J-S19004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    FREDERICK CAMPBELL                         :
                                               :
                      Appellant                :   No. 1709 EDA 2016
                                               :

            Appeal from the Judgment of Sentence January 22, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0002422-2012,
                           CP-51-CR-0002751-2012



BEFORE:      SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY SHOGAN, J.:                                 FILED JUNE 25, 2018

       Appellant, Frederick Campbell, appeals from the January 22, 2016

judgment of sentence entered in the Court of Common Pleas of Philadelphia

County following a jury trial. We affirm.

       The trial court summarized the facts of the crimes as follows:

             On November 16, 2011, at about 2:30 a.m., [T.T.] was
       studying in her bed while her 2-year-old slept in the same bed.
       When [T.T.] woke up[1] she saw Appellant standing in her
       bedroom.     [T.T.] asked Appellant how he entered into her
       apartment and Appellant stated: “you left the door open. Why
       wasn’t your door locked?” Although they were romantically
       involved on one occasion, [T.T.] stated that she and Appellant
       were not involved at that time. [T.T.] took her daughter and put
       her in the other bedroom. Appellant then got in [T.T.]’s bed, took
____________________________________________


1 T.T.’s testimony was that she ultimately “fell asleep on [her] schoolbooks.”
N.T., 9/2/15, at 64.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     his clothes off and started touching her legs. [T.T.] moved his
     hand and said, “I don’t feel like that, I had a long day.” Appellant
     then got on top of [T.T.] and started moving her legs over with
     his knees while [T.T.] kept closing her legs tight. Appellant put a
     rope around [T.T.’s] neck. [T.T.] placed her chin down, grabbed
     the rope and pulled it over the top of her head. [T.T.] attempted
     to get Appellant off of her by telling him that she had to use the
     restroom. [T.T.] also tried to get Appellant off of her by telling
     him to use a condom. At this time, Appellant took his penis out,
     put it in [T.T.’s] vagina and started “pumping.” Appellant finished
     and followed [T.T.] to the bathroom and told her, “I'm sorry, I
     wouldn’t hurt you.” He then followed her back to the bedroom,
     grabbed her cell phone, tossed it on the bed and asked her if she
     was going to call the police. [T.T.] waited approximately 45
     minutes until Appellant fell asleep in her bed. At this time, she
     took her daughter, went to her car and drove to the police station.
     [T.T.] then called the police outside their station and the police
     escorted her back to her apartment. The officers took Appellant
     out of [T.T.]’s apartment and had her identify him as the person
     who committed the sexual assault. [T.T.] then gave a statement
     and went for a sexual assault examination.

            The second incident occurred on December 30, 2011. On
     that date, at roughly 2:30 a.m., [T.W.] came into contact with
     Appellant outside of the barbershop where he was employed.
     [T.W.] had a drug problem and had a history of performing oral
     sex on Appellant in exchange for drugs or money. On that night,
     Appellant waved [T.W.] over and they both went into the
     barbershop. Once inside, Appellant shut the door and locked the
     grates from the inside. [T.W.] asked for money but Appellant did
     not have any money. Appellant instructed [T.W.] to take her
     clothes off, but she told him not until he pays her first. [T.W.]
     then began to walk away but Appellant grabbed her by her throat
     and pushed her against the wall. [T.W.] broke free and ran
     towards the front door but Appellant caught up to her and grabbed
     her by her throat again. They then both fell backwards and [T.W.]
     began kicking the windows in an attempt to get someone’s
     attention outside. [T.W.] broke the glass windows, grabbed a
     piece of glass and started to cut Appellant’s hands because she
     could barely breathe. Appellant then dragged [T.W.] to the back
     of the store, punched her in the head and told her to suck his dick.
     Appellant threatened [T.W.] that if she did not comply, he would
     slit her throat with a straight razor. [T.W.] performed oral sex on
     Appellant, against her will. Appellant then told [T.W.] to turn

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       around and get on her knees on top of the barber chair. Appellant
       then inserted his penis into her vagina from behind. When
       Appellant was finished, he held his head and started crying. He
       said his life was over and that he was sorry. [T.W.] was still in
       fear of her life, so she helped him clean up the barbershop and
       then Appellant let her leave. [T.W.] ran straight home and
       knocked on the front door to her home until her husband
       answered. [T.W.’s] husband and her husband’s friend went to the
       barbershop where they saw Appellant standing outside. [T.W.’s]
       husband and his friend chased Appellant but could not catch him.
       [T.W.’s] uncle called 911 and told them “I want to report a rape.
       [T.W.’s] husband also called 911 and stated that “he’s running,”
       referring to Appellant. Police then apprehended Appellant.

Trial Court Opinion, 4/17/17, at 3–5 (internal citations omitted).

       Police arrested Appellant on December 30, 2011, and charged him with

multiple offenses at Docket Number CP-51-CR-0002751-2012, relating to

T.T., and at Docket Number CP-51-CR-0002422-2012, relating to T.W. On

August 27, 2012, the Commonwealth filed a Motion to Consolidate Bills of

Information, which the common pleas court granted on November 6, 2012,

after a hearing. Following a three-day trial beginning on September 1, 2015,

a jury found Appellant guilty on September 4, 2015, of aggravated assault,

rape by forcible compulsion, involuntary deviate sexual intercourse (“IDSI”)

by forcible compulsion, aggravated indecent assault, and sexual assault2

under Docket Number CP-51-CR-0002422-2012, and rape by forcible



____________________________________________


2  18 Pa.C.S. §§ 2702(a), 3121(a)(1), 3123(a)(1), 3125(a)(1), 3124.1,
respectively.




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compulsion and sexual assault3 under Docket Number CP-51-CR-0002751-

2012.4     On January 22, 2016, the trial court sentenced Appellant to an

aggregate sentence of imprisonment of twenty-seven and one-half to sixty-

five years. Appellant filed a post sentence motion on February 1, 2016, that

was denied by operation of law on May 31, 2016.

        Appellant filed a notice of appeal on June 1, 2016. Pursuant to the trial

court’s order, Appellant filed a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal on June 24, 2016, along with a motion for extension

of time to file a supplemental statement upon receipt of the notes of

testimony.    Despite the fact that the trial court never ruled on Appellant’s

motion, Appellant filed a supplemental statement of errors on September 29,

2016.

        Appellant raises the following issues on appeal:

           1. Did not the lower court err in granting the Commonwealth’s
              motion to consolidate the two cases for trial where the facts
              of the cases did not demonstrate sufficient similarity to
              establish a common plan, scheme and design, and should
              not joinder have been denied where the probative value of
              the evidence introduced through consolidation of the cases
              was outweighed by the prejudice resulting from the
              consolidation?

           2. Did not the lower court err in not permitting defense counsel
              to introduce into evidence, through questioning a
____________________________________________


3   18 Pa.C.S. §§ 3121(a)(1) and 3124.1, respectively.

4 Under Docket Number CP-51-CR-0002751-2012 relating to T.T., the jury
acquitted Appellant of aggravated assault. Prior to trial, various other charges
were nol prossed by the Commonwealth under both bills of information.

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            complainant or otherwise, evidence as to the nature of the
            specific charges for which the complainant had been
            convicted (involuntary manslaughter of the complainant’s
            child and [endangering the welfare of a child (“EWOC”)]
            where the complainant was currently charged again with
            EWOC, in that the nature of the complainant’s prior
            convictions, in light of the new charges, demonstrated
            heightened reasons for the complainant to testify favorably
            for the Commonwealth, and in that the complainant’s prior
            convictions also demonstrated a tendency to abrupt violence
            on the part of the complainant that would have supported a
            claim that the complainant was the initial aggressor and that
            the [Appellant] acted in self-defense?

         3. Did not the lower court err in permitting the 911 radio tapes
            to be played to the jurors as they contained inadmissible
            hearsay (to wit, statements from nontestifying declarants
            that a complainant had been raped)?

         4. Did not the lower court err in not permitting defense counsel
            to introduce into evidence, through questioning a police
            officer or otherwise, the fact that the [Appellant] made
            statements to the police (as opposed to introducing the
            content of those statements) as this evidence was relevant
            and not outweighed by the possibility of prejudice?

Appellant’s Brief at 4–5.

      Appellant first argues that the trial court erred in granting the

Commonwealth’s motion to consolidate the bills of information pursuant to

Pa.R.Crim.P. 582(A)(1)(a), which states that the offenses charged in separate

informations may be tried together if “the evidence of each of the offenses

would be admissible in a separate trial for the other and is capable of

separation by the jury so that there is no danger of confusion . . . .”

Pa.R.Crim.P. 582(A)(1)(a).    Appellant maintains the two cases failed to

demonstrate a common plan, scheme, or design, and any probative value of


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the evidence introduced through consolidation was outweighed by resulting

prejudice.   Appellant’s Brief at 27.    Appellant asserts that any similarities

between the two cases were superficial, and he discounts the extent of the

admitted similarities. Id. at 33, 35, 36.

      We review a trial court’s decision to consolidate offenses for trial under

an abuse-of-discretion standard. Commonwealth v. Collins, 703 A.2d 418,

422 (Pa. 1997).

      Offenses charged in separate informations may be tried together
      if they are “based on the same act or transaction” or if “the
      evidence of each of the offenses would be admissible in a separate
      trial for the other and is capable of separation by the jury so that
      there is no danger of confusion.” Pa.R.Crim.Pro. 582(A)(1). The
      court has discretion to order separate trials if “it appears that any
      party may be prejudiced” by consolidating the charges.
      Pa.R.Crim.Pro. 583.

            Our Supreme Court has established a three part test,
      incorporating these two rules, for deciding the issue of joinder
      versus severance of offenses from different informations. The
      court must determine

         whether the evidence of each of the offenses would be
         admissible in a separate trial for the other; whether such
         evidence is capable of separation by the jury so as to avoid
         danger of confusion; and, if the answers to these inquiries
         are in the affirmative, whether the defendant will be unduly
         prejudiced      by    the   consolidation    of     offenses.
         Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491,
         497 (1988) (quoted in Collins, supra at 55, 703 A.2d at
         422).

Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005);

Commonwealth v. Johnson, 179 A.3d 1105, 1115 (Pa. Super. 2018)

(“While evidence of other criminal behavior is not admissible to show a


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propensity to commit crimes, such evidence ‘may be admitted for other

purposes such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity or absence of mistake or accident’ as long as the

‘probative value of the evidence outweighs its prejudicial effect.’ Pa.R.E.

404(b)(2), (3).”   Furthermore, “Appellant bears the burden of establishing

such prejudice.”   Commonwealth v. Ferguson, 107 A.3d 206, 210 (Pa.

Super. 2015) (citing Commonwealth v. Melendez–Rodriguez, 856 A.2d

1278, 1282 (Pa. Super. 2004) (en banc)).

      The commission of the crimes need not be identical in order to be

consolidated. Compare Commonwealth v. Smith, 47 A.3d 862, 869 (Pa.

Super. 2012) (severance not required even though one crime occurred

daylight and one at night, accused’s pretexts for entering victims’ houses was

different, and assaults began differently), with Commonwealth v. Brown,

505 A.2d 295 (Pa. 1986) (error to deny severance of cases four months apart

where only similarity was theft of television sets during daylight hours from

ransacked houses).

      Our review of the record supports the trial court’s conclusion that

consolidation of Appellant’s two criminal informations was proper. We rely on

the trial court’s explanation regarding the similarities upon which it relied:

            Here, the similarities between the two assaults are
      extensive. The events occurred only about 45 days apart.
      Appellant knew both individuals before the assaults. Appellant
      ejaculated inside both victims’ vaginas. Appellant then apologized
      after each assault.      Both women targeted were from his
      neighborhood.     Both were African American females.        Both

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      previously engaged in sexual relations with Appellant. Both
      victims were assaulted at the same time of night, around 2:30
      a.m. Appellant had been drinking before both assaults. Both
      victims suffered from Appellant’s attempts to strangle or choke
      them.    Appellant did not use a condom for either assault.
      [Commonwealth v.] Smith[, 47 A.3d 862 (Pa. Super. 2012),] and
      [Commonwealth v.] Newman[, 598 A.2d 275 (Pa. 1991),] control
      this matter, supporting consolidation of both indictments before
      Appellant.

Trial Court Opinion, 4/17/17, at 15–16 (internal citations omitted).         In

addition, both women knew Appellant by his nickname, Turtle. N.T., 9/2/15,

at 62, 174. Both victims previously had received money from Appellant. Id.

at 120, 175. Both victims weighed about 130 pounds. Id. at 78–79, 186.

The extent of the similarities comports with relevant case law. See, e.g.,

Commonwealth v. Keaton, 729 A.2d 529, 537–538 (Pa. 1999) (similarities

among cases such as that offenses were committed over six-month period, all

three victims lived in the defendant’s neighborhood, all three victims were

African American, and each offense involved strangulation compelled that

consolidation for trial was proper); Commonwealth v. Larkins, 449 A.2d 42

(Pa. Super. 1982) (consolidation proper where all the crimes occurred within

a three-mile area, all occurred during early morning hours, victims were

attacked from behind by an assailant who was African American and who wore

leather gloves, and the methods of assault were similar). The record supports

the trial court’s conclusion that there were sufficient similarities between the

crimes to support consolidation of the informations.




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       Moreover, Appellant fails to establish that the jury was incapable of

separating the crimes to avoid confusion. Our Supreme Court has held that

“[w]here a trial concerns distinct criminal offenses that are distinguishable in

time, space and the characters involved, a jury is capable of separating the

evidence.” Collins, 703 A.2d at 423. Here, the situations surrounding each

rape were easily separated by the jury, where the attack on T.T. occurred in

her bedroom after Appellant broke into her apartment, and the attack on T.W.

occurred in the barbershop where Appellant worked.          N.T., 9/2/15, at 64,

175–176. The rapes occurred on different dates, in different locations, and

involved different victims.       Thus, while significantly similar, the evidence

relating to each crime was distinct enough to allow the jury to separate the

facts and apply them to each individual assault in assessing Appellant’s

culpability.   Commonwealth v. Burton, 770 A.2d 771, 779 (Pa. Super.

2001). There was no risk of confusing the jury.5

       Finally, the trial court found that consolidation did not prejudice

Appellant. The type of prejudice at issue is “that which would occur if the

evidence tended to convict a defendant only by showing his propensity to

commit crimes, or because the jury was incapable of separating the evidence.”

Commonwealth v. Lark, 543 A.2d 491, 496, 499 (Pa. 1988). Here, the

evidence did not merely show Appellant’s propensity to commit crimes; it also


____________________________________________


5  The record reveals that the trial court also provided the jurors with
notebooks to take notes and record details. N.T., 9/2/15, at 12.

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demonstrated a common plan that Appellant employed to commit each sexual

assault. As discussed above, each sexual assault involved distinct facts that

permitted the jury to examine each crime individually.        Consequently, we

conclude that the trial court did not abuse its discretion in consolidating the

bills of information in this case.

      Appellant’s second issue avers error by the trial court in refusing to allow

defense counsel to cross-examine T.W. “or otherwise present[] evidence, as

to the exact nature of the charges for which [T.W.] was then on parole and

the charges which [T.W.] then currently faced in an open case.” Appellant’s

Brief at 40.   This issue concerns T.W.’s 2001 convictions for involuntary

manslaughter and EWOC as well as a pending charge of EWOC. On September

1, 2015, the day before the jury was sworn, the Commonwealth asserted on

the record that it wished to address two motions in limine. N.T., 9/1/15, at

3. We note that there are no written motions in limine in the certified record.

The Commonwealth explained that T.W. currently was on parole for

involuntary manslaughter and EWOC relating to a deceased child. Id. at 5.

T.W. also had an open case pending for EWOC relating to another child. Id.

At that time, with the Commonwealth’s concession, the trial court ruled that

Appellant could introduce evidence that T.W. had a prior felony conviction,

she was on parole at the time of trial, and she had an open charge pending

against her.   Id. at 5–8.     It deferred a decision concerning whether the

defense could admit evidence that the open charge was for EWOC and whether


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it could inquire about the nature of the prior convictions. Id. at 9–12. The

court ultimately ruled that the defense could not name the crimes nor inquire

about the details. N.T., 9/2/15, at 3–10. Appellant asserts that the omission

of this evidence was error and suggests the nature of the charges against T.W.

indicated a “heightened reason for bias” by her. Id. at 41. Appellant also

maintains that the charges suggest that T.W. was the initial aggressor in the

present case, “which would have supported [Appellant’s] self-defense claim

as to physical assault charges involving [T.W.]” Id. at 41, 43.

      Questions concerning the admission 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. Baumhammers, 960 A.2d 59 (Pa. 2008).

“An abuse of discretion may not be found merely because an appellate court

might have reached a different conclusion, but requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Commonwealth v. Dillon, 925 A.2d

131, 136 (Pa. 2007). “It is not sufficient to persuade the appellate court that

it might have reached a different conclusion; it is necessary to show an actual

abuse of the discretionary power.” Commonwealth v. Bryant, 67 A.3d 716,

726 (Pa. 2013).     “Evidence may be excluded ‘if its probative value is

outweighed by ... unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.’”




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Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015) (citing Pa.R.E.

401, 402).

      We reject Appellant’s assertion of error.      The jury received ample

evidence to support a bias theory.     T.W. testified she was on parole for a

felony at the time she was raped. N.T., 9/2/15, at 237. She admitted all of

the following: having served time in prison; she currently was on parole; she

had an open criminal charge for the same crime of which she had been

previously convicted; and admitted to prostitution and drug use, which she

acknowledged were probation violations. Id. at 198–199, 237–241.

      In addition, like the trial court, we reject Appellant’s alternate reason,

that admission of the details of the involuntary manslaughter conviction and

open EWOC charge would have suggested to the jury that T.W. was the initial

aggressor and would have supported a self-defense claim by Appellant

regarding the physical assault on T.W. Trial Court Opinion, 4/17/17, at 10;

Appellant’s Brief at 8. Before self-defense is properly in issue, there must be

some evidence to justify the finding. Commonwealth v. Mouzon, 53 A.2d

738, 741 (Pa. 2012). Here, there was no evidence from any source that the

six-feet, four-inch Appellant, who locked the smaller, 130-pound victim in the

barbershop at 2:30 a.m., choked her, and threatened her with a straight razor,

acted in self-defense, either before or after he raped her vaginally and anally.

      Moreover, the facts establish that T.W.’s involuntary manslaughter

conviction resulted from T.W. hitting her child’s head against the ground


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because he was crying.        She put the child to bed, later found him

unresponsive, and the child ultimately died. N.T., 9/1/15, at 7. The trial court

determined that the facts of that crime “couldn’t be more dissimilar” from the

altercation in the barbershop and did not demonstrate that T.W. was, in fact,

the initial aggressor with Appellant to support a self-defense claim.       N.T.,

9/2/15, at 4–5; N.T., 9/3/15, at 124–125. As horrific as the facts of the prior

crime were, we agree with the trial court. See Christine, 125 A.3d at 399

(no abuse of discretion to exclude victim’s conviction of simple assault for

grabbing, pushing, and threatening his girlfriend because it was too dissimilar

from accused’s assertion that victim threw hot coffee in his face and punched

him several times). The trial court herein underscored that the two crimes

were eleven years apart with clearly dissimilar facts.      Trial Court Opinion,

4/17/17, at 10. We conclude this issue lacks merit.

      In his third issue, Appellant avers that the trial court erred in permitting

the 911 telephone calls initiated by T.W.’s husband and uncle to be played for

the jury because “they contained inadmissible hearsay.” Appellant’s Brief at

46. We note this one-and-one-half page argument by Appellant is conclusory,

fails to develop the issue, importantly fails to include citation to the record

where such tapes were played, and fails to support the issue with citation to

relevant case law. For these reasons, the issue is waived. Commonwealth

v. Perez, 93 A.3d 829, 838 (Pa. 2014) (claims failing to advance developed

argument or citation to supporting authorities and record are waived).


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      Further, we note that in his brief, Appellant contends that the source of

the information that T.W. was raped in the 911 calls “is unknown.” Appellant’s

Brief at 46. Appellant did not assert that claim at trial nor in his Pa.R.A.P.

1925(b) statement, where he merely averred that the 911 calls were hearsay

and no exception applied.        N.T., 9/1/15, at 183–190; Pa.R.A.P. 1925(b)

Statement, 6/24/16; Supplemental Pa.R.A.P. 1925(b) Statement, 9/29/16.

For this additional reason, the claim is waived. Commonwealth v. Hansley,

24 A.3d 410, 415 (Pa. Super. 2011) (Appellant’s Pa.R.A.P. 1925(b) statement

was   too   vague   to   allow   the   court    to   identify   the   issues   raised);

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (As a general

rule, any issues not raised in a Rule 1925(b) statement will be deemed

waived).

      Finally, even if the issue was not waived, we would rely on the trial

court’s explanation. Trial Court Opinion, 4/17/17, 5–8. Thus, we reject this

claim.

      Appellant’s final issue is that the trial court abused its discretion when

it precluded him from eliciting testimony from detectives that Appellant had

given a statement in each case. Appellant’s Brief at 48. Appellant maintains

that the evidence was relevant, but once again, he fails to cite any cases or

law in support. Id. Appellant contends that if evidence is admissible, “it is

not within the purview of the court to decide what evidence” Appellant may

present. Id. at 49. He suggests that “[w]ithout the content of the statements


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being divulged, there appeared to be little prejudice outweighing” their

admission. Id. at 48.

      In addition to failing to cite case law in support of his argument,

Appellant fails to cite to the place in the record where the court refused such

evidence. In Commonwealth v. Harris, 979 A.2d 387 (Pa. Super. 2009),

we stated:

      When an allegation is unsupported [by] any citation to the record,
      such that this Court is prevented from assessing this issue and
      determining whether error exists, the allegation is waived for
      purposes of appeal. Pa.R.A.P. 2119(c) (requiring that if reference
      is made to the record, it must be accompanied by a citation to the
      record); Commonwealth v. Einhorn, 911 A.2d 960, 970
      (Pa.Super.2006) (“An appellate brief must provide citations to the
      record and to any relevant supporting authority. This Court will
      not become the counsel for an appellant, ‘and will not, therefore,
      consider issues ... which are not fully developed in the brief.’”).
      See also Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa.
      Super.2007); Commonwealth v. Judd, 897 A.2d 1224, 1233
      (Pa. Super.2006).

Id. at 393. See also Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa.

Super. 2014) (“The Rules of Appellate Procedure require that appellants

adequately develop each issue raised with discussion of pertinent facts and

pertinent authority. See Pa.R.A.P. 2119. It is not this Court’s responsibility

to comb through the record seeking the factual underpinnings of an appellant’s

claim.”). This issue is waived.

      Even if not waived, we would conclude the claim lacks merit.          In

disallowing the evidence, the trial court recognized that admitting evidence

that Appellant spoke to police could potentially be harmful because first, it



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would not inform the jury what he actually said in his statements, second, it

would invite jurors to speculate regarding what Appellant had said, and third,

it would invite jurors to question why Appellant was not testifying.       N.T.

9/1/15, at 15–17; Trial Court Opinion, 4/17/17, at 12. We cannot say the

trial court abused its discretion, and we would find the issue without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/18




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