J-A14016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MAURICE PHILLIP EVERAGE,                   :
                                               :
                       Appellant.              :   No. 442 WDA 2018


          Appeal from the Judgment of Sentence, February 27, 2018,
                in the Court of Common Pleas of Blair County,
            Criminal Division at No(s): CP-07-CR-0000348-2017.


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED AUGUST 27, 2019

        Maurice Phillip Everage appeals from the judgment of sentence imposed

after a jury convicted him of two counts of aggravated assault, simple assault,

two counts of recklessly endangering another person, two counts of terroristic

threats, person not to possess a firearm, and carrying a firearm without a

license.1 We affirm.

        The trial court summarized the trial testimony and other evidence

presented by the Commonwealth as follows:

              On December 9, 2016 at approximately 2:21 AM Altoona
           City Police patrolmen [Steven] Miksich and [Derek] Swope
           were dispatched to a report of a pistol whipping assault.
           They found the victim, Forever Trich, lying on the porch

____________________________________________


1   18 Pa.C.S.A. §§ 2702, 2701, 2705, 2706, 6105, and 6106, respectively.
J-A14016-19


       bleeding from the face. She could barely speak due to her
       injuries.

           [Ms. Trich] testified that she and Trisha Mitchell had been
       walking to Sheetz to get sandwiches and were proceeding
       home around 2 AM when they noticed a male across the
       street on the opposite side staring at them repeatedly.
       When they looked at him he asked, “. . . what was us bitches
       staring at?” They said nothing and tried to keep walking,
       and the man lifted up his shirt to show them he had a gun
       and said, “what is up?” and crossed the street. When he
       lifted up his shirt [Ms. Trich] could see the end of his firearm
       in his pants. She could see the grip of the firearm. The man
       walked up close behind them. They turned around. The
       man got in [Ms.] Mitchell’s face. She was trying to call the
       police and he told her to put the phone down. He swatted
       the phone out of her hand. [Ms. Trich] told him to leave her
       the F alone.

           [Ms. Trich] was on the phone at the time and the man
       came over to her and ripped the phone out of her hand and
       threw it across the street. He then pulled out his gun and
       put it to her forehead. He said, “Who do you bitches think
       you are talkin’ to – talking like that gets bitches capped out
       here.” And he said he was from Philly and he was going to
       show them what was up. Ms. Mitchell put her hand on his
       shoulder and said please don’t do this we had a really bad
       day already, we have two kids at home. [The man] acted
       like he was walking away, and turned around and
       backhanded [Ms. Trich] with the gun. Her testimony was
       that she blacked out. He walked away.

          [Ms. Trich] identified the gun as a semi-automatic
       weapon. She picked out [Everage] from a photo lineup as
       her attacker. The photo lineup consisted of eight individuals
       who looked similar to each other. It was entered into
       evidence as Commonwealth Exhibit number two. [Ms.
       Trich] immediately identified [Everage] from Exhibit number
       two as soon as she saw it. She also identified [Everage] in
       the courtroom as her attacker.

          Dr. Matthew Bouchard was called as an expert witness in
       the field of emergency trauma medicine. He testified that
       [Ms. Trich] sustained a laceration or cut that went
       completely through her lip, and had a small laceration to her


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           gum, as well as swelling and bruising. She had cuts on her
           cheek area with significant bruising and swelling.         He
           testified that these injuries would cause pain. He indicated
           that these injuries would cause difficulty in speaking. He
           testified that a blow with a firearm to that area of the face
           could result in serious bodily injury. It was his opinion to a
           reasonable degree of medical certainty that bodily injury
           was caused to [Ms. Trich], and that it as possible or likely
           for serious bodily injury to be caused to [Ms. Trich] if she
           was struck in the face with a firearm.

Trial Court Opinion, 6/6/18, at 5-7 (citations omitted).

      Prior to trial, the trial court determined that Everage wished to proceed

pro se, and he acted in this capacity during jury selection.         Despite the

recommendation of the Commonwealth, Everage also declined to sever the

firearm violations from the other charges. In addition to the above summary,

we note that the Commonwealth introduced photos of Ms. Trich’s injuries, and

that the parties stipulated that Everage had two prior felony convictions, which

would have precluded him from having the ability to obtain or possess a

firearm.

      Following his convictions, the trial court sentenced Everage to an

aggregate term of 10½ to 21 years of imprisonment. Everage did not file a

post-sentence motion. This timely, counseled appeal followed. Both Everage

and the trial court have complied with Pa.R.A.P. 1925.

      Everage raises the following issues:

           i.    The evidence was insufficient to support the verdicts
                 for aggravated assault attempt to cause serious bodily
                 injury; aggravated assault cause bodily injury; simple
                 assault recklessly endangering another person (two
                 counts); terroristic threats (two counts); [person] not


                                       -3-
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              to possess a firearm; carrying a firearm without a
              license for the following reasons:

                 a. The evidence was insufficient to          prove
                    [Everage] was present at the incident.

                 b. The evidence was insufficient to prove a firearm
                    was used in the incident.

       ii.    The evidence was against the weight of the verdict as
              the evidence presented does not sustain the verdicts
              of guilty for aggravated assault attempt to cause
              serious bodily injury; aggravated assault cause bodily
              injury; simple assault; recklessly endangering another
              person (two counts); terroristic threats (two counts);
              [person] not to possess a firearm; carrying a firearm
              without a license as the evidence does not prove
              beyond a reasonable doubt:

                 a. [Everage] was present at the scene.

                 b. A firearm was used in the incident.

                 c. There was an attempt to commit serious bodily
                    injury.

       iii.   [Everage] is entitled to a new trial where in its
              opening, the Commonwealth specifically stated the
              prior felonies [he] was convicted of, including
              aggravated assault, the specific charge faced in this
              matter.   This resulted in unnecessary prejudice
              towards [Everage] and was prosecutorial misconduct.

       iv.    [Everage] is entitled to a new trial as the
              Commonwealth used Detective [Terry] Merritts to
              bolster the testimony of Ms. Trich and Ms. Mitchell.
              [Detective] Merritts was seated at the counsel table
              throughout the trial and was called following the
              testimony of both women to support their testimony
              and explain the discrepancies in each of their
              testimony. This testimony was more prejudicial than
              probative.

       v.     [Everage] is entitled to a new trial as the expert
              testimony of Dr. Bouchard was duplicative and was
              not necessary as the opinion to which he testified was


                                   -4-
J-A14016-19


                 not about a complex matter or an issue beyond
                 common knowledge.

          vi.    [Everage] is entitled to a new trial as the photographs
                 of [Ms. Trich’s] injuries were shown to the jury as
                 Exhibit 2 were too prejudicial.

Everage’s Brief at 10-11 (excess capitalization omitted).2

       In his first issue, Everage challenges the sufficiency of the evidence

supporting his convictions. Our standard of review 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 a fact-finder to find every
          element of the crime beyond a reasonable doubt. In
          applying [the above] test, 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
          [trier] of fact while passing upon the credibility of the
          witnesses and the weight of the evidence produced, is free
          to believe all, part or none of the evidence.
____________________________________________


2 In his brief, Everage raised three additional issues. See Everage’s Brief at
11. Everage states that he is no longer pursuing his claim of prosecutorial
misconduct during the Commonwealth’s closing. See id. at 36. As to his final
two issues, involving Ms. Mitchell’s crimen falsi convictions and trial counsel’s
alleged ineffectiveness, Everage acknowledges that the claims must await
collateral review. See id. at 45-46. Accordingly, we have renumbered his
issues.


                                           -5-
J-A14016-19



Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations

omitted). “Because evidentiary sufficiency is a question of law, our standard

or review is de novo and our scope of review is plenary.” Commonwealth v.

Diamond, 83 A.3d 119, 126 (Pa. 2013).

       In support of this claim, Everage does not cite or argue any specific

element of any of the crimes for which the jury convicted him. Instead, he

asserts that the evidence did not sufficiency establish him as the perpetrator

and that the evidence did not establish that the perpetrator used a firearm to

strike Ms. Trich.3

       The trial court found no merit to Everage’s claim regarding his identity

as the perpetrator:

             [Everage] makes a general complaint that the evidence
          was insufficient to prove that he was present at the incident.
          However the testimony was that [Ms. Trich] picked him out
          of a photographic lineup, and she identified him in person in
          court. This is sufficient evidence [Everage] was present at
          the incident.

Trial Court Opinion, 6/6/18, at 11-12. Our review of the record supports the

trial court’s conclusions. Indeed, Ms. Trich not only testified that Everage was

present when the incident occurred, but also specifically identified him in court

as her attacker. N.T., 9 /11/17, at 95. In addition, we note that Ms. Trich
____________________________________________


3 Everage makes no additional argument in support of this claim that the
Commonwealth failed to identify him as the perpetrator of the assault.
Instead, he focuses entirely on the firearm convictions. See Everage’s Brief
at 18-19. Everage also misidentifies Ms. Mitchell as suffering the injuries
inflicted by his assault. Id. at 19.


                                           -6-
J-A14016-19



and Ms. Mitchell both testified that Everage struck Ms. Trich in the face with a

gun. Thus, Everage’s sufficiency challenge fails.

      In his second issue, Everage asserts that “[t]he evidence was against

the weight of the verdict as the evidence presented does not sustain the

verdicts of guilty[.]” Everage’s Brief at 10. In making this assertion, Everage

conflates a challenge to the sufficiency of the evidence with a claim challenging

the weight of the evidence. “A motion for new trial on the grounds that the

verdict is contrary to the weight of the evidence, concedes that there is

sufficient evidence to sustain the verdict.” Commonwealth v. Widmer, 744

A.2d 745, 752 (Pa. 2000) (citations and footnote omitted).

      In his summary of argument, Everage contends:

         The verdict was such that it shocked the conscience and
         should be overturned. The evidence which was presented
         to the Jury was so prejudicial and unfair, [Everage] did not
         receive a fair trial. As the verdict was based on all of the
         evidence presented to the Jury, the verdict is against the
         weight of the admissible evidence.

Everage’s Brief at 16. To the extent Everage raises a true weight claim, the

claim is waived because he failed raise it in a post-sentence motion or

otherwise before the trial court. Pa.R.Crim.P. 607; see also Commonwealth

v. Kennedy, 151 A.2d 1117, 1129 (Pa. Super. 2016) (reiterating that a

weight of the evidence claim must be preserved either in a post-sentence

motion, by a written motion before sentencing, or orally prior to sentencing).

“Failure to properly preserve the claim will result in waiver even if the trial



                                      -7-
J-A14016-19



court addresses the issue in its opinion.” Commonwealth v. Lofton, 57 A.3d

1270, 1273 (Pa. Super. 2012).4 Thus, Everage’s second issue fails.

       In his third issue, Everage asserts, “the trial court erred in allowing

inadmissible and prejudicial evidence to be presented to the Jury in the [form

of] allowing the Commonwealth to introduce [his] prior criminal conviction

[during the prosecutor’s opening statement] of Aggravated Assault to the Jury

without further instructions [to] the Jury[.]” Everage’s Brief at 16-17.

       Everage’s claim involves an allegation of prosecutorial misconduct. Our

standard of review is well settled:

          [P]rosecutorial misconduct does not take place unless the
          unavoidable effect of the comments at issue was to
          prejudice the jurors by forming in their minds a fixed bias
          and hostility toward the defendant, thus impeding their
          ability to weigh the evidence objectively and render a true
          verdict. . . . In reviewing a claim of improper prosecutorial
          comments, our standard of review is whether the trial court
          abused its discretion. When considering such a claim, our
          attention is focused on whether the defendant was deprived
          of a fair trial, not a perfect one, because not every
          inappropriate remark . . . constitutes reversible error.

____________________________________________


4  Everage raised the weight claim for the first time in his Rule 1925(b)
statement. The trial court found that he “[did] not allege specific facts in
support of this claim.” Trial Court Opinion, 6/6/18, at 12. Nevertheless, the
trial court stated, “The totality of the evidence at trial resulted in verdicts that
were not against the weight of the evidence, were not contrary to the
evidence, and did not shock the conscience.” Id. Upon review, we conclude
that the trial court did not abuse its discretion when it denied Everage’s weight
claim. See Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004)
(citing Commonwealth v. Widmer, supra) (explaining “appellate review of
a weight of the evidence claim normally involves examining the trial court’s
exercise of discretion in its review of the fact-finder’s determinations”).


                                           -8-
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Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super. 2012) (citations

omitted). “Prosecutorial misconduct, however, will not be found where the

comments were based on evidence or proper inferences therefrom or were

only oratorical flair.”   Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.

Super. 2005) (citation omitted). In order to evaluate whether comments were

improper, we must look to the context in which they were made. Id.

      According to Everage, the Commonwealth committed prosecutorial

misconduct during its opening statements to the jury. As our Supreme Court

has summarized:

         The principles applicable to such a claim are well
         established. Remarks in a prosecutor’s opening statement
         must be fair deductions from the evidence which he in good
         faith plans to introduce and not mere assertions designed to
         inflame the passions of the jury. The prosecution is not,
         however, required to prove conclusively all statements
         made during the opening [statement]. As long as there is
         a good faith and reasonable basis to believe that a certain
         fact will be established, reference may properly be made to
         it during the opening [statement]. Even if an opening
         [statement] is improper, relief will be granted only where
         the unavoidable effect is to so prejudice the finders of fact
         as to render them incapable of objective judgment.

Commonwealth v. Jones, 610 A.2d 931, 938-39 (Pa. 1992) (citations

omitted).

      Here, the trial court explained the context in which the prosecutor

referred to Everage’s prior aggravated assault conviction during his opening

statement to the jury:

            [Everage’s] next claim is that he is entitled to a new trial,
         stating that in its opening, the Commonwealth specifically

                                      -9-
J-A14016-19


       stated the prior felonies he was convicted of including
       aggravated assault, the specific charge faced in this matter.
       He claims that this resulted in unnecessary prejudice
       towards him and was prosecutorial misconduct.

          In the preliminary stages of this case, [Everage] was a
       self-represented litigant. On the first day of jury trial, he
       requested that his standby counsel take over and represent
       him as counsel in chief. The court did a colloquy on this
       point[.]

           When the trial began, [Everage] had not come to any
       stipulation with the Commonwealth about how his prior
       criminal record as a person prohibited from possessing a
       firearm would be presented to the jury. That criminal record
       would be a necessary element of the Commonwealth’s case
       in regards to the [firearm violations].

           In his opening statement, the prosecutor said, “And you
       will hear in this case, [Everage] has a criminal history that
       prevents him from the possession of a firearm,” and “In this
       case, the Commonwealth alleges that [Everage] has an
       adjudication as a juvenile for aggravated assault and a
       conviction as an adult for possession with intent to deliver a
       controlled substance.”     At that point, defense counsel
       objected. He stated, “I am objecting to the listing of the
       prior record. I offered a stipulation that [Everage] was a
       person who would not be eligible to possess a firearm. That
       stipulation was declined. What - - bringing out the prior
       record is too prejudicial to what [the prosecutor] needs to
       prove for his case.”

          The Commonwealth responded that [Everage] had every
       opportunity before trial to sever the two firearm charges
       from the remainder of the charges levied against him.
       [Everage] had declined to sever the charges.            The
       [prosecutor] noted that he did not get into [Everage’s]
       entire criminal record, but only listed the two convictions
       that he intended to present to the jury in the case as
       elements of the firearms crimes, through the witness
       Detective [Norman] Young.

          The Commonwealth asserted that it had a case that stood
       for the proposition that the Commonwealth does not have
       to accept the stipulation as to the criminal record, and that
       the court can allow that evidence and give an instruction to

                                   - 10 -
J-A14016-19


         the jury that they may only view that evidence for the
         limited purpose of whether the person can or cannot possess
         a firearm.

Trial Court Opinion, 6/6/18, at 12-14 (citations to record omitted).

      The trial court then explained why it overruled defense counsel’s

objection, and noted that cautionary instructions were given:

            The court overruled the objection for the reason that the
         opening statement was not an evidentiary phase of the trial,
         (the court had just given an opening instruction in which it
         told the jury that the statements of the attorneys were not
         evidence) and further, the court believed that the
         Commonwealth does have a right to advance proof of the
         elements of the charges of possession of firearm prohibited
         to explain to the jury why [Everage] is prohibited from
         possessing a firearm.       The court further asked the
         Commonwealth to explain that the only purpose for which
         the jury would be allowed to consider those convictions
         would be for [Everage’s] legal authority or ability to possess
         a firearm, and that they could not consider them for any
         other reason. The Commonwealth did so[.]

             Further in its closing instructions, the court instructed the
         jury that they could not consider the convictions of the two
         felony offenses for any other purpose other than whether a
         prohibition existed barring [Everage] from possessing a
         firearm or having a license to have a firearm. The court
         specifically stated that that the jury must not regard this
         evidence as showing that [Everage] is a person of bad
         character or criminal tendencies from which they might be
         inclined to infer guilt. Because both the [prosecutor] and
         the court told the jury that they could not consider any prior
         offenses for any other reason besides whether [Everage]
         was a person permitted to possess a firearm, in essence not
         just one but two curative instructions were given on this
         point. On a totality of the presentation about this point at
         trial, and given the sufficiency and weight of the evidence,
         if there was any error, it was harmless error.

Trial Court Opinion, 6/6/18, at 14-16 (citations to record omitted).


                                      - 11 -
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       Our review of the record supports the trial court’s recollection of the

trial and its conclusion that no prosecutorial misconduct occurred. In making

his arguments to the contrary, Everage neither acknowledges the prosecutor’s

compliance with the trial court’s directive nor the trial court’s cautionary

instructions to the jury. It is well settled, that juries are presumed to follow

the instructions of the trial court. See Commonwealth v. Faurelus, 147

A.3d 905, 915 (Pa. Super. 2016). Moreover, it is clear that the prosecutor

acted in good faith in making the comments because Everage declined to sever

the firearm charges prior to trial, and the Commonwealth had to prove the

elements of the firearm violations. Although Everage now argues that the

prosecutor did not need to mention the specific crimes that made him ineligible

to possess a firearm, the Commonwealth cannot be faulted for comments

made based on Everage’s pro se decision not to sever the firearm charges.

Thus, his third claim fails.

      In his fourth claim, Everage asserts that he is entitled to a new trial

because the Commonwealth used the testimony of Detective Terry Merritts to

bolster the trial testimony of Ms. Trich and Ms. Mitchell. Everage raised his

objection following the Commonwealth’s offer of proof prior to the detective

testifying:

              [BY THE PROSECUTOR:]

         [Detective Merritts] will talk about investigating this
         [incident] in I think 12-12-2016 - - interviewing Ms. Trich
         and Ms. Mitchell several weeks after the incident occurred.
         Ms. Trich providing nicknames Aleem and Leem, and an
         account based on the account and nicknames he had a

                                     - 12 -
J-A14016-19


       suspect and he had a photo lineup with that suspect in mind.
       I will ask him how he prepares the photo lineup and selects
       people with the similar height, weight, build, hair color and
       things like that. I will show him the lineup. I will ask him if
       Ms. Mitchell identified the suspect, if [Ms.] Trich identified
       the suspect. I will ask if there was any confusion by [Ms.
       Trich] before the Preliminary Hearing. Did her confusion at
       the Preliminary Hearing ever make sense until her testimony
       today. Did she indicate to him or anybody else that if
       someone had spoke to her about [Everage] having a brother
       at the Preliminary Hearing. We (inaudible) that until today.
       And I believe that is essentially it.

                 [DEFENSE COUNSEL]: I would think that I have an
       objection to the Detectives [sic] somehow bolstering the
       credibility of their witness. That is the jury’s function to
       determine credibility not the Detectives [sic].

                [THE PROSECUTOR]: Which way in particular?

               [THE COURT]:       Well when you recited her
       testimony did not make sense until today like that.

               [THE PROSECUTOR]: I would just ask if he was
       aware prior today that someone had approached [Ms.
       Trich].

                [DEFENSE COUNSEL]: Why is that not hearsay?

                [THE PROSECUTOR]: Because it is not for the truth
       of the matter asserted that is why the Detective was aware.

               [DEFENSE COUNSEL]: It is for the truth of the
       matter asserted. You are just trying to get around that.

                 [THE PROSECUTOR]: I don’t know if I agree with
       that. I think it is relevant to ask him that. I think only my
       first question is really the important one. The rest I could
       probably do in argument just as there was every any
       hesitation or confusion by [Ms. Trich].

                [DEFENSE COUNSEL]:            Even hesitation     and
       confusion that is to bolster her identification.

                [THE PROSECUTOR]: I don’t agree with that.
       There was a lot of discussion about the Preliminary Hearing
       transcript about whether [Ms. Trich] was wavering in her

                                   - 13 -
J-A14016-19


         identification, and then I tried on redirect once I figured out
         or believed that I figured out what her confusion was about
         to rehabilitate her. I think it is probative for this jury to
         learn whether there was any indication by her to [Detective
         Merritts] that she was concerned before the Preliminary
         Hearing because she testified I don’t have to bring it up to
         this Detective that someone essentially told her that there
         was another person that looked like this person and his
         name was Aleem prior to her testimony at the Preliminary
         Hearing.

                   [THE COURT]: I just don’t want to have a whole
         trial about what didn’t somebody did or didn’t say to her or
         what she did or didn’t say to somebody else at the time. I
         mean that is really going down a rabbit hole. That is my
         only concern. That is just a general observation. You are
         free to object to single questions. I don’t think I can block
         a whole line of questioning by saying that.

                    [THE PROSECUTOR]: We will try to take it a
         different route too. I don’t think any - - I mean I think we
         will all have our arguments that we can make based on [Ms.
         Trich’s] testimony alone, and depending on how cross
         examination goes it might open up the door for different
         things too.

                  [DEFENSE COUNSEL]:          Okay, thank you, Your
         Honor.

N,T., Trial, 9/11/17, at 142-44.

      The trial court summarized Detective Merritts’ ten-pages of testimony

as follows:

            [Detective Merritts] described his duties as a detective
         and stated that he was assigned to the assault of [Ms. Trich]
         that occurred on December 9, 2016.              He described
         interviewing [Ms. Trich and Ms. Mitchell] and talked about
         their identification of [Everage]. He asked them whether
         they would be willing to look at a photo lineup. He described
         to the jury how he compiled the lineup. He identified the
         photo lineup he used in the case[.] He described how he
         conducted the photo lineup with [Ms. Trich and Ms.
         Mitchell]. He testified that [Ms. Trich] identified [Everage]

                                     - 14 -
J-A14016-19


           as the person who assaulted her. He described her physical
           reaction at seeing the photograph. This is the extent of his
           testimony on direct examination in the Commonwealth’s
           case in chief.

Trial Court Opinion, 6/6/17, at 16-17.5 The trial court then concluded that

Everage had failed to adequately develop his claim:

              The trial court respectfully submits that this complaint is
           too vague for the court to be able to adequately address.
           There is not a specific allegation of how this testimony is
           more prejudicial than probative. [Everage] does not point
           to specific testimony that he alleges to be more prejudicial
           than probative. He does not allege, beyond a bald assertion,
           how the detective’s testimony was used to bolster [Ms.
           Trich’s] testimony. He does not point to any specific
           testimony that he says was used to improperly bolster the
           testimony of Ms. Trich and Ms. Mitchell]. The trial court
           cannot provide any aid to the Superior Court on this issue
           because of vagueness.

Id. at 17.

        We are aware that “improper commentary on a witness’ credibility may

be achieved through means other than the prosecutor’s own statements, such

as     eliciting   improper    comments        from   a   Commonwealth   witness.”

Commonwealth v. Tedford, 960 A.2d 1, 32 (Pa. 2008). Nevertheless, we

agree with the trial court that Everage has not adequately developed this

claim. See Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007)

(holding that undeveloped claims will not be considered on appeal).




____________________________________________


5   We note that Ms. Mitchell never identified Everage as Ms. Trich’s attacker.


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       Notwithstanding the vagueness of Everage’s claim, we note that the

Commonwealth called Detective Merritts to reinforce its position that Ms. Trich

readily identified Everage as her attacker when she saw the photo lineup, and

that she only wavered in her identification of him at the preliminary hearing

under cross-examination by defense counsel. The Commonwealth wished to

emphasize Trich’s trial testimony that, prior to the preliminary hearing, a third

party had told her that Everage had a twin brother who went by the nickname

“Aleem.” See N.T, 9/11/17, at 104. Defense counsel appeared to be satisfied

with the Commonwealth’s offer of proof, and counsel did make a hearsay

objection at one time during the direct examination of Detective Merritts’

testimony. See N.T., Trial, 9/11/17, at 149. Defense counsel then engaged

in a cross-examination of the detective in which he sought to challenge Ms.

Trich’s identification of Everage as her attacker, and whether Everage told the

women he was from Philadelphia.                See id. at 155-65.6   Given these

circumstances, and the lack of specificity in Everage’s supporting argument,

we conclude his fourth issue affords him no relief.

       In his fifth issue, Everage asserts that he is entitled to a new trial

because Dr. Matthew Bouchard’s expert testimony “was duplicative and was
____________________________________________


6 Defense counsel objected three more times during the prosecutor’s re-direct
examination, but to matters not at issue in this appeal. See id. In a fourth
objection, defense counsel objected to the Commonwealth’s asking Detective
Merritts for his conclusion whether Ms. Fritch’s became confused when she
was informed of Everage’s real name. Id. at 173. Detective Merritts did not
answer the question and the court instructed the jury that they would have
“to draw your own conclusions about each witness’s testimony[.]” Id.


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not necessary as the opinion to which he testified was not about a complex

matter or an issue beyond common knowledge.” Everage’s Brief at 37 (excess

capitalization omitted). According to Everage:

         The testimony of the expert, Dr. [Bouchard] was not an
         issue which was outside the realm of common knowledge
         and was inadmissible. The doctor simply restated the
         testimony Ms. Trich had given regarding her injuries, he just
         used more technical terms than her. He did not help the
         jury’s understanding of the circumstances [any more] than
         Ms. Trich or the photographs did and his testimony should
         have been inadmissible.

Everage’s Brief at 37-38.

      Admission of expert testimony is an evidentiary matter for the trial

court’s discretion and should not be disturbed on appeal unless the trial court

abuses its discretion.   Commonwealth v. Szakal, 50 A.3d 210, 227 (Pa.

Super. 2012) (citation omitted). Expert testimony is admissible only when

the subject matter of the testimony is beyond the knowledge or experience of

the average layperson. “When the issue is one of common knowledge, expert

testimony is inadmissible.” Commonwealth v. Dunkle, 602 A.2d 830, 836

(Pa. 1992) (citing Commonwealth v. O’Searo, 352 A.2d 30 (Pa. 1976)).

      The trial court found no merit to Everage’s claim:

            Dr. Bouchard has a bachelor’s degree and an M.D.
         degree. He was determined to be an expert in the field of
         emergency medicine. He rendered an opinion that was
         within a reasonable degree of medical certainty about the
         injuries [Ms.] Trich suffered in this case. His testimony was
         necessary to establish the elements of aggravated assault.
         It was beyond the knowledge of a layperson that, as Dr.
         Bouchard described, not only could you break bones around
         your face or your nose if you are struck with a handgun,

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J-A14016-19


          there could also be nerve damage, and there could be
          damage to your teeth, and all of those things could
          potentially cause permanent injury. [Everage’s] claim here
          borders on the frivolous.

Trial Court Opinion, 6/6/18, at 18-19 (citations to record omitted).

       Initially, we note that this claim is not properly before us because

defense counsel did not object to Dr. Bourchard’s testimony. The failure to

make a timely and specific objection before the trial court at the appropriate

stage of the proceedings will result in waiver of the issue. Commonwealth

v. Tucker, 143 A.3d 955 (Pa. Super. 2016); Pa.R.A.P. 302(a).7

       Notwithstanding waiver, we agree with the trial court that Everage’s

claim is meritless.      Everage correctly notes “[w]hen the issue is one of

common knowledge, expert testimony is inadmissible.” Everage’s Brief at 39

(quoting Commonwealth v. Dunkle, 602 A.2d 830, 836 (Pa. 1992)).

However, his reliance upon Dunkle to support his claim that reversible error

occurred in his case is misplaced.

       In Dunkle, our Supreme Court held that “it was error to permit an

expert to explain why sexually abused children may not recall certain details

of the assault, why they may not give complete details, and why they may


____________________________________________


7Prior to trial, defense counsel objected to Dr. Bouchard’s testimony insofar
as it was indicated he would state Everage struck Ms. Trich.             The
Commonwealth agreed, and noting that the expert was not a fact witness.
See N.T., 9/11/17, at 24-25. This objection was not sufficient to preserve
Everage’s present claim.




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J-A14016-19



delay reporting the incident.” Dunkle, 602 A.2d at 831. According to the

Court, “[a]ll of these reasons are easily understood by lay people and do not

require expert analysis.” Id. at 836.8 Here, by contrast, the Commonwealth

properly used Dr. Bouchard’s testimony to prove Everage’s ability to cause

serious bodily injury. We discern no abuse of discretion by the trial court in

admitting this evidence.         Thus, because Everage’s claim is waived and

otherwise without merit, his fifth issue warrants no relief.

        In his sixth and final issue, Everage asserts that the trial court erred in

allowing the Commonwealth to show photographs of Ms. Trich’s injuries to the

jury.

        The decision to admit photographs, like other items of evidence, “is

solely within the province of the trial court, and a decision [thereon] will not

be disturbed absent a showing of an abuse of discretion.” Commonwealth

v. Murray, 83 A.3d 137, 155-56 (Pa. 2013).            When the Commonwealth

proffers photographic evidence of an alleged victim of crime, the trial court

must engage in a two-part analysis in order to determine whether such

evidence is admissible:

           First, a trial court must determine whether the photograph
           is inflammatory. If not, it may be admitted if it has
           relevance and can assist the jury's understanding of the
           facts. If the photograph is inflammatory, the trial court must
           decide whether or not the photographs are of such essential
____________________________________________


8 We note that the Dunkle decision has been superseded by statute. See
generally, 42 Pa.C.S.A. § 5920 (providing rules for use of expert testimony
in criminal proceedings for sexual offenses).


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         evidentiary value that their need clearly outweighs the
         likelihood of inflaming the minds and passions of the jury.

Commonwealth v. Murray, 83 A.3d 137, 156 (Pa. 2013) (citations

omitted).

      Prior to trial, defense counsel objected to the Commonwealth’s use of

the photos because “it is prejudicial and shows all the blood.” N.T., 9/11/17,

at 21. Defense counsel further argued that it was “not necessary to show that

to the jury except to inflame their passions.”     Id.   According to defense

counsel, the photographs “could have been done in black and white and it

could have been done without all of the graphic detail.” Id. In response, the

Commonwealth stated that pictures were relevant “to prove under the current

charges that exist - - one, that there was bodily injury with a deadly weapon

and two, that there was an attempt to cause serious bodily injury[.]” Id. The

Commonwealth further proffered that the close-up photo demonstrated Ms.

Trich “was struck with a heavy object consistent with the pistol that did leave

a mark on the side of her face.” N.T., 9/11/17, at 23.

      The pictures at issue were part of a compact disc that the

Commonwealth admitted at trial as Commonwealth’s Exhibit #2. There were

four photos appearing on slides for the purpose of their use at trial. The trial

court first discussed what the pictures depicted and then stated why they were

admissible:

            Okay, the [Commonwealth has] proffered two
         photographs in Slide form. The first depicts [Ms. Trich] lying
         in a hospital bed with certain medical hardware about her
         mouth and some amount of blood in the location of the

                                     - 20 -
J-A14016-19


         medical hardware and apparent stitches. The Court finds
         the photograph not to be excessively bloody or gruesome or
         unduly [prejudicial] in the manner that would force the
         Court to exclude it. The Court does believe that the slide
         would increase the jury’s understanding of the elements the
         Commonwealth has to prove in the case. The second Slide
         proffered by the Commonwealth is a close-up of a mark on
         [Ms. Trich’s] skin with one drop of blood and some reddish
         markings. The Court also specifically rules that that is not
         unduly prejudicial so as to need to be excluded from the
         jury’s view. So that is the ruling on the two photographs.

N.T., 9/11/17, at 23-24.

      After the Commonwealth informed the trial court that there were

actually four photographs, the trial court ruled “they are not prejudicial and

would advance the jury’s understanding of the Commonwealth’s allegations of

the element that it has to prove.” Id. at 24. In its Rule 1925(a) opinion, the

trial court reiterated that, although pictures showed Ms. Trich’s face with

bruising and some blood, the “Commonwealth needed to establish her injuries

as elements of the crimes charged. The court found the photographs to be

probative rather an unduly prejudicial.” Trial Court Opinion, 6/6/18, at 19.

      Having reviewed the pictures at issue, we conclude that the trial court

did not abuse its discretion in permitting the jury to see them. The pictures

depict the injuries Ms. Trich sustained and, although blood is observable, they

are not gruesome or graphic. See Commonwealth v. Hatcher, 746 A.2d

1142, 1144 (concluding, in a prosecution for aggravated assault based on the

handgun beating of the victim, the trial court did not abuse its discretion in

admitting five photographs of the victim; “[w]hile we find these photographs



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somewhat graphic, we also believe they were relevant in determining the

seriousness of the wounds”). Thus, Everage’s sixth issue fails.

     In sum, because all of Everage’s claims on appeal are meritless, we

affirm his judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2019




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