J-S44013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

HASHIEM R. CLARK,

                         Appellant                 No. 3507 EDA 2015


     Appeal from the Judgment of Sentence Entered November 6, 2015
           In the Court of Common Pleas of Philadelphia County
                        Criminal Division at No(s):
                         CP-51-CR-0011008-2013
                         CP-51-CR-0012346-2013
                         CP-51-CR-0012348-2013
                         CP-51-CR-0012350-2013
                         CP-51-CR-0012373-2013
                         CP-51-CR-0013661-2013

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                FILED SEPTEMBER 01, 2017

      Appellant, Hashiem R. Clark, appeals from the judgment of sentence of

an aggregate term of 25 to 50 years’ incarceration, imposed after a jury

convicted him of various offenses, including aggravated assault and robbery.

On appeal, Appellant challenges the admission of certain evidence.     After

careful review, we affirm.

      Briefly, Appellant and his cohort, Raheem Riggins, were charged in six

separate cases stemming from their armed robberies of several victims, two
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of whom Appellant and/or Riggins sexually assaulted.1            All six cases were

consolidated,     and     Appellant     and    Riggins   were   tried   together   as

codefendants.

             On February 4, 2015, following a jury trial…, Appellant was
       convicted of: five (5) counts of Robbery; one (1) count each of
       Aggravated Assault, Burglary, Firearms Not to Be Carried
       without a License, and Carrying Firearms on Public Streets in
       Philadelphia; and nine (9) counts of Criminal Conspiracy (to
       commit Robbery ([five] [(]5[) counts]), Rape, Aggravated
       Assault, Burglary, and Indecent Assault).

             On November 6, 2015, upon review of the pre-sentence
       investigation report and consideration of all relevant facts and
       circumstances of this case, th[e trial c]ourt sentenced Appellant
       to an aggregate term of 25 to 50 years’ incarceration. He
       subsequently appealed,[2] and th[e c]ourt ordered him to file a
       Concise Statement of Matters Complained of on Appeal in accord
       with Pa.R.A.P. 1925(b). Counsel for Appellant timely complied.

TCO at 1. The trial court filed a detailed Rule 1925(a) opinion on October

18, 2016.

       In Appellant’s brief, he presents the following three issues for our

review:3

____________________________________________


1
  For a detailed recitation of the facts of Appellant’s six cases, see Trial
Court Opinion (TCO), 10/18/16, at 2-16.
2
  Appellant’s appeal (filed on December 3, 2015) was initially dismissed by
this Court for failure to file a brief. He subsequently filed a petition to
reinstate his appeal, which we granted.
3
  Appellant sets forth five issues in his Statement of the Questions Involved,
see Appellant’s Brief at 6, but he explicitly abandons two of those claims in
the Argument portion of his brief, see id. at 11, 12-13. Therefore, we do
not reproduce those issues herein.



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       A. Did [the] trial court commit error when it permitted witness
       Jenny Smith to discuss hearsay evidence?

       [B.] Did the trial court commit error when it permitted the
       detective to make an in-court identification based upon viewing
       a video which depicted an incident which he did not personally
       observe?

       [C.] Did the trial court commit error when it permitted the
       detective to opine on the mental health of [] Appellant where he
       lacked any experience in this area?

Appellant’s Brief at 6 (unnecessary capitalization and emphasis omitted).

       Appellant’s first issue challenges the trial court’s admission of certain

testimony by Jenny Smith, a forensic nurse examiner.                   Pertinent to

Appellant’s claim on appeal, Ms. Smith testified about information recorded

in a standard rape kit that she prepared for one of Appellant’s victims, J.H., 4

as follows:

       [The Commonwealth:] During your questioning of [J.H.], did you
       ask her if she’s able to provide any identifying information of the
       assailants?

       [Ms. Smith:] Yes.        We did ask for a brief description of the
       assailant.

       [The Commonwealth:] And did [J.H.] give you a description?

       [Ms. Smith:] Excuse me.          I’ll look through the chart.   Yes, on
       Page 4.

       [The Commonwealth:] And what was that description that she
       gave?

       [Ms. Smith:] She described two males, both black, both --

       [Appellant’s Counsel:] I would just object.
____________________________________________


4
  We have replaced the sexual assault victim’s name with initials for
purposes of confidentiality.



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       The Court: Overruled.

       …

       [The Commonwealth:] You may answer that.

       [Ms. Smith:] She described two males, both approximate
       age of 30’s. [B]oth were black, and both were wearing
       hoodies.

TCO at 18-19 (quoting N.T. Trial, 1/29/15, at 127) (emphasis added).5

       Despite not raising a specific objection at the time of trial, Appellant

now avers (in a five-sentence argument) that Ms. Smith’s above-emphasized

testimony was inadmissible hearsay. In regard to how he was prejudiced by

the admission of this evidence, Appellant offers the following two sentences:

              Applying the facts to the law, it was unfairly prejudicial to
       [Appellant] to allow Smith to testify regarding the description of
       [J.H.’s] assailants. [Appellant] was not able to effectively cross-
       examine the hearsay statements and he was prejudiced by his
       inability to confront the witness against him.

Id.

       Appellant’s undeveloped argument is insufficient to demonstrate that

the trial court committed reversible error in allowing Ms. Smith’s at-issue

testimony. Preliminarily, the trial court explains in its Rule 1925(a) opinion

that Ms. Smith’s testimony was admissible under the ‘business records’

exception to the rule prohibiting hearsay.       See TCO at 20 (citing Pa.R.E.

803(6); Commonwealth v. Hemingway, 534 A.2d 1104, 1107 (Pa. Super.
____________________________________________


5
  Appellant did not ensure that the transcript from trial on January 29, 2015,
was included in the certified record, and this Court’s Prothonotary’s Office
was not able to locate that transcript. Thus, we will accept the trial court’s
reproduction of Ms. Smith’s testimony, to which Appellant does not object.



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1987)). Appellant does not offer any challenge to the court’s decision in this

regard; thus, he has failed to demonstrate that the court abused its

discretion in admitting Ms. Smith’s testimony under this hearsay exception.

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

(“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.”) (citation omitted).

      In any event, Appellant’s cursory claim that he was prejudiced by the

admission of Ms. Smith’s testimony is also unconvincing.          Notably, the

declarant of the hearsay statement, J.H., took the stand at Appellant’s trial,

thus providing him with the opportunity to cross-examine her about the

information she gave to Ms. Smith during the preparation of the rape kit.

Furthermore, the Commonwealth stresses that Appellant “confessed to

participating in the burglary” of J.H.’s residence, and “a video surveillance

tape from the night of the crime … showed [Appellant] and co-conspirator []

Riggins approaching [J.H.’s] home, and leaving with bags in their hands.”

Commonwealth’s Brief at 16-17 (citations to the record omitted; emphasis in

original).   Additionally, “Riggins’ girlfriend … identified [Appellant] from

[that] tape.” Id. at 17 (citations to the record omitted). We agree with the

Commonwealth that, considering this evidence, J.H.’s general description of

her assailants (as admitted through the testimony of Ms. Smith) was merely

cumulative. Id. at 16. Therefore, even if the trial court erred in admitting

Ms.   Smith’s   at-issue   testimony,   that   error   was   harmless.       See

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Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012) (deeming an

error in the admission of certain evidence harmless, where that evidence

was merely cumulative of other properly admitted evidence).

        In Appellant’s next issue, he avers that the trial court improperly

allowed “the detective to make an in-court identification based upon viewing

a video which depicted an incident which he did not personally observe.”

Appellant’s Brief at 11 (unnecessary capitalization and emphasis omitted).

Again, Appellant’s argument (which consists of five sentences) is woefully

undeveloped, as he does not even identify which detective’s testimony he is

challenging, nor cite to what exact testimony was improperly admitted.

Because these defects impede our meaningful review of Appellant’s

argument, his second issue is waived for our review. See Commonwealth

v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007), appeal denied, 940 A.2d

362 (Pa. 2008) (“When briefing the various issues that have been preserved,

it is an appellant’s duty to present arguments that are sufficiently developed

for our review. … [W]hen defects in a brief impede our ability to conduct

meaningful appellate review, we may dismiss the appeal entirely or find

certain issues to be waived.”) (citations omitted).

        Moreover, Appellant’s second issue is waived for two other reasons, as

well.   First, Appellant now concedes that the testimony by ‘the detective’

was admissible, but he contends that the court should have provided a

cautionary jury instruction. However, Appellant does not cite to where in the

record he requested such an instruction. Consequently, he has waived his

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argument that the court erred by not issuing one.         See 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.”)); see also Commonwealth v. Bryant, 855 A.2d

726, 739 (Pa. 2004) (“Failure to request a cautionary instruction upon the

introduction of evidence constitutes a waiver of a claim of trial court error in

failing to issue a cautionary instruction.”) (citations omitted).

      Second, we agree with the Commonwealth that Appellant has also

waived his claim regarding the court’s failure to issue a cautionary

instruction because he did not specifically assert that issue in his Rule

1925(b) statement.     Therein, Appellant declared: “The [c]ourt committed

error when it permitted the Detective to make an identification based upon

viewing the video in-court despite the fact he did not personally observe the

incident.   This usurped the jury’s role.”       Appellant’s Pa.R.A.P. 1925(b)

Statement, 7/1/16, at 1. Appellant did not mention any issue pertaining to

the court’s failure to provide a cautionary jury instruction.         Accordingly,

Appellant’s argument is waived on this basis, as well.              See Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”).

      In Appellant’s third and final issue, he asserts that the trial court erred

by admitting what essentially amounted to an expert opinion by a lay

witness. Specifically, the Commonwealth questioned Detective Waring about

Appellant’s physical appearance and demeanor during the detective’s

interview of Appellant, as follows:

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     [The Commonwealth:] When you first set eyes on [Appellant],
     did he appear to be in any pain or physical discomfort?

     [Detective Waring:] No.

     [The Commonwealth:] Did he appear to be under the influence
     of drugs, alcohol, or medication?

     [Detective Waring:] No.

     …

     [The Commonwealth:] I know you’re not an expert, but to
     your view, did he appear to be suffering from any mental
     illness or mental issues?

     [Defense Counsel:] Objection.

     THE COURT: Overruled.

     [Detective Waring:] No.

     [The Commonwealth:] In your time as a police officer, have you
     come into contact with people who seem to be suffering from
     mental illness or mental issues?

     [Detective Waring:] Yes.

     [The Commonwealth:] Okay. And he didn’t appear like that at
     all?

     [Detective Waring:] No.

     [The Commonwealth:] Okay. Did you notice any marks or
     bruises or anything on him indicating that he was physically
     injured?

     [Detective Waring:] No.

N.T. Trial, 1/30/15, at 174-75 (emphasis added).

     Appellant now claims that the above-emphasized question by the

Commonwealth and response by Detective Waring constituted impermissible

expert testimony by a lay witness.    In the trial court’s opinion, it explains

that it permitted Detective Waring’s at-issue testimony because in its view,


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that testimony did not constitute an expert opinion. The court emphasizes

that, “the Commonwealth simply questioned the detective on Appellant’s

faculties at the time of his statement to establish that [the statement] was

knowingly and voluntarily given….”     TCO at 25.    The court also concludes

that “Detective Waring did not offer a medical ‘opinion[,’] but simply

provided a common sense perception as to whether Appellant ‘had his wits’

to give a knowing and voluntary statement.” Id. at 27.

      Appellant offers absolutely no challenge to the court’s reasoning.

Moreover, while he recognizes that a lay witness may give an opinion under

certain circumstances, as set forth in Pa.R.E. 701, Appellant offers no

discussion of why Detective Waring’s testimony was beyond the bounds of

that rule. Instead, Appellant simply states that “the [d]etective was asked

to give an opinion about the mental state of [Appellant] when [the

detective] was interviewing him[,]” and he then proceeds directly into a

discussion of why the detective’s allegedly expert opinion caused him

prejudice. Appellant’s Brief at 12. Without any developed discussion of why

the trial court erred by considering Detective Waring’s testimony as an

admissible opinion by a lay witness, Appellant has not demonstrated that the

court’s decision was an abuse of discretion.

      Nevertheless, we also point out that Appellant has not demonstrated

that he was prejudiced by the at-issue testimony, to the extent that a new

trial is warranted. In this regard, Appellant’s entire argument is as follows:




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      Although the detective answered in the negative, it created the
      impression that [Appellant] had some lingering mental illness,
      otherwise why would the question be asked? Further, the
      defense never questioned [Appellant’s] mental health or brought
      this up as a defense. The question should never have been
      asked in the first place because the detective’s experience did
      not lend itself to the area of mental health.

Appellant’s Brief at 12.

      Notably, Appellant does not elaborate on - nor cite any legal authority

to support - how the Commonwealth’s question, and Detective Waring’s

answer, created an ‘impression’ that Appellant was mentally ill. Indeed, it is

clear from the above-quoted portion of Detective Waring’s testimony that

the Commonwealth asked the at-issue question in order to demonstrate that

Appellant was not mentally ill when he was interviewed by the detective.

Therefore, given the context of the Commonwealth’s question, and the

detective’s answer that Appellant did not seem mentally ill, we are

unconvinced by Appellant’s assertion that the jury was left with an

‘impression’ that he was mentally ill.   In other words, Appellant has not

demonstrated that he was prejudiced by the admission of Detective Waring’s

testimony, even if it was an impermissible expert opinion by a lay witness.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2017




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