J-A28036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HUN OH                                     :
                                               :
                       Appellant               :   No. 825 EDA 2019

       Appeal from the Judgment of Sentence Entered February 14, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0005108-2017


BEFORE:      PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED DECEMBER 23, 2019

        Appellant Hun Oh appeals from the Judgment of Sentence entered in

the Court of Common Pleas of Montgomery County on February 14, 2019,

following a non-jury trial. We affirm.

        The trial court set forth the facts and procedural history herein as

follows:

              A. Factual History

               On April 20, 2017, at approximately 3:40 pm; [Appellant’s]
        twelve year old son ("D.O")[1] returned from school to his home
        located at 500 Susan Circle, North Wales in Montgomery County.2
        After about five to ten minutes, [Appellant] came downstairs into
        the living room, visibly angry at the sight of D.O. on his phone.3
        [Appellant] angrily interrogated D.O. for a few brief minutes
        before D.O., fearing his father may attack him fled the escalating
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   D.O.’s date of birth is March 29, 2005.
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     situation, and ran up the stairs, with [Appellant] in pursuit,
     ultimately seeking refuge by locking himself in the bathroom.4
     [Appellant] unlocked the bathroom door with a key and upon
     entering, caused D.O. to fall back into the tub.5 [Appellant] then
     lunged at D.O., choking his neck with both hands.6 D.O. fought off
     his father by scratching his arm and then ran to his own bedroom.7
     [Appellant] followed D.O., cornering him on his bed, where he
     proceeded to punch D.O. repeatedly in the side of his stomach,
     before choking him again.8 D.O. screamed for [Appellant] to get
     off of him, and when [Appellant] let go, D.O. ran downstairs and
     fled for the home of his neighbor, Young Seun Lee ("Ms. Lee").9
     Upon answering the door, Ms. Lee immediately saw D.O. was
     crying, seemed to be in shock, and had a scratch mark under his
     right eye.10 When Ms. Lee asked D.O. what was wrong, he
     reported that his father had hit him and asked Ms. Lee to call his
     mother, Jackie Kim ("Ms. Kim").11 Immediately after calling Ms.
     Kim, Ms. Lee drove D.O. to Jaihson Medical Center, D.O.’s
     mother’s place of employment.12 Ms. Kim examined her son and
     discovered a mark on his right eye and noted that his face was
     swollen from the assault.13 After Ms. Kim's shift was over, she and
     D.O. waited outside for a while before returning home late that
     night.14 Upon returning home, [Appellant] screamed at D.O. and
     Ms. Kim that he was going to make them leave the house before
     Ms. Kim took D.O. to stay the night in the bedroom with her.15
            The next day at school, on April 21, 2017, D.O. shared
     details of the assault with two of his friends. Both of his friends
     and his teacher who overheard the conversation, insisted that
     D.O. report the incident to the school counselor, Toby Sterling
     ("Sterling").16 D.O. then reported to Sterling's office and shared a
     detailed account of the attack by his father. Sterling recalled that
     D.O. was visibly upset and experienced pain and difficulty in
     discussing the assault.17 Sterling filed a report with Child Line
     immediately following the conversation with D.O. and took D.O.
     to the school nurse to be examined.18 Marisa Green ("Ms. Green"),
     the school nurse, observed a light bruise on D.O.’s lower cheek
     and noted that D.O. suffered pain when moving his neck,
     swallowing, and speaking.19 Ms. Green immediately called Ms.
     Kim, advising her that D.O. should be taken to the hospital for a
     complete examination, which advice Ms. Kim followed by reporting
     to Grand View Hospital that same day of April 21, 2017.20 On April
     28, 2017, Ms. Kim petitioned for and was granted a temporary
     protection from abuse order on behalf of D.O.21 On April 21,2017,
     Detective Ricardo DeJesus (“Det. DeJesus”) reported to
     Montgomery County Police Department to interview D.O. and

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       afterwards proceeded to schedule a Mission Kids interview for D.O.
       on April 28, 2017.22

              B. Procedural History

              The Commonwealth ultimately charged [Appellant] with the
       following six (6) counts on Bill of lnformation 5108-17: Count One
       (Strangulation-F2,) Count Two (Simple Assault-M2,) Count Three
       (Recklessly Endangering Another Person ("REAP") -M2,) Count
       Four (Endangering the Welfare of a Child- Ml,) and Count Five
       (Harassment-S).23 On August 29, 2018, the case proceeded to a
       two-day bench trial after which the Court found [Appellant] guilty
       on the following: Count Two (Simple Assault-M2) and Count Four
       (Endangering the Welfare of a Child-Ml).24
              [Appellant] did not file a Post-Sentence Motion.[2] On March
       14, 2019, [Appellant] filed a timely Notice of Appeal challenging
       the imposition of his sentence. On April 9, 2019, [Appellant] filed
       a timely Concise Statement of Matters Complained of On Appeal,
       pursuant to Pa. R.A.P. 1925(b).
       ____
       2[N.T. 8/29/18, at 42, 46, 125, 167].
       3[N.T 8/29/18, at 47-48].
       4[N.T. 8/29/18, at 48-49].
       5 [N.T. 8/29/18, at 49-50].
       6[N.T 8/29/18, at 51-52].
       7[N.T. 8/29/18, at 51-52, at Ex. C-4].
       8[N.T. 8/29/18, at 55-61].
       9[N.T. 8/29/18, at 61-62].
       10[N.T. 8/29/18, at 91-92].
       11[Id.].
       12[N.T. 8/29/18, at 62-63].
       13[N.T. 8/29/18, at 105].
       14[N.T. 8/29/18, at 107].
       15[Id.].
       16[N.T. 8/29/18, at 66].
       17[N.T. 8/29/18, at 135-36].
       18[N.T. 8/29/18, at 137-138, at Ex C-7].
       19[N.T. 8/29/18, at 144-145, at Ex C-8].


____________________________________________


2 Appellant was sentenced to five years’ probation and ordered to have no
contact with D.O. unless permitted by a custody order. Appellant also was
required to pay the costs of prosecution, attend anger management classes,
and take part in parenting classes.

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J-A28036-19


      20[N.T. 8/29/18, at 107-109].
      21[N.T. 8/29/18, at 110].
      22[N.T. 8/29/18, at 156-157, at Ex C-1 I].
      2318 Pa. C.S. §§ 2718(a)(I), 2701(a)(l), 2705, 4304(a)(l),

      2709(a)(I).

Trial Court Opinion, filed 7/9/19, at 1-4.

      In his brief, Appellant presents the following issues for this Court’s

review:
      A.   Whether the [t]rial [c]ourt erred in admitting testimony
      from Karen Dougherty, a nurse, whose testimony was based on
      hearsay.

      B.    Whether the failure of defense counsel at trial to present
      exculpatory evidence constitutes ineffective assistance of counsel.

Brief for Appellant at 4.

      Preliminarily, we could find Appellant’s claims waived for his failure to

present them properly in his concise statement. As this Court recently stated:

      [I]ssues not raised in a Rule 1925(b) statement will be deemed
      waived for review. An appellant's concise statement must properly
      specify the error to be addressed on appeal. In other words, the
      Rule 1925(b) statement must be “specific enough for the trial
      court to identify and address the issue [an appellant] wishe[s] to
      raise on appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2
      (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956
      (2007). “[A] [c]oncise [s]tatement which is too vague to allow the
      court to identify the issues raised on appeal is the functional
      equivalent of no [c]oncise [s]tatement at all.” Id. The court's
      review and legal analysis can be fatally impaired when the court
      has to guess at the issues raised. Thus, if a concise statement is
      too vague, the court may find waiver. Commonwealth v. Scott,
      212 A.3d 1094, 1112 (Pa.Super. 2019) (citation omitted).

Commonwealth v. Sexton, 2019 WL 5540999 at *4 n. 3 (Pa.Super. Oct. 28,

2019).




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      Herein, Appellant’s concise statement reads like a narrative wherein he

mentions the trial court’s allegedly erroneous admission of Ms. Dougherty’s

testimony and trial counsel’s ineffectiveness. This inarticulate framing

arguably resulted in a concise statement that is not specific enough for the

trial court to identify and consider the issues Appellant has raised on appeal.

However, because this has not fatally impaired the trial court’s legal analysis

in its Rule 1925(a) Opinion, we will not deem his issues to be waived for failure

to preserve them properly in his concise statement. Notwithstanding,

Appellant has waived his initial claim.

      Pennsylvania Rule of Appellate Procedure 302 unequivocally provides

that 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).      This is a fundamental rule of

appellate practice. Our Supreme Court has stated:

      [I]t is axiomatic that issues are preserved when objections are
      made timely to the error or offense. See Commonwealth v.
      May, 584 Pa. 640, 887 A.2d 750, 761 (2005) (holding that an
      “absence of contemporaneous objections renders” an appellant's
      claims waived); and Commonwealth v. Bruce, 207 Pa.Super. 4,
      916 A.2d 657, 671 (2007), appeal denied, 593 Pa. 754, 932 A.2d
      74 (2007) (holding that a “failure to offer a timely and specific
      objection results in waiver of” the claim). Therefore, we shall
      consider any issue waived where Appellant failed to assert a timely
      objection.

Commonwealth v. Baumhammers, 599 Pa. 1, 23, 960 A.2d 59, 73 (2008).

      Herein, after stipulating to Ms. Dougherty’s expertise in forensic and

emergency nursing on voir dire, Appellant never objected on the record to her

testimony either on hearsay or on any other grounds during direct

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J-A28036-19


examination. N.T. 8/29/18, at 20-33.             In fact, after Ms. Dougherty was

subjected to a thorough cross-examination, the Commonwealth asked that

Ms. Dougherty be excused. Id. at 33-39. The trial court questioned whether

defense counsel had any objection, to which he replied “No Objection. Thank

you.” Id. at 39. In light of the foregoing, we find this issue is waived.3




____________________________________________


3  Even if Appellant properly had preserved this issue for our review by
contemporaneously raising an objection, we note his appellate brief contains
substantial defects which prevent meaningful review and, therefore, would
warrant waiver of this claim. For one, the brief is not divided into as many
parts as there are questions to be decided, nor does it contain separate and
distinctive headings for each question involved. In addition, Appellant’s
argument is comprised of bald assertions with no citations to and analysis of
any relevant legal authority to support them. See Appellant’s Brief at 8-14;
Pa.R.A.P. 2119(a),(b)(stating, inter alia, the argument “shall be divided into
as many parts as there are questions to be argued. . .” and must contain
“discussion and citation of authorities as are deemed pertinent.”); see also
Commonwealth v. Johnson, 889 A.2d 620, 623 (Pa.Super. 2005) (“[A] brief
containing such defective argument that appellate review is precluded has the
same result as filing no brief at all.”) (citation omitted); Commonwealth v.
Franklin, 823 A.2d 906, 910 (Pa.Super. 2003) (“A brief containing argument
like this has the same result as filing no brief at all.”).
       Moreover, Appellant’s discussion asserts new claims not presented in his
concise statement or delineated in the questions presented portion of his brief.
For example, he asserts his rights under the Civil Rights Act of 1964 and the
Fourteenth Amendment to the United States Constitution were violated by the
Commonwealth’s failure to provide an adequate interpreter. See Brief for
Appellant at 12. Thus, Appellant's patently defective brief deprives us of any
meaningful basis upon which to review his initial claim. We, therefore, would
conclude that this first question presented is waived on this basis as well.




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       In his second issue, Appellant presents numerous challenges to

counsel’s effectiveness. In its Rule 1925(a) Opinion, the trial court found it

was precluded from reviewing this claim on direct appeal due to the

inadequacy of the record before it. Trial Court Opinion, filed 7/9/19, at 6. We

agree.

       In Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562 (2013), the

Pennsylvania      Supreme       Court     reaffirmed   its   previous   holding   in

Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002) that, absent

certain circumstances, claims of ineffective assistance of counsel should be

deferred until collateral review under the Post Conviction Relief Act. Holmes,

79 A.3d at 576. As the Court later explained:

       We recently held in Holmes that claims of ineffective assistance
       of counsel litigated after our decision in Grant are not generally a
       proper component of a defendant's direct appeal. In Holmes, this
       Court reaffirmed the general rule of deferral established in Grant,
       and disapproved of expansion of the so-called Bomar[4] exception,
       which allowed for the presentation of ineffectiveness claims on
       direct appeal if the trial court held an evidentiary hearing and
       disposed of the ineffectiveness claims in its opinion. This Court in
       Holmes limited the Bomar exception to its pre-Grant facts. We
       further recognized two exceptions to the Grant deferral rule, both
       falling within the discretion of the trial court. First, we held that
       trial courts retain discretion, in extraordinary circumstances, to
       entertain a discrete claim of trial counsel ineffectiveness if the
       claim is both apparent from the record and meritorious, such that
       immediate consideration best serves the interest of justice.
       Second, we held that trial courts also have discretion to entertain
       prolix claims of ineffectiveness if there is a good cause shown and
       the unitary review thus permitted is accompanied by a knowing
____________________________________________


4 Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), cert.
denied, 540 U.S. 1115, 124 S.Ct. 1053 (2004).

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      and express waiver by the defendant of the right to pursue a first
      PCRA petition.

Commonwealth v. Arrington, 624 Pa. 506, 86 A.3d 831, 856–57 (2014).

See also Commonwealth v. Radecki, 180 A.3d 441, 471–72 (Pa.Super.

2018).

     In the instant case, Appellant did not file a post-sentence motion

challenging counsel’s ineffectiveness, nor did he execute a PCRA waiver. He

does not otherwise attempt to show “good cause” in his undeveloped appellate

brief as to why his claims of ineffective assistance of counsel should be decided

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

at this time and is permitted to raise any ineffectiveness claims on collateral

review without prejudice.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/19




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