J. A20008/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                      v.                   :
                                           :
JOHN HARLEY LUMSDEN,                       :            No. 305 MDA 2019
                                           :
                           Appellant       :


       Appeal from the Judgment of Sentence Entered February 13, 2019,
                in the Court of Common Pleas of Franklin County
                Criminal Division at No. CP-28-CR-0001032-2017


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JANUARY 06, 2020

         John Harley Lumsden appeals from the February 13, 2019 judgment of

sentence of an aggregate 12 months to 3 years’ incarceration entered in the

Court of Common Pleas of Franklin County after a jury convicted appellant of

two counts of indecent exposure and one count of open lewdness. 1 We affirm.

         The record reveals that on March 7, 2017, Officer Michael Taylor, a

police    officer   with   the   Chambersburg   Area    School   District,   received

information that a man was exposing himself while sitting in a car parked on

the bus-ramp portion of the Chambersburg Area High School property. (Notes

of testimony, 12/17/18 at 30-37.)        Upon reviewing the video surveillance

record, Officer Taylor was able to obtain the license plate number of the




1   18 Pa.C.S.A. §§ 3127(a) and 5901, respectively.
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vehicle involved in the incident, which Officer Taylor determined belonged to

“John Lumsden of Shippensburg.”     (Id. at 38-39.)   Officer Taylor did not

believe appellant owned the vehicle.2 (Id. at 39.) Officer Taylor contacted

Officer Eric Varner of the Shippensburg Police Department and asked

Officer Varner to locate the vehicle and inform the “owner/operator” that

Officer Taylor wished to speak with him. (Id. at 39-40.)

        On March 8, 2017, Officer Varner, who was familiar with appellant,

located the vehicle and appellant, informed appellant that Officer Taylor

wished to speak to him, and called Officer Taylor on his work phone before

handing the phone to appellant.       (Id. at 79-83.)      During the phone

conversation, appellant agreed to meet Officer Taylor at 10:00 that morning.

(Id. at 40.) Appellant failed to meet with Officer Taylor at the designated

time. (Id. at 41.) Later that same day, Officer Taylor received a message

from appellant that he had a flat tire, that he was unable to meet with

Officer Taylor, and that he hoped he could settle the matter over the phone.

(Id.)    The phone message was the last time Officer Taylor heard from

appellant before filing charges against appellant for two counts of indecent

exposure and one count of open lewdness. (Id.; see also criminal complaint,

3/16/17.)




2 We note appellant testified that the vehicle was registered to his father,
John Edward Lumsden. (Notes of testimony, 12/17/18 at 92.)


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      On   December     17,    2018,   a   jury   convicted   appellant   of   the

aforementioned crimes.       On February 13, 2019, the trial court sentenced

appellant to an aggregate 12 months to 3 years’ incarceration. Appellant did

not file any post-sentence motions. On the same day as sentencing, appellant

filed a notice of appeal, and the trial court ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

(See notice of appeal, 2/13/19; see also trial court order, 2/13/19.) The trial

court also instructed appellant to request the transcripts required to support

any appeal claims pursuant to Pa.R.A.P. 1911.           (See trial court order,

2/13/19.) Later that same day, appellant filed his Rule 1925(b) statement.

(See Rule 1925(b) statement, 2/13/19.) The trial court filed its Rule 1925(a)

opinion on April 2, 2019.3

      Appellant raises the following issues for our review:

            1.    Did the [t]rial [c]ourt err or abuse its discretion
                  by refusing to allow [appellant’s] attorney to call
                  [appellant’s] girlfriend to testify that it was
                  [appellant’s] norm to always walk her children

3 We note that the trial court, in its Rule 1925(a) opinion, did not address any
of appellant’s issues on the merits but, instead, stated that appellant failed to
request the trial transcripts necessary to resolve appellant’s issues. (Trial
court opinion, 4/2/19 at 2.) The trial court opined that appellant waived all
the issues raised on appeal and requested this court dismiss the appeal. (Id.
at 3.) The record reveals that the transcript of appellant’s jury trial was
“lodged” with the trial court on April 11, 2019, and entered on the docket on
April 22, 2019. Our review of the record adequately apprises us of the trial
court’s reasoning with regard to the issues raised by appellant. Therefore, we
address the merits of appellant’s issues. See Commonwealth v. Hood, 872
A.2d 175, 178 (Pa.Super. 2005) (holding lack of trial court’s addressing of
issues in Rule 1925(a) opinion is not always fatal to this court’s review when
we can look to record to ascertain trial court’s reasoning).


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                    to school at the time of the alleged incident,
                    even though she could not testify that he did so
                    on the day of the alleged incident?

              2.    Did the [t]rial [c]ourt err or abuse its discretion
                    by permitting the prosecuting attorney to both
                    cross[-]examine [appellant] on his failure to
                    speak to police after [appellant] became a
                    person of interest in the police investigation and
                    to then comment upon that to the jury?

              3.    Did the [t]rial [c]ourt err or abuse its discretion
                    by permitting the prosecuting attorney to
                    comment to the jury that [appellant] did not
                    bring forth proof of his innocence at his
                    preliminary hearing?

Appellant’s brief at 5.

        Appellant challenges the trial court’s ruling to preclude testimony from

Kathy Dennis, his girlfriend.      (Id. at 8-10.)     Appellant argues that the

testimony was permissible pursuant to Pennsylvania Rule of Evidence 406,

which allows for admission of evidence of a person’s habit.               (Id. at 9.)

Appellant contends it was his habit each morning to walk his girlfriend’s

children to the bus stop. (Id. at 8; see also notes of testimony, 12/17/18 at

108.)

        In reviewing a trial court’s evidentiary ruling, this court has stated,

“[t]he admissibility of evidence is solely within the discretion of the trial court

and will be reversed only if the trial court has abused its discretion.”

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa.Super. 2013) (citation

omitted), appeal denied, 87 A.3d 319 (Pa. 2014).            Pennsylvania Rule of

Evidence 406, in pertinent part, states, “[e]vidence of a person's habit . . .


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may be admitted to prove that on a particular occasion the person . . . acted

in accordance with the habit . . . .     The court may admit this evidence

regardless of whether it is corroborated or there was an eyewitness.”

Pa.R.E. 406. “For evidence of habit to be admissible, the habit must have

occurred with sufficient regularity to make it probable that it would be carried

out in every instance or in most instances.” Commonwealth v. Harris, 852

A.2d 1168, 1178 (Pa. 2004), citing Baldridge v. Matthews, 106 A.2d 809,

(Pa. 1954). This court explained, “[h]abit refers to the type of nonvolitional

activity that occurs with invariable regularity. It is the nonvolitional character

of habit evidence that makes it probative. Thus, habit is a consistent method

or manner of responding to a particular stimulus. Habits have a reflexive,

almost instinctive quality.” Sutch v. Roxborough Mem’l Hosp., 151 A.3d

241, 252 (Pa.Super. 2016) (citation omitted), appeal denied, 169 A.3d 1065

(Pa. 2017). “A habit is the person’s regular practice of meeting a particular

kind of situation with a specific type of conduct, such as the habit of going

down a particular stairway two stairs at a time.” Id. (ellipsis omitted).

      Here, when asked for an offer of proof as to the witness’s potential

testimony, appellant’s counsel explained,

            [s]he lives with [appellant] and would testify that it
            was his practice every morning at the time in question
            to have walked her children to the bus stop in
            Shippensburg, Pennsylvania and I have said her [sic]
            practice -- this practice, specifically.[sic] Because she
            cannot say and will not say that that occurred
            definitively on the date of the incident.



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Notes of testimony, 12/17/18 at 89-90. The trial court stated, “[i]f that’s the

extent of the offered testimony, I would agree” that the testimony is not

probative or relevant to anything that occurred on the date of the incident

and, therefore, was not admissible. (Id. at 90.) Appellant’s walking of the

girlfriend’s children to the bus stop is not the type of nonvolitional, reflexive,

instinctive, habitual activity contemplated by Pennsylvania Rule of Evidence

406. See, e.g., Sutch, 151 A.3d at 252 (explaining, manner in which doctor

treats patients with particular symptoms is not reflexive, instinctive,

semi-automatic, or mundane habit).        Therefore, we discern no abuse of

discretion in the trial court’s exclusion of the witness’s testimony.

      Appellant   next   contends   the   trial   court   erred   in   allowing   the

Commonwealth to mention to the jury in its opening remarks that appellant

failed to appear for a scheduled interview with Officer Taylor about the

incident. (Appellant’s brief at 10-14; see also notes of testimony, 12/17/18

at 3-5.)    Appellant also contends the trial court erred in permitting the

Commonwealth to cross-examine appellant about his failure to appear for the

scheduled interview. (Appellant’s brief at 10-14; see also notes of testimony,

12/17/18 at 107-109.) Appellant argues that both the opening remarks and

the cross-examination questions violated his right against self-incrimination.

(Appellant’s brief at 12; see also notes of testimony, 12/17/18 at 5,

107-108.)




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         An issue involving the constitutional right against self-incrimination is a

question of law, and therefore, an appellate court’s standard of review is

de novo and the scope of review is plenary. Commonwealth v. Adams,

104 A.3d 511, 517 (Pa. 2014). Our supreme court has held that once an

accused invokes his right against self-incrimination, that right prohibits the

Commonwealth from using the accused’s pre-arrest silence “as substantive

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

testifying defendant or fair response to an argument of the defense.”

Commonwealth v. Molina, 104 A.3d 430, 438, 451 (Pa. 2014).

         Here, the trial court heard argument on the Commonwealth’s “desire to

make mention in his opening statement of [appellant’s] failure to appear for

a scheduled interview” with Officer Taylor.       (Notes of testimony, 12/17/18

at 3.)    The Commonwealth, in arguing that the mentioning of appellant’s

failure to appear for the interview was permissible because appellant did not

invoke his right against self-incrimination, stated,

               There’s no intention that he exercised his right to
               remain silent. He indicated he wanted to discuss the
               incident and have a conversation with the police
               officer and didn’t do it.    There’s no affirmative
               statement by him that I'm exercising my right to
               remain silent.

Id. at 5. The trial court agreed with the Commonwealth. (Id.)

         In its opening statement, the Commonwealth, when discussing the

circumstances surrounding Officer Taylor’s interest in speaking with appellant,

stated,


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            [While on the phone with appellant,] Officer Taylor
            says, I need to talk to you, [appellant], about
            something that happened yesterday. It’s about 8:15
            in the morning at this point. [Appellant] says, I’ll be
            there at 10:00. Doesn’t show up. Calls and said, I
            had a flat tire. I’ll be there later in the afternoon.
            Doesn’t show up. Leaves a voicemail, I’ll make
            arrangements to talk to you at some point, never did.

Notes of testimony, 12/17/18 at 25.4

      On cross-examination, the Commonwealth asked appellant about his

failure to meet with Officer Taylor. (Id. at 106.) Appellant’s counsel objected,

arguing that the questions were in violation of appellant’s right to remain

silent. (Id. at 107.) The trial court, in permitting this line of questioning,

stated, “[t]o clarify, [appellant,] did -- never indicated -- it’s never been

represented to the [trial c]ourt that he told police that he wished to remain

silent.” (Id. at 108.)

      The record contains no indication that appellant invoked his right against

self-incrimination. On the contrary, a review of the testimony demonstrates

that appellant made plans to meet with Officer Taylor to discuss the incident

but “never really had time to go see him.” (Id. at 106.) Therefore, we discern

no error of law in the trial court’s allowance of the Commonwealth’s remarks

in its opening argument or the cross-examination of appellant regarding his

failure to appear for the scheduled interview with Officer Taylor. Moreover,

appellant testified:


4 Under Molina, a testifying defendant can be impeached with his pre-arrest
silence. See Molina, 104 A.3d at 447.


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            I actually contacted the Chambersburg City Police to
            find out if I was a wanted individual or if I had an
            arrest warrant for me. They told me that I was not
            wanted for arrest, that I was wanted for questioning.
            They gave me [Officer Taylor’s] name and I left a
            voicemail for him also, with name, phone number and
            all of that.

Id. at 111. Appellant’s testimony clearly demonstrates that he did not invoke

his right against self-incrimination.      See, c.f., Molina, 104 A.3d at 438

(holding “[d]efendant’s actions in affirmatively and definitively refusing to

come to the police station and ending the phone call were sufficient to invoke

his right against self-incrimination.”).

      In his final issue, appellant claims the trial court erred in permitting the

Commonwealth, through its cross-examination questions of appellant, to

imply to the jury that appellant failed to present evidence at the preliminary

hearing. (Appellant’s brief at 15.) Appellant also claims the trial court erred

in denying appellant’s request “to call a defense attorney as a witness to




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address the issue of whether a defense attorney would offer such evidence at

a preliminary hearing.”5 (Id.)

      “It is well-settled that defendant’s failure to object to allegedly improper

testimony at the proper stage in the questioning of the witness constitutes a

waiver.” Commonwealth v. Redel, 484 A.2d 171, 175 (Pa.Super. 1984)

(citation omitted); see also Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in

the lower court are waived and cannot be raised for the first time on appeal.”).

      Here, appellant contends the Commonwealth improperly referred to

appellant’s failure to present evidence at his preliminary hearing. (Appellant’s

brief at 16.) A review of the record, however, demonstrates appellant failed


5 A review of appellant’s Rule 1925(b) statement demonstrates that appellant
failed to raise the claim that the trial court erred in denying appellant’s request
to present the testimony of another defense attorney to establish that
defendants are not required to present evidence at a preliminary hearing.
(Appellant’s Rule 1925(b) statement, 2/13/19.) Therefore, this claim is
waived pursuant to Pa.R.A.P. 1925(b)(4)(vii).            See Commonwealth v.
Castillo, 888 A.2d 775, 780 (Pa. 2005) (stating, “[a]ny issues not raised in a
Pa.R.A.P. 1925(b) statement will be deemed waived.”), re-affirming,
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).

      Alternatively, if appellant had properly raised this claim in his
Rule 1925(b) statement, we would find this claim lacks merit. The record
demonstrates that after denying appellant’s request to present such
testimony, the trial court offered the following jury instruction, “Members of
the jury, I am advising you as a matter of law that the defendant need not
present any evidence at a preliminary hearing. Just as a defendant need not
present evidence at trial.” (Notes of testimony, 12/17/18 at 116.) We would
discern no abuse of discretion on the part of the trial court in denying
appellant’s evidentiary request and, in the alternative, providing a jury
instruction explaining the principles of law to follow. See Commonwealth v.
LaCava, 666 A.2d 221, 228 (Pa. 1995) (citation omitted) (stating, “[t]he jury
is presumed to have followed the [trial] court’s carefully issued limiting
instruction.”).


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to object to the Commonwealth’s cross-examination of appellant at the point

when the Commonwealth asked appellant if he had presented any evidence

at his preliminary hearing. (Notes of testimony, 12/17/18 at 109-110, 113-

114.) Therefore, appellant has waived this issue.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 01/06/2020




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