J-A21031-17


                                   2018 PA Super 38

    COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT
                                                            OF PENNSYLVANIA
                              Appellee

                        v.

    THOMAS RADECKI

                              Appellant                    No. 1558 WDA 2016


      Appeal from the Judgment of Sentence entered September 21, 2016
                In the Court of Common Pleas of Clarion County
               Criminal Division at No: CP-16-CR-0000540-2013


BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.

OPINION BY STABILE, J.:                            FILED FEBRUARY 21, 2018

       Appellant Thomas Radecki appeals from the September 21, 2016

sentence entered in the Court of Common Pleas of Clarion County (“trial

court”),   following    his   jury   convictions   for   nine   counts   of   unlawful

administration, dispensing, delivery, gift, or prescription of a controlled

substance by a practitioner, one count of criminal conspiracy, one count of

dealing in the proceeds of illegal activity, and one count of corrupt

organizations.1 Upon review, we affirm.

       The facts and procedural history of this case are undisputed.2 Briefly,

Appellant, a psychiatrist with medical offices in Clarion, Seneca, Kane, and

____________________________________________


1 35 P.S. § 780-113(a)(14), and 18 Pa.C.S.A. §§ 903(a), 5111(a), and
911(b)(3), respectively.
2 Unless otherwise noted, these facts are taken from the Trial Court
Pa.R.A.P.1925(a) Opinion, 1/11/17, at 1-3.
J-A21031-17



DuBois, started and operated an office-based drug treatment program.

Appellant’s practice eventually expanded to approximately 2000 patients,

many of whom were addicted to heroin or pain killers. Some of Appellant’s

patients were poor, young women who wanted drugs from him to nurse their

addiction. Appellant, however, exploited their addiction and financial status

by cultivating sexual relationships with them in exchange for free medication,

free housing, office jobs, and forgiveness of account balances. Appellant has

a child with one of these women.

      To treat patients, Appellant prescribed Suboxone or Subutex. Appellant

also diagnosed many patients with psychiatric disorders and depression and

treated them with Ritalin and Adderall.    The combination of Suboxone or

Subutex with Ritalin and Adderall was contraindicated. Law enforcement was

alerted to Appellant’s practice based on the combination of medications and

the sheer volume of doses that Appellant was prescribing his patients. The

United States Drug Enforcement Administration (“DEA”) and the Pennsylvania

Office of Attorney General (“OAG”) initiated an investigation of Appellant’s

practice, resulting in the executions of numerous search warrants at his

practice locations and residence.

      The OAG convened a statewide investigating grand jury in connection

with its probe. On July 29, 2013, the grand jury issued Presentment Number




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J-A21031-17



46,3 recommending that criminal charges be brought against Appellant. On

August 20, 2013, the OAG charged Appellant with, inter alia, multiple

violations of the Controlled Substance, Drug, Device and Cosmetic Act,

criminal conspiracy, dealing in the proceeds of illegal activity, and corrupt

organizations.

       The case proceeded to a jury trial, at which both sides presented

testimony.    Following a ten-day trial, a jury found Appellant guilty of nine

counts of unlawful administration, dispensing, delivery, gift, or prescription of

a controlled substance by a practitioner, one count of criminal conspiracy, one

count of dealing in the proceeds of illegal activity, and one count of corrupt

organizations.4

       On June 3, 2016, the trial court sentenced Appellant to an aggregate

term of 133 to 266 months’ imprisonment. Specifically, with respect to the

nine counts of unlawful administration, dispensing, delivery, gift, or

prescription of a controlled substance by a practitioner, the trial court

sentenced Appellant as follows:

       1. Count 5 as to [M.M.], not less than 12 months nor more than
          24 months,

____________________________________________


3 The Supervising Judge of the Thirty-Fourth Statewide Investigating Grand
Jury, Norman A. Krumenacker III, accepted the grand jury’s presentment and
designated Clarion County, Pennsylvania, as venue for prosecution of
Appellant’s crimes.
4The jury found Appellant not guilty of four counts of unlawful administration,
dispensing, delivery, gift, or prescription of a controlled substance by a
practitioner, and one count of criminal conspiracy (corrupt organizations).

                                           -3-
J-A21031-17


      2. Count 6 as to [C.Y.], not less than 12 months nor more than
         24 months,

      3. Count 7 as to [A.A.], not less than 12 months nor more than
         24 months,

      4. Count 10 as to [T.C.], not less than 12 months nor more than
         24 months,

      5. Count 11 as to [A.C.], not less than 9 months nor more than
         18 months,

      6. Count 12 as to [J.D.], not less than 9 months nor more than
         18 months,

      7. Count 13 as to [R.P.], not less than 9 months nor more than
         18 months,
      8. Count 15 as to [A.Z.], not less than 12 months nor more than
         24 months, and

      9. Count 16 as to [C.M.], not less than 9 months nor more than
         18 months.

Sentencing Order, 6/3/16, at 2-3. The trial court sentenced Appellant to 9 to

18 months in prison for criminal conspiracy, 12 to 24 months in prison for

dealing in the proceeds of illegal activity, and 16 to 32 months in prison for

corrupt organizations. The sentences on all twelve counts were ordered to

run consecutively to each other. Id. at 4. The trial court also imposed fines

and costs.

      On June 10, 2016, the Commonwealth filed a motion for modification of

sentence regarding costs and fines. The Commonwealth claimed that it erred

in informing the trial court at sentencing that funds which had been seized

from Appellant in civil forfeiture could be applied toward a fine as part of

Appellant’s sentence in his criminal case.

      On June 13, 2016, Appellant filed post-sentence motions, arguing, inter

alia, that the trial court abused its discretion in sentencing him in the

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J-A21031-17



aggravated range, “running all sentences consecutive[ly] as they were part of

the same plan and scheme with no intervening interrupting conduct,” and

imposing an aggregate term of 11 to 22 years’ imprisonment. Appellant’s

Post-Sentence Motions, 6/13/16, at ¶ 2. On July 5, 2016, Appellant’s trial

counsel, John P. Troese, filed a motion for continuance, which the trial court

granted on July 11, 2016. In so doing, the trial court continued the hearing

on Appellant’s post sentence motions to August 25, 2016.

      On August 1, 2016, Attorneys Alexander H. Lindsay, Jr. and J. Andrew

Salemme, entered their appearance on Appellant’s behalf.           On August 17,

2016, Appellant’s new attorneys filed a motion for continuance, arguing:

      8. For the several reasons that follow, counsel now requests that
      the [c]ourt grant a second continuance to permit new counsel to
      familiarize himself with the issues raised by trial counsel and to
      allow for amendment of the post sentence motions to include
      allegations of ineffective assistance of counsel. The amended post
      sentence motion will include a waiver of PCRA rights by
      [Appellant].

      9. As the court is aware, trial transcripts were ordered by trial
      counsel and those transcripts are not yet available. The trial
      transcripts are indispensable to counsel in preparing for argument
      on the several issues raised in the post sentence motion. Counsel
      still has not been provided with a completion date.

      10. Counsel has been meeting with [Appellant] at the Clarion
      County Jail as well as consulting with trial counsel and expects to
      file the amended post sentence motions within the next 10 days.

Second   Motion   for   Continuance,   8/17/16,   at   ¶¶   8-10    (unnecessary

capitalization omitted) (sic). On August 19, 2016, the trial court denied the

motion for continuance.




                                       -5-
J-A21031-17



     On August 23, 2016, Appellant’s trial counsel, John P. Troese, filed a

motion to withdraw his appearance.      On August 24, 2016, the trial court

denied trial counsel’s withdrawal motion, reasoning:

            The Comment to [Pa.R.Crim.P.] 120 advises the court to
     consider various factors, including whether a change in attorneys
     will delay the proceedings or prejudice [Appellant], particularly
     concerning time limits, and whether [Appellant] has failed to meet
     his financial obligations to pay for Attorney Troese’s services or
     there is a written contractual agreement terminating
     representation at a specific stage in the proceedings. Also, the
     Comment provides, “[i]f a post-sentence motion is filed, trial
     counsel would normally be expected to stay in the case until
     disposition of the motion under the post-sentence procedures
     adopted in 1993. See Pa.R.Crim.P. 704 and 720.

            In considering these factors, the court has first determined
     that a change in attorneys from Attorney Troese to Attorney
     Lindsay will delay the argument on the post-sentence motions
     scheduled for tomorrow because Attorney Lindsay has stated in
     his motion for continuance that trial transcripts are indispensable
     to him in preparing for argument on the motions and he does not
     know when the transcripts will be completed. It appears unlikely
     that Attorney Lindsay will be able to receive and review transcripts
     from the lengthy trial and prepare for argument and the attorneys
     will be available to present their arguments and the court will have
     sufficient time to decide the motions before the expiration of the
     120-day time period set by Rule 720(B)(3)(a). If the court cannot
     meet the deadline established by Rule 720, [Appellant] may be
     prejudiced. Further, Attorney Lindsay has stated in his motion for
     continuance that he will be filing amended post-sentence motions,
     which require review and consideration by the attorneys for the
     Commonwealth, and may cause further delay.
           In addition, [Appellant] has not demonstrated a need to
     change attorneys in order to effectively address the post-sentence
     motions. Attorney Troese should be well prepared to argue
     [Appellant’s] positions on [Appellant’s] and Commonwealth’s
     post-sentence motions tomorrow because he represented
     [Appellant] during all pre-trial, trial and sentencing proceedings
     and he prepared [Appellant’s] post-sentence motion. The only
     indication that [Appellant] believes Attorney Troese should not
     argue the motions is the statement in Attorney Lindsay’s motion
     for continuance that he desires to amend the post-sentence
     motion to include allegations of ineffective assistance of counsel.
     [Appellant] has not made any specific allegations of
     ineffectiveness. [Attorney] Lindsay has not filed an amended
     post-sentence motion and this court has not determined whether
     [Appellant] may raise ineffectiveness claims in a post-sentence
     motion.

                                    -6-
J-A21031-17


             In considering the additional factors in the Comment to Rule
       720, there is no indication [Appellant] has failed to meet his
       financial obligations to pay for Attorney Troese’s services or there
       is a written contractual agreement terminating representation at
       a specific stage in the proceedings.

Trial Court Order, 8/24/16 (unnecessary capitalization omitted).

       On August 25, 2016, Appellant’s new counsel filed supplemental post-

sentence motions, raising twenty-one issues,5 including claims of ineffective

assistance of trial counsel. On September 21, 2016, the trial court granted in

part and denied in part Appellant’s post-sentence motions, and granted the

Commonwealth’s motion for modification of sentence. On the same day, the

trial court issued an amended sentencing order.6

       Appellant timely appealed to this Court on October 12, 2016. The trial

court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. Appellant complied, raising fourteen assertions of

error. On December 12, 2016, Appellant filed a supplemental Rule 1925(b)

statement, raising four additional assertions of error. On January 11, 2017,

the trial court issued a Pa.R.A.P. 1925(a) opinion.

       On appeal, Appellant presents eleven issues for our review:

       [I.] Did the trial court err in precluding [Appellant] from
       presenting the expert testimony of Dr. Johnson and in ruling that
       Dr. Johnson was not qualified as an expert, and could not testify
       that [Appellant] had a reputation in the office-based


____________________________________________


5Many of the issues raised in the supplemental post-sentence motions were
borrowed from the previous post-sentence motion filed by trial counsel.
6 With the exception of rendering Appellant eligible for the Recidivism Risk
Reduction Incentive (RRRI) program and imposition of new fines, Appellant’s
sentence remained unchanged.

                                           -7-
J-A21031-17


     buprenorphine treatment community for being knowledgeable and
     well-respected?

     [II.] Whether the trial court erred in admitting into evidence
     testimony by [M.M.] regarding a settlement she received in a
     medical malpractice and personal injury suit against [Appellant],
     in violation of Pa.R.E. 408, where the testimony was not evidence
     of an effort by [Appellant] to obstruct the criminal investigation in
     this matter, and violated 42 Pa.C.S.[A.] § 6141?

     [III.] Whether the trial court erred in failing to grant a mistrial
     based on the testimony of [M.M.] concerning a civil settlement
     and provided a misleading curative instruction to the jury
     regarding those statements where the evidence did not regard
     obstructing an investigation?

     [IV.] Did the trial court err in allowing Agent James Embree to
     provide expert testimony regarding the distinction between
     methadone clinics and office based opioid therapy as well as the
     distinction between Suboxone and Subutex and that Subutex is
     abused by addicts, where Agent Embree was not qualified as an
     expert and did not provide an expert report?

     [V.] Whether trial court erred in permitting expert testimony by
     pharmacist Bonnie Anthony regarding appropriate prescriptions
     for an opioid addicted individual with [Attention Deficit
     Hyperactivity Disorder (“ADHD”)], where she was not qualified as
     an expert, did not provide an expert report, nor was she called as
     an expert witness?

     [VI.] Did the trial court err in allowing irrelevant evidence to be
     introduced concerning the manner in which [Appellant] treated
     [M.F.], an employee?

     [VII.] The trial court erred in not directing that the Commonwealth
     provide, under Pa.R.E. 1006, the actual records related to Steven
     Morse’[s] factually erroneous testimony concerning [Appellant]
     allegedly purchasing 589,140 dosage units of buprenorphine in
     2011, more than two times more than any other purchaser in the
     country.

     [VIII.] Whether the trial court erred in allowing the
     Commonwealth to exceed the scope of direct examination with
     respect to whether Dr. Bhagwandien had a collaborative
     agreement with nurse practitioners and the Commonwealth
     thereby suggesting that [Appellant] encouraged the nurse
     practitioners to improperly issue prescriptions for Suboxone?

     [IX.] Did the trial court err by imposing an excessive sentence by
     imposing consecutive sentences in non-violent crimes on each
     count resulting in a de facto life sentence since [Appellant] is over
     seventy years of age.



                                     -8-
J-A21031-17


       [X.] Whether the trial court erred in finding that [Appellant] did
       not make a showing of good cause or exceptional circumstances
       to allow him to waive his PCRA rights and permit his ineffective
       assistance of counsel claims to be reviewed on direct appeal where
       he is over seventy years of age and the trial court repeatedly
       denied [Appellant’s] post-sentence motion issues on the grounds
       that trial counsel had waived most of these claims entitling
       [Appellant] to a limited remand to waive his PCRA rights and raise
       ineffectiveness claims on direct appeal?

       [XI.] Did the trial court err in refusing to allow trial counsel, John
       Troese, to withdraw upon the entry of appearance by the
       undersigned, depriving [Appellant] of his chosen counsel for
       purposes of his post-sentence motion and the relevant hearing,
       and violating his right to counsel under the Sixth Amendment and
       Article I, § 9?

Appellant’s Brief at 5-7 (sic).7

       Appellant’s first eight issues challenge the trial court’s evidentiary

rulings. It is settled:

       [a]dmission 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. An abuse of discretion is not merely
       an error of judgment, but is rather the overriding or misapplication
       of the law, or the exercise of judgment that is manifestly
       unreasonable, or the result of bias, prejudice, ill-will or partiality,
       as shown by the evidence of record.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (internal

citations omitted). Moreover, an appellant bears a “heavy burden” to show

that the trial court has abused its discretion. Commonwealth v. Christine,

125 A.3d 394, 398 (Pa. 2015).            “[A]n appellate court may affirm a valid

judgment based on any reason appearing as of record, regardless of whether

it is raised by appellee.” Commonwealth v. Moore, 937 A.2d 1062, 1073

(Pa. 2007) (citation omitted).

____________________________________________


7Appellant does not challenge his convictions on the basis of sufficiency or
weight of the evidence.

                                           -9-
J-A21031-17



      We first address Appellant’s argument that the trial court abused its

discretion in disallowing him to present the expert testimony of Dr. Brian

Johnson because trial counsel neglected to provide an expert report.

Appellant argues that, to rebut the Commonwealth’s expert’s testimony that

Appellant’s prescribing practices were in disharmony with accepted treatment

principles, he sought to present Dr. Johnson’s medical testimony. Dr. Johnson

would have testified that “[Appellant’s] prescribing practices and the

frequency of [his] diagnosis of ADHD in his patients was conservative and that

his treatment of those patients was excellent.”      Appellant’s Brief at 30.

Appellant, however, concedes that he failed to follow the trial court’s orders

when his trial counsel did not furnish the Commonwealth with an expert

report.

      The Commonwealth argues that the trial court did not abuse its

discretion because Appellant repeatedly failed to comply with the trial court’s

directive to provide the Commonwealth with an expert report. We agree.

      Pennsylvania Rule of Criminal Procedure 573 governs, among other

things, pretrial disclosure of expert reports during discovery.      Rule 573

provides in pertinent part:

      (C) Disclosure by the Defendant.

      (1) In all court cases, if the Commonwealth files a motion for
      pretrial discovery, upon a showing of materiality to the
      preparation of the Commonwealth’s case and that the request is
      reasonable, the court may order the defendant, subject to the
      defendant’s rights against compulsory self-incrimination, to allow
      the attorney for the Commonwealth to inspect and copy or
      photograph any of the following requested items:



                                    - 10 -
J-A21031-17


           (a) results or reports of physical or mental
           examinations, and of scientific tests or experiments
           made in connection with the particular case, or copies
           thereof, within the possession or control of the
           defendant, that the defendant intends to introduce as
           evidence in chief, or were prepared by a witness
           whom the defendant intends to call at the trial, when
           results or reports relate to the testimony of that
           witness, provided the defendant has requested and
           received discovery under paragraph (B)(1)(e); and

           (b) the names and addresses of eyewitnesses whom
           the defendant intends to call in its case-in-chief,
           provided that the defendant has previously requested
           and received discovery under paragraph (B)(2)(a)(i).

     (2) If an expert whom the defendant intends to call in any
     proceeding has not prepared a report of examination or tests, the
     court, upon motion, may order that the expert prepare and the
     defendant disclose a report stating the subject matter on which
     the expert is expected to testify; the substance of the facts to
     which the expert is expected to testify; and a summary of the
     expert’s opinions and the grounds for each opinion.

     (D) Continuing Duty to Disclose. If, prior to or during trial,
     either party discovers additional evidence or material previously
     requested or ordered to be disclosed by it, which is subject to
     discovery or inspection under this rule, or the identity of an
     additional witness or witnesses, such party shall promptly notify
     the opposing party or the court of the additional evidence,
     material, or witness.

     (E) Remedy. If at any time during the course of the proceedings
     it is brought to the attention of the court that a party has failed to
     comply with this rule, the court may order such party to permit
     discovery or inspection, may grant a continuance, or may
     prohibit such party from introducing evidence not
     disclosed, other than testimony of the defendant, or it may enter
     such other order as it deems just under the circumstances.

Pa.R.Crim.P. 573(C)-(E) (emphasis added). Thus, a court has the discretion

to require an expert, who has conducted an examination or test for a

defendant but who has not completed a report for the defendant, to prepare

(and the defendant to disclose) a report, which must provide, among other

things, the subject matter on which the expert is expected to testify and a

summary of the expert’s opinion. See Commonwealth v. Kennedy, 876

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J-A21031-17



A.2d 939, 946-47 (Pa. 2005). “A court’s discretion to order the production of

such a report is, again, dependent upon whether the defendant intends on

calling the expert as a witness in the criminal proceedings.”8 Id. When the

defendant fails to comply with a trial court’s order requiring preparation and

disclosure of an expert report, the trial court may sanction the defendant by

prohibiting the defendant from introducing evidence not disclosed, other than

testimony of the defendant. See Commonwealth v. Mendez, 74 A.3d 256,

261 (Pa. Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014). To sanction

the defendant for discovery violations, the trial court also may enter “such

other order as it deems just under the circumstances.” Id.

       Instantly, in disallowing Appellant from presenting the expert testimony

of Dr. Johnson, the trial court reasoned:

       On October 1, 2014, the court issued an order and in paragraph
       2, directed defense counsel to provide copies of expert reports to
       the Commonwealth by October 21, 2014. [Appellant] did not
       provide a report from Dr. Johnson by that date.

             Next, the court held a pre-trial conference on November 24,
       2014. Defense attorney Troese stated he may want to call other
       experts. This court issued an order on that date stating that by
       agreement of counsel, Mr. Troese would inform counsel for the
       Commonwealth by December 22, 2014, whether he would be
       retaining any additional experts and provide dates by which he
       would provide written reports. [Appellant] did not name Dr.
       Johnson as a possible expert witness by that date.

             After various proceedings, the court held a pre-trial
       conference on November 3, 2015 and set the dates for trial in April
       2016. At that time, Attorney Troese mentioned he may be calling
       Dr. Johnson as a witness. The court stated in the pre-trial
       conference order of November 3, 2015, on page 2 in paragraph
____________________________________________


8Our Rules of Criminal Procedure generally protect the work-product of agents
hired by defense attorneys from discovery, and Rule 573(C) qualifies this
protection.

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J-A21031-17


      3.a., that Mr. Troese shall provide a written report from
      Dr. Johnson to the Commonwealth by December 14, 2015, at the
      latest. [Appellant] did not provide a report by that date. The
      court is not aware that [Appellant] ever obtained a written report
      from Dr. Johnson.

             The matter of Dr. Johnson testifying was again raised before
      trial. On March 21, 2016, the court held a status conference with
      the attorneys.      Defense counsel Troese inquired whether
      Dr. Johnson could testify as an expert. This was the first time the
      matter had been raised since the time of the pre-trial conference
      on November 3, 2015. [Appellant] still had not provided a written
      expert’s report. The court decided Dr. Johnson could not testify
      as an expert because [Appellant] had failed to meet the agreed-
      upon deadlines of October 24, 2014, December 22, 2014, and
      December 14, 2015.

Trial Court Opinion, 9/21/16, at 29-30. Based on our review of the record,

we conclude that the trial court did not abuse its discretion, under Rule 573(E),

in disallowing Appellant to present the testimony of his medical expert Dr.

Johnson because Appellant failed to comply with several discovery deadlines

to submit an expert report prepared by Dr. Johnson. Also, the record here

does not indicate that Dr. Johnson ever prepared an expert report.

      Appellant also argues that the trial court abused its discretion in

disallowing him to call to the stand Dr. Johnson as a character witness.

      Pennsylvania Rule of Evidence 404, relating to character evidence,

crimes and other acts, provides in relevant part:

      (a) Character Evidence.

      (1) Prohibited Uses. Evidence of a person’s character or character
      trait is not admissible to prove that on a particular occasion the
      person acted in accordance with the character or trait.

      (2) Exceptions for a Defendant or Victim in a Criminal Case. The
      following exceptions apply in a criminal case:

      (A) a defendant may offer evidence of the defendant’s pertinent
      trait, and if the evidence is admitted, the prosecutor may offer
      evidence to rebut it[.]


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J-A21031-17



Pa.R.E. 404(a).

      Evidence of good character offered by a defendant in a criminal
      prosecution must be limited to his general reputation for the
      particular trait or traits of character involved in the commission of
      the crime charged. Such evidence must relate to a period at or
      about the time the offense was committed . . . and must be
      established by testimony of witnesses as to the community
      opinion of the individual in question, not through specific acts or
      mere rumor. In a rape case, evidence of the character of the
      defendant would be limited to presentation of testimony
      concerning his general reputation in the community with regard
      to such traits as non-violence or peaceableness, quietness, good
      moral character, chastity, and disposition to observe good order.

Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa. Super. 2003) (internal

citations and quotation marks omitted), appeal denied, 830 A.2d 975 (Pa.

2003).

      Here, our review of the trial transcript indicates that Appellant did not

seek to have Dr. Johnson testify as a character witness. Any suggestion to

the contrary is a mischaracterization of the record. The trial court noted:

            At trial, on April 22, 2016, Mr. Troese made an offer of proof
      that Dr. Johnson would testify he is a psychiatrist. He has worked
      with [Appellant] and discussed prescribing benzodiazepines with
      buprenorphine. [Appellant] has researched the subject. He would
      not state that the research was correct or what it showed.
      [Appellant] chose not to call Dr. Johnson to testify as a fact
      witness.

Trial Court Opinion, 9/21/16, at 31. Specifically, at trial, Appellant’s counsel

made the following offer of proof:

      [The trial court:] All right. I wasn’t able to get everything you
      were saying, Jack, about what Dr. Johnson would testify, what
      you’re proposing to have him testify to. So if you could state your
      offer of proof?

      [Defense counsel:] It’s very limited, and it’s for that he is—he is
      a leader in the addiction field and—
      [The trial court:] Who is?


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J-A21031-17


        [Defense counsel:] Dr. Johnson.       And that [Appellant] had
        discussed with him his practice and that I would ask his opinion of
        [Appellant’s] basic knowledge for his—for addiction medicine.

        [The trial court:] What do you mean his basic knowledge?

        [Defense counsel:] Well, if he’s knowledgeable or if—or—is he
        knowledgeable in the field of addiction medicine.

Reproduced Record (R.R.) at 1734a-35a. As the Commonwealth points out,

the “offer of proof in no way reflects a desire to have Dr. Johnson testify about

[Appellant’s] reputation in any community, but rather to have him express his

personal opinion of [Appellant’s] professional knowledge and/or competence.”

Commonwealth’s Brief at 11, see Pa.R.E. 405(a) (“testimony about the

witness’s opinion as to the character or character trait of the person is not

admissible.”).    Thus, because Appellant never sought to have Dr. Johnson

testify as a lay witness about Appellant’s reputation, the trial court did not

abuse its discretion in precluding Dr. Johnson from testifying at trial.

        Appellant next argues that the trial court abused its discretion in

allowing M.M. to testify about a settlement she received from Appellant in a

medical malpractice and personal injury action that she had brought against

him.9    Specifically, Appellant argues that the trial court’s ruling violated

Pa.R.E. 408, relating to compromise offers and negotiations.
____________________________________________


9 We observe that Appellant fails to cite to the place in the record where this
claim was preserved before the trial court. See Pa.R.A.P. 2117(c) (requiring
statement of case to specify state of proceedings at which issue sought to be
reviewed on appeal was raised), Pa.R.A.P. 2119(e) (requiring same of
argument section of appellate brief); see also Commonwealth v. Fransen,
42 A.3d 1100, 1106 n. 11 (Pa. Super. 2012) (en banc) (“Failing to direct this
Court to specific portions of the record in support of an argument violates



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J-A21031-17



       The Commonwealth counters that this issue is waived because Appellant

failed to lodge a timely objection at trial. See Commonwealth’s Brief at 13-

14. We agree.

       Rule 408 provides in pertinent part:
       (a) Prohibited Uses. Evidence of the following is not admissible-
       -on behalf of any party--either to prove or disprove the validity or
       amount of a disputed claim or to impeach by a prior inconsistent
       statement or a contradiction:
             (1) furnishing, promising, or offering--or accepting,
             promising to accept, or offering to accept--a valuable
             consideration in compromising or attempting to
             compromise the claim; and
             (2) conduct or a statement made during compromise
             negotiations about the claim.
       (b) Exceptions. The court may admit this evidence for another
       purpose, such as proving a witness’s bias or prejudice, negating a
       contention of undue delay, or proving an effort to obstruct a
       criminal investigation or prosecution.

Pa.R.E. 408.

       It is settled that an appellant’s “failure to raise a contemporaneous

objection to evidence at trial waives that claim on appeal.” Commonwealth

v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (citation omitted); see

Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008) (to

preserve issue for appellate purposes, party must make timely and specific

objection to ensure trial court has opportunity to correct alleged error); Keffer

v. Bob Nolan’s Auto Service, Inc., 59 A.3d 621, 645 (Pa. Super. 2012)

(citations   omitted)     (emphasis     added)     (“one   must   object   to   errors,

____________________________________________


Pa.R.A.P. 2119(c) [and for] that reason alone, we could conclude this issue is
waived.”), appeal denied, 76 A.3d 538 (Pa. 2013). We, however, decline to
find waiver on this basis.

                                          - 16 -
J-A21031-17



improprieties or irregularities at the earliest possible stage of the

adjudicatory process to afford the jurist hearing the case the first occasion to

remedy the wrong and possibly avoid an unnecessary appeal to complain of

the matter.”); see also Pa.R.E. 103(a) (providing that an “[e]rror may not be

predicated upon a ruling that admits or excludes evidence unless . . . a timely

objection . . . appears of record.”); 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.”).

      Our review of the trial transcript reveals as follows:

      Q. [M.M.], you filed a lawsuit against the defendant; is that
      accurate?

      A. Yes.

      Q. Tell us, why did you sue him?

      A. Because when I went to jail, it wasn’t long after I stopped living
      with him, and he agreed to see my parents and family for free for
      a year. And when I went to jail, he started charging my parents
      to see them and charging back pay and charging them for their
      appointments. That made me mad that he went back on his word
      and blocked contact with me at the jail. So I decided to sue him.

      Q. What was the basis of the lawsuit?

      A. Medical malpractice and personal injury.

      Q. Who was your attorney?

      A. John Lackatos.

      Q. Did that suit get resolved?

      A. It settled out of court, yeah.

      Q. Tell us about the settlement.

      A. Well, I mean, I was still in jail at that point for when I went to
      jail in November. And I called John from the jail, and he came to
      see me. And me met with Dr. Radecki, and they worked out the
      terms of the settlement.
      Q. What were the terms of the settlement?

                                       - 17 -
J-A21031-17


     A. I would get one large sum, and the rest would be put in a trust
     fund that would -- I don’t know how you say it. It grows, I guess,
     until I get it. I’m not supposed to get it until 69 and a half.

     Q. 69 and a half?

     A. Yeah.

     Q. 59 and a half?

     A. I don’t know. Until I was really old.

     Q. I’m there, so. As far as the settlement, how much money was
     it?

     A. I believe it was close to a hundred thousand. I think and John
     got 40 percent of that.
     Q. Lawyers?

     A. Yeah.

     Q. And you got the rest?

     A. Yeah.

     Q. And so what was the lump sum; do you remember?

     A. I think the first check I got was 26, $27,000.

     Q. What did you do with that money?

     A. Well, I paid off my parent’s house, got them a car, got me a
     car. I put 15 percent away for my daughter in a trust fund for
     her.

     Q. And the rest is in a trust fund for you?
     A. No.

R.R. at 380a-82a.    To the extent Appellant did object to the settlement

testimony, it was not until after M.M. had finished discussing the settlement

issue and how she used the settlement funds.

                 [Defense counsel]: Your Honor, can we approach?

                 [The trial court]: Do you have an objection?
                 [Defense counsel]: I think we should approach.


                                    - 18 -
J-A21031-17


                 [The trial court]: Okay.

               (Whereupon, the following sidebar discussion
     was held on the record):

                 [Defense counsel]: Your Honor, I think this testimony
     is not admissible at all. It’s compromising settlement.

                  [Commonwealth]: This is criminal consciousness of
     guilt, trying to pay off of a witness. It’s always admissible, Your
     Honor. He can spin it any way, but this is admissible as
     consciousness of guilt and why it settled and probably to try to
     shut her up.

                  [The trial court]: It’s not a compromise of settlement
     of this case.
                [Defense counsel]: No. I mean, the rule of evidence
     says you cannot introduce it in any case.

                 [The trial court]: Okay. Can you get me the rule? What
     are you referring to?

                 [Defense counsel]: Rule 408.

                  [The trial court]: Okay. Rule 408, Evidence of the
     following is not admissible, on behalf of any party, either to prove
     or disprove the validity or amount of a disputed claim or to
     impeach by a prior inconsistent statement or contradiction.

                 B says: The Court may admit this evidence for another
     purpose, such as providing a witness’s bias or prejudice, negating
     a contention of undue delay, or proving an effort to obstruct a
     criminal investigation or prosecution.

                 Is that --

                [Commonwealth]: It’s consciousness of guilt and to
     say he may be buying this witness’s silence.

                 [The trial court]: Do you have any further argument?

                 [Defense counsel]: No, Your Honor.

                 [The trial court]: The objection is overruled.

                 [Commonwealth]: For the record, also he brought up
     the lawsuit of the previous witness that was asked about it. I
     wanted that on the record.

                 [The trial court]: All right.




                                     - 19 -
J-A21031-17



Id. at 382a-83a. As the foregoing indicates, Appellant did not object timely

to the introduction of testimony regarding the settlement. Accordingly, he

has failed to preserve this issue for appeal. Even if this issue is not waived,

the trial court did not abuse its discretion in permitting M.M. to testify

regarding the settlement because it was relevant to show that Appellant

desired to buy her silence. The undisputed facts here reveal that Appellant

sought to keep M.M. quiet about their sexual relationship by offering free

medical services to her family.     When he reneged on his promise, M.M.

instituted the civil action against him to accomplish the same end. Appellant

settled the case with M.M. before the commencement of his criminal trial sub

judice.   Thus, the trial court found that the settlement information was

relevant to the Commonwealth’s contention that Appellant settled the case in

an effort to obstruct the criminal investigation.     See Trial Court Opinion,

9/21/16, at 13-16.

      Appellant next argues that the trial court abused its discretion in failing

to grant a mistrial based on the testimony of M.M. regarding the settlement.

      We explained in Commonwealth v. Szakal, 50 A.3d 210 (Pa. Super.

2012):

      [T]he decision to declare a mistrial is within the sound discretion
      of the trial court and will not be reversed absent a flagrant abuse
      of discretion. A mistrial is an extreme remedy that must be
      granted only when an incident is of such a nature that its
      unavoidable effect is to deprive defendant of a fair trial.


Id. at 218 (citation and quotation marks omitted). Under Pennsylvania Rule

of Criminal Procedure 605, relating to mistrial, “[w]hen an event prejudicial

                                     - 20 -
J-A21031-17



to the defendant occurs during trial only the defendant may move for a

mistrial; the motion shall be made when the event is disclosed.      Otherwise,

the trial judge may declare a mistrial only for reasons of manifest necessity.”

Pa.R.Crim.P. 605(B) (emphasis added); see also Szakal, 50 A.3d at 219

(noting that the appellant’s claim was waived because the appellant waited a

substantial period before moving for mistrial); Commonwealth v. Brown,

332 A.2d 828, 830 (Pa. Super. 1974) (noting the appellant timely moved for

a mistrial); Commonwealth v. Greiner, 455 A.2d 164, 166 (Pa. Super.

1983) (observing that the appellant filed a “timely motion for a mistrial”).

      As we noted in addressing Appellant’s previous issue, Appellant did not

object timely to M.M.’s testimony regarding the civil settlement. Similarly,

Appellant did not move timely for a mistrial. Indeed, Appellant did not move

for a mistrial until the close of the Commonwealth’s direct examination of M.M.

      The trial transcript reveals:

      [The trial court]: Let’s go on the record. We’re in the judge’s
      chambers. It’s twenty minutes before four. I’ve invited the
      attorneys to give a further explanation of my ruling on the last
      defense objection to testimony by [M.M.] about the civil
      settlement with the defendant. I had ruled from the bench that
      the objection, based on Rule 408, was overruled. And by way of
      further explanation, I view the testimony is falling within the
      exception to Rule 408(b); that it was offered by the
      Commonwealth for the purposes of proving an effort to obstruct a
      criminal investigation or prosecution.

            My suggestion off the record, which I’m now putting on the
      record, to the attorneys is to give the jury a cautionary instruction
      that they shall only consider the testimony of [M.M.] concerning
      the lawsuit and the settlement strictly and solely for the purpose
      of considering whether it is evidence of an effort to obstruct a
      criminal investigation or a prosecution; and they shall not consider
      it as evidence of an admission of liability, either with regard to
      claims for money damages or an admission of criminal liability.


                                      - 21 -
J-A21031-17


           So I understand that’s acceptable to the Commonwealth and
     Mr. Troese. Do either of you have comments you would like to
     make?

            [Defense counsel]: I would like to ask for a mistrial. I
     think her testifying that it went on prejudices the jury as to my
     client admitted that he did wrong. She went on, and it puts us in
     a situation where we have to defend even the facts
     introduced. And I think it prejudices the jury that that was the --
     there was no testimony that he attempted to obstruct any type of
     investigation by way of that.

           So I think the only reason that it was introduced was for an
     admission. There was no testimony that “he told me not to talk”
     or prohibition of disclosure of the settlement of. I think the only
     reason it was put in was for admission of liability.
          I think with that in front of a jury, it creates a situation
     where it prejudices my client from getting a fair trial from here on
     out.

           [The trial court]: Mr. Serge[, i.e., the Commonwealth]?

          [Commonwealth]: My response is a few fold. I guess,
     number one, it’s not true what Mr. Troese said. No evidence was
     presented by [M.M.] regarding obstructing an investigation.

           To the contrary, herself, she testified that she was given
     free medical care to her and her family to keep quiet, because
     [Appellant] told her that the relationship was improper.

          When you couple that with the final settlement, she sued
     him because he started charging back pay to her parents and
     everybody wanted money back. She sued him. He settled.

            The Commonwealth’s argument with respect to that
     evidence was never intended or never would be an admission of
     criminal liability or liability of any sort. The Commonwealth’s
     position is very clear. It would be evidence of an attempt to quiet
     a witness. It was a settlement done, pre-criminal resolution. And
     I think there’s evidence in the record.

           I would also note for the record, as I did at side bar, that
     [Appellant] brought out evidence of lawsuits with other
     witnesses. So to complain -- and one of those cases being
     resolved when defendant himself resolved it I think is not credible.

           So the Commonwealth is okay. We believe that a
     cautionary jury instruction to the effect that the Court proposed is
     adequate in this case, and a mistrial is certainly not warranted in
     this matter.
          [Defense counsel]: To respond, the argument was that it’s
     always allowed in a criminal case of consciousness of guilt. That

                                    - 22 -
J-A21031-17


     goes right to admission, or inferred as an admission to the
     claim. And that was the argument given at sidebar.

           The fact that I brought up a lawsuit goes to that witness’s
     bias. And we weren’t asking about admission of guilt or
     settlement. I think the reason for that rules is to protect the
     person who settles. And it’s to encourage settlement. They’re
     not brought in subsequent actions. That’s the purpose. They’re
     not brought in subsequent actions for case of admission.

           I think the fact that the objection was then overruled and
     continued on, I think that much testimony prejudices the jury. I
     don’t think a cautionary instruction is going to cure what she said.

           [The trial court]: Well, before, Mr. Troese, you made an
     objection, [M.M.] testified as follows: She filed a lawsuit against
     [Appellant] because when she went to jail, he started charging
     her parents. He blocked her calls and it made her mad. She filed
     a medical malpractice and person[al] injury case with John
     Lackatos. Settled when she was in jail, one large sum, and the
     rest was in trust until she got older. It was close to a hundred
     thousand dollars. John got 40 percent. First part in cash. I think
     she paid 26 or $27,000. She paid off her parent’s house [sic], got
     them a car, got her a car, and put money in an account for her
     daughter.

          At that point is when you made the objection. So the
     jury had heard all of that before any objection was made,
     and we had the sidebar, actually, approached the bench
     and made the objection at the bench.

           Reference the Commonwealth is making is to the prior
     testimony that’s related to that civil lawsuit and settlement related
     to earlier testimony. Just a short time before, there was talk
     about the settlement where [M.M.] testified she never got a
     paycheck; he gave her money; and to see her and her family for
     free. Mom, dad, sister and then talking about her brother being
     14 and he went too.
           When she moved out, when he asked her to leave, wasn’t a
     good idea. She moved out. He told her there was another girl
     who lived there, and clothes and toys were there. I think she said
     he wrote her a check and so on.

           Whenever she moved, he said he would see her for free as
     long as she didn’t say anything, and she agreed to it. And he
     agreed he would see her and her family for free for a year as long
     as she didn’t say anything, and she agreed to it. And then moving
     back to her parents.

           So that prefaced the questions about the settlement. She
     specifically said that he went back on his agreement, and that’s
     the reason she sued him. So the agreement, the verbal
     agreement that he made with her as long as she didn’t say

                                    - 23 -
J-A21031-17


     anything, clearly was related by a claim by the Commonwealth
     that she was promised something by way of free medical care for
     her family and herself for a year if she would not say anything
     [about the sexual relationship]. And he went back on it.

           So the settlement, the times, was an important factor as
     well. Because, apparently, he -- while she was still in jail -- he
     settled right away while she was in jail. She didn’t testify when
     the settlement occurred, but certainly it was before this trial
     started.

            So for those reasons, I do find it’s relevant to a claim by the
     Commonwealth that he made that settlement in an effort to
     obstruct the criminal investigation or prosecution. The jury ought
     to at least consider it for that purpose, whether they think so or
     not.
           But I don’t want them thinking that it’s relevant to an
     admission of liability that he did commit malpractice or caused her
     injury or that it’s admission of criminal responsibility. So I’ll give
     the cautionary instruction. The motion for mistrial is denied.

           [Defense counsel]: Thank you.

           [Commonwealth]: Thank you.

           [The trial court]: So we’ll see you out there.

          (Sidebar discussion concluded at 3:49 P.M., and court
     proceedings resumed at 3:56 P.M.)

           [The trial court]: Members of the jury, before we continue
     the questioning of [M.M.], you’ll recall there was some testimony
     on questioning by the attorney for the Commonwealth about a
     lawsuit and the settlement of a lawsuit that [M.M.] filed. She
     described it as a medical malpractice and personal injury. I’m now
     going to give you an instruction at this time on that.
           You shall consider that testimony about the lawsuit and the
     settlement and the terms and conditions of the settlement only
     for one purpose, and that would be to determine whether it is
     evidence of an effort by the defendant to obstruct a
     criminal investigation or prosecution.

          And I’m instructing you as well that you shall not consider
     that evidence as any evidence or proof that the defendant
     admitted or was liable for civil money damages for
     malpractice or personal injury or that he was admitting any
     criminal responsibility through that settlement.

          So the only purpose for which you may consider that part of
     the witness’s testimony concerning lawsuit and settlement is to
     determine whether it serves as evidence of an effort by the
     defendant to obstruct a criminal investigation or prosecution and

                                    - 24 -
J-A21031-17


       not as any proof that he admitted liability for committing medical
       malpractice or personal injury or that he was admitting any
       criminal responsibility.

             So when we recessed, Mr. Troese, you were ready to begin
       your cross-examination, so you may proceed.


R.R. at 385a-94a (emphasis added). As stated previously, Appellant did not

object timely to M.M.’s testimony regarding the settlement. Moreover, he also

did not move timely for a mistrial, as evidenced by the foregoing excerpts of

the trial transcript. Accordingly, the trial court did not abuse its discretion.

       Nonetheless, even if Appellant suffered any prejudice based on the

settlement testimony, it was cured.                The trial court issued a curative

instruction to the jury to consider M.M’s testimony regarding the settlement

only for determining whether the settlement demonstrated an effort by

Appellant to obstruct a criminal investigation.10,         11   The trial court further

instructed the jury not to consider the settlement testimony as any proof that

Appellant admitted liability for committing medical malpractice or personal

injury, or that he admitted any criminal responsibility. See Commonwealth

v. Elliott, 80 A.3d 415, 445 (Pa. 2013) (noting that a jury is presumed to

have followed instructions provided by the trial court), cert. denied, 135 S.Ct.

50 (2014).

____________________________________________


10 We note that Appellant was not charged with the crime of obstruction of
justice. The record makes clear, however, the term “obstructing” a criminal
investigation is used to indicate only that Appellant paid M.M. hush money to
buy her silence.
11  To the extent Appellant challenges in his brief the content of the jury
instruction, such challenge is waived because he failed to raise it before the
trial court. See Pa.R.A.P. 302(a).

                                          - 25 -
J-A21031-17



       We next address Appellant’s fourth and fifth issues, which we have

combined for ease of disposition. Appellant argues that the trial court abused

its discretion in allowing Agent Embree and Pharmacist Anthony to offer expert

testimony. With respect to Agent Embree, Appellant contends that the agent

testified as an expert about the distinction between methadone clinics and

office-based opioid therapy, and Suboxone and Subutex. Similarly, Appellant

appears to contend that Pharmacist Anthony testified as an expert when she

answered a hypothetical question whether Strattera would be an appropriate

medication for an opioid patient with ADHD.12

       Even assuming, without deciding, that the trial court abused its

discretion in permitting Agent Embree and Pharmacist Anthony to offer expert

testimony, we conclude that Appellant still is not entitled to relief.

       If a trial court abuses its discretion in issuing an evidentiary ruling, “a

verdict can still be sustained if the error was harmless.” 13 Commonwealth

v. Poplawski, 130 A.3d 697, 716 (Pa. 2015) (citation omitted).                 In

Commonwealth v. Cooley, 118 A.3d 370 (Pa. 2015), our Supreme Court

explained that “[a]n error is harmless if it could not have contributed to the

verdict. In other words, an error cannot be harmless if there is a reasonable


____________________________________________


12In incorporating fully footnote 9, supra, we note again Appellant’s failure
to cite to the place in the record where his claim concerning Pharmacist
Anthony was preserved before the trial court.
13“The harmless error doctrine, as adopted in Pennsylvania, reflects the reality
that the accused is entitled to a fair trial, not a perfect trial.” Commonwealth
v. Reese, 31 A.3d 708, 719 (Pa. Super. 2011) (en banc) (citation omitted).

                                          - 26 -
J-A21031-17



possibility the error might have contributed to the conviction.” Cooley, A.3d

at 380 (citation omitted); see also Commonwealth v. Mitchell, 839 A.2d

202, 214-15 (Pa. 2003) (“An error will be deemed harmless where the

appellate court concludes beyond a reasonable doubt that the error could not

have contributed to the verdict.”).

      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. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (citation

omitted).   “The Commonwealth has the burden of proving harmless error

beyond a reasonable doubt.” Poplawski, 130 A.3d at 716 (citation omitted).

      Here, our review of the record reveals that the trial court’s decision in

permitting Agent Embree and Pharmacist Anthony to offer expert testimony

was harmless. Specifically, the admitted testimony, erroneous or otherwise,

was merely cumulative of other untainted evidence.

      Agent Embree’s testimony on the difference between methadone clinics

and office-based opioid therapy, and Subutex and Suboxone was cumulative

of the testimony offered by the Commonwealth’s expert witness Dr. Russell

Carter. Dr. Carter opined that office-based opioid treatment requires the least

amount of supervision because patients “come in once a month to see the

doc[tor] and the rest of the time they’re free to roam.” R.R. at 1073a-75a.



                                      - 27 -
J-A21031-17



On cross-examination, Dr. Carter testified that methadone clinics provide a

higher level of supervision because “[t]here’s a greater level of control than

for office-based opioid therapy because the client, the individual has to go to

the clinic basically every day to receive one dose of methadone which will cut

cravings for approximately 24 hours or longer.” Id. at 1275a-77a. Dr. Carter

also testified in detail about the difference between Subutex and Suboxone

and opined that Subutex was more susceptible to abuse because it did not

contain naloxone. Id. at 1095a-96a. Moreover, and interestingly, Appellant’s

expert Dr. William Santora also testified that Subutex could be abused. “I

don’t use very much Subutex. I know many other doctors do, but my concern

would be that it is more easily divertible and more easily to inject.” Id. at

1804a. Pharmacist Anthony’s disputed testimony also is cumulative of Dr.

Carter’s testimony.     Like Pharmacist Anthony, Dr. Carter too opined that

Strattera would be an appropriate option for an opioid-addicted individual

suffering from ADHD. Id. at 1092a-93a. Accordingly, we consider any error

by the trial court in permitting Agent Embree and Pharmacist Anthony to offer

their testimony to be harmless.

      Appellant next argues that the trial court abused its discretion in

permitting M.F., a former employee of Appellant, to offer irrelevant testimony

about how Appellant treated her.

      Relevance    is    the   threshold     for   admissibility   of     evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008).                     Evidence is

relevant if: (a) it has any tendency to make a fact more or less probable than

                                    - 28 -
J-A21031-17



it would be without the evidence; and (b) the fact is of consequence in

determining the action. Pa.R.E. 401; Commonwealth v. Drumheller, 808

A.2d 893, 904 (Pa. 2002). “Evidence that is not relevant is not admissible.”

Pa.R.E. 402. In addition, “[t]he court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403;

see Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa. Super. 2012) (stating

that even when evidence meets the relevance requirements, “such evidence

may still be excluded where its probative value is outweighed by the danger

of unfair prejudice.”).

      However, [e]vidence will not be prohibited merely because it is
      harmful to the defendant. [E]xclusion is limited to evidence so
      prejudicial that it would inflame the jury to make a decision based
      on something other than the legal propositions relevant to the
      case. . . . This Court has stated that it is not required to sanitize
      the trial to eliminate all unpleasant facts from the jury’s
      consideration where those facts are relevant to the issues at
      hand[.]

Kouma, 53 A.3d at 770 (citation omitted); see Pa.R.E. 403 cmt. (defining

“unfair prejudice” as “a tendency to suggest a decision on an improper basis

or to divert the jury’s attention away from its duty of weighing the evidence

impartially.”).

      Appellant here argues that the trial court abused its discretion in

permitting M.F. to testify about Appellant’s disparaging remarks concerning

her weight which were not relevant. The Commonwealth contends that M.F.’s

testimony was relevant to explain Appellant’s attitude toward women and his

                                     - 29 -
J-A21031-17



physical criteria for selecting women whom he targeted with his sexual

advances.   Commonwealth’s Brief at 24.       Additionally, the Commonwealth

argues that M.F.’s testimony was relevant to assist the jury in evaluating the

testimony of several women, who testified at trial about being a target of

Appellant’s sexual advances. Id. The Commonwealth points out that M.F.’s

testimony explains why Appellant did not attempt to recruit her to his

commune, “despite the fact that she, like some of his other targets, was a

single woman facing some challenging life circumstances.” R.R. at 949a-53a.

      At issue is the following testimony:

      Q. How long did you work with [Appellant]? Till what date?

      A. April 19th of 2012.

      Q. Was there a reason you left at that time?

      A. Several reasons I left.

      Q. Could you tell the jurors what that was?

      A. It was very concerning how the focus of the program had
      changed. Initially, you know, it was definitely psychiatric care and
      the maintenance of the other patients, but then the Suboxone sort
      of seemed to take over everything, the focus of just growing for
      the purpose of taking on as many patients as -- as could be
      possible; and then also I was concerned with some of the things
      that were happening, you know, girls that were being treated as
      patients coming in to work in the office as well as just the general
      way I was being treated as well. There were several times I was
      discriminated against for my size.

      Q. What do you mean by that? Tell us what you mean.

      A. I can remember specifically one time where --

              [Defense counsel]: Your Honor, I’m going to object to
      relevance.

              [The trial court]: How is it relevant?
               [Commonwealth]: It explains why she left the practice,
      Your Honor.

                                     - 30 -
J-A21031-17


               [The trial court]: The objection is overruled.

     BY [Commonwealth]:

           Q. You may go on.

           A. Okay. [Appellant] was in the office with a patient, and I
     had gone to turn the air conditioning on. And I could hear him
     say that the only reason I was turning the air conditioning on was
     because I was fat.

     Q. Did he ever make comments to your face like that?

     A. Not directly to my face, but -- well, no. I’m sorry. That’s not
     correct. When I first interviewed with him, I can specifically
     remember him saying to me he wanted to build an income-sharing
     community and that I was too big, I believe was the wording he
     used, too big of a girl to be part of that community, which I didn’t
     understand in the slightest what that had meant on my first
     interview. So I kind of disregarded the comment entirely.

     Q. But he did bring up about an income-sharing community in that
     first comment?

     A. In that first comment.

     Q. First interview?

     A. Yes.

     Q. What did he say about an income-sharing plan?

     A. He talked about it on several occasions after that. The idea
     was to build a community where people lived and worked together
     for the greater good, I guess, to -- I don’t -- I don’t know how
     else to describe it other than maybe like a commune situation
     where you would live and work and eat and share meals and --
     Q. Okay.

     A. There would be no money exchanged. You would work in the
     community. You know, they would take care of you, basically,
     this community would.

     Q. But he said you were too big to be a part of that?

     A. Right, because in a later manifesto that was written, there was
     specific -- very specific rules in a page that he -- a document that
     he put out online trying to recruit people to come and live in the
     community. He stressed, you know, a high IQ living with -- what
     do I want to say -- the environment as a concern, very -- you
     know, he wanted to leave a small -- what do I want to say --
     environmental footprint.


                                     - 31 -
J-A21031-17



Id. at 955a-58a.

      Based on our review of the record, we agree with the trial court’s

conclusion that M.F.’s testimony was relevant. As the trial court reasoned:

      [Appellant] faced thirteen criminal charges related to his
      treatment of thirteen female patients. There was extensive
      evidence at trial that [Appellant] made sexual advances towards
      certain female patients and attempted to recruit them into his
      income-sharing community. [M.F.’s] testimony about how she
      was treated by [Appellant] was relevant evidence of his attitude
      toward female patients in his practice, as well as how he chose
      patients to target for sexual relationship. The testimony was also
      relevant evidence of the characteristics [Appellant] considered
      when choosing patients to reside in his income-sharing community
      or to employ at his office.

Trial Court Opinion, 1/11/17, at 10. Appellant’s attempts to distinguish M.F.

from his patients because of M.F.’s status as an employee is unavailing. The

uncontradicted evidence at trial established that Appellant did not distinguish

between patients and employees. In fact, he hired a number of his patients

with whom he had sexual relations as employees and continued with the

sexual relations as they worked for him. See Commonwealth’s Brief at 24.

Accordingly, Appellant is not entitled to relief.

      Appellant’s next argument is that the trial court abused its discretion in

failing to direct the Commonwealth to provide under Pa.R.E. 1006, “the actual

records related to Steven Morse’[s] factually erroneous testimony concerning

[Appellant] allegedly purchasing 589,140 dosage units of buprenorphine in

2011, more than two times more than any other purchaser in the country.”




                                      - 32 -
J-A21031-17



Appellant’s Brief at 44.14            Appellant sought documents supporting the

summary of Appellant’s drug purchases as testified to by Mr. Morse.

       The Commonwealth argues that this issue is waived because Appellant

did   not   file   a   motion   for    disclosure   of   documents    until   after    the

Commonwealth’s witness Mr. Morse, a representative of pharmaceutical

wholesaler Carinal Health, had testified.            Commonwealth’s Brief at 25.

Specifically, the Commonwealth points out that Mr. Morse testified on April

14,   2016     about    Appellant’s     purchase    of   589,140     dosage    units    of

buprenorphine. Id. Appellant did not object to the testimony. Appellant,

however, filed his motion for disclosure of documents on April 25, 2016, which

the trial court denied as untimely. Id. (citing R.R. at 1900a).

       Pennsylvania Rule of Evidence 1006, provides:

       The proponent may use a summary, chart, or calculation to prove
       the content of voluminous writings, recordings, or photographs
       that cannot be conveniently examined in court. The proponent
       must make the originals or duplicates available for examination or
       copying, or both, by other parties at a reasonable time and place.
       And the court may order the proponent to produce them in court.

Pa.R.E. 1006.

       Here, our review of the record supports the trial court’s conclusion that

Appellant’s objection to Mr. Morse’s testimony was untimely and thus, waived.

The trial transcript reveals that on April 25, 2016, many days after Mr. Morse

____________________________________________


14 In his brief, Appellant claims that he ordered only 100,400 dosage units of
buprenorphine. Our review of the record, however, yields no support for this
claim. Thus, we cannot confirm whether Appellant testified or produced any
evidence about this lower figure of dosage units before the trial court.
Appellant also does not offer any citation to the record to support this claim.

                                          - 33 -
J-A21031-17



testified regarding   Appellant’s purchase      of   589,140 dosage    units of

buprenorphine, Appellant objected to such testimony invoking Rule 1006.

See. R.R. at 1900a. In fact, at the time of the objection, Appellant’s counsel

recognized the lapse of time between the testimony and the objection. Id.

(“We’re asking, after the fact of the summary was testified to, to have those

records produced so that we could provide testimony as to the actual

records.”) (emphasis added). Accordingly, because Appellant failed to object

contemporaneously, the trial court did not abuse its discretion in denying his

Rule 1006 motion for disclosure of documents.

      Even if Appellant’s motion for disclosure was not untimely, he still is not

entitled to relief. As the trial court observed:

      During oral argument on [Appellant’s] post-sentence motion,
      defense    counsel     acknowledged that  before    trial  the
      Commonwealth had provided a CD to him which contains 35
      documents from Cardinal Health. Apparently, these are the
      records he argued the Commonwealth failed to produce. Also,
      counsel for the Commonwealth stated before trial, the
      Commonwealth did provide defense counsel unfettered access to
      records of Cardinal Health and the pharmacies.         In fact,
      [Appellant] and his attorney did go to the offices of the
      Commonwealth’s counsel and had an opportunity to inspect those
      records. Compliance with Rule of Evidence 1006 may not have
      been an issue at trial.

Trial Court Opinion, 9/21/16, at 11 (unnecessary capitalization omitted). As

the trial court found, the Commonwealth provided Appellant with the records

at issue. Therefore, Appellant is not entitled to relief.

      Appellant next challenges the trial court’s decision to allow the

Commonwealth to cross-examine Appellant’s witness Dr. Bhagwandien about




                                      - 34 -
J-A21031-17



whether     he   had    collaborative    agreements with   nurse   practitioners.15

Appellant’s Brief at 47.         In particular, Appellant argues that, in cross-

examining Dr. Bhagwandian, the Commonwealth exceeded the scope of direct

examination. Id.

       Preliminarily, we note that “cross-examination is the primary method

for testing the believability of a witness and the truth of his testimony.”

Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005) (citation omitted).

Pennsylvania Rule of Evidence 611(b) addresses the scope of cross-

examination, providing that “[c]ross-examination of a witness other than a

party in a civil case should be limited to the subject matter of the direct

examination and matters affecting credibility; however, the court may, in the

exercise of discretion, permit inquiry into additional matters as if on direct

examination.” Pa.R.E. 611(b). “Cross-examination may be employed to test

a witness’ story, to impeach credibility, and to establish a witness’s motive for

testifying. The scope of cross-examination is a matter within the discretion of

the trial court and will not be reversed absent an abuse of that discretion.”

Chmiel, 889 A.2d at 527 (citation and quotation marks omitted).

       Here, the following exchange between the Commonwealth and Dr.

Bhagwandian on cross-examination is at issue.

             Q. Do you know what a collaborative agreement is with a
       nurse practitioner?


____________________________________________


15The Commonwealth points out, and we agree, that Appellant’s brief is
devoid of any citation to the record where he preserved this issue for appeal.

                                          - 35 -
J-A21031-17


            A. Yes. I have nurse practitioners that work for me at the
      hospital?

            Q. You do now?

            A. Yes, I do.

                   [Defense counsel]: Your Honor, I’m going to object.
      This is outside of the direct.

                 [Commonwealth]: Your Honor, he testified generally
      about the practice and about minutia of the practice.

                  [The trial court]: The objection is overruled.

      BY [Commonwealth]:
            Q. Did you have a collaborative agreement with any of the
      nurse practitioners at [Appellant’s] practice?

            A. No, I did not.

            Q. So if there’s an indication in one of the logs that has a
      nurse practitioner issuing Suboxone prescription with her name
      followed by Dr. Bhagwandian, that was not authorized by you?

            A. No, that was not.

R.R. at 1776a.

      Appellant argues that the Commonwealth’s cross-examination of Dr.

Bhagwandian exceeded the scope of direct examination.            Appellant argues

that the “inference that the Commonwealth sought to derive was that

[Appellant] used nurse practitioners to improperly distribute medicines in

violation of the law.” Appellant’s Brief at 47-48.

      The Commonwealth disagrees, arguing that on direct-examination, Dr.

Bhagwandian      “described     his   prescribing   philosophy   and   methods.”

Commonwealth’s Brief at 27.           The Commonwealth points out that Dr.

Bhagwandian “described how the roster of 100 patients that he was permitted




                                       - 36 -
J-A21031-17



to maintain by law would constantly ‘rotate’ among doctors depending on

‘whoever picks up the patients.’” Id. (record citations omitted).

      As a logical follow up question [Dr. Bhagwandian] was asked if he
      knew what drugs [Appellant] was prescribing and selling to
      Bhagwandian’s patients. He did not know. A subsequent question
      about a notation in [Appellant’s] drug log indicating that a nurse
      practitioner had issued a Suboxone prescription on Bhagwandian’s
      behalf was absolutely proper to explore both Bhagwandian’s
      actual knowledge of the methodology and controls in place at the
      practice and his veracity. How and by whom prescriptions were
      being written within the practice was an entirely proper avenue
      for questioning for a witness who expressed a certain degree of
      familiarity with these topics.


Id.   Based upon record review, we agree with the Commonwealth’s

contention. As the trial court aptly reasoned:

      Dr. Bhagwandian testified extensively during direct examination
      about his Suboxone practice with [Appellant], including the
      standards he used in choosing to prescribe Suboxone. He also
      provided testimony regarding [Appellant’s] psychiatry practice
      and how Dr. Bhagwandian’s own prescribing practices would at
      times intersect with [Appellant’s] psychiatry practice. These
      general details about the methods of prescribing Suboxone and
      Subutex at [Appellant’s] practice provided adequate basis for the
      Commonwealth to cross-examine Dr. Bhagwandian regarding
      collaborative agreements with nurse practitioners.

Trial Court Opinion, 1/11/17, at 16-17. Accordingly, given Dr. Bhagwandian’s

undisputed direct testimony and our standard of review, we cannot conclude

that the trial court abused its discretion in allowing the Commonwealth to

cross-examine Dr. Bhagwandian about collaborative agreements with nurse

practitioners.




                                    - 37 -
J-A21031-17



       Appellant next argues that the trial court abused its discretion in

imposing consecutive sentences,16 which are excessive in the aggregate.17

       It is well-settled that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220

(Pa. Super. 2011). Rather, where an appellant challenges the discretionary

aspects of a sentence, an appellant’s appeal should be considered as a petition
____________________________________________


16When reviewing a challenge to the trial court’s discretion, our standard of
review is as follows:
       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. An abuse of discretion is
       more than just an error in judgment and, on appeal, the trial court
       will not be found to have abused its discretion unless the record
       discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)),
appeal denied, 64 A.3d 630 (Pa. 2013).
17 Appellant’s challenge to his aggravated-range sentence is waived because
he failed to raise it in his Rule 1925(b) statement. See Commonwealth v.
Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a [Rule]
1925(b) statement will be deemed waived.”); Pa.R.A.P. 1925(b)(4)(vii). Even
in the absence of waiver, Appellant is not entitled to relief. As the trial court
explained:

       The sentences imposed on count 5 as to [M.M], count 6 as to
       [C.Y.], count 7 as to [A.A.], count 10 as to [T.C.], and count 15
       as to [A.Z.] of not less than 12 months or more than 24 months
       on each count are aggravated sentences for the following reasons.
       [Appellant] shows no remorse. The victims were particularly
       vulnerable due to their drug addictions, mental health needs, and
       poor financial conditions. [Appellant] took advantage of these
       victims by using his position as a medical professional and his
       superior financial position to dispense addictive drugs, defer
       payments on their debts to him, and give some of them jobs and
       free housing in exchange for various sexual favors.
Amended Sentencing Order, 9/21/16, at 3 (unnecessary capitalizations
omitted).

                                          - 38 -
J-A21031-17



for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.

Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

       An appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction by satisfying a four-part test:

          [W]e conduct a four-part analysis to determine: (1) whether
          appellant has filed a timely notice of appeal, see Pa.R.A.P.
          902 and 903; (2) whether the issue was properly preserved
          at sentencing or in a motion to reconsider and modify
          sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
          brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
          there is a substantial question that the sentence appealed
          from is not appropriate under the Sentencing Code, 42
          Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001), appeal denied, 796 A.2d 979 (Pa. 2002).

       Here, Appellant has satisfied the first three requirements of the four-

part Moury test. Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his post-sentence motions, and included a Pa.R.A.P.

2119(f) statement in his brief.18        We, therefore, need to determine only if

Appellant’s sentencing issues raise a substantial question.

____________________________________________


18Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

                                          - 39 -
J-A21031-17



      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,

828 (Pa. Super. 2007).     We have found that a substantial question exists

“when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.” Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa. Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa.

2009). “[W]e cannot look beyond the statement of questions presented and

the prefatory [Rule] 2119(f) statement to determine whether a substantial

question exists.” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super.

2013), affirmed, 125 A.3d 394 (Pa. 2015).

      It is settled that this Court does not accept bald assertions of sentencing

errors. See Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.

2006). When we examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists, “[o]ur inquiry must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying the

appeal, which are necessary only to decide the appeal on the merits.”

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).

A Rule 2119(f) statement is inadequate when it “contains incantations of

statutory   provisions   and   pronouncements     of   conclusions   of   law[.]”




                                     - 40 -
J-A21031-17



Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation

omitted).

      Here, Appellant asserts in his Rule 2119(f) statement:

      [T]he [trial] court imposed both aggravated range sentences and
      standard guideline range sentences.       It ordered that each
      sentence, twelve in total, run consecutive to one another. As a
      result, the aggregate minimum judgment of sentence was over
      eleven years. At the time the trial court imposed its amended
      sentencing order, [Appellant] was seventy years of age. The trial
      court’s sentence is in effect a de facto life sentence on an
      individual who cannot pose any threat to society due to both the
      loss of his license and his age.

Appellant’s Brief at 27. Based on Appellant’s 2119(f) statement, we conclude

that he has failed to raise a substantial question. Appellant’s excessiveness

claim is premised on his argument that the trial court imposed consecutive

sentences and failed to consider his mitigating circumstances, such as his age

and loss of license. Specifically, Appellant claims that, because the trial court

ordered his sentences to run consecutively, his aggregate sentence of 133 to

266 months in prison was excessive. We consistently have recognized that

excessiveness claims premised on imposition of consecutive sentences do not

raise a substantial question for our review.         See Commonwealth v.

Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en banc) (stating, “[a]

court’s exercise of discretion in imposing a sentence concurrently or

consecutively does not ordinarily raise a substantial question[.]”), appeal

denied, 126 A.3d 1282 (Pa. 2015); see also Commonwealth v. Ahmad,

961 A.2d 884, 887 n.7 (Pa. Super. 2008); Commonwealth v. Pass, 914

A.2d 442, 446-47 (Pa. Super. 2006). Additionally, Appellant claims that the



                                     - 41 -
J-A21031-17



trial court failed to consider his mitigating circumstances, specifically his

“advanced” age of over seventy years.           Appellant’s Brief at 50.       In

Commonwealth v. Eline, 940 A.2d 421 (Pa. Super. 2007), we concluded

that an appellant’s argument that “the trial court failed to give adequate

consideration to [his] poor health and advanced age” in fashioning his

sentence does not raise a substantial question. Eline, 940 A.2d at 435. In

so concluding, we explained that “[t]his court has held on numerous occasions

that a claim of inadequate consideration of mitigating factors does not raise a

substantial   question   for   our   review.”   Id.   (citation   omitted);   see

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

omitted) (“This Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.”); see also Commonwealth v. Berry, 785 A.2d 994

(Pa. Super. 2001) (explaining allegation that sentencing court failed to

consider certain mitigating factor generally does not raise a substantial

question); Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.

Super. 1995) (“[a]n allegation that a sentencing [judge] ‘failed to consider’ or

‘did not adequately consider’ certain factors does not raise a substantial

question that the sentence was inappropriate,”), appeal denied, 676 A.2d

1195 (Pa. 1996); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa.

Super. 1997) (finding absence of substantial question where appellant argued

the trial court failed to adequately consider mitigating factors and to impose

an individualized sentence). Consistent with the foregoing cases, we conclude

                                      - 42 -
J-A21031-17



that Appellant failed to raise a substantial question with respect to his

excessiveness claim premised on the imposition of consecutive sentences and

inadequate consideration of mitigating factors.

      Insofar as Appellant relies on Commonwealth v. Dodge, 77 A.3d 1263

(Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014), for relief, such

reliance is inapposite. As we explained in Dodge:

      A defendant may raise a substantial question where he receives
      consecutive sentences within the guideline ranges if the case
      involves circumstances where the application of the
      guidelines would be clearly unreasonable, resulting in an
      excessive sentence; however, a bald claim of excessiveness
      due to the consecutive nature of a sentence will not raise a
      substantial question. See [] Moury, 992 A.2d [at] 171-72 []
      (“The imposition of consecutive, rather than concurrent,
      sentences may raise a substantial question in only the most
      extreme circumstances, such as where the aggregate sentence is
      unduly harsh, considering the nature of the crimes and the length
      of imprisonment.”).

Dodge, 77 A.3d at 1270 (emphasis added). Thus, under Dodge, a claim that

a sentence is excessive due to it consecutive nature generally does not raise

a substantial question for purposes of Section 9781(b) of the Sentencing Code.

Nonetheless, in Dodge, this Court held that the defendant raised a substantial

question when he claimed that his aggregate sentence of 40 years and 7

months to 81 years and 2 months of incarceration was excessive based on the

criminal conduct in which he engaged. Id. at 1273. The defendant in Dodge

had been convicted of forty counts of receiving stolen property, two counts of

burglary, two counts of criminal trespass, and one count each of possession

of a small amount of marijuana, possession of drug paraphernalia, and


                                    - 43 -
J-A21031-17



unauthorized use of a motor vehicle.    Id. at 1266–67. We cautioned that

although Dodge had raised a substantial question in his particular case, a

defendant does not raise a substantial question “where the facts of the case

[being reviewed] do not warrant the conclusion that there is a plausible

argument that the sentence is prima facie excessive based on the criminal

conduct involved.” Id. at 1271.

      The case at bar is distinguishable from Dodge because the trial court

there seemed to want the defendant, who had not committed crimes against

a person, incarcerated for life.   Based on uncontradicted evidence here,

Appellant used his position of trust and authority as a psychiatrist to exploit

vulnerable, opioid-addicted young women, whose addictions he nursed, for

his own sexual gratification. Accordingly, Appellant here has failed to raise a

substantial question.

      Even if we were to determine that Appellant’s discretionary aspect of

sentencing claim raised a substantial question, we still would conclude that he

is not entitled to relief.    “Although Pennsylvania’s system stands for

individualized sentencing, the court is not required to impose the ‘minimum

possible’ confinement.”      Moury, 992 A.2d at 171 (citation omitted).

“Generally, Pennsylvania law affords the sentencing court discretion to impose

its sentence concurrently or consecutively to other sentences being imposed

at the same time or to sentences already imposed.       Any challenge to the

exercise of this discretion ordinarily does not raise a substantial question.”

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013); see also

                                    - 44 -
J-A21031-17



42 Pa.C.S.A. § 9721(a) (providing that the court may impose sentences

“consecutively or concurrently”); Commonwealth v. Johnson, 873 A.2d

704, 709 n.2 (Pa. Super. 2005) (noting that challenges to the trial court’s

discretion to impose consecutive or concurrent sentences ordinarily does not

raise a substantial question); Commonwealth v. Hoag, 665 A.2d 1212, 1214

(Pa. Super. 1995) (stating that an appellant is not entitled to a “volume

discount” for his crimes by having all sentences run concurrently).        “The

imposition of consecutive, rather than concurrent, sentences may raise a

substantial question in only the most extreme circumstances, such as

where the aggregate sentence is unduly harsh, considering the nature of the

crimes and the length of imprisonment.” Moury, 992 A.2d at 171-72 (citation

omitted) (emphasis added).

       Instantly, Appellant seems to request a volume discount for committing

multiple crimes on account of his age and because he claims that he has

accepted responsibility and is no longer capable of committing those crimes,

as he cannot prescribe medications due to the loss of his medical license.19

Appellant’s Brief at 50.        Significantly, Appellant does not argue that his

aggregate sentence of 133 to 266 months’ imprisonment represents an

“extreme circumstance.” On the contrary, Appellant acknowledges that his

sentence for each crime was either in the standard or aggravated range of the
____________________________________________


19 Appellant also posits that “[i]n a time when prison over-crowding is
considered a significant problem, keeping an elderly individual with no prior
criminal record who is not at risk of re-offending incarcerated for over a
decade is untenable.” Appellant’s Brief at 52.

                                          - 45 -
J-A21031-17



guidelines.    Also, as the trial court noted, Appellant committed “different

crimes which did not arise from a single event or episode. Rather, the facts

underlying the charges constitute distinct and disparate criminal behavior by

[Appellant] toward multiple victims.”    Trial Court Opinion, 1/11/17, at 22.

Finally, we agree with the Commonwealth’s position that Appellant’s request

for a volume discount should be characterized properly as a “senior citizen

discount.”    Commonwealth’s Brief at 33.      As the Commonwealth notes,

“[t]here is a certain degree of irony in a man who, as of 2012, was feeling

sufficiently spry to engage in concurrent sexual relationships with a 25 year

old and a 19 year old seeking mercy on account of his advanced age.” Id. at

33-34. We, therefore conclude that the trial court acted within its discretion

in imposing consecutive sentences after reviewing the record, including any

mitigating factors, and the presentence investigation report (“PSI”) sub judice.

We note that

            [w]here the sentencing court had the benefit of a [PSI], we
      can assume the sentencing court was aware of the relevant
      information regarding the defendant’s character and weighed
      those considerations along with mitigating statutory factors.
      Further, where a sentence is within the standard range of the
      guidelines, Pennsylvania law views the sentence as appropriate
      under the Sentencing Code.

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (citations

and internal quotation marks omitted), appeal denied, 76 A.3d 538 (Pa.

2013). Discerning no abuse of discretion by the trial court, we will not disturb

Appellant’s sentences on appeal.



                                     - 46 -
J-A21031-17



        We now address Appellant’s argument that the trial court abused its

discretion in finding that he did not demonstrate good cause or exceptional

circumstances for purposes of waiving his PCRA rights to proceed with an

ineffectiveness claim on direct appeal.

        In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme

Court reaffirmed its prior holding in Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002), that, absent certain circumstances, claims of ineffective assistance

of counsel should be deferred until collateral review under the Post Conviction

Relief Act. Holmes, 79 A.3d at 576. The Court explained in a later decision:

        We recently held in Holmes that claims of ineffective assistance
        of counsel litigated after our decision in Grant are not generally a
        proper component of a defendant’s direct appeal. In Holmes, this
        Court reaffirmed the general rule of deferral established in Grant,
        and disapproved of expansion of the so-called Bomar[20]
        exception, which allowed for the presentation of ineffectiveness
        claims on direct appeal if the trial court held an evidentiary
        hearing and disposed of the ineffectiveness claims in its opinion.
        This Court in Holmes limited the Bomar exception to its pre-
        Grant facts. We further recognized two exceptions to the Grant
        deferral rule, both falling within the discretion of the trial court.
        First, we held that trial courts retain discretion, in extraordinary
        circumstances, to entertain a discrete claim of trial counsel
        ineffectiveness if the claim is both apparent from the record
        and meritorious, such that immediate consideration best serves
        the interest of justice. Second, we held that trial courts also have
        discretion to entertain prolix claims of ineffectiveness if there is a
        good cause shown and the unitary review thus permitted is
        accompanied by a knowing and express waiver by the
        defendant of the right to pursue a first PCRA petition.

Commonwealth v. Arrington, 86 A.d 831, 856-57 (Pa. 2014) (emphasis

added). An example of “good cause” would be where the defendant is serving

a sentence so short as to be deprived of an opportunity to seek collateral

____________________________________________


20   Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003).

                                          - 47 -
J-A21031-17



review of his or her conviction. See Holmes, 79 A.3d at 578 (noting that

unitary review offers defendants who receive shorter prison sentences or

probationary sentences the prospect of litigating their constitutional claims

sounding in trial counsel ineffectiveness; for many of these defendants, post-

appeal PCRA review may prove unavailable.”); see also 42 Pa.C.S.A. §

9543(a)(1)(i).   Before a trial court may permit such unitary review, the

defendant’s accompanying PCRA waiver must make clear and certain that any

further collateral attack is subject to the PCRA’s time-bar restrictions, as

detailed in Section 9545(b). Id. at 579 (explaining that “the accompanying

PCRA waiver must embrace more than exhaustion of the defendant's first

PCRA petition, but instead must make clear that any further collateral attack

is subject to the time-bar restrictions of Section 9545(b).”) (Emphasis in

original).

      Here, Appellant’s claim fails for several reasons. At the core, Appellant

seeks review of his PCRA claims because he does not wish to wait on account

of his “advanced age.”    The Commonwealth points out, Appellant has not

established that his ineffectiveness claim is capable of being reviewed on the

existing record.    Commonwealth’s Brief at 35.           In fact, Appellant’s

ineffectiveness claims may require additional evidentiary hearings.      As the

trial court reasoned:

      [A] discrete claim or claims of attorney Troese’s ineffectiveness is
      not apparent from the record and meritorious to the extent that
      immediate consideration best serves the interests of justice.
      Second, [Appellant] seeks to litigate multiple or prolix claims of
      counsel ineffectiveness, including possible non-record-based
      claims, on post-verdict motion.        The reason advanced by

                                     - 48 -
J-A21031-17


       [Appellant] for wanting to raise such claims on post-sentence
       motion is to possibly reach a more expeditious resolution of an
       appeal. This is not sufficient “good cause” for departing from the
       general rule that claims of ineffective counsel are not to be raised
       on direct appeal but, rather, they are to be brought in a petition
       under the [PCRA].

Trial Court Opinion, 9/21/16, at 32.           Discerning no abuse of discretion,

Appellant is not entitled to relief and is permitted to raise any ineffectiveness

claims on collateral review without prejudice.

       Finally, Appellant argues that the trial court erred in refusing to allow

his trial counsel to withdraw at the post-sentence stage and, as a result,

violated his rights under the Sixth Amendment to the United States

Constitution.21

             [T]he right to counsel is guaranteed by both the Sixth
       Amendment to the United States Constitution and by Article I,
       Section 9 of the Pennsylvania Constitution.       In addition to
       guaranteeing representation of the indigent, these constitutional
       rights entitle an accused “to choose at his own cost and expense
       any lawyer he may desire.” Commonwealth v. Novak, 395 Pa.
       199, 213, 150 A.2d 102, 109, cert denied, 361 U.S. 882, 80 S.Ct.
       152, 4 L.Ed.2d 118 (1959). The right to “counsel of one’s
       choosing is particularly significant because an individual facing
       criminal sanctions should have great confidence in his attorney.”
       Moore v. Jamieson, 451 Pa. 299, 307-08, 306 A.2d 283, 288
       (1973).

              We had held, however, that the constitutional right to
       counsel of one’s choice is not absolute. Commonwealth v.
       Robinson, 468 Pa. 575, 592-93 & n. 13, 363 A.2d 665, 674 & n.
       13 (1976). Rather, “the right of the accused to choose his own
       counsel, as well as the lawyer’s right to choose his clients, must
       be weighed against and may be reasonably restricted by the
       state’s interest in the swift and efficient administration of criminal
       justice.” Id. at 592, 364 A.2d at 674 (internal quotations
       omitted). Thus, this Court has explained that while defendants
       are entitled to choose their own counsel, they should not be
____________________________________________


21To the extent Appellant challenges the denial of his second motion for
continuance of the post-sentence hearing, such challenge is waived because
Appellant failed to raise it before the trial court. See Pa.R.A.P. 302(a); Lord,
supra.

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     permitted to unreasonably “clog the machinery of justice or
     hamper and delay the state’s efforts to effectively administer
     justice.” Commonwealth v. Baines, 480 Pa. 26, 30, 389 A.2d
     68, 70 (1978). At the same time however, we have explained
     that “‘a myopic insistence upon expeditiousness in the face of a
     justifiable request for delay can render the right to defend with
     counsel an empty formality.’” Robinson, 468 Pa. at 593-94, 364
     A.2d at 675 (quoting Ungar v. Sarafite, 3476 U.S. 575, 589, 84
     S.Ct. 841, 11 L.Ed.2d 921 (1964)).

Commonwealth v. Prysock, 972 A.2d 539, 542 (Pa. Super. 2009) (quoting

Commonwealth       v   McAleer,   748     A.2d   670,    673-74   (Pa.   2000)).

Pennsylvania Rule of Criminal Procedure 120 provides in part:

     (B) Withdrawal of Appearance

     (1) Counsel for a defendant may not withdraw his or her
     appearance except by leave of court.

     (2) A motion to withdraw shall be:

            (a) filed with the clerk of courts, and a copy
            concurrently served on the attorney for the
            Commonwealth and the defendant; or

            (b) made orally on the record in open court in the
            presence of the defendant.

     (3) Upon granting leave to withdraw, the court shall determine
     whether new counsel is entering an appearance, new counsel is
     being appointed to represent the defendant, or the defendant is
     proceeding without counsel.

Pa.R.Crim.P. 120(B). The Comment accompanying Rule 120 states that “[i]f

a post-sentence motion is filed, trial counsel would normally be expected to

stay in the case until disposition of the motion under the post-sentence

procedures adopted in 1993.    Traditionally, trial counsel stayed in a case

through post-verdict motions and sentencing.”           Id. Comment (citations

omitted).




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J-A21031-17



      Instantly, based on our review of the voluminous record, we conclude

that Appellant’s constitutional rights were not violated. The crux of Appellant’s

argument is that he was prejudiced because the trial court, instead of granting

trial counsel to withdraw, allowed him to remain in the case through the post-

sentence stage and represent Appellant alongside his new attorneys.

Appellant also claims that the trial court’s decision made it more difficult for

his new attorneys to argue his ineffectiveness claims against trial counsel.

Appellant, however, does not assert what, if any, claims of ineffectiveness he

was unable to present in the presence of trial counsel. Moreover, as the trial

court aptly explained:

      [Appellant] suffered no prejudice and was not denied his right to
      chosen counsel at the argument on the post sentence motions for
      the following reasons. [The trial court] permitted appellate
      counsel Alexander Lindsay to participate in the August 25, 2016
      argument on the trial counsel’s post sentence motion. [The trial
      court] exercised [its] discretion and allowed appellate counsel to
      file a supplemental post sentence motion after the deadline for
      post sentence motions had passed. [The trial court] issued a
      decision on appellate counsel’s supplemental [post-sentence]
      motion.    Therefore, [Appellant’s] appellate counsel had the
      opportunity to participate at the post[-]sentence motion stage,
      despite the fact that trial counsel had not been granted leave to
      withdraw. [Appellant] had the benefit of representation by trial
      counsel, who had participated directly in all pre-trial and trial
      proceedings, as well as the advice and argument of his chosen
      appellate counsel.

Trial Court Opinion, 1/11/17, at 4 (unnecessary capitalization omitted).

Appellant’s constitutional rights were not violated here because, at the post-

sentence stage, he had the benefit of his new appellate counsels, Attorneys

Lindsay and Salemme, as well as trial counsel. Appellant’s claim fails.

      Judgment of sentence affirmed.


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J-A21031-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/21/2018




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