Com. v. Beverly, M. ( 2021 )

J-S56029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MORRIS WAYNE BEVERLY :
:
Appellant : No. 961 EDA 2020
Appeal from the Judgment of Sentence Entered February 6, 2020,
in the Court of Common Pleas of Pike County,
Criminal Division at No(s): CP-52-CR-0000557-2016.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: APRIL 23, 2021
Morris Wayne Beverly appeals the judgment of sentence imposed
following his conviction of multiple sexual crimes. We affirm.
The trial court summarized the relevant factual and procedural history
as follows:
On . . . November 15, 2016, [a] criminal information . . .
was filed against Morris Beverly (“[Beverly]”), alleging four (4)
counts of statutory sexual assault (F1), one count of criminal
solicitation (F1), and four (4) counts of corruption of minors (F3)
[for sexual offenses committed against Q.B., the thirteen-year-old
daughter of Beverly’s girlfriend].
On November 6, 2019, a jury convicted [Beverly] of all
counts. On February 6, 2020, [Beverly] was sentenced to a period
of incarceration of not less than 168 months (14 years) nor more
than 336 months (28 years) followed by three (3) years of
probation to be specially supervised by the Pennsylvania Board of
Probation and Parole, with credit for 147 days’ time served. On
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* Retired Senior Judge assigned to the Superior Court.
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February 11, 2020, [Beverly] filed a post-sentence motion
requesting reconsideration of his sentence and a new trial as the
verdict was against the weight of the evidence. On March 5, 2020,
a hearing on the post-sentence motion was held. On March 9,
2020, this court denied the post-sentence motion.
On March 31, 2020, [Beverly] filed a notice of appeal to the
Superior Court as to the jury verdict dated November 6, 2019, the
sentencing order dated February 6, 2020, and the order denying
[Beverly’s] post-sentence motion dated March 9, 2020. On April
2, 2020, this court ordered [Beverly to] file a concise statement
of matters complained of on appeal within twenty-one (21) days
from the date of the order. [Beverly] filed his concise statement
on April 27, 2020.
Trial Court Opinion, 6/2/20, at 1-2 (unnecessary capitalization omitted).
Beverly raises the following issues for our review:
1. Whether the trial court erred and abused its discretion by
allowing evidence to be presented at trial which had not been
provided to the defense in discovery, nor provided in a form
which made its proper pretrial analysis possible?
2. Whether the trial court erred and abused its discretion by
allowing evidence to be introduced at trial that Beverly had
unusual interest in sex, i.e., that he had over one hundred sex
toys in his possession, where such evidence was highly
prejudicial and contrary to the rules of evidence?
3. Whether the trial court erred and abused its discretion by
allowing a testifying doctor to draw opinions regarding whether
or not sexual assault actually occurred since that was a fact
that needed to be found by the jury rather than any expert?
Beverly’s Brief at 9 (capitalization omitted).
In his first issue, Beverly contends that the trial court erred by admitting
certain evidence at trial which had not been provided to the defense in pretrial
discovery, or provided in a form which made proper analysis possible. The
trial court determined that the issue was waived because Beverly failed to
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identify the evidence in question when raising the issue in his concise
statement of errors complained of on appeal.
Upon review, we agree with the trial court’s waiver determination. A
concise statement must be specific enough for the trial court to identify and
address each issue the appellant wishes to raise on appeal. “When a court
has to guess what issues an appellant is appealing, that is not enough for
meaningful review.” Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.
Super. 2001) (citation omitted). Indeed, a concise statement which is too
vague to allow the court to identify the issues raised on appeal is the functional
equivalent of no Concise Statement at all. Id. at 686-87.
Here, in Beverly’s concise statement, he did not identify for the trial
court the specific evidence which he claims should not have been admitted at
trial. Thus, as the issue was stated to vaguely in the concise statement, it is
waived. See Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super.
2011) (holding that this Court may find waiver where a concise statement is
too vague).1 Thus, Beverly’s first issue merits no relief.
____________________________________________
1 The trial court also concluded that the issue was waived due to Beverly’s
failure to object to the evidence at trial. The trial court indicated that it
thoroughly reviewed the notes of testimony and Beverly’s motion in limine,
and found no place in the record where he objected to any evidence on the
basis that it was not provided to the defense in pretrial discovery. See
Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (holding
that, in order to preserve an issue for review, a party must make a timely and
specific objection); see also Pa.R.A.P. 302(a) (providing that issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal).
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In his second issue, Beverly challenges the admission of Trooper Mark
Pizzuti’s testimony that he found more than a hundred sex toys, lubricant, and
several large bags of condoms when he searched Beverly’s home.
The trial court determined that Beverly’s second issue was also waived
due to his failure to make a timely objection when the trooper testified. Upon
review, we agree that the issue is waived due to Beverly’s failure to raise any
objection at trial to the trooper’s testimony. See Duffy, 832 A.2d at 1136;
see also Pa.R.A.P. 302(a). Thus, Beverly’s second issue merits no relief.
In his third issue, Beverly challenges the admission of certain opinion
testimony provided by Michael Rogan, M.D., who is a staff physician for The
Children’s Center of Northeastern Pennsylvania. Specifically, Beverly
challenges Dr. Rogan’s opinion testimony that Q.B. was, in fact, a victim of
sexual abuse. Beverly argues that Dr. Rogan’s opinion was not based on his
medical examination of Q.B., but instead based primarily on Q.B.’s
statements. According to Beverly, this was not an appropriate expert opinion.
Instead, Beverly posits, it is an expert making a credibly determination of his
own and then providing it to the jury in the guise of being an expert opinion.
The trial court considered Beverly’s third issue and concluded that the
issue was also waived. The trial court reasoned:
This court extensively reviewed the trial transcript and the
testimony of Dr. Michael Rogan. The Commonwealth questioned
Dr. Rogan extensively on his qualifications. There was no
objection to Dr. Rogan’s admission as an expert witness in the
field of child abuse pediatrics, and the court admitted him as such
with the authority to render opinions within that field. There was
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no objection made on this basis at trial during Dr. Rogan’s
testimony. There was no objection when the Commonwealth
specifically asked for Dr. Rogans medical opinions and impressions
based on his exam of the victim.
Trial Court Opinion, 6/2/20, at 4 (unnecessary capitalization and formatting
omitted).
Based on our review, we agree that Beverly failed to preserve this issue
for our review by raising a timely and specific objection to Dr. Rogan’s opinion
testimony at trial. See Duffy, 832 A.2d at 1136; see also Pa.R.A.P. 302(a).
For this reason, his final issue merits no relief.
Having concluded that none of Beverly’s issues merits relief, we affirm
his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/21
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