testify this morning. So I
literally knew nothing about who she was or any specifics until this
morning when we reached out to have her here.
THE COURT: The objection is noted. It’s overruled I’ll allow her
to testify.
[The Prosecutor]: Thank you, Your Honor.

Id. at 98-99. Defense counsel made no further objection, and direct

examination of Ms. Schuster immediately ensued.

Once again, Appellant did not ask for a recess, continuance or mistrial

in light of Ms. Schuster’s proposed testimony, nor did he otherwise express a

view that the Commonwealth had committed a discovery violation or violated

the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d

215 (1963). In light of this failure, Appellant’s arguments pertaining to Ms.

Schuster’s subsequent testimony are waived. See Pearson, supra.

However, Appellant is entitled to no relief on the merits. As the

Pennsylvania Supreme Court has explained:

Under Brady and subsequent decisional law, a prosecutor
has an obligation to disclose all exculpatory information material
to the guilt or punishment of an accused, including evidence of an
impeachment nature. See, e.g., Commonwealth v.

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J-S24034-19

Hutchinson, 611 Pa. 280, 25 A.3d 277, 310 (2011). To establish
a Brady violation, an appellant must prove three elements:
(1) the evidence at issue was favorable to the accused,
either because it is exculpatory or because it impeaches;
(2) the evidence was suppressed by the prosecution,
either willfully or inadvertently; and (3) prejudice
ensued.
Hutchinson, supra (citation omitted).
The burden rests with the appellant to “prove, by reference
to the record, that evidence was withheld or suppressed by the
prosecution.” Id. (citation omitted). The evidence at issue must
have been “material evidence that deprived the defendant of a fair
trial.” Id. (citation and emphasis omitted). “Favorable evidence is
material, and constitutional error results from its suppression by
the government, if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 450
(2011) (quoting Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct.
1555, 131 L.Ed.2d 490 (1995)).
Brady does not require the disclosure of information “that
is not exculpatory but might merely form the groundwork for
possible arguments or defenses,” nor does Brady require the
prosecution to disclose “every fruitless lead” considered during a
criminal investigation. Id. (citation omitted). The duty to disclose
is limited to information in the possession of the government
bringing the prosecution, and the duty does extend to exculpatory
evidence in the files of police agencies of the government bringing
the prosecution. Commonwealth v. Puksar, 597 Pa. 240, 951
A.2d 267, 283 (2008); Commonwealth v. Lesko, 609 Pa. 128,
15 A.3d 345, 370 (2011) (applying Kyles, supra at 438, 115
S.Ct. 1555). Brady is not violated when the appellant knew or,
with reasonable diligence, could have uncovered the evidence in
question, or when the evidence was available to the defense from
other sources. Commonwealth v. Smith, 609 Pa. 605, 17 A.3d
873, 902–03 (2011); Paddy, supra at 451.
Brady sets forth a limited duty, not a general rule of
discovery for criminal cases. Paddy, supra at 451 (citing
Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51
L.Ed.2d 30 (1977) for the proposition that “there is no generalized
constitutional right to discovery in a criminal case, and Brady did
not create one”).

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J-S24034-19

Commonwealth v. Roney, 622 Pa. 1, 22–28, 79 A.3d 595, 607–08 (2013),

cert. denied, 135 S.Ct. 56, 190 L.Ed.2d 56, 83 USLW 3185 (2014).

While he acknowledges that the Commonwealth was not aware of Ms.

Schuster until the morning of trial, Appellant asserts that under Brady and

Pa.R.C.P. 573(G)3 it remained obligated to disclose her name. Appellant’s

____________________________________________

3 The rule in question requires the following disclosure by the Commonwealth:

(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall disclose to
the defendant's attorney all of the following requested items or
information, provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the defendant's
attorney to inspect and copy or photograph such items.
(a) Any evidence favorable to the accused that is material
either to guilt or to punishment, and is within the possession or
control of the attorney for the Commonwealth;
(b) any written confession or inculpatory statement, or the
substance of any oral confession or inculpatory statement, and
the identity of the person to whom the confession or inculpatory
statement was made that is in the possession or control of the
attorney for the Commonwealth;
(c) the defendant's prior criminal record;
(d) the circumstances and results of any identification of the
defendant by voice, photograph, or in-person identification;
(e) any results or reports of scientific tests, expert opinions,
and written or recorded reports of polygraph examinations or
other physical or mental examinations of the defendant that are
within the possession or control of the attorney for the
Commonwealth;
(f) any tangible objects, including documents, photographs,
fingerprints, or other tangible evidence; and
(g) the transcripts and recordings of any electronic
surveillance, and the authority by which the said transcripts and
recordings were obtained.

Pa.R.Crim.P. 573.

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J-S24034-19

argument focuses primarily upon Ms. Schuster’s testimony, and he claims that

“[h]ad it been disclosed, and her impeachment been planned, the result of the

case could have been different.” Brief for Appellant at 22. In doing so,

Appellant highlights the following statements:

[Ms. Schuster]: As I was leaning in the [Cunningham] car, [ ]
Appellant was leaning in over, as I'm trying to talk, [Appellant
was] still yelling. At that point I just kind of blocked it out because
I was trying to talk to him. . . .

[The Prosecutor]: Through the course of this event, were you able
to hear any other conversations [Appellant] had with the person
you later found out was his brother?

[Ms. Schuster]: Yes, I did. When we pulled up on scene and I
asked if they were okay, one of my questions on every accident
scene was, Who is driving? And the other brother just stood there
like a deer in headlights. He just had this look on his face like he
didn't know how to respond. And as I was walking up, I had heard
[Appellant] say to the brother, Tell them you were driving. You
were driving, right? Just tell them that you were driving.

Brief for Appellant at 19 (citations to reproduced record omitted) citing N.T.

Trial 2/8/18, at 105-06; 107.

Appellant has not carried his burden to establish that the

Commonwealth withheld any evidence concerning Ms. Schuster which was

favorable to his defense. First, as the trial court states, see infra, her

testimony cannot be viewed as clearly exculpatory. See Trial Court Opinion,

filed 9/13/18, at 9. Also, Appellant’s arguments ignore the fact that the

Commonwealth clearly indicated Ms. Schuster’s name did not appear on any

of the discovery in its possession, and it was the prosecutor’s repeat viewing

of the MVR which led him to inquire about her. Appellant was free to view the

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J-S24034-19

MVR prior to trial and make the same inquiries which led the Commonwealth

to Ms. Schuster, whom the prosecutor met on the same day her identity was

revealed to Appellant.

In addition, the trial court made additional findings in this regard:

[W]e do not find that Ms. Schuster’s testimony was either
exculpatory or tantamount to a confession.

***

Based upon Ms. Schuster’s testimony, the jury could have taken
the words of [Appellant] to mean he had been driving and was
trying to convince Elson Pastrana to take the blame, or that he
had not been driving and was urging his brother to tell the truth.
The statement was up to the jury to interpret a meaning.
Furthermore, the statement did not appear to be one that the
Commonwealth was aware of prior to trial, and therefore, not a
statement in the possession or control of the attorney for the
Commonwealth.

***
[Appellant] could have investigated the matter and learned of Ms.
Schuster’s observations prior to trial. She was not a protected
witness and she was an uninvolved third party to the accident.
Even if her name was not in the accident report, it was noted that
an ambulance responded to the scene, and that information could
have been further investigated. Finally, the information was not
so prejudicial that relief was necessary. The statement as given
could be interpreted for or against [Appellant] as the driver. The
issue of intoxication was not in question, considering all other
evidence, so that portion of the testimony was not prejudicial
either. Therefore, we find no error in allowing Ms. Schuster’s
testimony under the circumstances.

Trial Court Opinion, filed 9/13/18, at 13-14.

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J-S24034-19

In sum, Appellant's claims of a Brady violation have been waived, but

even if we were to review these claim on the merits, as did the trial court, we

would find they fail. Appellant is entitled to no relief on his second issue.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/12/19

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