Com. v. Phillips, T. , 2016 Pa. Super. 103 ( 2016 )

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2016 PA Super 103COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
TABU NAZSHON PHILLIPS, :
:
Appellant : No. 802 MDA 2015
Appeal from the Judgment of Sentence March 31, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division No(s): CP-22-CR-0001621-2012
BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*
OPINION BY DUBOW, J.: FILED MAY 19, 2016
Appellant, Tabu Phillips, appeals from the Judgment of Sentence
entered in the Dauphin County Court of Common Pleas on March 31, 2015.
Following a trial, the jury convicted Appellant of one count of Persons Not to
Possess Firearm and one count of Possessing an Instrument of Crime –
Unlawful Body Armor.1 We hold that: (i) the trial court was not required to
advise Appellant of the applicable sentencing guidelines prior to finding that
Appellant knowingly, voluntarily and intelligently waived his right to counsel;
(ii) having already obtained a valid waiver of counsel, the trial court was not
required to perform a new waiver-of-counsel colloquy absent a substantial
change in circumstances; (iii) Appellant waived his claim that certain out-of-
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §6105 and 18 Pa.C.S. §907(c) respectively.
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court statements were inadmissible proof of prior acts under Pa.R.E. 404(b)
when he failed to preserve this claim in the trial court and in his Rule
1925(b) Statement; and (iv) Appellant waived his claim that these out-of-
court statements were irrelevant by failing to develop this claim in the
argument section of his Appellate Brief. Accordingly, we affirm the
Judgment of Sentence.
Factual and Procedural History
This is Appellant’s second conviction and appeal to this Court for the
same underlying offense. This Court previously vacated Appellant’s initial
convictions and remanded for a new trial after concluding that the trial court
had failed to elicit a knowing, voluntary and intelligent waiver of counsel
from Appellant before permitting him to proceed pro se in his first trial. See
Commonwealth v. Phillips, 93 A.3d 847, 855 (Pa. Super. 2014). At his
re-trial, Appellant again elected to represent himself pro se. That jury also
convicted Appellant. The facts and procedural history are as follows.
On December 22, 2011, officers of the Harrisburg City Police
Department responded to a 911 call from a female screaming for help and
stating that someone was trying to kill her. Id. at 849. Officers responded
to a boarding house and followed the sounds of a screaming female to the
second floor, where they encountered Appellant breathing rapidly as he
walked out of a bedroom. Id.-2-
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In the bedroom that Appellant had just vacated, officers found Jasmine
Matthews (“Matthews”), who was “crying, breathing very hard, and had
blood coming from her nose and mouth.” Id. The visibly distraught
Matthews told officers that Appellant had repeatedly struck her with his fists
and with a gun. N.T. Suppression, 11/13/14, at 20-21. Matthews showed
officers the gun Appellant used to strike her, a .32 caliber Colt gray top
action revolver located under the foot of the bed. Phillips, supra at 849.
Officers discovered Appellant had a warrant out for his arrest, and took
him into custody. Id. While searching Appellant incident to arrest, officers
discovered Appellant was wearing a Kevlar vest with ammunition for a .32
caliber firearm in the pocket. Id. Appellant was charged with one count of
Persons Not to Possess Firearm, one count of Possessing an Instrument of
Crime – Unlawful Body Armor, and one count of Simple Assault.
As noted above, Appellant represented himself pro se in his first trial.
After a jury convicted him of the two possession charges and acquitted him
of the simple assault, Appellant appealed to this Court alleging, inter alia,
that his waiver of counsel had not been knowing, voluntary and intelligent.
This Court agreed, finding none of the waiver-of-counsel colloquies given by
the trial court satisfied the minimum requirements under Pa.R.Crim.P. 121.
Id. at 852-55. We remanded for a new trial on the possession charges only.
On October 7, 2014, Appellant filed two motions pro se: (1) a Motion
to Proceed Pro Se citing a disagreement in trial strategy between Appellant
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and his appointed counsel; and (2) a Motion to Suppress challenging the
officer’s warrantless entry into the boarding house and the subsequent
seizure of the firearm discovered therein.
On November 13, 2014 the Honorable Scott Arthur Evans held a
hearing on both Motions. At the commencement of the hearing, the trial
court presided over a waiver-of-counsel hearing of Appellant on the record
before granting Appellant’s Motion to Proceed Pro Se and appointing standby
counsel. N.T. Suppression, 11/13/14, at 3-12. The parties then proceeded
with testimony on the Motion to Suppress, which Judge Evans denied at the
close of the hearing.
A two-day jury trial began on March 11, 2015. Prior to jury selection,
Appellant presented the trial court with a Motion in Limine challenging the
admissibility of (1) Appellant’s prior criminal record, (2) a recording of a
prison phone conversation, and (3) the content of the 911 call from
Matthews. Appellant challenged the 911 call, in which Matthews states “He
is trying to kill me,” as irrelevant and unfairly prejudicial given the absence
of assault charges against Appellant on remand.
The trial court denied Appellant’s Motion in Limine, and then conducted
a second waiver-of-counsel hearing of Appellant on the record before
proceeding with jury selection and trial.
The jury convicted Appellant of both possession charges. Judge Evans
subsequently sentenced Appellant to five to ten years of incarceration for
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Persons Not to Possess Firearms, and a consecutive one to four years
sentence for Unlawful Body Armor. Appellant filed a pro se post-sentence
motion on April 8, 2015. The next day, counsel entered an appearance on
behalf of Appellant and filed an amended post-sentence motion. The court
denied the Motion on April 13, 2015. Appellant timely appealed. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Issues Raised on Appeal
Appellant raised the following alleged errors in his counseled Rule
1925(b) Statement:
1. [The trial court] erred by failing to conduct a complete and
thorough, on-the-record colloquy of Appellant before allowing
him to proceed to his suppression hearing and trial pro se in
violation of Pa.R.Crim.P. Rule 121, resulting in an unknowing,
involuntary, and unintelligent waiver of his right to counsel
under the Fifth and Sixth Amendments to the United States
Constitution and Articles I and V, Section 9 of the Pennsylvania
Constitution.
2. [The trial court] erred in admitting evidence of the 911 call
where such was irrelevant to the underlying charges, and where
any probative value was outweighed by the danger of unfair
prejudice, confusing the issues, and misleading the jury.
3. [The trial court] erred in admitting the victim's statement to
police where the statement constituted inadmissible hearsay not
subject to any exception.
4. [The trial court] erred in denying Appellant's Post-Sentence
Motion where his sentence is excessive and unreasonable and
constitutes too severe a punishment in light of the gravity of the
offense, Appellant's rehabilitative needs, and what is needed to
protect the public.
Appellant’s Statement of Errors Complained of Upon Appeal Pursuant to
PA.R.A.P. 1925(b).
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Appellant’s Statement of Questions Presented in his counseled Brief to
this Court raises two issues on appeal:
a. Did not the lower court fail to insure that [Appellant’s] waiver
of his right to counsel was knowing, voluntary, and intelligent
when it failed to conduct a waiver-of-counsel colloquy at a
critical stage of the proceedings and when the two colloquies
that it did conduct were insufficient under the standards of
Pa.R.Crim.P. 121(A)(2)?
b. Did the trial court err in denying [Appellant’s] Motion In
Limine to exclude as irrelevant certain out-of-court declarations
of the alleged victim of the simple assault when the defendant
had been acquitted of the simple assault at the first jury trial and
when it was unnecessary for the Commonwealth at the second
trial to introduce a detailed account of the alleged assault?
Appellant’s Brief at 5 (capitalization omitted).
Waiver of Counsel Claims
Although stated as a single question in his brief to this Court,
Appellant’s waiver-of-counsel claim consists of two distinct arguments. First,
Appellant avers that the trial court was required to advise him of the
applicable sentencing guidelines prior to finding Appellant’s waiver of counsel
was knowing, voluntary and intelligent. Second, Appellant avers that the
trial court was required to conduct a new waiver-of-counsel colloquy prior to
hearing Appellant’s Motion in Limine.
The right to counsel and the corresponding right to self-representation
are deeply entrenched in both state and federal law. As our Supreme Court
has made clear:
[i]t is . . . firmly established that an accused has a constitutional
right to counsel during trial. While an accused may waive his
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constitutional right, such a waiver must be the free and
unconstrained choice of its maker, and also must be made
knowingly and intelligently. To be a knowing and intelligent
waiver defendant must be aware of both the right and of the
risks of forfeiting that right.
Commonwealth v. Tyler, 360 A.2d 617, 620 (Pa. 1976) (citations and
quotations omitted). Deprivation of the right to counsel, or the right to
waive counsel, can never be harmless. Commonwealth v. Payson, 723
A.2d 695, 699–700 (Pa. Super. 1999). Moreover,
the presumption must always be against the waiver of a
constitutional right. Nor can waiver be presumed where the
record is silent. The record must show, or there must be an
allegation and evidence which shows, that an accused was
offered counsel but intelligently and understandingly rejected the
offer. Anything less is not waiver.
Commonwealth v. Monica, 597 A.2d 600, 603 (Pa. 1991).
Pennsylvania Rule of Criminal Procedure 121 outlines additional
requirements for a valid waiver-of-counsel colloquy. It states, in pertinent
part:
Rule 121. Waiver of Counsel
(A) Generally.
(1) The defendant may waive the right to be represented by
counsel.
(2) To ensure that the defendant's waiver of the right to counsel
is knowing, voluntary, and intelligent, the judge or issuing
authority, at a minimum, shall elicit the following information
from the defendant:
(a) that the defendant understands that he ... has
the right to be represented by counsel, and the right
to have free counsel appointed if the defendant is
indigent;
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(b) that the defendant understands the nature of the
charges against the defendant and the elements of
each of those charges;
(c) that the defendant is aware of the permissible
range of sentences and/or fines for the offenses
charged;
(d) that the defendant understands that if he ...
waives the right to counsel, the defendant will still be
bound by all the normal rules of procedure and that
counsel would be familiar with these rules;
(e) that the defendant understands that there are
possible defenses to these charges that counsel
might be aware of, and if these defenses are not
raised at trial, they may be lost permanently; and
(f) that the defendant understands that, in addition
to defenses, the defendant has many rights that, if
not timely asserted, may be lost permanently; and
that if errors occur and are not timely objected to, or
otherwise timely raised by the defendant, these
errors may be lost permanently.
***
(C) Proceedings Before a Judge. When the defendant seeks
to waive the right to counsel after the preliminary hearing, the
judge shall ascertain from the defendant, on the record, whether
this is a knowing, voluntary, and intelligent waiver of counsel.
Pa.R.Crim.P. 121(A)(1)-(2)(a)-(f), (C) (emphasis in original). Finally, “a
waiver colloquy must, of course, always contain a clear demonstration of the
defendant's ability to understand the questions posed to him during the
colloquy.” Commonwealth v. McDonough, 812 A.2d 504, 507 n. 1 (Pa.
2002).
With these requirements in mind, we now turn to Appellant’s waiver of
counsel claims.
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Adequacy of the November Waiver-of-Counsel Colloquy
During the November 13, 2014 waiver-of-counsel colloquy, Appellant
answered questions about his age, educational background, and
comprehension skills. N.T. Suppression, 11/13/14, at 4. The trial court
confirmed that Appellant understood that he had a right to counsel, including
the right to be appointed counsel free of charge in the event he could not
afford an attorney. Id. The trial court confirmed that Appellant understood
the nature of the charges against him, going over both of the charges then
pending as well as the elements of each offense. Id. at 4-5, 9-11.
Appellant acknowledged that he understood the maximum possible penalty
for each of the offenses charged. Id. at 5. Appellant indicated he
understood he would be held to the same procedural and evidentiary rules
as an attorney, and that an attorney would “be more familiar” with those
rules. Id. In addition, Appellant acknowledged he might have “possible
defenses that an attorney may be aware of that if not raised at trial [could
be lost] permanently.” Id. at 6. Finally, Appellant stated he understood
that he had many rights that he would have to assert in a timely manner or
avoid losing permanently, including the right to appeal errors at trial. Id.
In spite of this extensive inquiry, Appellant now argues that the
waiver-of-counsel colloquies conducted in the trial court did not comply with
the minimum standards set forth in Pa.R.Crim.P. 121(A)(2) and that
therefore Appellant’s waiver of counsel was not knowing, voluntary and
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intelligent. In particular, the Appellant argues that Pa.R.Crim.P.
121(A)(2)(c), which requires the trial court to advise potential pro se
defendants of the “permissible range of sentences,” also required the trial
court to advise Appellant of the sentencing guidelines applicable to his case.
Addressing Appellant’s claim requires us to interpret the meaning of
Rule 121. The interpretation of procedural rules is a question of law, so our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Dowling, 959 A.2d 910, 913 (Pa. 2008).
The rules for interpreting a Rule of Criminal Procedure in this Court are
well established:
When we interpret our Rules of Criminal Procedure, we employ
the same principles employed in the interpretation of statutes.
Pa.R.Crim.P. 101(C); Commonwealth v. Cooper, 611 Pa. 437,
27 A.3d 994, 1003 (2011). The object of interpretation of the
criminal rules “is to ascertain and effectuate the intention” of our
Supreme Court, as the rule-issuing body. “Every [rule] shall be
construed, if possible, to give effect to all its provisions.” 1
Pa.C.S. § 1921(a). “When the words of a [rule] are clear and
free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b).
Commonwealth v. Noel, 53 A.3d 848, 855 (Pa. Super. 2012).
As the language of Pa.R.Crim.P. 121 is “clear and free from all
ambiguity, we need not delve further into the applicable rules of
construction.” Id. at 855-56.
Rule 121, by its plain language, requires the trial court to determine
“that the defendant is aware of the permissible range of sentences and/or
fines for the offenses charged[.]” Pa.R.Crim.P. 121(A)(2)(c) (emphasis
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added). The plain language of Rule 121 does not mention that the trial court
must advise the defendant of the applicable sentencing guidelines. Our
Supreme Court is aware of the existence of sentencing guidelines, and if it
wished to include the sentencing guidelines in the requirements under Rule
121, it was free to do so. The Supreme Court did not.
We, thus, conclude that under the plain language of Rule 121, the trial
court was not required to advise Appellant of the applicable sentencing
guidelines prior to finding that Appellant had knowingly, voluntarily and
intelligently waived his right to counsel. Therefore, Appellant is not entitled
to relief on this claim.
Duration of a Valid Waiver of Counsel
Appellant next argues that the Motion in Limine was a “critical stage,”
and therefore the lower court erred in hearing Appellant’s Motion without
first conducting a waiver-of-counsel colloquy. Even assuming, arguendo,
that the Motion in Limine was a “critical stage,” we have already held,
supra, that the trial court previously elicited a knowing, intelligent and
voluntary waiver of counsel from Appellant at the November 13, 2014
hearing on the Motion to Suppress. Accordingly, the relevant inquiry is
whether, and under what circumstances, the trial court has a duty to repeat
the waiver-of-counsel colloquy.
After a thorough review of the case law in this Commonwealth, we
conclude this is a case of first impression. Although our Opinion in
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Commonwealth v. Baker, 464 A.2d 496 (Pa. Super. 1983), refers in dicta
to the need for a thorough waiver-of-counsel colloquy “at every critical stage
of a criminal proceeding,” this Court in Baker expressly declined to decide
the question of whether a waiver-of-counsel colloquy must be repeated at
every critical stage of the prosecution.2 Baker, 464 A.2d at 500. Although
the appellant in Baker raised the issue of whether the trial court was
required to re-colloquy the appellant prior to sentencing, this Court found
the initial waiver colloquy constitutionally inadequate, and granted relief
without addressing the issue of re-colloquy.
Although our research yielded no controlling case law in Pennsylvania
on the issue of the need to repeat the colloquy, our survey of our sister
states and federal circuit courts shows that every jurisdiction but one has
held that a valid waiver of counsel is presumed to remain effective
throughout any subsequent trial proceedings absent either a revocation by
the defendant or a substantial change in circumstances.3
2
Moreover, none of the cases relied upon by this Court in Phillips, supra or
Baker holds that a waiver-of-counsel colloquy must be repeated at every
critical stage of the prosecution. Instead, they highlight the fact that the
question of waiver may arise for the first time at various stages, and that
when it arises, if ever, the court must conduct a thorough waiver-of-counsel
colloquy. See Phillips, 93 A.3d at 854; Baker, 464 A.2d at 499.
3
Importantly, the only jurisdiction to address the issue and hold otherwise
did so on the basis of a state statute that explicitly requires re-colloquy at
each subsequent stage, and not on constitutional right-to-counsel grounds.
See Meuhleman v. State, 3 So.3d 1149, 1156 (Fla. 2009) (relying on Fla.
R.Crim. P. 3.111(d)(5) (2003)).
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This “ongoing waiver” rule was first adopted by the Eighth Circuit in
Davis v. United States, 226 F.2d 834, 840 (8th Cir. 1955) (finding the trial
judge was “entirely justified in taking [the appellant’s] prior refusal of
counsel as ‘definite’” and still valid at a later proceeding, and reasoning that,
absent some change in circumstance, it would be “mere ceremony” and
“neither good law nor good sense” to require the trial court to re-colloquy a
defendant at each subsequent proceeding). Since Davis, every federal
Circuit Court that has considered the issue has adopted some version of the
ongoing waiver rule announced in Davis. See, e.g., United States v.
Unger, 915 F.2d 759, 762 (1st Cir. 1990) (holding that, in the absence of
intervening events, a defendant's earlier waiver was still in force at the
sentencing hearing); United States v. McBride, 362 F.3d 360, 367 (6th
Cir. 2004) (adopting “the rule set forth above by our sister circuits that a
defendant's waiver of counsel at trial carries over to subsequent proceedings
absent a substantial change in circumstances”); United States v. Fazzini,
871 F.2d 635, 643 (7th Cir. 1989) (holding that “[o]nce the defendant has
knowingly and intelligently waived his right to counsel, only a substantial
change in circumstances will require the district court to inquire whether the
defendant wishes to revoke his earlier waiver.”); Panagos v. United
States, 324 F.2d 764, 765 (10th Cir. 1963) (denying motion to vacate
sentence where the record contained “no facts or circumstances which would
prevent the initial waiver of the right to counsel, knowingly and intelligently
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made, from extending to and being fully effective at the time of
sentencing”).
The Ninth Circuit has pointed out that certain acts by the defendant
may trigger the need for a re-colloquy. In Arnold v. United States, 414
F.2d 1056, (9th Cir. 1968), the Ninth Circuit Court of Appeals found that,
although the Sixth Amendment right to counsel applies at each critical stage
of the prosecution, “it does not follow that once the assistance of counsel in
court has been competently waived, a new waiver must be obtained at every
subsequent court appearance by the defendant.” Id. at 1059. The Court
then considered whether the defendant may have triggered the need for a
re-colloquy by expressly requesting the appointment of counsel or indicating
in the initial waiver that he wanted to limit that waiver to a particular stage
of the proceedings. Id. The Ninth Circuit found the defendant had not
triggered the need for a new colloquy, and therefore his valid waiver of
counsel prior to pleading guilty remained valid at sentencing and at re-
sentencing some six months later. Id. at 1057.
Similar to the Federal Courts, nearly every state Supreme Court to
consider the issue has adopted the ongoing waiver rule. See, e.g., State v.
Mathis, 159 N.W.2d 729, 732 (Wis. 1968) (holding that a valid waiver
“continues through the proceedings until, by some act of the defendant, it is
withdrawn or the presumption of continuance interrupted”); State v. Harig,
218 N.W.2d 884, 890-91 (Neb. 1974), reaffirmed, State v. Tiff, 260 N.W.2d
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296, 303 (Neb. 1977) (adopting the reasoning of the Circuit Courts in Davis
and Panagos, supra); State v. Steed, 506 P.2d 1031, 1033 (Ariz. 1977)
(holding that “[a] defendant's election, once properly made, continues
throughout the trial and sentencing”); State v. Carpenter, 390 So.2d 1296,
1299 (La. 1980) (adopting the reasoning of the Ninth Circuit in Arnold,
supra); People v. Baker, 440 N.E.2d 856, 860-61 (Ill. 1982) (“In the
absence of some circumstances indicating that the waiver is limited, or other
facts which would give the trial court reason to conduct a further inquiry, we
hold . . . that a competent waiver of counsel at arraignment by a defendant
who is advised that he has a constitutional right to counsel at all stages of
the proceedings is operative at the time of sentencing.”); Lay v. State, 179
P.3d 615, 620 (Okla. 2008) (finding defendant in a capital murder trial
properly waived his right to counsel during the guilt phase, and that this
waiver remained valid throughout the trial and sentencing phases),
abrogated on other grounds by Harmon v. State, 248 P.3d 918 (Okla.
2011).
Consistent with the weight of authority, we now hold that once a
defendant has made a competent waiver of counsel, that waiver remains in
effect through all subsequent proceedings in that case absent a substantial
change in circumstances.
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Having adopted this rule, we now consider whether some substantial
change is present here.4 There is nothing in the record to suggest any
change in circumstances beyond the passage of a few months’ time.
Moreover, there is no evidence that suggests Appellant intended to limit his
waiver of counsel to the suppression hearing, or that Appellant requested
the re-appointment of counsel. Absent any of these triggers, the trial court
was not required to colloquy Appellant again prior to hearing Appellant’s
Motion in Limine on March 11, 2015. Therefore, Appellant is not entitled to
relief on this claim.
Admissibility of Out-of-Court Statements Claims
Appellant next challenges the admission of two out-of-court
statements made by Matthews to 911 and to the responding police officers.
Appellant’s challenge to the admission of the statements includes two
distinct parts.5 First, Appellant argues that the out-of-court statements were
inadmissible evidence of prior bad acts. Second, Appellant argues the out-
of-court statements were irrelevant. We address and deny each argument
in turn.
The out-of-court statements at issue were those of Matthews, who was
allegedly beaten by Appellant with the gun and who initially summoned
4
We expressly decline to define all the facts under which we would find a
substantial change in circumstances.
5
Appellant’s Brief expressly abandons any hearsay objection raised at trial
or in his Rule 1925(b) Statement. See Appellant’s Brief at 30.
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police to the scene. She did not testify at trial. Instead, the Commonwealth
brought in two different out-of-court statements made by Matthews through
other witnesses.
First, the Commonwealth played a 911 call in which Matthews asked
for help and told the dispatcher “he is trying to kill me.” N.T. Trial, 3/12/15,
at 52-53. Appellant objected to the introduction of this evidence as
irrelevant and unfairly prejudicial in the pre-trial Motion in Limine discussed
above.
Second, one of the Commonwealth’s witnesses testified to statements
Matthews made to the responding officers. N.T. Trial, 3/12/15, at 69-71. In
her statements on scene, Matthews told officers that Appellant had struck
her about her face and abdomen with his fists and with a gun. Id. When
asked about the gun, Matthews directed officers to the firearm recovered
from under the bed. Id. Appellant made two hearsay objections to this
testimony, which the trial court overruled on the grounds that the
statements were admissible excited utterances. Id.In the argument portion of Appellant’s Brief to this Court, he avers
that the 911 call and statements made at the scene of Appellant’s arrest
were inadmissible evidence of prior bad acts under Pa.R.E. 404(b). We find
Appellant waived this argument as to both statements.
Our Pennsylvania Rules of Appellate Procedure and our case law set
forth the well-established requirements for preserving a claim for appellate
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review. “Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.” Pa.R.A.P. 302(a). This requirement
bars an appellant from raising “a new and different theory of relief” for the
first time on appeal. Commonwealth v. York, 465 A.2d 1028, 1032 (Pa.
Super. 1983).
Similarly, our Supreme Court has made it clear that “[a]ny issues not
raised in a [Rule] 1925(b) statement will be deemed waived.”
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (citation and
quotation omitted). See also Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement . . . are waived.”). Moreover, the issues raised
must be identified with sufficient particularity; a Rule 1925(b) statement
“which is too vague to allow the court to identify the issues raised on appeal
is the functional equivalent of no [Rule 1925(b)] Statement at all.”
Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006).
In the instant case, Appellant’s arguments to the trial court were
limited to objections on the basis of relevance and hearsay. At no point
before, during, or after trial did Appellant object on the ground that the
evidence was inadmissible as prior bad acts. Nor did Appellant raise this bad
acts argument in his Rule 1925(b) Statement, which again was limited to
alleging error on the grounds the testimony was irrelevant and/or hearsay.
Because Appellant is improperly attempting to raise a new theory of relief for
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the first time on appeal, we conclude Appellant waived this prior acts claim.
See Pa.R.A.P. 302(a); York, supra.
Appellant’s Statement of Questions Involved also avers that the out-
of-court statements were not relevant on remand given that the initial jury
acquitted Appellant of Simple Assault. The argument section of Appellant’s
counseled Brief to this Court, however, lacks any discussion of this relevance
claim. Instead, the argument section of Appellant’s Brief sets forth, in
substance, only a prior bad acts argument. Accordingly, Appellant waived
this relevance claim.
This Court will address only those issues properly presented and
developed in an appellant’s brief as required by our Rules of Appellate
Procedure, Pa.R.A.P. 2101-2119. “Appellate arguments which fail to adhere
to these rules may be considered waived, and arguments which are not
appropriately developed are waived.” Coulter, supra at 1088 (citation and
quotation omitted). Thus, issues raised in a Brief’s Statement of Questions
Involved but not developed in the Brief’s argument section will be deemed
waived. Harkins v. Calumet Realty Co., 614 A.2d 699, 703 (Pa. Super.
1992).
Appellant’s Brief does not refer to Pennsylvania Rule of Evidence 401,
defining the test for whether evidence is relevant, or to Rule 402, which
governs the admissibility of relevant evidence generally. Nor does Appellant
cite to any cases which interpret or apply our relevance standards outside of
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those cases that consider whether evidence of prior bad acts may be
excluded as unfairly prejudicial.
In fact, Appellant expressly concedes that the out-of-court statements
had at least “minimal relevance,” but argues that the evidence should have
been excluded as improper evidence of a prior bad act under Rule 404(b).
Appellant’s Brief at 32. As discussed supra, Appellant failed to preserve any
prior bad acts claim. He cannot now resurrect that claim on appeal by
calling it something else. Nor can he preserve a relevance argument in a
brief that only discusses the evidence’s admissibility as a prior bad act. See
Harkings, 614 A.2d at 703. Therefore, we find Appellant waived this
relevance claim.
Conclusion
Having found Appellant waived two of his claims and is not entitled to
relief on the merits of his remaining claims, we affirm the trial court’s
Judgment of Sentence.
Judgment of Sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2016
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