J-S59019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN HALLIDAY                             :
                                               :
                       Appellant               :   No. 2136 EDA 2016

            Appeal from the Judgment of Sentence February 18, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007391-2015


BEFORE:      BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 26, 2017


        Kevin Halliday appeals from the judgment of sentence entered on

February 18, 2016, in the Philadelphia County Court of Common Pleas, made

final by the denial of post-sentence motions on July 1, 2016. On November

24, 2016, the trial court convicted Halliday of aggravated assault, possession

of an instrument of crime (“PIC”), and simple assault.1 The court sentenced

Halliday to an aggregate term of two and one half to five years’ incarceration,

followed by five years’ probation. On appeal, Halliday raises several issues

concerning the sufficiency of his convictions.2 After a thorough review of the

____________________________________________



    Former Justice specially assigned to the Superior Court.

1
    18 Pa.C.S. § 2702(a), 907(a), and 2701(a), respectively.

2
     We have reorganized the issues for ease of disposition.
J-S59019-17



submissions by the parties, the certified record, and relevant law, we affirm

the judgment of sentence.

      The trial court set forth the facts the case as follows:

      Mr. Sheldon Brown testified that on the afternoon of June 13,
      2015, he and [Halliday] “were drinking some beer, smoking some
      marijuana in my house.” When [Halliday] left, Mr. Brown noticed
      that beer and marijuana were missing. On going outside he
      encountered [Halliday], and “it escalated into a confrontation,”
      eventually resulting in three separate fights between them over
      the course of several hours. Mr. Brown described the first two
      fights were fist fights, in which he got the better of [Halliday].

             In the early evening, about five minutes after the second
      fight had subsided, a dark SUV type vehicle pulled up. [Halliday]
      got out with another man, later identified as Mr. Aaron Slaughter,
      and both men started fighting with Mr. Brown. Mr. Brown testified
      that during this fight he was stabbed by one of his assailants,
      stating that [Halliday] was on his left and the other man on his
      right, and that he had been stabbed numerous times in the left
      side. After calling 911, he was taken to Presbyterian Hospital for
      treatment.

            Ms. Dawn Henry testified [Halliday] was the father of her
      daughter and that she was engaged to him at the time of the
      assault. She testified that on June 13, 2015, she observed Mr.
      Slaughter fighting with Mr. Brown. However she did not witness
      the stabbing. She also testified that prior to the stabbing[,
      Halliday] had called Mr. Slaughter who arrived a short time later.

Trial Court Opinion, 3/20/2017, at 3-4 (record citations omitted).

      Following the incident, Halliday was arrested and charged with criminal

attempt to commit murder, criminal conspiracy to commit murder, aggravated

assault, PIC, simple assault, and recklessly endangering another person

(“REAP”). As noted above, on November 24, 2015, at the conclusion of the

bench trial, the court found Halliday guilty of aggravated assault, PIC, and


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simple assault, and not guilty of the remaining charges.       On February 18,

2016, the court sentenced Halliday to a term of two and one half to five years’

incarceration on the PIC conviction, and a consecutive period of five years’

probation on the aggravated assault offense.3 On February 26, 2016, Halliday

filed a post-sentence motion, seeking a new trial and/or arrest of judgment.

On July 1, 2016, the court denied his motion. Halliday filed this timely appeal.4

       In his first issue, Halliday complains the trial court erred by convicting

him of aggravated assault and PIC under a conspiratorial liability theory

because he was not charged with conspiring to commit either offense. See

Halliday’s Brief at 10. Specifically, Halliday notes he was only charged with

conspiracy to commit attempted murder and states:             “Because neither

Conspiracy to Commit Aggravated Assault nor Conspiracy to Possess and [sic]

Instrument of a Crime are lesser included offenses of Attempted Murder, Mr.

Halliday was improperly found guilty of the same.”            Id.    Relying on

Commonwealth v. Houck, 102 A.3d 443 (Pa. Super. 2014), he states “a

conviction premised on conspiratorial liability would only have been

permissible if Conspiracy to Commit Aggravated Assault was a lesser included

offense of Conspiracy to Commit Attempted Murder.” Halliday’s Brief at 12.

____________________________________________


3
    The simple assault count merged for sentencing purposes.

4
   On July 22, 2016, the trial court ordered Halliday to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Halliday
filed a concise statement on July 28, 2016. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on March 20, 2017.

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Further, Halliday notes a panel of this Court previously concluded that

aggravated assault is not a lesser included offense of attempted murder. See

Commonwealth v. Fuller, 579 A.2d 879 (Pa. Super. 1990), appeal denied,

588 A.2d 508 (Pa. 1991); see also Halliday’s Brief at 13-14. Lastly, he states:

             It follows from Fuller that Conspiracy to Commit Aggravated
      Assault is not a lesser included offense of Conspiracy to Commit
      Attempted Murder. Nor was there a “general conspiracy” charged;
      the information specified the object of the conspiracy to be
      attempted murder. Since Mr. Halliday was not charged with
      Conspiracy to Commit Aggravated Assault, his conviction for
      Aggravated       Assault    under    conspiratorial  liability was
      impermissible. As such, the Court erred in convicting Mr. Halliday
      in this regard and this conviction must be vacated.5
      ______________________

         5
           Admittedly, the Court stated that Mr. Halliday was liable
        as a coconspirator or an accomplice. However, the evidence
        was not sufficient to establish accomplice liability. To
        conclude that the phone call from Mr. Halliday to Kevin
        Slaughter was a request for Slaughter to come and “take
        care” of the complaining witness was completely
        speculative. This is especially so because Dawn Henry gave
        a plausible explanation for Aaron Slaughter’s animus toward
        the complaining witness, i.e., that he pushed her daughter.
      ______________________

            This reasoning applies with equal force to Possession of an
      Instrument of a Crime. The elements of Possession of an
      Instrument of a Crime are not subsumed under Attempted Murder
      such that they can be classified as lesser included offenses[.]

Halliday’s Brief at 14-15 (citation and one footnote omitted).

      By way of background, at the conclusion of Halliday’s bench trial, the

court found the following:

      I find there was a conspiracy here. However, [Halliday]’s not
      guilty of count two, conspiracy, because they did not prove a
      conspiracy to commit murder, and that’s what he’s charged with.

                                     -4-
J-S59019-17




             There was a conspiracy to commit aggravated assault.
       Going back to the block with me. I need you [to] take care of this
       guy. So he comes back to the block with your client and he takes
       care of him by stabbing him.

             Therefore, [Halliday] is guilty of aggravated assault as an
       accomplice or a coconspirator. Likewise, guilty of possessing an
       instrument of a crime as a coconspirator.

N.T., 11/24/2015, at 159.

       Halliday is correct that he was not charged with criminal conspiracy to

commit aggravated assault. However, he is incorrect that aggravated assault

cannot be considered a lesser included offense of attempted murder in certain

circumstances. See Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994)

(holding aggravated assault is a lesser-included offense of attempted murder

in the context of merger at sentencing);5 see also Commonwealth v.

Hilliard 172 A.3d 5 (Pa. Super. 2017).6           Additionally, conspiracy and

accomplice liability can be applied in the context of a PIC crime.          See

Commonwealth v. Wilson, 426 A.2d 575 (Pa. 1981) (finding that regardless

of who fired the shot, the petitioner and his companions were acting in concert

with one another and therefore, he was responsible for the crime as an


____________________________________________


5
   But see Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009)
(holding 42 Pa.C.S. § 9765 “prohibits merger unless two distinct facts are
present: 1) the crimes arise from a single criminal act; and 2) all of the
statutory elements of one of the offenses are included in the statutory
elements of another”).

6
    It merits mention that Halliday relies on an earlier case, Fuller, supra.

                                           -5-
J-S59019-17



accomplice or co-conspirator); Commonwealth v. Gladden, 665 A.2d 1201

(affirming trial court’s finding that appellant was an accomplice and therefore

guilty of PIC where his co-defendant was armed with a gun and fired shots

during a robbery) (en banc); Commonwealth v. Nelson, 582 A.2d 1115,

1119 (Pa. Super. 1990) (determining appellant’s PIC conviction was supported

by the evidence where his co-felon brandished a gun and appellant threatened

his cohort would “take care of” the victims if they did not cooperate), appeal

denied, 593 A.2d 840 (Pa. 1991).

       Furthermore, Halliday ignores the fact that the trial court found him

guilty via accomplice liability.7 It is well-established that an individual need

not be charged as an accomplice in order to be found guilty under such a

theory. See Commonwealth v. McDuffie, 466 A.2d 660 (Pa. Super. 1983);

see also Commonwealth v. Melvin, 103 A.3d 1 (Pa. Super. 2014) , appeal

denied, 112 A.3d 651 (Pa. 2015). In Commonwealth v. Spotz, 716 A.2d

580 (Pa. 1998), the Pennsylvania Supreme Court explained accomplice

liability as follows:

              A defendant may be convicted as an accessory though only
       charged as a principal. Commonwealth v. Perkins, 485 Pa. 286,
       290-92, 401 A.2d 1320, 1322 (1979) (equally divided court)
       (affirming conviction based on accomplice liability where
       information charged defendant as principal); Commonwealth v.
____________________________________________


7
  We note that in footnote 5 of his brief, Halliday touches upon the sufficiency
of the court’s finding that he was liable either as a co-conspirator or an
accomplice. See Halliday’s Brief at 14 n.5. We find he has not properly
preserved the argument as it is included in a footnote in his appellate brief
and was not included in his concise statement. See Pa.R.A.P. 1925(b)(4)(vii).

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      Potts, 388 Pa. Super. 593, 566 A.2d 287 (1989) (Commonwealth’s
      failure to proceed on theory of accomplice liability does not later
      preclude defendant’s conviction under this theory). As long as the
      defendant is put on notice that the Commonwealth may pursue
      theories of liability that link the defendant and another in
      commission of crimes, the defendant cannot claim that the
      Commonwealth’s pursuit of such a theory surprised and
      prejudiced the defendant. Potts, 388 Pa. Super. at 604, 566 A.2d
      at 293; Commonwealth v. Smith, 334 Pa. Super. 145, 150-51,
      482 A.2d 1124, 1126 (1984) (despite being charged only as
      principal, defendant had sufficient notice of potential for
      accomplice liability theory, and trial court properly instructed jury
      on accomplice liability, when evidence adduced at trial supported
      accomplice theory, defendant attempted to transfer criminal
      liability to other person and Commonwealth had not misled
      defendant); Commonwealth v. McDuffie, 319 Pa. Super. 509, 466
      A.2d 660 (1983).

Spotz, 716 A.2d at 588.

      Here, Halliday was charged with, and subsequently convicted of,

aggravated assault and PIC.      In his argument, he fails to assert he had

insufficient notice at his bench trial that the trial court could potentially be

applying theories of conspiratorial or accomplice liability to these charges.

Moreover, as the trial court opined:

      It is … disingenuous for [Halliday] to complain that he was
      prejudiced by the Commonwealth’s theory that [Halliday] “called
      Mr. Slaughter to come and attack the complaining witness.” Not
      only did [Halliday] have actual notice of Mr. Slaughter’s
      involvement, Ms. Henry testified that [Halliday] did in fact call
      him.

                                       …

             Mr. Brown’s testimony that [Halliday], left the scene, after
      the second fight, and returned a short time later to recommence
      the fight accompanied by another bigger man[, subsequently
      identified by Henry as Slaughter] clearly establishes that
      [Halliday] entered into a conspiracy with Mr. Slaughter to attack

                                       -7-
J-S59019-17



         Mr. Brown. This is further supported by Ms. Henry’s testimony
         that [Halliday] did in fact call Mr. Slaughter who then fought with
         Mr. Brown. It is irrelevant that there was no direct evidence that
         [Halliday] actually stabbed Mr. Brown.         As a co-conspirator
         [Halliday] is liable for Mr. Brown’s injuries. As the Court noted,
         “there’s circumstantial evidence that he did just what the DA’s
         arguing. He kept losing these fights and decided to go out and
         get somebody to help him, that he thought [he] could take care
         of the complainant. And then it just got better when the defense
         witness testified about the phone call.”

                 Additionally, as to the charge of aggravated assault,
         [Halliday] is equally liable as an accomplice, since he participated
         in the assault of Mr. Brown, the question of who actually stabbed
         Mr. Brown is again irrelevant. 18 PCS 306(a) and (b)(3) provide
         that a person is guilty of a crime if he is an accomplice of another
         person in the commission of a crime. 18 PCS 306(c) provides:
         “(1) A person is an accomplice of another person in the
         commission of an offense if: (1) with the intent of promoting or
         facilitating the commission of the offense, he: (i) solicits such
         other person to commit it; or (ii) aids or agrees or attempts to aid
         such other person in planning or committing it …” 18 PCS 306(d)
         provides further that: “When causing a particular result is an
         element of an offense, an accomplice in the conduct causing such
         result is an accomplice in the commission of that offense if he acts
         with the kind of culpability, if any, with respect to that result that
         is sufficient for the commission of the offense.” Under 18
         Pa.C.S.A. § 306(d), a person is liable for all results of the
         principal’s conduct even if untended. It does not matter if that
         person may have lacked the specific intent to inflict serious bodily
         injury, as opposed to mere bodily injury. Commonwealth v.
         Roebuck, 32 A.3d 613 (Pa. 2011).

Trial Court Opinion, 3/20/2017, at 6-8.8 Accordingly, Halliday’s first argument

fails.


____________________________________________


8
   We reiterate that at trial, the court found Halliday guilty of aggravated
assault and PIC pursuant to theories of conspiracy and/or accomplice liability.
While the court’s opinion appears to only discuss that Halliday acted as a



                                           -8-
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       In his next issue, Halliday contends there was insufficient evidence to

convict him of PIC. Specifically, he states:

              As an initial matter, no witness identified the instrumentality
       used to injure the complaining witness as a knife. As such, the
       factfinder was forced to speculate that a knife was used in the
       stabbing, i.e., instead of an ice pick or some other sharp object.
       But moreover, the complaining witness specifically testified that
       he was unsure who actually stabbed him. Mr. Halliday was not
       charged with conspiracy to possess an instrument of a crime, nor
       was there evidence from which the factfinder could have found
       accomplice liability. Thus, the factfinder was forced to speculate
       whether Mr. Halliday was the individual in possession of the
       criminal instrument in question.

Halliday’s Brief at 24-25.

       Our well-settled standard of review regarding sufficiency of the evidence

claims is as follows:

       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 the 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 finder of fact while passing upon the
____________________________________________


co-conspirator, such analysis does not prove Halliday’s argument. The court’s
findings at trial negate any inconsistency with respect to the fact that the court
found Halliday culpable under both concepts.

                                           -9-
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        credibility of witnesses and the weight of the evidence produced,
        is free to believe all, part or none of the evidence.

Melvin, 103 A.3d at 39-40 (citation omitted).

        A defendant is guilty of possessing instruments of crime “where he

possesses any instrument of crime with intent to employ it criminally.” 18

Pa.C.S. § 907(a); see also Commonwealth v. Lopez, 57 A.3d 74, 79-80

(Pa. Super. 2012), appeal denied, 62 A.3d 379 (Pa. 2013). Moreover, because

the victim could not testify that Halliday had the knife in his possession, the

Commonwealth may prove the defendant had constructive possession of the

item.

           Constructive possession is a legal fiction, a pragmatic
           construct to deal with the realities of criminal law
           enforcement.     Constructive possession is an inference
           arising from a set of facts that possession of the contraband
           was more likely than not. We have defined constructive
           possession as conscious dominion.          We subsequently
           defined conscious dominion as the power to control the
           contraband and the intent to exercise that control. To aid
           application, we have held that constructive possession may
           be established by the totality of the circumstances.

        Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super.2012),
        appeal denied, [] 63 A.3d 1243 (2013) (internal quotation marks
        and citation omitted). Additionally, it is possible for two people to
        have joint constructive possession of an item of contraband.
        Commonwealth v. Sanes, 955 A.2d 369, 373 (Pa. Super. 2008),
        appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).

Commonwealth v. Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013),

appeal denied, 78 A.3d 1090 (Pa. 2013). “An intent to maintain a conscious

dominion may be inferred from the totality of the circumstances, and

circumstantial evidence may be used to establish a defendant’s possession of

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drugs or contraband.” Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.

Super. 2013) (citation omitted), appeal denied, 77 A.3d 636 (Pa. 2013).

        The trial court analyzed the claim as follows:

              As to [Halliday]’s conviction for the possessory crime of PIC
        as a coconspirator, it is again irrelevant that there was no
        testimony that [Halliday] actually possessed the knife causing Mr.
        Brown’s injuries…. It is clear from the evidence that Mr. Brown
        was stabbed by at least one of the two men who assaulted him.
        In Commonwealth v. Knox, 105 A.3d 1194,1197-98 (Pa. 2014),
        our Supreme Court held that where a weapon is used in
        furtherance of a crime, constructive possession of that weapon is
        attributable to a co-conspirator regardless of who actually
        possessed it.

Trial Court Opinion, 3/20/2017, at 8.9             We agree with the court’s well-

reasoned analysis. Viewed in the light most favorable to the Commonwealth

as the verdict winner, the evidence was sufficient to sustain the trial court’s

finding that Halliday constructively possessed the knife that was used to injure

the victim. Accordingly, his sufficiency argument fails.

        Lastly, Halliday asserts he has a right to a new trial because “the

alternative theory offered by the Commonwealth and ultimately adopted by

the Court amounted to a prejudicial variance.[10] Specifically, and in response


____________________________________________


9
     See footnote 8.

10
     With respect to variance, we note:

        If there exists a variance between the allegations of an
        information and proof at trial, such variance is harmless error
        unless a defendant could be misled at trial, prejudicially surprised



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to exculpatory evidence offered by Mr. Halliday, the Commonwealth urged the

Court to conclude that Mr. Halliday requested another individual to cause the

injuries to the complaining witness.”          Halliday’s Brief at 15.   Moreover, he

states:

       The prejudicial variance in this case is rooted in the difference
       between the factual recitation offered by the complaining witness
       and the theory subsequently manufactured by the Commonwealth
       and accepted by the Court in response to Mr. Halliday’s evidence
       of actual innocence.

             Since the preliminary hearing the Commonwealth posited
       the theory that the complaining witness was attacked by two men
       – Kevin Halliday and another individual. Mr. Halliday was held for
       Court on that theory and the complaining witness testified to that
       theory at trial. In the interim, Kevin Halliday located four
       witnesses that completely contradicted that theory and exculpated
       him: Dawn Henry, Shaniqua Har[ris],7 Police Officer Chisholm and
       Detective Moore. Counsel for the defense turned exculpatory
       information pertaining to Dawn Henry, Shaniqua Har[ris] and the
       actual assailant over to the Commonwealth prior to trial. As far
       as the record reveals, the Commonwealth did absolutely nothing
       with this information and went forward with the charges without
       so much as attempting to ascertain whether Kevin Halliday was
       actually innocent.
       ______________________

          7
            The defense was unable to secure Ms. Har[ris]’s testimony
          for trial.




____________________________________________


       in efforts to prepare a defense, precluded from anticipating the
       prosecution’s proof, or otherwise impaired with respect to a
       substantial right.

Commonwealth v. Lohr, 468 A.2d 1375, 1377 (Pa. 1983)



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Id. at 15-16 (reproduced record citations omitted).11 Additionally, Halliday

alleges:

             After the close of testimony, the Court informed the
       Commonwealth that the complaining witness’s testimony was
       problematic. The Court said:

           How do you explain the complainant, who knows the
           defendant’s name, and needs glasses only for reading so he
           can distinguish between a man and a woman, saying from,
           inside the ambulance, that he was stabbed by two women.
           It’s the police officer who says that.

       In response, the Commonwealth manufactured a new scenario:
       that Kevin Halliday arranged for Aaron Slaughter to stab the victim
       rather than having actually participated in the altercation. This
       theory was developed out of thin air, was unsupported by the
       evidence had never been posited before. In fact, the theory was
       fabricated to explain away the strong evidence of Mr. Halliday’s
       actual innocence.

Id. at 19 (reproduced record citations omitted).

       Before we may address the merits of this claim, we must determine

whether Halliday has properly preserved this claim.

       To raise his notice/discrepancy issue, appellant was required to
       object contemporaneously to the presentation of the evidence,
       during the prosecution’s opening and closing arguments, or during
       the trial court’s jury instructions, in order to give the trial court a
       contemporaneous opportunity to address the alleged error and to
       preserve the present issue for appeal.              The purpose of
       contemporaneous objection requirements respecting trial-related
       issues is to allow the court to take corrective measures and,
       thereby, to conserve limited judicial resources.


____________________________________________


11
  We note that Halliday refers to Shaniqua Harris as “Shaniqua Harold” in his
brief. At the sentencing hearing, she was referred to with the surname as
Harris. See N.T., 2/18/2016, at 17.

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Commonwealth v. Sanchez, 36 A.3d 24, 42 (Pa. 2011) (citations omitted),

cert. denied, 568 U.S. 833 (2012).

       Here, a review of the record reveals that counsel for Halliday did not

raise this contention until Halliday’s February 18, 2016, sentencing hearing.

See N.T., 2/18/2016, at 17-25.            Counsel mentioned the allegations in an

argument seeking a reduction in Halliday’s sentence,12 and even indicated that

he was “not trying to relitigate the case at this point.” Id. at 23. At trial,

Halliday did not make a contemporaneous objection on such prejudicial

variance grounds at the time the evidence of his cooperation with Slaughter

was introduced or with respect to the verdict.13         Accordingly, Halliday has

waived his final argument, and we will not address it further.                 See


____________________________________________


12
   See N.T., 2/18/2016, at 17 (“We actually sent an investigator out, and
[Harris] identified that is the man[, Slaughter,] who did the stabbing. And
that’s why I’m asking for this reduced sentence.”).

13
     For example, at closing arguments, Halliday’s counsel argued:

       I mean, Judge. I just reiterate, the evidence isn’t here. It’s pure
       speculation about this conspiracy to do this. And with regard to
       the testimony about, that [Halliday] said, well, I didn’t -- you
       know, I didn’t stab him, I was fighting him. Well, right. Because
       Officer Chisholm said [Halliday] was trying to get up. And I was
       like, no. No. [The officer] told [Halliday], there was a situation,
       you got to sit here. That’s how he knew about the stabbing. I
       mean, I think that the Commonwealth, and I have a lot of respect
       for [the prosecutor], I thin[k] they’re grasping at straws here. I
       think that the guilty in this case is the simple assault, and I think
       everything else is not guilty[.]

N.T., 11/24/2015, at 157-158.

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Commonwealth v. Molina, 33 A.3d 51, 55 (Pa. Super. 2011) (“it is ‘well-

settled that a defendant’s failure to object to allegedly improper testimony at

the appropriate stage in the questioning of the witness constitutes waiver’”)

(quotation omitted).   See also Commonwealth v. Baumhammers, 960

A.2d 59, 73 (Pa. 2008) (“it is axiomatic that issues are preserved when

objections are made timely to the error or offense”); Pa.R.A.P. 302(a) (“Issues

not raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

      Judgment of sentence affirmed.

      President Judge Emeritus Bender joins this memorandum.

      Justice Fitzgerald concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/26/2017




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