J-A30026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

DUSTIN ANDREW SCOTT

                        Appellant                  No. 464 MDA 2016


           Appeal from the Judgment of Sentence March 3, 2016
            In the Court of Common Pleas of Huntingdon County
            Criminal Division at No(s): CP-31-CR-0000411-2015

BEFORE: BOWES, OLSON and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                           FILED APRIL 11, 2017

      Appellant, Dustin Andrew Scott, appeals from the judgment of

sentence entered on March 3, 2016, as made final by the denial of his post-

sentence motion on March 14, 2016. After careful consideration, we affirm.

      The trial court summarized the factual background of this case as

follows.

      On August 25, 2015, Kristin Huey (Huey) was dating [Appellant].
      Huey was three months pregnant with [Appellant’s] child. . . .
      On the night of August 25, 2015, Huey received a [tele]phone
      call from [Appellant], and [Appellant] told her that he had
      admitted himself into the hospital because he had consumed
      bath salts that he believed were laced with bleach. On the night
      in question, [Appellant] was high and paranoid while under the
      influence of the amphetamines and “research chemicals” that he
      had ingested. After [Appellant] left the hospital, Huey and
      [Appellant] drove back to his one-bedroom apartment in
      Huntingdon Borough.

      Huey and [Appellant] sat on the porch to smoke and talk.
      [Appellant] was acting paranoid and kept a barbell in his hand
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     during the conversation. When they went to bed, [Appellant]
     brought the barbell with him and left it in the doorway. After
     going to bed, Huey received a text message that upset and
     angered [Appellant]. An argument then ensued.

     Huey testified she pushed [Appellant], and [Appellant] then
     shoved her onto a double air mattress. Huey related she took
     three steps towards [Appellant] and hit him with a right hook to
     the left side of his face causing him to stumble back. . . .
     [Appellant] came toward Huey and hit her with a right hook to
     the left side of her jaw while she was seated on the air
     mattress. . . .

     Huey immediately said she knew that her jaw was broken
     because she could not shut her mouth. Huey called her mother
     who took her to the hospital. Dr. [Jennifer] Holt, the emergency
     room physician at J.C. Blair Memorial Hospital, examined her and
     advised that Huey’s jaw was offset from the left to the right. A
     CT scan and x-rays were taken, and Huey was given pain
     medication and antibiotics. Dr. Holt testified that Huey had
     received a comminuted fracture on the left side of the jaw,
     explaining that the jaw had been broken into several pieces. . . .
     Huey also had an opening in the gum line which indicated an
     open fracture, where the fracture caused enough damage that
     the tissue was opened and the bone was exposed. . . .

     Huey was referred to Dr. Elliot Bilofsky, a board certified
     otolaryngologist. . . . On September 2, 2015, Dr. Bilofsky
     performed an open reduction internal fixation of Huey’s
     fractures, and he also placed her teeth in occlusion. . . . Dr.
     Bilofsky testified that with her jaw wired, Huey would have a
     reduction in her ability to pronounce words and her diet was
     limited to liquids through a straw. Dr. Bilofsky said the only way
     for Huey to open her mouth would be to cut the wires, and he
     had concerns for nausea and vomiting because of her pregnancy.
     After her jaw was wired shut, Huey could not open her mouth,
     eat food normally, or [chew normally]. Huey had [a] special
     liquid diet that lasted nine weeks.

Trial Court Opinion, 5/11/16, at 1-3 (paragraph numbers and certain

paragraph breaks omitted).




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        The procedural history of this case is as follows. On October 2, 2015,

the    Commonwealth      charged   Appellant   via   criminal   information   with

aggravated assault,1 simple assault,2 and harassment.3           On January 19,

2016, Appellant’s trial commenced.      Appellant testified on his own behalf.

He admitted to striking Huey; however, he testified that he lacked the

required mens rea for aggravated assault.

        Appellant admitted ingesting bath salts on the evening in question.

Appellant stated that his drug dealer laced the bath salts with bleach.       The

Commonwealth proceeded to cross-examine Appellant regarding the source

of the bath salts, including the name of the drug dealer. Appellant refused

to divulge the name of his drug dealer. The Commonwealth also questioned

Appellant regarding his fear of the police that evening.          At the ensuing

charging conference, Appellant asked for an “uncharged crimes” instruction.

N.T., 1/19/16, at 156. Appellant also requested jury instructions regarding

a single blow being insufficient for aggravated assault and assault by mutual

consent. At the conclusion of the charge, Appellant’s counsel renewed his

objection to the lack of instructions regarding: (1) other bad acts evidence, 4


1
    18 Pa.C.S.A. § 2702(a)(1).
2
    18 Pa.C.S.A. § 2701(a)(1).
3
    18 Pa.C.S.A. § 2709(a)(1).
4
  The certified record indicates Appellant’s counsel stated that “considering
the [Commonwealth’s] statement that through his instead of drug dealer
(Footnote Continued Next Page)


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(2) a single blow being insufficient for aggravated assault, and (3) assault by

mutual consent.

      The jury convicted Appellant of aggravated assault and simple assault.

On March 3, 2016, Appellant was sentenced to an aggregate term of 7 to 14

years’ imprisonment.         On March 9, 2016, Appellant filed a post-sentence

motion.    On March 14, 2016, the trial court denied the post-sentence

motion. This timely appeal followed.5

      Appellant presents five issues for our review

    1. Did the [trial court] err in denying [Appellant’s] motions for a
       directed verdict, considering that the evidence demonstrated
       without contradiction that [Appellant] struck the victim only
       once, did not pursue the victim after the single strike, did not
       show any signs of further aggression, and did not make use of a
       readily available weapon?


                       _______________________
(Footnote Continued)
caution for charged crimes instruction.” N.T., 1/19/16, at 177. We believe
that this is a transcription error; however, we glean from this remark that
Appellant was renewing his request for an other bad acts instruction.
5
  On March 18, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On April 5, 2016, Appellant filed his concise statement.
On May 11, 2016, the trial court issued its Rule 1925(a) opinion. On July 8,
2016, with the trial court’s leave, Appellant filed an amended concise
statement.

The trial court contends that Appellant waived his third issue because his
concise statement was too vague. We disagree. Appellant specifically
stated that the trial court erred in “allowing questioning, testimony, and
argument . . . [relating] to the individual who sold drugs to [Appellant and
Appellant’s] alleged paranoia regarding the police.” Appellant’s Amended
Concise Statement, 7/8/16, at 1. Accordingly, we conclude that Appellant
preserved his third issue in his concise statement.



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     2. Did the [trial court] err in refusing to provide [Appellant’s]
        requested language in its instruction to the jury regarding
        [a]ggravated [a]ssault, which was a correct statement of the
        current law?

     3. Did the [trial court] err in allowing questioning, testimony, and
        argument that were unfairly prejudicial to [Appellant], including
        references to the individual who sold drugs to [Appellant] that
        had been taken on the night of the incident, and references to
        [Appellant’s] alleged paranoia regarding the police?

     4. Did the [trial court] err in refusing to instruct the jury regarding
        the limited use for which the jury may consider evidence that
        [Appellant] may have committed crimes with which he had not
        been charged, particularly considering the emphasis placed on
        such evidence by the Commonwealth?

     5. Did the [trial court] err in refusing to instruct the jury regarding
        the theory of [a]ssault by [m]utual [c]onsent, despite evidence
        supporting the charge?

Appellant’s Brief at 5-6.6

        In his first issue, Appellant argues that the evidence was insufficient to

convict him of aggravated assault.           “Whether sufficient evidence exists to

support the verdict is a question of law; our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Walls, 144 A.3d

926, 931 (Pa. Super. 2016), appeal denied, 470 EAL 2016 (Pa. Feb. 23,

2017) (citation omitted). “In assessing Appellant’s sufficiency challenge, we

must determine whether, viewing the evidence in the light most favorable to

the    Commonwealth      as   verdict      winner,     together   with    all    reasonable

inferences    therefrom,     the   trier   of   fact   could   have      found    that   the


6
    We have re-numbered the issues for ease of disposition.



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Commonwealth proved [each] element of the crime beyond a reasonable

doubt.” Commonwealth v. Ansell, 143 A.3d 944, 949 (Pa. Super. 2016)

(citation omitted).       “The evidence need not preclude every possibility of

innocence and the fact-finder is free to believe all, part, or none of the

evidence presented.”        Commonwealth v. Ford, 141 A.3d 547, 552 (Pa.

Super. 2016) (citation omitted).

        In   order   to   convict   an   individual   of   aggravated   assault,   the

Commonwealth must prove he or she (1) caused, or attempted to cause,

serious bodily injury to another (2) intentionally, knowingly or recklessly

under circumstances manifesting extreme indifference to the value of human

life.   18 Pa.C.S.A. § 2702(a)(1).       In this case, Appellant concedes that he

inflicted serious bodily injury upon Huey.            He argues, however, that he

lacked the requisite mens rea for aggravated assault.

        Appellant relies heavily upon this Court’s decision in Commonwealth

v. Roche, 783 A.2d 766 (Pa. Super. 2001), in support of his argument that

a single punch to the head is insufficient to prove the requisite mens rea for

aggravated assault.        What Appellant ignores, however, is that this Court,

sitting en banc, abrogated Roche. See Commonwealth v. Burton, 2 A.3d

598, 605 (Pa. Super. 2010) (en banc), appeal denied, 32 A.3d 1275 (Pa.

2011) (Roche “does not comport with our holding herein.”). As this Court

explained in Burton, “[w]hen a victim actually sustains serious bodily injury,

the Commonwealth can, but does not necessarily have to, establish specific



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J-A30026-16


intent to cause such harm. . . . [T]he statute’s intent requirement can be

met if the defendant acts recklessly under circumstances manifesting an

extreme indifference to human life.” Id. at 602.

        As our Supreme Court recognized in Commonwealth v. Alexander,

383 A.2d 887 (Pa. 1978), this Court in Burton relied on the fact that the

defendant “was significantly stronger and larger than” the victim when

affirming Burton’s conviction for aggravated assault. Burton, 2 A.3d at 603.

In this case, the jury reasonably found that Appellant was significantly

stronger and larger than Huey.         The jury was able to view both Appellant

and Huey in the courtroom to determine their relative sizes.                    Thus,

Appellant’s    arguments    relating    to   the   size   and   strength   of   Huey

notwithstanding, the jury believed that there was a sufficient size and

strength difference between Appellant and Huey that his single punch to the

jaw was so reckless as to demonstrate an extreme indifference to human

life.   Accordingly, we conclude that the evidence was sufficient to convict

Appellant of aggravated assault.

        In his second issue, Appellant argues that the trial court should have

instructed the jury that a single blow to the head, without more, is

insufficient to convict a defendant of aggravated assault. As this Court has

explained:

        When evaluating the propriety of jury instructions, this Court will
        look to the instructions as a whole, and not simply isolated
        portions, to determine if the instructions were improper. We
        further note that, it is an unquestionable maxim of law in this


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      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Roane, 142 A.3d 79, 95 (Pa. Super. 2016) (internal

alteration and citation omitted).

      As Appellant concedes, the trial court “instructed the jury [] on the

elements of the offense and the definitions of the relevant mental states[.]”

Appellant’s Brief at 19-20, citing N.T., 1/19/16, at 168-170.       Appellant’s

requested jury instruction would have only confused the issue for the jury

because it was not a complete statement of the law. Cf. Commonwealth

v. Pugh, 101 A.3d 820, 824 (Pa. Super. 2014) (en banc), appeal denied,

117 A.3d 296 (Pa. 2015) (“A jury charge is erroneous if the charge as a

whole is inadequate, unclear, or has a tendency to mislead or confuse the

jury rather than clarify a material issue.”). Specifically, Appellant’s proposed

instruction did not explain that whether Appellant “was disproportionately

larger or stronger than [Huey]” was relevant in determining if Appellant

acted recklessly.    Alexander, 383 A.2d at 889; see Defense Exhibit 1

(Appellant’s proposed instruction).     Therefore, the incomplete instruction

proposed by Appellant would have confused the jury and the trial court did

not abuse its discretion in declining to give that instruction.

      In his third issue, Appellant argues that the trial court improperly

admitted irrelevant and prejudicial evidence. “[Q]uestions of the admission



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and exclusion of evidence are within the sound discretion of the trial court

and will not be reversed on appeal absent an abuse of discretion.”

Commonwealth v. Caple, 121 A.3d 511, 517 (Pa. Super. 2015) (citation

omitted).

      Appellant argues that the Commonwealth’s questions relating to his

paranoia were     irrelevant.    This argument is waived.        Pursuant to

Pennsylvania Rule of Appellate Procedure 302, “Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a).    With respect to evidentiary rulings, “Error may not be

predicated upon a ruling that admits [ ] evidence unless . . . a timely

objection, motion to strike[,] or motion in limine appears of record, stating

the specific ground of objection, if the specific ground was not apparent from

the context[.]” Pa.R.Evid. 103(a)(1). In this case, Appellant’s objection to

the paranoia question was that the Commonwealth misstated the evidence.

N.T., 1/19/17, at 137-138. Appellant did not object on relevancy grounds.

See id.     As Appellant did not object on relevancy grounds, his relevancy

argument is waived for appellate purposes.            See Commonwealth v.

Parker, 104 A.3d 17, 29 (Pa. Super. 2014), appeal denied, 117 A.3d 296

(Pa. 2015) (finding waiver because the defendant made a relevancy

objection at trial instead of a hearsay objection).

      Appellant also argues that the Commonwealth’s questions relating to

the name of his drug dealer were irrelevant.            Appellant objected on



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relevancy grounds at trial. See N.T., 1/19/17, at 133. “Evidence is relevant

if: (a) it has any tendency to make a fact more or less probable than it

would be without the evidence; and (b) the fact is of consequence in

determining the action.” Pa.R.Evid. 401.

          We agree with Appellant that the name of his drug dealer was

irrelevant.     It was immaterial if Appellant’s drug dealer was Joe Smith or

John Doe.       The only thing that was relevant was that Appellant took bath

salts on the night in question.            This fact was elicited before the

Commonwealth began questioning Appellant regarding the name of his drug

dealer. Accordingly, we conclude that the trial court abused its discretion in

overruling Appellant’s objection.       We address whether this error was

harmless infra.

          In his fourth issue, Appellant argues that the trial court erred by

refusing to give Pennsylvania State Standard Jury Instruction (Criminal)

3.08, which addresses evidence of other offenses as substantive proof of

guilt.7     In its Rule 1925(a) opinion, the trial court states that Appellant

waived his objection to the absence of this instruction.        See Trial Court

Opinion, 5/11/16, at 5.

          To preserve a claim that a jury instruction was erroneous, a defendant

must object to the charge at trial. See Commonwealth v. Spotz, 84 A.3d

7
 As noted at pages 4-5, supra, Appellant raises two distinct challenges. He
challenges both the admissibility of the other bad acts evidence and the trial
court’s failure to give a limiting instruction.



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294, 318 n.18 (Pa. 2014) (citations omitted); Pa.R.A.P. 302(b) (“A general

exception to the charge to the jury will not preserve an issue for appeal.

Specific exception shall be taken to the language or omission complained

of.”); Pa.R.Crim.P. 647(B) (“No portions of the charge nor omissions from

the charge may be assigned as error, unless specific objections are made

thereto before the jury retires to deliberate.”). As our Supreme Court has

explained:

      The pertinent rules, therefore, require a specific objection to the
      charge or an exception to the trial court’s ruling on a proposed
      point to preserve an issue involving a jury instruction. Although
      obligating counsel to take this additional step where a specific
      point for charge has been rejected may appear counterintuitive,
      as the requested instruction can be viewed as alerting the trial
      court to a defendant’s substantive legal position, it serves the
      salutary purpose of affording the court an opportunity to avoid
      or remediate potential error, thereby eliminating the need for
      appellate review of an otherwise correctable issue.

Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005) (footnotes and

citations omitted); see Commonwealth v. Garang, 9 A.3d 237, 244–245

(Pa. Super. 2010) (citations omitted); Commonwealth v. Moury, 992 A.2d

162, 178 (Pa. Super. 2010) (citations omitted).

      In this case, Appellant requested a limiting instruction addressed to

evidence of other offenses at the charging conference. See N.T., 1/19/16,

at 156. Furthermore, he objected to the omission of the instruction after the

trial court charged the jury.     See id. at 177.      Accordingly, Appellant

preserved this issue for appellate review.




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      As to the merits of Appellant’s argument, as noted above we review

the trial court’s refusal to give an instruction for an abuse of discretion.

Roane, 142 A.3d at 95.       The trial court admitted evidence that Appellant

committed uncharged crimes on the evening of the assault, i.e., violations of

the Controlled Substance, Drug, Device, and Cosmetic Act, 35 P.S. § 780-

101 et seq.8

      Pennsylvania Rule of Evidence 404 provides, in relevant part,

“[e]vidence of a crime, wrong, or other act . . . may be admissible [in order

to prove] motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.”       Pa.R.Evid. 404(b)(1-2).    “When

evidence is admitted for this purpose, the party against whom it is offered is

entitled, upon request, to a limiting instruction.”         Pa.R.Evid. 404 cmt.

(citation omitted); Commonwealth v. Solano, 129 A.3d 1156, 1178 (Pa.

2015), citing Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa.

2002) (“Where evidence of a defendant’s prior bad acts is admitted, the

defendant is entitled to a jury instruction that the evidence is admissible

only for a limited purpose.”). Thus, under Rule 404(b), a defendant has an




8
  Specifically, it is illegal to “intentional[ly] purchase or knowing[ly] recei[ve]
in commerce . . . any controlled substance, other drug or device from any
person not authorized by law to sell, distribute, dispense or otherwise deal in
such controlled substance, other drug or device.” 35 P.S. § 780-113(a)(19).
Although Appellant did not cite to the exact statutory provision in question,
his requested jury instruction and arguments on appeal clearly implicate
section 780-113(a)(19).



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absolute right to a limiting instruction if other bad acts evidence is admitted

at trial.

       The Commonwealth argues that Appellant was not entitled to the

limiting instruction because he confirmed the truthfulness of the other bad

acts evidence during his testimony.      This is not a basis that defeats a

defendant’s right to a limiting instruction under our evidentiary rules.

Instead, Rule 404(b) specifies that if other bad acts evidence is admitted

into evidence, the defendant is entitled, as of right, to a limiting instruction

on how the jury may consider that evidence.           See Commonwealth v.

Weiss, 81 A.3d 767, 798 (Pa. 2013) (internal quotation marks and citation

omitted;    emphasis   added)   (Other   bad   acts   “evidence   must[   ]   be

accompanied by a cautionary instruction which fully and carefully explains to

the jury the limited purpose for which that evidence has been admitted.”);

Commonwealth v. Billa, 555 A.2d 835, 842–843 (Pa. 1989), abrogated on

other grounds, Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003)

(“The [other bad acts] evidence was admissible, but it should not have been

admitted without restriction and without the court’s clear and complete

instruction to the jury to consider it only for its limited evidentiary

purpose[.]”).   The Commonwealth does not cite, nor are we aware of,

Pennsylvania case law which holds that if a defendant admits to other bad

acts on the witness stand, he or she is not entitled to a limiting instruction

under Rule 404. Thus, we conclude that the trial court abused its discretion



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by declining to give a limiting instruction with respect to the other bad acts

evidence admitted at trial.

      Having determined that the trial court erred in permitting the

Commonwealth to question Appellant regarding the name of his drug dealer

and in refusing the requested limiting instruction, we turn to whether those

errors were harmless.    Cf. Commonwealth v. Mitchell, 135 A.3d 1097,

1105 (Pa. Super. 2016), appeal denied, 145 A.3d 725 (Pa. 2016)

(proceeding to a harmless error analysis after determining that the trial

court erred in admitting evidence); Commonwealth v. Sandusky, 77 A.3d

663, 669 (Pa. Super. 2013) (proceeding to a harmless error analysis after

determining that the trial court erred in failing to give an instruction). “An

error is harmless if it could not have contributed to the verdict, or stated

conversely, an error cannot be harmless if there is a reasonable possibility

the error might have contributed to the conviction. The Commonwealth has

the burden of proving harmless error beyond a reasonable doubt.”

Commonwealth v. McClure, 144 A.3d 970, 975–976 (Pa. Super. 2016)

(ellipsis and citation omitted). We conclude in this case that the errors were

harmless.

      Appellant freely admitted to ingesting tainted bath salts on the evening

in question. Moreover, he did not seek a limiting instruction with respect to

his ingestion of the tainted bath salts.     Instead, he only sought a limiting

instruction with respect to the Commonwealth’s questions relating to his



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violation of 35 P.S. § 780-113(a)(19), i.e., his failure to divulge the name of

his drug dealer. The prejudicial effect of this evidence was minimal for two

reasons. First, Appellant admitted during his testimony that the bath salts

were laced with bleach. Any juror would understand that a pharmacist, or

other individual licensed to dispense drugs, would not lace the substance

with bleach.   Second, bath salts, or 3,4-methylenedioxypyrovalerone, is a

schedule I controlled substance.   21 C.F.R. § 1301.11(d)(37).     Schedule I

drugs can only be dispensed for government-approved research projects.

United States v. Oakland Cannabis Buyers' Co-op., 532 U.S. 483, 493

n.5 (2001). As such, because Appellant conceded using bath salts, and did

not request a limiting instruction on such use, the jury was aware that he

obtained the bath salts from a nefarious source.        The Commonwealth’s

questioning and Appellant’s refusal to name such a source, therefore, did not

provide the jury with probative or exceedingly prejudicial information.

      Compared to the very minimal prejudice resulting from the lack of a

limiting instruction and allowing the Commonwealth to question Appellant

regarding the name of his drug dealer, the evidence that Appellant had the

requisite mens rea for aggravated assault was strong. As noted above, the

jury was able to see Appellant and Huey testify during trial and believed that

there was a sufficient size and strength difference between Appellant and

Huey that his single punch to the jaw was so reckless as to demonstrate an

extreme indifference to human life. Accordingly, we conclude that the trial



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J-A30026-16


court’s errors in permitting the Commonwealth to question Appellant

regarding the name of his drug dealer and in not giving the requesting

limiting instruction was harmless.

      In his final issue, Appellant contends that the trial court erred by

failing to instruct the jury on assault by mutual consent. Appellant does not

include any argument in the argument portion of his brief as to why he was

entitled to such an instruction. As such, he waived this issue. See Pa.R.A.P.

2119(a).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/11/2017




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