J-S02039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

REBECCA L. JOHNSON

                            Appellant                No. 1469 EDA 2014


         Appeal from the Judgment of Sentence of December 5, 2013
            In the Court of Common Pleas of Northampton County
              Criminal Division at Nos.: CP-48-CR-0000559-2013
                                         CP-48-CR-0002629-2012
                                         CP-48-CR-0002774-2012


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

MEMORANDUM BY WECHT, J.:                            FILED MARCH 09, 2015

       Rebecca L. Johnson (“Appellant”) appeals her December 5, 2013

judgment of sentence, which was imposed following convictions by a jury of

one count each of second-degree murder, robbery, aggravated assault,

burglary, criminal trespass, theft by unlawful taking, terroristic threats,

possessing an instrument of crime, flight to avoid apprehension, escape,

resisting arrest, and fleeing or attempting to elude an officer; five counts of

recklessly endangering another person; two counts of conspiracy; and two

counts of criminal solicitation.1 We affirm.

____________________________________________


1
     See 18 Pa.C.S. §§ 2502(b), 3701(a)(1)(ii), 2702(a)(1), 3502(a),
3503(a)(1)(ii), 3921(a), 2706(a)(1), 907(a), 5126(a), 5121(a), 5104,
3733(a), 2705, 903, and 902, respectively.
J-S02039-15



      On January 15, 2012, Appellant, her co-defendant Roger Suero, and

two other individuals conspired to rob Appellant’s grandmother, Carrie

Smith. Ms. Smith suffered from preexisting medical conditions of the heart

and lungs, including coronary artery disease, atrial fibrillation, and interstitial

lung disease. Notes of Testimony (“N.T.”), 10/2/2013, at 107. In the early

morning hours of January 15, 2012, Suero and an unknown individual

entered Ms. Smith’s residence.      Ms. Smith called 911 and told the police

officers who responded that she had been awakened by two males that

entered her bedroom. N.T., 10/1/2013, at 11. Ms. Smith stated that one

man wore a dark hooded sweatshirt and that the other had blue surgical

gloves on his hands. Id. at 12. The man wearing the sweatshirt told her to

remain quiet, and he placed a pillow over her face. When he removed the

pillow, he told Ms. Smith that she would not be harmed if she cooperated.

      Ms. Smith reported that the man in the sweatshirt demanded to know

the location of her safe, and that the other man searched through her

dressers while she led the first man to her safe.         Id. at 13.    When she

struggled to remember the safe’s combination, the man threatened her, and

Ms. Smith felt a cold, hard object against the back of her head, which she

believed to be a firearm. Id. at 14. After she opened the safe, Ms. Smith

remembered seeing the individual wearing the blue surgical gloves reaching

into the safe and removing her belongings.        The men took approximately

$35,000.00 cash from the safe. After removing the contents of the safe, the

men took Ms. Smith back to her bedroom, then fled from the residence.

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       Ms. Smith suffered a heart attack during or shortly after the robbery,

and she was hospitalized several times in the weeks that followed the

robbery. On March 16, 2012, Ms. Smith died of exacerbation of congestive

heart failure as a result of the heart attack suffered on January 15, 2012.

N.T., 10/2/2013, at 131.

       The Commonwealth’s theory of the case was that Appellant and Roger

Suero conspired to commit the robbery because they planned to travel to

Colorado to purchase a large amount of marijuana and needed a substantial

sum of money to accomplish that goal. Brief for Commonwealth at 20. At

trial, the Commonwealth called Steven Wilson as a witness, who testified

that Appellant and Suero had attempted to solicit his aid in a marijuana

distribution scheme. N.T., 10/1/2013, at 204. Mr. Wilson testified that the

quantity of marijuana that Appellant and Suero sought to acquire would

have   a   value   of   approximately   $400,000.00.   Id.   at   210.   The

Commonwealth introduced this evidence to demonstrate the defendants’

motive for the robbery, because it “tend[ed] to show that [Appellant] and

her co-defendant were in need of obtaining a substantial sum of money to

make their marijuana purchase.” Brief for Commonwealth at 20. Prior to

trial, Appellant moved to exclude Mr. Wilson’s testimony as inadmissible

evidence of prior bad acts pursuant to Pa.R.E. 404(b)(1).     The trial court

denied Appellant’s motion, finding that the evidence was relevant to motive

and that the probative value of Wilson’s testimony outweighed any potential

prejudice to Appellant.

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       On September 30, 2013, Appellant and Suero proceeded to a joint

trial, which lasted for six days.         During closing arguments, the assistant

district attorney made several statements that counsel for Suero alleged to

be inflammatory.        After closing arguments were completed, counsel for

Suero objected to the statements and moved for a mistrial, arguing that the

assistant district attorney, inter alia, misrepresented testimony, stated her

personal    beliefs   about     the   credibility   of   witnesses,   and    improperly

commented upon the defendants’ demeanors during the trial.                  After an in

camera discussion, counsel for Appellant joined in the motion for a mistrial.

However, the parties agreed upon a number of curative instructions, and the

trial court proceeded to instruct the jury accordingly. The jury returned a

verdict that same day, finding Appellant guilty of the above-listed charges.2

On December 5, 2013, the trial court sentenced Appellant, inter alia, to life

imprisonment without the possibility of parole.             On December 16, 2013,

Appellant filed post-sentence motions, which the trial court denied on March

24, 2014.

       Appellant timely filed a notice of appeal on April 22, 2014. On May 13,

2014, the trial court directed Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).                      After being

appointed new counsel on June 24, 2014, Appellant filed a concise statement

____________________________________________


2
      Suero also was convicted of numerous offenses in connection with the
incident, and also was sentenced to a term of life imprisonment.



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on August 28, 2014.          On September 3, 2014, the trial court issued an

opinion pursuant to Pa.R.A.P. 1925(a), which incorporated its March 24,

2014 opinion in support of the order denying Appellant’s post-sentence

motions.

       Preliminarily, we must determine whether Appellant has preserved her

claims for our review. We note that Appellant’s concise statement was filed

over two months beyond the deadline established by the trial court’s order,

but followed a change in counsel.              Ordinarily, the failure to file a concise

statement will result in waiver of all issues on appeal.3 However, the Rules

of Appellate Procedure also provide, in relevant part:

       If an appellant in a criminal case was ordered to file a Statement
       and failed to do so, such that the appellate court is convinced
       that counsel has been per se ineffective, the appellate court shall
       remand for the filing of a Statement nunc pro tunc and for the
       preparation and filing of an opinion by the judge.

Pa.R.A.P. 1925(c)(3).       In Commonwealth v. Burton, 973 A.2d 428 (Pa.

Super. 2009) (en banc), this Court extended Pa.R.A.P. 1925(a)(c)(3) to

situations where the appellant filed a concise statement, but failed to do so

within the court-ordered deadline. This Court reasoned:


____________________________________________


3
     See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Hill, 16 A.3d 484,
494 (Pa. 2011) (“[I]n order to preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court orders them to file a
Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925.
Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed
waived.”) (citing Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)).



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     The complete failure to file the 1925 concise statement is per se
     ineffectiveness because it is without reasonable basis designed
     to effectuate the client’s interest and waives all issues on appeal.
     Likewise, the untimely filing is per se ineffectiveness because it
     is without reasonable basis designed to effectuate the client’s
     interest and waives all issues on appeal. Thus[,] untimely filing
     of the [Rule] 1925 concise statement is the equivalent of a
     complete failure to file. Both are per se ineffectiveness of
     counsel from which appellants are entitled to the same prompt
     relief.

Id. at 432-33 (footnote omitted).      Having determined that the remand

procedure applies to untimely filed concise statements, this Court explained

that a remand is not necessary where the concise statement eventually was

filed and the trial court had an opportunity to address the issues raised.

See id. at 433; Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa.

Super. 2012).

     In the instant case, Appellant, while still represented by trial counsel,

failed to file a concise statement before the court-ordered deadline.       This

failure constitutes per se ineffectiveness on the part of Appellant’s trial

counsel.    See   Burton,    973   A.2d   at   433.    However,    Appellant’s

subsequently-appointed attorney filed a concise statement on August 28,

2014, and the trial court addressed Appellant’s claims of error in its

September 3, 2014 opinion.       Because the trial court had an adequate

opportunity to prepare an opinion addressing the issues being raised on

appeal, we may decide Appellant’s appeal on its merits. Id.

     Appellant raises the following issues for our review:

     1. Whether the [t]rial [c]ourt erred in not granting [Appellant’s]
     motion for mistrial or [Appellant’s] motion on the grounds of the

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       prosecutorial misconduct committed during the prosecutor’s
       closing argument[,] where the arguments as well as the tone
       and manner of the entire prosecution [sic] closing argument[]
       could only have improperly enflamed the passions of the jury,
       convinced the jury of the personal opinions of the prosecutor on
       issues of guilt and credibility, and encouraged the jury to
       disregard valid applicable legal principles[?]

       2. Whether the trial court erred in denying [Appellant’s] motion
       to preclude evidence relating to allegations that [Appellant] was
       attempting to arrange a controlled substance transaction in
       another state[, where the] evidence was irrelevant and its
       prejudice [sic] effects substantially outweighed any probative
       value[?]

Brief for Appellant at 6.

       In her first issue, Appellant argues that, during closing argument, the

prosecution     mischaracterized        portions   of   the   trial   testimony   and

inappropriately instructed the jury to consider Appellant’s non-testimonial

demeanor in the courtroom.4 Appellant argues that the trial court erred in




____________________________________________


4
      Appellant also raises numerous claims of prosecutorial misconduct that
relate only to Suero.        Appellant alleges that the prosecution made
inflammatory statements of opinion about Suero’s credibility and guilt and
displayed inadmissible portions of evidence that prejudiced Suero. Brief for
Appellant at 12-13. Neither before this Court nor in the trial court has
Appellant successfully established a nexus between the conduct in question
and prejudice to her defense specifically.      Consequently, these claims
warrant no further discussion. See Pa.R.A.P. 2119(a); Commonwealth v.
B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008) (en banc) (“When an
appellant fails to develop his issue in an argument and fails to cite any legal
authority, the issue is waived.”).




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denying her motion for a mistrial, which was based upon the alleged

misconduct of the prosecution.5 We disagree.

       Preliminarily, the trial court asserts that it did not formally deny the

motion for a mistrial. Instead, counsel for Suero and counsel for Appellant

withdrew their motions after an in camera conference during which the

parties discussed the potential efficacy of curative instructions in lieu of a

mistrial.     In her brief, Appellant implicitly disagrees, asserting that

Appellant’s “mistrial motion was denied.” Brief for Appellant at 14.

       During the in camera conference, the trial court suggested instructing

the jury to disregard any speculation about what a potential witness would

have said if he had testified, and to remind the jury that the defendants

were under no obligation to assert their innocence. N.T., 10/7/2013, at 140.

The trial court and counsel for Suero engaged in the following exchange:

       The Court: . . . I know you’re not going to tell me that you’re
       satisfied with that because you’re asking for a mistrial, but I’m
       going to ask you anyway: Would that be satisfactory to the
       defense if I were to give those two statements? Would you still
       want to redo this entire trial again?

       [Counsel for Suero]: The answer to that is a resounding no,
       Your Honor. If the jury is instructed in a way that indicates that
       the comment about what Gavin Holihan might have said is to be
       utterly disregarded, and comments about who is or isn’t
____________________________________________


5
       Counsel for Suero initially moved for a mistrial after the assistant
district attorney’s closing argument. N.T., 10/7/2013, at 132. Counsel for
Appellant joined in that motion during an in camera conference, but noted
that “the more significant issues really centered around Roger Suero.” Id.
at 144.



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      believable, if you comment on that in a way that indicates that
      that’s for them and not for us, I think as to those two issues, I’m
      fine.

Id. Counsel for Suero requested that a number of other details be included

in the curative instructions, but did not renew his demand for a mistrial. Id.

at 143.       Counsel for Appellant said nothing during this discussion, but

expressly joined in the motion for a mistrial at the conclusion of the

conference. Id. at 144. After the trial court prepared the jury instructions,

the parties reviewed the instructions in another in camera conference. Id.

at 145-53. While counsel for Suero did suggest an additional instruction, a

request that the trial court denied, no party objected to the curative

instructions as formulated by the trial court.    Furthermore, the trial court

again asked defense counsel whether the curative instructions were

sufficient:

      The Court: Okay. Under the circumstances now, does that
      change the defendant’s position as to whether they contend a
      mistrial needs to be granted?

      [Counsel for Suero]: I’ll speak for Mr. Suero, yes, it does.

Id. at 149.      Counsel for Appellant did not respond to the question.     Id.

After reading the entire jury charge, the trial court asked the attorneys if

they had “any objections, corrections, [or] additions” to be made, and each

attorney responded in the negative. Id. at 208.

      In Commonwealth v. Brooks, 508 A.2d 316 (Pa. Super. 1986), a

case similarly arising from the robbery and assault of an elderly couple in



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their home, the defendant’s counsel moved for a mistrial due to allegedly

prejudicial prosecutorial conduct that occurred during trial. The defendant’s

counsel “initially objected but then withdrew that objection when the court

gave a curative instruction, stating that his concerns had been satisfied.”

Id. at 322. This Court concluded that the withdrawal of counsel’s objection

precluded the defendant from pursuing the issue on appeal. Id.

      In the instant case, the trial court directly asked whether counsel for

the defendants maintained that a mistrial still would be necessary if the

court gave curative instructions to the jury. Although Appellant now argues

that “the instruction given did not, and could not, ameliorate the improper

effects of the prosecution [sic] arguments,” Brief for Appellant at 14, counsel

for Suero clearly indicated to the trial court that the curative instructions

obviated the perceived need for a mistrial. Thus, as in Brooks, counsel for

Suero withdrew the objection, indicating that the curative instructions

adequately addressed his concerns.      As to Appellant’s objection, the trial

court noted as follows:

      Appellant’s counsel was silent, but his prior indication of
      satisfaction with the proposed curative instructions, when
      coupled with his silence and his clear practice of working in
      concert with Suero’s counsel, we can only conclude that
      [Appellant’s] motion for a mistrial was likewise withdrawn and
      that counsel was satisfied with the curative instructions . . . .

Post-Sentence Motion Opinion (“P.S.O.”), 3/24/2014, at 5.

      Whether one attorney’s withdrawal of a motion can bind another

attorney who joined initially in the motion and stands silently as the first

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attorney withdraws that motion seems to us a more complex (and

consequential) question than the trial court suggests. However, we need not

resolve the question today.         Effectively vindicating the trial court’s

questionable inference, Appellant conceded before the trial court that the

motion for a mistrial was withdrawn. See Brief In Support of Post-Sentence

Motion, 2/19/2014, at 10 (“At the conclusion of the Commonwealth’s closing

argument, . . . defense counsel presented a motion for mistrial based upon

the argument made by the Commonwealth. Defendant’s mistrial motion was

withdrawn, and the [c]ourt gave a cautionary instruction.”). Thus, while we

are not persuaded entirely by the trial court’s reasoning on this matter,

Appellant’s post-trial affirmation that the motion had been withdrawn

renders the question moot.

      The withdrawal of a motion is tantamount to never having raised the

underlying objection in the first instance.    Thus, this issue has not been

preserved for purposes of this appeal. See Brooks, supra; 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.”); Commonwealth v. Houck, 102 A.3d 443, 451

(Pa. Super. 2014) (“[T]he failure to make a timely and specific objection

before the trial court at the appropriate stage of the proceedings will result

in waiver of the issue.”). Accordingly, Appellant’s first issue is waived.

      Moreover, even if Appellant’s motion for a mistrial had not been

withdrawn, the trial court’s denial of that motion would not constitute an

abuse of discretion. “To constitute a due process violation, the prosecutorial

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misconduct must be of sufficient significance to result in the denial of the

defendant’s right to a fair trial.” Commonwealth v. Spotz, 47 A.3d 63, 97

(Pa. 2012) (citation omitted).    “The touchstone is the fairness of the trial,

not the culpability of the prosecutor.”          Id.    The Court in Spotz also

explained that, “[a] prosecutor may make fair comment on the admitted

evidence and may provide fair rebuttal to defense arguments.”                Id.    In

reviewing a claim of misconduct, “[a]ny challenge to a prosecutor’s comment

must be evaluated in the context in which the comment was made.”                   Id.

Furthermore, “[n]ot every unwise, intemperate, or improper remark made

by a prosecutor mandates the grant of a new trial.”             Id. at 98.   Rather,

“[c]omments by a prosecutor constitute reversible error only where their

unavoidable effect is to prejudice the jury, forming in [the jurors’] minds a

fixed bias and hostility toward the defendant such that they could not weigh

the evidence objectively and render a fair verdict.”            Commonwealth v.

Bryant, 67 A.3d 716, 727 (Pa. 2013) (citation omitted).

      Appellant    challenges    the    prosecution’s    actions    during   closing

arguments     in   several   regards.      First,   Appellant    argues   that     the

Commonwealth mischaracterized the victim’s statements about the skin

color of one of the perpetrators, stating that Ms. Smith “thought she saw

white on the person’s arm as the arm was going into the safe.”                   N.T.,

10/7/2013, at 109. Because Ms. Smith was deceased, her description was

introduced into evidence by an investigating police officer, who testified that

Ms. Smith had identified one of the men as having a white arm, but seemed

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to contradict himself as to which perpetrator Ms. Smith identified as having

white skin. The trial court even indicated that it found the testimony about

the color of the arm to be confusing. See N.T., 10/7/2013, at 150. Viewed

in context, the officer’s review of Ms. Smith’s statements did not have the

“unavoidable effect” of prejudicing the jury or establishing a fixed bias or

hostility in the juror’s perceptions of Appellant.      See Bryant, 67 A.3d at

727. Moreover, the trial court instructed the jurors that they were “to be

guided solely by [their] collective recollection of the facts,” and not by the

attorneys’ recounting of those facts. N.T., 10/7/2013, at 176. Because the

prosecution’s comment about a perpetrator’s skin color did not deprive

Appellant of a fair trial and was addressed by the jury instructions, the

comment would not constitute reversible error.

      Second,   Appellant   argues    that    the    assistant   district   attorney

misrepresented Steven Wilson’s testimony.           Brief for Appellant at 12-13.

Wilson testified that Suero sought his assistance in selling the marijuana

that he planned to purchase, and assumed that Suero sought his assistance

“because Rebecca told him that I smoked weed.” N.T., 10/1/2013, at 209.

However, in its closing argument, the Commonwealth erroneously stated

that Wilson “sold drugs.” N.T., 10/7/2013, at 106. Appellant suggests that

the misstatement improperly bolstered the Commonwealth’s theory that

Appellant and Suero sought to enlist Wilson’s aid in selling marijuana. Brief

for Appellant at 13. We disagree. The fact in question was mere speculation

on Wilson’s part as to why Suero would attempt to enlist his aid. Given the

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quantum of evidence supporting the Commonwealth’s theory of the case, it

was immaterial whether an associate of theirs sold marijuana or used

marijuana.    Thus, the comment about Steven Wilson’s sale or use of

marijuana did not deprive Appellant of a fair trial.

      Third, Appellant argues that it was erroneous for the Commonwealth

to suggest that the jurors consider Appellant’s demeanor while Ms. Smith’s

911 call was played for the jury.             Brief for Appellant at 13.    The

Commonwealth commented that Appellant appeared to be “not concerned”

about the distress that her grandmother experienced during the robbery.

N.T., 10/7/2013, at 127.     Appellant argues that this statement suggested

“that the jury should engage in an entirely improper evaluation of

[Appellant’s] emotional condition and character without any factual basis

with which to do so.” Brief for Appellant at 13.

      In Commonwealth v. Hernandez, 590 A.2d 325, 331 (Pa. Super.

1991), this Court held that a prosecutor’s comments about the defendant’s

“impassive demeanor throughout the trial” did not constitute reversible

error, and stated that an “appellant’s demeanor as observed by the jury is a

proper consideration.”   Hernandez, 590 A.2d at 331.         Further, this Court

held that “the remarks were not prejudicial but merely were arguments

based on the evidence.” Id.

      In the instant case, the trial court suggested that any error would be

cured by the instruction to the jurors to use their common sense in

evaluating the facts. See N.T., 10/7/2013, at 136. While counsel for Suero

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did not consider this instruction to be fully adequate, he did not request any

further or additional instruction on the matter.        Id. Counsel for Appellant

remained silent except to indicate that he had no objection to the proposed

curative instructions. Id. at 146-49. Furthermore, no attorney commented

when the trial court asked for “any objections, corrections, [or] additions” to

the jury instructions.       Id. at 208.       While the Commonwealth’s comment

about Appellant’s demeanor while listening to the 911 call may not have

been entirely appropriate, the comment did not infringe upon Appellant’s

rights to silence and to be free from self-incrimination.6 As the trial court

noted, the jurors were free to observe Appellant and to formulate their own

judgments, and were instructed to use their common sense in doing so.

See Hernandez, 590 A.2d at 331.                 Consequently, the Commonwealth’s

comment about Appellant’s demeanor was not so prejudicial as to deprive

Appellant of a fair trial.

       Having reviewed each of Appellant’s allegations of prosecutorial

misconduct, we conclude that any misconduct on the part of the assistant

district attorney was not of sufficient significance to result in the denial of

Appellant’s right to a fair trial. See Spotz, 47 A.3d at 97. Therefore, even

if Appellant had not waived the issue by withdrawing the motion for a

mistrial, her first issue would not merit relief.

____________________________________________


6
       See U.S. Const. amend. V; Pa. Const. art. I, § 9.




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        In her second issue, Appellant argues that the trial court erred in

admitting evidence of her involvement in the scheme to purchase a large

quantity of marijuana in Colorado.             Brief for Appellant at 14.   Appellant

asserts that the prejudicial effect of this evidence outweighed any probative

value.7 Id. We disagree.

        The admission of evidence of prior criminal acts is governed by Rule

404(b) of the Pennsylvania Rules of Evidence, which provides, in pertinent

part:

        (b)   Crimes, Wrongs or Other Acts.

          (1) Prohibited Uses. Evidence of a crime, wrong, or other
          act is not admissible to prove a person’s character in order
          to show that on a particular occasion the person acted in
          accordance with the character.

          (2) Permitted Uses. This evidence may be admissible for
          another purpose, such as proving motive, opportunity,
          intent, preparation, plan, knowledge, identity, absence of
          mistake, or lack of accident. In a criminal case this
          evidence is admissible only if the probative value of the
          evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b).


____________________________________________


7
      Appellant also asserts that the evidence of the marijuana distribution
plot was irrelevant, but does not develop the argument in any substantive
fashion. Brief for Appellant at 14. The argument portion of an appellate
brief must include a discussion and citation of pertinent legal authorities.
Pa.R.A.P. 2119(a). Appellant has failed to do so. Consequently, this issue is
waived. See Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super.
2008) (en banc) (“When an appellant fails to develop his issue in an
argument and fails to cite any legal authority, the issue is waived.”).



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     “The admission of evidence of prior bad acts is solely within the

discretion of the trial court, and the court’s decision will not be disturbed

absent an abuse of discretion.” Commonwealth v. Patterson, 91 A.3d 55,

68 (Pa. 2014) (citation omitted). “An abuse of discretion is not merely an

error of judgment, but is rather the overriding or misapplication of the law,

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. Melvin, 103 A.3d 1, 35 (Pa. Super. 2014) (citation

omitted).

     Here, the trial court permitted the Commonwealth to introduce

evidence of the criminal plot for the purpose of proving the defendants’

motive to commit the robbery, an enumerated exception to the rule

prohibiting evidence of prior criminal acts.   See Pa.R.E. 404(b)(2).    The

Commonwealth hypothesized that Appellant and her co-defendant, Suero,

required a large sum of money to complete the purchase and transportation

of the marijuana, and that they intended to acquire the funds, in part, by

robbing Ms. Smith.

     Appellant filed a motion in limine seeking exclusion of evidence of the

plot, which the trial court denied.    The trial court determined that the

probative value and the need for the evidence was considerable, because it

tended to establish a motive for the robbery of Appellant’s grandmother, “an

act which, absent a motive, would likely seem incredible.”            P.S.O.,

3/24/2014, at 8. To further mitigate any prejudice, the trial court gave a

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contemporaneous instruction to the jury to consider the evidence only to

establish motive.        N.T., 10/1/2013, at 138.         The court repeated this

instruction during its concluding charge to the jury.           N.T., 10/7/2013, at

167-68.

      “[T]o be admissible . . ., evidence of a distinct crime, even if relevant

to motive, must give sufficient ground to believe that the crime currently

being considered grew out of or was in any way caused by the prior set of

facts and circumstances.” Commonwealth v. Hairston, 84 A.3d 657, 670

(Pa. 2014) (internal quotation marks omitted).             In Commonwealth v.

Collins, 70 A.3d 1245 (Pa. Super. 2013), the defendant was charged with

murder,    and     the   trial   court   admitted    evidence   of   the   defendant’s

participation in a drug distribution organization.              Although this Court

acknowledged that the evidence was prejudicial, we determined that it was

sufficiently probative of the defendant’s motive to outweigh its prejudicial

effect, because it linked the defendant to the victim and suggested a motive

for the killing.   Id. at 1252.      Similarly, in the instant case, the trial court

determined that the evidence of the marijuana distribution plot was relevant

to Appellant’s motive, because it tended to establish that Appellant and

Suero “were in need of a substantial sum of money for a large drug

purchase, and       that they sought to            obtain that money by robbing

[Appellant’s] grandmother.” P.S.O., 3/24/2014, at 7. The inference that the

robbery “grew out of or was in any way caused by” the marijuana

distribution plot was, therefore, a reasonable one.

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      We discern no abuse of discretion.      The trial court considered the

appropriate factors in making its evidentiary ruling, provided reasonable

explanations for its assessment of the probative value and prejudicial effect

of the evidence, and gave cautionary instructions to the jury.     Therefore,

Appellant’s second issue does not merit relief.

      Accordingly, upon review of the certified record, the facts of the case,

and the applicable principles of law, we find no basis to grant relief upon

either of Appellant’s claims.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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