J-A01025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    ANTONIO H. CILINO

                             Appellant                No. 1026 EDA 2018


          Appeal from the Judgment of Sentence Entered March 1, 2018
                 In the Court of Common Pleas of Wayne County
               Criminal Division at No: CP-64-CR-0000383-2016


BEFORE: OTT, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                                FILED MAY 16, 2019

        Appellant, Anthony H. Cilino, appeals from the March 1, 2018 judgment

of sentence imposing an aggregate 197 to 408 months of incarceration for

third-degree murder, simple assault, and recklessly endangering another

person.1 We affirm.

        For approximately six years leading up to the murder at issue, Appellant

and Brooke Swingle were romantically involved and had one child together.

N.T. Trial, 1/22/18, at 26. They broke up in July of 2016. Id. at 27. Shortly

thereafter, the victim, Appellant’s older brother Joseph Cilino (“Joseph”),

became romantically involved with Swingle. Id. at 28. During the summer

of 2016, Appellant issued several threats against Swingle and Joseph. On one


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1    18 Pa.C.S.A. §§ 2502(c), 2701, 2705, respectively.
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occasion, a witness overheard Appellant saying, “Can you believe that fucking

bitch? She took the kid and left me. She took the kid and she left. I hate

that fucking cunt. I’m going to kill her and whoever she’s with. I don’t care

who it is I have no fear.” N.T. Trial, 1/23/18, at 37. On four or five occasions,

he said he could kill Joseph and Swingle and get away with it. Id. at 67. In

a text message to a friend, Appellant said he would kill Joseph. Id. at 83.

Swingle, fearful of Appellant’s behavior, obtained a temporary Protection From

Abuse2 (“PFA”) order against him on August 8, 2016 and a final order on

August 12 2016. Appellant was forbidden any contact with Swingle, other

than to exchange custody of their young son, and he was forbidden to possess

a firearm. Id. at 228-30.

         On the evening of September 2, 2016, Appellant and Swingle completed

a custody exchange of their son, Dominick, who was just shy of his second

birthday, at a local McDonald’s. N.T. Trial, 1/22/18, at 29. Appellant was

angry during the exchange, and told Swingle if he could not have her no one

could. Id. at 31. Subsequently, Swingle picked up Joseph, who asked her to

take him to a gas station. Id. at 32. On their way, they observed Appellant’s

pickup truck. Id. at 32-33. In hope of avoiding Appellant, Swingle turned

onto what she believed was a road but was actually a private driveway. Id.

at 33.



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2   See 23 Pa.C.S.A. § 6101 et. seq.

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      According to Swingle, she parked her car alongside the driveway and

turned the headlights off, and Joseph went into the woods.         Id. at 34.

Dominick remained in the car with Swingle. Id. at 46. Appellant followed

Swingle’s vehicle, parked behind her, and approached the driver’s side door.

Id. at 34. Appellant attempted to reach through the window, which was a few

inches open, and he was tapping on the window with an object in his right

hand. Id. at 34-35. Joseph then reappeared from the woods, and Appellant

turned and shot him with a .22 caliber pistol. Id. at 35. Swingle saw the gun

at that point. Id. at 53. She heard Joseph say, “You shot me.” Id. at 56.

An altercation ensued between Appellant and Joseph, during which Joseph told

Swingle to flee. Id. at 36. She executed several K-turns, drove away, and

contacted police. Id. at 36-37. Swingle was sure the shooting preceded the

altercation. Id. at 40. Later that evening, Swingle received a cell phone call

from a number she did not recognize. Id. at 41. She recognized Appellant’s

voice, and he said “How is my brother, did I do a good job?” Id. Police found

Joseph’s body on the porch of the residence at the end of the private driveway.

Id. at 65-66, 76.

      According to Appellant, he was surprised by the location where he

observed Swingle’s vehicle after the custody exchange. N.T. Trial, 1/23/18,

at 195. He decided to follow her because he knew his son was with her. Id.

at 196-97. Appellant also believed he saw a passenger in the vehicle. Id. at

197. Appellant followed Swingle, parked behind her in the private driveway


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and saw his brother leave the vehicle and run into the woods. Id. at 198-99.

Appellant approached the vehicle and knocked on the driver’s window, which

was fully tinted. Id. at 198. Appellant denied tapping the window with his

gun, but he admitted bringing a gun with him. Id. at 200. Appellant claimed

the gun was to protect himself from Joseph, “cause one minute my brother

would be fine next minute he would go insane.” Id. at 200. Appellant testified

that he twice asked Swingle, “What the hell is going on?” but she did not

respond.      Id. at 201.   Appellant then heard footsteps approaching from

behind, and a person grabbed him, lifted him, and spun him to the ground.

Id. at 202. Appellant pulled the gun but did not have time to fire it. Id. at

202-03. During the ensuing altercation, Joseph got on top of Appellant and

repeatedly slammed his head into the ground.        Id. at 204.    Joseph was

reaching for the gun during the altercation, and eventually it went off. Id. at

207-08.    Appellant denied pulling the trigger.   Id. at 209.   At some point

Joseph sat up and asked Swingle to call 911. Id. at 210. Swingle drove away,

Joseph looked at Appellant and asked, “Where the fuck is she going?” and

Appellant said he did not know. Id. at 210. Appellant then ran to his truck

and left. Id. at 211. Appellant claimed he did not know Joseph sustained a

bullet wound until he was at the police station and heard mention of a coroner.

Id. at 212.

      The Commonwealth’s evidence indicated that the bullet entered

Joseph’s chest at a downward angle, and that it was fired from a distance; the


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end of the gun barrel was not in close proximity to Joseph when it was fired.

N.T. Trial, 1/23/18, at 13. Joseph died from blood loss because the bullet

nicked his lung, but because it was a small caliber bullet a “substantial period

of time” elapsed between the gunshot wound and Joseph’s death. Id. at 15.

Joseph would have been capable of fighting his brother after sustaining the

gunshot wound. Id. at 16.

        Appellant turned himself in later that evening, telling police that he got

into a fight with his brother and shot him.         N.T. Trial, 1/22/18, at 59.

Specifically, Appellant told the officer he heard his brother approaching from

behind and “swung around and fired the weapon.” Id. at 60.

        A public defender represented Appellant until October 20, 2017, at

which point private counsel entered an appearance on behalf of Appellant.

Thereafter, Appellant filed a request for pretrial discovery on November 7,

2017.     On December 13, 2017, Appellant filed a pretrial motion seeking,

among other things, appointment of experts to assist in his defense.           On

January 4, 2018, after a hearing, the trial court entered an order providing

$1,500.00 to Appellant to defray the cost of hiring an investigator, but

otherwise denied Appellant’s pretrial motions.       The trial court denied two

subsequent defense motions for a continuance. On January 19, 2018, the

Commonwealth filed a motion to bar admission into evidence of Joseph’s prior

convictions. We will address the outcome of that motion in more detail below.




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After the jury’s guilty verdict, the trial court imposed sentence as set forth

above. This timely appeal followed.

      Appellant presents ten questions for our review. Appellant’s Brief at 4-

5. In the first, Appellant asserts that the trial court’s errors, “singularly or in

combination,” require a new trial. Appellant’s Brief at 4. Appellant does not

develop any argument in his brief in support of this contention, and therefore

he cannot obtain relief on this basis. Commonwealth v. Watkins, 108 A.3d

692, 735 (Pa. 2014) (noting that an appellant must develop specific argument

in support of a claim for relief based on cumulative error), cert. denied,

Watkins v. Pennsylvania, 136 S. Ct. 221 (2015). In any event, as we will

explain below, we find no merit in any of the arguments that Appellant has

properly preserved and presented for appellate review.

      Second, Appellant claims the trial court erred in denying his pre-trial

motion for appointment of various experts to assist him with his defense.

Appellant’s Brief at 4. In particular, Appellant claims the trial court should

have appointed a criminal investigator, a presentence investigation expert, a

forensic expert, and a firearms expert.      Appellant’s Brief at 20.    Appellant

claims he was financially unable to obtain the services of these experts, and

that expert help was necessary in order for him to present a reasonable

defense. Id. at 30. He claims his defense attorney did not “have the expertise

in criminal investigation work to properly investigate the facts and witnesses.”

Id. at 33.   Appellant argues that a pre-sentence investigation expert was


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necessary to enable Appellant to present the trial court with “enough

information to ensure that it will make a reasoned determination as to

[Appellant’s] possible sentence.” Id. at 33-34. Appellant wanted a forensic

expert to examine “flight characteristics and stain patterns of human blood.”

Id. at 34.    Finally, Appellant claims he needed a firearms expert to be

sufficiently prepared to cross-examine the Commonwealth’s witnesses. Id.

      The only legal support Appellant offers is Ake v. Oklahoma, 470 U.S.

68 (1985). Appellant does not explain the Supreme Court’s holding in Ake,

nor does he explain how that decision supports his argument. In Ake, the

Supreme Court held that where a defendant facing capital charges makes a

preliminary showing that his sanity at the time of the murders will be an

important issue at trial, the state must provide access to a psychiatrist to

assist the defendant, if the defendant cannot afford one on his own. Id. at

83.   Appellant’s sanity was not at issue at trial, and he did not attempt

establish that he was indigent. Ake is plainly inapposite here.

      “The decision to appoint an expert witness is within the sound discretion

of the trial court and will not be disturbed except for a clear abuse of that

discretion.” Commonwealth v. Carter, 643 A.2d 61, 73 (Pa. 1994), cert.

denied, Carter v. Pennsylvania, 514 U.S. 1005 (1995).             “There is no

obligation on the part of the Commonwealth to pay for the eservices of an

expert. However, in a capital case, an accused is entitled to the assistance of

experts necessary to prepare a defense.” Id. (citations omitted). In some


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cases, however, indigent defendants have the right to have experts appointed.

Commonwealth v. Rhodes, 54 A.3d 908, 913 (Pa. Super. 2012) (citing

Commonwealth v. Cannon, 954 A.2d 1222, 1225 (Pa. Super. 2008),

appeal denied, 964 A.2d 893 (Pa. 2009), and Commonwealth v. Curnutte,

871 A.2d 839 (Pa. Super. 2005)). On the other hand, “the Commonwealth is

not obligated to pay for the services of an expert simply because a defendant

requests one.” Id. (quoting Cannon, 954 A.2d at 1225).

      This is not a capital case, and, as we have already noted, Appellant has

not established that he is indigent. Appellant has done nothing more than

request several experts, offering vague explanations of why these experts

might have been helpful. Appellant has failed to establish that the trial court

abused its discretion in denying his requests. His second argument fails.

      Next, Appellant claims the trial court erred in denying his request to

have the jury visit the crime scene. Appellant claims, in vague terms, that

this “was necessary to impart to the evidence its fair and legitimate weight

and the view by the jury would have been crucial to the jury’s determination

of material, factual issues in this case.” Appellant’s Brief at 21. The trial court

noted that Appellant never explained why he needed to have the jury view the

crime scene. Trial Court Opinion, 8/3/18, at 4. Appellant’s brief devotes only

several paragraphs to this issue, with no citation to pertinent legal authority

or to the record. Appellant’s Brief at 21-22, 35-36. Failure to support an




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argument with pertinent authority and record citation results in waiver.

Commonwealth v. Janda, 14 A.3d 147, 164 (Pa. Super. 2011).

      Appellant’s fourth argument is that the trial court erred in denying

several pretrial continuance motions.      Appellant’s Brief at 4.    Appellant

explains in general terms that private counsel had insufficient time to prepare

for trial, retain an investigator, review the Commonwealth’s discovery, and

interview witnesses. Appellant’s Brief at 21-27, 36-41.

      Appellant’s legal argument in support of this contention is limited,

relying only on Rule 106 of the Rules of Criminal Procedure and several cases

without pinpoint citations, analysis, or explanation of any of them. Appellant’s

Brief at 41-42. Concerning Rule 106, Appellant states that a continuance was

necessary in the interests of justice, as per Rule 106(A), and that he filed his

motions more than 48 hours before the start of trial, in accord with Rule

106(D). See Pa.R.Crim.P. 106(A), (D).

      “The grant or denial of a continuance to secure a witness is a matter

within the sound discretion of the trial court and an appellate court will not

reverse a trial court’s ruling unless there has been prejudice to the defendant

or a showing of palpable and manifest abuse of discretion.” Commonwealth

v. Thomas, 717 A.2d 468, 476 (Pa. 1998), cert. denied, Thomas. v.

Pennsylvania, 528 U.S. 827 (1999).            Bald allegations of insufficient

preparation time are not sufficient to establish that the trial court abused its

discretion in denying a continuance. Commonwealth v. Ross, 57 A.3d 85,


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91 (Pa. Super. 2012), appeal denied, 72 A.3d 603 (Pa. 2013). Further, “[a]n

appellant must be able to show specifically in what manner he was unable to

prepare his defense or how he would have prepared differently had he been

given more time. We will not reverse a denial of a motion for continuance in

the absence of prejudice.” Id. (quoting Commonwealth v. Brown, 505 A.2d

295, 298 (Pa. Super. 1986)).

      In Thomas, the trial court denied a defense continuance to locate a

witness who had gone missing. The Thomas Court considered five factors:

      (1) the necessity of the witness to strengthen the defendant's
      case;

      (2) the essentiality of the witness to the defendant's defense;

      (3) the diligence exercised to procure his or her presence at
      trial:

      (4) the facts to which he or she could testify; and

      (5) the likelihood that he or she could be produced in court if a
      continuance were granted.

Id.; see also Commonwealth v. Birdsong, 650 A.2d 26, 34 (Pa. 1994)

(same); Commonwealth v. Scott, 365 A.2d 140, 143 (Pa. 1976) (same);

Commonwealth v. Smith, 275 A.2d 98, 101 (Pa. Super. 1971)(same).

Thomas, Birdsong, Scott, and Smith are four of the five cases Appellant

cites in support of his argument. All four cases clearly teach that an appellant

must articulate specifics as to why the trial court abused its discretion in

denying a continuance.     Yet Appellant does not even name a witness he

believes might have strengthened his case, let alone address the five-prong


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analysis set forth above.        Likewise, Appellant does not articulate why the

Commonwealth’s discovery was inadequate, other than to say that the

Commonwealth failed to provide addresses and telephone numbers for the

witnesses it intended to call. On this point, the trial court noted correctly that

disclosure of witness addresses and phone numbers is not mandatory under

Pa.R.Crim.P. 573.3        Trial Court Opinion, 8/3/18, at 6.     Concerning the

investigator, we have already explained above that Appellant has failed to

establish that he was entitled to have an investigator appointed and paid for

by the Commonwealth.

       The only other case Appellant cites in support of his argument is

Commonwealth v. Micelli, 573 A.2d 606 (Pa. Super. 1990), wherein this

Court held that the Commonwealth should have been granted a continuance

where a police officer witness became unavailable because he was called for

National Guard duty.        Appellant’s Brief at 41-42.   Micelli has no obvious

application to this case.

       In summary, Appellant offers nothing but bald allegations of inadequate

preparation time without any specifics as to what he would have done




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3   Names and addresses of eyewitnesses is discretionary with the court.
Pa.R.Crim.P. 573(B)(2)(a)(i); see also, Commonwealth v. Jones, 668 A.2d
491, 507-08 (Pa. 1995) (noting that the defendant was not entitled to a new
trial where the Commonwealth did not disclose names and addresses of
witnesses); cert. denied, Jones v. Pennsylvania, 519 U.S. 826 (1996).

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differently. Pursuant to Ross, Appellant has failed to establish that the trial

court abused its discretion in denying his continuance motions.

      Appellant’s fifth argument is that the trial court erred in granting the

Commonwealth’s motion to exclude from evidence any reference to Joseph’s

prior convictions. Appellant’s Brief at 4. Appellant argues, correctly, that the

law permits a defendant asserting self-defense in a murder prosecution may

introduce evidence of the victim’s propensity for violence. Commonwealth

v. Butterbaugh, 91 A.3d 1247 (Pa. Super. 2014), appeal denied, 104 A.3d

1 (Pa. 2014).

      Appellant’s argument is misleading.      On January 19, 2018, shortly

before commencement of trial, the Commonwealth filed a motion in limine

regarding Joseph’s prior convictions.         In that motion, however, the

Commonwealth simply asked the trial court to permit Appellant to reference

only those prior convictions involving violence. Commonwealth’s Motion in

Limine, 1/19/18, at 1-2 (pagination ours).           In the alternative, the

Commonwealth argued that two of Appellant’s four pertinent convictions were

too remote in time to be admitted.     Id. at 2. Finally, the Commonwealth

argued in the alternative that none of the victim’s crimes of violence were

admissible because of factual similarities between the instant matter and

Commonwealth v. Busanet, 54 A.3d 35 (Pa. 2012). Id. at 2-3. The trial

court never entered an order disposing of the Commonwealth’s motion, and




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there was no discussion of it in any pretrial colloquy. At the conclusion of

Appellant’s testimony, however, the following exchange occurred:

               THE COURT: [D]o you have any other evidence?

            [DEFENSE COUNSEL]: I’m going to call [a police officer]
       about the [victim’s] criminal history.

             [DISTRICT ATTORNEY]: I’ll stipulate that he’s got himself
       two convictions.

               [DEFENSE COUNSEL]: (indecipherable) We have to tell the
       jury.

               [DISTRICT ATTORNEY]: I’ll say it out loud.

               [DEFENSE COUNSEL]: (indecipherable)

               THE COURT: That’s fine with me.

               [DISTRICT ATTORNEY]: I’ll stipulate to that right now.

               THE COURT: Okay.

               [DEFENSE COUNSEL]: Thank you.

               THE COURT: And then that will be it?

           [DEFENSE COUNSEL]: Yeah then I’ll just move for the
       admission of my exhibits.

N.T. Trial, 1/23/18, at 267 (emphasis added). The stipulation involved a 2014

conviction for terroristic threats and a 2011 conviction for simple assault. Id.

at 268.   The Commonwealth did not stipulate to two other simple assault

convictions from 1995 and 2000. Appellant also testified without objection

that Joseph “was always in and out of state prison.” N.T. Trial, 1/23/18, at

186.




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       Thus, the trial court never entered an order forbidding Appellant to

introduce   evidence   of   Joseph’s   propensity    for   violence,   and   the

Commonwealth stipulated to the admission of two of Joseph’s prior convictions

for crimes of violence. Defense counsel accepted that stipulation and did not

argue for anything more. Even if Appellant addressed the admissibility of the

1995 and 2000 convictions in his brief (he does not), we would decline to

consider the merits of an issue raised for the first time on appeal. Pa.R.A.P.

302(a). Appellant’s fifth argument fails.

       For his sixth argument on appeal, Appellant offers a vague claim that

the trial court abused its discretion in “rulings as to the admissibility of the

testimony of certain witnesses.” Appellant’s Brief at 5. In several paragraphs,

Appellant claims the trial court erred (1) in admitting certain text messages

through the testimony of James Warnott; (2) in excluding some testimony of

defense witness Laura Reed; and (3) excluding certain testimony of

Appellant’s and Joseph’s mother. Appellant’s Brief at 27. Appellant does not

elaborate on the substance of text messages or the excluded testimony.

Appellant simply claims, without citation to any pertinent legal authority, that

the trial court abused its discretion. Appellant’s Brief at 51-52. Appellant’s

failure to develop any legal argument results in waiver. Janda, 14 A.3d at

164.

       In his seventh argument, Appellant claims the trial court erred in

admitting evidence that Swingle obtained a PFA order against him. Appellant’s


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Brief at 5. Appellant cites Rules of Criminal Procedure 404(b) and 573, and

claims the Commonwealth’s motion was untimely.            Appellant’s Brief at 53.

Appellant fails, however, to develop any substantive argument as to why the

PFA was inadmissible. Appellant’s Brief at 28, 52-54. He therefore cannot

obtain relief on this issue. Janda, 14 A.3d at 164. In any event, the record

reveals that the trial court reserved ruling on the Commonwealth’s pretrial

motion to admit evidence of the PFA, and did not permit the Commonwealth

to introduce the PFA evidence until Appellant opened the door, through his

own testimony, by denying any abusive behavior toward Swingle. N.T. Trial,

1/23/18, at 226-28.     Appellant’s brief does not challenge the trial court’s

conclusion that he opened the door to the PFA evidence.

      Appellant’s eighth argument is that the trial court erred in admitting

several color, post-mortem pictures of Joseph’s body. Appellant’s Brief at 5.

Appellant devotes only two paragraphs to this argument, without any citation

to pertinent authority. Appellant’s Brief at 28-29, 54. This results in waiver.

Janda, 14 A.3d at 164.      In any event, the trial court explained that, in

response to Appellant’s motion, it excluded pictures of Joseph’s head but

admitted pictures depicting the fatal gunshot wound to Joseph’s chest. Trial

Court Opinion, 8/3/18, at 18-19.

      For his ninth argument, Appellant claims the trial court erred in rejecting

Appellant’s proposed jury instructions.       Appellant’s Brief at 5.   The record

reveals that Appellant submitted written proposed jury instructions at the


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close of trial in accord with Pa.R.Crim.P. 647(B). One of Appellant’s proposed

charges addressed voluntary manslaughter. In his brief, Appellant claims the

trial court erred in declining to use Appellant’s proposed language for his

voluntary manslaughter/heat of passion charge. Appellant’s Brief at 55-56.

      We are mindful of the following legal precepts:

             A trial court has broad discretion in phrasing its instructions
      to the jury and can choose its own wording so long as the law is
      clearly, adequately and accurately presented to the jury for
      consideration.      Furthermore, a trial court need not accept
      counsel’s wording for an instruction, as long as the instruction
      given correctly reflects the law. In reviewing a challenged jury
      instruction, an appellate court must consider the entire charge as
      a whole, not merely isolated fragments, in order to ascertain
      whether the instruction fairly conveys the legal principles at issue.
      [A jury] instruction will be upheld if it clearly, adequately and
      accurately reflects the law.

Commonwealth v. Davis, 861 A.2d 310, 323 (Pa. Super. 2004), appeal

denied, 872 A.2d 171 (Pa. 2005).

      The record reveals that the trial court did, in fact, instruct the jury on

voluntary manslaughter. N.T. Trial, 1/24/18, at 78-81. Appellant does not

explain why he believes the trial court’s language was insufficient. The trial

court explained that it chose to rely on the standard jury instruction instead

of Appellant’s proposed language.        Trial Court Opinion, 8/3/18, at 20.

Moreover, the following exchange occurred between the trial court and

defense counsel just before the jury charge:

            [T]he instructions of the defense are set forth on a 12 page
      Motion for Binding Instructions and Defendant’s Request for
      Instructions filed on January 22, 2018. The court’s reviewed, the
      subject matters are all covered by the standard charges. [Defense

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      Counsel], you asked for a lot of, um, a lot of additional language
      based upon cases that were decided. The court finds that the
      standard instructions that the court intends to give are
      sufficient to cover these areas. Do you disagree with that?

            [DEFENSE COUNSEL]: That’s fine, Your Honor.

N.T. Trial, 1/24/18, at 7 (emphasis added). In summary, Appellant failed to

preserve this issue before the trial court, and his brief to this Court fails to

explain any deficiency in the trial court’s chosen language. Appellant’s ninth

argument lacks merit.

      Finally, Appellant argues the trial court abused its sentencing discretion.

Appellant’s Brief at 5. Appellant devotes only two paragraphs to this argument

with no citation to legal authority. Appellant’s Brief at 29, 57. We conclude

he has waived his challenge to the discretionary aspects of his sentence.

Janda, 14 A.3d at 164.

      In summary, we have concluded that all of Appellant’s issues are lacking

in merit or not preserved for appellate review.       We therefore affirm the

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/19


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