J-A17013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 GEORGE CWIENK                             :
                                           :
                    Appellant              :    No. 1719 EDA 2018

            Appeal from the Judgment of Sentence June 4, 2018
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0009136-2016


BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                     FILED NOVEMBER 19, 2019

      George Cwienk, III, appeals from the judgment of sentence imposed on

June 4, 2018, in the Court of Common Pleas of Montgomery County, after he

was convicted of Stalking, 18 Pa.C.S.A. § 2709.1(a)(2), and the summary

offense of Harassment, 18 Pa.C.S.A. § 2709(a)(3). After a three-day trial, the

jury found Cwienk guilty of the Stalking charge, and the trial judge found him

guilty of the summary charge. Cwienk received a sentence of three to 23

months' incarceration, work release eligible, with a consecutive sentence of

three years' probation.

      In this timely appeal, he claims there was insufficient evidence to convict

him of Stalking. In his next two issues, he contends that the trial court

erroneously admitted (1) evidence of call logs and screen shots from his phone

and (2) evidence of a pattern of his prior bad acts, typically referred to as Rule
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404(b) evidence. After a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm on the issue of sufficiency of

evidence.     The second two issues have not been properly preserved for

appellate review, and they are therefore waived.

      The disturbing underlying facts of this matter, as developed at trial, are

taken from the trial court's November 15, 2018, Pa.R.A.P. 1925(a) opinion.

                   In August 2016, April Cwienk, Defendant's wife who
            is the victim in this case separated from Defendant and
            filed for divorce. Defendant, to whom Ms. Cwienk had been
            married for 18 years, had been jealous and controlling of
            her throughout the entire course of their relationship;
            alienating her from her family and restricting any attempts
            she made to see her friends. Defendant's conduct grew
            increasing[ly] controlling and alarming in June 2016, when
            he began suspecting her of having an affair. Despite
            requiring his wife to call him several times from morning
            to night throughout the day to keep him abreast of her
            whereabouts during this period, he often interrogated her
            in their garage in the evenings about her comings and
            goings. In the terrifying episode which ultimately prompted
            Ms. Cwienk to flee the marital home located in Montgomery
            County, Pennsylvania, Defendant met her at a bank
            parking lot, accused her of using an old cell phone found
            while rummaging through her belongings earlier that day
            while she was at work, to surreptitiously communicate with
            her "boyfriends," as he would refer to them. Defendant
            ignored his wife's explanation that the cell phone in
            question was that of her 90 year-old grandmother for
            whom she had helped set up the phone, and irately
            demanded his wife turn over her cell phone to him for
            inspection. As Defendant became increasingly angry, Ms.
            Cwienk opted to flee the bank parking lot for her home.
            Once home, Defendant continued his rampage, menacingly
            wielding a boulder from the couples' driveway while
            threatening to smash her car window if she refused to hand
            over her cell phone. It was at that point that Ms. Cwienk
            left the martial residence, and ultimately spent the week
            in a hotel.

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               Ms. Cwienk's absence, however, was short-lived as
         she returned out of fear for her safety and concern that,
         consistent with Defendant's relentless and terrifying
         threats during her absence, she would lose her family.
         Upon her return, she learned that Defendant had burned
         her clothes and her yearbook. Defendant even went so far
         as to compel her to take a lie detector test to substantiate
         her assertion that she had never cheated on him. Ms.
         Cwienk testified that upon her return, Defendant's conduct
         was even more controlling, and now, in addition, he
         seemed psychologically unstable and paranoid.

               The last occasion in which Ms. Cwienk spoke to
         Defendant occurred on or about August 22, 2016, when
         she made the decision to leave the marital home
         permanently. Then, during the period between September
         21st and October 10th 2016, Defendant engaged in a
         course [of] conduct which precipitated the underlying
         charges. More specifically, he stalked Ms. Cwienk by
         sending her harassing text messages and letters, calling
         her (cell phone) at all hours of the night, leaving strange
         and unnerving voicemail messages, and hacking into
         several of her personal accounts. Terrified and exhausted
         by the breadth of Defendant's relentless assault spanning
         multiple mediums, rendering her vulnerable at all times of
         day and night, Ms. Cwienk described this period as a
         "nightmare," in which she lost hope that Defendant's
         assault would ever stop.

               Ms. Cwienk first reported Defendant's behavior to
         the Upper Merion Police Department on September 25,
         2016, when she went to the station and filed a police
         report. Upon receipt of Ms. Cwienk's report, Detective
         Constance Marinello ("Det. Marinello") began an
         investigation. During the course of her investigation, and
         after Ms. Cwienk's initial police report, Ms. Cwienk returned
         to the police station approximately one week later, not only
         feeling helpless and exasperated by Defendant's relentless
         course of conduct, but afraid for her life.

Trial Court Opinion, 11/15/18, at 1-3.




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      Cwienk first argues the evidence was insufficient to support his

conviction for stalking. When considering a challenge to the sufficiency of the

evidence, “we must view the evidence, and all reasonable inferences drawn

therefrom, in the light most favorable to the Commonwealth as verdict winner

and determine whether the jury could find every element of the crime beyond

a reasonable doubt.” Commonwealth v. Romero, 722 A.2d 1014, 1020 (Pa.

1999). Any question of doubt is for the factfinder, unless the evidence is so

weak and inconclusive that as a matter of law no probability of fact can be

drawn from the combined circumstances. Commonwealth v. Ketterer, 725

A.2d 801, 804 (Pa.Super. 1999). Additionally, this Court has observed that:

         The Commonwealth may sustain its burden of proving
         every element of the crime beyond a reasonable doubt by
         means of wholly circumstantial evidence. Moreover, in
         applying the above test, the entire trial record must be
         evaluated and all evidence actually received must be
         considered. Finally, the trier of fact while passing upon the
         credibility of witnesses and the weight of the evidence
         produced, is free to believe all, part, or none of the
         evidence.

Commonwealth v. Foreman, 797 A.2d 1005, 1011 (Pa.Super. 2002),

quoting Commonwealth v. Dellavecchia, 725 A.2d 186, 188 (Pa.Super.

1998).

      Cwienk claims that his stalking conviction cannot stand because there

was no proof that he was the one who actually texted and sent the distressing

materials to the victim. We find this assertion utterly baseless because, as the

trial court observed, Cwienk was the only person who had possession of these


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materials. See N.T., Jury Trial, 2/28/18, at 33, 35. Not coincidentally, these

messages were sent to the victim at the same time that he constantly

lamented the demise of their relationship, always blaming their breakup on

the victim’s infidelity. See id., at 26-29, 35. Moreover, the victim testified

that eventually she received similar messages from a number which she

recognized as one of Cwienk’s cellphone numbers, signed by either “Sincerely,

Ted Cwienk, III” or “With Love, Ted Cwienk, III.” See id., at 56-59. Therefore,

viewed in the light most favorable to the Commonwealth as verdict winner,

the evidence was sufficient to allow the fact-finder to conclude that Cwienk

was the person communicating with the victim. Cwienk’s first issue on appeal

merits no relief.

      In his last two issues, Cwienk argues that the trial court erroneously

admitted evidence offered by the Commonwealth. However, our review of the

certified record reveals that not only did Cwienk not object to the admission

of this evidence, he actually stipulated to its admissibility, reserving only his

right to contest how the jury should weigh the stipulated evidence.

      On the first day of trial, February 27, 2018, the Commonwealth was

represented by Assistant District Attorney Nicholas Beeson and Cwienk by

Attorney Laurence A. Narcist, III. Prior to the jury entering the courtroom, the

following colloquy took place:

          MR. BEESON: Good morning, Judge. Nick Beeson on behalf
          of the Commonwealth.




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               This is the matter of the Commonwealth v. Cwienk,
        docketed at 9136 of 2016. At this point, this is still going
        to be a jury trial, Your Honor. Pretrial negotiations have
        failed to this point, and the defendant would like to proceed
        to a jury trial.

              There are three pretrial matters that I believe we
        need to discuss. There's a 404(b) motion that was filed by
        my office, a Rule 600 motion which was filed by the
        defense, and then also we have stipulations for you to
        consider about the evidence in this case.

        THE COURT: Okay.

        MR. BEESON: Initially, Your Honor, the stipulation that
        we've agreed to -- defense can correct me if any of this is
        incorrect. There are essentially three batches of evidence
        that the Commonwealth is going to put forward. It involves
        text messages, it involves call detail records, and it
        involves screen shots from the Credit Karma website, as
        well as the T-Mobile website.

              My understanding is that the defense is not objecting
        to the admissibility of any of those, which will be contained
        in a PowerPoint.

        MR. NARCISI: Shall we do --

        THE COURT: Yes.

        MR. NARCISI: That is correct, Your Honor. There is no issue
        as far as the admissibility. Obviously, weight will be left up
        to the fact finder.

        THE COURT: Okay.

        MR. BEESON: Regarding the 404(b) motion, Your Honor,
        we have an agreement that [the] parties will be permitted
        to discuss the relationship between the victim and the
        defendant, roughly between June of 2016 up until the
        incident date. That will obviate the need to litigate the
        404(b) motion, because both parties will be happy with
        what they're able to address.


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         THE COURT: Just so we're clear. The Commonwealth will
         be permitted to introduce any – for lack of a better word -
         - prior bad acts from June 2016 - to the time of the
         incidents in question. Is that accurate?

         MR. NARCISI: Except for the characterization, Your Honor.
         Whatever course of conduct there was. Obviously, prior
         bad acts would be for the purposes of [establishing] -- for
         context, Judge, to essentially give the jury a fairer
         understanding of the circumstances leading up to these
         incidents.

         THE COURT: Okay.

N.T., Jury Trial, 2/27/18, at 1-2. Therefore, there was a clear stipulation to

the admissibility of the evidence of which Cwienk now complains.

      Furthermore, when April Cwienk was on the witness stand, there were

no objections to any testimony that could be even remotely considered “bad

acts” evidence. N.T., Jury Trial, 2/28/18, at 21-30.   Finally, on February 28,

2018, after the Commonwealth had completed its direct examination of April

Cwienk, and the Commonwealth moved its exhibits into the record, the

following exchange occurred:

         MR. BEESON: Your Honor, as I proceed forward with my
         direct, I have Exhibits 1 through 50 of the Commonwealth,
         that we stipulated to pretrial. I'd like to move them into
         evidence. They are marked.

         THE COURT: Any objection, Mr. Narcisi?

         MR. NARCISI: No objection.

         THE COURT: Ladies and gentlemen, by stipulation, what
         you are to understand from that is that the defense has
         agreed to the admissibility of these exhibits, so that we
         need not go through moving for admission and determining


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         admissibility. They’ve stipulated to them.     So they are
         admissible in evidence.

Id. at 30-31.

      Upon review, we find that Cwienk’s last two issues have been waived

because he not only failed to raise a timely objection at trial, but actually

stipulated to the admissibility of this evidence. “The absence of a

contemporaneous objection below constitutes a waiver of the claim on

appeal.” Commonwealth v. Rodriguez, 174 A.3d 1130, 1145 (Pa. Super.

2017). Our Supreme Court has stated:

         [I]t is axiomatic that issues are preserved when objections
         are       made       timely      to     the     error     or
         offense. See Commonwealth v. May, [ ] 584 Pa. 640,
         887 A.2d 750, 761 ([Pa.] 2005) (holding that an “absence
         of contemporaneous objections renders” an appellant's
         claim waived); and Commonwealth v. Bruce, [ ] 207
         Pa.Super. 4, 916 A.2d 657, 671 ([Pa. Super.]
         2007), appeal denied, [ ] 593 Pa. 754, 932 A.2d 74 ([Pa.]
         2007) (holding that a “failure to offer a timely and specific
         objection results in waiver of” the claim). Therefore, we
         shall consider any issue waived where Appellant failed to
         assert a timely objection.

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

Similarly, this Court has stated:

         Our Pennsylvania Rules of Appellate Procedure and our
         case law provide the well-established requirements for
         preserving a claim for appellate review. It is axiomatic that
         “[i]ssues not raised in the lower court are waived and
         cannot be raised for the first time on appeal.” Pa.R.A.P.
         302(a). “The absence of a contemporaneous objection
         below constitutes a waiver” of the claim on
         appeal. Commonwealth v. Powell, [ ] 598 Pa. 224, 956
         A.2d 406, 423 ([Pa.] 2008); Tindall v. Friedman, 970
         A.2d 1159, 1174 (Pa. Super. 2009) (“On appeal, we will

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         not consider assignments of error that were not brought to
         the tribunal's attention at a time at which the error could
         have been corrected or the alleged prejudice could have
         been mitigated.”) (citation omitted)).

Commonwealth v. Smith, 213 A.3d 307, 309 (Pa. Super. 2019) quoting

Rodriguez, 174 A.3d at 1144–45. We further note that where an appellant

includes an issue in his Pa.R.A.P. 1925(b) statement, such inclusion does not

“resurrect” a waived claim. Id. at 1145 n.6 (citing Steiner v. Markel, 600

Pa. 515, 968 A.2d 1253 (2009)).

      In order to avoid the consequences of waiver, Cwienk contends that the

Supreme Court’s decision in Commonwealth v. Eichinger, 108 A.3d 821

(Pa. 2014) requires us to review these two issues. In Eichinger, in the context

of post collateral relief proceedings, the Supreme Court held that if a

defendant enters into a stipulation of evidence which virtually assures his

conviction, the stipulation must be accompanied by a colloquy evidencing that

the defendant made a knowing and voluntary decision. See id., at 832. This

is because such a stipulation is functionally the same as a guilty plea. See id.

      Here, Cwienk argues that the stipulated exhibits and the bad acts

evidence essentially assured his conviction, and as such, the trial court should

have conducted a colloquy to make sure that he understood the ramifications

of this evidence coming before the jury. “There is nothing on the record to

indicate that Mr. Cwienk knew or understood what Mr. Narcisi[] had done and

the consequences of the same.” Brief for Appellant, at 24.




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      Initially, we note that both Eichinger and the earlier decision upon

which it was based, Commonwealth v. Davis, 322 A.2d 103 (Pa. 1974),

were post-conviction relief cases.   Therefore, there is a serious challenge as

to whether this argument is properly before the Court at this time. On its

face, this could be considered a claim of ineffective assistance of counsel,

which must be deferred until collateral review. See Commonwealth v.

Holmes, 79 A.3d 562, 576 (Pa. 2013).

      However, instantly, the stipulations entered on behalf of Cwienk were

made on the record in his presence. Cwienk was also present during the direct

examination of April Cwienk, and was present when counsel raised no

objection to the admission of the exhibits at the conclusion of April Cwienk’s

direct examination. An inference must be drawn that Cwienk’s silence during

these stages of the trial demonstrated his acquiescence in trial counsel’s

strategy.

      Moreover, the stipulations were to admissibility only; Cwienk’s trial

counsel vigorously contested the relevance and weight of this evidence before

the jury. Counsel strenuously argued to the jury that Cwienk was not the one

who sent the troubling text messages or placed the cell calls. See N.T., Jury

Trial, 3/1/18, at 10-14. Great efforts were made on Cwienk’s behalf to

convince the jury that someone other than Cwienk was the culprit behind the

harassing test messages and calls.




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      By no means did the stipulations virtually assure his conviction. The

verdict in this case rested upon the jury’s determination of credibility after

hearing vastly different versions of the underlying facts. Therefore, we find

Eichinger to be inapposite to the proceedings in this case.

      Finding no error in the trial court’s handling of this case, we affirm. On

a final note, we commend the trial court for a well-written and comprehensive

opinion filed in accordance with Pa.R.A.P. 1925(a) on November 15, 2018.

      Judgment of Sentence affirmed.

      President Judge Emeritus Ford Elliott joins the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/19




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