J-S48014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY NADOLNY

                            Appellant               No. 1588 WDA 2014


         Appeal from the Judgment of Sentence September 17, 2014
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0000563-2014


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                        FILED OCTOBER 26, 2015

       Appellant, Timothy Nadolny, appeals1 from the judgment of sentence

entered on September 17, 2014, in the Court of Common Pleas of Erie

County. We affirm.

       Nadolny lived with the victim in this case for two months, until the

victim asked him to move out. The victim has cancer and is confined to a

wheelchair. After Nadolny moved out, he eventually returned—by invading

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1
  Nadolny purports to appeal from the sentencing order entered in this case.
See Notice of Appeal, filed 9/26/14. “A direct appeal in a criminal proceeding
lies from the judgment of sentence.” Commonwealth v. Patterson, 940
A.2d 493, 497 (Pa. Super. 2007) (citation omitted). For appeal purposes,
see Pa.R.Crim.P. 720(A)(3), the imposition of sentence is “the date that the
trial court pronounced the sentence in open court, not the date that the
order imposing the judgment of sentence was docketed….” Patterson, 940
A.2d at 498 (citation omitted).
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the residence, wearing a white sheet over his face, and carrying a handgun.

Upon his arrival, and despite the sheet, the victim immediately realized it

was Nadolny. While holding the handgun to the base of the victim’s neck,

Nadolny demanded the key to the victim’s gunroom. Nadolny never got the

key, but he took other items.

      Although the victim testified at the preliminary hearing, he was unable

to speak by the time of the trial as his larynx (colloquially known as the

voice box) had been surgically removed. The Commonwealth moved to have

his preliminary hearing testimony read into evidence at trial as his inability

to speak rendered the victim unavailable to testify. The trial court agreed. A

jury convicted Nadolny of several offenses, including aggravated assault, 18

Pa.C.S.A. § 2702(a)(1). The trial court sentenced Nadolny to 16 to 32 years’

imprisonment. This timely appeal followed.

      Nadolny first argues that the trial court violated his Sixth Amendment

right to confront his accuser when it allowed the Commonwealth to read into

evidence at trial the victim’s testimony from the preliminary hearing.

Nadolny, however, fails to indicate in his brief where he preserved this issue.

      Our Rules of Appellate Procedure mandate that the appellant note in

his brief the place in the record where he raised or preserved the issue

presented on appeal. See Pa.R.A.P. 2117(c)(1-4); 2119(e). Here, the brief

merely states that Nadolny objected to the victim’s presence in the

courtroom while someone read his preliminary hearing testimony to the jury.


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See Appellant’s Brief, at 7. That is a far different claim than that raised on

appeal.

      We have reviewed the certified record and are unable to find any

objection lodged by Nadolny to the reading of the victim’s prior testimony.

Nadolny objected to certain content in the statement, see N.T., Trial,

7/16/14, at 25-26, and he objected, as mentioned, that the victim “not be in

the courtroom” for the reading of the statement, id., at 28. Lastly, when

asked if he had any other objections, he requested that the reader of the

testimony use “no inflection” in her voice. Id., at 30. Nadolny also

referenced a motion in limine that the trial court ruled on and he “renew[ed]

the prior objections we have to references to the victim’s infirm state or the

actions of his dog on that evening.” Id., at 28. The motion in limine is not in

the certified record nor do the criminal docket sheets reflect the filing of any

such motion. If the motion was made orally, the argument was apparently

not transcribed as it does not appear anywhere in the certified record.

      Accordingly, Nadolny raises this issue for the first time on appeal. That

is impermissible. We find the issue waived. See Pa.R.A.P. 302(a).

      Even if we had not found the issue waived it would not have afforded

Nadolny   relief.   “The   Confrontation     Clause   …   prohibits   out-of-court

testimonial statements by a witness unless the witness is unavailable and

the   defendant     had    a   prior   opportunity    for    cross-examination.”

Commonwealth v. Yohe, 79 A.3d 520, 544 (Pa. 2013) (citation and


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footnote omitted). Here, the victim cannot speak as his larynx was surgically

removed.2 This rendered him unavailable. But he testified at the preliminary

hearing. And Nadolny’s counsel had a full opportunity to cross-examine the

victim. See N.T., Trial, 7/16/14, at 51-58 (trial counsel noting that at

preliminary hearing a different attorney conducted the cross-examination of

the victim and then read that attorney’s cross-examination to the jury).

Therefore, we would have found that the trial court committed no error in

permitting     the    admission      of   the    prior   testimony   at   trial.   See

Commonwealth v. Rodgers, 372 A.2d 771, 779 (Pa. 1977) (“It is well

established that the prior testimony from a preliminary hearing of an

unavailable witness is admissible at trial, provided that the defendant had

counsel and a full opportunity to cross-examine the witness during the

earlier proceeding.”).

       Nadolny next contends that the Commonwealth presented insufficient

evidence to sustain the conviction for aggravated assault. Appellate review

of a challenge to the sufficiency of the evidence is well-settled.

       The standard we apply in reviewing the sufficiency of the
       evidence is whether viewing all the evidence admitted at trial in
       the light most favorable to the verdict winner, there is sufficient
       evidence to enable the fact-finder to find every element of the
       crime beyond a reasonable doubt. In applying [the above] test,
____________________________________________


2
  Nadolny argues that “it is reasonable to believe that the court could have
explored an alternate way to allow [the victim] to testify.” Appellant’s Brief,
at 7 (emphasis in original). Nadolny fails, however, to offer even one such
reasonable suggestion.



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      we may not weigh the evidence and substitute our judgment for
      the fact-finder. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence. Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [finder] of fact, while passing upon the credibility of witnesses
      and the weight of the evidence produced, is free to believe all,
      part or none of the evidence.

Commonwealth v. Valentine, 101 A.3d 801, 805 (Pa.Super. 2014)

(citation omitted; brackets in original).

      A person commits aggravated assault if he “attempts to cause serious

bodily injury to another … under circumstances manifesting extreme

indifference to the value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1). “For

aggravated assault purposes, an ‘attempt’ is found where an accused who

possesses the required, specific intent acts in a manner which constitutes a

substantial step toward perpetrating a serious bodily injury upon another.”

Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (citation

and internal quotation marks omitted).

      Nadolny argues that the Commonwealth presented no evidence that

he took a substantial step towards injuring the victim. We disagree.

      Nadolny invaded the victim’s home, “slammed” the wheelchair-bound

victim between a door and a couch, corralled him into a bathroom, and held


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a handgun to the base of the victim’s neck, while demanding the key to the

victim’s gunroom. See N.T., Trial, 7/16/14, at 37-38, 42-43. The assault

ended when the victim heard his wife coming up from the basement and he

yelled for her to “get out of there and call the [s]tate cops.” Id., at 44. See

also id., at 42. The only remaining step would have been for Nadolny to pull

the trigger, which would have resulted in serious bodily injury. Cf. Fortune,

63 A.3d at 986-987.

      We find that the Commonwealth presented sufficient evidence that

Nadolny took a substantial step towards injuring the victim.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2015




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