J-S66011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID FREDERICK,

                            Appellant                No. 1963 WDA 2014


         Appeal from the Judgment of Sentence of November 14, 2014
               In the Court of Common Pleas of McKean County
             Criminal Division at No(s): CP-42-CR-0000497-2013


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED JANUARY 12, 2016

        Appellant, David Frederick, appeals from the judgment of sentence

entered on November 14, 2014, following his jury trial convictions for two

counts each of endangering the welfare of a child and indecent assault and

one count of corruption of minors.1 We affirm.

        We briefly summarize the facts and procedural history of this case as

follows.    The Commonwealth charged Appellant with 15 sexually related

crimes against his biological juvenile daughter.     The victim, who was 18

years old at the time of trial, testified that Appellant engaged in various acts

of sexual misconduct on a weekly basis beginning when she was 11 or 12

years old. Following a two-day trial in April 2014, a jury found Appellant

____________________________________________


1
    18 Pa.C.S.A. §§ 4304, 3126, and 6301, respectively.



*Retired Senior Judge assigned to the Superior Court.
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guilty of the aforementioned charges.            On October 7, 2015, following an

assessment and argument, the trial court determined Appellant to be a

sexually violent predator (SVP).          On November 14, 2014, the trial court

sentenced Appellant to an aggregate term of 62 months to 19 years of

imprisonment. This timely appeal followed.2

       On appeal, Appellant presents the following issues for our review:


____________________________________________


2
  On December 1, 2014, Appellant filed a notice of appeal. On December
12, 2014, counsel for Appellant filed a motion to withdraw his appearance.
The trial court entered an order on January 29, 2015 allowing counsel to
withdraw. On January 30, current counsel filed an entry of appearance. On
February 11, 2015, new counsel filed a motion for reconsideration and, on
March 24, 2015, she filed an amended motion. On March 4, 2015, the trial
court ordered Appellant to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b).        New counsel for Appellant
complied on March 17, 2015.

Following a hearing, the trial court entered an order on March 30, 2015
denying Appellant’s motions for reconsideration, determining it lacked
jurisdiction to entertain them because they were filed more than 30 days
after Appellant’s judgment of sentence and Appellant had already filed a
notice of appeal. At the hearing, Appellant requested that two documents
be included in the record certified for appeal – the victim’s medical records
and a letter purportedly written by the victim. Current counsel claimed that
trial counsel was ineffective for failing to introduce them at trial. The trial
court noted that claims of ineffective assistance of counsel should be
deferred until collateral review and only those exhibits presented at trial are
certified for appeal. On May 4, 2015, the trial court denied relief by order,
opining that the referenced documents were mentioned at trial but not
previously entered into evidence and, therefore, could not be considered as
a part of the official certified record. On May 14, 2015, Appellant filed a
motion to supplement the record with this Court. On June 8, 2015, this
Court entered an order deferring the motion for this panel’s consideration on
the merits. On June 10, 2015, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a).



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          1. Is [Appellant’s] sentence illegal or otherwise improper?

          2. Are [Appellant’s] convictions supported by the record?

          3. Did the trial court err in failing to rule on the motion for
             reconsideration and judgment of acquittal, arrest of
             judgment, or, alternatively, [a] new trial?

          4. Did the trial court err in finding [Appellant] to be [an
             SVP]?

          5. Should [Appellant] be required to register as [an SVP]?

          6. Did the trial court abuse its discretion or issue an
             inappropriate sentence?

          7. Is [Appellant’s] sentence [] excessive?

          8. Did the Commonwealth prove each element of each
             offense beyond a reasonable doubt to sustain the
             conviction[s]?

          9. Did the trial court err in ruling on the admissibility of
             items of evidence or testimony, including allowing
             certain questions by the Commonwealth over objection
             by [Appellant’s counsel] regarding prior inconsistent
             statements?

        10. Did the trial court err in failing to allow the court
            reporting equipment to be used to play back part of the
            testimony about which the jury inquired?

       [11.] Was [Appellant’s] trial counsel ineffective?

Appellant’s Brief at 11-13 (some capitalization and suggested answers

omitted).3
____________________________________________


3
   We must point out that counsel for Appellant failed to follow our rules of
appellate procedure. More specifically, the argument section of the appellate
brief “shall be divided into as many parts as there are questions to be
argued[.]” Pa.R.A.P. 2119(a). Many of Appellant’s arguments overlap and
(Footnote Continued Next Page)


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      Initially, we note that several of Appellant’s arguments are not

properly before us.          In his first issue presented, Appellant’s claim is

three-fold.    First, Appellant claims that the Commonwealth improperly

graded the crimes listed in the bill of criminal information because the facts

did not show Appellant engaged in a course of conduct.                  However, this

aspect of his claim turns on the sufficiency of the evidence, which we find

waived as discussed infra. Appellant next argues that the trial court failed

to give a specific jury instruction regarding a course of conduct. Id. at 26-

28, 30-31.      However, upon review of the record, Appellant did not

contemporaneously object to the jury instructions at trial and, hence, this

aspect of Appellant’s first issue is waived. See Commonwealth v. Powell,

956 A.2d 406, 428 (Pa. 2008), citing Pa.R.A.P. 302(a) (“The absence of a

contemporaneous objection below constitutes a waiver of appellant's current

claim respecting the trial court's instructions.”). Finally, regarding his first

issue, Appellant argues the jury found him not guilty of the first 10 counts as

alleged in the bill of criminal information, therefore, “[a]t most, he was

convicted of performing oral sex on the juvenile” and, therefore, “the

offenses should [have] merge[d] for sentencing purposes.”                Id. at 35-37.

Merger     implicates       the    legality      of   Appellant's   sentence.     See


                       _______________________
(Footnote Continued)

are not separately delineated.     However, because our review is not
substantially impeded, we will proceed to address those issues that were
properly preserved.



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Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012).

Accordingly, we will address only this aspect of Appellant’s first claim below.

      Appellant’s second and eighth claims relate generally to the sufficiency

of the evidence presented at trial. Appellant waived these issues. In both

his Rule 1925(b) statement and his appellate brief, Appellant fails to specify

which crime(s) he is challenging or which specific statutory elements the

Commonwealth failed to prove and, thus, these claims are waived.              See

Commonwealth v. Veon, 109 A.3d 754, 775 (Pa. 2015) (In order to

preserve a challenge to the sufficiency of the evidence on appeal, the

appellant's statement of matters complained of on appeal must state with

specificity the element or elements of the crime upon which the appellant

alleges the evidence was insufficient; such specificity is of particular

importance in cases where the appellant was convicted of multiple crimes,

each of which contains numerous elements that the Commonwealth must

prove beyond a reasonable doubt.) Here, Appellant merely claimed that his

convictions were not supported with sufficient evidence “in light of the

[j]ury’s not guilty finding for counts 1-10” and that the Commonwealth failed

to “prove each element of each offense beyond a reasonable doubt.” Rule

1925(b) Statement, 3/17/20115 at ¶¶ 3 and 9.                   Appellant’s lack of

specificity results in waiver of all his sufficiency claims.

    With regard to Appellant’s fourth and fifth issues pertaining to his SVP

determination, counsel for Appellant did not offer this Court any legal

authority, in violation of Pa.R.A.P. 2119(a), to support his bare appellate

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claims.   Likewise, Appellant abandoned his third claim that the trial court

failed to grant his motion for reconsideration. “We have repeatedly held that

failure to develop an argument with citation to, and analysis of, relevant

authority waives the issue on review.”          Commonwealth v. Plante, 914

A.2d 916, 924 (Pa. Super. 2006). Hence, we are constrained to find these

issues waived, as well.

      Additionally, Appellant waived issues six and seven as presented.

Appellant claims the trial court abused its discretion when it failed to

consider mitigation evidence at sentencing and sentenced Appellant to

consecutive sentences. These issues implicate the discretionary aspects of

sentencing.    Appellant failed to preserve these claims by objecting at the

sentencing    hearing   or   filing   a   timely   post-sentence   motion.   See

Commonwealth v. Sheller, 961 A.2d 187, 189 (Pa. Super. 2008), citing

Pa.R.Crim.P. 720.

      With regard to his ninth issue on appeal, Appellant claims the trial

court erred in allowing the Commonwealth to question the victim, on redirect

examination, regarding prior consistent statements. Appellant’s Brief at 40-

42. More specifically, in sum, Appellant avers:

          [O]n cross-examination, the [victim] admitted that she []
          never told the interviewer [at the Child Advocacy Center]
          that [Appellant] ever touched her sexually with anything
          other than his penis. In fact, she admitted to denying any
          other touching to the interviewer on two different occasions.
          In an attempt to rehabilitate the witness, the
          Commonwealth referred her to the portion of the interview
          when she disclosed that [Appellant] inserted a hot dog into


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        her vagina. The Commonwealth then proceeded to question
        the juvenile about all prior sexual encounters unrelated to
        the prior inconsistent statement, i.e., touching her sexually
        without [sic] something other than his penis. Trial counsel
        objected and the [c]ourt heard argument on whether this
        questioning was proper. The [c]ourt permitted it as a prior
        consistent statement.

        The [c]ourt’s ruling permitted the Commonwealth              to
        duplicate the witnesses’ allegations outside of the rules.

Id. at 41-42.

     However, the trial court found this issue waived for lack of specificity

in Appellant’s Rule 1925(b) statement and for failing “to indicate whether

this issue was preserved at the time of trial.”         Trial Court Opinion,

6/10/2015, at 11. Upon review, and for the reasons that follow, we agree:

        Rule 1925 is intended to aid trial judges in identifying and
        focusing upon those issues which the parties plan to raise
        on appeal. Rule 1925 is thus a crucial component of the
        appellate process.

        When a court has to guess what issues an appellant is
        appealing, that is not enough for meaningful review. When
        an appellant fails adequately to identify in a concise manner
        the issues sought to be pursued on appeal, the trial court is
        impeded in its preparation of a legal analysis which is
        pertinent to those issues.

        In other words, a [c]oncise [s]tatement which is too vague
        to allow the court to identify the issues raised on appeal is
        the functional equivalent of no [c]oncise [s]tatement at all.
        […F]or the reasons set forth above we conclude that [such
        rationale] should also apply to [c]oncise [s]tatements which
        are so vague as to prevent the court from identifying the
        issue to be raised on appeal. In the instant case, Appellant's
        [c]oncise [s]tatement was not specific enough for the trial
        court to identify and address the issue Appellant wished to
        raise on appeal.



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Commonwealth v. Dowling, 778 A.2d 683, 686-687 (Pa. Super. 2001).

In this case, Appellant’s Rule 1925(b) statement stated: “Did the trial court

err in ruling on admissibility of items of evidence or testimony, including

allowing certain questions by the Commonwealth over objection by defense

[counsel] regarding prior consistent statements?” Appellant’s Rule 1925(b)

Statement, 3/17/2015, at 3 (unpaginated). This statement fails to specify

for the trial court the specific exchange at issue. Thus, we agree with the

trial court that Appellant waived this issue for lack of specificity in his Rule

1925(b) statement.

      Finally, in his last issue presented, Appellant claims that trial counsel

was ineffective for failing to introduce the victim’s medical records and a

letter purportedly written by her at trial. Moreover, Appellant claims counsel

was ineffective for failing to challenge the grading of the offenses and

Appellant’s prior record score.     “Apart from two limited exceptions not

pertinent here, claims of ineffective assistance of counsel cannot be raised

on direct review.” See Commonwealth v. Martin, 2015 WL 6471183, at

*3 (Pa. Super. 2015), citing Commonwealth v. Holmes, 79 A.3d 562, 563

(Pa. 2013).    Accordingly, Appellant cannot raise these claims on direct

review and we find Appellant's claim of ineffectiveness of trial counsel must

await collateral review.

      Turning to those issues which were preserved and are properly before

us, we begin our analysis with an examination of Appellant’s first issue

presented, wherein he contends the trial court failed to merge his sentences

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for both counts of endangering the welfare of a child. See Appellant’s Brief

at 20. Essentially, Appellant argues that the Commonwealth failed to prove

a course of conduct to support separate convictions for endangering the

welfare of a child and that these convictions should merge for sentencing

purposes. Id.

     As previously stated, merger implicates the legality of sentence. This

Court previously determined:

        A claim that the trial court imposed an illegal sentence by
        failing to merge sentences is a question of law. Accordingly,
        our standard of review is plenary. The merger doctrine is
        essentially a rule of statutory construction designed to
        determine whether the legislature intended for the
        punishment of one offense to encompass that for another
        offense arising from the same criminal act or transaction.
        The Supreme Court held [that] in all criminal cases, the
        same facts may support multiple convictions and separate
        sentences for each conviction except in cases where the
        offenses are greater and lesser included offenses. The
        Supreme Court further defines ‘the same facts’ as follows:

           any act or acts which the accused has performed and
           any intent which the accused has manifested,
           regardless of whether these acts and intents are part
           of one criminal plan, scheme, transaction or
           encounter, or multiple criminal plans, schemes,
           transactions or encounters.


Commonwealth v. Williams, 958 A.2d 522, 527 (Pa. Super. 2008)

(internal citations and some quotations omitted).    Moreover, “[n]o crimes

shall merge for sentencing purposes unless the crimes arise from a single

criminal act and all of the statutory elements of one offense are included in

the statutory elements of the other offense.” Commonwealth v. Spruill,

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80 A.3d 453, 456 (Pa. 2013), citing 42 Pa.C.S.A. § 9765.         “If the offenses

stem from two different criminal acts, merger analysis is not required.”

Williams, 958 A.2d at 527 (citation omitted).

        Here, the trial court concluded:

          In this case, the victim testified regarding multiple incidents
          over a time span of years and the jury was instructed
          regarding [both counts of endangering the welfare of
          children] that:     ‘Again, there are two identical counts
          (counts 11 and 12) because the Commonwealth asserts that
          there – this conduct occurred on two or more occasions.’
          Since the jury found [] Appellant guilty of both Counts 11
          and 12 the factfinder in this case [] did find that []
          Appellant [e]ndangered the [w]elfare of a [c]hild on at least
          two separate occasions.

Trial Court Opinion, 6/10/2015, at 4.

        Upon review of the record, we agree. The jury convicted Appellant of

two separate counts of endangering the welfare of child. The victim testified

that Appellant engaged in various acts of sexual misconduct with her “about

once a week” from the time she was 11 or 12 years old until her senior

prom.     N.T., 3/26/2014, at 13, 18-28. Because the acts stemmed from

different criminal acts, merger was not required.

        In his tenth issue presented, Appellant claims the trial court erred by

failing to allow the court reporter to play back a portion of trial testimony the

jury inquired about during deliberations. More specifically, Appellant claims:

          During jury deliberations, the jury requested a copy of the
          letter the juvenile female wrote to [Appellant] and her
          mother and a copy of the transcript of her interview with
          the Child Advocacy Center. It is asserted that the letter
          could show a motive to fabricate. Additionally, if the jury

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        was permitted to refresh their recollection of the letter with
        the transcript of the interview, there is a very substantial
        chance that it would have found that the juvenile was
        inconsistent in certain key parts of her testimony. Trial
        counsel did not move for the admission of the letter but,
        instead, asked the juvenile to read it during cross-
        examination. The [c]ourt denied the motion. It is asserted
        that the recording equipment should have been used to
        permit the jury to listen to the play-back of the testimony.

                            *         *            *

        The recording equipment should have been utilized to
        permit the jury to listen to the entirety of the juvenile’s
        testimony so as to not emphasize one portion.

                            *         *            *

        It is acknowledged that the jury’s actual request was for a
        copy of the letter and the letter was not introduced.
        However, the jury would not have known to ask for the
        recording to be played so it is respectfully asserted that the
        request should have been considered to encompass review
        of the actual letter or replaying of the recorded testimony.

Appellant’s Brief at 46-47 (record citations omitted).

      Appellant’s claim implicates the trial court’s evidentiary rulings:

        On a challenge to a trial court's evidentiary ruling, our
        standard of review is one of deference.

        The admissibility of evidence is solely within the discretion
        of the trial court and will be reversed only if the trial court
        has abused its discretion. An abuse of discretion is not
        merely an error of judgment, but is rather the overriding or
        misapplication of the law, or the exercise of judgment that
        is manifestly unreasonable, or the result of bias, prejudice,
        ill-will or partiality, as shown by the evidence of record.

Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012)

(citation omitted).



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      The trial court initially determined it was “confused about this

assertion” because it could not “locate anywhere in the record where the

jury asked to have testimony ‘played back.’”              Trial Court Opinion,

6/10/2015, at 12. The trial court did deny a request to send a letter, written

by an interviewer at the Child Advocacy Center, into the jury room during

deliberations.   Id.   At the time of the jury’s request, Appellant did not

suggest that the court reporter read the testimony back to the jury.

Moreover, the trial court opined that the refusal to allow certain testimony to

be read back to the jury would not constitute an abuse of discretion.           Id.

The trial court was concerned “that if the jury had one piece of evidence in

the jury room literally in their hands they would not weigh it in light of all

the[] evidence in the trial.” Id.

      We agree with the trial court’s assessment. The jury simply did not

request that portions of testimony be read back to them.          Instead, they

requested that a letter, which was never entered into evidence, be sent back

to the jury room to aid them during deliberations. This request was properly

denied and did not constitute an abuse of discretion. Neither party asked

the trial court to direct that portion of the testimony relating to the letter be

read back to the jury.      Consequently, the trial court did not abuse its

discretion in failing to sua sponte make such a determination, when no party

suggested this alternative. Accordingly, Appellant is not entitled to relief.

      Finally, we address Appellant’s motion to supplement the record. At

the hearing on Appellant’s motions for reconsideration, Appellant sought to

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introduce the victim’s medical records together with a letter written by the

victim. These items were not admitted into evidence at trial and, therefore,

could not be entered into the certified record on appeal.    The trial court

properly denied that request. Only “[t]he original papers and exhibits filed

in the lower court … shall constitute the record on appeal in all cases.”

Pa.R.A.P. 1921 (emphasis added).     Notwithstanding, Appellant claims the

abovementioned “documents are relevant to the claim of ineffective

assistance of counsel.” Motion to Supplement the Record, 5/14/2015, at *2,

¶ 17.     However, having already determined that Appellant’s ineffective

assistance of counsel claims must await collateral review, we deny

Appellant’s request to supplement the record with documents not entered

into the record at trial.

      Judgment of sentence affirmed.        Motion to supplement the record

denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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