Com. v. Ames, T. ( 2022 )

J-S32024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY DAVID AMES :
:
Appellant : No. 1387 MDA 2021
Appeal from the Judgment of Sentence Entered September 14, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005889-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY DAVID AMES :
:
Appellant : No. 1388 MDA 2021
Appeal from the Judgment of Sentence Entered September 14, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005878-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: DECEMBER 19, 2022
Appellant, Troy David Ames, appeals from the aggregate judgment of
sentence of 40½ to 81 years of incarceration, imposed following his
convictions for nine counts, all of which involve the domestic abuse of his
then-spouse. We affirm.
The essential facts are straightforward, as the case turned on the
credibility of the victim, L.A. She and Appellant met in November of 2014 and
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married in June of 2015. N.T., 4/19-23/21, at 129. The couple and their
child, born in 2017, shared a residence. Id. On Saturday, October 28, 2018,
Appellant came home at approximately 3:00 a.m. Id. at 130. Appellant was
visibly intoxicated and entered their bedroom, where L.A. was sleeping. Id.
at 131. He straddled L.A. and put a butcher knife against her neck, telling her
that he was going to kill her. L.A. begged Appellant to stop and managed to
grab the knife and throw it. Id. at 132. Appellant began punching her head
and face with a closed fist, telling her that she was going to die. Id. at 134.
Appellant eventually took a pillow, held it over her face, and began
choking her. Id. at 134-35. Appellant ultimately ended the attack on his own
and told her to “do what you want to do.” Id. at 136. Both were bleeding
and Appellant told her to take a shower with him. He began crying, “asking
why [she] made him do what he did[.]” Id. at 138. Afterwards, Appellant
told her to perform oral sex. L.A. said she did not want to and that she was
in pain and scared. Id. at 139. She started but “stopped and said [she]
couldn’t do it.” Id. Appellant then forcibly engaged in anal and vaginal
intercourse, telling her “to be quiet and enjoy it.” Id. Afterwards, Appellant
fell asleep. While he slept, L.A. took pictures of her injuries and sent them to
a friend. Id. at 141. The following Monday she sought treatment at a walk-
in clinic, where she made an excuse for her injuries.1
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1These acts formed the basis for the charges at docket 2019-5889. Appellant
was charged with one count each of the following crimes: sexual assault, 18
(Footnote Continued Next Page)
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L.A. stayed with Appellant for a few days and then stayed with her
parents for three nights. Id. at 143. She returned home because Appellant
called her to apologize and say that he loved her. Id. at 145. When she
walked inside, Appellant pushed her against the wall and choked her with both
hands. Id. at 146. He said “if [she] called the police, he was going to kill
[her] and cut [her] body up in pieces and bury [her.]” Id.2
In December, L.A. left Appellant and, at some point over the next two
months, contacted his parole agent. Appellant’s parole conditions were
modified to include a no contact provision, which Appellant violated by
contacting L.A. via phone and Skype. Id. at 161. Appellant instructed her
“to drop the no contact order or he was going to drive his truck through [her]
office building.” Id.
L.A. testified that this was not the first time Appellant abused her. In
September of 2015, Appellant came home drunk and started beating L.A. with
his fists. She escaped and ran to a neighbor’s yard. Appellant gave chase
and pulled her home by the hair, where he continued beating her. He also
stabbed her stomach several times with a pencil. She called 911 and Appellant
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Pa.C.S. § 3124.1; aggravated assault, 18 Pa.C.S. § 2702(a)(4); simple
assault, 18 Pa.C.S. § 2701(a)(1); terroristic threats, 18 Pa.C.S. § 2706(a)(1);
and strangulation, 18 Pa.C.S. § 2718(a)(1).
2Appellant was separately charged at docket 2019-5878 with one count each
of the following crimes: strangulation, 18 Pa.C.S. § 2718(a)(1); simple
assault, 18 Pa.C.S. § 2702(a)(1); terroristic threats, 18 Pa.C.S. § 2706(a)(1);
and intimidation of witness, 18 Pa.C.S. § 4952(a)(1). The cases were
consolidated for trial.
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was arrested. The Commonwealth inquired if Appellant was abusive on other
occasions. L.A. responded that Appellant had been physically abusive multiple
times and would often throw plates and punch holes in walls. Id. at 170. L.A.
described Appellant as controlling, stating that he forced her to quit social
media and prevented her from contacting family and friends. Id. at 170-71.
Appellant’s 2015 conviction was also referenced during the testimony of
David Woodring, a parole agent employed by the Pennsylvania Board of
Probation and Parole. Agent Woodring supervised Appellant during 2018 and
2019. Id. at 346. He explained that on or about February 6, 2019, Appellant’s
parole conditions were modified to include a no contact provision regarding
L.A. This condition was imposed at L.A.’s request and due to her “reports that
they were getting a divorce and things were getting kind of ugly and it was in
the best interest.” Id. at 347. L.A. then contacted Agent Woodring on March
27th or 28th of 2019. Id. She reported the incidents recounted above, as well
as Appellant’s violations of the no contact condition. L.A. supplied screenshots
from her cellphone showing Appellant attempted to contact her four times on
February 16th, once on the 18th, and once on the 25th. Agent Woodring, with
L.A.’s consent, contacted the Lower Windsor Police Department and provided
them with a written statement by L.A. and the photographs that L.A. had sent
to her friend. Id. at 348.
Before the Lower Windsor Police Department officially filed charges,
Agent Woodring instructed Appellant to report to his office on April 1, 2019,
whereupon Appellant was taken into custody for technical violations of his
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parole conditions, namely the requirement that a parolee “shall refrain from
assaultive behavior” and his violation of the no contact condition. Id.
Appellant was provided with a notice that a hearing would be held concerning
these alleged violations and Agent Woodring explained his accompanying
rights. Id. at 349. Appellant was also “afforded the opportunity ... to admit
to the violations,” which would obviate the need for a hearing. Id. at 350.
Appellant signed the “Notice of Charges and Hearing” document. Id. at 357.
That document set forth the alleged violations, which included details of L.A.’s
account of the assault and Appellant’s attempts to contact L.A. The bottom
of the form contained an admission by Appellant that he “was in violation of
the terms and conditions of my parole. The specific violation(s) that I
committed was/were: 5C: Assaultive Behavior; 7: Violation of no contact with
[L.A.].” Commonwealth’s Exhibit 23 at 1-2 (some capitalization omitted).
The jury convicted Appellant of all counts on April 23, 2021. Following
a postponement at Appellant’s request, the trial court imposed its aggregate
sentence of 40½ to 81 years of incarceration on September 14, 2021. That
sentence included a mandatory minimum of 25 to 50 years of incarceration,
triggered by Appellant’s prior conviction for aggravated indecent assault. 42
Pa.C.S. § 9718.2(a)(1) (requiring mandatory minimum sentence of 25 to 50
years if the person has, at the time of the commission of the current offense,
previously been convicted of, inter alia, aggravated indecent assault).
Appellant timely filed post-sentence motions, which were denied. He then
filed a timely notice of appeal, and complied with the trial court’s order to file
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a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. The trial
court thereafter filed a Rule 1925(a) opinion. Appellant raises six issues for
our review:
I. Whether the lower court erred in permitting into evidence
Appellant’s prior conviction(s) in case number 7438 CA 2015, and
the lower court erred in permitting into evidence that Appellant
was on parole for the sentence imposed in case number 7438 CA
2015 and/or 3158 CA 2008.
II. Whether trial counsel was ineffective in failing to file a pretrial
motion to suppress [A]ppellant’s statements to parole Agent
David Woodring and Commonwealth’s Exhibit “23”.
III. Whether trial counsel was ineffective in failing to object at trial
statements made by … [A]ppellant to parole agent David
Woodring and Commonwealth’s Exhibit “23”.
IV. Whether the trial court erred in sustaining the
Commonwealth’s objection to defense counsel attempting to illicit
[sic] testimony from [P]arole [A]gent Woodring regarding …
[A]ppellant’s explanation concerning the parole
violations/admissions previously testified to by [P]arole [A]gent
Woodring and contained in Commonwealth’s Exhibit “23”.
V. Whether the verdicts in 5889 CA 2019 and 5878 CA 2019 were
against the greater weight of the evidence in that the
overwhelming evidence established … [A]ppellant could not have
committed the offenses.
VI. Whether the trial court abused its discretion in sentencing the
appellant to 40½-80 years in that the court erred in imposing a
mandatory sentence of 25-50 years and in running [the]
sentences consecutive[ly].
Appellant’s Brief at 4 (unnecessary capitalization omitted).
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Appellant’s first issue challenges the Honorable Maria Musti Cook’s
ruling3 granting the Commonwealth’s motion to admit Appellant’s 2015
conviction, as well as Appellant’s admission to Agent Woodring.4 We find that
these claims are waived.
On August 27, 2020, the Commonwealth filed a motion to introduce
Appellant’s prior abuse of L.A., which included both the prior conviction and
general assaultive behaviors that were unreported. The latter encompassed
“throwing plates of food at her, hitting her, pulling her hair, yelling at her,
threatening to kill her[,] and acts of controlling behavior.” Commonwealth’s
Motion In Limine, 8/27/20, at 3. The Commonwealth asserted that these acts
were admissible pursuant to Rule of Evidence 404(b). Broadly speaking, that
Rule precluded the Commonwealth from establishing that Appellant assaulted
L.A. based on the fact he previously assaulted her, as that would invite the
jury to convict Appellant based on his propensity to commit violence against
L.A. See Pa.R.E. 404(b)(1). However, Rule 404(b)(2) permits the
introduction of that type of evidence “for another purpose[.]” Pa.R.E.
404(b)(2). The Commonwealth’s motion in this case relied on three separate
other purposes: common scheme, motive, and res gestae.
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3 Judge Cook decided the pre-trial motions, and the Honorable Craig T.
Trebilcock presided over the trial.
4 As indicated by Appellant’s statement of questions, Appellant was on parole
from his conviction for the 2015 incident “and/or 3158 CA 2008.” Appellant’s
Brief at 4. That conviction was for burglary. The jury was not told for which
crime Appellant was on parole.
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Beginning with common scheme, caselaw requires a comparison of the
other crimes and the charged crimes. If there is a “logical connection”
between the crimes, then the evidence may be admissible on a non-propensity
basis. See Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014).
According to the Commonwealth, “[Appellant]’s plea of no contest to charges
of terroristic threats and simple assault are admissible to prove a common
scheme by [Appellant] to preserve his intimate relationship ‘through
harassment, intimidation, and physical violence.’” Motion In Limine, 8/27/20,
at 5. The prior acts met the comparative criteria because they were identical
in terms of location (the marital home) and victim (L.A.). For purposes of this
theory of admissibility the Commonwealth did not specifically address the host
of uncharged assaultive behavior.
The second theory was motive. The Commonwealth asserted that
evidence of prior abuse is generally admissible “to establish motive, intent,
malice, or ill-will.” Id. at 6 (quoting Commonwealth v. Ivy, 146 A.3d 241,
252 (Pa. Super. 2016)). The Commonwealth noted that L.A. testified at the
preliminary hearing that when she begged him to stop the attack, “he said he
had to kill me because back in 2015, I called the cops on him before and he
knew I’d do it again.” N.T. Preliminary Hearing, 9/12/19, at 10. Thus, the
Commonwealth posited that Appellant attacked her, in part, as revenge for
reporting the abuse to the police.
Third, the Commonwealth cited the “res gestae” theory of relevance,
which at its broadest level of application allows the introduction of evidence
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to “complete the story of the crime on trial by proving its immediate context
of happenings near in time and place.” Commonwealth’s Motion In Limine,
8/27/20, at 8 (quoting Ivy, supra at 252-53). According to the
Commonwealth, both the prior conviction and the general history of assaultive
behavior were necessary to form a complete picture in this case. The
Commonwealth asserted that the probative value of the evidence outweighed
its prejudicial effect.
The trial court ultimately granted the motion in all respects, agreeing
with the Commonwealth that the prior conviction was admissible “as evidence
to show a common scheme to preserve [Appellant]’s intimate relationship with
the victim through harassment, intimidation, and physical violence.” Order,
12/14/20, at 2. Appellant now challenges that ruling on appeal. However,
we find that Appellant waived any objection regarding the prior convictions.5
While the trial court and Commonwealth both address the merits of his
argument, the certified record establishes that Appellant waived this issue. At
the pre-trial hearing on the Commonwealth’s motion, Appellant largely
focused on the uncharged behavior and conceded the admission of the prior
conviction.
ATTORNEY REINER: Your Honor, the Commonwealth cited 404(b)
rules in his motion. Clearly, all of these are extremely prejudicial
for my client if they are allowed to be introduced at trial. With
respect to – specifically, again, I think the Commonwealth passed
up a list of allegations by the victim. It is a laundry list of
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5 Appellant does not challenge the admission of the uncharged assaultive
behavior.
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complaints and allegations and I would object to all of those
coming in. They are all – they were reported to the police on April
25, 2020. They weren’t charged offenses. I would ask for those
all to be excluded from testimony at trial.
One, for primarily being irrelevant, and the prejudicial nature of
all of those statements. I would ask that the victim’s
testimony would be limited to the prior conviction. I can’t
dispute that. The case law supports that. The prior
conviction comes in as common scheme.
N.T. Motion In Limine, 9/10/20, at 19-20 (emphasis added).
This concession waives Appellant’s challenge to the admission of the
prior conviction he now raises on appeal. We acknowledge that the filing of a
motion in limine entails a recognition that the evidence is presumably
inadmissible. See Cicconi Auto Body v. Nationwide Ins. Co., 904 A.2d
933, 935 n.4 (Pa. Super. 2006) (“A motion in limine is a ‘pretrial request that
certain inadmissible evidence not be referred to or offered at trial.’”) (quoting
Black’s Law Dictionary, 8th ed. 2004). Nevertheless, issue preservation
requirements still apply. For example, in Commonwealth v. Cousar, 928
A.2d 1025 (Pa. 2007), the Commonwealth introduced evidence that the
defendant had a tattoo with the letters “M.O.B.” to link the defendant to
another participant in a robbery, who also had a tattoo with the same letters.
The defendant argued that this evidence was subject to Rule 404(b),
“imply[ing] that [the defendant] had criminal propensities and was connected
to illegal gang activity.” Id. at 1040. However, at trial, the defendant alleged
only that the evidence was irrelevant. Our Supreme Court observed:
Even assuming his presentation to this Court can be interpreted
to raise the contention that the trial court’s ruling violated Rule
404(b)(3), see Pa.R.E. 404(b)(3) (stating that other-crimes
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evidence may only be admitted upon a showing that its probative
value outweighs its potential for prejudice),[6] [the a]ppellant
failed to preserve this issue for appeal, as the objection lodged in
the trial court dealt solely with the question of relevance. See
N.T. May 4, 2001, at 17. “The rule is well settled that a party
complaining, on appeal, of the admission of evidence in the [c]ourt
below will be confined to the specific objection there made.”
Commonwealth v. Boden, … 159 A.2d 894, 900 ([Pa.] 1960).
See generally Commonwealth v. Rovinski, 704 A.2d 1068,
1075 (Pa. Super. 1997). Thus, any claim based on Rule 404(b)(3)
is waived.
Id. at 1041 (footnote added).
If a generalized relevancy objection is insufficient to preserve a separate
Rule 404(b) issue for appellate review, then a concession that the evidence is
admissible also cannot preserve the issue. See also Commonwealth v.
Lehman, 275 A.3d 513, 529 (Pa. Super. 2022) (“Although [the a]ppellant
objected to the at-issue impeachment at trial, he never cited Rule 404(b) at
that time, nor did he reference the rule’s ban on prior bad acts evidence during
the sidebar discussion.”).
We also find that waiver is an appropriate sanction because permitting
a party to concede admissibility of evidence only to later complain on appeal
creates a tactical advantage.7 There is some evidence demonstrating that
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6 Rule 404(b) has since been amended, and the referenced language now
appears within Rule 404(b)(2).
7The Commonwealth’s position on the merits heavily relies on precedents like
Arrington, supra, which permitted the introduction of evidence of prior
abuse against separate women to show a “common scheme.” Various Justices
(Footnote Continued Next Page)
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Appellant’s counsel intended to use the prior conviction and incarceration as
a reason to discredit L.A., theorizing that L.A. was motivated to have Appellant
returned to prison for violating his parole due to their relationship ending.
Immediately prior to jury selection, the Commonwealth raised an issue about
Appellant’s incarceration, stating: “I believe the defense … actually wanted
that information to come out, that she was having contact with him while he
was incarcerated.” N.T., 4/19-23/21, at 13. Appellant’s counsel responded,
“I was planning on bringing up the fact that he was in prison[.]” Id.
Appellant’s counsel followed up by referencing Appellant’s sentencing for the
2015 conviction: “[I]t was said on the record that [L.A.] wished to have
contact with him, even though he was in prison, and they proceeded to have
contact the entire time. So that’s part of our defense is that she continued to
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of the Supreme Court of Pennsylvania have expressed reservations about
cases like Arrington. See Commonwealth v. Hicks, 156 A.3d 1114, 1152–
53 (Donohue, J., dissenting) (criticizing Arrington as involving “unconnected
acts, constituting, at most, a pattern of abusive behavior toward women” that
was clearly not part of the defendant’s purpose in committing the crime
charged); id. at 1157 (Wecht, J., dissenting) (agreeing with Justice Donohue
and adding that “[i]t is natural and well-nigh inevitable … that a juror will
conclude that, if a person has assaulted women before, he likely will do so
again”); id. at 1130 (Saylor, C.J., concurring) (distinguishing between use of
other acts evidence to prove identity versus other theories of relevance;
agreeing with Justice Donohue that “various majority opinions ... have
incorrectly blended various distinct grounds for relevance”). Hicks did not
produce a majority opinion, but in light of these strong criticisms, we decline
to address whether the evidence was properly admitted on this basis.
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have contact with him.” Id. Appellant’s counsel also stated, “[L.A.] went into
parole and knew that he was going to be locked up.” Id. at 14.
Appellant’s opening statement also informed the jury that the case “is
about a failed marriage, it’s about custody, it’s about timing and it’s about
revenge.” Id. at 120. Counsel told the jury that they would hear about
Appellant’s prior conviction and incarceration, “and you are going to hear that
he did counseling, he did anger management, he did everything that was
asked of him during that time.” Id. at 121. Counsel also claimed that, during
that period of time, L.A. “stayed in contact” with Appellant and “they were
planning their future together.” Id. However, “their marriage began to fall
apart. … [Appellant] was moving on with his life without [L.A.].” Id.
Appellant’s attorney emphasized that L.A. failed to report the incident for
months afterward, and argued that L.A. was angry that the two had separated.
Counsel claimed: “She began to make threats to contact his parole officer,
which she ultimately followed through on. She texted him, I can’t wait to see
you back in jail, which was her plan all along.” Id. at 125. Appellant’s counsel
further pointed out that L.A. did not contact the police directly; instead, “she
reported it to the one person that she knew who could put him in jail
immediately.” Id. at 126.
Had that theory convinced the jury, then Appellant would have
benefitted from the concession that his prior conviction was admissible.
Obviously, if Appellant had voluntarily introduced his prior conviction and
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parole status as a tactical choice, there would be no question that he could
not complain that the jury heard the evidence. We see no difference between
that scenario and what occurred here. Simply put, we cannot find that the
court abused its discretion when our adversarial system of justice
contemplates that the judge will be called upon to choose between competing
positions. It is, of course, possible that counsel was merely making the best
of a bad situation, in light of the ruling. But counsel’s concession created
confusion where an objection would have eliminated it.
Turning to the admissibility of Appellant’s admission to Agent Woodring,
we conclude that Appellant failed to preserve the argument put forth in his
brief. Appellant’s brief focuses on the prejudicial nature of his status as a
parolee, thus arguing that the jury was unduly inflamed by hearing that
Appellant was on parole. See Appellant’s Brief at 15-16. However, at the
pre-trial hearing, Appellant merely objected to the statements on the basis
that the statements themselves were prejudicial. See N.T. Motion In Limine,
9/10/20, at 21 (“Again, my basis for objecting to that coming into trial is the
prejudicial nature of that document and that admission.”). Appellant’s current
argument is essentially a variation of the argument that the prior conviction
should not have been admitted. Certainly, absent the admissibility of the
2015 conviction, informing the jury that Appellant was on parole for a crime
would raise serious questions concerning the admissibility of that evidence.
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Because Appellant objected only on the basis that the statements themselves
were prejudicial, as opposed to his status as a parolee, the claim is waived.
Appellant’s second and third issues both challenge trial counsel’s
stewardship with respect to the admissibility of Appellant’s statement to Agent
Woodring. We find that these issues must be deferred to collateral review.
The substance of both claims is the same. Appellant contends that trial
counsel ineffectively failed to file a pre-trial motion to suppress Appellant’s
statements to Agent Woodring. Relatedly, Appellant separately alleges that
trial counsel ineffectively failed to object to Agent Woodring’s testimony. As
a general rule, ineffective assistance of counsel claims should be deferred to
the collateral review stage. See Commonwealth v. Grant, 813 A.2d 726(Pa. 2002). In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the
Supreme Court of Pennsylvania recognized two exceptions to this general rule.
First, trial courts retain discretion to consider claims of ineffective assistance
“where a discrete claim (or claims) of trial counsel ineffectiveness is apparent
from the record and meritorious to the extent that immediate consideration
best serves the interests of justice[.]” Id. at 563. The second exception
applies where there is “good cause shown” and the review “is preceded by the
defendant’s knowing and express waiver of his entitlement to seek PCRA
review from his conviction and sentence, including an express recognition that
the waiver subjects further collateral review to the time and serial petition
restrictions of the PCRA.” Id. at 564.
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The latter exception does not apply. Even assuming Appellant
established “good cause” to review this issue at this juncture, he did not waive
his right to seek collateral review. “A court should agree to such review only
upon good cause shown and after a full PCRA waiver colloquy.” Id. at 580.
Thus, the claim(s) would have to satisfy the first exception and be sufficiently
“meritorious” to the extent that immediate review is required to “best serve[]
the interests of justice[.]” Id. at 599. They are not. We agree that the
statements were potentially suppressible as the product of a custodial
interrogation because parolees must be given Miranda8 warnings when
subjected to custodial interrogation. Minnesota v. Murphy, 465 U.S. 420(1984); Commonwealth v. Cooley, 118 A.3d 370, 376 (Pa. 2015)
(concluding that parolee was in custody during parole meeting). Appellant
does not develop an argument establishing that he was both in custody and
interrogated such that the statements were clearly inadmissible. Instead, he
merely claims that a motion “would likely have been successful.” Appellant’s
Brief at 20.
Additionally, Appellant does not seriously address whether the prejudice
component has been met. To prevail on an ineffective assistance of counsel
claim, the claimant must establish, in addition to other requirements, a
“reasonable probability that the outcome of the proceedings would have been
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8 Miranda v. Arizona, 384 U.S. 436 (1966).
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different.” Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). Appellant’s
argument on that point is undeveloped. “Had the statement not been
admiss[i]ble, Appellant argues the outcome of the trial would have been
different. This is especially highlighted in that the jury verdict was against the
greater weight of the evidence.” Appellant’s Brief at 20. These conclusory
statements, which rely in part on a presumption that this Court will agree that
he was entitled to a new trial based on the weight of the evidence, do not rise
to the level of a sufficiently “meritorious” claim, such that the usual rule of
deferring ineffective assistance claims to collateral review does not apply.
Finally, Appellant’s waiver of the first issue poses obstacles to
performing a prejudice analysis. Whether Appellant can establish a
reasonable probability that the outcome would have been different requires
an analysis of whether the 2015 conviction was properly admitted.9 For the
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9 We appreciate that the trial court attempted to address the ineffective
assistance of counsel claims in the alternative. However, insofar as these
claims will almost assuredly be pursued during subsequent proceedings, we
caution that nothing in the trial court’s analysis should be read to resolve the
issues on their merits. For example, the court concluded that filing a motion
to suppress the statements was not a viable strategy because “Judge Cook
had already ruled upon these matters as a result of the Commonwealth’s
motion in limine.” Trial Court Opinion, 12/29/21, at 13.
The fact that Judge Cook granted a motion to admit the statements as an
inculpatory admission is analytically distinct from whether a basis to exclude
the statements exists. A successful challenge on Miranda grounds would
prohibit the introduction of those statements regardless of whether some
other evidentiary rule would otherwise permit the Commonwealth to introduce
the statements. The Rules of Evidence cannot, of course, conflict with the
(Footnote Continued Next Page)
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foregoing reasons, we find that these two claims must be pursued during
collateral proceedings.
Appellant’s fourth issue involves the trial court’s sustaining the
Commonwealth’s objection during a portion of Appellant’s cross-examination
of Agent Woodring. Appellant’s counsel asked, “[Appellant] told you that the
messages were him trying to talk to his daughter, is that true?” N.T., 4/19-
23/21, at 362. The Commonwealth objected on the grounds of hearsay.
Appellant’s response argued that the conversation between Appellant and
Agent Woodring was relevant, with the trial court’s responding that “[t]heir
objection is not relevance, their objection is hearsay.” Id. Appellant did not
make any further response.
We review evidentiary decisions for an abuse of discretion.
Commonwealth v. Jacoby, 170 A.3d 1065, 1090 (Pa. 2017). “An abuse of
discretion is not merely an error of judgment, but if in reaching a conclusion
the law is overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by
the evidence or the record, discretion is abused.” Commonwealth v.
Walker, 92 A.3d 766, 772–73 (Pa. 2014) (internal quotation marks and
citations omitted).
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United States Constitution. Cf. Crawford v. Washington, 541 U.S. 36, 61
(2004) (“Where testimonial statements are involved, we do not think the
Framers meant to leave the Sixth Amendment’s protection to the vagaries of
the rules of evidence, much less to amorphous notions of ‘reliability.’”).
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Appellant now contends that the trial court abused its discretion by
failing to afford him the latitude to elicit necessary context pursuant to
Pennsylvania Rule of Evidence 106, colloquially known as the “rule of
completeness.” That Rule states: “If a party introduces all or part of a writing
or recorded statement, an adverse party may require the introduction, at that
time, of any other part – or any other writing or recorded statement – that in
fairness ought to be considered at the same time.” Pa.R.E. 106. The purpose
of the Rule is to “give the adverse party an opportunity to correct a misleading
impression” if another portion of that statement is introduced. Comment,
Pa.R.E. 106.
Here, we find no abuse of discretion by the trial court, as Appellant has
not established that his reasons for contacting L.A. would combat any
misimpression created by the Commonwealth. The Commonwealth merely
established that Appellant attempted to contact L.A. It did not suggest that
Appellant contacted L.A. for any specific reason. We thus agree with the trial
court that Appellant was attempting to introduce his own hearsay.10
____________________________________________
10The trial court observed, “There does appear to be a preference, within our
case law, against allowing defendants to assert the privilege of not testifying
while nonetheless attempting to inject their own, favorable, hearsay
statements into the proceedings.” Trial Court Opinion, 12/29/21 at 18. We
agree, but we note that the “rule of completeness” can permit the introduction
of evidence that would otherwise be hearsay on the basis that supplying
context is a non-hearsay purpose.
(Footnote Continued Next Page)
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Appellant’s fifth issue challenges the weight of the evidence. He points
to several pieces of evidence that undermine L.A.’s testimony to the extent
that the trial court erred in declining to grant a new trial on weight grounds.
Appellant points out that the physician who treated L.A. two days after the
initial incident, Dr. Kathleen Struminger, stated that L.A. complained of a toe
injury and a laceration on her finger. N.T., 4/19-23/21, at 399. She said that
the laceration did not appear to be serious, and she treated the toe fracture
with tape. Id. Dr. Struminger also noted a bruise on the left side of L.A.’s
face. Additionally, Dr. Struminger is a mandated reporter and required to
report any suspected abuse to authorities. Id. at 402. She did not believe
that there was anything to report based on “what [L.A.] told me.” Id.
Appellant also offered the testimony of Dr. Kathleen Brown, a professor
at the University of Pennsylvania’s nursing school who specializes in the field
of sexual assault. Id. at 433. Dr. Brown was qualified as an expert in the
fields of forensic nursing, physical injury, and treating sexual assault. Id. at
____________________________________________
It is sometimes stated that the additional material may be
introduced only if it is otherwise admissible. However, as a
categorical rule, that statement is unsound. In particular, the
statement is sometimes inaccurate as applied to hearsay law. At
least when the other passage of the writing or statement is so
closely connected to the part the proponent contemplates
introducing that it furnishes essential context for that part, the
passage becomes admissible on a nonhearsay theory.
The effect of the introduction of part of a writing or conversation, 1 McCormick
On Evid. § 56 (8th ed.) (footnotes omitted).
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438. Dr. Brown reviewed the incident reports and the photographs depicting
L.A.’s injuries, and opined that “the history she gave and the injury that I see
are not consistent with one another. I would expect to see much more injury
than she has.” Id. at 449. Additionally, she would expect to see more cuts
and lacerations if a knife were held to the throat. Id. Appellant submits that
these observations contradict L.A.’s testimony that Appellant repeatedly
punched her in the face and that she grabbed a knife with her hand. When
combined with other circumstances, including the fact that L.A. gave various
explanations for the source of her injuries, Appellant argues that he is entitled
to a new trial.
The judge’s task in ruling on a weight of the evidence claim is well-
settled.
Trial judges, in reviewing a claim that the verdict is against the
weight of the evidence do not sit as the thirteenth juror. 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.”
Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000) (citation
omitted). The trial court cogently explained its reasons for rejecting
Appellant’s claim:
There was evidence in which a jury might have found
some support for the notion that the victim was lying.
The defense cites to various evidence that is
potentially at odds with the victim’s claims. These
include the testimony of a defense expert in forensic
nursing and sexual[-]assault examinations, Doctor
Kathleen Brown, who expected to see more significant
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injuries, based upon the victim’s claims, than what
were present. The treating physician, Doctor
Kathleen Struminger, a mandatory reporter, did not
see any injuries prompting her to make a report—
though, it should be noted, this physician stated that
there was nothing to report “with what [the victim]
told me.” And the victim had stayed with [Appellant]
and expressed feelings of love and sexual desire for
him.
Unacknowledged, for obvious reasons, by the defense
is that victims of physical and sexual abuse have
reasons for reporting in the manner in which they
choose — reasons that can often appear
incomprehensible to an outsider who is not the one
suffering abuse at the hands of a supposed loved one.
And, in fact, as the victim testified about some of
these inconsistencies, which we recounted in the facts
section above, she loved [Appellant] at one time, she
wanted her marriage to work, and they shared a
daughter for whose safety the victim worried. Hence,
Dr. Struminger, the mandatory reporter, testifying
that there was nothing to report with what the victim
had told her. The doctor’s own views were distorted
by the victim’s claims as to how the injuries were
incurred and the victim supplied a pretty standard
reason as to why she acted in a manner that some
might construe as inconsistent with her later
allegations.
Arguably, there are pieces of evidence which
undermine the Commonwealth’s case; however, the
test is not whether there is any evidence that goes
against the Commonwealth’s assertions. Rather, this
[c]ourt is to examine whether the verdict was “so
contrary to the evidence as to shock one’s sense of
justice.” In light of the evidence favoring conviction,
recounted throughout this opinion, we were not
shocked by the verdict and, therefore, we were barred
from overturning that verdict. Upon receiving the
verdict, we did not lose our breath or threaten to slip
from the bench. In spite of some inconsistencies,
present in all cases, but especially in the he-said-she-
said sort involving domestic strife, Lady Justice is still
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firmly rooted atop her pedestal. As to either case, no
relief was due on this claim.
Trial Court Opinion, 12/29/21, at 19-21 (citations omitted).
Mindful that we are reviewing the exercise of discretion and not whether
the verdict is against the weight of the evidence, Widmer, supra at 753, we
find no abuse of discretion. The trial court’s opinion addresses the points
raised by Appellant and explains why, as the presiding judge who heard and
saw the witnesses firsthand, a new trial is not warranted. We do not find that
the court “abused its discretion by reaching a manifestly unreasonable
judgment, misapplying the law, or basing its decision on partiality, prejudice,
bias, or ill-will.” Commonwealth v. Clay, 64 A.3d 1049, 1056 (Pa. 2013).
No relief is due.
Appellant’s final claim concerns his aggregate sentence. He presents
challenges to both the legality and discretionary aspects of his sentence. We
readily dispose of the former claim, which is that the mandatory minimum
sentence required by 42 Pa.C.S. § 9718.2(a)(1) is unconstitutional.
Appellant’s precise challenge is not entirely clear, as he claims that the statute
unconstitutionally permits a judge to impose the sentence without having the
jury find the facts of the prior conviction, while conceding that caselaw has
rejected this argument. See generally Commonwealth v. Golson, 189
A.3d 994, 1002 (Pa. Super. 2018) (explaining that the fact of a prior conviction
is the remaining exception to line of United States Supreme Court cases
holding that facts leading to increased punishment must be determined
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beyond a reasonable doubt by the fact-finder). Appellant then claims the
mandatory sentence “manifestly results in cruel and unusual punishment.”
Appellant’s Brief at 33. The reasons why his sentence is “cruel and unusual”
are not explained.
Briefly, we note that in Commonwealth v. Baker, 78 A.3d 1044 (Pa.
2013), the Supreme Court of Pennsylvania rejected a claim that the Section
9718.2 mandatory punishment was “grossly disproportionate” based on the
gravity of the triggering conviction (in that case, possessing and viewing child
pornography). The proportionality concept recognizes that “punishment for
crime should be graduated and proportioned to offense.” Weems v. United
States, 217 U.S. 349, 367 (1910). Appellant offers no substantive argument
that the mandatory period of incarceration is “grossly disproportionate” based
on his triggering offense. See also Commonwealth v. Colon-Plaza, 136
A.3d 521, 529 (Pa. Super. 2016) (applying Baker and rejecting the appellant’s
attempt to compare the mandatory minimum sentence against the guideline
ranges for a first-time offender). Thus, his legality-of-sentencing argument
fails.
Turning to the discretionary aspects of Appellant’s sentence, those
appeals are not permitted as of right. A four-part test must be met to invoke
our jurisdiction to review the discretionary aspects of sentencing.
[W]e conduct a four-part analysis to determine: (1) whether [the]
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 sentence; (3) whether [the] appellant’s brief has a
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fatal defect; and (4) whether there is a substantial question that
the sentence appealed from is not appropriate under the
Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.2010) (citations
omitted).
Appellant filed a timely appeal, preserved his sentencing issue in a post-
trial motion, and included a Rule 2119(f) statement in his brief. Regarding
the substantial question component, the Commonwealth argues that Appellant
has failed to present a substantial question because his complaint is simply
that the judge imposed consecutive sentences. “Generally speaking, the
court’s exercise of discretion in imposing consecutive as opposed to
concurrent sentences is not viewed as raising a substantial question that
would allow the granting of allowance of appeal.” Commonwealth v.
Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010) (citations omitted).
In Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), we
acknowledged “the critical distinction between a bald excessiveness claim
based on imposition of consecutive sentences and an argument that
articulates reasons why consecutive sentences in a particular case are
unreasonable or clearly unreasonable.” Appellant appears to argue that the
imposition of consecutive sentences is unreasonable because, in part, the
mandatory sentence of 25 to 50 years’ incarceration was sufficient on its own.
We accept that this is an articulable reason beyond the mere fact that the
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sentences were imposed consecutively, thus constituting a substantial
question for our review.
Having invoked our jurisdiction, Appellant fails to show that the trial
court abused its discretion. Appellant’s argument on the merits is little more
than an attack on the trial court’s decision to impose the sentences
consecutively. For instance, he claims: “[T]he sentences in the individual
cases should have run concurrent[ly]. If so, but still running the sentences
consecutive[ly] for the two cases, the aggregate sentence would have been
30–60 years as opposed to 40½ to 80 years.” Appellant’s Brief at 33. Of
course, every instance of consecutive instead of concurrent sentences will
result in a longer sentence. Appellant makes no attempt to show that the trial
court abused its discretion in any way.
We have reviewed the sentencing transcript, wherein the trial court
stated that it considered the pre-sentence report, Appellant’s background,
age, substance abuse issues, and the effect on the victim. N.T. Sentencing,
9/14/21, at 17-18. The court recognized that Appellant’s prior record score
was a five and, in considering Appellant’s rehabilitative needs and potential,
recounted the convictions that led to that score, which included convictions
for aggravated indecent assault, terroristic threats, and several counts of
simple assault. The court determined that these convictions establish “a
common theme here in [Appellant]’s background of victimizing others. He
seeks to impose his rule on others through violence, intimidation, and
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threats.” Id. at 20. The court opined that little has changed in Appellant’s
behavior from his earlier convictions in 1996 to the present case. The court
determined that these crimes were more of the same, as Appellant “was found
guilty of victimizing this same woman, not once, but multiple times.” Id. at
20-21. The court found “no rehabilitative potential. He’s reached his middle
age with a chronic pattern of extreme[,] violent behavior.” Id.
Sentencing judges enjoy a great degree of latitude in fashioning an
appropriate sentence because of their superior position to weigh these sorts
of issues. “Simply stated, the sentencing court sentences flesh-and-blood
defendants…. Moreover, the sentencing court enjoys an institutional
advantage to appellate review, bringing to its decisions an expertise,
experience, and judgment that should not be lightly disturbed.”
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). The trial court
thoroughly explained why some consecutive sentences were warranted in light
of Appellant’s history and the offenses, and we find no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2022
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