J-A01007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JUSTIN PATTERSON

                            Appellant                No. 2768 EDA 2014


             Appeal from the Judgment of Sentence April 14, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011152-2009


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                    FILED February 22, 2016

        This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County following Appellant’s conviction on

the charges of aggravated assault, firearms not to be carried without a

license, carrying firearms on public streets or public property in Philadelphia,

possessing instruments of crime, and possession of a firearm prohibited.1

Appellant contends (1) the trial court erred in admitting into evidence at trial

a 911 call recording of an unidentified person; (2) the trial court erred in

ruling that the prosecutor’s comment during closing argument did not

constitute prosecutorial misconduct; (3) the trial court erred in permitting

the Commonwealth to “play the sympathy and emotion card” during its
____________________________________________


1
    18 Pa.C.S.A. §§ 2702, 6106, 6108, 907, and 6105, respectively.



*Former Justice specially assigned to the Superior Court.
J-A01007-16


direct examination of the victim’s father; and (4) the trial court erred in

refusing to give a “missing witness” jury instruction.2 We affirm.

       The relevant facts and procedural history are as follows: On March 31,

2009, Arcenio Alvarado was shot approximately nine times, leaving him

paralyzed from the chest down. Following an investigation, which included

information received from an anonymous 911 caller, the police arrested

Appellant as the shooter.         Thereafter, Appellant made a signed, recorded

statement to the police, explaining that he shot Mr. Alvarado three or four

times following a verbal altercation.3

       Appellant filed a counseled pre-trial motion in limine seeking to

exclude the introduction of the 911 tape; however, the trial court denied the

motion. Thereafter, represented by counsel, Appellant proceeded to a jury

trial, during which the 911 recording from the anonymous caller was played.

At the conclusion of the trial, Appellant was convicted of the offenses

indicated supra, and on April 14, 2014, the trial court sentenced him to an

aggregate of eleven years to twenty-two years in prison. On April 24, 2014,

Appellant filed a timely, counseled post-sentence motion, which was denied
____________________________________________


2
  On October 30, 2015, the Commonwealth filed a “Motion For Leave to File
Brief Out of Time.” We grant the motion.
3
  In his police statement, Appellant indicated that, on the night in question,
he was with a man named Antwon Andrews, who shot the victim an
additional five or six times. However, since the only information the police
had concerning Mr. Andrews’ alleged participation was Appellant’s
uncorroborated statement, the police did not arrest Mr. Andrews. Trial Court
Opinion, filed 5/11/15, at 2 n.2.



                                           -2-
J-A01007-16


by operation of law on August 25, 2014.          This timely, counseled appeal

followed, and all Pa.R.A.P. 1925 requirements have been met.

       Appellant’s first contention is that, over defense counsel’s objection,

the trial court erred in admitting into evidence at trial the 911 tape from the

anonymous caller. In an undeveloped, one paragraph argument, Appellant

suggests the 911 tape was inadmissible hearsay, and since “there was no

required ‘sufficient corroboration,’” the tape did not qualify for the excited

utterance or the present sense impression exceptions. See Appellant’s Brief

at 8. In response, the Commonwealth avers Appellant has waived his claim,

and alternatively, the claim lacks merit.

       We agree with the Commonwealth that Appellant’s undeveloped,

conclusory argument hampers meaningful review. Commonwealth v.

McMullen, 745 A.2d 683 (Pa.Super. 2000) (holding blanket assertions of

error are insufficient to permit meaningful review). Moreover, we note that,

although the trial transcript indicates a 911 tape was played in open court

for the jury, N.T. Trial, 2/18/14, at 23, the recording was not properly

transcribed.4     Furthermore, we have not been provided with the tape.

____________________________________________


4
   The trial court acknowledged in its opinion that the 911 tape was not
properly transcribed. The trial court further indicated that “[a]s a courtesy,”
it listened to the tape and set forth in its opinion an “unofficial” transcription.
Trial Court Opinion, filed 5/11/15, at 4 n.3. In essence, according to the
trial court’s transcription, the 911 caller indicated that somebody had just
been shot at the intersection of Marshall and Tioga Streets, and the male
shooter drove off in a gray, four-door Buick. Id. at 4-5.



                                           -3-
J-A01007-16


Accordingly, we find Appellant’s challenge to the admissibility of the 911

tape to be waived.5 Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super.

2006) (“Our law is unequivocal that the responsibility rests upon the

appellant to ensure that the record certified on appeal is complete in the

sense that it contains all of the materials necessary for the reviewing court

to perform its duty.”) (citation omitted)).

       Appellant’s next contention is the trial court erred in ruling the

prosecutor’s     comment       during    closing   argument   did   not   constitute

prosecutorial misconduct.        Specifically, Appellant contends the prosecutor

committed misconduct when, during closing argument, he stated, ‘“Did Mr.

Coard (i.e., defense counsel) ask about violence when he questioned the

detective?’” Appellant’s Brief at 9. In response, the Commonwealth

advocates waiver of Appellant’s claim. We agree that the claim is waived.

       Preliminarily, we note that, though indicating closing arguments

occurred on February 20, 2014, Appellant has not provided this Court with
____________________________________________


5
  In any event, based on our review of the 911 call, as set forth in the trial
court’s opinion, we agree with the trial court that there was evidence
adduced at trial containing sufficient “other corroborating evidence” to justify
its admission. Trial Court Opinion, filed 5/11/15, at 7; Commonwealth v.
Hood, 872 A.2d 175 (Pa.Super. 2005) (suggesting that under either the
excited utterance or present sense impression exception there must be
sufficient independent corroborating evidence to permit admission). As the
trial court indicated, the 911 caller’s description of the fleeing vehicle
“mirrored” the description provided by another witness, and the police found
the victim at the intersection of Marshall and Tioga Streets, where the 911
caller indicated the shooting had occurred. See Trial Court Opinion, filed
5/11/15, at 7.



                                           -4-
J-A01007-16


the relevant page of the notes of testimony where the prosecutor’s

statement, as well as defense counsel’s necessary objection, may be

located. See Appellant’s Brief at 9. Moreover, we note Appellant provided

this Court with a truncated transcript from February 20, 2014, which

included only a portion of the prosecutor’s closing statement. Nevertheless,

we   independently       reviewed     the      portion   of   the   prosecutor’s   closing

statement, which was provided to this Court, and have been unable to locate

the prosecutor’s statement or defense counsel’s objection. Thus, Appellant’s

claim is waived on this basis. See Preston, 904 A.2d at 7 (“In the absence

of an adequate certified record, there is no support for an appellant's

arguments and, thus, there is no basis on which relief could be granted.”).

       Additionally, as the Commonwealth astutely notes, Appellant’s one

paragraph appellate argument is devoid of necessary development, thus

hampering      meaningful      review.      See    McMullen,        supra.   Simply   put,

Appellant’s bald, conclusory assertions of error do not warrant relief.6

       Appellant’s next contention is the trial court erred in permitting the

Commonwealth to “play the sympathy and emotion card” during its direct

examination of the victim’s father and erred in failing to give a curative

____________________________________________


6
  Assuming, arguendo, Appellant’s claim of prosecutorial misconduct during
closing arguments is not waived for appellate review, we note the trial court,
in its Pa.R.A.P. 1925(a) opinion, adequately addressed the claim, concluding
Appellant is not entitled to relief. See Trial Court Opinion, filed 5/11/15, at
10-12.



                                            -5-
J-A01007-16


instruction.    In     this    regard,    Appellant   contends   the   Commonwealth

improperly asked the victim’s father about the victim’s injuries and condition

after the shooting, as well as about the victim’s subsequent medical care at

home.    In response, the Commonwealth advocates waiver of Appellant’s

claim on the basis he presented an undeveloped, one paragraph argument.

      We       agree    with     the     Commonwealth    that    Appellant’s   lack   of

development hampers review.               See McMullen, supra.      In any event, we

have reviewed the direct examination of the victim’s father, Adriel Alvarado.

Appellant lodged three objections to Mr. Alvarado’s direct examination

testimony:

            Q: Sir, when you—did you actually physically touch [the
      victim] at that point?
            A: No.
            [DEFENSE COUNSEL]: Objection.
            THE WITNESS: No.
            [DEFENSE COUNSEL]: Relevance.
            THE COURT: Sustained.
            Q: When you saw [the victim], how close to [him] did you
      get?
            A: Like this. Like she’s right there.
            Q: Okay. And let me ask you the relevance of that. Did
      you see the injuries to [the victim].
            A: No. I just seen the pool of blood.
            Q: Okay. Describe where you saw the pool of blood on
      [the victim].
            [DEFENSE COUNSEL]: Objection.
            THE COURT: Basis?
            [DEFENSE COUNSEL]: Relevance, Your Honor.
            THE COURT: Counsel, what is the relevance.
            [PROSECUTOR]: The injuries to this man, we’re
      establishing the corpus through this man. That’s the relevance.
            THE COURT: Overruled.
            THE WITNESS: His upper torso all shot up.
                                         ***

                                            -6-
J-A01007-16


            Q: The condition of your son now, I’m going to go back to
      that date in just a second. The condition of your son now to the
      day that we are standing here in court and questioning, has your
      son from the day of the shooting been able to walk?
            A: No, he’s paralyzed from his chest down.
            Q: Okay. Let me ask you about the conditions in your
      home. Where is your son? Is your son at home with you now?
            A: Yes.
            [DEFENSE COUNSEL]: Objection. Relevance, Your Honor.
            THE COURT: Overruled.
            Q: And in terms of the care of your son, could you tell us,
      where does your son sleep?
            A: He’s in the living room in the corner in the hospital bed
      with all of his machines, but still with his air mattress.

N.T. Trial, 2/12/14, at 30-31, 38-39 (bold in original).

      With regard to Appellant’s first objection, the record reveals the trial

court sustained the objection. Contrary to Appellant’s assertion, Appellant

did not request a curative instruction. Commonwealth v. Bryant, 579 Pa.

119, 855 A.2d 726 (2004) (indicating the failure to request a curative

instruction constitutes a waiver of the claim of trial court error in failing to

issue a curative instruction).

      With regard to Appellant’s second and third objections, which were

based on relevancy, the record reveals the trial court overruled the

objections.

      It is well settled that questions concerning the admissibility of

evidence lies within the sound discretion of the trial court, and we will not

reverse the court’s decision on such a question absent a clear abuse of

discretion. Commonwealth v. Maloney, 876 A.2d 1002, 1006 (Pa.Super.

2005).   An abuse of discretion is not merely an error of judgment, but is

                                     -7-
J-A01007-16


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 or the record. Commonwealth

v. Cameron, 780 A.2d 688 (Pa.Super. 2001).

        Before any evidence is admissible in a criminal proceeding, it must be

competent and relevant. Commonwealth v. Freidl, 834 A.2d 638

(Pa.Super. 2003). Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the

evidence.” Pa.R.E. 401. “Although relevant, evidence may be excluded if its

probative value is outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay,

waste     of   time,   or   needless   presentation   of   cumulative   evidence.”

Commonwealth v. Williams, 91 A.3d 240, 242 (Pa.Super. 2014) (quoting

Pa.R.E. 403).

        In finding the evidence to be relevant, the trial court noted that Mr.

Alvarado’s testimony that he observed the victim lying in a pool of blood

immediately after the shooting, as well as the fact the victim was paralyzed

and living with assistance at his parents’ home some time after the shooting,

was relevant to show the victim suffered “serious bodily injury” for purposes

of aggravated assault.      See Trial Court Opinion, filed 5/11/15, at 14. We

find no abuse of discretion in this regard.


                                        -8-
J-A01007-16


      To the extent Appellant suggests the evidence was overly emotional

such that its probative value was outweighed by its prejudicial effect, we

agree with the trial court that any prejudice from the admission of the

evidence was not an unfair result of a jury’s potential emotional response

but was, instead, a fair result from the nature of Appellant’s act itself.

Accordingly, Appellant is not entitled to relief on this claim.

      Appellant’s final contention is the trial court erred in refusing to give a

“missing witness” jury instruction as it relates to the victim, who did not

testify at trial.   In response, the Commonwealth advocates waiver of the

claim. We agree with the Commonwealth that this claim has been waived

for appellate review.

      As indicated supra, Appellant has provided this Court with only a

portion of the notes of testimony from the February 20, 2014, proceedings.

While his pre-instruction request for, and the trial court’s denial of, the

“missing witness” instruction is included in the notes provided to us, see

N.T. Trial, 2/20/14, at 4-6, the trial court’s actual charge to the jury, and

any corresponding objection to the actual charge, are not included therein.

See Commonwealth v. Pressley, 584 Pa. 624, 632, 887 A.2d 220, 225

(2005) (“[T]he mere submission and subsequent denial of proposed points

for charge that are . . . omitted from the instructions actually given will not

suffice to preserve an issue, absent a specific objection or exception to the

charge or the trial court’s ruling respecting the points.”) (footnote omitted));


                                      -9-
J-A01007-16


Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014) (indicating

even where an appellant objects to an instruction during the charging

conference, the appellant must object to the actual instruction after it is

given in order to preserve claims of error); Preston, 904 A.2d at 7

(indicating it is the appellant’s responsibility to ensure this Court is provided

with the necessary materials to permit review).

       Additionally, Appellant’s one paragraph appellate argument is devoid

of   necessary     development,      thus      hampering   meaningful   review.   See

McMullen, supra.         Simply put, Appellant’s bald, conclusory assertions of

error with respect to the jury instruction do not warrant relief.7

       For all of the aforementioned reasons, we affirm. We direct the parties

to attach a copy of the trial court opinion in the event of further proceedings.

       Affirmed.




____________________________________________


7
  Assuming, arguendo, Appellant claim that the trial court erred in refusing
to instruct the jury with the “missing witness” charge as it relates to the
victim is not waived for appellate review, the trial court adequately
addressed the claim, concluding Appellant is not entitled to relief. See Trial
Court Opinion, filed 5/11/15, at 15-17.




                                          - 10 -
J-A01007-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2016




                          - 11 -
