Com. v. Yan, Y.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
YUFAN YAN,
Appellant No. 1639 MDA 2016
Appeal from the Judgment of Sentence August 26, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0006068-2014
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 07, 2017
Appellant, Yufan Yan, appeals from the judgment of sentence imposed
on August 26, 2016, following his conviction by a jury on May 19, 2016, of
indecent assault and simple assault, 18 Pa.C.S. §§ 3126(a)(1) and
2701(a)(1), respectively.1 We affirm.
The trial court summarized the facts as follows:
The testimony at trial revealed that on September 20,
2014, the Appellant showed up uninvited to [M.C.’s] apartment.8
Appellant came into the apartment, sat down on the couch along
with Ms. [C.], put his arm around Ms. [C.], and tried to kiss Ms.
[C.] Ms. [C.] told him to stop and tried to show him the
apartment. At some point, the Appellant picked Ms. [C.] up and
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* Former Justice specially assigned to the Superior Court.
1 The jury acquitted Appellant of attempted rape, 18 Pa.C.S. §§ 901(a) and
3121(a), and unlawful restraint, 18 Pa.C.S. § 2902(a)(1).
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carried her to the bedroom. Here, he threw her on top of the
bed and got on top of her. Ms. [C.] testified that the Appellant
“put his hands in my hoodie and he unbuttoned my shorts and
he touched my breasts9.” Ms. [C.] repeatedly fought back telling
the Appellant “no.”
8 . . . Ms. [C.] had met the Appellant through
WeChat (an online app that introduces people to
each other). Ms. [C.] had testified that the Appellant
had tried to kiss her previously when they first met
in the school library.
9 This occurred underneath Ms. [C.’s] bra.
Ms. [C.] told [Appellant] that she was going to call the
police. The Appellant froze and Ms. [C.] tried to get away.
However, the Appellant grabbed a hold of Ms. [C.’s] wrist and
tried to bring her back into the bedroom. At this point, Ms. [C.]
ran to the door and told the Appellant to leave. After he left, Ms.
[C.] called a friend and then called the police. The
Commonwealth introduced, through Commonwealth’s Exhibits 4
and 5, pictures depicting bruises on Ms. [C.’s] wrist. The
Commonwealth also introduced the testimony of Officer Chris
Miller of the Middletown Police Department who responded to the
call and noticed an injury to Ms. [C.’s] left forearm wrist area.
Detective Mark Hovan also responded to the scene and testified
that Ms. [C.] was visibly upset. Detective Hovan also testified
that he tried to get in contact with the Appellant and met with
him the next day at the police station. The Commonwealth
introduced, as Exhibit 6, a video of the interview.10
10 Portions of the video [were] played for the jury.
Trial Court Opinion, 2/28/17, at 3–4 (internal citations omitted).
Following Appellant’s conviction on May 19, 2016, the trial court
ordered an assessment by the Pennsylvania Sexual Offenders Assessment
Board to determine whether Appellant should be classified as a sexually
violent predator (“SVP”). On August 26, 2016, the trial court sentenced
Appellant to payment of costs, a fine of $1500, and twenty-four months of
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intermediate punishment, “three months of which will be restrictive in work
release followed by three months on house arrest with electronic monitoring
followed by regular probationary supervision” for the indecent-assault
conviction. N.T. (Sentencing), 8/26/16, at 9–10. For simple assault, the
trial court ordered the payment of a $300 fine and twenty-four months of
intermediate punishment, broken down identically, to run concurrently with
the sentence for indecent assault. Id. at 12–13. The trial court also
ordered that Appellant, who was not classified as an SVP, was required to
register as a sexual offender for fifteen years. Order, 8/26/16.
Appellant filed a motion to modify sentence on September 6, 2016.
On September 29, 2016, the trial court granted the motion and modified
Appellant’s sentence for the indecent-assault conviction to three to six
months of imprisonment with work-release eligibility, followed by eighteen
months of probation. The court entered an identical, concurrent sentence
for the simple-assault conviction.
Appellant filed a timely notice of appeal. The trial court ordered the
filing of a Pa.R.A.P. 1925(b) statement by October 27, 2016. On
November 22, 2016, the trial court filed a memorandum pursuant to Rule
1925(a), noting that due to Appellant’s failure to comply with Pa.R.A.P.
1925, all issues should be considered as waived. Memorandum Statement,
11/22/16. Appellant’s counsel thereafter filed a motion to file a Pa.R.A.P.
1925(b) statement nunc pro tunc, averring that she never received an order
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to file the Rule 1925(b) statement. When the trial court denied the motion
on December 6, 2016, due to lack of jurisdiction, Appellant filed, in this
Court, an application to remand the record to the trial court for the filing of a
statement nunc pro tunc and a trial court opinion pursuant to Pa.R.A.P.
1925. On January 17, 2017, this Court granted the requested relief.2
Appellant filed a concise statement of errors complained of on appeal on
February 6, 2017, and the trial court filed an opinion on February 28, 2017.
Appellant raises the following issues on appeal:
1. Whether the court erred when it permitted Detective
Hovan to offer testimony regarding pre-arrest statements
the Appellant made during two telephone calls wherein he
invoked his Article 1, § 9 right against self-incrimination
and the probative value of the statements was outweighed
by the potential for prejudice?
2. Whether the court erred when it failed to declare a mistrial
after Detective Hovan, who had been specifically warned
not to offer opinion testimony, interjected unsolicited
opinion testimony that he did not make an audio and video
taped statement of the alleged victim, because Detective
Hovan said “I believed her.”
3. Whether the court erred when it failed to [declare] a
mistrial after it was disclosed to the defense for the first
time during the direct examination of the complaining
witness that she made a telephone call to a friend and
discussed the alleged incident, after the Appellant had left
her house and prior to calling 911?
4. Whether the court erred in failing to instruct the jury as to
the failure to call a potential witness pursuant to model
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2 In the meantime, Appellant was paroled on December 30, 2016. Order,
12/30/16.
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jury instruction 3.21A, specifically the unnamed male
friend she called prior to calling 911?
5. Whether the court erred in failing to instruct the jury as to
the failure to produce certain documents or other tangible
evidence under Model Jury Instruction 3.21 B?
Appellant’s Brief at 3–4 (full capitalization and underline omitted).3
Appellant first challenges the testimony of Detective Mark Hovan.
Questions concerning the admission of evidence are within the sound
discretion of the trial court and will not be reversed on appeal absent an
abuse of discretion. Commonwealth v. Baumhammers, 960 A.2d 59 (Pa.
2008). “An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,
or such lack of support so as to be clearly erroneous.” Commonwealth v.
Dillon, 925 A.2d 131, 136 (Pa. 2007).
____________________________________________
3 We note that Appellant has failed to comply with Pa.R.A.P. 2119(a), which
states:
The argument shall be divided into as many parts as there are
question to be argued; and shall have at the head of each part—
in distinctive type or in type distinctively displayed—the
particular point treated therein, followed by such discussion and
citation of authorities as are deemed pertinent.
Appellant’s first two issues are properly presented, but the final three issues
are put forth as one claim, with the final two issues lacking in any indication
of their presentation. Appellant’s Brief at 33–37. Although Appellant’s
organization of his argument does not correspond with the issues presented
and does not facilitate our review, it does not impair our review to the extent
that we would decline to address the issues on this basis.
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Appellant asserts that the trial court erred in denying “Appellant’s
Motion in Limine to exclude the Appellant’s statements made during two
telephone conversations” with Detective Hovan. Appellant’s Brief at 13.
However, Appellant fails to identify the statements to which he is referring.
Further, Appellant does not indicate the place in the record the motion was
made, other than to state it was pretrial, and he does not inform this Court
whether his motion was written or oral. Appellant utterly fails to support his
contention with reference to the place in the record where inadmissible
evidence was permitted, as required by Pa.R.A.P. 2119(c) (stating if
reference is made to any matter appearing in the record, argument must set
forth place in the record where the matter appears). For this reason, we
could deem this argument waived. Commonwealth v. Williams, 980 A.2d
667 (Pa. Super. 2009) (stating defendant waived argument on appeal where
he failed to indicate in his brief where the issue was preserved in trial court).
Moreover, and significantly, we have reviewed the record and there is no
motion in limine in the record certified to us on appeal. We note that there
was testimony by Detective Hovan at trial regarding two telephone calls to
Appellant; thus, to the extent we can clarify the issue, we will address it.
Detective Hovan testified that upon receiving the call regarding a
possible sexual assault, he went to the victim’s residence. After speaking
with the victim and photographing her injuries, he contacted the assistant
district attorney, who advised him to contact Appellant. Detective Hovan
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testified that he wanted to speak to Appellant to “get his side of the story.”
N.T. (Trial), 5/18/16, at 131. The officer proceeded to Appellant’s home,
knocked on the door, but no one answered. Id. at 129. Detective Hovan
then telephoned Appellant, and when Appellant answered, Detective Hovan
stated as follows:
At that time I told him that I needed to talk to him about a
situation that occurred in Middletown earlier today. He said he
was not in Middletown, that he was at Lehigh. He just wanted to
talk about it over the phone. I said I would prefer to talk to him
in person. I want to talk to him about the situation. He wanted
to know more about the situation. I said I wasn’t going to tell
him that and that I needed to talk to him. It was important that
I talk to him as soon as possible.
. . . He said . . . I can’t get back today but I’ll be back tomorrow.
He said, can you call me back[?] I said, sure, I’ll call you back.
* * *
I ended up calling him back again and that was a shorter
conversation. It was just, hey, I need you to come back. He
said, I’ll be back tomorrow. I would like you to come to the
Middletown Police Department to talk to me. He said he would.
We organized a time for that, 1400 hours, 2:00 o’clock, 2:00
o’clock the next day.
N.T. (Trial), 5/18/16, at 130–131.
Appellant asserts that his statements to Detective Hovan must be
construed as “his invocation of his right against self-incrimination” under
Article 1, section 9 of the Pennsylvania Constitution. Appellant’s Brief at 13–
14. In support, he cites Commonwealth v. Molina, 104 A.3d 430, 438
(Pa. 2014) (plurality).
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In Molina, the investigating detective testified that while the
defendant reluctantly answered several questions on the telephone and
ended the call, he refused to go to the police station for further questioning.
In closing arguments, the prosecutor relied on this silence as constituting
evidence of guilt. Molina, 104 A.3d at 438. Discounting the defendant’s
reluctance to talk to police on the telephone, the Molina Court found that
the defendant’s “actions in affirmatively and definitively refusing to come to
the police station” were sufficient to invoke his right against self-
incrimination. Id. at 438. Thus, the Court cautioned that the right against
self-incrimination “prohibits use of a defendant’s pre-arrest silence as
substantive evidence of guilt, unless it falls within an exception such as
impeachment of a testifying defendant or fair response to an argument of
the defense.” Id. at 451. Cf. Commonwealth v. Adams, 104 A.3d 511(Pa. 2014) (Opinion Announcing Judgment of Court) (citing
Commonwealth v. DiNicola, 866 A.2d 329, 337 (Pa. 2005)).
In Adams, the detective testified over objection that he attempted to
interview the defendant about a homicide, but he responded that he had
nothing to say. Adams, 104 A.3d at 513. No further reference was made
to the defendant’s pre-arrest silence. The plurality in Adams noted that
mere reference to a defendant’s silence does not necessarily impinge
constitutional rights when guilt is not implied. Id. at 517; see also
Commonwealth v. McGriff, 160 A.3d 863 (Pa. Super. 2017) (“[T]he right
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against self-incrimination is not burdened when the reference to silence is
‘circumspect’ and does not ‘create an inference of an admission of guilt.’”)
(quoting Adams, 104 A.3d at 517).
In contrast, herein, the testimony established only that Appellant
stated he was out of town, he initially preferred to talk to the officer on the
telephone, he could not return until the next day, and he agreed to go to
the police station to talk to Detective Hovan. There was no indication that
Appellant refused to answer any questions. There was no reference to
Appellant’s silence by the Commonwealth.
We agree with the trial court’s assessment of the issue, as follows:
The testimony did not constitute an impermissible
comment by Detective Hovan but instead was used as
foundational evidence demonstrating how the police obtained a
video and audio recording of [Appellant’s] statement given to
police. The Detective’s testimony was given for the narrow
purpose of describing the police investigation and was not for
implying [Appellant’s] guilt. (emphasis added).
Trial Court Opinion, 2/28/17, at 5–6. Appellant’s right against self-
incrimination was not violated, and the issue lacks merit.
Appellant’s second issue avers, in a prolix and convoluted argument,
trial court error for failure to grant a mistrial. We distill counsel’s rambling
reference to irrelevant testimony and commentary, Appellant’s Brief at 22–
26, and observe that the motion for mistrial was based on Detective Hovan’s
response during cross-examination that he “believed” the victim. Id. at 27;
N.T. (Trial), 5/18/17, at 147. The comment was in response to Appellant’s
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suggestion that while the officer had obtained the victim’s written statement,
he also had “the ability to make an audio and video [recording] of the
statement” but failed to do so. N.T. (Trial), 5/18/17, at 147. Appellant
argues that Detective Hovan’s statement was an expression of his opinion
that Appellant was guilty of the crimes charged and required the grant of a
new trial. Appellant’s Brief at 27. We disagree.
Our standard of review in this context is as follows:
The trial court is in the best position to assess the effect of
an allegedly prejudicial statement on the jury, and as such, the
grant or denial of a mistrial will not be overturned absent an
abuse of discretion. A mistrial may be granted only where the
incident upon which the motion is based is of such a nature that
its unavoidable effect is to deprive the defendant of a fair trial by
preventing the jury from weighing and rendering a true verdict.
Likewise, a mistrial is not necessary where cautionary
instructions are adequate to overcome any possible prejudice.
Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008) (quoting
Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007)).
Appellant’s attempt to equate this case with that of Commonwealth
v. Capalla, 185 A. 203 (Pa. 1936), fails. Appellant’s Brief at 33. In
Capalla, the prosecutor called the defendant a cold-blooded killer in his
closing argument to the jury. The court concluded that the expression
therein was “equivalent to an expression of belief on the part of the district
attorney that the defendant was guilty of murder in the first degree.” Id. at
206. In the present case, Detective Hovan’s comment, in response to
defense counsel’s questioning, was mere explanation as to why he did not
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make an audio or video recording of the victim’s statement. N.T. (Trial),
5/18/17, at 147. It cannot be construed as comment that Appellant was
guilty.
The trial court stated the following in support of its decision not to
grant a mistrial:
Detective Hovan indicated that he did not audio and video record
the statement given by Ms. [C.] because “he believed her.” N.T.
at 147. The Appellant contends that this statement “constitutes
an explicit expression of the Detective’s opinion that the
Appellant was guilty of the crimes alleged.” Here, however, the
Detective merely stated that he believed what the victim was
telling him. Additionally, assuming arguendo that one can infer
from this statement that the Detective was implicitly implying
that because he believed the victim, that [Appellant] is thereby
guilty, this statement is not so prejudicial as to warrant a new
trial. The victim gave compelling testimony as to the events of
the crime. Furthermore, it was defense counsel that asked the
question that elicited the response given by Detective Hovan.
Additionally, following a brief recess, the jury was immediately
given a curative instruction that the statement was not to be
considered as evidence and that the jury was to completely
disregard that opinion. N.T. at 154. Such instruction dispels
any harm that may have risen from the improper opinion given
by Detective Hovan.
Trial Court Opinion, 2/28/17, at 7–8 (footnotes omitted).
We conclude that Detective Hovan’s statement was not a comment
regarding the detective’s personal belief as to Appellant’s guilt, and to the
extent that it may be interpreted in that light, it was not prejudicial. Our
Supreme Court has recognized that where a defendant has been charged
with and is being tried for a crime, it is already a clear indication to the jury
that the police believe the defendant is guilty. See Commonwealth v.
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Wilson, 649 A.2d 435, 446 (Pa. 1994) (Police officer’s reference to
defendant as “prime suspect” in police lineup was not statement of officer’s
personal belief of defendant’s guilt; it did nothing more than reiterate to jury
obvious fact that defendant was charged with murder because it was
believed that he was the perpetrator). This issue lacks merit.
Next, Appellant asserts that the trial court abused its discretion in
denying his motion for a mistrial based upon “the prosecution’s failure to
disclose that the . . . victim had called a friend immediately prior to calling
911 after the . . . incident.” Appellant’s Brief at 33. Once again, Appellant
fails to identify where in the record the motion was made, denied, and
discussed. Id. at 33–35. As such, we could conclude the issue is waived.
Commonwealth v. Fransen, 42 A.3d 1100, 1116 n.14 (Pa. Super. 2012)
(citing Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006))
(concluding, inter alia, that a claim is waived for failure to direct this Court’s
attention to that part of the record substantiating it); see also Pa.R.A.P.
2119(c) (“If reference is made to . . . any other matter appearing in the
record, the argument must set forth, in immediate connection therewith, or
in a footnote thereto, a reference to the place in the record where the
matter referred to appears.”).
Our independent review, however, reveals a discussion among the
prosecutor, the court, and defense counsel relating to this claim. N.T.
(Trial), 5/17/16, at 54. Apparently there had been a discussion at side bar
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regarding the fact that during the victim’s testimony at trial, she indicated
for the first time that immediately after Appellant left her apartment, and
directly before calling 911, the victim first called a friend. Id. at 53. While
defense counsel indicated she had made a motion for a mistrial, the trial
court subsequently stated that indeed, she had not done so. Id. at 54 (“For
the record you only mentioned that you might be moving for a mistrial. You
never formally did that.”). Then defense counsel so moved, and the trial
court denied it. Id. The following exchange occurred:
By the Commonwealth: When we spoke at sidebar, Your Honor,
[defense counsel] had raised the question about the witness, the
[victim] had testified that before calling the police, she had
called a friend. We discussed that that information had come to
light for the first time yesterday afternoon during a trial prep
meeting. What we discussed was in lieu of [defense counsel]
seeking a mistrial based on any failure to turn over that evidence
or inability to follow up on that, that the Commonwealth would
agree not to play for the jury the 911 call in this case.
* * *
By the court: As I understand it, you are accepting the
compromise that was offered by the Commonwealth, . . . that he
will not introduce the 911 tape. He will make it part of the
record for future reference but it will not be played for the jury
obviously. And in exchange for that, you have some ability to
cross-examine on the delay involved and [to whom] the phone
call may have been; but, otherwise, trial moves on.
N.T. (Trial), 5/17/16, at 53–54.
We have reviewed the victim’s testimony where she revealed, for the
first time, an intervening call. N.T. (Trial), 5/17/17, at 39–40, 99–106. This
is not a situation where evidence material to the guilt of the accused is
withheld as encompassed or envisioned by Brady v. Maryland, 373 U.S. 83- 13 -
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(1963). Upon vigorous cross-examination by Appellant, the victim could not
even remember who she called. N.T. (Trial), 5/17/16, at 99. Moreover,
Appellant has not pointed to any resultant prejudice. As the trial court
determined, any prejudice to Appellant was de minimus, and any prejudicial
effect “was so insignificant by comparison that the error could not have
contributed to the verdict.” Trial Court Opinion, 2/28/17, at 8 (quoting
Commonwealth v. Shull, 148 A.3d 820, 846 (Pa. Super. 2016)).
Furthermore, we note that defense counsel chose to accept the
Commonwealth’s compromise offer to refrain from playing the 911 call. This
issue is meritless.
Appellant presents his final two issues as an addendum to the third
claim discussed above, and he presents them together; thus, we shall
address them likewise. Appellant contends the trial court erred in refusing
to give a missing-witness instruction to the jury and refusing Appellant’s
request for an instruction regarding the Commonwealth’s failure to produce
telephone records. Appellant’s Brief at 35–36. Both of these claims relate
to the fact that the victim could not remember who she called two years
earlier when she telephoned a friend prior to placing the 911 call.
In reviewing a jury charge, we determine “whether the trial court
committed a clear abuse of discretion or an error of law which controlled the
outcome of the case.” Commonwealth v. Brown, 911 A.2d 576, 582–583
(Pa. Super. 2006). We must view the charge as a whole; the trial court is
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free to use its own form of expression in creating the charge.
Commonwealth v. Hamilton, 766 A.2d 874, 878 (Pa. Super. 2001).
“[Our] key inquiry is whether the instruction on a particular issue
adequately, accurately and clearly presents the law to the jury, and is
sufficient to guide the jury in its deliberations.” Id. Moreover:
[i]t is well-settled that “the trial court has wide discretion in
fashioning jury instructions. The trial court is not required to
give every charge that is requested by the parties[,] and its
refusal to give a requested charge does not require reversal
unless the appellant was prejudiced by that refusal.”
Commonwealth v. Scott, 73 A.3d 599, 602 (Pa. Super. 2013) (quoting
Brown, 911 A.2d at 583).
Appellant asserts that he asked the court to give missing-witness and
missing-evidence instructions, and the court refused. Appellant’s Brief at
35. Appellant fails to refer us to any place in the record where such request
was made and refused. Indeed, in his brief relating to these two issues,
there is not a single reference to the record. Id. at 35–37. Not only is this
a violation of Pa.R.A.P. 2119(c), “it is a disservice to counsel’s client and this
[C]ourt. It makes review of this matter unnecessarily time consuming and
difficult.” Commonwealth v. Stafford, 749 A.2d 489, 493 (Pa. Super.
2000).
Our Supreme Court clarified the procedure for preserving challenges to
jury instructions under the Pennsylvania Rules of Criminal Procedure in
Commonwealth v. Pressley, 887 A.2d 220 (Pa. 2005), stating:
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The pertinent rules . . . require a specific objection to the charge
or an exception to the trial court’s ruling on a proposed point to
preserve an issue involving a jury instruction. Although
obligating counsel to take this additional step where a specific
point for charge has been rejected may appear counterintuitive,
as the requested instruction can be viewed as alerting the trial
court to a defendant’s substantive legal position, it serves the
salutary purpose of affording the court an opportunity to avoid
or remediate potential error, thereby eliminating the need for
appellate review of an otherwise correctable issue. This is
particularly so where a judge believes that the charge
adequately covered the proposed points. Moreover, charging
requests are frequently submitted in advance of or during trial,
with the relevance or necessity of a proposed instruction being of
different significance as a result of subsequent events. Similarly,
a judge’s perspective concerning a particular point may be
altered based upon a party’s arguments.
Id. at 224 (footnotes and citations omitted).
Herein, Appellant’s counsel failed to make any objection regarding the
omission of the missing-witness or missing-evidence charges, and thus, we
are constrained to find that Appellant’s final arguments are waived under
Pressley. See also Commonwealth v. Hitcho, 123 A.3d 731, 756 (Pa.
2015) (specific exception shall be taken to the language or omission from
the jury charge or issue is waived); Pa.R.Crim.P. 647(B) (omissions from
jury charge may not be assigned as error unless specific objections are
lodged before jury retires to deliberate).4
Judgment of sentence affirmed.
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4 Even if not waived, we would rely on the trial court’s explanation to find
the issues lack merit. Trial Court Opinion, 2/28/17, at 8–11.
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Judge Panella and Justice Fitzgerald concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2017
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