J-S52014-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
            v.                             :
                                           :
CURTIS JOHN MULHERN,                       :
                                           :
                  Appellant                :           No. 1546 MDA 2016

         Appeal from the Judgment of Sentence September 1, 2016
           in the Court of Common Pleas of Lackawanna County,
             Criminal Division, No(s): CP-35-CR-0002478-2015

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED OCTOBER 18, 2017

      Curtis John Mulhern (“Mulhern”) appeals from the judgment of

sentence imposed following his convictions of firearms not to be carried

without a license and criminal attempt to commit illegal sale or transfer of a

firearm. See 18 Pa.C.S.A. §§ 6106(a)(1), 901. We affirm.

      The trial court set forth the relevant underlying facts as follows:

      On August 31, 2015[,] [Mulhern] went to the home of Vincent
      Hutchinson [(“Hutchinson”)], which is located in the city of
      Scranton. He inquired about trading his .32 caliber handgun for
      three (3) bricks of heroin. (N.T. 4/13/16 at pg. 36-37). Taking
      the witness stand, [] Hutchinson stated that at the time he was
      approached by [Mulhern], he was working as confidential
      informant for the Lackawanna County Drug Task Force. []
      Hutchinson stated he had been working with county detectives
      for two (2) years. (N.T. 4/13/16 at pg. 33). [] Hutchinson
      testified that he had two prior criminal convictions[:]       a
      conviction for receiving stolen property from 2008 and a
      conviction for drug paraphernalia from 2013. (N.T. 4/13/16 at
      pg. 31).     He testified he was paid fifty dollars ($50) in
      compensation for his work as a CI in [Mulhern’s] case[;] in the
      past[,] however[,] he received a reduction of charges. (N.T.
      4/13/16 at pg. 33). [] Hutchinson stated that he had been a
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     drug addict for seventeen (17) years and credited the detectives
     with saving his life and helping him get into AA and rehab. (N.T.
     4/13/16 at pg. 35).

     [] Hutchinson testified he contacted Dunmore Detective Corey
     [Condrad (“Detective Condrad”)] and told him about [Mulhern’s]
     inquiry. (N.T. 4/13/16 at pg. 37). [Hutchinson] testified he met
     with Detective [Condrad] at the Dunmore Police Station, and he
     was “consensualized” to facilitate a recorded phone call between
     he and [Mulhern]. (N.T. 4/13/16 at pg. 37-38). [Hutchinson]
     was searched upon arrival at the Dunmore Police Station, as per
     department protocol, with no contraband found. (N.T. 4/13/16
     at pg. 39-40).

     At that point[,] a phone call was placed and recorded between []
     Hutchinson and [Mulhern]. (N.T. 4/13/16 at pg. 41). The police
     were able to intercept and record the following conversation
     between the two:

       [Detective Condrad]: This is [Detective Condrad] with the
       Dunmore Police Department. Certification number A-4912.
       This phone call is in reference to case number 15-1291T.
       Intercept number 57C-15-210. The CI will be placing a
       phone call to [] Mulhern at phone number (410) 336-
       [****]. The time now is approximately 1225 hours. The
       date [is] August 31st, 2015.

       [Mulhern]: Hello?

       [Hutchinson]: Yo, Curt.

       [Mulhern]: Yo.

       [Hutchinson]:    Alright, listen.   Can you talk or no?   You
       good?

       [Mulhern]: Yeah.

       [Hutchinson]: Alright. Listen. I’m with my boy now. But
       due [sic], he does not wanna come in there. So, this is
       what we’re gonna do. So, I made it a lot easier for the both
       of you guys. The both of you guys are fucking nuts.
       Alright. I’m coming back down [to] the house. We’ll walk
       like two blocks down the street. I’ll get the, you know, the


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       three you want, the three things. The bricks. And then
       fucking I’ll jump in the car with him and then you go one
       way fucking and then I’ll jump in the car with him and go
       the other way with the gun so this way everybody’s happy.
       So []is that, is that?

       [Mulhern]: So, wait. What again?

       [Hutchinson]: I’m gonna meet you at the house. You know
       what I mean? So everything is good. We’ll put the fucking,
       the gun in the backpack so this way we look like college
       kids. We’ll walk down a couple of blocks. He’ll pull up
       cause he doesn’t wanna pull in there cause it’s hot down
       there. It’s like there’s cops. You know? A black guy in that
       neighborhood. And then I’ll just–he’ll just hand [m]e the
       three bricks. He’ll see me put it in your hand and then
       fucking I’ll hop in the car with you with the gun.

       [Mulhern]: Alright just come-alright just come here then.

       [Hutchinson]: Alright. I’ll be right there in about-give me
       like five, ten minutes and then we'll go and get it done.
       Alright?

       [Mulhern]: Alright.

       [Hutchinson]: Yo. Do you have that point still for me so I
       can get high with ya?

       [Mulhern]: Yeah.

       [Hutchinson]: Alright. You’re my man, brother. Later, love
       ya.

       [Mulhern]: Alright. Bye.

       [Hutchinson]: Alright. Bye.

     Commonwealth Exhib[i]t #3.

     Following the telephone call, Detective [Condrad] dropped []
     Hutchinson off a few blocks from his house to facilitate a
     meeting with [Mulhern].      (N.T. 4/13/16 at pg. 44).        []
     Hutchinson walked from the detective’s car to [Mulhern’s] house.


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     (N.T. at pg. 44). He stated he and [Mulhern] walked five or six
     blocks before being arrested by Detectives [Condrad] and
     [Harold] Zech, as well as other members of the Drug Task Force.
     (N.T. 4/13/16 at pg. 45). [Mulhern] was placed into a different
     patrol car than [] Hutchinson.      (N.T. 4/13/16 at 45).    []
     Hutchinson stated that he was driven to a spot few blocks away,
     searched again, and paid fifty dollars ($50) for his work and
     released. (N.T. 4/13/16 at pg. 46).

     Next, Detective [] [Condrad] took the stand. (N.T. 4/13/16 at
     pg. 68). Detective [Condrad] stated that on August 31, 2015, []
     Hutchinson made contact with him and advised [that Mulhern]
     wished to trade his .32 caliber handgun for three (3) bricks of
     heroin. (N.T. 4/13/16 at pg. 72). Detective [Condrad] stated
     that he then picked up [] Hutchinson and brought him to the
     Dunmore Police Station, where he searched [] Hutchinson. (N.T.
     4/13/16 at pg. 72). In addition, he received permission from []
     Hutchinson to intercept and record a conversation between the
     [Hutchinson] and [Mulhern]. (N.T. 4/13/16 at pg. 72). He then
     recorded a phone call between the two men, wherein [Mulhern]
     confirmed he still wished to trade his gun for heroin. (N.T.
     4/13/16 at pg. 75). Detective [Condrad] instructed [] Hutchinson
     to have [Mulhern] carry the gun in a backpack while they walked
     to the meet location for the safety of bystanders and all those
     involved. (N.T. 4/13/16 at pg. 75). Detective [Condrad] then
     transported [] Hutchinson back to his neighborhood so he could
     meet with [Mulhern]. (N.T. 4/13/16 at pg. 76).

     At that point, a perimeter was set up by the arrest team. (N.T.
     4/13/16 at pg. 76). While walking from [his] home to the meet
     location, [] Hutchinson was carrying an audio transmitter which
     allowed the detectives to listen to the conversation between
     [Mulhern] and [] Hutchinson. (N.T. 4/13/16 at pg. 76-77). A
     couple of blocks from [Mulhern’s] house, the officers arrested
     [Mulhern] and [] Hutchinson. (N.T. 4/13/16 at pg. 77). A .32
     caliber Thames Arm Revolver and five (5) rounds of ammunition
     were located in the backpack [Mulhern] was carrying. (N.T.
     4/13/16 at pg. 77). Detective [Condrad] stated [] Hutchinson
     was released from custody a couple of blocks from the point of
     arrest and paid fifty dollars ($50). (N.T. 4/13/16 at pg. 83).

     After being taken into custody and transported back to the
     Dunmore Police Station, Officer Richardson of the Dunmore
     Police Department checked the database to confirm that


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      [Mulhern] did not have a license to carry a concealed firearm.
      (N.T. 4/13/16 at pg. 84).

      Detective Tom Davis was the next witness to testify. (N.T.
      4/13/16 at pg. 89). He testified that he test[-]fired the .32
      caliber Thames Arm Revolver on April 11, 2016. (N.T. 4/13/16
      at pg. 91-92).     He performed a physical inspection of the
      firearm, dry fired the gun, and then shot two (2) of the
      recovered rounds of ammunition into a target. (N.T. 4/13/16 at
      pg. 93-94). His inspection revealed that the .32 caliber Thames
      Firearm was fully operational. (N.T. 4/13/16 at pg. 96).

      [Mulhern] then testified as a witness in his own defense. (N.T.
      4/13/16 at pg. 109). He testified it was [] Hutchinson who
      solicited him to sell his gun in exchange for heroin, that it was []
      Hutchinson who set up the deal between an alleged drug dealer
      and [Mulhern] to trade the gun, and that it was [] Hutchinson
      who pushed for the deal to happen. (N.T. 4/13/16 at pg. 114-
      120). He testified that at one point he exclaimed “F this, I’m not
      doing this,” and turned around to walk away. (N.T. 4/13/16 at
      pg. 122). He testified as he had turned and walked in the
      opposite direction, [] Hutchinson stated “You have to or he said
      he’s going to kill my daughter, Dude.” (N.T. 4/13/16 at pg.
      122). [Mulhern] claims that he changed direction and resumed
      the plan to sell the gun out of fear for the safety of []
      Hutchinson’s daughter. (N.T. 4/13/16 at pg. 123). He further
      testified at the time of his arrest he saw [] Hutchinson’s
      daughter in the back of one of the patrol cars on the scene of the
      arrest. (N.T. 4/13/16 at pg. 124).

      In rebuttal, the Commonwealth recalled Detective [Condrad] to
      the stand.     (N.T. 4/13/16 at pg. 129).     He testified [that
      Mulhern] and [] Hutchinson were kept under constant
      surveillance. (N.T. 4/13/16 at pg. 130). He testified [Mulhern]
      never deviated his course or turned around or attempted to walk
      in another direction. (N.T. 4/13/16 at pg. 130). Finally, he
      testified that neither [] Hutchinson’s daughter nor any other
      female was on the scene at the time of [Mulhern’s] arrest. (N.T.
      4/13/16 at pg. 130).

Trial Court Opinion, 1/27/17, at 2-7.




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       Following a jury trial, Mulhern was found guilty of the above-

mentioned crimes. The trial court sentenced Mulhern to an aggregate prison

term of twenty to forty months, followed by one year of probation. Mulhern

filed a pro se Notice of Appeal.    This Court subsequently ordered the trial

court to hold a Grazier1 hearing to determine whether Mulhern wished to

proceed pro se on appeal.        The trial court held a Grazier hearing on

November 4, 2016, after which it appointed Mulhern counsel for his appeal.

Thereafter, on December 7, 2016, the trial court ordered Mulhern to file a

Pa.R.A.P. 1925(b) concise statement within twenty-one days. Mulhern filed

a Rule 1925(b) Concise Statement on December 30, 2016,2 and the trial

court issued an Opinion.

       On appeal, Mulhern raises the following questions for our review:

       1. Did [Mulhern] sustain his burden of proof on the defense of
          entrapment such that his convictions should be overturned
          and all charges dismissed?

       2. Did the trial court abuse[] its discretion or err as a matter of
          law by precluding [Mulhern] from examining the confidential
          informant, [] Hutchinson, on the nature of his prior criminal
          offenses[,]    and   the   victims     thereof[,]   where   the
          Commonwealth had opened the door to such examination?

Brief for Appellant at 5.

       Prior to addressing Mulhern’s claims, we must determine whether he




1   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

2 While the Concise Statement was dated December 28, 2016, it was
docketed on December 30, 2016.


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properly preserved them for our review. It is well-settled that when a trial

court orders an appellant to file a Rule 1925(b) concise statement, he must

comply to preserve his claims on appeal.         See Commonwealth v. Lord,

719 A.2d 306, 309 (Pa. 1998). Where “an appellant in a criminal case was

ordered to file a [s]tatement and fails to do so, such that the appellate court

is convinced that counsel has been per se ineffective, the appellate court

shall remand for the filing of a [s]tatement nunc pro tunc and for the

preparation and filing of an opinion by the judge.”        Pa.R.A.P. 1925(c)(3).

However, “[w]hen counsel has filed an untimely Rule 1925(b) statement and

the trial court has addressed those issues[,] we need not remand and may

address   the   merits   of   the   issues   presented.”   Commonwealth v.

Thompson, 39 A.3d 335, 340 (Pa. Super. 2012).

      Here, on December 7, 2016, the trial court ordered Mulhern to file a

Rule 1925(b) concise statement within twenty-one days. Mulhern’s counsel

was per se ineffective for filing the Concise Statement on December 30,

2016. However, because the trial court addressed the claims in Mulhern’s

Concise Statement in its Opinion, we will address the merits of Mulhern’s

issues. See id.

      In his first claim, Mulhern contends that his convictions should be

overturned because he established his entrapment defense as a matter of

law. Brief for Appellant at 13, 22. Mulhern argues that he was induced by

Hutchinson’s incessant requests to sell a firearm for heroin they could



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mutually use.    Id. at 14.   Mulhern asserts that Hutchinson solicited drugs

from him and suggested the sale of a firearm to a collector known to

Hutchinson so that they could obtain heroin. Id. at 18-19; see also id. at

18 (wherein Mulhern points out that he and Hutchinson were heroin addicts,

friends, and neighbors).      Mulhern claims that he was illegally induced to

leave his home with the firearm by Hutchinson and Detective Condrad. Id.

at 19-20, 21; see also id. at 16-18 (noting that appeals to friendship

between a confidential informant and defendant demonstrated methods of

persuasion which create a substantial risk that a defendant would purchase

drugs as a favor to the informant).

      The Crimes Code defines the defense of entrapment, in relevant part,

as follows:

      (a) General rule.--A public law enforcement official or a person
      acting in cooperation with such an official perpetrates an
      entrapment if for the purpose of obtaining evidence of the
      commission of an offense, he induces or encourages another
      person to engage in conduct constituting such offense by either:

      (1)     making knowingly false representations designed to induce
              the belief that such conduct is not prohibited; or

      (2)     employing methods of persuasion or inducement which
              create a substantial risk that such an offense will be
              committed by persons other than those who are ready to
              commit it.

      (b) Burden of proof.--Except as provided in subsection (c) of
      this section, a person prosecuted for an offense shall be
      acquitted if he proves by a preponderance of evidence that his
      conduct occurred in response to an entrapment.

18 Pa.C.S.A. § 313.


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     Pennsylvania courts apply an “objective” test for entrapment[.]
     …

     [T]he test for entrapment has shifted in emphasis from a
     consideration of a particular defendant’s readiness to commit
     crime, a subjective test, to an evaluation of the police conduct,
     an objective test, to determine whether there is a substantial
     risk that the offense will be committed by those innocently
     disposed.    To determine whether an entrapment has been
     perpetrated in any particular case, therefore, the inquiry will
     focus on the conduct of the police and will not be concerned with
     the defendant’s prior criminal activity or other indicia of a
     predisposition to commit crime.

     … [T]he objective approach conceives the entrapment defense
     as aimed at deterring police wrongdoing. The defense provides
     a sanction for overzealous and reprehensible police behavior
     comparable to the exclusionary rule. The focus of the defense is
     on what the police do and not on what kind of person the
     particular defendant is—whether he is innocent or predisposed to
     crime.

     In their zeal to enforce the law, government agents may not
     originate a criminal design, implant in an innocent person’s mind
     the disposition to commit a criminal act and then induce
     commission of the crime so that the government may prosecute.

     Where police do no more than afford appellant an opportunity to
     commit an illegal act, their actions are not considered sufficiently
     outrageous police conduct to support an entrapment defense.
     Thus, the availability of the entrapment defense under the
     statute does not preclude the police from acting so as to detect
     those engaging in criminal conduct and ready and willing to
     commit further crimes should the occasion arise. Such indeed is
     their obligation.

     … [T]he determination of whether police conduct constitutes
     entrapment is for the jury, unless the evidence of police conduct
     clearly establishes entrapment as a matter of law.... Thus, after
     the defense of entrapment has been properly raised, the trial
     court should determine the question as a matter of law wherever
     there is no dispute as to the operative facts relating to the
     defense.



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     Importantly, the court may also consider, based upon the
     operative facts, whether it can reject an entrapment defense as
     a matter of law.

     Operative facts are …[t]hose that are necessary for [a]ppellant
     to prove by a preponderance of the evidence that he was
     entrapped.   Under the objective test for entrapment, these
     would be facts that go to the course of conduct of a government
     officer or agent that would fall below standards to which
     common feelings respond, for the proper use of government
     power.

Commonwealth v. Marion, 981 A.2d 230, 238–39 (Pa. Super. 2009)

(citations, quotation marks, and some paragraph breaks omitted).

     Upon review of the record and testimony, the operative facts as to

whether Mulhern and Hutchinson are friends, and who initiated the sale of

the firearm, are in dispute.   Compare N.T., 4/13/16, at 35-37 (wherein

Hutchinson testified that Mulhern repeatedly came to his house to talk, and

that on the day in question, Mulhern came to his house to inquire whether

Hutchinson knew anyone who would trade three bricks of heroin for a

firearm), with id. at 114-16 (wherein Mulhern testified that Hutchinson

would always come to his house, and that Hutchinson solicited Mulhern

about selling his firearm for heroin).   Thus, the trial court submitted the

entrapment defense for consideration to the jury for it to resolve the

disputed facts and weigh the relationship in light of all the communications

and contacts. See Commonwealth v. Mance, 619 A.2d 1378, 1381 (Pa.

Super. 1993) (holding that the entrapment defense was properly submitted

to jury where operative facts as to whether the defendant was induced into



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participating in the scheme were disputed).       After an instruction on the

entrapment defense, the jury rejected the entrapment defense and

convicted Mulhern on the charged firearm offenses. See Commonwealth

v. Talbert, 129 A.3d 536, 543 (Pa. Super. 2015) (noting that the fact-finder

was free to believe all, part, or none of the evidence presented at trial).

      Moreover, contrary to Mulhern’s assertions, the actions taken by

Hutchinson and the police did not establish entrapment as a matter of law.

See Commonwealth v. Weiskerger, 554 A.2d 10, 14 (Pa. 1989) (noting

that to prevail on an entrapment defense as a matter of law, the defendant

must prove that the evidence of entrapment was so overwhelming that there

could be no other conclusion). Here, there was no evidence that Hutchinson

was manipulative, attempted to overcome Mulhern’s will, or made false

representations to Mulhern.     Indeed, Mulhern testified that he had been

using opiate drugs for two years and had used drugs the day before he was

arrested.   N.T., 4/13/16, at 112-13.         Moreover, Mulhern had ample

opportunity to not participate in the drug scheme, to notify authorities, or

just to sever his relationship with Hutchinson.    Mulhern declined to do so.

Given these facts, we conclude the police simply gave Mulhern an

opportunity to trade his firearm for heroin, and the evidence was not

sufficiently outrageous to support an entrapment defense as a matter of law.

See Marion, 981 A.2d at 241 (noting that even where the informant used

his friendship with appellant to induce the sale of drugs, the case is entirely



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devoid of any further egregious conduct to constitute entrapment as a

matter of law as police did not induce the crime, but merely afforded the

appellant an opportunity to sell drugs); Commonwealth v. Zingarelli, 839

A.2d 1064, 1075 (Pa. Super. 2003) (concluding that the police’s conduct in

providing an opportunity without attempting to overcome appellant’s reason

does not rise to level of outrageousness necessary to find entrapment as

matter of law). Accordingly, Mulhern’s first claim is without merit.

      In his second claim, Mulhern contends that the trial court abused its

discretion by precluding him from examining Hutchinson, a paid informant,

on the nature and victims of his prior criminal offenses during cross-

examination.   Brief for Appellant at 22, 25-26.    Mulhern argues that this

evidence was relevant and probative as Hutchinson had portrayed himself as

an individual who was saved by detectives from his drug addiction, and thus

vouched for his own credibility and character. Id. at 22. Mulhern asserts

that attacking Hutchinson’s credibility was central to his entrapment

defense. Id. at 22, 25.

            The admission of evidence is committed to the sound
      discretion of the trial court, and a trial court’s ruling regarding
      the admission of evidence will not be disturbed on appeal unless
      that ruling reflects manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support to be clearly
      erroneous.

Commonwealth v. Akrie, 159 A.3d 982, 986–87 (Pa. Super. 2017)

(citation omitted).

      The trial court addressed Mulhern’s claim as follows:


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      [Mulhern argues that] the [trial c]ourt abused its discretion or
      erred as a matter of law by precluding [Mulhern] from examining
      the confidential informant, [] Hutchinson, on the nature of his
      prior criminal offenses and his victims, alleging the
      Commonwealth had opened the door to such examination. The
      Commonwealth introduced evidence that [] Hutchinson had two
      prior criminal convictions[:] a conviction for receiving stolen
      property from 2008 and a conviction for drug paraphernalia from
      2013. (N.T. 4/13/16 at pg. 31). On cross-examination, defense
      counsel wanted to ask [] Hutchinson who the victim of his
      conviction   for    receiving   stolen  property   was.      The
      Commonwealth objected and th[e trial c]ourt sustained the
      objection. (N.T. 4/13/16 at pg. 49-56). Under the Pennsylvania
      Rules of Evidence a prior conviction is per se admissible for the
      purpose of attacking credibility if the conviction “involved
      dishonesty or false statement.” Pa.R.E. [] 609(a). The only
      exception to this rule is where “a period of more than ten years
      has elapsed since the date of the conviction or of the release of
      the witness from the confinement imposed for that conviction,
      whichever is the later date, unless the court determines, in the
      interests of justice, that the probative value of the conviction
      supported by the specific facts and circumstances substantially
      outweighs its prejudicial effect.” Pa.R.E. [] 609(b). Here, the
      Commonwealth concedes [] Hutchinson’s conviction for receiving
      stolen property can be properly admitted as evidence of crimen
      falsi. However, the court may exclude relevant evidence if its
      probative value is outweighed by a danger of one or more of the
      following: unfair prejudice, confusing the issues, misleading the
      jury, undue delay, wasting time, or needlessly presenting
      cumulative evidence. Pa.R.E. 403. Whether the identification of
      the victim [of] [] Hutchinson’s crime is admissible is a question
      of relevancy. As such, th[e trial c]ourt determined that the
      introduction of [] Hutchinson’s crimen falsi was properly limited
      in scope to the date and type of offense and the introduction of
      any other information would tend to confuse the issues at hand
      and mislead the jury. Therefore, the evidence was inadmissible
      and this issue is without merit and should be denied.

Trial Court Opinion, 1/27/17, at 8-9.

      We agree with the sound reasoning of the trial court, and conclude

that it did not abuse its discretion in denying Mulhern’s request. See id.;



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see also Commonwealth v. Baez, 720 A.2d 711, 724-25 (Pa. 1998)

(concluding that the trial court did not abuse its discretion in limiting

evidence regarding an eyewitness’s abuse of cocaine, as such evidence

“would have served to unduly distract the attention of the jury from the

main inquiry[,] and required the ascertainment of an unnecessary quantity

of subordinate facts[.]” (quotation marks omitted)); Akrie, 159 A.3d at 988

(noting that “trial judges retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such cross-examination

based on concerns about, among other things, harassment, and prejudice,

confusion of the issues, the witness’ safety, or interrogation that is repetitive

or only marginally relevant....”) (citation omitted)).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/18/2017




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