J-S64023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

YUFAN YAN,

                            Appellant                No. 1639 MDA 2016


            Appeal from the Judgment of Sentence August 26, 2016
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0006068-2014


BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 07, 2017

       Appellant, Yufan Yan, appeals from the judgment of sentence imposed

on August 26, 2016, following his conviction by a jury on May 19, 2016, of

indecent assault and simple assault, 18 Pa.C.S. §§ 3126(a)(1) and

2701(a)(1), respectively.1 We affirm.

       The trial court summarized the facts as follows:

             The testimony at trial revealed that on September 20,
       2014, the Appellant showed up uninvited to [M.C.’s] apartment.8
       Appellant came into the apartment, sat down on the couch along
       with Ms. [C.], put his arm around Ms. [C.], and tried to kiss Ms.
       [C.] Ms. [C.] told him to stop and tried to show him the
       apartment. At some point, the Appellant picked Ms. [C.] up and
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 The jury acquitted Appellant of attempted rape, 18 Pa.C.S. §§ 901(a) and
3121(a), and unlawful restraint, 18 Pa.C.S. § 2902(a)(1).
J-S64023-17


      carried her to the bedroom. Here, he threw her on top of the
      bed and got on top of her. Ms. [C.] testified that the Appellant
      “put his hands in my hoodie and he unbuttoned my shorts and
      he touched my breasts9.” Ms. [C.] repeatedly fought back telling
      the Appellant “no.”

            8   . . . Ms. [C.] had met the Appellant through
            WeChat (an online app that introduces people to
            each other). Ms. [C.] had testified that the Appellant
            had tried to kiss her previously when they first met
            in the school library.

            9    This occurred underneath Ms. [C.’s] bra.

             Ms. [C.] told [Appellant] that she was going to call the
      police. The Appellant froze and Ms. [C.] tried to get away.
      However, the Appellant grabbed a hold of Ms. [C.’s] wrist and
      tried to bring her back into the bedroom. At this point, Ms. [C.]
      ran to the door and told the Appellant to leave. After he left, Ms.
      [C.] called a friend and then called the police.                The
      Commonwealth introduced, through Commonwealth’s Exhibits 4
      and 5, pictures depicting bruises on Ms. [C.’s] wrist.          The
      Commonwealth also introduced the testimony of Officer Chris
      Miller of the Middletown Police Department who responded to the
      call and noticed an injury to Ms. [C.’s] left forearm wrist area.
      Detective Mark Hovan also responded to the scene and testified
      that Ms. [C.] was visibly upset. Detective Hovan also testified
      that he tried to get in contact with the Appellant and met with
      him the next day at the police station. The Commonwealth
      introduced, as Exhibit 6, a video of the interview.10

            10   Portions of the video [were] played for the jury.

Trial Court Opinion, 2/28/17, at 3–4 (internal citations omitted).

      Following Appellant’s conviction on May 19, 2016, the trial court

ordered an assessment by the Pennsylvania Sexual Offenders Assessment

Board to determine whether Appellant should be classified as a sexually

violent predator (“SVP”).      On August 26, 2016, the trial court sentenced

Appellant to payment of costs, a fine of $1500, and twenty-four months of

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intermediate punishment, “three months of which will be restrictive in work

release followed by three months on house arrest with electronic monitoring

followed by regular probationary supervision” for the indecent-assault

conviction.   N.T. (Sentencing), 8/26/16, at 9–10.     For simple assault, the

trial court ordered the payment of a $300 fine and twenty-four months of

intermediate punishment, broken down identically, to run concurrently with

the sentence for indecent assault.      Id. at 12–13.     The trial court also

ordered that Appellant, who was not classified as an SVP, was required to

register as a sexual offender for fifteen years. Order, 8/26/16.

      Appellant filed a motion to modify sentence on September 6, 2016.

On September 29, 2016, the trial court granted the motion and modified

Appellant’s sentence for the indecent-assault conviction to three to six

months of imprisonment with work-release eligibility, followed by eighteen

months of probation.     The court entered an identical, concurrent sentence

for the simple-assault conviction.

      Appellant filed a timely notice of appeal. The trial court ordered the

filing of a Pa.R.A.P. 1925(b) statement by October 27, 2016.                On

November 22, 2016, the trial court filed a memorandum pursuant to Rule

1925(a), noting that due to Appellant’s failure to comply with Pa.R.A.P.

1925, all issues should be considered as waived. Memorandum Statement,

11/22/16.     Appellant’s counsel thereafter filed a motion to file a Pa.R.A.P.

1925(b) statement nunc pro tunc, averring that she never received an order


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to file the Rule 1925(b) statement. When the trial court denied the motion

on December 6, 2016, due to lack of jurisdiction, Appellant filed, in this

Court, an application to remand the record to the trial court for the filing of a

statement nunc pro tunc and a trial court opinion pursuant to Pa.R.A.P.

1925.        On January 17, 2017, this Court granted the requested relief.2

Appellant filed a concise statement of errors complained of on appeal on

February 6, 2017, and the trial court filed an opinion on February 28, 2017.

        Appellant raises the following issues on appeal:

        1.     Whether the court erred when it permitted Detective
               Hovan to offer testimony regarding pre-arrest statements
               the Appellant made during two telephone calls wherein he
               invoked his Article 1, § 9 right against self-incrimination
               and the probative value of the statements was outweighed
               by the potential for prejudice?

        2.     Whether the court erred when it failed to declare a mistrial
               after Detective Hovan, who had been specifically warned
               not to offer opinion testimony, interjected unsolicited
               opinion testimony that he did not make an audio and video
               taped statement of the alleged victim, because Detective
               Hovan said “I believed her.”

        3.     Whether the court erred when it failed to [declare] a
               mistrial after it was disclosed to the defense for the first
               time during the direct examination of the complaining
               witness that she made a telephone call to a friend and
               discussed the alleged incident, after the Appellant had left
               her house and prior to calling 911?

        4.     Whether the court erred in failing to instruct the jury as to
               the failure to call a potential witness pursuant to model
____________________________________________


2 In the meantime, Appellant was paroled on December 30, 2016. Order,
12/30/16.



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              jury instruction 3.21A, specifically the unnamed male
              friend she called prior to calling 911?

       5.     Whether the court erred in failing to instruct the jury as to
              the failure to produce certain documents or other tangible
              evidence under Model Jury Instruction 3.21 B?

Appellant’s Brief at 3–4 (full capitalization and underline omitted).3

       Appellant first challenges the testimony of Detective Mark Hovan.

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).
____________________________________________


3 We note that Appellant has failed to comply with Pa.R.A.P. 2119(a), which
states:

       The argument shall be divided into as many parts as there are
       question to be argued; and shall have at the head of each part—
       in distinctive type or in type distinctively displayed—the
       particular point treated therein, followed by such discussion and
       citation of authorities as are deemed pertinent.

Appellant’s first two issues are properly presented, but the final three issues
are put forth as one claim, with the final two issues lacking in any indication
of their presentation. Appellant’s Brief at 33–37. Although Appellant’s
organization of his argument does not correspond with the issues presented
and does not facilitate our review, it does not impair our review to the extent
that we would decline to address the issues on this basis.



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      Appellant asserts that the trial court erred in denying “Appellant’s

Motion in Limine to exclude the Appellant’s statements made during two

telephone conversations” with Detective Hovan.         Appellant’s Brief at 13.

However, Appellant fails to identify the statements to which he is referring.

Further, Appellant does not indicate the place in the record the motion was

made, other than to state it was pretrial, and he does not inform this Court

whether his motion was written or oral. Appellant utterly fails to support his

contention with reference to the place in the record where inadmissible

evidence was permitted, as required by Pa.R.A.P. 2119(c) (stating if

reference is made to any matter appearing in the record, argument must set

forth place in the record where the matter appears).       For this reason, we

could deem this argument waived. Commonwealth v. Williams, 980 A.2d

667 (Pa. Super. 2009) (stating defendant waived argument on appeal where

he failed to indicate in his brief where the issue was preserved in trial court).

Moreover, and significantly, we have reviewed the record and there is no

motion in limine in the record certified to us on appeal. We note that there

was testimony by Detective Hovan at trial regarding two telephone calls to

Appellant; thus, to the extent we can clarify the issue, we will address it.

      Detective Hovan testified that upon receiving the call regarding a

possible sexual assault, he went to the victim’s residence.      After speaking

with the victim and photographing her injuries, he contacted the assistant

district attorney, who advised him to contact Appellant.       Detective Hovan


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testified that he wanted to speak to Appellant to “get his side of the story.”

N.T. (Trial), 5/18/16, at 131.    The officer proceeded to Appellant’s home,

knocked on the door, but no one answered. Id. at 129. Detective Hovan

then telephoned Appellant, and when Appellant answered, Detective Hovan

stated as follows:

      At that time I told him that I needed to talk to him about a
      situation that occurred in Middletown earlier today. He said he
      was not in Middletown, that he was at Lehigh. He just wanted to
      talk about it over the phone. I said I would prefer to talk to him
      in person. I want to talk to him about the situation. He wanted
      to know more about the situation. I said I wasn’t going to tell
      him that and that I needed to talk to him. It was important that
      I talk to him as soon as possible.

      . . . He said . . . I can’t get back today but I’ll be back tomorrow.
      He said, can you call me back[?] I said, sure, I’ll call you back.

                                     * * *

            I ended up calling him back again and that was a shorter
      conversation. It was just, hey, I need you to come back. He
      said, I’ll be back tomorrow. I would like you to come to the
      Middletown Police Department to talk to me. He said he would.
      We organized a time for that, 1400 hours, 2:00 o’clock, 2:00
      o’clock the next day.

N.T. (Trial), 5/18/16, at 130–131.

      Appellant asserts that his statements to Detective Hovan must be

construed as “his invocation of his right against self-incrimination” under

Article 1, section 9 of the Pennsylvania Constitution. Appellant’s Brief at 13–

14.   In support, he cites Commonwealth v. Molina, 104 A.3d 430, 438

(Pa. 2014) (plurality).




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       In Molina, the       investigating detective   testified   that   while   the

defendant reluctantly answered several questions on the telephone and

ended the call, he refused to go to the police station for further questioning.

In closing arguments, the prosecutor relied on this silence as constituting

evidence of guilt.   Molina, 104 A.3d at 438.      Discounting the defendant’s

reluctance to talk to police on the telephone, the Molina Court found that

the defendant’s “actions in affirmatively and definitively refusing to come to

the police station” were sufficient to invoke his right against self-

incrimination. Id. at 438. Thus, the Court cautioned that the right against

self-incrimination “prohibits use of a defendant’s pre-arrest silence as

substantive evidence of guilt, unless it falls within an exception such as

impeachment of a testifying defendant or fair response to an argument of

the defense.” Id. at 451. Cf. Commonwealth v. Adams, 104 A.3d 511

(Pa.    2014)    (Opinion     Announcing     Judgment      of     Court)    (citing

Commonwealth v. DiNicola, 866 A.2d 329, 337 (Pa. 2005)).

       In Adams, the detective testified over objection that he attempted to

interview the defendant about a homicide, but he responded that he had

nothing to say. Adams, 104 A.3d at 513. No further reference was made

to the defendant’s pre-arrest silence.      The plurality in Adams noted that

mere reference to a defendant’s silence does not necessarily impinge

constitutional rights when guilt is not implied.        Id. at 517; see also

Commonwealth v. McGriff, 160 A.3d 863 (Pa. Super. 2017) (“[T]he right


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against self-incrimination is not burdened when the reference to silence is

‘circumspect’ and does not ‘create an inference of an admission of guilt.’”)

(quoting Adams, 104 A.3d at 517).

      In contrast, herein, the testimony established only that Appellant

stated he was out of town, he initially preferred to talk to the officer on the

telephone, he could not return until the next day, and he agreed to go to

the police station to talk to Detective Hovan. There was no indication that

Appellant refused to answer any questions.        There was no reference to

Appellant’s silence by the Commonwealth.

      We agree with the trial court’s assessment of the issue, as follows:

            The testimony did not constitute an impermissible
      comment by Detective Hovan but instead was used as
      foundational evidence demonstrating how the police obtained a
      video and audio recording of [Appellant’s] statement given to
      police. The Detective’s testimony was given for the narrow
      purpose of describing the police investigation and was not for
      implying [Appellant’s] guilt. (emphasis added).

Trial Court Opinion, 2/28/17, at 5–6.         Appellant’s right against self-

incrimination was not violated, and the issue lacks merit.

      Appellant’s second issue avers, in a prolix and convoluted argument,

trial court error for failure to grant a mistrial. We distill counsel’s rambling

reference to irrelevant testimony and commentary, Appellant’s Brief at 22–

26, and observe that the motion for mistrial was based on Detective Hovan’s

response during cross-examination that he “believed” the victim. Id. at 27;

N.T. (Trial), 5/18/17, at 147. The comment was in response to Appellant’s


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suggestion that while the officer had obtained the victim’s written statement,

he also had “the ability to make an audio and video [recording] of the

statement” but failed to do so.      N.T. (Trial), 5/18/17, at 147.     Appellant

argues that Detective Hovan’s statement was an expression of his opinion

that Appellant was guilty of the crimes charged and required the grant of a

new trial. Appellant’s Brief at 27. We disagree.

       Our standard of review in this context is as follows:

             The trial court is in the best position to assess the effect of
       an allegedly prejudicial statement on the jury, and as such, the
       grant or denial of a mistrial will not be overturned absent an
       abuse of discretion. A mistrial may be granted only where the
       incident upon which the motion is based is of such a nature that
       its unavoidable effect is to deprive the defendant of a fair trial by
       preventing the jury from weighing and rendering a true verdict.
       Likewise, a mistrial is not necessary where cautionary
       instructions are adequate to overcome any possible prejudice.

Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008) (quoting

Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007)).

       Appellant’s attempt to equate this case with that of Commonwealth

v. Capalla, 185 A. 203 (Pa. 1936), fails.          Appellant’s Brief at 33.    In

Capalla, the prosecutor called the defendant a cold-blooded killer in his

closing argument to the jury.       The court concluded that the expression

therein was “equivalent to an expression of belief on the part of the district

attorney that the defendant was guilty of murder in the first degree.” Id. at

206.    In the present case, Detective Hovan’s comment, in response to

defense counsel’s questioning, was mere explanation as to why he did not


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make an audio or video recording of the victim’s statement.         N.T. (Trial),

5/18/17, at 147.    It cannot be construed as comment that Appellant was

guilty.

      The trial court stated the following in support of its decision not to

grant a mistrial:

      Detective Hovan indicated that he did not audio and video record
      the statement given by Ms. [C.] because “he believed her.” N.T.
      at 147. The Appellant contends that this statement “constitutes
      an explicit expression of the Detective’s opinion that the
      Appellant was guilty of the crimes alleged.” Here, however, the
      Detective merely stated that he believed what the victim was
      telling him. Additionally, assuming arguendo that one can infer
      from this statement that the Detective was implicitly implying
      that because he believed the victim, that [Appellant] is thereby
      guilty, this statement is not so prejudicial as to warrant a new
      trial. The victim gave compelling testimony as to the events of
      the crime. Furthermore, it was defense counsel that asked the
      question that elicited the response given by Detective Hovan.
      Additionally, following a brief recess, the jury was immediately
      given a curative instruction that the statement was not to be
      considered as evidence and that the jury was to completely
      disregard that opinion. N.T. at 154. Such instruction dispels
      any harm that may have risen from the improper opinion given
      by Detective Hovan.

Trial Court Opinion, 2/28/17, at 7–8 (footnotes omitted).

      We conclude that Detective Hovan’s statement was not a comment

regarding the detective’s personal belief as to Appellant’s guilt, and to the

extent that it may be interpreted in that light, it was not prejudicial.     Our

Supreme Court has recognized that where a defendant has been charged

with and is being tried for a crime, it is already a clear indication to the jury

that the police believe the defendant is guilty.      See Commonwealth v.


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Wilson, 649 A.2d 435, 446 (Pa. 1994) (Police officer’s reference to

defendant as “prime suspect” in police lineup was not statement of officer’s

personal belief of defendant’s guilt; it did nothing more than reiterate to jury

obvious fact that defendant was charged with murder because it was

believed that he was the perpetrator). This issue lacks merit.

      Next, Appellant asserts that the trial court abused its discretion in

denying his motion for a mistrial based upon “the prosecution’s failure to

disclose that the . . . victim had called a friend immediately prior to calling

911 after the . . . incident.” Appellant’s Brief at 33. Once again, Appellant

fails to identify where in the record the motion was made, denied, and

discussed. Id. at 33–35. As such, we could conclude the issue is waived.

Commonwealth v. Fransen, 42 A.3d 1100, 1116 n.14 (Pa. Super. 2012)

(citing Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006))

(concluding, inter alia, that a claim is waived for failure to direct this Court’s

attention to that part of the record substantiating it); see also Pa.R.A.P.

2119(c) (“If reference is made to . . . any other matter appearing in the

record, the argument must set forth, in immediate connection therewith, or

in a footnote thereto, a reference to the place in the record where the

matter referred to appears.”).

      Our independent review, however, reveals a discussion among the

prosecutor, the court, and defense counsel relating to this claim.           N.T.

(Trial), 5/17/16, at 54. Apparently there had been a discussion at side bar


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regarding the fact that during the victim’s testimony at trial, she indicated

for the first time that immediately after Appellant left her apartment, and

directly before calling 911, the victim first called a friend. Id. at 53. While

defense counsel indicated she had made a motion for a mistrial, the trial

court subsequently stated that indeed, she had not done so. Id. at 54 (“For

the record you only mentioned that you might be moving for a mistrial. You

never formally did that.”).   Then defense counsel so moved, and the trial

court denied it. Id. The following exchange occurred:

      By the Commonwealth: When we spoke at sidebar, Your Honor,
      [defense counsel] had raised the question about the witness, the
      [victim] had testified that before calling the police, she had
      called a friend. We discussed that that information had come to
      light for the first time yesterday afternoon during a trial prep
      meeting. What we discussed was in lieu of [defense counsel]
      seeking a mistrial based on any failure to turn over that evidence
      or inability to follow up on that, that the Commonwealth would
      agree not to play for the jury the 911 call in this case.

                                    * * *

      By the court:     As I understand it, you are accepting the
      compromise that was offered by the Commonwealth, . . . that he
      will not introduce the 911 tape. He will make it part of the
      record for future reference but it will not be played for the jury
      obviously. And in exchange for that, you have some ability to
      cross-examine on the delay involved and [to whom] the phone
      call may have been; but, otherwise, trial moves on.

N.T. (Trial), 5/17/16, at 53–54.

      We have reviewed the victim’s testimony where she revealed, for the

first time, an intervening call. N.T. (Trial), 5/17/17, at 39–40, 99–106. This

is not a situation where evidence material to the guilt of the accused is

withheld as encompassed or envisioned by Brady v. Maryland, 373 U.S. 83

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(1963). Upon vigorous cross-examination by Appellant, the victim could not

even remember who she called.           N.T. (Trial), 5/17/16, at 99.      Moreover,

Appellant has not pointed to any resultant prejudice.              As the trial court

determined, any prejudice to Appellant was de minimus, and any prejudicial

effect “was so insignificant by comparison that the error could not have

contributed to the verdict.”        Trial Court Opinion, 2/28/17, at 8 (quoting

Commonwealth v. Shull, 148 A.3d 820, 846 (Pa. Super. 2016)).

Furthermore,    we    note   that     defense    counsel   chose     to   accept   the

Commonwealth’s compromise offer to refrain from playing the 911 call. This

issue is meritless.

      Appellant presents his final two issues as an addendum to the third

claim discussed above, and he presents them together; thus, we shall

address them likewise. Appellant contends the trial court erred in refusing

to give a missing-witness instruction to the jury and refusing Appellant’s

request for an instruction regarding the Commonwealth’s failure to produce

telephone records. Appellant’s Brief at 35–36. Both of these claims relate

to the fact that the victim could not remember who she called two years

earlier when she telephoned a friend prior to placing the 911 call.

      In reviewing a jury charge, we determine “whether the trial court

committed a clear abuse of discretion or an error of law which controlled the

outcome of the case.” Commonwealth v. Brown, 911 A.2d 576, 582–583

(Pa. Super. 2006). We must view the charge as a whole; the trial court is


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free   to     use   its   own   form   of    expression   in   creating   the   charge.

Commonwealth v. Hamilton, 766 A.2d 874, 878 (Pa. Super. 2001).

“[Our] key inquiry is whether the instruction on a particular issue

adequately, accurately and clearly presents the law to the jury, and is

sufficient to guide the jury in its deliberations.” Id. Moreover:

       [i]t is well-settled that “the trial court has wide discretion in
       fashioning jury instructions. The trial court is not required to
       give every charge that is requested by the parties[,] and its
       refusal to give a requested charge does not require reversal
       unless the appellant was prejudiced by that refusal.”

Commonwealth v. Scott, 73 A.3d 599, 602 (Pa. Super. 2013) (quoting

Brown, 911 A.2d at 583).

       Appellant asserts that he asked the court to give missing-witness and

missing-evidence instructions, and the court refused.             Appellant’s Brief at

35. Appellant fails to refer us to any place in the record where such request

was made and refused.           Indeed, in his brief relating to these two issues,

there is not a single reference to the record. Id. at 35–37. Not only is this

a violation of Pa.R.A.P. 2119(c), “it is a disservice to counsel’s client and this

[C]ourt. It makes review of this matter unnecessarily time consuming and

difficult.”   Commonwealth v. Stafford, 749 A.2d 489, 493 (Pa. Super.

2000).

       Our Supreme Court clarified the procedure for preserving challenges to

jury instructions under the Pennsylvania Rules of Criminal Procedure in

Commonwealth v. Pressley, 887 A.2d 220 (Pa. 2005), stating:


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       The pertinent rules . . . require a specific objection to the charge
       or an exception to the trial court’s ruling on a proposed point to
       preserve an issue involving a jury instruction.             Although
       obligating counsel to take this additional step where a specific
       point for charge has been rejected may appear counterintuitive,
       as the requested instruction can be viewed as alerting the trial
       court to a defendant’s substantive legal position, it serves the
       salutary purpose of affording the court an opportunity to avoid
       or remediate potential error, thereby eliminating the need for
       appellate review of an otherwise correctable issue. This is
       particularly so where a judge believes that the charge
       adequately covered the proposed points. Moreover, charging
       requests are frequently submitted in advance of or during trial,
       with the relevance or necessity of a proposed instruction being of
       different significance as a result of subsequent events. Similarly,
       a judge’s perspective concerning a particular point may be
       altered based upon a party’s arguments.

Id. at 224 (footnotes and citations omitted).

       Herein, Appellant’s counsel failed to make any objection regarding the

omission of the missing-witness or missing-evidence charges, and thus, we

are constrained to find that Appellant’s final arguments are waived under

Pressley. See also Commonwealth v. Hitcho, 123 A.3d 731, 756 (Pa.

2015) (specific exception shall be taken to the language or omission from

the jury charge or issue is waived); Pa.R.Crim.P. 647(B) (omissions from

jury charge may not be assigned as error unless specific objections are

lodged before jury retires to deliberate).4

       Judgment of sentence affirmed.


____________________________________________


4  Even if not waived, we would rely on the trial court’s explanation to find
the issues lack merit. Trial Court Opinion, 2/28/17, at 8–11.



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     Judge Panella and Justice Fitzgerald concur in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017




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