Com. v. Frick, B. ( 2016 )

J-A14044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRANDON D. FRICK,
Appellant No. 1424 MDA 2015
Appeal from the Judgment of Sentence March 12, 2015
in the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0000680-2014
BEFORE: BOWES, J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 19, 2016
Appellant, Brandon D. Frick, appeals from the judgment of sentence
imposed on March 12, 2015, following his jury conviction of simple assault
and recklessly endangering another person (REAP).1 On appeal, Appellant
challenges the denial of his post-sentence motion alleging prosecutorial
misconduct, the discretionary aspects of his sentence, and the trial court’s
decision not to allow him to call all of his character witnesses. For the
reasons discussed below, we affirm.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2701(a)(1) and 2705, respectively.
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We take the underlying facts and procedural history in this matter
from our independent review of the certified record.
On April 12, 2014, Charles Garrett Adams (Adams) and his friend, Eli
Diehl (Diehl), drove up to State College in anticipation of attending the Penn
State University Blue and White game the following day. (See N.T. Trial,
1/07/15, at 106). The two initially intended to stay with a male friend at a
location known as “The Retreat.” (Id. at 106-07). At some point during the
evening, the two went to visit Adams’ friend, Chloe Strader (Strader), and
spent some time drinking and partying with Strader and her friends. (See
id. at 106, 110-13). A group of people, including Strader, Adams, and
Diehl, left the residence, went out to local bars, and had a few drinks. (See
id. at 113-14). When the bar closed, the group separated. (See id. at
114). Diehl testified that, at some point during the evening, Strader had
invited him and Adams to stay at her apartment. (See id. at 115).
At the end of the evening, Adams and Diehl returned to Strader’s
apartment, either intending to stay there or obtain directions back to the
Retreat. (See id. at 116, 208-09). When they arrived at the apartment,
they knocked on the door and three hostile men,2 opened the door. (See id.
at 116-17, 210, 293, 296-97; N.T. Trial, 1/08/15, at 31). While these men
had met Adams and Diehl earlier in the evening, they now denied this and
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2
The men were Strader’s roommates, Robert Donaldson (Donaldson) and
William Stranburg (Stranburg), and Appellant, who was visiting that night.
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said that Strader did not want them there, and then closed the door. (See
N.T. Trial, 1/07/15, at 116, 210). Adams and Diehl went downstairs and
Adams unsuccessfully attempted to contact Strader by phone. (See id. at
116, 211-12). Confused and uncertain where to go, Adams and Diehl went
back up to the apartment and knocked on the door. (See id. at 118-19,
212-13). This time the three men answered the door with raised knives and
immediately confronted Adams and Diehl. (See id. at 118-19, 213). Adams
and Diehl attempted to leave but one of the men punched Diehl in the face
and he fell down the stairs. (See id. at 120-23, 214-17, 220-23). Adams
ran down the stairs to Diehl and, while he was running, Appellant stabbed
him in the back and the three men pushed and kicked him down the stairs to
the door. (See id.). Appellant then returned to the apartment, cleaned the
blood off the knife, and hid it in a box of cereal. (See N.T. Trial, 1/08/15, at
145-48).
After Adams and Diehl escaped the residence, Adams asked Diehl to
check his back because it was hurting. (See id. at 124). Diehl observed a
bleeding stab wound and then called 911. (See id.).
Because of the assault, Diehl suffered a black eye and had cuts on his
back, from either slashes or falling down the stairs. Diehl testified that he
also had an injury to his foot. (See N.T. Trial 1/07/15, at 126). Adams
suffered a stab wound and was taken to Mount Nittany Medical Center.
(See id. at 159-60, 227). After a trauma evaluation, medical personnel
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determined that Adams suffered a penetrating wound to the spine; he was
transferred to Altoona because of concerns about possible serious injuries to
his spine, lung, spleen, or kidney. (See id. at 163-64, 171). At Altoona, he
received staples to repair the damage. (See id. at 227).
On May 7, 2104, the Commonwealth filed a criminal information
charging Appellant two counts of aggravated assault, one count of terroristic
threats, one count of possessing an instrument of crime (PIC),3 as well as
the aforementioned charges of simple assault and REAP. Immediately prior
to the start of trial, the Commonwealth nolle prossed one of the aggravated
assault charges.
A jury trial took place on January 7 and 8, 2015. On the second day of
trial, Appellant sought to call co-defendant William Stranburg to testify on
his behalf. (See N.T. Trial, 1/08/07, at 195-99). However, Stranburg
asserted his Fifth Amendment right against self-incrimination and refused to
testify. (See id.). Later that day, Appellant sought to call twenty-five
character witnesses to testify on his behalf. (See id. at 263). Over
Appellant’s objection, the trial court allowed Appellant to call only seven
character witnesses. (See id. at 264-92). Following testimony, as noted
above, the jury found Appellant guilty of simple assault and REAP.
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3
18 Pa.C.S.A. § 2702(a)(1) and (4); 2706(a)(1); and 907(a), respectively.
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On March 6, 2015, the trial court sentenced Appellant to an aggregate
term of incarceration of not less than eight nor more than twenty-three and
one-half months.4 On March 13, 2015, Appellant filed a post-sentence
motion. He filed an amended post-sentence motion on July 2, 2015. On
August 12, 2015, the trial court held an evidentiary hearing on Appellant’s
post-sentence motions. The hearing mainly concentrated on Appellant’s
claim that the Commonwealth committed prosecutorial misconduct by
directing co-defendant Stranburg to assert his Fifth Amendment rights
because his testimony was damaging to the Commonwealth. (See Trial
Court Opinion, 10/22/15, at 2). The trial court summarized the testimony at
the hearing thusly:
Matthew McClenahen, Esquire, counsel for [Stranburg],
testified that A[ssistant] D[istrict] A[ttorney (ADA) Nathan] Boob
got in touch with him after the first day of the jury trial and
advised that he “did not think he needed” [Stranburg] to testify
because he “had enough” and it would “muddy the waters.”
Attorney McClenahen advised [ ] Stranburg to plead the Fifth
Amendment because he did not want his client to testify in a
manner that the Commonwealth would consider to be perjury.
He noted that [ ] Stranburg’s account differed from the other
defendants . . . . Attorney McClenahen was of the opinion that
ADA Boob and [State College] Detective [Christopher] Weaver
[the primary detective on the case] did not accept [ ]
Stranburg’s account. Attorney McClenahen testified there was
no plea offer to his client until after [Appellant’s] sentencing and
there was no exchange of a plea offer for his client pleading the
Fifth Amendment. He noted that his client had the absolute right
to plead the Fifth Amendment because his written statement
implicated him. Attorney McClenahen unequivocally testified
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4
The trial court filed an amended sentencing order on March 12, 2015.
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that ADA Boob did not direct him to have his client plead the
Fifth Amendment. Furthermore, ADA Boob unequivocally
testified that he did not tell [ ] Stranburg to plead the Fifth
Amendment or instruct Attorney McClenahen to tell [ ] Stranburg
to plead the Fifth Amendment. Based on the testimony adduced
at the hearing, [the trial c]ourt was convinced that Attorney
McClenahen advised his client to plead the Fifth Amendment and
was not directed by ADA Boob to do so.
(Id. at 2-3) (record citations omitted).
Following the hearing, the trial court denied Appellant’s post-sentence
motions in their entirety. The instant, timely appeal followed. On
September 11, 2015, the trial court directed Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement on September 22, 2015.
See id. On October 22, 2015, the trial court issued an opinion. See
Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review:
I. Whether the trial court erred in denying Appellant’s post-
sentence motion alleging prosecutorial misconduct after
the attorney for the Commonwealth persuaded a co-
defendant to assert his Fifth Amendment privilege for the
improper purpose of depriving Appellant of favorable
testimony at trial[?]
II. Whether the trial court erred in applying the deadly
weapon sentencing enhancement[?]
III. Whether the trial court improperly limited defense
counsel’s presentation of character testimony[?]
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(Appellant’s Brief, at 9) (unnecessary capitalization and footnote omitted). 5
In his first claim, Appellant argues that the trial court erred in denying
his amended post-sentence motion claiming prosecutorial misconduct. (See
Appellant’s Brief, at 22). Specifically, Appellant claims the Commonwealth
violated his “Fourteenth Amendment right to due process and Sixth
Amendment right to compulsory process by substantially interfering with the
choice of [Stranburg], a key defense witness, to testify at Appellant’s trial
because Stranburg’s testimony would have undermined the Commonwealth’s
theory of the case.” (Id.). Appellant contends that the misconduct was so
egregious as to bar retrial on double jeopardy grounds. (See id. at 33-34).
Appellant also appears to claim that Stranburg did not properly assert
his Fifth Amendment right because Stranburg’s assertion of the right was
illegitimate and the trial court failed to conduct the requisite inquiry into
Stranburg’s assertion of his Fifth Amendment right, which would have
revealed its impropriety. (See id. at 28-32). We find that Appellant waived
any claim that Stranburg’s assertion of the right was illegitimate and waived
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5
We note that Appellant’s brief is fifty pages in length and does not contain
the certification required by Pa.R.A.P. 2135. See Pa.R.A.P. 2135(a)(1) (“A
principal brief shall not exceed 14,000 words, except as stated in
subparagraphs (a)(2)-(4) [involving cross appeals and capital cases]. A
party shall file a certificate of compliance with the word count limit if the
principal brief is longer than [thirty] pages or the reply brief is longer than
[fifteen] pages when prepared on a word processor or typewriter.”) As we
concluded that this single deviation from the rules applicable to briefs does
not impede our review, we will overlook it. Cf. Commonwealth v. Spuck,
86 A.3d 870, 876 (Pa. Super. 2014), appeal denied, 99 A.3d 77 (Pa. 2014).
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any claim regarding the trial court’s lack of inquiry. In addition, we find
Appellant’s claim of prosecutorial misconduct lacks merit.
The Fifth Amendment to the United States Constitution provides that
“[n]o person . . . shall be compelled in any criminal case to be a witness
against himself. . . .” U.S. Const. amend. V. The United States Supreme
Court has stated that we must liberally interpret this privilege. See
Hoffman v. U.S., 341 U.S. 479, 486 (1951). The Supreme Court held that:
[t]he privilege reflects a complex of our fundamental values and
aspirations, and marks an important advance in the development
of our liberty. It can be asserted in any proceeding, civil or
criminal, administrative or judicial, investigatory or adjudicatory;
and it protects against any disclosures which the witness
reasonably believes could be used in a criminal prosecution or
could lead to other evidence that might be so used.
Kastigar v. U.S., 406 U.S. 441, 444-45 (1972). Our Supreme Court has
held that the guarantee against self-incrimination is absolute, stating:
[h]e cannot be compelled to give evidence against himself. This
does not refer to any particular place or at any particular time.
He may not be compelled, under any circumstance, to testify
against himself where criminal prosecution is involved. The
constitutional privilege is not like a coat which may be taken off
and thrown away. It is as much a part of the accused as his skin
and may not be stripped away by himself or by others. It is an
inviolable power accorded him in exchange for what he
surrenders in being a member of the society of the
Commonwealth. Of course, he may, if he so desires, testify
against himself, but the constitutional privilege continues to
remain with him, and the fact that he has willingly admitted
circumstances adverse to his own interests can never be made
the basis for compelling him to make further admissions. Even if
an accused makes a hundred statements prior to trial he may
still refuse to testify against himself at the trial. His
constitutional privilege against self-incrimination is inalienable,
inviolable and irrevocable.
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Commonwealth v. Fisher, 157 A.2d 207, 210 (Pa. 1960) (quotation marks
omitted). As the issue of whether Stranburg properly invoked his Fifth
Amendment right against self-incrimination is a pure question of law, our
standard of review is de novo and our scope of review is plenary. See
Commonwealth v. Knoble, 42 A.3d 976, 979 (Pa. 2012).
However, before we can reach the merits of Appellant’s contention that
Stranburg did not legitimately invoke his Fifth Amendment right and that the
trial court failed to undertake a proper colloquy, we must determine if this
claim is properly before us. The record reflects that, at trial, Appellant did
not object to Stranburg’s invocation of his right as illegitimate and did not
object to the trial court’s colloquy. (See N.T. Trial, 1/08/15, at 195-99).
The only concern raised by Appellant was the manner in which he would be
able to “use the fact that he pled the Fifth for the balance of the trial and
closing.” (Id. at 198). It is settled that failure to raise a contemporaneous
objection constitutes a waiver of the claim. See Commonwealth v.
Powell, 956 A.2d 406, 419 (Pa. 2008), cert. denied, 556 U.S. 1131 (2009).
Moreover, Appellant did not raise this claim in his amended post-
sentence motion, which only raised the prosecutorial misconduct claim.
(See [Appellant’s] Amended Post-Sentence Motion, 7/02/15, at unnumbered
pages 1-4). Thus, Appellant waived his claim for this reason as well. See
Commonwealth v. P.L.S., 894 A.2d 120, 132 (Pa. Super. 2006), appeal
denied, 906 A.2d 542 (Pa. 2006) (holding appellant waived claim that his
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Fifth Amendment rights were violated by use of Sexual Offender Assessment
Board assessment when he failed to object either during hearing or raise
claim in post-sentence motion). Thus, we find that Appellant waived any
challenge to the legitimacy of Stranburg’s invocation of his right against self-
incrimination or to the adequacy of the trial court’s colloquy.6
As noted above, Appellant claims that the Commonwealth committed
misconduct by inducing Stranburg to assert his Fifth Amendment right
against self-incrimination. (See Appellant’s Brief, at 22). We disagree.
Our standard of review is well settled. Our review “for a claim of
prosecutorial misconduct is limited to whether the trial court abused its
discretion. In considering this claim, our attention is focused on whether the
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6
We note that Appellant also failed to raise the issue in his Rule 1925(b)
statement. (See [Appellant’s] Concise Statement of Errors Complained of
on Appeal, 9/22/15, at unnumbered page 1). As amended in 2007,
Pennsylvania Rule of Appellate Procedure 1925 provides that issues that are
not included in the Rule 1925(b) statement or raised in accordance with Rule
1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by
rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d
428, 431 (Pa. Super. 2009). Moreover, an appellant cannot raise a new
issue on appeal. See Pa.R.A.P. 302(a). Lastly, Appellant did not raise this
claim in his statement of the questions involved. (See Appellant’s Brief, at
9). The Rules of Appellate Procedure provide that issues to be resolved
must be included in the statement of questions involved or “fairly suggested”
by it. Pa.R.A.P. 2116(a). This issue is not included in the statement of
questions involved, nor is it “fairly suggested” by it. Thus, we hold that
Appellant has waived this claim for these reasons as well. See Pa.R.A.P.
1925(b)(4)(vii); see also Commonwealth v. Harris, 979 A.2d 387, 397
(Pa. Super. 2009) (holding claim waived when not included in statement of
questions involved).
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defendant was deprived of a fair trial, not a perfect one.” Commonwealth
v. Helsel, 53 A.3d 906, 920 (Pa. Super. 2012), appeal denied, 63 A.3d 1244(Pa. 2013) (citation omitted). Further, our Supreme Court has stated:
We now hold that the double jeopardy clause of the Pennsylvania
Constitution prohibits retrial of a defendant not only when
prosecutorial misconduct is intended to provoke the defendant
into moving for a mistrial, but also when the conduct of the
prosecutor is intentionally undertaken to prejudice the defendant
to the point of the denial of a fair trial.
Commonwealth v. Martorano, 741 A.2d 1221, 1223 (Pa. 1999) (citation
omitted).
Here, the record reflects that both the Commonwealth and the defense
subpoenaed Stranburg. (See N.T. Trial, 1/08/15, at 196). At the time of
trial, while Stranburg was cooperating with the Commonwealth, he remained
a co-defendant and did not have a “deal.” (N.T. Post-Sentence Motions
Hearing, 8/12/15, at 37-39, 46, 53, 60-61). At the evidentiary hearing,
Stranburg’s attorney, Matthew McClenahen testified unequivocally and
repeatedly that it was his decision alone to have Stranburg invoke his Fifth
Amendment rights. (See id. at 43-46, 64, 67-68, 76-77, 88-89, 97-100,
102-03). Attorney McClenahen explained the events and his decision-
making process as follows:
Okay. So [ADA] Boob called me after hours. I think it was
January 7th because I think it was a two-day trial and it was after
the night of the first day and he said I don’t think I need your
guy, I think we have enough, and I think it would just muddy
the waters to put him on at this point. . . . So I said what if
[defense counsel] calls him. I mean, is it going to be helpful or
do you think it will hurt. . . .
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* * *
Well that — January 7th. I didn’t want [Stranburg] to take the
stand and testify in a manner which Detective Weaver and [ADA]
Boob would consider to be perjury. I thought he would have
testified truthfully from my opinion but my opinion doesn’t really
count when it comes to determining what type of plea offers are
extended and there was a major discrepancy between
[Stranburg’s account and those of other witnesses]. . . .
Detective Weaver and [ADA] Boob didn’t believe Mr. Stranburg .
. . . so if Mr. Stranburg would have testified in that manner it
would have been inconsistent with the Commonwealth’s
witnesses and [ADA] Boob would have thought he was lying. . . .
Well from my perspective I thought [ADA] Boob would perceive
[Stranburg’s testimony] as being dishonest testimony and the
last thing you want to do if you are trying to get a plea
agreement is have your client testify in a way that the
prosecutor thinks is a lie.
(Id. at 43-46).
Attorney McClenahen stated that the Commonwealth did not offer his
client a “deal” until after Appellant’s sentencing and “there was no bargain
for exchange that [Stranburg] would get a plea to a M3 DC in exchange for
pleading the Fifth. That never happened. Never happened.” (Id. at 60-61).
Attorney McClenahen testified that he believed defense counsel
misunderstood a conversation that occurred during a post-sentence hearing,
stating:
Okay. So you, and Adam Morris [attorney for Donaldson],
and I were talking about logical issues like what witnesses still
needed to testify and things like that and I indicated that
[Stranburg] didn’t get a chance to testify at trial because [ADA
Boob] didn’t want to call him because it would have undermined
the Commonwealth’s theory of the case . . . . So [ADA Boob]
didn’t call him and I indicated I had him plead the Fifth and
apparently you took that to mean that [ADA] Boob directed me
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to have him plead the Fifth when all I was saying was that [ADA
Boob] didn’t call him and I told him to plead the Fifth. That’s
why he didn’t get a chance to testify. There was no directive
from [ADA] Boob to me telling him to plead the Fifth. In
fact, if I remember correctly when I said to [ADA Boob] that I
am going to have him plead the Fifth he said something to the
effect of well that’s your call.
(Id. at 67-68) (emphasis added).
When Appellant’s counsel again tried to elicit an admission that the
Commonwealth induced Stranburg to plead the Fifth, Attorney McClenahen
retorted:
. . . I explained that that is not what happened and no matter
how much you try to dance around or twist words that objective
reality is not going to change.
You cannot magically bring something into existence by
playing with words that did not happen. The objective reality is
[ADA] Boob did not direct me to have [Stranburg] plead the
Fifth, and, secondly, we did not get a plea offer until March 19 th.
You have filed a motion in which you have alleged things that
are objectively and factually not true and it was very reckless for
you to file something like that without first having talked to me.
(Id. at 76-77).
During the Commonwealth’s cross-examination of Attorney
McClenahen, he again clearly stated that there was no truth to Appellant’s
assertion that ADA Boob directed his client to take the Fifth or conditioned a
plea deal on his client taking the Fifth. (See id. at 88-94).
Attorney McClenahen summarized his reasoning for having Stranburg
assert his Fifth Amendment right against self-incrimination as follows:
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I see no other option I had other than to have my client plead
the Fifth. Number one, he had a right to plead the Fifth contrary
to [Appellant’s counsel’s] misinterpretation of the law because
he was charged with a crime and had he told the truth, the
whole truth, and nothing but the truth he would have been
admitting criminal offenses, and, number two, he exposed
himself to the possibility of the Commonwealth perceiving him as
committing perjury, which is just as bad as committing perjury
for all practical purposes.
(Id. at 105-06).
Further, at the hearing, Detective Christopher Weaver, the primary
detective on the case, testified that he advised ADA Boob not to call
Stranburg as a witness because he did not believe Stranburg was “truthful
and honest[.]” (Id. at 167, see id. at 167-68). ADA Boob’s testimony was
consistent with Attorney McClenahen’s. He testified that he chose not to put
Stranburg on the stand because he believed it would be tantamount to
suborning perjury. (See id. at 188-90). He confirmed that he did not offer
a plea deal to Stranburg until after Appellant’s trial, and that his decision to
offer that deal was not based on Stranburg’s invocation of his Fifth
Amendment right, but upon the relative weakness of the evidence against
him. (See id. at 193-94, 211, 220-21). Moreover, ADA Boob observed that
had Stranburg not invoked his Fifth Amendment right, he would have
“relished” the opportunity to cross-examine him because he believed it
would have strengthened his case against him and given him the opportunity
to file additional charges against Stranburg. (Id. at 201; see id. at 200-03,
207, 216). ADA Boob also clearly said that he did not instruct Attorney
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McClenahen to have his client invoke his Fifth Amendment rights. (See id.
at 221-23, 228).
Thus, in sum, the evidence adduced at the post-sentence motions
hearing showed that Stranburg had cooperated with the Commonwealth by
making a statement to the police. However, neither Detective Weaver nor
ADA Boob felt the statement was truthful. Thus, the Commonwealth did not
call Stranburg as a witness. The Commonwealth and Stranburg had not
reached a plea agreement at the time of Appellant’s trial. Therefore, when
informed that the Commonwealth would not call his client, Attorney
McClenahen instructed him to invoke his Fifth Amendment privilege against
self-incrimination if called by the defense. Attorney McClenahen did so
because Appellant’s statement to the police contained admissions to criminal
activity and because he was aware that the Commonwealth did not believe
his client and was concerned about both possible perjury charges and the
possibility of being unable to obtain a plea agreement in the future. There is
simply no evidence of record to substantiate Appellant’s contention that the
Commonwealth induced or interfered in any way with Stranburg’s decision to
invoke his Fifth Amendment rights. Thus, the trial court did not abuse its
discretion in denying Appellant’s amended post-sentence motion claiming
prosecutorial misconduct. See Helsel, supra at 920.
In his second claim, Appellant argues that the trial court erred in
applying the deadly weapon sentencing enhancement. Specifically, he
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argues that a pocketknife is a not a deadly weapon. (See Appellant’s Brief,
at 36). In the alternative, Appellant argues that, even if the trial court
properly applied the deadly weapon enhancement, the trial court erred in
applying the DWE/Used matrix rather than the DWE/Possessed matrix. (See
id. at 43-45). We disagree with Appellant’s first contention, and find his
second contention waived.
Preliminarily, we note, “[i]ssues challenging the discretionary aspects
of sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings. Absent such
efforts, an objection to a discretionary aspect of a sentence is waived.”
Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004), appeal
denied, 860 A.2d 122 (Pa. 2004) (citations and internal quotations marks
omitted). Here, Appellant properly preserved his claim that the trial court
erred in applying the deadly weapon enhancement by filing a post-sentence
motion. (See [Appellant’s] Post-Sentence Motion, 3/13/15, at unnumbered
pages 2-3).
The right to appeal the discretionary aspects of a sentence is not
absolute. See McAfee, supra at 274. When an appellant challenges the
discretionary aspects of the sentence imposed, he must present “a
substantial question as to the appropriateness of the sentence[.]”
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
(citations omitted). An appellant must, pursuant to Pennsylvania Rule of
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Appellate Procedure 2119(f), articulate “a colorable argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
to the fundamental norms underlying the sentencing scheme.”
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)
(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If
an appellant’s Rule 2119(f) statement meets these prerequisites, we
determine whether a substantial question exists. See Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,
759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which
the appeal is sought, in contrast to the facts underlying the appeal, which
are necessary only to decide the appeal on the merits.” Id. (emphases in
original).
Here, Appellant has included a Rule 2119(f) statement in his brief,
(see Appellant’s Brief, at 35-36), arguing that the trial court improperly
applied the deadly weapon enhancement. (See id. at 35). This Court has
held that a claim that a trial court wrongfully applied the deadly weapon
enhancement7 raises a substantial question. See Commonwealth v.
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7
The deadly weapon enhancement is codified at 204 Pa. Code Section
303.10, and provides in pertinent part:
(a) Deadly Weapon Enhancement.
(1) When the court determines that the offender possessed a
deadly weapon during the commission of the current conviction
(Footnote Continued Next Page)
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Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2104), appeal denied, 104
A.3d 1 (Pa. 2014). Therefore, we will discuss the merits of this contention.
18 Pa.C.S.A. § 2301 defines a “deadly weapon” as:
_______________________
(Footnote Continued)
offense, the court shall consider the DWE/Possessed Matrix (§
303.17(a)). An offender has possessed a deadly weapon if any
of the following were on the offender’s person or within his
immediate physical control:
(i) Any firearm, (as defined in 42 Pa.C.S. § 9712)
whether loaded or unloaded, or
(ii) Any dangerous weapon (as defined in 18 Pa.C.S.
§ 913), or
(iii) Any device, implement, or instrumentality
designed as a weapon or capable of producing death
or serious bodily injury where the court determines
that the offender intended to use the weapon to
threaten or injure another individual.
(2) When the court determines that the offender used a deadly
weapon during the commission of the current conviction offense,
the court shall consider the DWE/Used Matrix (§ 303.17(b)). An
offender has used a deadly weapon if any of the following were
employed by the offender in a way that threatened or injured
another individual:
(i) Any firearm, (as defined in 42 Pa.C.S. § 9712)
whether loaded or unloaded, or
(ii) Any dangerous weapon (as defined in 18 Pa.C.S.
§ 913), or
(iii) Any device, implement, or instrumentality
capable of producing death or serious bodily injury.
204 Pa. Code Section 303.10(a)(1)-(2).
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Any firearm, whether loaded or unloaded, or any device
designed as a weapon and capable of producing death or serious
bodily injury, or any other device or instrumentality which, in the
manner in which it is used or intended to be used, is calculated
or likely to produce death or serious bodily injury.
18 Pa.C.S.A. § 2301. In arguing that the knife used in the instant matter
did not constitute a deadly weapon, Appellant relies on this Court’s decision
in Commonwealth v. Blake, 605 A.2d 427 (Pa. Super. 1992). (See
Appellant’s Brief, at 36-42). We find this reliance misplaced.
In Blake, the appellant used a knife to gain entry to the victims’
home; the appellant punched one victim in the eye, and, during a struggle,
the other victim was stabbed in the thigh by the knife that was in the
appellant’s pocket. See Blake, supra at 428. There was no evidence of
record that the appellant wielded the knife in any manner and no description
of the knife. See id. In determining that the trial court erred in applying
the deadly weapon enhancement, this Court found that, because the knife
had not been described, there was no evidence of record to support a claim
that it had been designed as a weapon. See id. Further, we found that,
based upon the fact that the knife was in the appellant’s pocket during the
stabbing, appellant did not use it in a manner that could cause death or
serious bodily injury. See id. at 428-29.
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In the instant matter, this is simply not the case, viewing the evidence
as we must in the light most favorable to the verdict winner,8 see
Commonwealth v. Duxbury, 674 A.2d 1116, 1118-19 (Pa. Super. 1996),
the record demonstrates that Appellant wielded the knife in such a manner
as to potentially cause death or serious bodily injury. Here, the record
reflects that, when Appellant heard Stranburg arguing with the victims, he
removed his knife from his pocket and opened it. (See N.T. Trial, 1/08/15,
at 214, 238-39). When Stranburg opened the door, he, Donaldson, and
Appellant all brandished knives at the victims. (See N.T. Trial, 1/07/15, at
118-19, 213). The men, with brandished knives, chased the fleeing victims
down the stairs, and, during that chase, Appellant stabbed Adams in the
back. (See id. at 120-23, 214-17, 220-23). Adams suffered a penetrating
stab wound to his back and there were concerns about more serious
consequences because of the location of the injury in close proximity to his
spine and other vital organs. (See id. at 159-64, 171, 227). This evidence
is more than sufficient to support a finding that Appellant used the knife in a
manner that could cause death or serious bodily injury, therefore,
Appellant’s claim lacks merit. See Commonwealth v. Chapman, 528 A.2d
990, 992 (Pa. Super. 1987), appeal denied, 536 A.2d 1328 (Pa. 1987)
____________________________________________
8
Throughout the argument on this issue, Appellant continually views the
evidence in the light most favorable to himself. (See Appellant’s Brief, at
38, 41-43).
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(finding razor blade held to victim’s face during robbery had sufficient
potential to cause harm to justify application of deadly weapon
enhancement).
Appellant also contends that the trial court erred in applying the
DWE/Used matrix rather than the DWE/Possessed matrix. (See Appellant’s
Brief, at 43-45). However, Appellant waived this claim. Appellant did not
raise this claim in his post-sentence motion, where he only raised the claim
that the trial court erred in applying the deadly weapon enhancement. (See
[Appellant’s] Post-Sentence Motions, 3/13/15, at unnumbered pages 2-3).
It is settled that an appellant waives any discretionary aspects of sentence
issue not raised in a post-sentence motion; further, an appellant cannot
raise an issue for the first time on appeal. See Commonwealth v. Mann,
820 A.2d 788, 793-94 (Pa. Super. 2003), appeal denied, 831 A.2d 599 (Pa.
2003) (finding claim sentencing court did not put sufficient reasons to justify
sentence on record waived where issue was not raised in post-sentence
motion); see also Pa.R.A.P. 302(a).9 Thus, Appellant waived this
discretionary aspect of sentence claim.
____________________________________________
9
Again, we note that Appellant also waived this claim because he failed to
raise it in his Rule 1925(b) statement. (See [Appellant’s] Concise
Statement of Errors Complained of on Appeal, 9/22/15, at unnumbered page
1); see also Pa.R.A.P. 1925(b)(4)(vii).
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In his third and final claim, Appellant avers that the trial court abused
its discretion by “only permitting defense counsel to call six[10] character
witnesses.”11 (Appellant’s Brief, at 46). Specifically, Appellant claims that
the “nature and complexity of the case justified permitting Appellant to
present a substantial number of character witnesses[.]” (Id.). Appellant
claims that the exclusion of their testimony “restrict[ed] his ability to present
a full defense.” (Id.). We disagree.
In Pennsylvania, it is settled that
[e]vidence of good character is always admissible for the
defendant in a criminal case. It is to be weighed and considered
in connection with all the other evidence in the cause. It may of
itself, in some instances, create the reasonable doubt which
would entitle the accused to an acquittal.
Commonwealth v. Sandusky, 77 A.3d 663, 673 (Pa. Super. 2013)
(citation, quotation marks, and emphasis omitted). However,
[t]he admissibility of evidence is a matter solely within the
discretion of the trial court. Subject to the requirements of due
process of law and of the constitutional rights of the parties, the
court may make and enforce rules and orders covering any of
____________________________________________
10
The record reflects that Appellant called seven character witnesses. (See
N.T. Trial, 1/08/15, at 264-92). However, the trial court, with the
agreement of the parties, struck the character testimony of witness Donna
Lopp as impermissible. (See id. at 287).
11
It is not entirely clear how many character witnesses Appellant wished to
call. At trial, Appellant initially sought to call twenty-five character
witnesses. (See N.T. Trial, 1/08/15, at 263). Later, he stated that he
wished to call nine additional character witnesses. (See id. at 288-89). In
his brief, Appellant does not specify how many additional witnesses he
wished to call.
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the following matters, inter alia: (1) limiting the number of
witnesses whose testimony is similar or cumulative. As with any
other evidentiary ruling, we will reverse the trial court’s
determination to exclude testimony only if there has been an
abuse of discretion.
Commonwealth v. Walsh, 36 A.3d 613, 621 (Pa. Super. 2012) (citations
and internal quotation marks omitted). Further, the Pennsylvania Rules of
Evidence provide: “[t]he court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following . .
. needlessly presenting cumulative evidence.” Pa.R.E. 403. We have
defined cumulative evidence as: “additional evidence of the same character
as existing evidence and that supports a fact established by the existing
evidence.” Commonwealth v. G.D.M., Sr., 926 A.2d 984, 989 (Pa. Super.
2007), appeal denied, 944 A.2d 756 (Pa. 2008) (citation omitted).
Here, Appellant called six witnesses who testified as to his reputation
for being peaceful and nonviolent. (See N.T. Trial, 1/08/15, at 265-92). It
was Appellant’s choice as to which character witnesses he chose. Appellant
has not pointed to anything in the testimony of the remaining character
witnesses that would have differentiated their testimony from the first six.
(See Appellant’s Brief, at 46-49). Further, while claiming prejudice, (see
id.), Appellant has not demonstrated any. Rather, we note that the jury
acquitted Appellant of both aggravated assault and PIC. We have
thoroughly reviewed the record in this matter, there is nothing in this case
that was so inherently complex that it required calling more than six
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character witnesses nor did the limitation in the number of witnesses impair
Appellant’s ability to present his defense that he accidentally stabbed
Adams. Accordingly, we find that Appellant has not shown that the trial
court abused its discretion by only allowing him to present six character
witnesses. See Walsh, supra at 621.
Accordingly, for the reasons discussed above, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judge Bowes joins the Memorandum.
Judge Ott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
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