J-S52032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WOODROW JOHN HICKS

                            Appellant                  No. 268 WDA 2015


          Appeal from the Judgment of Sentence of January 5, 2015
              In the Court of Common Pleas of Indiana County
             Criminal Division at No.: CP-32-CR-0000467-2013


BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                         FILED NOVEMBER 12, 2015

       Woodrow John Hicks appeals the judgment of sentence imposed upon

his convictions for unlawful contact with minor; criminal attempt—statutory

sexual assault; corruption of minors; simple assault; criminal use of

communication facility; and fleeing or attempting to elude officer.1       These

convictions stemmed from his efforts to arrange a sexual liaison with a

fifteen-year-old girl.      He raises challenges to the admission of certain

evidence and to the jury’s weighing of the evidence presented at trial. We

affirm.

       The trial court has provided the following factual history of this case:

____________________________________________


1
      See 18 Pa.C.S. §§ 6318(a)(1), 3122.1(b) (criminal attempt—18
Pa.C.S. § 901), 6301(a)(1)(ii), 2701(a)(1), 7512(a), and 75 Pa.C.S.
§ 3733(a), respectively.
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      These charges arose on November 3, 2012, after the victim, who
      at the time was fifteen years of age, went to the Pennsylvania
      State Police with her mother. She complained that [Hicks] had
      been repeatedly contacting her in [an] attempt to arrange a
      meeting to engage in sexual activities. If the victim would not
      participate, [Hicks] threatened to send compromising photos of
      her to her mother.

      While at the police station, the victim sent a text message to
      [Hicks] under the direction of the [troopers]. She arranged to
      meet [Hicks] at a local store, however, when [Hicks] arrived he
      was placed under arrest. Prior to the arrest being effectuated,
      [Hicks] attempted to flee the scene and endangered the
      arresting officers.

Trial Court Opinion, 3/30/2015, at 1-2.

      At the conclusion of the ensuing trial, a jury found Hicks guilty of the

above-enumerated charges. Upon these charges, the trial court imposed the

following sentences: For unlawful contact with a minor, the court sentenced

Hicks to sixteen months to five years’ incarceration, with a consecutive

probationary period of five years; for simple assault, the court imposed one

month to two years’ incarceration to run concurrently with the prior

sentence; for fleeing or attempting to elude a police officer and criminal use

of a communication facility, the court imposed two years’ probation and five

years’ probation, respectively, with those probationary sentences to run

consecutively to his incarceration and parole for unlawful contact with a

minor, but concurrently with each other and the other probationary

sentence. The trial court imposed no additional sentence on the remaining

charges, which the court found merged for purposes of sentencing with

unlawful contact with a minor.   See Sentencing Order, 1/5/2015.      On the


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same date, the trial court designated Hicks a sex offender subject to lifetime

registration under the Sex Offender Registration and Notification Act, 42

Pa.C.S. §§ 9799.10, et seq.

      On January 30, 2015, Hicks filed a timely notice of appeal.                  On

February 2, 2015, the trial court entered an order directing Hicks to file a

concise    statement      of   errors   complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b). Hicks timely complied, and the trial court filed its Rule

1925(a) opinion on March 30, 2015.              This appeal is now ripe for our

consideration.

      Hicks raises two issues for our consideration:

      1.     Were the verdicts against the weight of the evidence?

      2.    Was it error to allow messages sent from Hicks’s computer
      to be introduced into evidence?

Brief for Hicks at 4-5. We address these issues in turn.

      During sentencing, while Hicks expounded upon the injustice of his

situation, and pleaded in the abstract for the trial court to enter a judgment

of acquittal, he did not in any cogent way contest the jury’s weighing of the

evidence.        Similarly, his attorney did not raise that issue then, nor did

counsel or Hicks file anything in the nature of a post-trial motion.

      Pennsylvania Rule of Criminal Procedure 607 provides as follows:

      (A) A claim that the verdict was against the weight of the
      evidence shall be raised with the trial judge in a motion for a
      new trial:

           (1)     orally, on the record, at any time before sentencing;


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         (2)   by written motion at any time before sentencing; or

         (3)   in a post-sentence motion.

Pa.R.Crim.P. 607. Commentary to the rule addresses the rule’s purpose:

      The purpose of this rule is to make it clear that a challenge to
      the weight of the evidence must be raised with the trial judge or
      it will be waived. Appellate review of a weight of the evidence
      claim is limited to a review of the judge’s exercise of discretion.
      See Commonwealth v. Widmer, 689 A.2d 211 (Pa. 1997);
      Commonwealth v. Brown, 648 A.2d 1177, 1189-92
      (Pa. 1994).

Id. Cmt. (citations modified).

      This Court long has held that failure to preserve a weight of the

evidence challenge in accordance with the requirements of Rule 607 will

result in waiver of that challenge on appeal, even if the trial court addresses

the challenge in its opinion. See Commonwealth v. Thompson, 934 A.3d

478, 490 (Pa. Super. 2014) (citing Commonwealth v. Sherwood, 982

A.2d 483, 494 (Pa. 2009); Commonwealth v. Lofton, 57 A.3d 1270, 1273

(Pa. Super. 2012)). In Thompson, we explained as follows:

      Appellate review of a weight claim is limited to whether the trial
      court palpably abused its discretion. Here, the trial court never
      ruled on the issue and, therefore, it could not grant [or] deny
      the claim at the time it was first raised by [the appellant] in his
      concise statement. Although the court addressed the issue’s
      merits in its Rule 1925(a) opinion, the trial court was, by that
      time, divested of jurisdiction to take further action in the case.
      Thus, the trial court was never given the opportunity to provide
      [the appellant] with relief and, consequently, there is no
      discretionary act that this Court could review.




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Id. at 490-91 (citations, bracketed textual modifications, and quotation

marks omitted). Thus, absent a contemporaneous or post-sentence motion

challenging the weight of the evidence, any such challenge necessarily is

waived.

      Although Hicks, who was represented by counsel, embarked during his

sentencing proceeding upon a rambling castigation of virtually every facet of

his investigation, arrest, and prosecution, pausing to impugn the integrity of

the victim and her mother along the way, see Notes of Testimony (“N.T.”),

1/5/2015, at 7-12, neither he nor his attorney ever offered anything

resembling an oral motion for a new trial necessitated by the jury’s weighing

of the evidence. Furthermore, Hicks filed no written post-sentence motion.

In short, the record is clear that Hicks did not satisfy the requirements of

Rule 607, denying the trial court the opportunity to review the issue when it

had jurisdiction to do so. Thus, the trial court was denied the opportunity to

exercise the discretion to which our review is limited in connection with

weight of the evidence claims. Consequently, Hicks’ challenge to the weight

of the evidence is waived, and we may not consider its merit.

      Hicks next contends that the trial court, in violation of its own pre-trial

suppression order, allowed the Commonwealth to admit certain evidence

taken from Hicks’ computer, specifically messages allegedly sent by Hicks to

the victim via Facebook Messenger and text messages sent from his phone.

Our standard of review of challenges to the admissibility of evidence is well-

settled:

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      Admission of evidence is within the sound discretion of the trial
      court and will be reversed only upon a showing that the trial
      court clearly abused its discretion. Admissibility depends on
      relevance and probative value. Evidence is relevant if it logically
      tends to establish a material fact in the case, tends to make a
      fact at issue more or less probable or supports a reasonable
      inference or presumption regarding a material fact.

      Judicial discretion requires action in conformity with law, upon
      facts and circumstances judicially before the court, after hearing
      and due consideration. An abuse of discretion is not merely an
      error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill
      will, as shown by the evidence or the record, discretion is
      abused.



Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)

(citation omitted).

      The trial court disputed Hicks’ account of what occurred at trial, noting

that Hicks’ Rule 1925(b) statement was vague on precisely what evidence he

believed was improperly admitted:

      [P]rior to trial, the [trial court] entered an [o]rder suppressing
      evidence taken from [Hicks’] computer. At trial, evidence was
      presented in the form of text messages and Facebook messages
      exchanged between the victim and [Hicks]; however, these
      messages were provided by the victim herself. None of the
      messages presented at trial were taken from [Hicks’] computer;
      therefore, they were not excluded by the [s]uppression [o]rder.
      For this reason, Hicks’ argument has no merit.

T.C.O. at 3.

      Hicks’ argument on this point lacks in any citation or discussion of

governing authority. See Brief for Hicks at 25-27. Under Pa.R.A.P. 2119(a),

this deficiency alone would justify this Court in deeming this issue waived.

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See Pa.R.A.P. 2119(a) (“The argument shall . . . [include] such discussion

and citation of authorities as are deemed pertinent.”); see Commonwealth

v. Treiber, 121 A.3d 435, 474 (Pa. 2011). Furthermore, Hicks appears to

concede at least the possible validity of the trial court’s assertion that the

evidence in question derived from sources other than Hicks’ computers. He

acknowledges that the trial court so concluded, but twice indicates that the

sources for the messages was “not clear.”        See Brief for Appellant at 26

(“While it is not clear from the record, Hicks contends that . . . [the

messages were] improperly admitted into evidence at trial . . . .”); id. (“[I]t

was not clear that the messages introduced were provided by the minor

rather than obtained from [Hicks’] computer.”).

      We are constrained to agree with Hicks’ that the provenance of the

messages,    themselves,   is   unclear   from   the   transcript.   When   the

Commonwealth began to question the victim regarding certain messages,

Hicks made a timely objection. See N.T., 9/23/2014, at 21. The trial court

agreed with Hicks that it was incumbent upon the Commonwealth to lay a

foundation for the messages, and the Commonwealth indicated that it would

do so.      Id. at 22.     In the questioning that ensued, however, the

Commonwealth only asked the victim to verify that the hard copies of

certain messages from Hicks to the victim, including Facebook messages and

text messages, were authentic, and that she had received them. Id. at 22-

29. Hicks not only did not object that the Commonwealth still had failed to

establish that the messages presented had not been found on Hicks’

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computer, but he actually declined the invitation to raise that objection.

When the Commonwealth moved to admit the now putatively-authenticated

Facebook and text messages the trial court asked whether Hicks had an

objection and Hicks responded that he did not. Id. at 29.

      While we agree that the source of the messages submitted by the

Commonwealth and authenticated by the victim was unclear from the

testimony, Hicks’ failure to object to the Commonwealth’s post-objection

attempt to lay a foundation for their admission in conformity with the trial

court’s suppression order denied the trial court and the Commonwealth the

opportunity to develop the point. See Commonwealth v. Freeman, 827

A.2d 385, 396 (Pa. 2003) (quoting Dilliplaine v. Lehigh Valley Trust Co.,

322 A.2d 114, 116-17 (Pa. 1974)) (“Requiring a timely specific objection to

be taken in the trial court will ensure that the trial judge has a chance to

correct alleged trial errors. This opportunity to correct alleged errors at trial

advances the orderly and efficient use of our judicial resources.”).      Under

these circumstances, Hicks’ initial objection was insufficient to preserve the

issue for review, given the testimony that followed, and Hicks’ failure to

object to the Commonwealth’s failure to establish clearly the source of the

messages it admitted into evidence.       Hicks demanded a foundation, the

Commonwealth purported to offer one, and it was incumbent upon Hicks to

raise any specific deficiency that he detected in the Commonwealth’s

foundation.   His failure to do so denied the trial court the opportunity to

reconsider its ruling in light of the Commonwealth’s presentation. Therefore,

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the purposes of requiring a contemporaneous objection were not served, and

the issue is waived.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2015




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