J-A14031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

DONNA MARIE KRUPP,

                          Appellant                No. 2892 EDA 2016


            Appeal from the Judgment of Sentence April 14, 2016
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0000407-2015


BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                            Filed August 4, 2017

      Appellant, Donna Marie Krupp, appeals from the judgment of sentence

entered on April 14, 2016, in the Montgomery County Court of Common

Pleas. We affirm.

      The relevant facts and procedural history of this matter were set forth

by the trial court as follows:

            [Appellant] intentionally set fire to the home of her next
      door neighbors, the Morris family, in the early morning hours of
      December 4, 2014, by using a lighter with an extended wand
      and newspaper to ignite Christmas decorations on the front
      porch of the home. The fire destroyed the home, which was
      located at 71 Commons Drive in Pottstown, Montgomery County.

            The Morris family – Limerick Township Police Detective
      Ernie Morris, his wife and their two minor daughters – were on
      vacation in Florida at the time of the fire. The family’s cat
      perished in the blaze.
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           [Appellant] set the fire after learning on December 2,
     2014, that her son would not be released from jail that day. Her
     son had been incarcerated since June 2014, following his
     apprehension on an active arrest warrant for fleeing from police
     and consequent detention for allegedly violating his existing
     probation. [Appellant] blamed Detective Morris, and law
     enforcement in general, for her son’s ongoing contacts with the
     criminal justice system. She had a well-known disdain for law
     enforcement officials and believed a tip from Detective Morris
     was the reason her son had been located and arrested on the
     active warrant.2
           2
             When police arrived at [Appellant’s] house to
           apprehend her son following the tip from Detective
           Morris, she initially refused them entry. Her son
           eventually was found hiding under her bed. (N.T.,
           11/18/15, p. 43)

           Prior to the fire, and because of an on-going pattern of
     harassing behavior by [Appellant] toward the Morris family due
     to Detective Morris’ status as a police officer, the family had a
     video surveillance system installed around the perimeter of their
     home. The system became operational shortly before the Morris
     family left in late November 2014 for a two-week trip to Disney
     World.

           Surveillance video from the time of the fire captured a
     person     matching     [Appellant’s]  physical   characteristics
     approaching the Morris home from the direction of [Appellant’s]
     house. The person set the fire and left the scene, going back in
     the direction of [Appellant’s] house.

           Later on the same day as the fire, law enforcement
     personnel who had watched the surveillance footage came to
     believe the person seen in the video matched [Appellant], whom
     they had observed outside her house at various times during the
     course of the fire investigation. [Appellant] agreed to speak with
     police and, after being driven to the station by her husband,
     gave a statement in which she denied any ill-feelings toward the
     Morrises and any responsibility for the fire. (N.T., 11/19/15, pp.
     42-51; Exh. C-32)

          A search of [Appellant’s] house, conducted pursuant to a
     warrant, revealed, inter alia, two extended wand lighters and

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     clothing, including a grey XXL hooded sweatshirt, that appeared
     to match items worn by the person seen in the surveillance
     video. Analysis of particles found on the sweatshirt tested
     positive for the presence of amorphous carbon, also known as
     soot or ash, which generally is consistent with a material that
     has been subjected to high heat. (N.T. 11/18/15, pp. 174; 179-
     180)

            [Appellant] was arrested on December 5, 2014, and later
     charged in an Information with four counts of arson-related
     offenses,3 one count of causing a catastrophe,4 one count of
     reckless burning or exploding,5 three counts of criminal
     mischief,6 one count of failure to control or report a dangerous
     fire,7 one count of possession of an instrument of crime,8 two
     counts of recklessly endangering another person9 and one count
     of cruelty to animals.10
           3
              18 Pa.C.S. §§ 3301(a)(1)(i);            3301(c)(2);
           3301(d)(2); 3301(a)(1)(ii).
           4
               18 Pa.C.S. § 3302(a).
           5
               18 Pa.C.S. § 3301(d)(1).
           6
               18 Pa.C.S. §§ 3304(a)(1); 3304(a)(2); 3304(a)(5).
           7
               18 Pa.C.S. § 3301(e)(2).
           8
               18 Pa.C.S. § 907(a).
           9
               18 Pa.C.S. § 2705.
           10
                18 Pa.C.S. § 5511(a)(2.1)(i)(a).

           After a trial, at which [Appellant] testified, the jury found
     her guilty of all charges.11 This court later sentenced her to serve
     5 to 10 years in prison for the arson offense charged under
     Section 3301(a)(1)(i), a consecutive term of 5 to 10 years in
     prison for the causing a catastrophe offense and 5 years of
     consecutive probation for the cruelty to animals offense.12
     [Appellant] also was ordered to pay restitution and to have no
     contact with the Morris family.




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            11
              The Commonwealth withdrew at trial one of the
            charges of recklessly endangering another person.
            12
               This court imposed no penalty on the possession
            of an instrument of crime offense and all of the other
            offenses merged for purposes of sentencing.

             [Appellant], through trial counsel, filed a timely post-
      sentence motion. This court subsequently granted trial counsel’s
      petition to withdraw and appointed new counsel to represent
      [Appellant]. Appointed counsel filed two amended post-sentence
      motions. This court denied all of the post-sentence motions13
      and [Appellant] filed a notice of appeal. She subsequently
      complied, through counsel, with this court’s directive that she
      produce a concise statement of errors in accordance with
      Pennsylvania Rule of Appellate Procedure 1925(b).
            13
                During the pendency of the post-sentence
            motions, the Commonwealth informed this court of
            an error with regard to the sentence imposed for the
            cruelty to animals offense. This court, as part of the
            order denying [Appellant’s] post-sentence motions,
            corrected the sentence for that offense from 5 years
            of consecutive probation to 2 years of consecutive
            probation.

Trial Court Opinion, 11/2/16, at 1-4 (footnote one omitted).

      On appeal, Appellant presents the following issue for this Court’s

consideration:

      Whether the trial court abused its discretion/or commited [sic]
      an error of law in allowing testimony from various witnesses of
      approximately 24 instances of “bad acts” or “motive” testimony
      in violaton [sic] of Pa. Rule of Evidence 404 when such
      testimony is allowed “only if the probative value of the evidence
      outweighs its potential for unfair prejudice.”

Appellant’s Brief at 5 (full capitalization omitted).

      Appellant’s issue challenges the admissibility of evidence.         Our

standard of review is as follows:

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      The admission of evidence is solely within the discretion of the
      trial court, and a trial court’s evidentiary rulings will be reversed
      on appeal only upon an abuse of that discretion. An abuse of
      discretion will not be found based on a mere error of judgment,
      but rather occurs where the court has reached a conclusion that
      overrides or misapplies the law, or where the judgment
      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias or ill-will.

Commonwealth v. Witmayer, 144 A.3d 939, 949 (Pa. Super. 2016)

(citation omitted).

      Pennsylvania Rule     of Evidence     404(b) prohibits evidence         of a

defendant’s prior bad acts to prove her character or demonstrate that on a

particular occasion she acted in accordance with the character.          Pa.R.E.

404(b)(1). Nevertheless, the Rule further provides that prior bad acts

evidence “may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident. In a criminal case, this evidence is admissible

only if the probative value of the evidence outweighs its potential for unfair

prejudice.” Pa.R.E. 404(b)(2).

      Appellant avers that on twenty-four separate occasions during trial,

the Commonwealth elicited testimony of prior bad acts in violation of Pa.R.E.

404(b).   Appellant’s Brief at 17.   However, as the trial court pointed out,

Appellant failed to specify which testimony constituted the alleged twenty-

four instances in her Pa.R.A.P. 1925(b) statement.         Trial Court Opinion,

11/2/16, at 11.       Indeed, the relevant portion of Appellant’s Pa.R.A.P.

1925(b) statement provides only as follows:

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       Whether this Honorable Court committed an error of law and/or
       abused its discretion in allowing, over [Appellant’s] objection,
       testimony from various witnesses of approximately 24 instances
       of “bad acts” or “motive” testimony in violation of Pennsylvania
       Rule of Evidence 404 when such testimony is allowed “only if the
       probative value of the evidence outweighs its potential of unfair
       prejudice.”

Pa.R.A.P. 1925(b) Statement, 9/2/16, at ¶3.         The trial court opined that

Appellant’s Pa.R.A.P. 1925(b) statement was deficient and that the trial

court should not be required to guess what issues an appellant is raising.

Trial Court Opinion, 11/2/16, at 11. We agree with the trial court.

       It is well settled that:

       any issues not raised in a Rule 1925(b) Statement will be
       deemed waived. Commonwealth v. Castillo, 585 Pa. 395, 888
       A.2d 775, 780 (2005) (citation and quotation omitted). See
       also Pa.R.A.P. 1925(b)(4)(ii) (The 1925(b) Statement shall
       concisely identify each ruling or error that the appellant intends
       to challenge with sufficient detail to identify all pertinent issues
       for the judge).

Commonwealth v. Wanner, 158 A.3d 714, 717 (Pa. Super. 2017)

(internal quotation marks omitted). Because Appellant failed to include her

issues on appeal in her Pa.R.A.P. 1925(b) statement, we conclude that

Appellant failed to preserve her issues on appeal, and her challenges to the

admissibility of prior bad-acts-testimony are waived.1

____________________________________________


1
  Appellant admits that while she did not raise her claims of error in her
Pa.R.A.P. 1925(b) statement, she presented her challenges to the twenty-
four instances of prior bad acts testimony by raising them in her Amended
Post Sentence Appeal and Motion in Arrest of Judgment, filed on August 9,
2016. Appellant’s Brief at 20. Appellant argues that had she included the
(Footnote Continued Next Page)


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J-A14031-17


      Assuming for the sake of argument that Appellant had properly

preserved her claims of error, we note that in its opinion, the trial court

provided an alternative rationale for concluding that Appellant was entitled

to no relief. The trial court explained:

             In any event, the Commonwealth presented testimony
      from certain witnesses regarding [Appellant’s] animus toward
      Detective Morris based on his position as a police officer and his
      conduct as it related to [Appellant’s] son. Pennsylvania Rule of
      Evidence 404(b)(1) generally prohibits the Commonwealth from
      offering evidence of a defendant’s “prior crime, wrong or other
      act to prove her character in order to show that on a particular
      occasion she acted in accordance with the character.” Id. An
      exception to the general rule permits the admission of such
      evidence, however, to prove, inter alia, motive and intent, so
      long as the probative value of the evidence outweighs its
      potential for unfair prejudice to the defendant. Pa.R.Evid.
      404(b)(2).

            The challenged evidence presented by the Commonwealth
      was highly relevant to [Appellant’s] motive and intent, and that
      relevance substantially outweighed any potential prejudice.
      Moreover, this court gave a limiting instruction during its closing
      charge, directing the jury that the evidence was offered only for
      the purpose of tending to show motive or intent and that it could
      not be considered for any other purpose. (N.T., 11/20/15, p. 76)
                       _______________________
(Footnote Continued)

specific instances of prior bad acts in her Pa.R.A.P. 1925(b) statement, it
would not have been a “concise” statement.           Appellant’s Brief at 20.
Further, she asserts that a review of all the pleadings in this matter “would
have revealed a sufficiently clear and detailed statement of what … Appellant
… was complaining of.” Id.          Appellant, however, cites no caselaw to
support her position, and we are aware of no authority that requires a trial
court to scour the record and look beyond the Pa.R.A.P. 1925(b) statement
in order to find and address issues that an appellant might wish to raise on
appeal. Accordingly, there is no merit to Appellant’s argument that she was
somehow absolved of the requirements of Pa.R.A.P. 1925(b) because, in her
estimation, it may have been lengthy or her issues were raised elsewhere in
the record.



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J-A14031-17


     “It is well established that a jury is presumed to follow a court’s
     instructions.” See, e.g., Commonwealth v. Travaglia, 28 A.3d
     868, 882 (Pa. 2011). [Appellant], therefore, cannot succeed on
     her claim related to certain witnesses being permitted to testify
     about an approximate number of bad acts and motive.

Trial Court Opinion, 11/2/16, at 11-12.

     We agree with this analysis as an alternate basis upon which to affirm

Appellant’s judgment of sentence.    Had Appellant properly preserved her

issues on appeal, we would have concluded that the challenged prior-bad-

acts testimony was more probative than prejudicial and properly admitted as

an exception to Pa.R.E. 404 as evidence of Appellant’s motive.

     Finally, we are constrained to point out another item concerning issue

preservation.   As noted above, Appellant’s judgment of sentence was

entered on April 14, 2016.    Appellant’s trial counsel filed a timely post-

sentence motion on April 20, 2016; however, this motion made no mention

of prior bad acts under Pa.R.E. 404(b). Trial counsel subsequently moved to

withdraw. Motion, 4/27/16. In an order filed on May 4, 2016, the trial court

scheduled a hearing for May 31, 2016, to consider the motion to withdraw.

On May 31, 2016, the trial court granted the motion to withdraw, and it

appointed the Public Defender to represent Appellant. On June 4, 2016, the

Public Defender was permitted to withdraw due to a conflict, and the trial

court appointed current counsel, Attorney Colin Hannings, to represent

Appellant in her pending post-sentence motion and on appeal.




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J-A14031-17


       On August 9, 2016, Attorney Hannings filed an amended post-

sentence motion for reconsideration of sentence. The record does not reflect

that Appellant sought, nor did the trial court grant, leave to file this

amended post-sentence motion; thus, this motion appears facially untimely

as post-sentence motions were due on or before April 24, 2016.2

Pa.R.Crim.P. 720(A).

       On August 9, 2016, Attorney Hannings also filed a document entitled,

“Amended Post Sentence Appeal and Motion in Arrest of Judgment.” In this

additional post-sentence motion, Appellant refers to more than thirty

instances where prior bad acts testimony was allegedly admitted. Amended

Post Sentence Appeal and Motion in Arrest of Judgment, 8/9/16, at ¶¶ 10-

22.   Again, there is no order in the record revealing that the trial court

permitted this “amended” filing. However, even if we assume that the trial

court accepted these amended post-sentence motions, we note that

Appellant’s trial counsel did not object to any testimony on the basis that it

was improper evidence of prior bad acts. While Appellant references thirty-

seven pages where alleged prior bad acts testimony was admitted, after

review of those pages, we discovered only two objections. Notably, in those
____________________________________________


2
   The record reflects that the trial court scheduled a hearing for May 31,
2016, regarding trial counsel’s motion to withdraw. Order, 5/4/16. Indeed,
it is possible that at that hearing the trial court permitted newly appointed
counsel to file amended post-sentence motions. However, the notes of
testimony from that hearing are not in the record certified to this Court on
appeal.



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J-A14031-17


objections, which appear at N.T., 11/17/15, at 180 and 208, counsel did not

challenge the witnesses’ testimony on the basis of prior bad acts.       Thus,

even if the amended post-sentence motions were accepted as timely, and if

these issues were properly preserved in a Pa.R.A.P. 1925(b) statement, we

would deem the issues waived due to Appellant’s failure to preserve the

alleged errors at trial by failing to raise timely and specific objections. See

Commonwealth v. Sauers, 159 A.3d 1, 9 (Pa. Super. 2017) (stating that

the failure to offer a timely and specific objection results in waiver of the

claim).

      For the reasons set forth above, we conclude that Appellant has failed

to   preserve   her challenges to    the   alleged prior-bad-acts   testimony.

Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.



       Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2017




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