J-S47008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KEVIN WILSON

                            Appellant                 No. 59 EDA 2013


          Appeal from the Judgment of Sentence November 16, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0012880-2010


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                       FILED SEPTEMBER 22, 2014

       Appellant, Kevin Wilson, appeals from the November 16, 2012




attempt        murder of the first degree, aggravated assault, robbery,

possession of a firearm without a license, carrying a firearm without a

license, and possession of an instrument of a crime (PIC).1      After careful

review, we affirm.

       The trial court has set forth the relevant facts and procedural history

as follows.



____________________________________________
1
  18 Pa.C.S.A. §§ 901(a) (to commit 18 Pa.C.S.A. § 2502(a)), 2702(a),
3701(a)(ii), 6105(a)(1), 6106(a)(1), and 907(a), respectively.
J-S47008-14


               At   12:30     a.m.   on    July   12,   2008,   the

          side seat of his motor vehicle and conversed with a
          friend through the open front passenger window.
          After a s
          friend left.   Approximately ten seconds later, []

          leaned in the open window, and held a black gun

          told the Complain

          chain, watch, and one thousand dollars. [] Appellant
          then told the Complainant his name.             The

          name was Scar Face Kev and if I wanted any trouble,

          shot the Complainant in the stomach, and walked
          away.

                While the robbery was occurring, Kendall
          McGill was approximately 40 feet away playing dice
          with other males. McGill saw [] Appellant at the

          McGill heard a gunshot and saw [] Appellant quickly

          gun in his left waistband with his right hand. []
          Appellant then walked past McGill and around the
          corner.

                After [] Appellant walked around the corner,
          the Complainant started driving to Temple University
          Hospital. While driving, the Complainant called his
          mother and told her that he had been shot. When
          the Complainant arrived at the emergency room,
          doctors performed surgery.

                After    approximately     four   days,    the
          Complainant left the hospital without permission
          because he feared for his safety. After leaving the
          hospital, the Complainant went home. However, the
          Complainant still did not tell the police that []
          Appellant had shot him because he feared for his life
          and did not want to be labeled a rat. However, while
          the Complainant was home recovering, he informed

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              his mother and friends that [] Appellant had shot
              him. Three months later, the Complainant finally
              told the police who had shot him.

                    In March 2010, detectives attempted to arrest
              Appellant but they could not locate him. On April 9,
              2010, the Commonwealth learned that [] Appellant
              was in custody at State Correctional Institution (SCI)
              Greene. In April 2010, Officer Timothy Simpson of
              the East Division Warrant Unit faxed a writ to SCI
              Green[e] to bring [] Appellant to court. However, []
              Appellant was not brought down.         Although the
              Commonwealth faxed additional requests on May 4,
              2010, May 21, 2010[,] and June 2, 2010, []
              Appellant was still not brought down. Finally, the
              Commonwealth paid approximately $2[,]000[.00] to
              extradite [] Appellant to Philadelphia. On June 8,


Trial Court Opinion, 9/25/13, at 2-4 (footnotes omitted).

       On June 29, 2011, Appellant filed a motion to dismiss pursuant to

Pa.R.Crim.P. 600(G).2

court appointed new counsel to represent him. New counsel filed a renewed

Rule 600(G) motion on June 29, 2012.             The trial commenced with jury

selection on August 22, 2012. On August 28, 2012, following its charge to



day the jury convicted Appellant of the previously mentioned charges. On

November 16, 2012, the trial court sentenced Appellant to an aggregate
____________________________________________
2
  Rule 600, as applicable in this case, was rescinded on October 1, 2012,
effective July 1, 2013, and replaced by the new Rule 600 on July 1, 2013.
Under the new version of Rule 600, the paragraphs have been reorganized.
However, for purposes of our review, we apply and cite to the version of

pursuant to Rule 600 was denied.


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                                                                           3
term of 20 to 40 y                                                             On

December 10, 2012, Appellant filed a timely notice of appeal.4

       On appeal, Appellant raises the following three issues for our review.

              1.     [Whether] the jury verdict was against the
                     weight and sufficiency of the evidence[?]

              2.     [Whether] the trial judge erred by denying the

                     trial, and abused his discretion in making this
                     ruling that the Commonwealth was duly
                     diligent in bringing this case to trial in a timely
                     manner[?]

              3.     [Whether] the trial judge erred by allowing a
                     Commonwealth witness, the mother of the
                     victim to testify in the case about statements
                     she overheard on a telephone or told someone
                     on the phone about who was in fact the one
                     who robbed [her] son[?]




to the weight and sufficiency of the evidence. Id. at 9. Before we address

the merits of this issue, we must first determine if Appellant has preserved it

for appellate review.
____________________________________________
3
    Specifically, Appellant was sentenced at count 1, criminal attempt


probation consecutive to count 1; count 4, possession of a firearm, five

carried without a license and count 9, PIC, no further penalty was imposed.
Sentencing Order, 11/16/12.
4
  Appellant and the trial court have timely complied with Pennsylvania Rule
of Appellate Procedure 1925.


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      The plain text of Rule 1925(b)

                identify each ruling or error that the appellant intends to




in the Statement will be deemed to include every subsidiary issue contained

                                               Id. at 1925(b)(4)(v). Finally,

any issues not raised in accordance with Rule 1925(b)(4) will be deemed

waived.   Id. at 1925(b)(4)(vii).   Our Supreme Court has held that Rule

1925(b) is a bright-line rule.

            Our jurisprudence is clear and well-settled, and
            firmly establishes that: Rule 1925(b) sets out a
            simple bright-line rule, which obligates an appellant
            to file and serve a Rule 1925(b) statement, when so
            ordered; any issues not raised in a Rule 1925(b)
            statement will be deemed waived; the courts lack
            the authority to countenance deviations from the

            ad hoc exceptions or selective enforcement;
            appellants and their counsel are responsible for

            violations may be raised by the appellate court sua
            sponte, and the Rule applies notwithstanding an

            1925 is not clear as to what is required of an
            appellant, on-the-record actions taken by the
            appellant aimed at compliance may satisfy the Rule.
            We yet again repeat the principle first stated in
            [Commonwealth v.] Lord, [719 A.2d 306 (Pa.
            1998)]                                        er to
            preserve    their claims   for  appellate   review,
            [a]ppellants must comply whenever the trial court
            orders them to file a Statement of Matters
            Complained of on Appeal pursuant to Pa.R.A.P. 1925.
            Any issues not raised in a Pa.R.A.P. 1925(b)
            statement will b                   Id.] at 309.

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Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).




and th

mother. See

1925(b) statement does not include any claim addressing the sufficiency of

                                         ring that the verdict was against the

weight of the evidence. See id.

instructions in Hill

for failure to include it in his Rule 1925(b) statement.

      In his




court erred in not attributing to the Commonwealth the time from March 5,

2010, when an arrest warrant for Appellant had been issued, to June 8,

2010, when Appellant was located at SCI Greene and arrested.               Id.



8, 2010 and the Commonwealth knew or should have known that[,] thereby

attributing these 95 days to the Commonwealth.             Faxing a bring down

                                                                           Id.

                                                      usion that only 363 days

were attributable to the Commonwealth is incorrect, and that the 95 days

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between     March     5   and   June    8,     2010   should   be   attributed   to   the

Commonwealth. Id. at 11-12.5



a

Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012).

                    Judicial discretion requires action in conformity
              with law, upon facts and circumstances judicially
              before the court, after [a] hearing and due
              consideration. An abuse of discretion is not merely
              an error of judgment, but if in reaching a conclusion
              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 the
              evidence or the record, discretion is abused.


              evidence on the record of the Rule 600 evidentiary
              hearing, and the findings of the trial court. An
              appellate court must view the facts in the light most
              favorable to the prevailing party.



                    So long as there has been no misconduct on
              the part of the Commonwealth in an effort to evade
              the fundamental speedy trial rights of an accused,
              Rule 600 must be construed in a manner consistent


              factor into the ultimate equation not only the
____________________________________________
5
  We note that Appellant has failed to cite any legal authority in support of
his claim, and that this Court has long recognized that we will not consider
issues where Appellant fails to cite to any legal authority or otherwise
develop the issue. Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa.
Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013); Pa.R.A.P. 2119.

claim, we decline to find waiver on this basis.


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           prerogatives of the individual accused, but the
           collective right of the community to vigorous law
           enforcement as well.

Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en

banc), affirmed, 44 A.3d 655 (Pa. 2012) (citations omitted).

     Relative to his sub-

ruling on his Rule 600 motion, Appellant claims the trial court erred in

waiting to make a determination only after the charge to the jury was




brought under the Rule.   See generally Pa.R.Crim.P. 600.      We also note

that Appellant makes no averment that he was in any way prejudiced by the



court notes in its Rule 1925(a) opinion that the timing of its ruling was

occasioned by the late submissions made to it by the parties, containing

their respective claims of excludable and includable time in the Rule 600

calculation, and by the need for judicial efficiency.   Trial Court Opinion,

9/25/13, at 8-9, n.45. Accordingly, we discern no abuse of discretion by the




Rule 600 motion, we recognize that the courts of this Commonwealth

employ a three-step analysis to determine whether Rule 600 requires

dismissal of the charges against a defendant.


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J-S47008-14


                 The   first   step   in   determining   whether    a
                                                                   to

            run date is the date by which trial must commence
            under the relevant procedural rule.           [T]he
            mechanical run date is ascertained by counting the
            number of days from the triggering event - e.g., the
            da                                              - to
            the date on which trial must commence under Rule
            [600]. Pa.R.Crim.P. [600(A)(3)].

Commonwealth v. Preston, 904 A.2d 1, 11 (Pa. Super. 2006) (internal

citations omitted), appeal denied, 916 A.2d 632 (Pa. 2007). In the second



                 Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa.

Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008). Then, in the third

                         nt of excludable time, if any, to the mechanical run

                                           Id.

     It is well settled that any delay occasioned by a defendant is

excludable time in the calculation of the adjusted run date.        Pa.R.Crim.P.

600(C)(2), (3); Preston, supra. Furthermore, delays not attributable to a

defendant but where the Commonwealth is found to have acted with due

diligence in attempting to commence a timely trial but was prevented by

circumstances beyond its control, is also considered excludable time.

Pa.R.Crim.P. 600(G); accord Commonwealth v. Wholaver, 989 A.2d 883,

899 (Pa. 2010), cert. denied, Wholaver v. Pennsylvania, 131 S. Ct. 332

(2010).   Any time prior to trial, a defendant may move the trial court for




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J-S47008-14


dismissal of the charges if the Commonwealth has violated the Rule.

Pa.R.Crim.P. 600(G).

       Applying the foregoing analysis to the facts of this case, we note that

the criminal complaint was filed on March 5, 2010, establishing March 5,

2011 as the mechanical run date under Rule 600 for the commencement of



Commonwealth and Appellant, the parties agreed that two periods, totaling

179 days were excludable as delays requested by Appellant. 6        See Trial

Court Opinion, 9/25/13, at 8, n.45, Appendix B. The trial court ruled that

two more disputed periods totaling 262 days were excludable as being



respectively.7 Id. at 6-7, n.42. Appellant has not challenged those aspects



their calculation sheets, trial was scheduled to commence on August 20,



one-day continuances, to review the status of a possible plea, on August 20

and 21 respectively. Consequently, these two days are excludable and the
____________________________________________
6
  These periods included defense-requested continuances for November 17,
2010, to December 1, 2010, and for March 8, 2012, to August 20, 2012.
Trial Court Opinion, 9/25/13, Appendix B.
7
  These periods included a Commonwealth request for a continuance due to
the unavailability of a witness in federal custody for August 17, 2010, to
September 21, 2010, and a continuance ordered by the trial court due to its
own unavailability for July 25, 2011 to March 8, 2012. Trial Court Opinion,
9/25/13, Appendix B.


                                          - 10 -
J-S47008-14


adjusted run date based only on these now uncontested exclusions would be

May 21, 2012. Relevant to this appeal, the trial court also excluded a period

of 95 days, being the time between the filing of the criminal complaint and



Accordingly, if the trial court was correct to exclude the 95 days preceding

Appe

within the requirements of Rule 600. See Ramos, supra.



of the period between March 5, 2010, when the criminal complaint was filed




Relative to the period between the filing of a criminal complaint and the

arrest of a defendant, Rule 600 provides as follows.

           Rule 600. Prompt Trial



              (C) In determining the period for commencement
           of trial, there shall be excluded therefrom:

              (1) the period of time between the filing of the

           provided that the defendant could not be
           apprehended because his or her whereabouts were
           unknown and could not be determined by due
           diligence;



Pa.R.Crim.P. 600(C)(1).


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J-S47008-14




contended that from March 5 to June 8, 2010 the Commonwealth should

have known where Appellant was, and therefore that period of 95 days

should be counted against the Commonwealth. N.T., 8/27/12, at 82. The

Commonwealth acknowledged that the criminal complaint was filed on March

5, 2010, but proceeded to place into evidence documentation supporting its

due diligence in locating and procuring Appellant during the period leading

up to June 8, 2010, when Appellant was finally arrested. Id. at 84-96. The

trial court aptly summa

opinion, as follows.

                  First, the Commonwealth attempted to arrest
            [] Appellant in March 2010 by sending officers to
            various locations Appellant frequented. Second, the
            Commonwealth conducted a custody check and
            discovered that Appellant was in State Prison at SCI
            Greene.     Third, after locating [] Appellant, the
            Commonwealth faxed a bring down request and a

            at SCI Greene. Fourth, when the prison failed to
            respond, the Commonwealth made additional
            requests on May 4, 2010, May 21, 2010, and June 2,
            2010.        Finally,   the   Commonwealth      paid
            approximately $2[,]000[.00] to have private
            contractors transport Appellant to Philadelphia. On
            June 8, 2010, [] Appellant arrived in Philadelphia.
            Upon his arrival, the Commonwealth immediately
            arrested [] Appellant and held him for trial.

Trial Court Opinion, 9/25/13, at 7 (footnotes omitted); see also N.T.,

8/27/12, at 92-96.




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J-S47008-14


      This Court has held that the Commonwealth

by utilizing the traditional w           Commonwealth v. Jefferson, 741

A.2d 222, 224 (Pa. Super. 1999), appeal denied, 758 A.2d 1196 (Pa. 2000).

The Jefferson Court further held that the circumstances in Jefferson were

beyond the control of the Commonwealth because in Commonwealth v.

Nellom                                        we stated clearly that a delay

resulting from a failure to bring down a defendant despite a writ was not

                                         Jefferson, supra.    In the instant



arrest warrant and the writ signed by the Honorable Rayford Means to bring

Appellant down to be arrested.     N.T., 8/27/12, at 91-92.   These exhibits

support the tri

diligence in locating and securing Appellant for arrest, but was prevented



                                                     red.   See Pa.R.Crim.P.

600(C)(1), and (G).

excludable time under Rule 600, and Appellant was brought to trial before

the adjusted run date.      Accordingly, we conclude the trial court did not

abuse its                                                           .   See

Bradford, supra.

      Finally, in his third issue, Appellant argues the trial court erred in




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J-S47008-14


                                               ents she overheard the [C]omplainant
                                                                                         8




admitted into the trial and that by doing so was more prejudicial than

               Id.



to the prohibition against hearsay as relied on by the trial court.                   Id.

Accordingly,      Appellant   asserts    the     trial   court   abused   its   discretion



            Id.

       In considering this issue, we are guided by the following principles.


              rulings is narrow. 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. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation

omitted), appeal denied, 87 A.3d 319 (Pa. 2014). In order to be entitled to
____________________________________________
8
  We again note with disfavor that Appellant has failed to adequately develop
this claim in his appellate brief, and therefore a finding of waiver would not
be improper. McLaurin, supra; Pa.R.A.P. 2119. Notwithstanding, as with



                                          - 14 -
J-S47008-14


relief based on a showing of a clear abuse of discretion in an evidentiary

ruling, actual resulting prejudice must be established. Commonwealth v.

       , 897 A.2d 1234, 1240 (Pa. Super. 2006) (citation omitted).

     The subject testimony, elicited on direct examination of Dennison by

the Commonwealth, is as follows.

           Q.    And [] when people were looking for
           [Complainant], how much time had passed between
           the time he had been shot and the people were
           coming around looking for him?

           A.    I would say about a month and a half.

           Q.    Okay.

                 Now at any point when [Complainant] got
           home and was staying with you did you hear him
           talking about the circumstances of getting shot?

           A.    Yes.

                 I asked [Complainant], while he was in the
           hospital, who shot him. And he said, I d

                 So I said, Okay.

                But in the process after he came home, I
           overheard his conversation, and he said that the guy
           --

                 [Defense Counsel]: Objection.
                 Move to strike.

                [The Commonwealth]:           Your Honor, if we
           may see you at sidebar, briefly.

                 The Court:         Okay.

                                     ---


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J-S47008-14


               (There was a brief sidebar discussion held off
               the record).

                                    ---

               [The Commonwealth]:           May I proceed?

               The Court:       Yes.

          Q.    Ms. Dennison, when you were talking about a
          conversation you heard, can you please tell the
          ladies and gentlemen of the jury what you heard?

          A.   Well, what I heard, I also questioned him
          about it.

          Q.   Start off with what you heard.

          A.    I heard him tell someone over the phone that
          when the bull came to his car, he asked him for his
          jewelry.

               The Court:       Did he have a statement of


               The Witness:     Yes.

               The Court:       Just indicate what he said.

               The Witness:     He said that the person told
          him my name is Scar Face Kev, and shot him.

          Q.   And you said you questioned him about it.

               Did you have a conversation about what you
          had heard?

          A.   Yeah, I asked him about it.

               I said, I overheard you talking about this
          person. I said, who is that?

                               --


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                     [Defense Counsel]:            Objection.   Move   to
              strike.

                     The Court: Sustained.

              Q.   Okay.
                   But did you discuss with him what he had said
              about Scar Face Kev?

                     [Defense Counsel]:            Objection.

                     Asked and answered.

                     The Court:

              Q.   Did you then have a conversation with
              [Appellant], your son, about Scar Face Kev shooting
              him?

              A.     Yes.

N.T., 8/24/12, at 10-13.9

       The Commonwealth sought the foregoing testimony as evidence of a

prior consistent statement made by Complainant about the identity of the

person who shot him. Trial Court Opinion, 9/25/13, at 10. The trial court

permitted Den

____________________________________________
9
  Our Rules of Evidence provide that a claim of trial court error cannot be
predicated on admission of evidence, absent a timely objection or motion
asserting specific grounds for inadmissibility unless that ground is apparent
from the context. Pa.R.E. 103(a)(1)(A), (B). As the sidebar following
                                     he record, the specific grounds for the
objection have not been stated. Nevertheless, we conclude the hearsay

light of the later discussion between defense counsel and the trial court
about its cautionary charge respecting the testimony. Accordingly, we

appeal.


                                          - 17 -
J-S47008-14


provide a cautionary instruction to the jury regarding the limited purpose for

which the jury could consider the testimony.

                  The Court:

                  The only other issue that will be outstanding is
            during the lunch break you have to make a decision
            on how you want to handle the hearsay objection.

                  [Defense Counsel]:         I   think   a   curative
            instruction is appropriate.

                 The Court:
            you what I have. And if you wish edit [sic] it or
            tweak it, we can reach a mutual agreement.


                  [Defense Counsel]:         Fine.

N.T., 8/27/12, at 61.

      Accordingly, the trial court gave the jury the following special



                  The next charge
            instruction, and I want you to pay attention to it very
            carefully.

                  Under the doctrine of limited admissibility[,]
            evidence can be permissible for one purpose but
            inadmissible for another purpose. You heard
            testimony from th
            mother, Ruth Anne Dennison, in which she testified
            that she overheard her son Terrence Savage,
            speaking to an unknown individual on the phone.
            She further testified that she overheard her son say
            on the phone that Scar Face Kev shot him, meaning
            Terrence. You are to totally disregard this portion of




                                    - 18 -
J-S47008-14


            Savage, her son, told Ms. Dennison directly after this
            phone conversation that Scar Face Kev shot me.

                Now this testimony was offered by the
            Commonwealth, not for the truth of the [sic] Ms.

            Terrence Savage, the son, said to Ms. Dennison
            about who shot him. Rather, this portion of Ms.

            Terrence Savage allegedly identified [Appellant] as
            the shooter before Terrence Savage himself was
            involved with the feds or was federally indicted for
            his own criminal cases.

N.T., 8/27/12, at 125-126.

      Our Rules of Evidence outline the set of circumstances that are a

prerequisite to the admissibility of prior consistent statements.

            Rule 613. Prior statements of witnesses



            (c) Evidence of prior consistent statement of
            witness. Evidence of a prior consistent statement
            by a witness is admissible for rehabilitation purposes
            if the opposing party is given an opportunity to
            cross-examine the witness about the statement, and
            the statement is offered to rebut an express or
            implied charge of:

                  (1) fabrication, bias, improper influence or
            motive, or faulty memory and the statement was
            made before that which has been charged existed or
            arose; []




Pa.R.E. 613(c), a prior consistent statement is always received for




                                     - 19 -
J-S47008-14


Commonwealth v. Handfield, 34 A.3d 187, 208 (Pa. Super. 2011)

(citation omitted), appeal denied, 54 A.3d 347 (Pa.

consistent statement is admissible only if it is made before the declarant has

                        Id. (citations omitted).

      The trial court explained the circumstances pertaining to the admission



                  At trial, the Complainant testified that the
            Appellant robbed and shot him.       During cross-

            information that the Complainant (Savage) was
            federally indicted and was "cooperating with federal
            officials by identifying the Appellant as the person
            who had shot him. Counsel also brought out on
            cross-examination that the Complainant was facing a
            federal sentence of 37 years to life, and that if he
            testified favorably for the government, the
            Complainant could receive a mitigated federal
            sentence. Hence, it was through cross-examination


            identification. In fairness to the Commonwealth, the
                                                        blish that
            the Complainant had made a prior consistent
            statement identifying the Appellant prior to his being
            federally indicted.

Trial Court Opinion, 9/25/13, at 11 (citation to record omitted).

                                                                gs. Thus, the

Commonwealth was permitted to support the credibility of Complainant from



Appellant as being motivated to gain favor from federal authorities, with

                     onsistent identification made before Complainant faced


                                    - 20 -
J-S47008-14


federal indictment. See Pa.R.E. 613(c)(1); Handfield, supra. Additionally,

Appellant was afforded full opportunity to cross-examine Dennison and the

trial court gave a pertinent special instruction to the jury, defining the

limited relevance of the testimony, to which Appellant offered no objection.

In light of these circumstances, we discern no abuse of discretion by the trial



consistent   statements   identifying     Appellant   as   his   assailant.   Thus,




waived or devoid of merit. Accordingly, we affirm the November 16, 2012

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2014




                                        - 21 -
