J-S30002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    JASON BINGAMAN,

                             Appellant                No. 51 WDA 2017


        Appeal from the Judgment of Sentence Entered October 19, 2016
               In the Court of Common Pleas of Jefferson County
                           Criminal Division at No(s):
                           CP-33-CR-0000131-2016
                           CP-33-CR-0000236-2016


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 14, 2018

        Appellant, Jason Bingaman, appeals from the judgment of sentence of

an aggregate term of 24 to 87 years’ incarceration, imposed after he was

convicted, in two separate cases, of various drug-related offenses, including

operating a methamphetamine lab, 35 P.S. § 780-113.4(a)(1), possession

with intent to deliver a controlled substance, 35 P.S. § 780-113(a)(3), and

illegal dumping of methamphetamine waste, 35 P.S. § 780-113.4(b)(1). After

careful review, we affirm.

        The facts of Appellant’s case were summarized by the Commonwealth,

as follows:


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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           Kristen Cook met Appellant … at a party on the night of
     Thanksgiving of 2015 that was held at the residence he shared
     with Melissa Nolder in Glen Campbell, PA. Methamphetamine
     (hereinafter “meth”) was at the heart of their relationship from
     the start. At the party, “everybody there was smoking meth” and
     Cook joined in as well as taking pills. [Appellant] and Cook quickly
     formed a relationship and [Appellant] came to stay with her for a
     weekend at her residence in Brookville, PA.           Later, around
     December 5, 2015, the day before Cook’s birthday, [Appellant]
     came to Cook’s residence and ended up staying until the day that
     his meth lab was discovered by a Brookville Police Officer on
     December 14, 2015. At the time that he moved in, [Appellant]
     told Cook that he did not want to be at the place in Glen Campbell.
     He specifically told Cook that, in addition to not trusting people
     there ([because he feared they were] stealing from him), he was
     concerned because he was making meth at this residence and he
     had been told that the residence was being “watched” by the
     police. When [Appellant] moved in with Cook, he continued
     making meth and provided some to her for her use. Cook
     observed him making it at another couple’s house and once at her
     residence prior to December 14[, 2015]. Cook would assist him
     by purchasing some of the precursors and Cook was aware that
     others were assisting him in the same way. In a notebook,
     [Appellant] logged people who were helping him[,] which included
     Melissa Nolder … and Jordan Pavlak.            Cook described that
     [Appellant] kept his meth making materials in a plastic tote that
     he normally stored in the trunk of her car. N.T. 9/22/2016, p. 4-
     27. A tote containing many meth lab components was found by
     Officer Vince Markle of the Brookville Borough Police in the dining
     room of Cook’s residence on December 14, 2015 when the meth
     lab operation was discovered. At that time, many more meth-
     making materials and associated items were found on a table in
     the same room. Id. at 51, 73-82. Melissa Nolder also confirmed
     that a couple [of] weeks prior to [Appellant’s] contacting her for a
     ride (discussed below), she had seen [Appellant] leave Glen
     Campbell with a clear tote that had camp fuel, lye, measuring
     bowls and cups in it. Id. at 142.

           On December 14, 2015, the Jefferson County Probation
     Department, assisted by Officer Markle sought to execute an
     arrest warrant on an unrelated individual at Cook’s residence.
     When they arrived, Markle saw what he suspected to be meth lab
     components. Upon calling Cook at her place of employment, it
     was confirmed that a meth lab was present inside the residence


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     and an active “one-pot” meth lab (chemical reaction was
     occurring) was bubbling in an upstairs bedroom. The area was
     then evacuated and the Pennsylvania State Police clandestine lab
     team was activated.       The next day, Officer Markle found
     [Appellant] outside of Cook’s residence. It was very cold that day
     and [Appellant] was dressed only in a tee shirt and blue jeans. He
     was soaking wet and shivering/shaking. It had been sleeting the
     night before and that morning. Markle put him in the back of his
     patrol car and transported him to the police station. Markle called
     the investigating state trooper on the case and inquired about
     [Appellant] and was told that they were not ready to arrest
     [Appellant] at that point. He was released. N.T. 9/22/2016, p.
     43-58. [Appellant] called Melissa Nolder for a ride from Brookville
     after he had been released by Markle. [Appellant] told Nolder and
     another that the cops had showed up in Brookville and he had to
     go on the run, that he had “went through the river,” slept in a tree
     stand that night and that he had been picked up by the cops and
     released. Id. at 140-142, 163.

           Nolder also confirmed that [Appellant] was cooking meth
     again in Glen Campbell within the week prior to Christmas. Nolder
     confirmed that she was assisting [Appellant] by buying Sudafed
     for him in December. Also, many people were coming to the
     residence to smoke and shoot meth. [Appellant] would give them
     meth for boxes of Sudafed. Id. at 139-143. Commonwealth
     witness Jordan Pavlak was also familiar with [Appellant’s] making
     meth in Glen Campbell during this November through December
     2015 timeframe. Pavlak had moved into Nolder and [Appellant’s]
     residence in Glen Campbell around Thanksgiving of 2015 and was
     there for approximately a month. Pavlak would buy Sudafed for
     him starting in November and bought it for him 6-8 times after
     that. The meth lab was discovered because a state constable had
     a bench warrant for the arrest of Pavlak and she was found at
     Nolder’s Glen Campbell residence on December 31, 2015. Pavlak
     was arrested and ultimately the meth lab was discovered. Id. at
     156-164; N.T. 9/23/2016, p. 3-11, 17-21.

Commonwealth’s Brief at 1-4 (footnote omitted).

     Based on these facts, Appellant was charged in the case docketed at CP-

33-CR-0000131-2016      with    various   offenses    stemming     from      the

methamphetamine-manufacturing        operation   (hereinafter,   “meth      lab”)


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discovered on December 14, 2015, in Kristin Cook’s home in Brookville

Borough of Jefferson County (hereinafter, “Brookville case”).    In the case

docketed at CP-33-CR-0000236-2016, he was charged with crimes stemming

from his operating the meth lab based in Melissa Nolder’s home in Glen

Campbell Borough of Indiana County (“Glen Campbell case”), which was

discovered on December 31, 2015. Prior to trial, the Commonwealth moved

to consolidate the Brookville and Glen Campbell cases. After conducting a

hearing, the trial court granted that motion.

      Appellant’s consolidated jury trial commenced in September of 2016,

and at the close thereof, he was convicted of various drug-related crimes,

including those set forth above. On October 19, 2016, he was sentenced to

an aggregate term of 24 to 87 years’ incarceration. Appellant filed a timely

post-sentence motion for reconsideration of his sentence. After conducting a

hearing on that motion, the court denied it on November 2, 2016. Appellant

filed a notice of appeal on January 4, 2017. On May 9, 2017, the trial court

ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal by June 30, 2017, and Appellant timely complied. The court filed

a Rule 1925(a) opinion on July 13, 2017.

      Herein, Appellant presents three issues for our review:

      [I.] Whether the trial court erred by granting the
      Commonwealth[’s] Motion for Consolidation and Joinder of
      Informations when the testimony presented at the August 18,
      2016 hearing was insufficient to support the conclusion that the
      evidence of each incident would be admissible in a separate trial
      for the other, for reasons including that the evidence presented
      supported a finding of a common scheme, plan or design[?]

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       [II.] Whether [the c]ourt erred by denying [Appellant’s] Motion in
       Limine to prevent the Commonwealth from offering testimony of
       prior bad acts alleged to have been committed by Appellant[?]

       [III.] Whether the [c]ourt erred by failing to give a cautionary
       instruction to the jury concerning the admission of prior bad acts
       testimony[?]

Appellant’s Brief at 4.

       Before addressing Appellant’s issues, we must determine whether his

appeal is timely.     As stated supra, the trial court denied Appellant’s post-

sentence motion on November 2, 2016, yet his notice of appeal was not filed

until January 4, 2017.        See Pa.R.Crim.P. 720(A)(2)(a) (stating that if the

defendant files a timely post-sentence motion, the notice of appeal must be

filed within 30 days of the entry of the order deciding that motion).       We

recognize that, “[g]enerally, an appellate court cannot extend the time for

filing an appeal.” Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa.

Super. 2007) (citations omitted). However, “a court can grant relief in cases

of fraud or a breakdown in the operations of the courts.” Id.

       Here, we conclude that a breakdown in the trial court’s operations

occurred, such that we may overlook the untimeliness of Appellant’s appeal.

Specifically, the trial court did not notify Appellant, in the written order

denying his post-sentence motion, of his right to file a notice of appeal and

the time within which he was required to do so.1              See Pa.R.Crim.P.

720(B)(4)(a) (stating “[a]n order denying a post-sentence motion … shall

____________________________________________


1 We also point out that the court did not notify Appellant of his appellate
rights at the hearing on his post-sentence motion.

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include notice to the defendant of … the right to appeal and the time limits

within which the appeal must be filed”). In Patterson, this Court considered

a trial court’s failure to comply with Rule 720(B)(4)(a)’s notice requirement

as “a breakdown that excuses the untimely filing of [a] notice of appeal.”

Patterson, 940 A.2d at 499.       We also noted that the trial court’s “partial

compliance” of informing Patterson of his appellate rights at the sentencing

hearing was not sufficient to disregard “the mandatory nature of the

notification” required by Rule 720(B)(4)(a).      Following Patterson, we will

overlook the untimeliness of Appellant’s notice of appeal in this case.

      In Appellant’s first issue, he contends that the trial court abused its

discretion by granting the Commonwealth’s motion to consolidate the

Brookville and Glen Campbell cases for trial. Appellant complains that each

of his cases constituted ‘prior bad acts’ evidence that would have been

inadmissible in the trial for the other, had they been tried separately.        He

avers that he was prejudiced by the consolidation of his cases because “the

jury was convinced of his guilt by sheer volume, removing from each case the

possibility of reasonable doubt.” Appellant’s Brief at 17.

      We disagree. Initially, “[w]hether or not separate indictments should

be consolidated for trial is within the sole discretion of the trial court and such

discretion will be reversed only for a manifest abuse of discretion or prejudice

and clear injustice to the defendant.”     Commonwealth v. Newman, 598

A.2d 275 (Pa. 1991) (citing Commonwealth v. Lark, 543 A.2d 491 (Pa.




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1988)). Pennsylvania Rule of Criminal Procedure 582 governs the joinder of

cases for trial, stating, in pertinent part:

      (1) Offenses charged in separate indictments or informations may
      be tried together if:

         (a) the evidence of each of the offenses would be admissible
         in a separate trial for the other and is capable of separation
         by the jury so that there is no danger of confusion; or

         (b) the offenses charged are based on the same act or
         transaction.

Pa.R.Crim.P. 582(1)(a).

      Appellant only challenges the trial court’s determination that the

evidence of each case would be admissible in a separate trial for the other.

This Court has stated that, “[c]oncerning the admissibility requirement,

‘evidence of other crimes may be introduced where such evidence was part of

the chain or sequence of events which became part of the history of the case

in question and formed part of the natural development of the facts.’”

Commonwealth v. Torres, 177 A.3d 263, 277 (Pa. Super. 2017) (quoting

Commonwealth v. Kunkle, 79 A.3d 1173, 1191 (Pa. Super. 2013) (citation

omitted)).

       In the case sub judice, we agree with the Commonwealth that the

charges in each of Appellant’s two indictments flowed from a sequence of

events that formed the history of the case, making the joinder of the Brookville

and Glen Campbell actions appropriate. As the Commonwealth explains:

      The testimony at trial makes two conclusions abundantly clear.
      First, [Appellant] was constantly, throughout the entire month of
      December      of   2015,   engaged     in  the    production   of

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       methamphetamine. His production of methamphetamine was
       factually a single, continuous enterprise. Secondly, the stories of
       [Appellant’s] Glen Campbell meth lab and his Brookville one are
       inextricably woven together into one story. Witnesses involved in
       his Glen Campbell meth enterprise had knowledge of and testified
       about his Brookville operation. Conversely, Cook knew about and
       testified to his Glen Campbell operation prior to hi[s] moving in
       with her temporarily. Cook knew about the people who were
       involved with him in Glen Campbell. He used the same tote to
       carry his meth making materials around with him in Glen Campbell
       and in Brookville. Nolder saw him take the tote with meth lab
       materials in it when he left for Brookville. Cook saw him in …
       possession of it in Brookville. It was found by police in the dining
       room of Cook’s residence when his Brookville lab was busted[,]
       and meth making materials were found inside and on the nearby
       dining room table. His resumption of cooking meth in Glen
       Campbell came about as a result of hi[s] being busted in Brookville
       and coming back to Glen Campbell….              And he resumed
       immediately, it would appear. Thus[,] the reason for [Appellant’s]
       movements back and forth between Glen Campbell and Brookville
       were entirely related to his meth operation: [Appellant] was
       cooking meth in Glen Campbell and then moved in with Cook in
       Brookville because he feared the police were on to him in Glen
       Campbell. Then, he moved back to Glen Campbell and resumed
       cooking meth there when his operation was busted in Brookville.
       The above truly constitutes one continuous story that needed to
       be told in one trial. It would have been absurd to try these two
       cases in separate trials when it was all one continuous story.

Commonwealth’s Brief at 8-9.            The Commonwealth’s argument, and our

review of the record, convinces us that the trial court did not abuse its

discretion in consolidating Appellant’s two cases for trial.2


____________________________________________


2 To the extent that the trial court granted the joinder of Appellant’s cases on
a slightly different basis, we note that this Court is permitted to affirm the trial
court “on any valid basis, as long as the court came to the correct result….”
Wilson v. Transport Ins. Co., 889 A.2d 563, 577 n.4 (Pa. Super. 2005)
(citations omitted).



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      Next, Appellant avers that the trial court erred by denying his pretrial

motion to exclude the prior bad acts evidence of his “shared drug involvement

with Kristin [sic] Cook….” Motion In Limine, 9/21/16, at 3 (unnumbered).

      The standard of review employed when faced with a challenge to
      the trial court's decision as to whether or not to admit evidence is
      well settled. Questions concerning the admissibility of evidence
      lie within the sound discretion of the trial court, and a reviewing
      court will not reverse the trial court’s decision absent a clear abuse
      of discretion. Commonwealth v. Hunzer, 868 A.2d 498 (Pa.
      Super. 2005). Abuse of discretion is not merely an error of
      judgment, but rather where the judgment is manifestly
      unreasonable or where the law is not applied or where the record
      shows that the action is a result of partiality, prejudice, bias or ill
      will. Id.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation

omitted). Additionally, we recognize that,

      [g]enerally, evidence of prior bad acts or unrelated criminal
      activity is inadmissible to show that a defendant acted in
      conformity with those past acts or to show criminal propensity.
      Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
      admissible when offered to prove some other relevant fact, such
      as motive, opportunity, intent, preparation, plan, knowledge,
      identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
      In determining whether evidence of other prior bad acts is
      admissible, the trial court is obliged to balance the probative value
      of such evidence against its prejudicial impact. Commonwealth
      v. Powell, 598 Pa. 224, 956 A.2d 406, 419 (2008).

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).

      At the hearing on Appellant’s motion to exclude Cook’s prior bad acts

testimony, the Commonwealth explained what her testimony would entail, as

follows:

      [The Commonwealth:] She met him Thanksgiving of 2013, the
      night they met, they were making meth and smoking it with him.


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      He told her … he thought people were after him in Glen Campbell,
      then he went back after this incident and made more meth, so
      there’s -- she’s going to talk about his statements to her about
      who helped him, who would buy Sudafed for him, things of that
      nature.

N.T. Hearing, 9/22/16, at 4.    The trial court ruled that Cook’s proposed

testimony was admissible, reasoning that it was necessary to explain

Appellant’s relationship with Cook, and to show how Appellant came to be

making meth in her home. Id. at 5. In other words, the trial court essentially

deemed Cook’s testimony admissible under the res gestae exception to Rule

404(b)’s prior-bad-acts exclusion. Our Supreme Court has explained that this

exception applies “where the evidence became part of the history of the case

and formed part of the natural development of the facts.” Commonwealth

v. Cousar, 154 A.3d 287, 304 (Pa. 2017).

      Now, on appeal, Appellant does not expressly discuss why the trial court

erred by deeming Cook’s testimony admissible under the res gestae exception.

Instead, he contends that Cook’s “testimony far exceeded that proposed by

the Commonwealth or considered by the court.”        Appellant’s Brief at 18.

Appellant then cites to various remarks by Cook that, according to him,

surpassed the pretrial ruling to admit her testimony. Id. at 18-19. However,

our review of those portions of Cook’s testimony reveals that Appellant at no

point objected to those statements by Cook. Accordingly, he has waived his

argument that the court should have precluded Cook’s testimony as being

beyond the scope of its pretrial ruling to admit prior bad acts evidence. See




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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.”).

      The remainder of Appellant’s argument focuses on whether Cook’s

testimony was more prejudicial than probative. See Appellant’s Brief at 19-

22. Relying on the factors set forth by this Court in Commonwealth v. Page,

965 A.2d 1212 (Pa. Super. 2009), Appellant maintains that Cook’s prejudicial

testimony should have been excluded. In Page, we explained:

         Evidence, even if relevant, may be excluded if its probative
      value is outweighed by the potential prejudice. Pa.R.E. 404(b)(3).

         The probative value of the evidence might be outweighed
         by the danger of unfair prejudice, confusion of the issues,
         misleading the jury, undue delay, pointlessness of
         presentation, or unnecessary presentation of cumulative
         evidence. Pa.R.E. 403. The comment to Pa.R.E. 403
         instructs that: “‘Unfair prejudice’ means a tendency to
         suggest decision on an improper basis or to divert the jury’s
         attention away from its duty of weighing the evidence
         impartially.” Pa.R.E. 403 cmt. Additionally, when weighing
         the potential for prejudice, a trial court may consider how a
         cautionary jury instruction might ameliorate the prejudicial
         effect of the proffered evidence. Pa.R.E. 404(b) cmt.

      [Commonwealth v.] Dillon, 925 A.2d [131,] 141 [(Pa. 2007)].
      However, “[e]vidence will not be prohibited merely because it is
      harmful to the defendant.” Id. “[E]xclusion is limited to evidence
      so prejudicial that it would inflame the jury to make a decision
      based upon something other than the legal propositions relevant
      to the case.” Commonwealth v. Owens, 929 A.2d 1187, 1191
      (Pa. Super. 2007), citing Commonwealth v. Broaster, 863
      A.2d 588, 592 (Pa. Super. 2004).

         When evaluating whether evidence of prior acts is so prejudicial
      that it should be excluded, we must consider the following as set
      forth in Dillon, 925 A.2d at 141:

         Evidence will not be prohibited merely because it is harmful
         to the defendant. This court has stated that it is not

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         “required to sanitize the trial to eliminate all unpleasant
         facts from the jury’s consideration where those facts are
         relevant to the issues at hand and form part of the history
         and natural development of the events and offenses for
         which the defendant is charged.” Lark, 543 A.2d at 501.
         Moreover, we have upheld the admission of other crimes
         evidence, when relevant, even where the details of the other
         crime were extremely grotesque and highly prejudicial. See
         Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835, 841
         (1989) (upholding the trial court’s admission of evidence
         that the defendant had committed a prior rape, including
         testimony from the prior rape victim); see also
         Commonwealth v. Gordon, 543 Pa. 513, 673 A.2d 866,
         870 (1996) (allowing evidence of defendant’s previous
         sexual assaults).

      McCormick, Evidence, § 190 (6th ed. 2006), sets forth factors to
      be considered in performing the probative value-prejudice
      balancing test as follows:

         [M]ost authority recognizes that the problem is not merely
         one of pigeonholing, but of classifying and the[n] balancing.
         In deciding whether the danger of unfair prejudice and the
         like substantially outweighs the incremental probative
         value, a variety of matters must be considered, including
         the strength of the evidence as to the commission of the
         other crime, the similarities between the crimes, the interval
         of time that has elapsed between the crimes, the need for
         the evidence, the efficacy of alternative proof, and the
         degree to which the evidence probably will rouse the jury to
         overmastering hostility.

      See Packel & Poulin, Pennsylvania Evidence, 3rd ed. § 404–9 p. 237.

Page, 965 A.2d at 1220-21.

      Contrary to Appellant’s argument on appeal, we conclude that the

prejudicial impact of Cook’s testimony did not outweigh its probative value.

Essentially, Cook was permitted to testify that, in the few weeks that she knew

Appellant, she observed him using and making methamphetamine, that

people assisted him in these endeavors, and that Appellant provided her and


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other individuals with illegal drugs, namely methamphetamine. See N.T. Trial

at 8-25. Cook’s testimony was based on her own personal observations, and

each of the prior bad acts she discussed happened during a short, several-

week span from around November 26 (Thanksgiving) to December 14, 2015.

Her testimony was relevant and probative in explaining the context of her

relationship with Appellant and the history of his methamphetamine-making

endeavors, which culminated in his being caught making methamphetamine

at her residence on December 14, 2015, after which he then returned to Glen

Campbell and was discovered making meth there on December 31, 2015.

Cook’s testimony regarding Appellant’s prior drug activity was not sufficient

“to rouse a jury to overmastering hostility.” Id. at 1221 (citation omitted).

Therefore, we find no abuse of discretion by the trial court in admitting it.

      In Appellant’s third issue, he asserts that the trial court erred by not

providing a cautionary instruction regarding Cook’s prior-bad-acts testimony.

However, our review of the record reveals that Appellant did not lodge an

objection to this omission by the court.      In attempting to avoid waiver,

Appellant points out that, before the jury charge, defense counsel asked the

court if it was “going to give the limiting instruction with regard to the prior

bad acts[.]” See Appellant’s Brief at 22 (quoting N.T. Trial, 9/23/16, at 125).

However, the court seemed confused about what charge defense counsel was

requesting, as evidenced by its response: “Yeah. Yeah, they have to consider

each case separately, and it’s only for common scheme, plan[, or] design.”

Id. at 125. Defense counsel made no attempt to correct the court or clarify

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that he sought a jury instruction pertaining to Cook’s testimony.        He also

lodged no objection at the end of the jury charge after realizing that no such

instruction had been provided. Consequently, Appellant cannot now complain

about the court’s omission of that jury charge. See Pa.R.A.P. 302(a); see

also Pa.R.Crim.P. 647 (providing that “[n]o portions of the charge nor

omissions from the charge may be assigned as error, unless specific objections

are made thereto before the jury retires to deliberate”); Commonwealth v.

Forbes, 867 A.2d 1268, 1274 (Pa. Super. 2005) (stating that a “specific and

timely objection must be made to preserve [a] challenge to [a] particular jury

instruction[, and the] failure to do so results in waiver”) (citation omitted).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2018




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