J-S12043-20

                                   2020 PA Super 127

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHERON JALEN PURNELL                       :
                                               :
                       Appellant               :   No. 1646 EDA 2019

         Appeal from the Judgment of Sentence Entered March 18, 2019
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0004353-2016


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

OPINION BY COLINS, J.:                                     FILED MAY 28, 2020

        Appellant, Sheron Jalen Purnell, appeals from the aggregate judgment

of sentence of 20½ to 47 years of confinement, which was imposed after his

jury trial convictions for murder of the third degree and firearms not to be

carried without a license.1 We affirm.

        The facts underlying this appeal are as follows.      On the evening of

October 3, 2016, in the area of Belmont Street and Sixth Avenue in

Coatesville, Kevin Jalbert was shot seven times and killed. N.T., 11/29/2018,

at 107. At the time of the shooting, Stacie Dausi, Justin Griest,2 and Sharon


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. §§ 2502(c) and 6106(a)(1), respectively.
2 This witness’s name is spelled as either “Greist” or “Griest” throughout
various court documents. However, at the beginning of his trial testimony,
J-S12043-20


and Robert Swisher were inside the Swishers’ residence on Belmont Street

and saw a group of black males in an adjacent alley and heard their voices

grow louder and angrier.          N.T., 11/26/2018, at 117 (Ms. Swisher), 146

(Mr. Swisher); N.T. 11/27/2018, at 70 (Griest); N.T., 11/28/2018, at 31, 35

(Dausi). Griest and Mr. Swisher witnessed the murder and identified Appellant

as the shooter, although Griest later recanted after he was assaulted on

September 2, 2018. Exhibits C10-G1 to C10-G6, C10-I; N.T., 11/26/2018, at

140-45; N.T., 11/27/2018, at 56-57, 88-89, 93-95, 97, 104-06, 119-123,

131; N.T., 11/28/2018, at 110-11; Trial Court Opinion, dated August 23,

2019, at 1, 8, 10-11 (not paginated).

       Jalbert’s murder and Griest’s assault were also witnessed by A.H., an

autistic minor.     N.T., 11/28/2018, at 110-11; Trial Court Opinion, dated

August 23, 2019, at 10-11. Prior to trial, the Commonwealth filed a motion

asking the trial court to allow A.H. to have a “comfort dog” with her on the

stand. The motion explained: “The comfort dog would enter the courtroom

prior to the jury’s entrance. The comfort dog would exit the courtroom once

all the jurors are excused from the courtroom. The comfort dog would remain

in the witness stand outside the presence of the jury.”      Commonwealth’s

Motion for Special Procedures During the Presentation of the Testimony of



____________________________________________


when asked to spell his name, he answered, “G-r-i-e-s-t.” N.T., 11/27/2018,
at 32. Accordingly, we have used that spelling throughout and have corrected
it in quotations where it was misspelled without further annotation.

                                           -2-
J-S12043-20


Child    Witnesses,   at    1-2   ¶   4;   see   also   N.T.,   11/19/2019,   at   50

(Commonwealth suggests same procedure).

        During a pretrial hearing on the motion, Appellant objected to the dog’s

presence in the court, expressing his concern that “the jury is going to see the

dog somehow and they’re going to feel sympathy for [A.H.]”                      N.T.,

11/19/2018, at 50.         The trial court asked the Commonwealth why it was

requesting a comfort dog for A.H. alone, when there were other minor

witnesses in the case, and the Commonwealth answered: “A.H. has expressed

to law enforcement that she is concerned about her safety coming to court

and it’s for that reason the Commonwealth is asking for the dog to accompany

her to the stand.” Id. at 53. The trial court granted the Commonwealth’s

motion. Without withdrawing his objection to the dog’s attendance, Appellant

further argued that, if the trial court was going to allow the dog in the

courtroom, the dog should be “out of the view of the jurors.” Id. at 55.

        At trial, on November 26, 2018, the Commonwealth presented the

testimony of Corporal Shawn Dowds of the City of Coatesville Police

Department.

        Corporal Dowds gave extensive testimony on Coatesville’s system
        of surveillance cameras, including over fifty exhibits in the form of
        videos and still images from those cameras. While discussing the
        background of the surveillance cameras, Dowds mentioned that
        the system is very useful because police in Coatesville “don’t have
        a lot of cooperation in the community in the city. It’s, you know,
        people don’t want to talk to the police as much as what we may
        find other places, I’m not sure if this is the only place that’s
        worse.” N.T., 11/26/18, p. 165. As the prosecution probed that
        testimony further, an objection was raised by defense counsel:

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        Q. [By the Assistant District Attorney] Corporal, you said
        something interesting I wanted to follow up with the jury,
        you said that people aren’t often willing to come forward or
        something to that effect. Does that have anything to do
        with what’s known as the snitch culture?

        [DEFENSE COUNSEL]:         Objection, Your Honor.

        THE COURT: Grounds? In a word or two, what’s the basis
        for your objection?

        [DEFENSE COUNSEL]:        I think it’s inappropriate, Your
        Honor. It’s a broad generalization and -

        THE COURT: Well, sustained as to the form of the
        question. It seemed a little pointed to a particular answer
        but I’ll let you lay the foundation and the general subject
        matter is relevant.

     N.T. 11/26/18, pp. 165-66. . . . Corporal Dowds then testified that
     the video cameras are useful to identify potential witnesses that
     are reluctant to be seen speaking to the police, which precipitated
     another objection:

        ... And with these video cameras, like I previously said, it
        kind of helps us like identify these people who were around
        the area at the time, so we can contact them later, have
        them speak to us at a later date in a different location, and
        I believe a lot of it is, you know, they’re something big
        happened here, something awful happened here, they don’t
        want to be a part of it. They don’t want to be seen talking
        to police about it. They don’t want to be threatened,
        harassed.

        [DEFENSE COUNSEL]:         Objection, Your Honor.          This is
        going too far.

        [THE COMMONWEALTH]: This          is   entirely   within     Your
        Honor’s ruling, Judge.

        THE COURT: Well, to the extent that he can quantify how
        many times, for example, he has seen this type of situation,
        that might minimize the objection that [Appellant] has.

        [THE COMMONWEALTH]: That is actually my next
        question, Judge. I was waiting for the Corporal to finish his
        answer.

                                    -4-
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        THE COURT: Objection overruled, but let’s get some
        groundwork laid for his further testimony.

     N.T., 11/26/18, p. 167. . . . [T]he testimony continued:

        Corporal, you personally, you said that you worked patrol,
        now you work CID, you said you were on the scene initially,
        have you had to make contact with people on the street
        before?

        A. You try.

        Q. What happens when you try?

        A. They tend to say I didn’t see anything or they’ll walk
        away. Some people may say talk to me later, not here, not
        now.

        Q. Why do they say talk to me later, not here, not now?

        [DEFENSE COUNSEL]: Objection. Calls for speculation.

        THE COURT: Yeah, not why do they, but specific
        instances, if he has it, in the past I think would be a
        predicate to my permitting it to continue down this line.

     N.T., 11/26/18, p. 168. . .

        Q. Can you think of specific instances, you don’t have to say
        the case name, but can you think of specific instances where
        someone on the scene has said I won’t talk to you here, I’ll
        only talk to you somewhere else?

        A. Absolutely.

        Q. And can you think of specific instances, you don’t have
        to mention case names, where someone has said I won’t -
        I don’t want to talk to you?

        [DEFENSE COUNSEL]:       Objection, Your Honor. I don’t
        know what the relevance of this is. It’s not this case.

        THE COURT: Well, is this all background as to why they
        have surveillance, why they beefed up their surveillance
        cameras?

        [THE COMMONWEALTH]: That is part of it, Judge, yes,
        and, in fact, in this case - can we go to side bar?


                                    -5-
J-S12043-20


        THE COURT: We can, but I think I’m about to overrule
        [Appellant]’s objection.

        [THE COMMONWEALTH]: Then I’ll stay here.

        THE COURT: But again, try to be - I think you’re trying to
        be, and I don't know if your question was objected to
        midway though it or a third of the way through it. But let’s
        do it this way: Repeat your question and be careful as you
        phrase it and see what that produces from the defense side.
        I don’t want to generalize and have the jury apply generally
        some general statements as to the particulars in this case.
        That’s [Appellant]’s objection as I understand it.

        [DEFENSE COUNSEL]:          That is my objection.

        THE COURT:       Okay. So let’s avoid that.

     N.T., 11/26/18, pp. 169-170. . . . Corporal Dowds’s testimony on
     this matter concluded as follows:

        Q. Have there been instances where witnesses have said I
        was not present when the cameras clearly show they were?

        A. Yes.

        Q. Can you cite - or not have to cite, but have you seen that
        in numerous other cases?

        A. Yes.

        Q. When you approach witnesses with camera footage of
        them at a scene, is it easier to have them make statements
        at that time?

        A. Many times, yes.

        Q. Can you also use camera footage to corroborate what
        witnesses tell you that they witnessed?

        A. Absolutely.

     N.T., 11/26/18, p. 170. Corporal Dowds then moved to the
     precise location and method of operation of certain cameras that
     captured the events of this case, followed by the introduction of
     what those cameras captured on the day of the murder.

Trial Court Opinion, dated August 23, 2019, at 12-15.


                                     -6-
J-S12043-20



       On November 27, 2018, an issue also arose concerning Griest’s

testimony:

       Griest was an eyewitness to this murder who made clear, multiple
       times, his unwillingness to cooperate with the Commonwealth.
       . . . [T]he Commonwealth alleged at trial that Mr. Griest was the
       victim of witness intimidation when he was assaulted on
       September 2, 2018.[3] At the time of trial, Mr. Griest was being
       held in Chester County Prison on a material witness warrant issued
       by the court to ensure he would appear to testify. During
       Mr. Griest’s testimony, the following exchange took place:

          Q. No. Just a minute ago you testified to the jury that you
          saw it?

          A. I don’t . . .

          Q. This is the problem of lying, isn’t it, Justin -

          A. I don’t know what-

          Q. - it’s hard -

          [DEFENSE COUNSEL]:              Objection.

          THE WITNESS:             Listen, you coming at me all the time -

          THE COURT: Hold it. Hold it, everybody, except for me.
          Your objection, [Defense Counsel]?

          [DEFENSE COUNSEL]:         He’s already amended it.        He’s
          accusing the witness of lying.

          [THE COMMONWEALTH]: I am.

          [DEFENSE COUNSEL]:              It’s not a question.

          [THE COMMONWEALTH]: I can rephrase it, Judge.


____________________________________________


3“Indeed, one of the perpetrators of the assault, Santanna McMillan, entered
a guilty plea on April 15, 2019 to Intimidation of Witnesses or Victims, 18
Pa.C.S. §4952(a)(l). See Commonwealth v. Santanna McMillan, [Docket
Number] CP-15-CR-[0000]3268-[20]18.”          Trial Court Opinion, dated
August 23, 2019, at 7-8.

                                           -7-
J-S12043-20


            THE COURT: Yeah, I think credibility determinations are
            for the jury to make. Let’s come to side bar with the court
            reporter, please.

            (Whereupon, at this time, there was a sidebar discussion
            held on the record, as follows:)

            [DEFENSE COUNSEL]:         If you could sustain my objection
            on the record.

            THE COURT:     What was your objection?

            [DEFENSE COUNSEL]:       My objection as that it’s
            argumentative and the Commonwealth is accusing the
            witness of being a liar.

            THE COURT: Yes, I’m pretty sure that it wasn’t counsel’s
            determination to make of whether they were lying. That’s
            for the jury. The record is clear on that.

            [end of side bar discussion]

      N.T., 11/27/18, pp. 79-80, 82.

Id. at 1-3.

      Mr. Griest . . . testified that he had been attacked by a group of
      males on September 2, 2018. Photographs of Mr. Griest’s injuries
      were introduced as Exhibits C10-G1 through C10-G6. The court
      did not permit the Commonwealth to play a video of the assault
      due to its potential inflammatory effect, but the court did permit
      the admission of the transcript of that video as Exhibit C10-I.
      Although Mr. Griest denied that the assault was connected to the
      instant case, the transcript indicated that the assailants were
      shouting “free Ryda,” which is the nickname of [Appellant]. . . .
      Mr. Griest testified that his attackers took a scooter specifically
      from A.H. and used it to beat him.

Id. at 8.

      On November 28, 2018, A.H. testified.           A.H. and the comfort dog

entered and took their position on the witness stand before the jury was

brought into the courtroom. N.T., 11/28/2018, at 63; Trial Court Opinion,

dated August 23, 2019, at 6-7.

                                       -8-
J-S12043-20


     [D]uring cross-examination, A.H. was overcome with emotion and
     temporarily unable to continue her testimony, and the court took
     a recess in order for A.H. to collect herself. During that recess,
     the court and counsel conducted an extensive sidebar discussion
     about A.H.’s further testimony. See N.T., 11/28/18, pp. 99-106.
     The sidebar conference opened with the Commonwealth asking
     permission to raise on redirect examination the issue of whether
     A.H. had been subjected to witness intimidation, including her
     presence during the assault on Mr. Griest. The court granted that
     request, making the following comment:

       THE COURT: The cat is out of the bag. She is still sobbing
       uncontrollably on the witness stand after about three
       minutes. I think the less time, frankly, both sides [spend]
       with this [witness] I think the better off both cases are going
       to be.

     N.T., 11/28/18, p. 99. The Commonwealth initially desired to ask
     A.H. if she had ever been “intimidated” or “threatened,” but the
     court did not permit those open-ended questions based upon
     A.H.’s unstable and emotional demeanor on the stand:

       THE COURT: All right. I’m going to permit the
       Commonwealth, given the state of the witness who appears
       now after about four minutes to have stopped crying, to lead
       her. Just lead her. I am going to let you lead. [Defense
       counsel] can lead her anyway, you got her on cross-
       examination. But in terms of specific questions about dates
       of intimidation, we'll see what her answers are as opposed
       to open-ended. The question were you intimidated, it’s
       going to take, I think, that’s my assessment having listened
       to her carefully now for probably close to an hour, you’re
       not likely to get anything other than an additional emotional
       response from her and for that basis with a general open-
       ended question, for that reason and also because of her age
       . . ., the level of emotion that she has shown for the past
       hour in the courtroom, there will be some evidence that
       she’s somewhere on the autism spectrum at some point,
       and for those reasons I am going to permit the
       Commonwealth to lead her because I think we'll get through
       it more quickly.

     N.T., 11/28/18, pp. 101-102. After the conclusion of cross-
     examination, the Commonwealth’s redirect examination solely
     focused on the assault of Justin Griest: . . .


                                    -9-
J-S12043-20


       Q. Yes, Your Honor. [A.H.], earlier you told us that you were
       playing on a Razor scooter on the day that this shooting
       happened. Did you tell us that?

       A. Yes.

       Q. A few months ago was your Razor scooter taken by a
       group of men?

       A. No.

       Q. Do you remember somebody taking your Razor scooter?

       A. Yes, but that wasn’t - that wasn’t the shooting. That was
       something else.

       Q. It was a different day than the shooting?

       A. Yes.

       Q. Can you talk into the microphone? On that different day,
       was there a person with you?

       A. Yes.

       Q. What’s that person’s name?

       A. It was my mom.

       Q. Your mom, and was there another person with you that
       day when the scooter was taken?

       A. Yes.

       Q. What was that person’s name?

       A. Justin.

       Q. Did you witness any injuries on Justin that day?

       A. Yes.

       Q. Can you tell the jury what the injuries on Justin were?

       A. He had a messed-up eye because he came in my house.
       Well, he knocked on the door, and came in the house, and
       told us to call the cops - well, call 9-1-1, and he had a
       messed-up eye. His lip was all swollen. He had - his shirt
       was ripped, and he had scratches on his back. I don’t know
       what it was from. And he told us that -

                                  - 10 -
J-S12043-20


          [DEFENSE COUNSEL]:              Objection. It would be hearsay,
          Your Honor.

          THE COURT: I am going to enforce that one. I’m not going
          to let you say what he said to you. Not that he didn’t say
          it, but I’m not going to let you say it now. Go ahead,
          [Commonwealth].

          [THE COMMONWEALTH]: I have nothing further for this
          witness. . . .

       N.T., 11/28/18, pp. 110-111. These questions constituted the
       entirety of A.H.’s testimony about the attack[.]

Id. at 8-11. At the end of A.H.’s testimony, she and the comfort dog exited

the courtroom after the jury was removed.

       Appellant    was    found    guilty     of   the   aforementioned   charges   on

November 30, 2018, and was sentenced on March 18, 2019. Following the

denial of his post-sentence motions, Appellant filed this timely direct appeal

on June 6, 2019.4

       Appellant presents the following issues for our review:

       I.    Did the trial court err in failing to rule on defense objection
       and failing to instruct the jury accordingly with regard to
       Commonwealth accusing witness, Justin Griest, of being a liar
       during direct examination? N.T. 11/27/18, pp.79-80, 82.

       II.   Did the trial court err in permitting a dog in the courtroom
       for the purpose of providing comfort to testifying witness, A.H.?
       N.T. 11/19/18, pp. 49-55; N.T. 11/28/18, pp.4-9.

       III. Did the trial court err in allowing the Commonwealth to
       inquire of A.H. regarding the assault of Justin Griest which took
       place on September 2, 2018? The Commonwealth pursued this
       line of questioning pursuant to the defense eliciting an
       inconsistent statement given by A.H. to defense investigator. The
____________________________________________


4Appellant filed his statement of errors complained of on appeal on July 29,
2019. The trial court entered its opinion on August 23, 2019.

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      statement given to defense investigator on June 25, 2018,
      however,     predated    the    evidence  of    intimidation   the
      Commonwealth introduced. This additional testimony regarding
      the assault on Mr. Griest was inflammatory and unfairly prejudicial
      to Appellant in that there was no evidence that Appellant directed
      these criminal acts. In addition, there was no evidence that A.H.
      changed her story as a result of the September 2, 2018 assault
      since the statement given to defense investigator was given on
      June 25, 2018. N.T. 11/28/18, pp.102-105.

      IV.   Did the trial court err in repeatedly allowing testimony
      regarding Coatesville residents’ general reluctance to provide
      information to police in criminal investigations in that this line of
      questioning was not specific to this case? N.T. 11/26/18, pp.167-
      170.

Appellant’s Brief at 5.

                          Testimony of Justin Griest

      Appellant first contends that “the trial court erred in failing to rule on

[a] defense objection and failing to instruct the jury accordingly with regard

to Commonwealth accusing witness, Justin Griest, of being a liar during direct

examination.” Id. at 14.

      After a thorough review of the record, the briefs of the parties, the

applicable   law,   and    the   well-reasoned   opinion   of   the   Honorable

David F. Bortner, we conclude this issue merits no relief.       The trial court

opinion comprehensively discusses and properly disposes of that question:

      Defense counsel’s initial objection was general (“Objection.”),
      followed by defense counsel’s statement that the Commonwealth
      was “accusing the witness of lying.”           The [trial] court
      acknowledges that there was no explicit ruling on that objection,
      either immediately upon it being raised and heard by the jury, or
      after the grounds were later clarified, out of the hearing of the
      jury, to “argumentative.” However, the objection was de facto
      sustained by the court’s comment, within the jury’s hearing, that
      “credibility determinations are for the jury to make.” That


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        comment constituted an immediate sua sponte curative
        instruction, emphasizing to the jury that it was their function, not
        the prosecutor’s, to determine whether Mr. Griest was lying. In
        this context, the mere fact that the court did not explicitly state
        “objection sustained” does not affect the curative result.

        [Appellant] also makes the claim that the court not only failed to
        rule on the objection, but also erred by “failing to instruct the jury
        accordingly[.]” This argument is belied by the fact that the court
        did so instruct - on its own immediate volition, without any request
        from counsel - and neutralized a potential prejudicial effect from
        the Commonwealth’s statement. Moreover, Mr. Griest was not
        ultimately required to provide any answer to the question to which
        the defense had objected. The sidebar discussion . . . was
        primarily a discussion of the Commonwealth’s desire to play
        Mr. Griest’s video and audio recorded statement to police, which
        was published to the jury immediately following the sidebar
        conference. The Commonwealth’s statement about Mr. Griest’s
        “lying,” and the defense objection thereto, were not subsequently
        revisited. For those reasons, the court did not err by failing to
        explicitly sustain the objection, especially when the court’s sua
        sponte comment had the effect of a limiting instruction to cure
        any possible prejudice.

Trial Court Opinion, dated August 23, 2019, at 3-4.5




____________________________________________


5   In its brief to this Court, the Commonwealth alleges –

        even if this Court finds that the trial court erred in not responding
        to the objection or not properly instructing the jury, the error was
        harmless.      The evidence of [Appellant]’s guilt was so
        overwhelming, and the ‘lying’ insinuation was so brief, that it did
        not impact the outcome of [Appellant]’s trial.

Commonwealth’s Brief at 11. We agree. All of Griest’s recanted statements
were corroborated by or repetitive of testimony from Dausi and Mr. and
Ms. Swisher. Compare N.T., 11/27/2018, at 56-57, 70, 88-89, 93-95, 97,
104-06, 131 (Griest), with N.T., 11/26/2018, at 117 (Ms. Swisher), 140-46
(Mr. Swisher), and N.T., 11/28/2018, at 31, 35 (Dausi).


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                                     Comfort Dog

       Appellant next argues that the trial court erred in allowing a comfort dog

to accompany A.H. while she testified, because:          (1) the dog’s presence

generated sympathy in the jury, which prejudiced his defense; and (2) the

Commonwealth failed to establish its necessity.6 Appellant’s Brief at 22, 29-

____________________________________________


6 Appellant additionally complains that “[t]here was no evidence that the dog
used in this case was trained or certified to be a therapy / comfort dog by a
recognized organization.” Appellant’s Brief at 33.

However, Appellant never raised this objection before the trial court, see N.T.,
11/19/2018, at 49-55, and this claim is therefore waived. 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.”).

Assuming that Appellant had preserved this challenge, we would note that
Appellant’s brief relies upon definitions of “service animals” or “service dogs”
from federal and California statutes and from a federal court case. Appellant’s
Brief at 32-33 (citing 28 C.F.R. § 36.104 (“Service animal means any dog that
is individually trained to do work or perform tasks for the benefit of an
individual with a disability, including a physical, sensory, psychiatric,
intellectual, or other mental disability.”); CAL. CIVIL CODE § 54.1(b)(6)(C)(iii)
(defining a “service dog” as a “dog individually trained to the requirements of
the individual with a disability, including, but not limited to, minimal protection
work, rescue work, pulling a wheelchair, or fetching dropped items”);
Baugher v. City of Ellensburg, No. CV-06-3026-RHW, slip op. at 10-11
(E.D. Wash. filed March 19, 2007) (definition of service animal turns upon
whether the animal is trained to do specific work or perform specific tasks)).
Not only is none of this law precedential in Pennsylvania, but Appellant is
conflating “service animals” with “emotional support animals,” such as the
“comfort dog” at issue.

Additionally, we would find Appellant’s claim that this comfort dog had no
training to be meritless, as the Commonwealth attached an exhibit to its
motion requesting the presence of the comfort dog stating that the dog, a
Labrador-Golden Retriever mix, was from the Chester County Sheriff’s
Department’s K-9 unit and had two years of training with the Seeing Eye



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32, 35-36 (citing N.T., 11/19/2018, at 49-55; N.T., 11/28/2018, at 4-9) (“trial

court erred in permitting a dog in the courtroom for the purpose of providing

comfort to testifying witness, A.H.”).

       The use of comfort dogs for witnesses with mental, psychological, or

emotional conditions appears to be a matter of first impression in

Pennsylvania,7 but we start with the principle that Pennsylvania courts have

the power to control courtroom proceedings:

       In Behr v. Behr, 548 Pa. 144, 695 A.2d 776 (1997), we noted:

          This Court has long upheld a court’s power to maintain
          courtroom authority. In Commonwealth v. Africa, 466
          Pa. 603, 353 A.2d 855 (1976), we stated:

               “During the course of a trial, a summary proceeding
               to protect the orderly administration of justice is
               perfectly proper, even when the court is personally
               attacked. The court must be able to control those
               appearing before it, and must be able to use its power
               summarily to avoid interference with the principal
               matter before the court.”

       Id. at 623, 353 A.2d at 865. Thus it is undisputed that a judge
       must have broad discretion to maintain control in his courtroom.

Commonwealth v. Falana, 696 A.2d 126, 128 (Pa. 1997); see also ACE

American Insurance Co. v. Underwriters at Lloyds & Companies, 939

A.2d 935, 948 (Pa. Super. 2007) (“a judge has significant authority to ‘police’


____________________________________________


organization. Commonwealth’s Motion for Special Procedures During the
Presentation of the Testimony of Child Witnesses, Exhibit A.
7 We also find no Pennsylvania case law concerning any “comfort” or “support”
items being brought to the stand by a witness, such as toys like dolls or teddy
bears.

                                          - 15 -
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the proceedings in his or her own courtroom”), aff’d, 971 A.2d 1121 (Pa.

2009). This power to control courtroom proceedings includes the power to

control the mode and order of examining witnesses and presenting evidence:

      The court should exercise reasonable control over the mode and
      order of examining witnesses and presenting evidence so as to:

      (1) make those procedures effective for determining the truth;

      (2) avoid wasting time; and

      (3) protect witnesses from harassment or undue embarrassment.

Pa.R.E. 611(a).

      “We     review    application    of      [Pa.R.E.]   611   deferentially[.]”

Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 885 (Pa. Super.),

appeal denied, 221 A.3d 644 (Pa. 2019).          “Appellate review of the court’s

rulings under [Pa.R.E. 611] is limited to determining whether the trial judge

abused his discretion.” Rettger v. UPMC Shadyside, 991 A.2d 915, 925

(Pa. Super. 2010); see also Farese v. Robinson, 222 A.3d 1173, 1185 (Pa.

Super. 2019), reargument denied (January 13, 2020) (decision under Pa.R.E.

611 is “committed to the discretion of the trial court and will not be disturbed

absent an abuse of that discretion”); Nobles v. Staples, Inc., 150 A.3d 110,

113 (Pa. Super. 2016) (same).

      Although Pennsylvania courts have not addressed this issue, appellate

courts in multiple other jurisdictions have held that it is within a trial court’s

discretion to permit a witness to use a support animal, as part of each judge’s




                                      - 16 -
J-S12043-20



power to manage trial conduct.8 See, e.g., State v. Millis, 391 P.3d 1225,

1233 (Ariz. Ct. App. 2017) (“[i]n keeping with the trial court’s ‘broad

discretion’ in managing trial conduct, this court will not disturb a trial court’s

ruling regarding the use of a facility dog absent an abuse of discretion”

(citation omitted)); People v. Spence, 212 Cal. App. 4th 478, 512, 517 (Cal.

Ct. App. 2012) (general rule of evidence granting trial court discretion “to

control court proceedings in the search for truth” allowed the use of therapy

dog; trial court also “appropriately exercised its discretion” under the Evidence

Code “to set reasonable controls upon the mode of interrogation of [a] child

witness[] by providing a therapy dog in this exercise of ‘special care to protect

[the witness] from undue harassment or embarrassment”); People v.

Tohom, 109 A.D.3d 253, 266-67 (N.Y. App. Div. 2013) (trial court permitted

dog to be present during the witness’s testimony and the appellate division

affirmed, citing the trial court’s discretion to “fashion[ ] an appropriate

measure to address a testifying child witness’s emotional or psychological

____________________________________________


8      “[A]lthough we are not bound by decisions from ... courts in other
       jurisdictions, we may use them for guidance to the degree we find
       them useful, persuasive, and ... not incompatible with
       Pennsylvania law.” Ferraro v. Temple University, 185 A.3d
       396, 404 (Pa. Super. 2018) (citing Newell v. Montana West,
       Inc., 154 A.3d 819, 823 & n.6 (Pa. Super. 2017)), reargument
       denied (June 27, 2018); see also [Commonwealth v.]
       Manivannan, 186 A.3d [472,] 483 [(Pa. Super. 2018),] (“When
       confronted with a question heretofore unaddressed by the courts
       of this Commonwealth, we may turn to the courts of other
       jurisdictions.”).

Farese, 222 A.3d at 1188.

                                          - 17 -
J-S12043-20



stress, based upon the particular needs of that child”; “judge conducting a

public trial is empowered to control the proceedings in whatever manner may

be consistent with the demands of decorum and due process”); Smith v.

State, 491 S.W.3d 864, 877 (Tex. Ct. App. 2016) (decision of whether to

allow support dog to accompany witness fell within trial court’s discretion);

State v. Dye, 309 P.3d 1192, 1194, 1199 (Wash. 2013) (trial courts given

“wide discretion to control trial proceedings, including the manner in which

testimony will be presented”; consequently, ruling allowing facility dog to

accompany witness reviewed for abuse of discretion; “[t]rial courts have a

unique perspective on the actual witness that an appellate court reviewing a

cold record lacks”; “trial court acted within its broad discretion when it

determined that . . . the facility dog provided by the prosecutor’s office to the

victim . . . was needed in light of [the victim]’s severe developmental

disabilities in order for [victim] to testify adequately”). Given that this power

of Pennsylvania trial courts to control their courtrooms -- including the manner

in which testimony will be presented therein -- clearly corresponds to the same

power of trial courts in other jurisdictions, we may use those other state

courts’ decisions as guidance, and, consequently, we will conclude that the

appropriate standard of review is an abuse of discretion. With that standard

in mind, we turn to Appellant’s specific arguments.

                                   Prejudice

      Appellant urges this Court to find that --




                                     - 18 -
J-S12043-20


       Placing a dog in the role of assisting a witness confers on the
       witness     a    sense    of   innocence,     purity,   vulnerability,
       defenselessness, need of support or protection, and credibility.
       Not only do these attributes naturally engender sympathy, but this
       scenario has the very real probability to lead the jury to
       prejudicially infer that the witness is so afraid of [Appellant] that
       she needed the extraordinary measure of a dog to testify against
       [Appellant]. . . .

       [A] dog companion . . . arguably communicates to the jury that
       there is some extraordinary vulnerability requiring support which
       would naturally generate sympathy.

Appellant’s Brief at 29, 36.

       All of the courts which have examined a challenge to the use of a comfort

dog in a courtroom have concluded that the dog’s presence is not inherently

prejudicial.9    See, e.g., Millis, 391 P.3d at 1234 (rejecting defendant’s

assertion “that a dog accompanying a victim is ‘presumptively prejudicial’ so

as to jeopardize a fair trial in every case” and his contention that the dog

“‘present[s] a nonevidentiary message’ to the jury that the witness is an

innocent victim”); People v. Chenault, 227 Cal. App. 4th 1503 (Cal. Ct. App.

2014) (support dog not inherently prejudicial, just as support person not

inherently prejudicial); Spence, 212 Cal. App. 4th 478 (no prejudice in

allowing therapy dog to be present in courtroom); Tohom, 109 A.D.3d 253

(no prejudice from “the concededly unobtrusive presence of the dog in the

courtroom”).

       Additionally, the instant case is strikingly similar to a recent case from

the Court of Appeals of Georgia, Jones v. State, ___ S.E.2d ___, 2020 WL
____________________________________________


9 Additionally, we find no case law in any jurisdiction that unequivocally
banned the use of comfort dogs in court.

                                          - 19 -
J-S12043-20



1239092, *7 (Ga. Ct. App. filed March 13, 2020), in which the defendant also

asserted that the trial court erred by allowing, upon request of the

prosecution, a dog to accompany a victim with post-traumatic stress disorder

while he testified, “because the dog’s presence generated sympathy in the

jury, which prejudiced his defense.” In Jones, as in the current action, “the

trial court investigated the matter outside the jury’s presence[,]” ascertaining

the witness’s condition, the need for the support animal, and the support

animal’s training. Id. at *8. The trial courts in both cases “also consulted

with counsel to employ procedures designed to minimize the dog’s presence

and visibility to the jury.” Id.; compare id. with Commonwealth’s Motion

for Special Procedures During the Presentation of the Testimony of Child

Witnesses, at 1-2 ¶ 4, and N.T., 11/19/2019, at 50, 55.10         The Court of

Appeals of Georgia found that, “[u]under these circumstances, . . . the trial

court acted within its discretion in allowing [the] dog to accompany [the

witness] during his testimony.”            Jones, 2020 WL 1239092, *8 (citing

Ezebuiro v. State, 707 S.E.2d 182 (Ga. Ct. App. 2011) (no abuse of

discretion where trial court allowed prosecution to present rebuttal testimony

from witness seated on a hospital gurney); Williamson v. State, 507 S.E.2d

765 (Ga. Ct. App. 1998) (trial court did not abuse its discretion by allowing


____________________________________________


10Spence also discussed that a trial court should take care to ensure that a
comfort dog should be well-behaved and unnoticeable once everyone took his
or her seat and that the dog should be well-behaved. 212 Cal. App. 4th at
512.

                                          - 20 -
J-S12043-20



grandmother to stand near nine-year-old child molestation victim during his

testimony)).

       The Court of Appeals of Georgia continued:

       Moreover, Jones has failed to show that he was harmed by the
       trial court’s decision. Given the procedures the trial court followed
       to minimize the dog’s presence, we cannot assume that the dog
       had any impact on the jurors, much less that it engendered
       sympathy in them for [the witness].8 . . .
          8Jones assumes that the dog generated sympathy without
          any evidence in support and contrary to the fact that some
          people fear or dislike animals.

       Accordingly, we find that Jones’ argument on this ground is
       without merit.

Id. Analogously, Appellant has failed to show that he was harmed by the trial

court’s decision.     Given that the trial court in the current action likewise

followed procedures to minimize the dog’s presence, we equally cannot

assume that the dog had any impact on the jurors, much less that it

engendered sympathy for A.H. We further agree with the Court of Appeals of

Georgia that Appellant had made the unsubstantiated assumption that the dog

generated sympathy without any evidence in support thereof and ignoring the

fact that some people are afraid of or dislike animals, especially dogs. For

these reasons, we similarly find that Appellant’s argument on this ground is

without merit.11


____________________________________________


11Although none of the jurisdictions to examine this issue have found that the
presence of a comfort dog is inherently prejudicial, one state court required a



                                          - 21 -
J-S12043-20



                                        Necessity

       Appellant further maintains:

       [Y]oung children [are afforded] special accommodations in the
       courtroom to avoid trauma associated with testifying upon the
       showing of necessity. . . .

       In the instant case, the stated need for a comfort dog was due to
       the witness’s concern over safety in testifying in a . . . murder
       case. A safety concern would seem commonplace for any witness
       in this type of case. The request, as written and argued by the
       Commonwealth, had nothing to do with the witness’s mental
       status or age. The Commonwealth did not differentiate A.H. from
       the other witnesses her age in any respect other than to say that
       she had voiced concerns for her safety to police.

Appellant’s Brief at 31-32 (citing N.T., 11/19/2018, at 52-53).



____________________________________________


balancing test; in State v. Devon D., 138 A.3d 849, 867 (Conn. 2016), the
Supreme Court of Connecticut articulated the following test:

       Before [permitting a comfort dog in the courtroom], the [trial]
       court must balance the extent to which the accommodation will
       help the witness to testify reliably and completely against any
       possible prejudice to the defendant’s right to a fair trial. The trial
       court should consider the particular facts and circumstances for
       the request to have a dog accompany the particular witness, the
       extent to which the dog’s presence will permit the witness to
       testify truthfully, completely and reliably, and the extent to which
       the dog’s presence will obviate the need for more drastic
       measures to secure the witness’ testimony. The trial court should
       balance these factors against the potential prejudice to the
       defendant and the availability of measures to mitigate any
       prejudice, such as limiting instructions and procedures to limit the
       jury’s view of the dog.

Although the trial court in the current appeal did not apply this balancing test
– and we will not retroactively require it, we find this test to be prudent and
advise trial courts in the future to employ it when ruling on requests for the
presence of service or support animals in the courtroom.

                                          - 22 -
J-S12043-20


      Preliminarily, we note that the courts are split on whether the

prosecution must prove that the special measure of a comfort or support item

for a minor or special needs witness is necessary to secure the witness’s

testimony. Compare State v. Dickson, 337 S.W.3d 733, 743 (Mo. Ct. App.

2011) (declining to require that prosecution make showing of necessity,

instead putting onus on defendant to prove prejudice or impropriety, where

“[t]here was nothing to suggest” that the comfort items – in this case, toys –

“were used to engender the sympathy of the jurors; no reference to the teddy

bears was made in the presence of the jury; and the witnesses were testifying

about traumatic events”), and Sperling v. State, 924 S.W.2d 722, 726 (Tex.

Ct. App. 1996) (also declining to require that prosecution make showing of

necessity, instead putting onus on defendant to prove prejudice or

impropriety; “[w]ith nothing more in the record,” appellate court could not

conclude that comfort item -- a teddy bear – “constituted demonstrative

evidence which engendered sympathy in the minds and hearts of the jury,

validated the child-victim’s unimpeached credibility, or deprived appellant of

his constitutional right of confrontation”), with Gomez v. State, 25 A.3d 786,

798–99 (Del. 2011) (requiring prosecution to show that special measure is

necessary to facilitate witness’s testimony, adopting “substantial need”

standard), and State v. Palabay, 844 P.2d 1 (Haw. Ct. App. 1992) (requiring

prosecution to show that special measure is necessary to facilitate witness’s




                                    - 23 -
J-S12043-20


testimony, adopting “compelling necessity” standard).12 Two additional cases

cited by Appellant, State v. Cliff, 782 P.2d 44 (Idaho Ct. App. 1989), and

State v. Hakimi, 98 P.3d 809 (Wash. Ct. App. 2004), did not explicitly adopt

a “necessity” or “need” standard but relied on records where the witness

clearly would have had difficulty testifying in the absence of a comfort item.

Appellant’s Brief at 35-36.

       Turning to the cases concerning comfort dogs in the courtroom

specifically, of those that addressed whether the trial court must find the

presence of the dog to be a necessity or need, all concluded that such a

determination was unwarranted. Chenault, 227 Cal. App. 4th at 1516 (“a

case-specific finding that an individual witness needs the presence of a support

dog is not required by the federal Constitution” (emphasis in original)); State

v. Devon D., 138 A.3d 849, 864 (Conn. 2016) (defendant argued that “the

state was required to prove a compelling need” for the comfort dog’s

presence; the Supreme Court of Connecticut disagreed, finding that the

question was whether the animal “would help [the witness] testify truthfully

and completely” (emphasis added) and not whether the state could prove a

compelling need for the animal); Tohom, 109 A.D.3d at 266 (does not set

forth any “necessity” criterion “for a court to adopt measures intended to



____________________________________________


12 Of these cases, the only one that Appellant cites in his brief is Palabay,
844 P.2d 1, thereby completely ignoring the contrary line of cases. Appellant’s
Brief at 30, 36.

                                          - 24 -
J-S12043-20


address the stress which a child witness may experience on the witness

stand”); Dye, 309 P.3d at 1199 (“we do not require a showing of ‘substantial

need’ or ‘compelling necessity’ like Delaware, in Gomez, 25 A.3d at 798–99,

or Hawaii, in Palabay,[]844 P.2d 1”).13

       Accordingly, our review of case law concerning the use of comfort items

and animals in courtrooms demonstrates that the majority of jurisdictions

have concluded that a finding of “necessity” or “need” is not required in order

for the trial court to allow the presence of such items or animals, provided

that such item or animal alleviates the stress that the witness may experience

on the stand and hence helps the witness to testify truthfully and completely.

Chenault, 227 Cal. App. 4th at 1516; Devon D., 138 A.3d at 864; Dickson,

337 S.W.3d at 743; Tohom, 109 A.D.3d at 266; Sperling, 924 S.W.2d at

726; Dye, 309 P.3d at 1199; contra Gomez, 25 A.3d at 798–99; Palabay,




____________________________________________


13 To the extent that Spence, 212 Cal. App. 4th at 511, 518, suggested that
a finding of necessity was compulsory, after the defendant had alleged that
the trial court failed to make required findings of necessity, it also held that
such a finding by the trial court could be “implied” in the court’s decision to
allow a comfort dog in the courtroom. Additionally, the California Court of
Appeal found any error by the trial court in failing to make more specific
findings of necessity when allowing the presence of both a human support
person and a support canine was harmless. Id.

Furthermore, the California Court of Appeal later clarified in Chenault, 227
Cal. App. 4th at 1516, that a finding of necessity is not required.



                                          - 25 -
J-S12043-20


844 P.2d 1; Cliff, 782 P.2d 44; Hakimi, 98 P.3d 809.14 Moreover, all of the

cases holding that a finding of necessity is not required are from the past

decade, whereas the only case in the past decade insisting upon the finding

of necessity is Gomez, 25 A.3d at 798–99, with Palabay and Cliff being more

than a quarter century old;15 the modernity of the cases not insisting on

necessity therefore gives them greater persuasive value.

       Ultimately, we find no compelling reason to disregard the reasoning of

our sister courts. Ergo, we hold that Appellant’s assertion that a trial court

must find that the “special measure” of the presence of a comfort animal is a

necessity is unsupported by existing persuasive case law, see Appellant’s Brief

at 29-31, and that the trial court need not make such a finding prior to

granting a request for a comfort animal.

                                       *       *    *

       In conclusion, there is no inherent prejudice in the presence of a comfort

animal in a courtroom, and a trial court need not find a compelling necessity

for the animal’s presence, provided that the animal alleviates a witness’s

stress, hence allowing the witness to testify veraciously and thoroughly. Thus,


____________________________________________


14We note that Hakimi, 98 P.3d 809, requiring a finding of necessity, is a
2004 case from the Court of Appeals of Washington, an intermediate appellate
court; Dye, 309 P.3d 1192, not requiring necessity, is a 2013 case from the
Supreme Court of Washington. As Dye is a later case from a higher court, we
consider it of greater persuasive value.
15 This shift may reflect courts’ greater emphasis on, interest in, and
understanding of victims’ rights in recent years.

                                           - 26 -
J-S12043-20


the trial court in the current case did not abuse its discretion by granting the

trial court’s request to have a comfort animal present during the testimony of

A.H., a frightened, autistic minor.

                              Testimony of A.H.

      Beyond the presence of the comfort animal, Appellant raises additional

challenges to A.H.’s testimony:

      The trial court erred allowing the Commonwealth to inquire of A.H.
      regarding the assault of Justin Griest which took place on
      September 2, 2018. The Commonwealth pursued this line of
      questioning pursuant to the defense eliciting an inconsistent
      statement given by A.H. to [a] defense investigator. The
      statement given to [the] defense investigator on June 25, 2018,
      however, pre-dated the evidence of intimidation the
      Commonwealth introduced. This additional testimony regarding
      the assault on Mr. Griest was inflammatory and unfairly prejudicial
      to Appellant in that there was no evidence that Appellant directed
      these criminal acts.

Appellant’s Brief at 39.

      The admissibility of evidence is a matter within the sound
      discretion of the trial court and will be reversed only where there
      is a clear abuse of discretion. . . . Evidence is admissible if it is
      relevant—that is, if it tends to establish a material fact, makes a
      fact at issue more or less probable, or supports a reasonable
      inference supporting a material fact—and its probative value
      outweighs the likelihood of unfair prejudice.

Commonwealth v. Clemons, 200 A.3d 441, 474 (Pa. 2019) (citations

omitted).

      Appellant’s contention that the Commonwealth should not have elicited

information about the assault on Griest during A.H.’s testimony is perplexing,

given that the jury had already heard about the assault on Griest and seen

photographs of his injuries during Griest’s own testimony, which he gave the

                                      - 27 -
J-S12043-20



day before A.H.’s testimony. Trial Court Opinion, dated August 23, 2019, at

8 (citing Exhibits C10-G1 to C10-G6, C10-I). As the trial court explained,

“when A.H. did testify the following day, the jury was already cognizant of the

assault itself, and the fact that this juvenile – mentioned by name in

Mr. Griest’s testimony – had been present.”          Id. at 8.   The above-quoted

questions on re-direct examination constituted the entirety of A.H.’s testimony

about the assault. N.T., 11/28/2018, at 110-11; see also Trial Court Opinion,

dated August 23, 2019, at 10-11. The transcript of A.H.’s testimony about

Griest’s assault occupies less than two full pages, N.T., 11/28/2018, at 110-

11, whereas, like the trial court noted, Griest’s “own testimony on that incident

occupies at least seven pages of the notes of testimony and the introduction

of photographs of his injuries.” Trial Court Opinion, dated August 23, 2019,

at 11.

         Thus, after a thorough review of the record, we conclude that the trial

court did not abuse its discretion by allowing A.H. to testify about the assault

on Griest when “the jury was already aware of the assault of Mr. Griest at this

point in the trial”; “[t]he challenged testimony was simply an added layer of

detail to an incident with which the jury was already familiar.” Id. (emphasis

in original); see also Clemons, 200 A.3d at 474 (abuse of discretion

standard).

                          Testimony of Corporal Dowds

         Finally, Appellant urges this Court to hold that “[t]he trial court erred in

repeatedly allowing testimony regarding Coatesville residents’ general

                                        - 28 -
J-S12043-20



reluctance to provide information to police in criminal investigations. This line

of questioning was not specific to this case.” Appellant’s Brief at 46. After

acknowledging that “[t]he Commonwealth’s overarching theory in this case

was that Appellant had directly and indirectly intimidated witnesses into

silence and recanting prior statements[,]” Appellant focused on the testimony

of Corporal Dowds as the source of the allegedly improper statements

“regarding reluctance to report.” Id. at 46-47.

      Again, our standard of review for the admission of evidence is an abuse

of discretion. Clemons, 200 A.3d at 474.

      Pursuant to our review of the record, we find that the trial court

acknowledged and responded to each of Appellant’s concerns that Corporal

Dowds’s testimony was not directed towards this current case.              When

Appellant objected to the Commonwealth’s question about “snitch culture” as

“inappropriate[,]” the trial court sustained the objection “as to the form of the

question” and required further foundation. N.T., 11/26/2018, at 165-66; see

also Trial Court Opinion, dated August 23, 2019, at 12. When Corporal Dowds

stated that Coatesville residents “don’t want to be threatened, harassed[,]”

the trial court re-focused the Commonwealth’s inquiry. N.T., 11/26/2018, at

167; see also Trial Court Opinion, dated August 23, 2019, at 13.           When

Appellant objected to the Commonwealth’s question about why residents “say

talk to me later, not here, not now” on the basis of speculation, the trial court

gave direction to the Commonwealth to re-focus its questioning on specific

instances on the part of witnesses. N.T., 11/26/2018, at 168; see also Trial

                                     - 29 -
J-S12043-20



Court Opinion, dated August 23, 2019, at 13-14. The trial court later repeated

its admonishment to “avoid” the possibility of generalization.              N.T.,

11/26/2018, at 169-70; see also Trial Court Opinion, dated August 23, 2019,

at 15. Thus, the trial court addressed each one of Appellant’s challenges to

Corporal Dowds’s testimony, and it is unclear what further action the trial

court could have possibility taken to ameliorate any problems “that the

information being elicited was not specific to this case.” Appellant’s Brief at

50.

      Therefore, after a thorough review of the record and the briefs of the

parties, we agree with the trial court that it --

      acknowledged and responded to defense counsel’s concern that
      this testimony was not directed towards this case. The court
      required the Commonwealth to not only lay a proper foundation
      for Corporal Dowds’s testimony, but also to focus the inquiry into
      specific instances rather than broad pronouncements. Indeed, the
      court specifically stated that it would be improper to “generalize
      and have the jury apply generally some general statements as to
      the particulars in this case.” Moreover, this testimony about
      witness reluctance was not presented in a vacuum for its own
      sake, but rather it served as background information about the
      extensive surveillance system present in Coatesville that was
      about to be heavily relied upon by the Commonwealth in its case
      in chief. As set forth above, the court accordingly limited and
      focused the Commonwealth’s inquiries, belying [Appellant]’s
      appellate position that the court “repeatedly” permitted testimony
      on “Coatesville residents’ general reluctance to provide
      information to police in criminal investigations.”

Trial Court Opinion, dated August 23, 2019, at 15-16. We thus find that the

trial court did not abuse its discretion in any of its rulings concerning Corporal




                                      - 30 -
J-S12043-20



Dowds’s testimony about Coatesville residents’ general reluctance to report

crimes. Clemons, 200 A.3d at 474.

                               *    *    *
     Based on the foregoing, Appellant is not entitled to relief on any of his

appellate claims. We thereby affirm his judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/28/20




                                   - 31 -
