J-S52032-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
       v.                                    :
                                             :
DERRICK WILSON MCCRAY,                       :
                                             :
             Appellant                       :
                                             :   No. 2578 EDA 2015

            Appeal from the Judgment of Sentence March 23, 2015,
                in the Court of Common Pleas of Bucks County,
             Criminal Division, at No(s): CP-09-CR-0003589-2014

BEFORE:      FORD ELLIOTT, P.J.E., STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED SEPTEMBER 14, 2016

     Derrick Wilson McCray (Appellant) appeals from the judgment of

sentence entered following his convictions for rape - threat of forcible

compulsion, indecent assault - threat of forcible compulsion, criminal

trespass,   false   imprisonment,   simple   assault,   and   possession   of   an

instrument of crime. We affirm.

     The aforementioned charges stem from the rape and sexual assault of

Appellant’ ex-wife, Constance Linke, on March 18, 2014. Ms. Linke testified

that, on that date, Appellant entered her home through a basement window

while she was getting ready for work and raped her at knifepoint. Ms. Linke

indicated that she was afraid of Appellant and told him that she did not want

to have sexual relations with him.     At trial, Appellant maintained that the

encounter was pre-arranged and consensual.              Appellant was convicted

following a jury trial and, on March 23, 2015, he was sentenced to an

*Retired Senior Judge assigned to the Superior Court.
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aggregate term of nine to 24 years’ incarceration.     Appellant’s timely-filed

post-sentence motions were denied on August 20, 2015.              This appeal

followed. Both Appellant and the trial court complied with the mandates of

Pa.R.A.P. 1925.

     Appellant raises the following issues for our review, which we have

renumbered for ease of disposition.

     1. Did the trial court err in failing to grant the defense request
     for a continuance to investigate and subpoena a witness, whose
     statement was provided by the Commonwealth on the day of
     trial?

     2. Did the trial court err in allowing the Commonwealth to elicit
     background information from [Ms. Linke] regarding her job, work
     history, military history, and educational background that was
     not provided in discovery and unfairly buttressed her testimony?

     3. Did the trial court err in allowing evidence that [Ms. Linke]
     paid Appellant’s bills?

     4. Did the trial court err in refusing to allow the defense to cross-
     examine [Ms. Linke] regarding her mental health status?

     5. Were the guilty verdicts on counts of rape, indecent assault,
     criminal trespass, false imprisonment, and simple assault against
     the clear weight of the evidence that showed that [] Appellant
     was admitted into [Ms. Linke’s] home, where they engaged in
     consensual sex and no force was employed or weapon used by []
     Appellant?

     6. Was the sentence of one to five years on the count of
     indecent assault running consecutively with the seven to
     fourteen year sentence imposed on rape, illegal and excessive,
     because the two counts merged for purposes of sentence and
     the sentence essentially punishes the same conduct twice?




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      7. Did the trial court abuse its discretion in imposing an
      aggregate sentence of nine to twenty-four years, which was
      excessive under the circumstances in light of [] Appellant’s
      personal circumstances, his character, and the circumstances of
      the offense?

Appellant’s Brief at 6-7 (unnecessary capitalization, parenthetical references,

and trial court answers omitted).

      In his first argument, Appellant claims the trial court erred in denying

his request for a continuance to permit him to investigate, and if necessary,

subpoena, Laura Norwood, an employee of the daycare center attended by

the parties’ minor child. Appellant’s Brief at 18-20. Appellant contends that

he was unaware of Norwood’s existence until the Commonwealth provided

his counsel with a copy of her statement (taken two days before trial) on the

morning of trial. Id. According to her statement, Norwood, now residing in

Arkansas, claimed that Ms. Linke was well-dressed and wearing her hair

down when she came to the daycare to pick up the parties’ child the day of

the incident, which was so unusual that Norwood was compelled to ask if Ms.

Linke had a job interview that day, to which Linke responded that Appellant

had raped her at knifepoint that morning. Id. at 19. Appellant claims that

this statement supported his defense that the encounter was planned and

consensual, and that the court erred in denying his request for a

postponement to investigate further. Id. at 19-20.

      We review this claim mindful of our standard of review.




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     The grant or denial of a motion for a continuance is within the
     sound discretion of the trial court and will be reversed only upon
     a showing of an abuse of discretion. An abuse of discretion is not
     merely an error of judgment; rather discretion is abused when
     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[.]

Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa. Super. 2014)

(citations and quotation marks omitted).

     The trial court determined that Appellant had had ample opportunity to

discover the existence of and investigate Norwood as she was “discovered”

while the Commonwealth was interviewing two other daycare workers

defense counsel had subpoenaed for trial. N.T., 11/12/2014, at 10-14; Trial

Court Opinion, 12/14/2015, at 16.     Under such circumstances, Appellant’s

claim that he was unaware of Norwood’s existence until she was interviewed

by the Commonwealth is unavailing. We are unconvinced that he was

prejudiced when Norwood was discoverable before trial through exercise of

due diligence.   Accordingly, we find no error in the trial court’s refusal of

Appellant’s request for a postponement.

     Appellant’s next three issues concern the admission at trial of various

items of evidence.     We evaluate those claims mindful of the following

standard of review.

           Questions concerning the admissibility of evidence lie
     within the sound discretion of the trial court, and a reviewing
     court will not reverse the trial court’s decision absent a clear
     abuse of discretion. Abuse of discretion is not merely an error of



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     judgment, but rather where the judgment is manifestly
     unreasonable or where the law is not applied or where the record
     shows that the action is a result of partiality, prejudice, bias or ill
     will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citations

omitted).

           The threshold inquiry with admission of evidence is
     whether the evidence is relevant. 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 the existence of a
     material fact. In addition, evidence is only admissible where the
     probative value of the evidence outweighs its prejudicial impact.
     However, where the evidence is not relevant there is no need to
     determine whether the probative value of the evidence
     outweighs its prejudicial impact. Instead, once it is determined
     that the trial court erred in admitting the evidence, the inquiry
     becomes whether the appellate court is convinced beyond a
     reasonable doubt that such error was harmless. Harmless error
     exists where: (1) the error did not prejudice the defendant or
     the prejudice was de minimis; (2) the erroneously admitted
     evidence was merely cumulative of other untainted evidence
     which was substantially similar to the erroneously admitted
     evidence; or (3) the properly admitted and uncontradicted
     evidence of guilt was so overwhelming and the prejudicial effect
     of the error was so insignificant by comparison that the error
     could not have contributed to the verdict.

Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998) (citations and

quotation marks omitted).

     Appellant first complains that the trial court erred in permitting the

Commonwealth to elicit background information from Ms. Linke, including

her employment, military, and educational background. Appellant’s Brief at

21-22.      Appellant contends that this information was not provided in



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discovery1 and its admission served to bolster improperly Ms. Linke’s

testimony, resulting in prejudice. Id.

      The trial court addressed this claim as follows.

             Appellant’s [c]ounsel objected to all testimony [Ms. Linke]
      provided regarding where she worked, which she testified that
      she is “a special agent for the United States Office of Personnel
      Management, Federal Investigative Services.” Appellant’s
      [c]ounsel also objected to testimony regarding the length of time
      she worked there, and what she generally did as a living, which
      she testified to conducting “background investigations for
      positions of employment involving national security of the
      public’s trust.” Appellant’s [c]ounsel also objected when she was
      questioned about where she traveled to as part of her job and
      whether she worked from home. After this last objection, the
      [c]ourt called both parties to sidebar to discuss the Appellant’s
      objections. During a sidebar conversation, the [c]ourt stated
      that:

            THE COURT: Obviously, you’re entitled to lay some
            background, but at this point I’m starting to lose
            sight of the relevance of this. And I assume
            relevance is your objection?

            [APPELLANT’S COUNSEL]: Relevance, and I have no
            information about any of this. I have no idea where
            this is going. I don’t know what she’s going to say.
            This has not been provided to me in discovery, and I
            have no idea where this is going.

                  I think she’s trying to make, you know, her job
            buttress her testimony, and i think it’s unfair. It has
            no relevance to this case whatsoever.



1
  In his brief, Appellant does not argue that the Commonwealth violated the
rules of discovery with respect to this issue. It is worth noting that the
parties were married prior to this incident and, arguably, any information
about Ms. Linke’s military or employment background was known to
Appellant at the time of trial.


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           [ASSISTANT DISTRICT ATTORNEY (ADA)]: Defense
           counsel had indicated that a witness that - from the
           day care center that they’re going to testify that she
           showed up like she had never before, dressed up like
           she never had been before. I think the implication
           was in her opening statement that the victim in this
           case dressed up to meet [Appellant].

                 The relevance of what she’s going to say is
           that every - most days she stays at home and works
           in sweatpants and a sweatshirt and doesn’t do
           anything other than work from home.

                 On the days that she doesn’t work from home,
           she goes out and interviews people. And when she
           does that, she does get dressed up.

           THE COURT: And I’m assuming --

           [ADA]: And on this day she was scheduled to
           conduct five interviews, and that’s why she appeared
           differently than she had any -

           THE COURT: All right. That’s appropriate. Let’s get to
           that point, though.

     The Commonwealth then questioned the witness as to her
     education and whether she was in the armed forces in order to
     explain how she received her current job. Finally, after being
     questioned whether she went overseas while being in the Navy,
     Appellant’s [c]ounsel objected. The [c]ourt overruled the
     objection because “credibility of a witness is always an issue,”
     but only allowed some testimony. The Supreme Court of
     Pennsylvania has held that “it is the province of the trier of fact
     to pass upon the credibility of witnesses and the weight to be
     accorded the evidence produced. The fact finder is free to
     believe all, part or none of the evidence.” The [c]ourt did not
     abuse its discretion in allowing [Ms. Linke] to testify about
     background information and the jury had the ability to determine
     the credibility of [Ms. Linke’s] testimony throughout the direct
     and cross-examinations.




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Trial Court Opinion, 12/14/2015, at 17-18 (citations to notes of testimony

omitted).

      It is well-settled that, “in a rape case, Pennsylvania law has long

stated that the credibility of the complaining witness is always at issue.”

Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004).

Accordingly, evidence of Ms. Linke’s credibility was relevant to the

proceeding. We note that the defense herein was one of consent and relied

heavily on Ms. Linke’s appearance the day of the incident, which was directly

tied to her employment and personal history. Given this defense, and the

relevance of Ms. Linke’s credibility, the probative value of the complained of

background information outweighed any prejudice to Appellant.           Thus, we

find no error in the trial court’s admission of Ms. Linke’s background

testimony to establish her credibility and rebut Appellant’s defense.

      Appellant also claims that the court erred in admitting evidence that

Ms. Linke paid Appellant’s bills. Appellant’s Brief at 23-24.        Specifically,

Appellant contends that this information was not relevant and served to

prejudice him. Id. This argument is belied by the record. As the trial court

explained,

             the testimony was introduced for an explanation as
             to why [Ms. Linke] and [] Appellant were
             communicating and planned to meet on February 14,
             2014. Appellant contacted [Ms. Linke], asking her to
             help him pay his phone bill so it would not get shut
             off. [Ms. Linke] testified she agreed to help because



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            she knew he was looking for jobs and could receive
            calls for interviews, and ultimately this would help
            support their daughter. [Ms. Linke] then testified to
            helping [] Appellant financially after she moved out
            by paying the rent for their apartment, the utility
            bills, and food if the Appellant needed help. Later,
            Appellant had the opportunity to provide an
            explanation for why he contacted [Ms. Linke] for
            financial assistance. Appellant testified that he found
            out that the money in his bank account was no
            longer there and [Ms. Linke] helped [] Appellant rent
            cars and pay his cellphone bill.            Therefore,[]
            Appellant had the opportunity to present an
            explanation of [Ms. Linke’s] testimony regarding
            financially supporting the Appellant and the jury was
            able to weigh the credibility of [Ms. Linke] and the
            Appellant.

Trial Court Opinion, 12/14/2015, at 18-19 (citations to notes of testimony

omitted).

      As the trial court explained, Ms. Linke’s testimony was admitted not to

establish Appellant’s indigence, but to explain why she had planned to see

Appellant on the day of the incident. Because such testimony is relevant to

Ms. Linke’s credibility, and to Appellant’s defense that the parties were in

contact despite their separation and that the encounter was consensual, we

determine that the trial court did not err in admitting the testimony of which

Appellant now complains.

      Appellant also argues that the trial court erred in refusing to allow Ms.

Linke to be cross-examined as to her mental health status. Appellant’s Brief

at 25-26.




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           During trial, Appellant’s [c]ounsel attempted to question
     Karen Dougherty, a registered nurse in the emergency
     department and director of the forensic nursing program at
     Abington Memorial Hospital, about [Ms. Linke’s] mental health
     and past medical history taken as part of the victim’s [sexual
     abuse] exam. The Commonwealth objected and Appellant’s
     [c]ounsel explained that the “Commonwealth put on evidence
     that that was part of what the examination entailed. I’m just
     asking what the result of that was.” At sidebar, the [c]ourt ruled
     that:

          THE COURT: First of all, there is a big difference
          between saying: Do you take a past medical history,
          and, what is that. A victim of a sexual assault does
          not leave any right to what their past medical history
          is. I don’t know what you’re trying to elicit here.
          What’s in the report that you wish to get out of
          there?

          [APPELLANT’S COUNSEL]: It indicates a past medical
          history of post-traumatic stress disorder, anxiety and
          depression, and they take Depakote.

          THE COURT: How is that relevant today in this
          matter?

          [APPELLANT’S COUNSEL]: Well, it indicates that [Ms.
          Linke] has a psychiatric history.

          THE COURT: How is that relevant in this matter? Do
          you have some testimony that you are going to elicit
          to show that at time time of this proceeding, that
          she was psychotic, or on this medication, that the
          medication would in some way affect her ability to
          understand or recall the events?

          [APPELLANT’S COUNSEL]: We’re not putting on
          testimony, Judge, but I do think I’m allowed to ask
          that question [of Nurse Dougherty].

          THE COURT: You wish to blacken a reputation? Is
          that what you are attempting to do?



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            [APPELLANT’S COUNSEL]:        No.    It’s   part   of   her
            medical history.

            THE COURT:       The   objection    is   sustained.     It’s
            irrelevant.

            (Sidebar concluded).

Trial Court Opinion, 12/14/2015, at 19-20 (citations to notes of testimony

omitted).

      “When reviewing a challenge to the scope of cross-examination, we

employ the following standard: The scope and the manner of cross-

examination are within the sound discretion of the trial court and will not be

overturned unless the court has abused that discretion.” Commonwealth v.

Nunn, 947 A.2d 756, 761 (Pa. Super. 2008) (citation omitted). Further,

      when determining the admissibility of evidence of a witness’
      mental instability,

            [t]he crucial determination that a trial judge must
            make ... is whether [this evidence] is related to the
            subject of the litigation or whether it affects the
            testimonial ability of the witness so as to impeach
            him. The evidence can be said to affect the credibility
            of a witness when it shows that his mental
            disorganization in some way impaired his capacity to
            observe the event at the time of its occurrence, to
            communicate his observations accurately and
            truthfully at trial, or to maintain a clear recollection
            in the meantime.

Commonwealth v. Gonzalez, 109 A.3d 711, 726 (Pa. Super. 2015)

(citation omitted).




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      Applying Gonzalez, we find no error in the trial court’s limitation of

Appellant’s cross-examination where Appellant offered nothing to suggest

that evidence of Ms. Linke’s mental health history was relevant in any way to

the incident in question or her testimonial capacity regarding the incident.

      Moreover, Appellant has failed to establish that the court “erred in not

allowing the defense to inquire of [Ms. Linke] whether her multiple mental

health diagnoses impacted her ability to recall the events.” Appellant’s Brief

at 26. The record reflects that Ms. Linke testified second, after a responding

officer and immediately before the attending nurse performing the assault

examination.   N.T., 11/12/2014.      The notes of testimony make clear that

Appellant did not attempt to cross-examine Ms. Linke regarding her mental

health history, but instead chose to question the attending nurse regarding

what Ms. Linke reported during her sexual assault examination. Id. at 126-

169. Accordingly, this claim fails.

      Appellant next argues that his verdicts are against the weight of the

evidence presented at trial. Appellant’s Brief at 14-17.

              The law pertaining to weight of the evidence claims is well-
      settled. The weight of the evidence is a matter exclusively for
      the finder of fact, who is free to believe all, part, or none of the
      evidence and to determine the credibility of the witnesses. A new
      trial is not warranted because of a mere conflict in the testimony
      and must have a stronger foundation than a reassessment of the
      credibility of witnesses. Rather, the role of the trial judge is to
      determine that notwithstanding all the facts, certain facts are so
      clearly of greater weight that to ignore them or to give them
      equal weight with all the facts is to deny justice.



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             On appeal, our purview is extremely limited and is
      confined to whether the trial court abused its discretion in
      finding that the jury verdict did not shock its conscience. Thus,
      appellate review of a weight claim consists of a review of the
      trial court’s exercise of discretion, not a review of the underlying
      question of whether the verdict is against the weight of the
      evidence.

Gonzalez, 109 A.3d at 723 (quotation marks and citations omitted).

      Here, Appellant’s limited argument on this point assails alleged

inconsistencies in Ms. Linke’s testimony and suggests that the jury erred in

disbelieving his version of events. Appellant’s Brief at 14-17. Our case law

is clear that a jury sitting as finder of fact is “in the best position to view the

demeanor of the Commonwealth’s witnesses and to assess each witness’[s]

credibility.” Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa. Super.

2013) (citation omitted). Here, the Commonwealth presented the testimony

of the responding officers and detectives, Ms. Linke, and the attending

nurse, as well as that of Appellant’s girlfriend and her grandfather.

Appellant testified on his own behalf and presented the testimony of a

daycare worker who observed Ms. Linke on the day of the incident. The jury

was free to find the Commonwealth’s witnesses’ testimony credible and

resolve any inconsistencies in the Commonwealth’s favor. See generally

Commonwealth v. Horne, 89 A.3d 277, 286 (Pa. Super. 2014) (holding

that Horne’s weight of the evidence claim could not prevail as “the jury

resolved the inconsistencies among the testimonies as it saw fit and reached



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a verdict.”); Commonwealth v. Simmons, 662 A.2d 621, 630 (Pa. 1995)

(“After examining the evidence in this case, we find that appellant’s

assertion that the inconsistencies in the witnesses’ testimony rendered them

incredible to have no merit since the inaccuracies claimed are only minor

and a witness’s credibility is solely for the [fact-finder] to determine.”). We

discern no abuse of discretion in the trial court’s finding that the jury’s

verdict was not against the weight of the evidence. Accordingly, Appellant’s

weight claim does not warrant relief.

      Appellant next argues that his sentence is illegal because the crimes of

indecent assault and rape should have merged for the purposes of

sentencing. Appellant’s Brief at 27-28. Our standard of review is de novo

and the scope of our review is plenary. Commonwealth v. Baldwin, 985

A.2d 830, 833 (Pa. 2009) (citation omitted).

      It is well-settled that “[n]o crimes shall merge for sentencing purposes

unless the crimes arise from a single criminal act and all of the statutory

elements of one offense are included in the statutory elements of the other

offense. Where crimes merge for sentencing purposes, the court may

sentence the defendant only on the higher graded offense.” 42 Pa.C.S.

§ 9765. Thus, merger is “prohibited 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 the




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other.” Baldwin, 985 A.2d at 833.

      This Court has determined that “when an indecent assault conviction is

predicated upon an act separate from the act of forcible intercourse, the

indecent assault conviction does not merge with a conviction for rape. This is

true whether the act which constitutes indecent assault is committed

immediately prior to, or concurrently with the rape.” Commonwealth v.

Richter, 676 A.2d 1232, 1236 (Pa. Super. 1996). Applying this precedent,

the trial court explained,

            A person commits rape, “when the person engages in
      sexual intercourse with complainant: (2) by threat of forcible
      compulsion that would prevent resistance by a person of
      reasonable resolution.” 18 Pa.C.S.[] §3121(A)(2). A person is
      guilty of indecent assault “if the person has indecent contact
      with the complainant, causes complainant to have indecent
      contact with the person or intentionally causes the complainant
      to come into contact with seminal fluid, urine or feces for the
      purpose of arousing sexual desire in the person or the
      complainant and: (2) the person does so by forcible
      compulsion.” 18 Pa.C.S.[] §3126(a)(2). Here, [Appellant’s] two
      acts are two distinct crimes which do not merge. [] Appellant,
      while holding a knife, forced the victim into her bedroom, made
      her undress and demanded she turn around and bend over. []
      Appellant then inserted his penis into her vagina for a few
      minutes. Therefore, the jury found the Appellant guilty of rape
      by forcible compulsion. Next, [] Appellant while still holding the
      knife, made the victim turn around and get on her knees. []
      Appellant then ejaculated onto her face. Therefore, the criminal
      acts were committed successively and were not necessarily an
      ingredient of the other, so the sentence[es] of the two
      convictions do not merge.

Trial Court Opinion, 12/14/2015, at 13.




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      We agree with the court’s reasoned analysis and, thus, find no error in

the trial court’s imposition of a separate sentence for indecent assault and

rape under these facts. Accordingly, we hold that Appellant is not entitled to

relief on this issue.

      Finally, Appellant presents a challenge to the discretionary aspects of

his sentence, arguing that the imposition of consecutive, rather than

concurrent sentences was an abuse of the court’s discretion. Appellant’s

Brief at 29-30. We address this claim mindful of the following:

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely; (2) whether Appellant preserved his
         issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under
         the sentencing code…. [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      Appellant sought reconsideration of his sentence in a post-sentence

motion and he timely filed a notice of appeal. Additionally, he has included a

Rule 2119(f) statement in his brief to this Court.           Nonetheless, the




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Commonwealth asks that we find this issue waived on the basis that

Appellant’s post-sentence motion and 1925(b) statement claim that the

sentence is excessive “in light of [Appellant’s] personal circumstances, his

character and the circumstances of the offense” and fail to raise an issue

regarding the consecutive nature of the sentence. Commonwealth’s Brief at

46.   Thus, the Commonwealth argues that the particular claim Appellant

seeks to raise on appeal is waived for failure to raise it in the court below.

Id.; Pa.R.A.P. 302(a). We are constrained to agree.

             [F]or any claim that was required to be preserved, [an
      appellate court] cannot review a legal theory in support of that
      claim unless that particular legal theory was presented to the
      trial court. Thus, even if an appellant did seek to withdraw pleas
      or to attack the discretionary aspects of sentencing in the trial
      court, the appellant cannot support those claims in this Court by
      advancing legal arguments different than the ones that were
      made when the claims were preserved.

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008). Because

the legal theory advanced before this Court differs from that raised before

the trial court in Appellant’s post-sentence motion and his 1925(b)

statement, Appellant has waived this claim.

      Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/14/2016




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