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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA

                   v.


    TYRONE JEFFCOAT-PARKER

                        Appellant            :    No. 615 EDA 2018
             Appeal from the Judgment of Sentence January 2, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0000058-2017
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 17, 2019

         Tyrone Jeffcoat -Parker (Appellant) appeals from the judgment of
sentence imposed after a jury convicted him of two counts of robbery, two

counts of conspiracy to commit robbery, one count of terroristic threats, one

count of theft by unlawful taking, and one count of receiving stolen property.'

Upon review, we affirm.

         The trial court summarized the facts and procedural history of this case

as follows:

            Connor Pinnell [(Pinnell)] testified that on the night of October
         5, 2016, he and his friends were hanging out in the walkout
         basement of his parents' home, in West Pottsgrove, Montgomery
         County.  Between 9 and 9:30 p.m., one of his friends, Jesse
         Goodfellow [(Goodfellow)], arrived at the home. Goodfellow
         knocked on the sliding glass door, Pinnell unlocked the door and
         [Appellant] pushed Goodfellow into the room with a gun to his


'   18    Pa.C.S.A.   3701(a)(1)(ii), (iv), 903(a)(1)/3701(a)(1)(ii),
                        §§                                                      (iv),
2706(a)(1), 3921(a), 3925(a).
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      back. [Appellant] was accompanied by Carlton Gillis. [Appellant]
      demanded that Pinnell and his friends give them their wallets and
      other property. [Appellant] took Pinnell's bag that contained cash,
      marijuana off of the table, and related drug paraphernalia.
      Approximately $1500 cash, wrapped in a blue rubber band, was
      taken[.]

         Officer Robert Stoudt responded to a report of an armed
      robbery. Pinnell ultimately followed the officer to the police
      station, where he was able to identify [Appellant], with whom he
      had attended high school, as the person who robbed him.
      Following Pinnell's identification, [Appellant] was placed under
      arrest. A search incident to that arrest revealed $1172 cash
      wrapped in a blue rubber band secreted in [Appellant]'s sock.    .   .   .


      Officer Stoudt also interviewed [Appellant]'s girlfriend. During
      that interview[,] she gave police $310 - two one hundred dollar
      bills, one fifty and three twenties. The cash recovered totaled
      $1482.00.



         [At trial, Appellant] testified in his own defense and presented
      testimony purporting to establish that the instant case was not a
      robbery, but a drug deal gone bad. The specific testimony is not
      relevant to the instant appeal.  .   .   .




        Following a three day trial, a jury convicted [Appellant] of two
      counts of Robbery, two counts of Criminal Conspiracy -Engaging,
      Terroristic Threats, Theft by Unlawful Taking, and Receiving
      Stolen Property. On January 2, 2018, the [trial court] imposed a
      sentence of five (5) to ten (10) years for the first count of Robbery
      and a consecutive sentence of two (2) to four (4) years for the
      second count of Robbery, for an aggregate sentence of seven (7)
      to fourteen (14) years [of] incarceration in a State Correctional
      Facility. [On all other counts, the Court imposed no further
      penalty.] On January 10, 2018, [Appellant] filed a post sentence
      motion, which was denied by Order of February 6, 2018. This
      [timely] appeal followed.

Trial Court Opinion, 8/13/18, at 1-4 (footnotes and record citations omitted).

      On appeal, Appellant presents the following issues for review:



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      1. Did the [t]rial [c]ourt err in finding that [A]ppellant's challenge
      to [the Commonwealth]'s use of peremptory challenges based
      upon impermissible considerations of race and gender in violation
      of Batson v. Kentucky, 476 U.S. 79 (1986) was waived?

      2. Did the [trial court] err in sustaining [the Commonwealth]'s
      objection to a question to Gloria Parker, to elicit evidence of a
      conversation to impeach a witness by relying upon the hearsay
      rules and not Pa.R.E. 607?

      3.   Did the [t]rial [c]ourt abuse its discretion in sentencing
      [A]ppellant of 7 to 14 years [of] state -incarceration by
      misapplying the Sentencing Guidelines, as such a sentence was in
      the aggravated range of the guidelines?

Appellant's Brief at 3.

      In his first issue, Appellant argues that the trial court erred in finding

that he waived his Batson claim. Additionally, Appellant maintains that the

Commonwealth committed a Batson violation during the jury selection
process because it used "peremptory strikes on the basis of race." Id. at 6.

      In Batson, the United States Supreme Court held that "the Equal
Protection Clause forbids the prosecutor to challenge potential jurors solely on

account of their race or on the assumption that black jurors as a group will be

unable impartially to consider the State's case against a black defendant."

Batson v. Kentucky, 476 U.S. 79, 89 (1986).              The Supreme Court of
Pennsylvania has explained the framework for analyzing a Batson claim:

      First, the defendant must make a prima facie showing that the
      circumstances give rise to an inference that the prosecutor struck
      one or more prospective jurors on account of race; second, if the
      prima facie showing is made, the burden shifts to the prosecutor
      to articulate a race -neutral explanation for striking the juror(s) at
      issue; and third, the trial court must then make the ultimate


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      determination of whether the defense has carried its burden of
      proving purposeful discrimination. Batson, 476 U.S. at 97[.]

Commonwealth v. Cook, 952 A.2d 594, 602                  (Pa.   2008)   (quoting

Commonwealth v. Harris, 817 A.2d 1033, 1042 (Pa. 2002)).

      With respect to the preservation of Batson claims, our Supreme Court

has stated an appellant must raise a Batson objection during voir dire in
order to "preserve a challenge to the Commonwealth's use of peremptory

strikes." Commonwealth v. Smith, 17 A.3d 873, 894 (Pa. 2011). Where
"defense counsel did not raise or preserve any claim of racial discrimination in

jury selection with a contemporaneous Batson objection at trial, we have
repeatedly     held   that   the   Batson    framework    does    not    apply".

Commonwealth v. Hutchinson, 25 A.3d 277, 287 (Pa. 2011).

      In this case, the record reveals that Appellant did not raise a Batson

objection during the jury selection process. See N.T., 10/2/17, at 49-51.

Instead, Appellant raised a Batson claim after the jury had been sworn. Id.

at 59-73. Accordingly, Appellant has failed to preserve his Batson claim.

      Further, even if Appellant had raised a timely Batson claim, we would

conclude that Appellant waived this issue on appeal.       Appellant's Batson

argument consists of nothing more than a single bald assertion that the strike

of juror 46 was "pretextual" because "she may have known [A]ppellant from

church years prior." Appellant's Brief at 7. Appellant's argument is severely

underdeveloped and includes no citation to any pertinent authority.         Our

Supreme Court has long held that it is not the courts' obligation to formulate

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arguments on behalf of an appellant. Commonwealth v. Wright, 961 A.2d

119, 135 (Pa. 2008). Therefore, even if Appellant had preserved his Batson

claim with the trial court, we would conclude that he waived it on appeal. See

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating 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.
Clayton, 816 A.2d 217, 221 (Pa. 2002) ("[I]t is a well settled principle of
appellate jurisprudence that undeveloped claims are waived and unreviewable

on appeal."); see also Pa.R.A.P. 2119(a) (requiring that each argument must

be "followed by such discussion and citation of authorities as are deemed

pertinent").

      In his second issue, Appellant argues that the trial court abused its
discretion in sustaining the Commonwealth's hearsay objection to the

testimony of Gloria Jeffcoat -Parker, Appellant's mother. Appellant contends

that he intended to use his mother's testimony to impeach the testimony of

Thomas Pinnell, Pinnell's father.

      Our standard of review is as follows:

      "An appellate court's standard of review of        a trial court's
      evidentiary rulings, including rulings on the admission of hearsay
      ... is abuse of discretion." Commonwealth v. Walter, [] 93 A.3d
      442, 449 ([Pa.] 2014). Thus, we will not disturb an evidentiary
      ruling unless "the law is overridden or misapplied, or the judgment
      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias, or ill -will, as shown by evidence of record."


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      Commonwealth v. Cooper, [] 941 A.2d 655, 667 ([Pa.] 2007)
      (citation omitted).

Commonwealth v. Fitzpatrick, 204 A.3d 527, 531 (Pa. Super. 2019).

      Hearsay is an out of court statement made by the declarant which a

party seeks to offer into evidence to prove the truth of the matter asserted in

the statement. Pa.R.E. 801(c). In general, hearsay is not admissible, except

as provided by the Pennsylvania Rules of Evidence, by other rules prescribed

by the Pennsylvania Supreme Court, or by statute.          Pa.R.E. 802.    "The

rationale for the hearsay rule is that hearsay is too untrustworthy to be
considered by the trier of fact." Commonwealth v. Charlton, 902 A.2d 554,

559 (Pa. Super. 2006) (quotations and citation omitted).

      If a statement is not offered for its truth, then the hearsay exclusion

does not preclude its admission.        "[O]ut-of-court statements may be
admissible because they are non -hearsay, in which case they are admissible

for some relevant purpose other than to prove the truth of the matter
asserted." Commonwealth v. Mason, 130 A.3d 601, 637 (Pa. 2015). "The

credibility of a witness may be impeached by any evidence relevant to that

issue, except as otherwise provided by statute or these rules." Pa.R.E.
607(b) (emphasis added).

      At trial, Appellant testified that he did not rob anybody and that his
confrontation with Pinnell was the result of a drug deal at Pinnell's house that

turned into an altercation. N.T., 10/4/17, at 8-10. Appellant claimed that he

attempted to purchase marijuana from Pinnell but that Pinnell gave him an

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ounce less than the agreed amount. Id. at 9. Appellant stated that after a

short shoving match with Pinnell, he grabbed his money back, ran out of the

house, and drove away. Id. at 9-10.          Appellant asserted that Pinnell and

Pinnell's father chased him by vehicle, ran him off the road, and tried to shoot

him. Id. at 11-12. When Pinnell's father testified at trial, he denied that the

drug deal, chase, and shooting ever occurred. Id. at 50-51.

      Appellant called his mother to testify that Pinnell's father had admitted

to her that he and Pinnell had in fact chased Appellant and attempted to shoot

Appellant. See id. at 58. The Commonwealth objected to this questioning

and the trial court sustained the objection.       Id. at 58, 68. The following
discussion between the trial court and Appellant's counsel occurred following

the Commonwealth's objection:

      THE COURT:          Now you want to ask her what did he say, so it's
      still -- we agree that what she is about to testify to will be the out -
      of -court statement; correct?

      [Def. Counsel]:    Yes.

      THE COURT:         Of [Pinnell's Father].

      [Def. Counsel]:    Yes.

      THE COURT:         And you want to use it for the truth of the matter
      asserted?

      [Def. Counsel]:    Not necessarily. Just that he said it.

      THE COURT:         What else would you do it for then?

      [Def. Counsel]:    To rebut the sworn testimony of [Pinnell's
      Father].


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      THE COURT:     Right. So it was the truth. If he said I didn't
      chase, you would be -- the truth is I did say it, I said I chased.
      Obviously you're going to argue to the jury with that said that she
      said he did say it, therefore he chased them. You'll argue it. You
      have to.

      [Def. Counsel]:   Yeah, I'm going to argue that, but --

      THE COURT: Your client testified to it.

      [Def. Counsel]: It's not for the truth of the matter that he really
      did chase him. It's just to rebut his denial under oath.

Id. at 60-61.
      As he did at trial, Appellant argues that the trial court improperly
excluded the testimony of Appellant's mother on the basis that her testimony

would be hearsay. Appellant contends that the testimony was not hearsay

because he did not seek to introduce the evidence to prove the truth of the

matter asserted, i.e., that Pinnell and Pinnell's father chased and shot at
Appellant after a bad drug deal, but rather to impeach the testimony of
Pinnell's father that the alleged incident never occurred.

      While the testimony of Appellant's mother would have served to
impeach Pinnell's father, it also would have served to bolster Appellant's own

testimony. Consequently, although Appellant would have used his mother's

testimony for impeachment purposes, it was nonetheless inadmissible
because it went to the truth of the matter asserted, i.e., that Appellant did not

rob Pinnell, but had an altercation with Pinnell and Pinnell's father because of

a bad drug deal. See Pa.R.E. 607(b) 801(c), 802. Were we to determine the

testimony of Appellant's mother was admissible for impeachment purposes,

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we would be allowing Appellant to circumvent the hearsay rule to bolster his

defense under the guise of impeachment testimony. Therefore, we conclude

that the trial court did      not   abuse   its   discretion   in   sustaining   the

Commonwealth's objection to the hearsay testimony.

      In his third issue, Appellant argues that the trial court erred in imposing

his sentence.   Appellant asserts that the court "misapplied the sentencing

guidelines" and gave Appellant an aggravated -range sentence because it

imposed two standard -range sentences consecutively. Appellant's Brief at 11-

12. Appellant argues that this was improper because the trial court stated it

was going to give him a standard -range sentence. This issue challenges the

discretionary aspects of Appellant's sentence.

      "The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal."

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
"An appellant must satisfy a four-part test to invoke this Court's jurisdiction

when challenging the discretionary aspects of a sentence." Id. We conduct

this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or   in a post[ -]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
      raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). "A defendant presents a substantial question when he sets forth a

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plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process."

Commonwealth v. Dodge, 77 A.3d 1263, 1268                    (Pa.   Super.   2013)

(quotations and citations omitted).

      Here, Appellant preserved his discretionary aspects of sentencing claim

by raising it in a post -sentence motion. See Post -Sentence Motion, 1/10/18.

Appellant also filed a timely notice of appeal and included in his appellate brief

a concise statement of the reasons relied upon for the allowance of his appeal

pursuant to Pennsylvania Rule of Appellate Procedure 2119(f).                 See

Appellant's Brief at 11-12.    Thus, we must determine whether Appellant's

discretionary aspects of sentencing claim raises a substantial question for our

review.

      Although Appellant's argument is far from the model of clarity and
largely undeveloped, from what we can discern, Appellant appears to argue

that the trial court erred by sentencing Appellant to two consecutive standard -

range sentences.    A "bald excessiveness claim based on the imposition of

consecutive sentences" does not raise a substantial question for review unless

the case involves circumstances where the application of the guidelines would

be clearly unreasonable. Commonwealth v. Dodge, 77 A.3d at 1270. "The

imposition of consecutive, rather than concurrent, sentences may raise a

substantial question in only the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature of the crimes


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and the length of imprisonment." Commonwealth v. Moury, 992 A.2d 162,

171-72 (Pa. Super. 2010).

     Where the individual sentences are within the applicable guideline
ranges (as Appellant concedes in this case), the sentencing court's decision to

impose consecutive sentences does not raise a substantial question for review.

We have explained:

     To make it clear, a defendant may raise a substantial question
     where he receives consecutive sentences within the guideline
      ranges if the case involves circumstances where the application of
     the guidelines would be clearly unreasonable, resulting in an
     excessive sentence; however, a bald claim of excessiveness due
     to the consecutive nature of a sentence will not raise a substantial
     question.

Dodge, 77 A.3d at 1270 (emphasis in original).

      In this case, the consecutive imposition of Appellant's standard -range

sentences for two counts of armed robbery did not result           in   a clearly

unreasonable   or    excessive   aggregate   sentence   (7   to   14    years   of

incarceration). Thus, Appellant's bald claim of excessiveness because of the

consecutive nature of his sentences does not raise a substantial question for

our review. See id. Accordingly, Appellant's sentencing issue lacks merit.

     Judgment of sentence affirmed.

     Judge Shogan joins the memorandum.

     Judge Nichols concurs in the result.
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Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 7/17/19




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