J-S08031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    BILLY RAY NAILL                            :
                                               :
                      Appellant                :       No. 916 WDA 2016

            Appeal from the Judgment of Sentence January 25, 2016
               In the Court of Common Pleas of Somerset County
             Criminal Division at No(s): CP-56-CR-0000343-2015


BEFORE:      GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED FEBRUARY 13, 2017

        Appellant, Billy Ray Naill, appeals from the judgment of sentence

entered in the Somerset County Court of Common Pleas, following his jury

trial convictions of criminal mischief, criminal attempt—theft, and two counts

of criminal conspiracy.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On December 16, 2014, police received a complaint about an attempted

theft at First Commonwealth Bank.              Upon arrival at the scene, police

discovered someone had tried to remove the drive-up ATM machine and

caused extensive damage in the process. Police received surveillance video

from the bank, which revealed several individuals tie a chain around the ATM
____________________________________________


1
    18 Pa.C.S.A. §§ 3304(a)(1), 901(a), and 903(a)(1), respectively.
J-S08031-17


machine, attach the chain to the trunk area of a vehicle, and attempt to pull

the ATM from the ground to access its contents. Based on the surveillance

video, police were able to identify the vehicle and its owner, who had

reported the vehicle as stolen.    Subsequent investigation into the stolen

vehicle and the ATM incident led to Appellant’s arrest.

      On June 16, 2015, the Commonwealth charged Appellant with criminal

mischief, conspiracy to commit criminal mischief, criminal attempt—theft,

loitering and prowling at nighttime, and conspiracy to commit unauthorized

use of an automobile.      On December 31, 2015, four days prior to jury

selection, Appellant’s counsel learned the Commonwealth intended to

present the testimony of Appellant’s former cellmate, Joseph Bockes, about

inculpatory   statements   Appellant    had   made.       Counsel   immediately

attempted to contact the Commonwealth to discuss Mr. Bockes’ testimony;

however, counsel was unsuccessful. On January 4, 2016, the date of jury

selection, counsel brought up the issue of Mr. Bockes’ testimony in court.

The Commonwealth subsequently agreed not to call Mr. Bockes as a witness

or to refer to him in any way at trial. Appellant’s counsel acknowledged this

remedy was acceptable and did not ask for a continuance.            The parties

subsequently proceeded with trial, and the jury convicted Appellant on

January 6, 2016, of criminal mischief, conspiracy to commit criminal

mischief, criminal attempt—theft, and conspiracy to commit unauthorized

use of an automobile.


                                       -2-
J-S08031-17


       On January 25, 2016, the court sentenced Appellant to an aggregate

term of eighteen (18) to sixty (60) months’ imprisonment.                At the

sentencing hearing, counsel raised a motion for extraordinary relief and/or a

new trial, based on the Commonwealth’s failure to disclose its intent to use

Mr. Bockes as a witness at trial.    The court denied the motion that same

day.   On February 4, 2016, Appellant filed a post-sentence motion, which

again asked for a new trial based on the Commonwealth’s failure to inform

Appellant about Mr. Bockes’ intended testimony. The court denied relief on

May 27, 2016. Appellant timely filed a notice of appeal on June 21, 2016,

and an amended notice of appeal on June 23, 2016. On June 28, 2016, the

court ordered Appellant to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on

July 12, 2016.

       Appellant raises the following issue for our review:

          WHETHER THE TRIAL COURT’S REFUSAL TO CONSIDER A
          MOTION TO CONTINUE AS WELL AS ITS REFUSAL TO
          DECLARE A MISTRIAL WHEN EVIDENCE OF THE
          COMMONWEALTH’S FAILURE TO PROVIDE PRETRIAL
          DISCOVERY CAME TO LIGHT IN THIS CASE, VIOLATED
          [APPELLANT’S] RIGHT TO A FAIR TRIAL[?]

(Appellant’s Brief at 4).

       Our standard review of the grant or denial of a motion for a

continuance is as follows:

          The grant or denial of a motion for a continuance is within
          the sound discretion of the trial court and will be reversed
          only upon a showing of an abuse of discretion. An abuse

                                      -3-
J-S08031-17


           of discretion is not merely an error of judgment; rather
           discretion is abused when 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.

Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014), appeal

denied, 626 Pa. 681, 95 A.3d 275 (2014) (internal citations and quotation

marks omitted).

        Additionally, our standard of review of a court’s denial of a motion for

mistrial is as follows:

           A motion for a mistrial is within the discretion of the trial
           court. A mistrial upon motion of one of the parties is
           required only when an incident is of such a nature that its
           unavoidable effect is to deprive the appellant of a fair and
           impartial trial. It is within the trial court’s discretion to
           determine whether a defendant was prejudiced by the
           incident that is the basis of a motion for a mistrial. On
           appeal, our standard of review is whether the trial court
           abused that discretion.

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003) (internal

citations and footnote omitted).

        Pennsylvania Rule of Criminal Procedure 573 provides in pertinent

part:

           Rule 573. Pretrial Discovery and Inspection

                                    *    *    *

           (B) Disclosure by the Commonwealth.

           (1) Mandatory. In all court cases, on request by the
           defendant, and subject to any protective order which the
           Commonwealth might obtain under this rule, the
           Commonwealth shall disclose to the defendant’s attorney

                                        -4-
J-S08031-17


         all of the following requested items or information,
         provided they are material to the instant case.    The
         Commonwealth shall, when applicable, permit the
         defendant’s attorney to inspect and copy or photograph
         such items.

                                      *    *    *

             (b) any written confession or inculpatory statement,
             or the substance of any oral confession or
             inculpatory statement, and the identity of the person
             to whom the confession or inculpatory statement
             was made that is in the possession or control of the
             attorney for the Commonwealth;

                                      *    *    *

         (E) Remedy. If at any time during the course of the
         proceedings it is brought to the attention of the court that
         a party has failed to comply with this rule, the court may
         order such party to permit discovery or inspection, may
         grant a continuance, or may prohibit such party from
         introducing evidence not disclosed, other than testimony of
         the defendant, or it may enter such other order as it
         deems just under the circumstances.

Pa.R.Crim.P. 573(B)(1)(b), (E).       “The purpose of the discovery rules is to

permit the parties in a criminal matter to be prepared for trial.        Trial by

ambush is contrary to the spirit and letter of those rules and cannot be

condoned.”     Commonwealth v. Manchas, 633 A.2d 618, 625 (Pa.Super.

1993), appeal denied, 539 Pa. 647, 651 A.2d 535 (1994) (internal citations

omitted). “[Rule 573(E)] gives the trial court broad discretion in formulating

remedies     for   a   failure   to   comply    with   discovery   requirements.”

Commonwealth v. Galloway, 771 A.2d 65, 68 (Pa.Super. 2001).

Importantly:


                                          -5-
J-S08031-17


         A defendant seeking relief from a discovery violation must
         demonstrate prejudice. A violation of discovery does not
         automatically entitle [an] appellant to a new trial. Rather,
         an appellant must demonstrate how a more timely
         disclosure would have affected his trial strategy or how he
         was otherwise prejudiced by the alleged late disclosure.

Commonwealth v. Causey, 833 A.2d 165, 171 (Pa.Super. 2003), appeal

denied, 577 Pa. 732, 848 A.2d 927 (2004) (internal citations and quotation

marks omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable D. Gregory

Geary, we conclude Appellant’s issue on appeal merits no relief.        The trial

court opinion fully discusses and properly disposes of the question

presented. (See Trial Court Opinion, filed August 17, 2016, at 2-4) (finding:

with respect to court’s alleged denial of Appellant’s continuance motion

based on incomplete discovery packet, record reveals counsel did not

request continuance on this basis; in fact, review of record demonstrates

court did not deny single continuance request in case; prior to jury selection,

Commonwealth admitted failure to inform Appellant of potential inculpatory

testimony of Appellant’s former cellmate, Mr. Bockes; after discussion in

court, Commonwealth agreed not to call Mr. Bockes as witness during trial or

present any evidence related to Mr. Bockes; Appellant’s counsel then stated

on record that this remedy was sufficient and no continuance motion was

necessary; with respect to court’s alleged denial of Appellant’s motion for

mistrial based on incomplete discovery packet, record reveals Appellant did

                                     -6-
J-S08031-17


not move for mistrial on this basis; review of trial transcript reveals

Appellant moved for mistrial twice during trial, and both motions for mistrial

were unrelated to Commonwealth’s failure to provide complete discovery

packet; even if Appellant had moved for mistrial based on incomplete

discovery packet, Appellant failed to demonstrate he suffered prejudice or

identify items Commonwealth did not include in discovery packet beyond

intended testimony of Mr. Bockes; court cannot order new trial based on

Appellant’s generalized hunch that undisclosed evidence beneficial to

Appellant exists; thus, Appellant’s claim that court improperly denied his

continuance motion and motion for mistrial warrants no relief). Accordingly,

we affirm on the basis of the trial court opinion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




                                      -7-
                                                                                  Circulated 01 /19/2017 04:27 P

                                              __   .,.




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     COMMONWEALTH        ,~ 'fr..CGR~                            IN THE COURT OF COMMON PLEAS
                r\Lt.D rOi ~       ·- I                  Ll          OF'SO~RSETCOUNTY,
                           v.                                )          PENNSYLVANIA
                                                             )
     BILLY RAY NAILL,                                        )
                                                             )
                           Defendant.                        )       NO. 343 CRIMINAL 2015



                           OPINION PURSUANT TO Pa.R.A.P. 1925(a)

           This Opinion is issued pursuant to Pennsylvania Rule of Appellate Procedure I 925(a).

 I. PROCEDURAL           AND FACTUAL HISTORY.

           After a two-day jury trial, Defendant, Billy Ray Naill, was found guilty of criminal

 mischief (a third-degree felony), conspiracy to commit criminal mischief (a third-degree

 felony), criminal attempt (a third-degree misdemeanor), and conspiracy to commit

 unauthorized use of a motor vehicle (a second-degree misdemeanor) on January 6, 2016.

 Defendant was sentenced on January 25, 2016. Defendant filed post-sentence motions on

 February 4, 2016, which we denied by Order of May 27, 2016.

           Defendant filed his Revised Notice of Appeal to the Superior Court on June 23, 2016.1

 Pursuant to Pennsylvania Rule of Appellate Procedure l 925(b), we ordered Defendant to file

 a concise statement of matters complained of on appeal on June 28, 2016, with which

 Defendant complied on July 12, 2016.

 II. ANALYSIS.

           Defendant, through counsel, filed a "Concise Statement of Matters Complained of on

 Appeal Purusant [sic] to 1925(b)" ("Def.'s Statement") on July 12, 2016. Defendant's
 I
  Defendant originally filed a Notice of Appeal on June 21, 2016, erroneously appealing to the Commonwealth
 Court, rather than the Superior Court.



~+   r&l,,     111· ~
Statement consists of six claims of error.

        1) Denial of Defendant's Motion for a Continuance Priorto TrialBecause of an
           Incomplete Discovery Package.

        Defendant claims that we erred by denying "Defendant's                   Motion for Continuance

prior to trial due to the failing of the Commonwealth to provide a complete discovery

package." Def. 's Statement      1 1.
        Our review of the record reveals Defendant never requested a continuance and we

never denied a request for a continuance by either party throughout this entire case .. The only

continuance requested in this case was requested by the Commonwealth and was granted by

our Order of September 23, 2015.

        Prior to jury selection, an issue arose in which the Commonwealth admittedly did not

provide Defendant with a written statement inculpating Defendant, which was allegedly given

by Defendant's cellmate, Joseph Bockes. The Commonwealth agreed not to call this witness

during the trial or to present any evidence relating to the statement this witness allegedly

gave.2 In response to the Commonwealth's               willingness to not call this witness, Defense

Counsel stated, "[W]e were prepared to ask for a continuance based on that because I don't

know anything about Mr. Bockes; but since Mr. Carbonara is withdrawing him as a witness, I

guess the problem is solved." Jury Selection Tr. 3, Jan. 4, 2016.

        Therefore, we submit that Defendant's first claim of error should be denied because

Defendant never moved for a continuance and we never denied any request for a continuance

by either party throughout this entire case. 3



2
  The Commonwealth kept its agreement with Defendant. Joseph Bockes did not testify at trial, nor was his
statement referenced or used in any way.
3
  Moreover, we are unable to determine what prejudice Defendant allegedly suffered or what, if anything, was
allegedly missing from the discovery package beyond Joseph Bockes' written statement. Exclusion ofBockes'
statement was a proper remedy pursuant to Pa. R. Crim. P. 573(E).


                                                      2
       2) Denial of Defendant's Motion for Mistrial Becanse of an Incomplete Discovery
           Package.

       Defendant next asserts that we erred in denying "Defendant's Motion for a Mistrial at

trial due to the failing of the Common.wealthto provide a complete discovery package thereby

prejudicing the Defendant to an extent that it constitutes reversible error.'' Def.'s Statement1

2.

       Yet, as we addressed supra in regard to the purported "Motion for Continuance,"

Defendant never moved for a mistrial on the basis that the Commonwealth's alleged failure to

provide a complete discovery package impermissibly prejudiced Defendant. Consequently,

we also never denied a motion for mistrial on such a basis.

       We have reviewed the entire trial transcript in this case. Defendant made two motions

for a mistrial. First, Defendant moved for mistrial at the conclusion of the Commonwealth's

case on the basis of a violation of the confrontation clauses of both the U.S. Constitution and

the Pennsylvania Constitution. Trial Tr., Vol. 2, 178-81. Second, Defendant moved for

mistrial mid-deliberations based on the jury being given documents that had not been

admitted into evidence when they began deliberating. Id at 232.

       Thus, we submit that Defendant's claim of error must fail because a motion for

mistrial based on an allegedly incomplete discovery package was never made at trial, and we

never denied such a motion at trial.

       Even had such a motion been made, a denial of such a motion would not have been in

error because Defendant has failed to identify any prejudice he suffered or what the

Commonwealth failed to provide in the discovery package. The Commonwealth failed to

provide Defendant with a pre-trial statement by Joseph Bockes, and we addressed this

deficiency supra. Beyond Joseph Bockes' written statement, Defendant has failed to identify



                                               3
any other information missing from the discovery package that was presented at trial or

identify any information that was withheld from Defendant by the Commonwealth.                                     At

sentencing, Defense Counsel even stated, "I still don't [k]now what I don't know because I

cannot assert to this Court that I got everything in there; and to say, Well, it probably wasn't

harmful that you didn't have it is disingenuous."              Video Sentence Tr. 11, Jan. 25, 2016.              We

certainly cannot order a new trial based on nothing more than Defendant's generalized hunch

that there might be undisclosed evidence that might benefit Defendant. See Commonwealth v.

Santiago, 654 A.2d 1062, 1069-70 (Pa. Super. Ct. 1994); Commonwealth v. Hudgens, 582

A.2d 1352, 1361-63 (Pa. Super. Ct. 1990).

         3) Denial of Defendant's Motion for Mistrial When Excluded Evidence Was
            Taken into the Jury Room for Deliberation.

         Defendant asserts that we erred in denying "Defendant's Motion for a Mistrial after

evidence which had been excluded by the objection of the Defendant was provided to the jury

in the documents which they were permitted to take into the jury room for purposes of

deliberation."     Def. 's Statement 13. While Defendant's Statement fails to identity to which

documents it refers, based on the trial transcript, we conclude that Defendant's Statement

refers to Exhibit 6 and Exhibit 7, which were accidentally given to the jury during

deliberations despite these exhibits being denied admission into evidence. See Trial Tr., Vol.

2, 175-76, 229-32.4

         The trial transcript indicates that the jury exited the courtroom to commence their

deliberations at 2:23 p.m. Trial Tr., Vol. 2, 228. Shortly thereafter, the jury returned to the

courtroom at 2:38 p.m. Id. The foreperson of the jury informed the Court that a court officer

had handed her Exhibit 6 and Exhibit 7 even though these documents were not admitted into

4
  We note that, while the foreperson of the jury refers to a document as a "colloquy," the trial transcript reflects
that she was actually referring to the transcripts from two contempt proceedings that we address infra Part II.4.


                                                          4
evidence. Id at 229. The foreperson of the jury told the Court that she did not read Exhibit 6

and Exhibit 7 and no other members of the jury read them. Id at 230. Rather, the foreperson

looked at the numbering at the bottom of the exhibits and realized that she was given Exhibit

6 and Exhibit 7 despite the Court denying the admission of those exhibits into evidence. Id

Defendant moved for a mistrial because of the jury's improper exposure to these two exhibits.

Id. at 232. We denied this motion on the basis that this error was harmless, Id.

          We submit that the error was harmless because, according to the foreperson of the

jury, none of the jurors read the exhibits. Id at 230. Furthermore, the fact that only fifteen

total minutes elapsed between the time the jurors left the courtroom for deliberation and when

they returned to the courtroom to address this issue supports the foreperson' s statement that

the jury had not read Exhibit 6 or Exhibit 7 because of the small window of time that had

passed.    Id. at 228. Even had the jury read Exhibit 6 and Exhibit 7, this error was still

harmless, Exhibit 6 and Exhibit 7 are written statements that Courtney Mckenzie and Laken

Oakes provided to the police, and, while Exhibit 6 and Exhibit 7 were not admitted into

evidence and, thus, should not have been given to the jury, our review of these exhibits

reveals that the content of these two exhibits is almost entirely duplicative of the testimony

Courtney McKenzie and Laken Oakes gave at the trial itself. See Trial Tr., Vol. 1, 111-43.

          Accordingly, although the Court erred by initially providing the jury with Exhibit 6

and Exhibit 7, we submit that this error was harmless because it did not influence the jury's

verdict, it was merely duplicative, and it therefore did not merit grant of a mistrial.      See

Flenke v. Huntington, 111 A.2d 1197, 1199-1200 (Pa. Super. Ct. 2015); Zenak v. Police

Athletic League of Philadelphia, 132 A.3d 541, 553-54 (Pa. Commw. Ct. 2016).




                                               5
        4) Denial of Mistrial When Contempt Proceeding Transcripts Were Taken into
           the Jury R()om for Deliberation,

        Similarly, Defendant asserts that we erred in "failing to grant a mistrial when the

transcripts   of the two (2) criminal contempt proceedings         failed for two (2) of the

Commonwealth witnesses who refused to testify were permitted to go into the jury room with

the jury for deliberation." Def.ts Statement   14.
        These two documents are the transcripts of "contempt proceedings" for Michael

Merkel and Trevor Merkel. During trial, the Commonweahh intended to call Michael Merkel

and Trevor Merkel as witnesses for the Prosecution.      See Trial Tr., Vol. 2, 160. However,

despite the warning that they would be held in contempt, both potential witnesses refused to

testify against Defendant.   See id at 160-67. These two documents are the transcripts of the

mid-trial proceedings in which the Court established, on the record, that Michael Merkel and

Trevor Merkel were truly refusing to testify despite the likelihood that they would be

convicted of criminal contempt for their refusal to obey a direct court order. See id.

        Similar to the accidental inclusion of Exhibit 6 and Exhibit 7 with the materials given

to the jury when deliberations began, the jury was erroneously given the transcripts of these

two "contempt proceedings."     As discussed supra Part 11.3, the trial transcript specifies that

the jury left the courtroom to begin deliberations at 2:23 p.m. The jury then returned to the

courtroom fifteen minutes later at 2:38 p.m. The foreperson of the jury told the Court that

neither she nor any other jurors read the documents that were not admitted into evidence. Id

at 230. Defendant moved for a mistrial because of the jury's improper exposure to these two

transcripts from the contempt proceedings.     Id. at 232. We denied this motion on the basis

that this error was harmless. Id

        We submit that this error was harmless because, according to the foreperson of the



                                                6
jury, none of the jurors read the exhibits. Id at 230. Furthermore, the fact that only fifteen

total minutes elapsed between the time the jurors left the courtroom for deliberation and

returned to the courtroom to address this issue supports the foreperson's assertion that the jury

had not read the statements because only a small period of time had passed.           Id. at 228.

Moreover, the fact that the foreperson did not even accurately describe the documents

supports our conclusion that the jury did not read them.

        However, even had the jury read the transcripts of the contempt proceedings, the

content of these two transcripts was separately conveyed to the jury during the trial itself

without any objection by Defendant. During opening statements, the Commonwealth told the

jury that Trevor Merkel and Michael Merkel had pled guilty and been sentenced in relation to

the same crime, that they were going to reluctantly testify for the Commonwealth, and that

they would be uncooperative       because of their family relationship and friendship with

Defendant.     Trial Tr., Vol. 1, 18-19. Evidence presented at trial also portrayed Trevor and

Michael Merkel as coconspirators to the crime and friends of Defendant. See, e.g., Trial Tr.,

Ex 8: Trial   r-, Ex. 9.
        Then, after these "contempt proceedings" occurred, the jury was brought back into the

courtroom and the Court explained to the jury:

       The Commonwealth called as witnesses Trevor Merkel and Michael Merkel. Both
       Trevor Merkel and Michael Merkel were brought before me where they indicated to
       me that they refused to testify. I then ordered them to testify, and they still refused.

       So what that means for you is that those witnesses are now unavailable. They will not
       be testifying, but you need to understand that the Commonwealth took every step that
       it could to make them available as witnesses in this case, but you will not be hearing
       from either of them.

Id. at 170-71.

       Likewise, during its closing statement, the Commonwealth emphasized that Trevor



                                                 7
and Michael Merkel refused to testify, that the Commonwealth did everything in its power to

make them testify, that their original statements to the police were a key part of the

investigation in this case, and that they pled guilty in relation to the same crime. See Trial Tr.,

Vol. 2, 200-201; Trial Tr., Ex. 8; Trial Tr., Ex. 9. Thus, our comparison of the content of the

transcripts from the two "contempt proceedings" with the trial transcript reveals that the

information contained within these two transcripts had already been conveyed, without

objection, to the jury during the trial itself. In essence, regardless of the error made in sending

these transcriptions with the jury for their first fifteen minutes of deliberations, the

information contained within these two transcripts was separately presented to the jury during

the trial.

        Therefore, even had the jury inspected the transcripts of these two "contempt

proceedings," we submit that this error was harmless, did not influence verdict, and did not

merit grant of a mistrial. See Flenke, 111 A.2d at 1199-1200;Zenak, 132 A.3d at 553-54.

        5) Denial of Motion for New Trial Based on ProsecutorialMisconduct.

        Defendant asserts that we erred by denying his pro se motion for a new trial made at

his sentencing. Def.'s Statement      1   5. The basis for this motion for a new trial was

"prosecutorial misconduct through the interception and manipulation of documents,

statements and letters pertaining to [Defendant's] case which improperly tainted the testimony

of two (2) of the Commonwealth's witnesses in the trial." Id.

        As a threshold matter, this issue is not properly raised on appeal. By Order of January

25, 2016, we denied Defendant's motion for a new trial made at Defendant's video

sentencing. However, as reflected by the transcript of Defendant's video sentencing, this

Order denied the motion for a new trial made by Defense Counsel. See Video Sentence Tr.




                                                8
    12, Jan. 25, 2016.     Separately, when given his chance to speak on his own behalf prior to

    sentencing, Defendant stated that the prosecution had intercepted and manipulated his mail,

    and he requested that the Court grant him a new trial on that independent basis. Id. at 13-14.

    We did not respond to Defendant's prose request and proceeded to sentence Defendant. Id.

    at 15.

             Defendants have ·no right to hybrid representation either at trial or on appeal.

    Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993). Defendants may petition the Court

    to terminate their representation and proceed prose, or defendants may proceed with counsel.

    Id at 1141. However, defendants may not confuse and overburden the Court with their own

    pro se filings, motions, and briefs when their counsel is simultaneously acting on their behalf.

Id Thus, we properly chose not to rule on Defendant's prose oral motion at his sentencing,

and the issue of alleged prosecutorial misconduct through the manipulation of Defendant's

mail is waived because this issue cannot be raised for the first time on appeal. Pa.R.A.P.

302(a); Kaufman v. Campos, 827 A.2d 1209, 1212 (Pa. Super. Ct. 2003) ("[A] party must

make a timely and 'specific objection before the trial court at the appropriate stage of

proceedings; the failure to do so will result in a waiver of the issue.").

             Moreover, even were we to consider the merits of this claim of error, the record is

devoid of any evidence that any manipulations of Defendant's documents occurred or that

Defendant suffered prejudice at trial due to these alleged manipulations.                          In fact, at

sentencing, Defense Counsel indicated that he did not raise the issue because he had no

evidence of any manipulation.5

             Therefore, we submit that we did not err in choosing not to address Defendant's prose

5
 "Mr. Cline: Your Honor, I just - Mr. Naill and I did discuss these matter. I - because I had no evidence to - to
show the Court of this manipulation, I would - obviously, I felt compelled not to raise it; but, obviously, he's
made his own oral Motion for a New Trial." Video Sentence Tr. 14-15, Jan. 25, 2016.


                                                       9
motion for a new trial and, in any case, Defendant's pro se motion was meritless.

        6) Weight of the Evidence.

        Finally, Defendant asserts that the jury's verdict was against the weight of the

evidence. Def.'s Statement ,r 6.

         This issue is not properly raised on appeal. "A party must make a timely and specific

objection before the trial court at the appropriate stage of proceedings; the failure to do so will

result in a waiver of the issue." Kaufman, 827 A.2d at 1212. Furthermore, where a defendant

fails to a raise a claim that the verdict was against the weight of the evidence in one of the

three prescribed ways,6 the defendant waives the claim for the purposes of appeal.

Commonwealth v. Bryant, 57 A.3d 191 (Pa. 2012); Commonwealth v. Priest, 18 A.3d 1235

(Pa. 2011). However, Defendant never raised the issue of the weight of the evidence in these

proceedings prior to the filing of his Statement Pursuant to 1925(b). Accordingly, we have

never issued an order or opinion as the weight of the evidence. Thus, we submit that this

issue is waived and cannot be raised for the first time on appeal. See Pa.RAP. 302(a).

         Even were the claim that the verdict was against the weight of the evidence not

waived, this claim must fail. Defendant presented no evidence at trial, and the evidence the

Commonwealthpresented weighed heavily in favor of the jury's verdict.




6
 A claim that the verdict was against the weight of the evidence must be raised with the trialjudge in a motion
for a new trial: (1) orally, on the record, at any time before sentencing, (2) by written motion at any time before
sentencing, or (3) in a post-sentence motion. Pa. R. Crim. P. 607; Commonwealth v. Burkett, 830 A.2d 1034,
1037 (Pa. Super. Ct. 2003).                                                                       · ·


                                                         10
    III.   CONCLUSION.

           For the foregoing reasons, we submit that the jury's verdict in this case should stand

    and Defendant should be denied a new trial.




                                                  RESPECTFULLY SUBMITTED:




    Dated: August 17, 2016




i                                                 11
