Com. v. Pratt, H.

J-S46024-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HENRY PRATT :
:
Appellant : No. 2961 EDA 2019
Appeal from the Judgment of Sentence Entered November 5, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004759-2012
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED: FEBRUARY 26, 2021
Appellant, Henry Pratt, appeals nunc pro tunc from the November 5,
2015 judgment of sentence imposed by the Philadelphia Court of Common
Pleas.1 For the reasons that follow, we affirm.
The trial court summarized the facts of the case as follows:
[Appellant] financed a 2004 Bentley through Chase Auto
Finance (Chase), a subdivision of JP Morgan Chase Bank. June 11,
2015, N.T. at 112.
On March 5, 2009, [A]ppellant purchased an auto insurance
policy from Progressive Casualty (Progressive) for the Bentley. Id.
at 109. On March 27, 2009, [A]ppellant filed an insurance claim
with Progressive for damage to the Bentley. Id. Appellant
____________________________________________
1 Appellant filed his notice of appeal to this Court from the denial of post-
sentence motions on March 7, 2016. Notice of Appeal, 1/15/19. In a criminal
action, the appeal properly lies from the judgment of sentence made final by
the denial of post-sentence motions. Commonwealth v. Kuykendall, 2 A.3d
559, 560 n.1 (Pa. Super. 2010). Therefore, we have amended the caption
accordingly.
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declined a preferred network service and instead stated that he
wanted the car to be repaired by Magic Auto Body Shop (Magic).
Id. at 111. On the same day that the claim was made, [A]ppellant
requested a change in his insurance coverage. Id. Specifically,
[A]ppellant sought to lower his deducible from $1,000 to $500.
On April 7, 2009, Progressive issued a check in the amount
of $10,497.39, made payable to both [A]ppellant and Chase. Id.
at 75. On April 9, 2009, [A]ppellant presented the check to
Delmar Check Cashing (hereinafter “Delmar”) located in Folcroft,
Pennsylvania. Id. at 73. A Delmar cashier cashed the check, gave
the money to [A]ppellant, whereupon Delmar submitted the check
to its bank for payment. Id. at 75.
On April 16, 2009, the owner of Delmar received a fax from
its bank indicating that the check was being returned because the
check required a second endorsement. Id. at 76, 90, 99. The
check contained [A]ppellant’s signature but the check did not have
the required, second endorsement from Chase. Id. Delmar was
told that its bank was not going to honor the check because the
check was not properly endorsed. Id. at 77, 90. Delmar contacted
[A]ppellant and informed him that the check required Chase’s
endorsement. Id. at 78. Appellant responded that he would have
Chase endorse the check, whereupon [A]ppellant took the check
back from Delmar. Id. Appellant never returned with the properly
endorsed check. Id. at 87.
Subsequently, Delmar’s owner was driving past
[A]ppellant’s residence on her way to work when she noticed that
[A]ppellant was sitting outside on his steps. Id. at 87. The owner
approached [A]ppellant and asked what happened to the check.
Id. Appellant responded that he lost it. Id.
On April 21, 2009, [A]ppellant called Progressive and stated
that he lost the original check for $10,497.39 that was previously
issued. Id. at 115. Appellant requested that Progressive stop
payment on the original check and reissue another check. Id. at
115-16. Progressive stopped the payment on the original check
and reissued said check. Id. at 117.
On April 23, 2009, [A]ppellant went to United Check Cashing
(hereinafter “United”) in Philadelphia, Pennsylvania. June 11,
2015, N.T. at 49. Appellant presented the reissued check in the
amount of $10,497.39, made out to both [A]ppellant and Chase,
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and dated for April 22, 2009. Id. at 51. The check was cashed
and [A]ppellant received the money. Id.
On May 4, 2009, Magic called Progressive and requested a
supplemental check in the amount of $5,065.17, made payable to
[A]ppellant and Magic, for additional work completed on the
Bentley. Id. at 118-20. Progressive issued the supplemental
check. Id. Appellant returned to United and presented the
supplemental check in the amount of $5,065.17, made out to
[A]ppellant and Magic, and dated for May 4, 2009. Id. at 63-64.
The check was cashed and [A]ppellant received the money. Id.
Meanwhile, a Chase fraud investigation agent reviewed
[A]ppellant’s reissued $10,497.39 check. Id. at 24-28, 45. The
check had a stamped endorsement of “Chase Auto Finance,”
however the agent determined that the stamped endorsement
was not valid. Id. at 26-27.
On June 8, 2009, the owner of Delmar contacted Progressive
and informed Progressive that Delmar cashed the original check
for [A]ppellant, but that the check was returned to Delmar
because Chase had not endorsed the check. Id. at 88. Delmar’s
owner also informed Progressive that [A]ppellant agreed to take
the check to Chase to have them endorse it, but that [A]ppellant
never returned with the properly endorsed check. Id. Progressive
informed Delmar’s owner that they had issued a stop payment on
the original check, reissued a new check, which check was
thereafter cashed by [A]ppellant. Id. at 88, 121.
On the same day, the owner of Delmar received a fax from
its bank informing her that the (original) $10,497.39 check had
been deposited into Delmar’s bank account. Id. at 91, 103. The
bank stated that the check now contained the endorsement of
both Chase and [A]ppellant and therefore, the check could now be
properly processed. Id. As a result, Delmar’s bank deducted the
$10,497.39 from Delmar’s bank account. Id. However, the owner
stated that she never deposited the check because she had given
it back to [A]ppellant in an effort to obtain the required second
signature; thereafter she never saw the check again. Id. at 91,
103. Later, the owner was notified that a stop payment was
issued on the check. As a result, neither the bank nor Delmar
ever actually received the $10,497.39 at issue. Id. at 93, 103-
04.
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On October 28, 2009, [A]ppellant called the police to file
another insurance claim because of damage which the Bentley
incurred near the intersection of 15th and Snyder Streets in
Philadelphia, Pennsylvania. June 15, 2015, N.T. at 68. Police
Officer [Shamal] Bryant responded to the call. Id. When she
arrived at the scene, she examined the damage to the Bentley.
Id. at 72-73. There was a key mark around the entire vehicle,
dents in the driver side and passenger side doors, and a chip on
top of the windshield. Id. at 74. Officer Bryant estimated that
the cost of the damage was approximately $1,000. Id. at 78. She
described the damage in a police report. Id. at 77.
On October 29, 2009, [A]ppellant filed an insurance claim
with Nationwide Insurance Company (Nationwide) for the above-
mentioned vandalism incident. June 12, 2015, N.T. at 17. On
November 3, 2009, a Nationwide special investigator reviewed
[A]ppellant’s insurance claim on the Bentley resulting from the
October 28th vandalism incident. Id. at 7. On November 9, 2009,
the Nationwide investigator and an auto appraiser went to Magic
to meet with [A]ppellant and Magic in order to assess the Bentley’s
damage. Id. at 35. The investigator took a statement from
[A]ppellant, and the appraiser took pictures of the damage. Id.
at 36, 120. The total damage to the Bentley was appraised at
$48,560.92. Id. at 121. At this time, the Bentley was more
severely damaged than it was on October 28, 2009, with dents
and scratches on every panel, with impact holes from a rod shaped
object, with a broken side mirror, with a cracked windshield, and
with the phrase “booty snatcher” carved into the hood of the
vehicle. Id. at 3, 7, 121-31.
Several days later, the Nationwide investigator went to meet
with Officer Bryant to discuss the Bentley’s damage. Id. at 11.
The investigator showed Officer Bryant pictures taken at Magic of
the damage and compared the pictures to the description of the
damage in the prior police report. Id. at 15.
As the investigation continued on October 5, 2011, an arrest
warrant issued for [A]ppellant and he was arrested on the same
day. June 17, 2015, N.T. at 26, 44. The record reveals that police
recovered a diary, several receipts, one (1) Mac Book Pro laptop,
one (1) Tumi laptop, one (1) Sprint USB device, three (3) AT&T
USB devices, one (1) AT&T Blackberry Torch 9800, one (1) iPhone,
and one (1) iPad. Id. at 30-32.
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Trial Court Opinion, 12/10/19, at unnumbered 4-8.
Prior to trial, the Commonwealth filed a motion in limine to preclude the
admission, under Pennsylvania Rule of Evidence 408, of a civil settlement
between Nationwide and Appellant. The Honorable Robert P. Coleman (“the
pretrial court”) held a hearing on the motion on February 18, 2014, and
subsequently granted the motion. Pretrial Court Opinion, 10/21/14, at 1.
Appellant filed an interlocutory appeal of the ruling excluding the settlement,2
which was quashed on August 22, 2014.
On June 11, 2015, Appellant proceeded to a jury trial. On June 18,
2015, the jury found Appellant guilty of insurance fraud, conspiracy to commit
insurance fraud, and attempted theft by deception,3 and acquitted him of
forgery. On November 5, 2015, the trial court imposed concurrent terms of
six to twelve months of incarceration, with immediate parole, followed by four
years of probation for each of the insurance-fraud and conspiracy convictions,
and eleven and one-half to twenty-three months of incarceration, with
immediate parole, followed by four years of probation for the attempted theft-
____________________________________________
2 The appeal was docketed at 1346 EDA 2014 and captioned Commonwealth
v. Mohamed Camara. At argument on a motion to revoke bail in the instant
matter, the Commonwealth noted that Appellant has “multiple names,
identification under other names, two Social Security numbers, two dates of
birth. He’s lived in several states. He is not a citizen. I believe he may be a
permanent resident.” N.T., 6/18/15, 18–19.
3 18 Pa.C.S. §§ 4117(a)(2), 903, 901, and 3922(a), respectively.
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by-deception conviction. N.T., 11/5/15, at 36–37. Appellant filed post
sentence motions, which were denied on March 7, 2016.
The trial court further summarized:
On April 6, 2016, [A]ppellant timely filed the instant appeal
with the Superior Court of Pennsylvania (hereinafter “Superior
Court”), which appeal Superior Court docketed at 1154 EDA 2016.
On April 28, 2016, pursuant to Pa.R.A.P. 1925(b), this court
entered an Order directing [A]ppellant to file his Statement of
Errors Complained of on Appeal. On March 24, 2016, [A]ppellant
filed a motion requesting an extension of time to file his
Statement, and this court granted said motion. On June 14, 2016,
[A]ppellant filed another motion requesting an extension of time
to file his Statement, and this court granted said motion. On June
22, 2016, [A]ppellant filed said Statement. On July 15, 2016, the
Superior Court dismissed the appeal for failure to comply with
Pa.R.A.P. 3517. However, on August 29, 2016, the Superior Court
reinstated the . . . appeal.
On December 1, 2016, this court entered its Opinion. On
November 27, 2017, the Superior Court dismissed the appeal for
a failure to file briefs. On August 27, 2018, a Post Conviction
Relief Act (“PCRA”) Petition was filed. On March 14, 2019, an
Amended PCRA Petition was filed. On September 19, 2019, this
court issued an Order Granting Reinstatement of Appellate Rights
[Nunc Pro Tunc] to Superior Court.
On October 15, 2019, [A]ppellant timely filed the instant
appeal with the Superior Court, which appeal Superior Court
docketed at 2961 EDA 2019. On October 17, 2019, pursuant to
Pa.R.A.P. 1925(b), this court entered an Order directing Appellant
to file his Statement of Errors Complained of on Appeal. On
October 29, 2019, Appellant timely filed a Statement of Errors,
pursuant to P.a. R.A.P. 1925(b).[4]
Trial Court Opinion, 12/10/19, at unnumbered 2–4 (footnotes omitted).
Appellant raises the following issues on appeal:
____________________________________________
4 Appellant’s Rule 1925(b) statement listed twenty-one issues.
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A. Did the trial court err in holding that the prior civil
settlement evidence was inadmissible?
B. Did the trial court err in not allowing [Appellant] to cross
examine the Nationwide witness about its investigation into
the claim even after the Commonwealth “opened the door”
to such issues?
C. Did the trial court err in allowing the Commonwealth to use
prior bad acts even though they were not sufficiently similar
to establish common plan or scheme and even though they
were not indicative of a motive?
D. Did the trial court err when it expanded the pretrial court’s
ruling and thereby ignored an additional corpus delecti
objection?
E. Did the trial court err when it prevented defense counsel
from cross examining witness Eugene Pratt regarding
whether the ADA would inform his sentencing judge about
his cooperation and/or whether or not he would receive a
benefit from testifying against [Appellant]?
F. Did the trial court err in permitting documents which the
Commonwealth purported to be from [Appellant’s] diary
even though there was no proof that [Appellant] wrote the
entries on the date of the incident and even though [Exhibit]
C62was not relevant?
G. Did the trial court err in finding that the evidence was
sufficient to convict [Appellant] and in finding that the
conviction was not against the weight of the evidence even
though there was no “presentment” for insurance fraud; no
“agreement” for conspiracy; and no “substantial act” for
theft by deception?
H. Did the trial court err in failing to grant a new trial despite
prosecutorial misconduct in the ADA’s closing arguments?
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Appellant’s Brief at 2 (unnecessary capitalization omitted).5
Because a successful sufficiency-of-the-evidence claim warrants
discharge on the pertinent crime, we address Appellant’s penultimate issue,
labeled issue G, first. Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super.
2013) (citing Commonwealth v. Stokes, 38 A.3d 846 (Pa. Super. 2011)).
See also Commonwealth v. Sanford, 863 A.2d 428, 432–432 (Pa. 2004)
(when there are issues of admissibility and sufficiency of evidence, sufficiency
is addressed first).
In reviewing the sufficiency of the evidence, we must determine whether
the evidence admitted at trial and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the Commonwealth as verdict winner,
were sufficient to prove every element of the offense beyond a reasonable
doubt. Commonwealth v. Green, 203 A.3d 250, 253 (Pa. Super. 2019),
appeal denied, 216 A.3d 1036, 54 WAL 2019 (Pa. July 30, 2019). “[T]he facts
and circumstances established by the Commonwealth need not preclude every
possibility of innocence.” Commonwealth v. Colon-Plaza, 136 A.3d 521,
525–526 (Pa. Super. 2016) (quoting Commonwealth v. Robertson-Dewar,
829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the province of the fact-
finder to determine the weight to be accorded to each witness’s testimony and
____________________________________________
5 Confusingly, Appellant utilized Arabic numbers to define his twenty-one
issues in his Pa.R.A.P. 1925(b) statement and letters in his appellate brief;
the Commonwealth utilized Roman numerals in its brief, and the trial court
used Arabic numbers in its opinion.
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to believe all, part, or none of the evidence. Commonwealth v. Tejada, 107
A.3d 788, 792–793 (Pa. Super. 2015). The Commonwealth may sustain its
burden of proving every element of the crime by means of wholly
circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa.
Super. 2016). Moreover, as an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).
Appellant challenges the sufficiency of the evidence supporting his
convictions for theft by deception, insurance fraud, and conspiracy.
Appellant’s Brief at 20, 34. The crime of theft by deception provides as
follows:
(a) Offense defined.--A person is guilty of theft if he
intentionally obtains or withholds property of another by
deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false
impressions as to law, value, intention or other state of
mind; but deception as to a person’s intention to perform a
promise shall not be inferred from the fact alone that he did
not subsequently perform the promise;
(2) prevents another from acquiring information which
would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver
previously created or reinforced, or which the deceiver
knows to be influencing another to whom he stands in a
fiduciary or confidential relationship.
(b) Exception.--The term “deceive” does not, however, include
falsity as to matters having no pecuniary significance, or puffing
by statements unlikely to deceive ordinary persons in the group
addressed.
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18 Pa.C.S. § 3922.
The crime of criminal conspiracy is set forth in Section 903 of the Crimes
Code, which provides, in relevant part, as follows:
§ 903. Criminal conspiracy.
(a) Definition of conspiracy.— A person is guilty of conspiracy
with another person or persons to commit a crime if with the intent
of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S. § 903.
The Crimes Code defines insurance fraud, in relevant part, as follows:
§ 4117. Insurance fraud.
(a) Offense defined. - A person commits an offense if the person
does any of the following:
* * *
(2) Knowingly and with the intent to defraud any insurer or
self-insured, presents or causes to be presented to any
insurer or self-insured any statement forming a part of, or
in support of, a claim that contains any false, incomplete or
misleading information concerning any fact or thing material
to the claim.
(3) Knowingly and with the intent to defraud any insurer or
self-insured, assists, abets, solicits or conspires with
another to prepare or make any statement that is intended
to be presented to any insurer or self-insured in connection
with, or in support of, a claim that contains any false,
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incomplete or misleading information concerning any fact or
thing material to the claim, including information which
documents or supports an amount claimed in excess of the
actual loss sustained by the claimant.
18 Pa.C.S. § 4117(a)(2).
This issue is waived. This Court has stated, “In order to preserve a
challenge to the sufficiency of the evidence on appeal, an appellant’s
[Pa.R.A.P.] 1925(b) statement must state with specificity the element or
elements upon which the appellant alleges that the evidence was insufficient.”
Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super. 2016) (quoting
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013)) (internal
quotation marks omitted); see also Pa.R.A.P. 1925(b)(4)(ii) (“[T]he
Statement shall concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for the
judge.”). “Such specificity is of particular importance in cases where, as here,
[A]ppellant was convicted of multiple crimes each of which contains numerous
elements that the Commonwealth must prove beyond a reasonable doubt.”
Garland, 63 A.3d at 344. Failure to identify what specific elements the
Commonwealth did not prove at trial in a Rule 1925(b) statement renders an
appellant’s sufficiency-of-the-evidence claim waived for appellate review. See
Commonwealth v. Tyack, 128 A.3d 254, 261 (Pa. Super. 2015) (finding
appellant’s issues waived where “1925(b) statement simply declared, in
boilerplate fashion, that the evidence was insufficient to support his
conviction”).
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Here, Appellant generically states the following in his Pa.R.A.P. 1925(b)
statement:
The evidence was insufficient to establish Appellant as the
perpetrator beyond a reasonable doubt as to the crimes of fraud
(incomplete insurance claim); criminal attempt of theft by
deception; false impression of insurance fraud. The
Commonwealth witnesses did not establish each and every
element of the crimes and therefore did not meet its burden.
Pa.R.A.P. 1925(b) Statement, 10/29/19, at ¶13. Appellant does not identify
any element of any of his convictions that was not proven beyond a reasonable
doubt. Consequently, Appellant’s nonspecific and inaccurate claim challenging
the sufficiency of the evidence, which fails to state any elements of any crimes
allegedly not proven by the Commonwealth, is waived. Tyack, 128 A.3d at
261. Even if not waived, we would rely on the trial court’s explanation of the
sufficiency of the evidence, and would conclude this issue is without merit.
Trial Court Opinion, 12/10/19, at unnumbered 15–18.
In the first issue Appellant presents in his brief, he asserts that the trial
court erred in holding that “the prior civil settlement evidence was
inadmissible.” Appellant’s Brief at 8. However, he does not explain to what
settlement he refers. Id. at 8–10. He cites Pa.R.E. 4086 but does not develop
____________________________________________
6 Pa.R.E. 408 provides:
(a) Prohibited Uses. Evidence of the following is not
admissible—on behalf of any party—either to prove or disprove
the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction:
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or explain the rule’s relevance. As noted supra, the Commonwealth filed a
motion in limine related to this issue; Appellant does not even mention it. Our
review of the docket indicates that there were no less than six motions in
limine filed in this case. Appellant has not provided any information to explain
to what he refers in this argument. “It is not this Court’s responsibility to
comb through the record seeking the factual underpinnings of an appellant’s
claim.” Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014).
Appellant has not developed any of the bald allegations nor explained this
issue, and he failed to provide any citation to the record. It is beyond cavil
that where an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived. Commonwealth
v. Woodward, 129 A.3d 480, 502 (Pa. 2015).
There also was a hearing relating to the motion on February 18, 2014.
Commonwealth’s Brief at 16; Pretrial Court Opinion, 10/21/14, at 1 n.1. The
____________________________________________
(1) furnishing, promising, or offering--or accepting,
promising to accept, or offering to accept--a valuable
consideration in compromising or attempting to compromise
the claim; and
(2) conduct or a statement made during compromise
negotiations about the claim.
(b) Exceptions. The court may admit this evidence for another
purpose, such as proving a witness’s bias or prejudice, negating
a contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution.
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notes of testimony from the hearing are not included in the record certified to
us on appeal. It is well-settled that “this Court may consider only the facts
that have been duly certified in the record when deciding an appeal.”
Commonwealth v. Kennedy, 151 A.3d 1117, 1127 (Pa. Super. 2016)
(citation omitted). “Our law is unequivocal that the responsibility rests upon
the appellant to ensure that the record certified on appeal is complete in the
sense that it contains all of the materials necessary for the reviewing court to
perform its duty.” Commonwealth v. Holston, 211 A.3d 1264, 1276 (Pa.
Super. 2019) (en banc”). When an appellant fails to provide this Court the
necessary items for review, the claim is waived. Id.; Kennedy, 151 A.3d at
1127. Appellant’s failure to ensure the inclusion of the transcript in the
certified record renders it impossible for us to review its contents and
determine the validity of Appellant’s allegation. Therefore, this omission also
hampers appellate review, and we deem the issue waived. Id.
Even if not waived, we would rely on the trial court’s explanation in
rejecting this issue of evidence. When an appellant challenges the ruling on
a motion in limine, our scope of review is limited to the relevant pretrial
hearing transcripts. See In re Interests of L.J., 79 A.3d 1073, 1088-1089
(Pa. 2013) (noting that our scope of review is limited to the evidence
presented at the pretrial hearing). In conducting our review, we apply an
abuse-of-discretion standard of review. Commonwealth v. Moser, 999 A.2d
602, 605 (Pa. Super. 2010) (citation omitted). The admissibility of evidence
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is left to the sound discretion of the trial court, and a trial court’s ruling
regarding the admission of evidence will not be disturbed on appeal unless
that ruling reflects manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support to be clearly erroneous. Id.The trial court concluded as follows:
On February 18, 2014, [A]ppellant argued a motion in limine
before the pre-trial court seeking the admissibility of a settlement
agreement between [A]ppellant and Nationwide from a prior civil
lawsuit. The motion was taken under advisement. On March 13,
2014, the pre-trial court denied said motion and issued an Order
entitled, “Findings of Fact and Conclusions of Law.” Subsequently,
on April 8, 2014, [A]ppellant filed an interlocutory appeal to
Superior Court, which appeal Superior Court docketed at 1346
EDA 2014. On May 16, 2014, the pre-trial court issued an
“Amended Order of Findings of Fact and Conclusions of Law” to
certify the case for interlocutory appeal. However, on August 22,
2014, Superior Court quashed the appeal due to untimeliness. . . .
While the merits of the interlocutory appeal were never
decided, this court agrees with the pre-trial court’s analysis of the
admissibility of the settlement agreement. In the findings of fact
and conclusions of law, the pre-trial court stated:
In reviewing the judicial and legislative history of this
issue, this court believes that evidence of prior civil
settlements should not be admissible in subsequent criminal
cases.
* * *
It is noteworthy that [Rule 408] does not specify between
civil and criminal cases in excluding settlement agreements.
* * *
The intent behind Rule 408 is to promote and encourage
settlement negotiations and case resolutions and to free up
judicial recourses. That intent would be completely nullified
by allowing such offers to settle as evidence against the
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party offering them. Although this situation is extremely
rare and civil suits rarely precede criminal cases, it is
important that the legislative intent be followed by all
courts. This court believes that the Legislature showed a
clear intent to promote settlements and not to punish the
parties offering to settle. Accordingly, this court does not
believe that Nationwide’s settlement offer should be
admissible against it in the current criminal case.
See, [“]Findings of Fact and Conclusions of Law,” pages 1-2,
attached as Exhibit “D.”
Appellant argues that the Settlement should be admitted for
other purposes such as witness bias and/or prejudice. The pre-
trial court’s analysis notes:
Furthermore, the comments accompanying the statute note
that, “Pa.R[.]E. 408(A) differs from F.R.E. 408(a) in that the
federal rule in paragraph (a)(2) contains language that
seems to permit the use in criminal cases of statements
made to government investigators, regulators, or
enforcement authority in negotiations in civil cases. That
language has not been adopted because of the use of such
statement might conflict with the policies underlying
Pa.R.Crim.P. 586 (relating to dismissal of criminal charges
not committed by force or violence upon payment of
restitution) or Pa.R.Crim.P. 546 (relating to dismissal upon
satisfaction or agreement).” By intentionally excluding the
exception found in the federal rules, the Pennsylvania
Legislature has exhibited a clear intent to limit this type of
evidence as much as possible.
This court agrees with the pre-trial court’s interpretation of
Pa.R.E. 408, and will thereby accept the pre-trial court’s decision
on the inadmissibility of the settlement agreement grounded in
Pa.R.E. 408 as well as the fact that the Agreement does not fall
within the exception.
Trial Court Opinion, 12/10/19, at unnumbered 8–10. We note, as well, that
the comment to Pa.R.E. 408 provides that the rule “is consistent with 42
Pa.C.S. § 6141, which provides, in pertinent part,” that settlement for
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property damage “shall not be admissible in evidence on the trial of any
matter.” Pa.R.E. 408 cmt. Therefore, even if not waived, we would reject the
issue as meritless.
Appellant next argues that the trial court erred in not permitting
Appellant to cross-examine the Nationwide witness about its investigation into
the claim “even after the Commonwealth ‘opened the door’ to such issues.”
Appellant’s Brief at 11. The witness to whom Appellant refers is Nationwide
Investigator Frank McCole. Id. As discerned by the Commonwealth,
Appellant did not seek to cross-examine Mr. McCole about the “settlement
decision”; thus, the trial court did not “preclude” Appellant from doing so, as
Appellant posits. Commonwealth’s Brief at 18.
“It is well settled that the scope of cross-examination is a matter within
the discretion of the trial court and will not be reversed absent an abuse of
that discretion.” Commonwealth v. Largaespada, 184 A.3d 1002, 1009
(Pa. Super. 2018) (citing Commonwealth v. Hitcho, 123 A.3d 731, 769 (Pa.
2015)).
Appellant fails to cite to the place in the record where the court refused
such cross-examination. As the trial court stated, the court permitted
Appellant to cross-examine the Nationwide Investigator and did not preclude
any question relating to a “settlement decision.” Trial Court Opinion,
12/10/19, at 11; See N.T., 6/12/15, at 85–116. The only Commonwealth
objections that were sustained focused on: Mr. McCole’s personal knowledge
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about Appellant’s rental insurance, N.T. 6/12/15, at 86-87; the lack of clarity
of a question asked about 911 calls made the day of the incident, id. at 107;
and Mr. McCole’s conclusions with respect to the person who drove Appellant
to New York City immediately after the initial report to Police Officer Bryant
had been made. Id. at 110-113. Appellant never sought to cross-examine
Mr. McCole about the “settlement decision,” nor was such an attempt denied
by the trial court.
There was one reference by Mr. McCole to a settlement, where he
stated, “The PH [policy holder, Appellant] inquired about status on all of the
calls and was pushing for a settlement decision.” N.T., 6/12/15, at 79. Our
review of the record reveals that the reference to settlement there referred to
the decision on the initial claim that was then being investigated. Moreover,
there was no request, nor refusal by the court, of cross-examination. Id. This
issue lacks merit.
Appellant next contends the trial court erred in admitting prior bad acts
pursuant to Pa.R.E. 404(b).7 Appellant’s Brief at 12. Appellant suggests the
____________________________________________
7 Pa.R.E. 404 provides, in pertinent part:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
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admission of such evidence “allowed the inclusion of irrelevant, non-probative
and unduly prejudicial evidence.” Id. Appellant asserts that the pretrial court
abused its discretion by admitting evidence that Appellant passed an
unendorsed check to Delmar and that Appellant was behind in his car
payments. Appellant’s Brief at 13, 15.
This issue is waived. The notes of testimony from the proceeding at
which the pretrial court admitted evidence in accordance with Pa.R.E. 404 is
not in the record certified on appeal. Docket entry 50 states that the pretrial
conference was scheduled for November 15, 2013. Docket entry 51
references the Commonwealth’s motion in limine and listed it for the
November 15, 2013 hearing. Docket entry 52 states, “Commonwealth Prior
Bad Acts motion to introduce bad check is granted.” Regarding the evidence
of Appellant’s late car payments, the only reference in the record is to the
pretrial court’s ruling, without explanation. See N.T., 6/11/15, at 35 (“[I]t
goes along with [the pretrial court’s] ruling that some of the prior bad acts
leading up to this would be admitted.”). The absence of the notes of testimony
____________________________________________
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(b).
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from November 15, 2013, addressing the issues compels waiver on appeal.
Kennedy, 151 A.3d at 1127.
Even if not waived, based on the record before us, we would not find an
abuse of discretion by the trial court. The trial court stated the following:
Pa.R.E[]. 404(b) permits the admission of prior bad acts into
evidence for other purposes such as motive, opportunity, intent,
etc. The pre-trial court held that evidence of [A]ppellant’s prior
bad acts were admissible as said evidence fell within the purview
of Pa.R.E[]. 404(b)’s “Permitted Uses.” The pre-trial court also
weighed the probative value of the prior bad acts evidence against
its potential for unfair prejudice and found that the evidence was
not unduly prejudicial. The pre-trial court was well within its
discretion to admit the prior bad acts evidence pursuant to Pa.
R.E[]. 404(b).
This court agrees with the pre-trial court’s interpretation of
Pa.R.E[]. 404(b), and will thereby accept the pre-trial court’s
decision as to the admissibility of prior bad acts evidence
grounded in Pa.R.E[]. 404(b).
Trial Court Opinion, 12/10/19, at unnumbered 12.
Evidence of other bad acts pursuant to Rule 404 is admissible when
offered for a relevant purpose other than to show that a defendant acted in
conformity with those acts or to show a defendant’s criminal propensity.
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009). It is
admissible, inter alia, to establish the existence of a common scheme or plan.
Commonwealth v. Keaton, 45 A.3d 1050, 1066 (Pa. 2012) (citing
Commonwealth v. Bronshtein, 691 A.2d 907, 915 (Pa. 1997); Pa.R.E.
404(b)(2)). “Whether evidence of [other acts] is admissible under Rule 404
is a straightforward relevance test that can be assessed by analyzing the
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charges, the proffered testimony, and evidence available to support the offer
of proof.” Commonwealth v. Hicks, 91 A.3d 47, 53 n.8 (Pa. 2014). In
determining whether evidence of other acts is admissible, the trial court must
balance the probative value of such evidence against its prejudicial effect.
Sherwood, 982 A.2d at 497.
The admission of crimes or other acts is within the discretion of the trial
court and will only be reversed upon a showing of an abuse of discretion.
Sherwood, 982 A.2d at 495. “Abuse of discretion is not merely an error of
judgment, but rather where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the action is a result of
partiality, prejudice, bias or ill will.” Commonwealth v. Aikens, 990 A.2d
1181, 1184-1185 (Pa. Super. 2010) (quoting Commonwealth v. King, 959
A.2d 405, 411 (Pa. Super. 2008)) (internal citations omitted).
Appellant argues that evidence that he cashed a check without the
required endorsement at Delmar was improperly admitted because the Delmar
incident “had nothing to do with insurance fraud” or any other basis for the
charges against him. Appellant’s Brief at 14. The record reveals otherwise as
there was a direct and logical connection between the Delmar incident and the
check cashing at United in Philadelphia on April 23, 2009.
Appellant successfully cashed the Progressive check for the March 2009
insurance claim at Delmar on April 9, 2009. The check was not properly
endorsed because the second payee, Chase Auto Finance, the lien-holder, had
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not endorsed the check. The owner of Delmar informed Appellant that the
endorsement by Chase was necessary and gave the check to Appellant upon
Appellant’s promise to obtain Chase’s endorsement. N.T., 6/11/15, at 28, 74–
79, 86–97, 107–113.
This evidence was admitted with respect to the charged forgery for
passing the second check to United in Philadelphia on April 23, 2009.
Appellant obtained a new, identical check from Progressive on April 22, 2009,
by falsely claiming that he had lost the first one. N.T., 6/11/15, at 116–117.
Appellant presented the second check to United with a fraudulent
endorsement purportedly from Chase and received the full face value of the
check from United, less a fee. Id. at 26–29, 48–54.
The Delmar and United forgeries were substantially similar crimes.8
They both involved identical checks from Progressive, for the same vehicle,
on the same auto insurance policy, for the same claim, to the same payees.
In both instances, Appellant cashed the checks without a proper endorsement
from Chase, and received over $20,000. Moreover, this evidence proved the
absence of any mistake by Appellant because the owner of Delmar told
Appellant that a Chase endorsement was necessary, and Appellant then
obtained a sham endorsement before presenting it to United. “Evidence of
prior bad acts is ... admissible where the particular crime or act was part of a
____________________________________________
8 We reiterate that Appellant was found not guilty of forgery. N.T., 6/18/15,
at 14.
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chain, sequence, or natural development of events forming the history of a
case.” Commonwealth v. Passmore, 857 A.2d 697, 711 (Pa. Super. 2004);
see also Commonwealth v. Cascardo, 981 A.2d 245, 250 (Pa. Super.
2009) (same).
Appellant’s complaint with respect to the evidence that he was behind
on his car payments to Chase was admissible because it related to Appellant’s
motive to forge the Chase endorsement. Mary Dittman, Chase’s investigator
in Global and Corporate Security, testified that any lawful Chase endorsement
would have resulted in Appellant actually receiving no cash because Chase
would have applied the amount Appellant owed on the car loan to Appellant’s
account. N.T., 6/11/15, at 28, 29–31. By cashing the second Progressive
check at United with a false Chase endorsement on it, however, Appellant
received the entire amount of the check, less the United fee. Id. at 5, 53.
Therefore, upon review, even if this issue were not waived, we would
discern no abuse of the trial court’s discretion in admitting the challenged
evidence.
Next, Appellant contends that the trial court erred when it expanded the
pretrial court’s ruling with respect to permitting evidence of his “late
payments” because “they were well beyond what can be argued to be a
pertinent period,” and the court ignored an additional corpus delecti objection.
Appellant’s Brief at 18, 19.
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As noted supra, the record does not include the specific terms of the
pretrial court’s ruling with respect to the passing of the unendorsed check at
Delmar. Therefore, any claim that the trial court expanded or misinterpreted
that ruling is waived because, as explained supra, the notes of testimony from
the November 15, 2013 hearing are not included in the record certified on
appeal. Kennedy, 151 A.3d at 1127.
Even if not waived, the issue lacks merit. Appellant complains that the
trial court permitted evidence of “late payments which were well beyond what
can be argued to be a pertinent period.” Appellant’s Brief at 18. Rather, the
trial court limited the evidence to the relevant period of Appellant’s alleged
forgery. The Commonwealth confirmed with Ms. Dittman that Appellant owed
$4,142.36 on April 24, 2009, of which $2,236.56 was past due. N.T.,
13/11/15, at 31. Appellant did not object. Id. When the Commonwealth
asked, without specifying a date, whether it was “fair to say that [Appellant]
was late a lot of times,” Appellant objected on the basis of relevance. Id. at
31–32. At the ensuing sidebar, defense counsel asserted that the matter had
been handled pretrial and that “the witness was testifying as to what would’ve
happened to the money, if [Chase] had an appropriate enforcement. I didn’t
realize we were going through his payment history back” three years. Id. at
32–33. The prosecutor asked to rephrase the question to specify late
payments “subsequent to April.” Id. at 34. Appellant again objected to
testimony that he would owe money in the future, but once again did so on
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relevance grounds, not on the grounds asserted on appeal on which the
pretrial court allegedly had previously ruled. Id. at 34–35. See
Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa. Super. 2012) (“A party
complaining, on appeal, of the admission of evidence in the court below will
be confined to the specific objection there made. If counsel states the grounds
for an objection, then all other unspecified grounds are waived and cannot be
raised for the first time on appeal.”) (internal citations omitted);
Commonwealth v. Torres-Kuilan, 156 A.3d 1229 (Pa. Super. 2017) (citing
Pa.R.A.P. 302(a) (issues not raised in the lower court are waived and cannot
be raised for the first time on appeal)).
The trial court found the evidence to be relevant and that it went “along
with [the pretrial court’s] ruling” because it was “in the same vein.” Id. at
35. The precise wording of the pretrial court’s ruling was never placed on the
record; the trial court, the Commonwealth, and most definitely, Appellant,
apparently understood the ruling and no one sought to place it on the record
at trial. Id.
Appellant’s claim that the pretrial court did not rule with respect to the
corpus delicti rule cannot be addressed, as the certified record does not
contain the full ruling, as discussed supra. Moreover, Appellant has not
explained the nature of his argument. While he baldly references the notes
of testimony of June 11, 2015, at page eighty-five, he fails to develop his
claim and provide relevant support. Appellant’s Brief at 19–20. Woodward,
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129 A.3d at 502 (“[W]here an appellate brief fails to ... develop an issue in
any other meaningful fashion capable of review, that claim is waived.”).
Appellant next argues the trial court erred “when it prevented defense
counsel from cross-examining witness Eugene Pratt[9 (“Eugene”)] regarding
whether the [prosecutor] would inform [the presiding judge] about [Eugene’s]
cooperation and/or whether or not [Eugene] would receive a benefit from
testifying against [Appellant].” Appellant’s Brief at 21. In actuality, Appellant
complains about the trial court’s ruling sustaining a single objection to
Appellant’s cross-examination of Eugene. Appellant’s Brief at 21–22.
While Appellant fails to explain any basis for his argument on this issue,
we note the following from our review of the record. Eugene engaged in
insurance fraud with John Magry (“Magry”), the owner of Magic. N.T.,
6/15/12, at 6–9, 12–13, 18–19. Eugene was present when Magry and other
workers damaged Appellant’s car beyond the original damage, when it was
brought to Magic. Id. at 11–12, 20, 22. Eugene also had numerous
convictions for crimen falsi and crimes of violence, including a guilty plea to a
federal gun possession charge for which he had been sentenced to six years
of imprisonment. Id. at 14–16, 21. As a condition of that guilty plea, Eugene
agreed to provide information that he had about other crimes. Id. at 16.
Included in that proffer was his admission to committing insurance fraud with
____________________________________________
9 Eugene Pratt and Appellant are not related. N.T., 6/15/15, at 24.
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Magry and other information he had about Magry’s operation. Id. at 16–17.
Federal authorities knew that Magry was under investigation by local
authorities, a fact that Eugene did not know when he proffered the
information. Detective Terrence Jones, an investigator with the Philadelphia
District Attorney’s Office, was informed about Eugene, who was interviewed
by Philadelphia detectives on October 27, 2011. Id. at 17; N.T., 6/17/15, at
42–44). Eugene and Magry were charged with insurance fraud, and Eugene
pleaded guilty and was awaiting sentencing at the time of Appellant’s trial.
N.T., 6/15/15, 14, 22–23. Eugene acknowledged that he hoped his testimony
in the instant matter would “help” him when he was sentenced, but he stated
there was no formal agreement in place. Id. at 17.
The trial court explained as follows:
The Supreme Court of Pennsylvania (hereinafter “Supreme
Court”) has held:
whenever a prosecution witness may be biased in favor of
the prosecution because of outstanding criminal charges or
because of any non-final criminal disposition against him
within the same jurisdiction, that possible bias, in fairness,
must be made known to the jury. Even if the prosecutor
has made no promises, either on the present case or on
other pending criminal matters, the witness may hope for
favorable treatment from the prosecutor if the witness
presently testifies in a way that is helpful to the prosecution.
And if that possibility exists, the jury should know about it.
Commonwealth v. Lane, 621 A.2d 566, 567 (Pa. 1993) (citing
Commonwealth v. Evans, 512 A.2d 626 ([Pa.] 1986)).
Further, pursuant to the Pennsylvania Constitution, a
defendant has the right to confront any adverse witness for
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purposes of impeaching his/her credibility. See, Pa. Const., Article
1, Section 9.
However, the Supreme Court has also held that “the scope
and limits of cross-examination is vested in the trial court’s
discretion and that discretion will not be reversed unless the trial
court has clearly abused its discretion or made an error of law.”
Commonwealth v. Ogrod, 839 A.2d 294, 322 (Pa. 2003), cert.
denied, 543 U.S. 1188 (2005) (citing Commonwealth v. Begley,
780 A.2d 605, 627 (Pa. 2001)[)]. Moreover, “the trial court is in
the best position to weigh the probative value of introducing
specific open criminal charges facing a witness against the
prejudicial effect of their introduction.” Lane at 568.
In the instant matter, the record reveals that the court
permitted [A]ppellant to cross-examine Eugene Pratt about his
criminal record. June 15, 2105, N.T. at 24-28. In addition,
[A]ppellant specifically asked Eugene Pratt if he was testifying
against [A]ppellant in order to receive the benefit of a reduced
sentence at his upcoming sentencing hearing. Id. at 24-25.
[Eugene] replied that he was only testifying against [A]ppellant
because it was the “right thing to do.” Id. at 25-26. Thus, the
jury was made aware of any potential bias in favor of the
Commonwealth which could have motivated [Eugene] to testify
against [A]ppellant in order to receive favorable treatment. Lane
at 567. Moreover, [A]ppellant was given the opportunity to
confront [Eugene] about his potential bias in accordance with
Article 1, Section 9 of the Pennsylvania Constitution.
The only limitation the court placed upon [A]ppellant’s
cross[-]examination of [Eugene] was when [A]ppellant specifically
asked about [Eugene’s] sentencing judge and whether the
Commonwealth had certain discussions with this court, as
[Eugene’s] sentencing judge, about [Eugene’s] willingness to
testify. June 15, 2[01]5, N.T. at 29-32. This line of questioning
was irrelevant, prejudicial, and could potentially elicit hearsay
evidence. As such, the court was well within its discretion to limit
this line of cross-examination. Ogrod at 322.
Trial Court Opinion, 12/10/19, at unnumbered 13–14.
Appellant’s sole complaint herein relates to the following exchange.
During cross-examination of Eugene, defense counsel asked:
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[Defense counsel]: Okay. All right. Let me ask you this. You’re
not waiting to testify against [Appellant] in this case, and then
hope that [the prosecutor] runs into [Eugene’s sentencing judge]
and—
[Commonwealth]: Objection
The Court: Objection sustained.
N.T., 6/15/15, at 32. Appellant’s complaint is that this exchange prevented
him from questioning Eugene about the possibility of, or his expectation of,
leniency in his open case or “favored treatment by a prosecuting authority.”
Appellant’s Brief at 22. It is noteworthy that defense counsel’s next question,
without objection, was: “What do you expect to happen with your plea or your
sentence for the Commonwealth when you appear before” your sentencing
judge? Id. Eugene replied, “I don’t know.” Id. Cross-examination of the
witness continued for four more pages without any objections interposed. Id.
at 33–38.
Our review of the record compels our agreement with the trial court that
Appellant was not precluded from asking questions concerning Eugene’s
expectation or hope for leniency in sentencing. The trial court’s ruling was
not an abuse of discretion.
In his sixth issue, Appellant posits that the trial court erred in admitting
Appellant’s diary. Appellant’s Brief at 24. Appellant argues:
During execution of a search warrant on [Appellant’s] home,
police recovered a “diary.” The Commonwealth sought to admit
two entries. One named “List of the Future” which detailed that
[Appellant] wanted to buy and operate a hotel. (C-62) 6/17/15,
P.8.) The Commonwealth also sought to admit a writing that
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appeared to be prepared by [Appellant] regarding actions he
allegedly took with respect to the vandalism claim. (C-44)
6/17/15 P.9.
Id.
On the final day of trial, the Commonwealth indicated that it intended
to introduce Appellant’s diary entries through the testimony of Detective
Jones. N.T., 6/17/15, at 7–9. Appellant objected and stated, “I would object.
Just in regards to the prejudice outweighing probative value.” Id. at 9. The
trial court worked through the relevancy of the entries by determining their
dates, and Appellant agreed that entry C-44 was dated “October 28, 2009,”
and that he “would rest on my objection for the record.” Id. at 9–10.
Appellant made no claim that the entries were not written by him, agreeing
with the trial court that there was “[n]o issue as to the author.” Id. at 10.
With respect to entry C-62 dated July 27, 2010, the Commonwealth
argued that it was written in the course of the conspiracy to obtain money
from the insurance company. N.T., 6/17/15, at 10. Appellant did not object
to its admission. Id. at 12. The trial court then ruled, “Given C-44, the date
of the incident, the court—and given there is no objection from defense that
this is, in fact, [Appellant’s] writing, no issue with C-44. The court grants the
Commonwealth’s request to introduce C-44 and C-62.” . . . “With respect to
defense argument. It’s probative value is not outweighed by the potential
prejudice.” Id.
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To the extent Appellant infers that he did not write the diary entries,
that claim is waived. Appellant specifically declined to argue that to the trial
court; indeed, he indicated his agreement with the trial court’s conclusion that
there was “[n]o issue as to the author.” N.T., 6/17/15, at 10. See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”); Commonwealth v. Spell, 28 A.3d 1274, 1280
(Pa. 2011) (failure to raise a timely objection waives issue).
Appellant also avers that the trial court “erred in admitting the diary
entry without considering defense counsel’s objection based on Rule 403(b).”
Appellant’s Brief at 26. Appellant, true to his presentation throughout his
brief, makes no reference to the record regarding the objection and fails to
identify and explain the rule and its applicability to his contention. Id. Indeed,
we assume he is referring to Pa.R.E. 403, “Excluding Relevant Evidence for
Prejudice, Confusion, Waste of Time, or Other Reasons, but that rule does not
have a subpart (a) or (b). Moreover, when he objected at trial, he baldly
claimed “the prejudice outweigh[ed] probative value,” without identifying or
explaining the prejudice. N.T., 6/17/15, at 9. For these reasons, this claim
is waived.
Even if not waived, we note that the trial court reviewed and determined
the date and relevancy of the entries, and it expressly found that probative
value was not outweighed by any potential prejudice. N.T., 6/17/15, at 9–12.
Moreover, diary entry in Exhibit C-44, an itemized list by Appellant of steps
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he took with respect to the vandalism claim, was the basis of the charges for
insurance fraud and attempted theft by deception and therefore, clearly
relevant. Appellant now asserts on appeal for the first time that he was
prejudiced because the entry could have been written in response to the
Nationwide claim investigation rather than a contemporaneous
“document[ation of] his crime.” Appellant’s Brief at 26. That is an argument
for the jury relating to the entry’s weight, not its admissibility. The diary entry
in Exhibit C-62 represented a wish-list of expensive items Appellant hoped to
purchase and was dated at a time when the insurance claim was still in
dispute. Appellant argues on appeal, once again for the first time, that the
entry was “irrelevant” and had no probative value because it was the
equivalent of any “ambitious goal” a person may have. Id. To the extent the
meaning of the entry was open to interpretation, that conclusion is an
argument regarding weight, not admissibility. Thus, if we were to address the
merits, we would find the issue lacks merit.
Appellant’s final issue asserts that the trial court failed to grant a new
trial “despite prosecutorial misconduct in the [prosecutor’s] closing
arguments. Appellant’s Brief at 2, 34. The trial court determined that this
issue was not preserved for appeal because Appellant “did not place an
objection on the record at any point during the Commonwealth’s closing
argument.” Trial Court Opinion, 12/10/19, at unnumbered 20. We agree.
We have reviewed the complete closing argument and note that Appellant
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wholly failed to object to any remark during or after the prosecutor’s
summation. N.T., 6/17/15, at 113–149. Therefore, we agree with the trial
court that this assertion of error is waived. Trial Court Opinion, 11/21/14, at
7–8; Commonwealth v. May, 31 A.3d 668, 673 (Pa. 2011) (citing Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal”)); see also Pa.R.E. 103(a) (party may claim error
in admission of evidence only when party makes a timely objection).
We reject Appellant’s attempt to rely upon Commonwealth v. Culver,
51 A.3d 866 (Pa. Super. 2012), in an attempt to overcome waiver. That case
is distinguishable. In Culver, a Commonwealth appeal where the trial court
had granted a new trial based upon prosecutorial misconduct, the
Commonwealth argued waiver, claiming that defense counsel had not
objected to every specific act of misconduct. This Court rejected that claim,
noting that defense counsel had objected, at a minimum, to six instances
during the prosecutor’s closing argument, requiring the trial court to give
repeated cautionary and curative instructions to the jury. Id. at 873. As
noted by the Commonwealth, “The record in Culver thus presents a stark
contrast to [Appellant’s] utter failure to raise any timely objections before the
trial court.” Commonwealth’s Brief at 55 (emphasis in original). The trial
court properly concluded that the alleged issues of prosecutorial misconduct
were waived.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/21
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