J-S39005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHARLES THEISEN,

                            Appellant                 No. 703 WDA 2016


       Appeal from the Judgment of Sentence Entered January 12, 2016
              In the Court of Common Pleas of Allegheny County
                          Criminal Division at No(s):
                           CP-02-CR-0012533-2014
                           CP-02-CR-0013588-2014
                           CP-02-CR-0014997-2014


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

MEMORANDUM BY BENDER, P.J.E.:                        FILED AUGUST 4, 2017

        Appellant, Charles Theisen, appeals from the judgment of sentence of

an aggregate term of 20½-41 years’ incarceration, imposed following his

conviction for two counts of robbery, and several individual counts of

aggravated assault, theft, receiving stolen property, and related offenses.

Appellant claims that the trial court erred by denying his suppression motion

without a hearing, and without issuing a contemporaneous statement of the

court’s findings of fact and conclusions of law. Appellant also contends that

the trial court utilized an impermissible sentencing factor by considering the


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S39005-17



testimony of the investigating officer, who was not a victim, during the

sentencing hearing. After careful review, we affirm.

     The trial court summarized the facts adduced at trial as follows:

            On October 8, 2014, Daniel Eisel was driving his
        mother's car, a 1994 Buick Century[,] on Hazeldell Street
        when he decided to stop and get something to eat. Eisel
        parked the car across the street from 2210 Hazeldell
        Street and although he had locked the doors, the driver's
        window and front seat passenger window were left open …
        approximately one inch. When he returned from eating,
        that car was no longer there. Later that day, Gloria
        Wolowski completed her shopping in the Town Square
        complex located in Brentwood. She went to her car,
        placed her purse on the driver's seat and then proceeded
        to place her groceries in the trunk of her car. She then
        noticed an unknown white male, approximately thirty
        years of age, wearing a Steeler jersey with facial hair with
        a thin build, driving an older blue car which pulled up next
        to her car, striking her vehicle with his mirror. The driver
        of that car never got out of the vehicle and apparently slid
        across the seat, opened her door and grabbed her purse.
        Wolowski observed this and then ran to the other car and
        got ahold of her purse and was fighting to get it back when
        the driver started to speed away causing her to violently
        fall to the pavement. This theft was witnessed by Greg
        Mondry and Wes Stabler, who ran to Wolowski's aid.
        Mondry got a good look at the actor and gave basically the
        same description as Wolowski did to the police. Wolowski
        was transported to St. Clair Hospital to be treated for a
        fractured scapula, fractured rib, lacerations, swelling and
        bruising on her left knee and right wrist. Wolowski was
        seventy-three years old at the time of this robbery.

           On August 9, 2014, Donna Gall had just completed her
        shopping at the Giant Eagle located at Parkway Center Mall
        in Green[ Tree], Pennsylvania, and was placing her
        groceries in her car when she noticed that a vehicle had
        pulled extremely close to her driver's side door with [h]is
        driver's side door and attempted to grab her purse from
        her arm. The driver of the other car never exited his
        vehicle and Gall struggled with this individual, refusing to

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       give her purse when he had to speed away, causing Gall to
       get tangled in her purse and having to run alongside the
       speeding automobile for approximately ten feet. Gall then
       fell to the ground and the purse was ripped from her.
       Green[ Tree] Police were able to obtain a video of the
       vehicle that was used during the robbery and it revealed
       that Easel's stolen vehicle, the 1994 Buick Century, was
       used during the commission of this robbery.              Gall
       described the driver as being in his late twenties, thin
       build, medium height, and wearing a black shirt and had
       dark hair and also had facial hair. Gall suffered injuries to
       both of her knees in addition to several bruises and
       contusions. She believed that her life was in danger. Gall
       was sixty-four years old at the time of this robbery. Later
       on August 9, 2014, Soon Ja Hong was walking along
       Noblestown Road when she heard the engine of a speeding
       vehicle approach her. Hong observed an older blue vehicle
       pull up to her at an extremely close range and grab her
       purse that was hanging from her arm. The driver of the
       car grabbed her purse and Hong and the driver proceeded
       to struggle over this purse, however, he was unable to get
       the purse from her and then sped away. Hong described
       the individual who attempted to take her purse as … being
       a white male of thin build and medium height. She also
       described the car used in this attempted robbery as an
       older blue Buick.

          After Easel's vehicle had been stolen on August 8, 2014,
       the police put out a description of that vehicle in an
       attempt to locate it. On August 20, 2014, Pittsburgh Police
       received an anonymous phone call saying that a blue Buick
       Century was parked outside of 338 Sweetbriar Street. The
       police then went to that address and noticed that the car
       was parked with all of its windows down. The police set up
       surveillance to see who would attempt to drive that car
       and they then saw an individual wearing a Steeler jersey
       approach the vehicle. That individual got into that vehicle
       and was attempting to leave when the police pulled in,
       blocking his exit. The driver of this vehicle was then
       identified as [Appellant]. When he was questioned by the
       police [Appellant] said he just received that vehicle from
       another individual and that he could not have committed
       these robberies since he was in the hospital and was
       treated for fractures of both of his heels.           When


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          [Appellant] was arrested he had casts on both legs up to
          his shins. [Appellant] told the police that he had stolen
          this car on Paul Street in Mt. Washington on August 17 and
          wondered what took the police so long to get him. When
          he was questioned about his injuries, he said that he had
          fallen off of a roof and went to the hospital on August 1
          and then signed himself out on August 10 and went to
          another hospital on that date and stayed there until being
          released on August 15. The police got a search warrant
          for [Appellant]'s medical records and determined that
          [Appellant] signed off on a release against medical advice
          on August 6, 2014, when he left Mercy Hospital.

Trial Court Opinion (TCO), 3/27/17, at 6-9.

      Appellant was charged in four separate criminal complaints for the

above actions, one for each of his victims, all of which resulted in

convictions. However, only three of those cases went to trial and are now

part of the instant appeal: CP-02-CR-0012533-2014 (“12533-2014”), CP-02-

CR-0013588-2014 (“13588-2014”), and CP-02-CR-0014997-2014 (“14997-

2014”).    In the fourth case, CP-02-CR-0012344-2014, Appellant pled guilty

to receiving stolen property and two motor vehicle offenses on April 18,

2016. The trial court notes that the fourth case was not part of the instant

appeal. TCO at 3. Moreover, the specific offenses charged in each of the

first three cases are not germane to the two issues raised in this appeal.

      The relevant procedural history of these cases is as follows. After the

Commonwealth charged him in the above matters, Appellant filed a motion

to suppress any in-court identification testimony by eyewitnesses, including

the victims in this case, on the basis that they were shown a photo array by

police which he maintains was unduly suggestive. See Motion to Suppress



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Identification, 6/19/15, at 3.        The trial court denied the motion by order

dated June 26, 2015, without having held a suppression hearing.                   See

Order, 6/26/15, at 1 (single page).                 The trial court did not issue any

contemporaneous statement summarizing its factual findings or conclusions

of law regarding the suppression issue.1 A hybrid jury/nonjury trial began

October 8, 2015, before The Honorable David R. Cashman. Appellant was

found guilty of all the offenses before the jury, and Judge Cashman found

him guilty of all the charged summary offenses.

       On January 12, 2016, the trial court sentenced Appellant at 12533-

2014 to 18-36 months’ incarceration and 4 years’ probation for receiving

stolen property; at 13588-2014 to 90-180 months’ incarceration and 10

years’ probation for robbery, 90-180 months’ incarceration and 5 years’

probation for aggravated assault, and 18-36 months’ incarceration and 5

years’   probation     for   theft;   and      at    14997-2014   to   30-60   months’

incarceration and 5 years’ probation for robbery.               “All of the periods of

incarceration were to run consecutive[ly] to each other and all of the

period[s] of probation were to run concurrent[ly] with each other.” TCO at

5. Accordingly, Appellant was sentenced to an aggregate term of 20½-41

years’ incarceration, to be followed by 10 years’ probation. Appellant filed


____________________________________________


1
  While not contemporaneous to its decision to deny Appellant’s suppression
motion, the trial court set forth its factual findings and legal conclusions
regarding the suppression issue in its Pa.R.A.P. 1925(a) opinion.



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timely post-sentence motions, which were denied following a hearing on

April 18, 2016.

      Appellant filed a timely notice of appeal on May 12, 2016, and timely

filed a court-ordered Pa.R.A.P. 1925(b) statement on August 5, 2016. The

trial court issued its Rule 1925(a) opinion on March 27, 2017. Appellant now

presents the following questions for our review:

      Whether the [t]rial [c]ourt erred in denying [A]ppellant's motion
      to suppress evidence without first holding a hearing as required
      by the rules of criminal procedure?

      Whether the [t]rial [c]ourt erred in allowing a Detective of the
      Pittsburgh Police Department to testify at sentencing in violation
      of the statutory rules governing impact statements?

Appellant’s Brief at 3.

      Appellant’s first claim concerns the trial court’s decision to rule on his

suppression motion without a hearing. Appellant contends that the court’s

decision was a blatant violation of Pa.R.Crim.P. 581 and, as such, requires

this Court to vacate his sentence and remand for a suppression hearing.

The Commonwealth argues that no suppression hearing was necessary

under the circumstances of this case, and therefore no error occurred.

      Pa.R.Crim.P. 581 provides, in pertinent part, as follows:

      (A) The defendant's attorney, or the defendant if unrepresented,
      may make a motion to the court to suppress any evidence
      alleged to have been obtained in violation of the defendant's
      rights.

                                       …




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      (D) The motion shall state specifically and with particularity the
      evidence sought to be suppressed, the grounds for suppression,
      and the facts and events in support thereof.

      (E) A hearing shall be scheduled in accordance with Rule 577
      (Procedures Following Filing of Motion). A hearing may be either
      prior to or at trial, and shall afford the attorney for the
      Commonwealth a reasonable opportunity for investigation. The
      judge shall enter such interim order as may be appropriate in
      the interests of justice and the expeditious disposition of criminal
      cases.

      (F) The hearing, either before or at trial, ordinarily shall be held
      in open court. The hearing shall be held outside the presence of
      the jury. In all cases, the court may make such order concerning
      publicity of the proceedings as it deems appropriate under Rules
      110 and 111.

      (G) A record shall be made of all evidence adduced at the
      hearing.

      (H) The Commonwealth shall have the burden of going forward
      with the evidence and of establishing that the challenged
      evidence was not obtained in violation of the defendant's rights.
      The defendant may testify at such hearing, and if the defendant
      does testify, the defendant does not thereby waive the right to
      remain silent during trial.

      (I) At the conclusion of the hearing, the judge shall enter on
      the record a statement of findings of fact and conclusions
      of law as to whether the evidence was obtained in violation of
      the defendant's rights, or in violation of these rules or any
      statute, and shall make an order granting or denying the relief
      sought.

Pa.R.Crim.P. 581 (emphasis added).

      “Rules of Criminal Procedure do not establish, create, or define crimes,

offenses or ordinances authorizing incarceration, fine, or other penalty;

hence, Rules of Criminal Procedure are not ‘penal provisions’ and are not

subject to strict construction.”    Commonwealth v. Wamsher, 577 A.2d

595, 600 (Pa. Super. 1990).        Instead, we interpret the rules of criminal


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procedure under the guidance of Pa.R.Crim.P. 101, which provides as

follows:

      (A) These rules are intended to provide           for   the   just
      determination of every criminal proceeding.

      (B) These rules shall be construed to secure simplicity in
      procedure, fairness in administration, and the elimination of
      unjustifiable expense and delay.

      (C) To the extent practicable, these rules shall be construed in
      consonance with the rules of statutory construction.

Pa.R.Crim.P. 101.

      Instantly, Appellant argues that the trial court’s failure to hold a

hearing on his suppression motion was a violation of an “absolute” rule of

criminal procedure, Pa.R.Crim.P. 581(E), “without regard for the party that

benefits from the decision.” Appellant’s Brief at 13. Appellant also contends

that the trial court violated a similarly strict requirement of the rules by

failing to issue a statement of “of findings of fact and conclusions of law.”

Pa.R.Crim.P. 581(I).

      The trial court states:

             In [Appellant]'s motion to suppress the photo array
      identification, he makes no claim that the police engaged in any
      type of activity or comment which was designed to influence the
      ultimate result of his identification.      The only claims of
      suggestiveness are the photographs of themselves. In this
      regard, [Appellant] has suggested … he stands out because he is
      the only one wearing a Steeler[s] tee-shirt, he is the only one
      [who] is not looking directly into the camera, and he is the only
      one [who] was not in the center of his picture. In light of the
      claims asserted by [Appellant], there was no need to hold a
      hearing to elicit testimony as to [the] three claims asserted by
      [Appellant]. [Appellant]'s motion also contained numerous
      citations to the case law applicable to claims of suggestiveness

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J-S39005-17


      of photo arrays. The only thing that needed to be done was for
      this [c]ourt to review the photographs to make a determination
      as to whether or not the photographs were selected in such a
      manner as to cause [Appellant]'s photograph to stand out
      against the others.

TCO at 13-14. The Commonwealth agrees with the trial court’s justification

for not holding a suppression hearing under the facts of this case.

      In his brief, Appellant provides no response to the trial court’s

rationale for not holding a suppression hearing, other than to essentially

assert that he is automatically entitled to relief because of the apparent

violations of the mandates of Rule 581(E) and (I).         Appellant attempts to

support his claim by citing Commonwealth v. Micklos, 672 A.2d 796 (Pa.

Super. 1996), and Commonwealth v. Long, 753 A.2d 272 (Pa. Super.

2000).    The Commonwealth argues that these cases demonstrate, to the

contrary, a case-by-case approach to whether relief should be granted when

a Rule 581 violation occurs, and that the circumstances of the instant case

are not analogous to the circumstances at issue in Micklos and Long, where

this Court provided relief for Rule 581 violations.

      However, we decline to reach these questions after our review of the

record in this case. Here, Appellant filed his suppression motion on June 19,

2015, and the trial court issued the order denying the motion on June 26,

2015. Appellant’s trial then began on October 8, 2015. At no point between

the   trial   court’s   order   denying    the   suppression   motion,   and   the

commencement of trial, a period of 111 days, did Appellant object to, or




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otherwise seek reconsideration of, the trial court’s order denying suppression

on the basis that the court had failed to adhere to Rule 581(E) and/or (I).

       “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). Here, Appellant did not raise

the claim before the trial court until after trial, when he filed post-sentence

motions raising the matter on January 22, 2016, 210 days after the order

denying suppression was issued. Most importantly, Appellant did not object

when it became clear that the trial court had decided the motion without a

hearing and without issuing a contemporaneous statement to support that

ruling.   While Appellant’s substantive suppression claim was preserved by

the filing of his suppression motion,2 that motion clearly did not raise or

address the procedural claims he makes now with regard to the trial court’s

failure to conform to the dictates of Rule 581. Even assuming that the trial

erred by failing to strictly adhere to Rule 581(E) and (I), 3 Appellant’s failure
____________________________________________


2
  To be absolutely clear, the issue concerning the underlying merit of
Appellant’s suppression claim – the ostensibly unduly suggestive nature of
the photo array – was not waived by his failure to seek reconsideration or
otherwise object to the procedural defects in the court’s treatment of his
suppression motion. However, Appellant has not presented this Court with
any such claims in this appeal.
3
   While we are somewhat troubled by the trial court’s failure to hold a
hearing without it having been expressly waived by the parties, and
although we are even more troubled by the court’s failure to issue a
contemporaneous statement of findings of fact and conclusions of law with
its suppression decision, we expressly decline to determine whether these
actions were clearly erroneous in the context and circumstances of this case.
Moreover, Appellant has not even attempted to demonstrate or argue how
(Footnote Continued Next Page)


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to issue a timely objection, or seek reconsideration of the suppression ruling

on the basis of the trial court’s procedural errors, deprived the trial court of

the opportunity to rectify any potential errors with respect to Rule 581(E)

and (I) in a timely fashion.

      As this Court stated in Fillmore v. Hill, 665 A.2d 512 (Pa. Super.

1995):

      [I]n order to preserve an issue for appellate review, a party
      must make a timely and specific objection at the appropriate
      stage of the proceedings before the trial court. Failure to
      timely object to a basic and fundamental error, such as an
      erroneous jury instruction, will result in waiver of that issue.
      On appeal, the Superior Court will not consider a claim which
      was not called to the trial court's attention at a time when any
      error committed could have been corrected.           The principle
      rationale underlying the waiver rule is that when an error is
      pointed out to the trial court, the court then has an opportunity
      to correct the error. By specifically objecting to any obvious
      error, the trial court can quickly and easily correct the problem
      and prevent the need for a new trial. Additionally, the appellate
      court should not be required to waste judicial resources
      correcting a problem that the trial court could have easily
      corrected if it had been given the opportunity to avoid the
      necessity of granting a new trial.

Hill, 665 A.2d at 515-16 (citations omitted) (emphasis added).

      Accordingly, we conclude that Appellant has waived his first issue by

failing to raise it in the trial court in a timely fashion.


                       _______________________
(Footnote Continued)

he was prejudiced by those decisions if, indeed, such a demonstration is
required. What is clear to us, however, is that the trial court was never
afforded the opportunity to correct such errors in a timely fashion, while
acting under the belief that its actions were permissible under the law.



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     Next, Appellant claims that the trial court erred when it permitted the

Commonwealth to present the testimony of Detective Dawn Mecurio during

his sentencing hearing. Appellant asserts that that the detective’s testimony

was impermissible since she was not a victim in this case.        This claim

concerns the discretionary aspects of Appellant’s sentence.

           Challenges to the discretionary aspects of sentencing do
     not entitle an appellant to review as of right. Commonwealth
     v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
     challenging the discretionary aspects of his sentence must
     invoke this Court's jurisdiction by satisfying a four-part test:

        [W]e conduct a four-part analysis to determine: (1)
        whether appellant has filed a timely notice of appeal, see
        Pa.R.A.P. 902 and 903; (2) whether the issue was properly
        preserved at sentencing or in a motion to reconsider and
        modify sentence, see Pa.R.Crim.P. [720]; (3) whether
        appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
        (4) whether there is a substantial question that the
        sentence appealed from is not appropriate under the
        Sentencing Code, 42 Pa.C.S.A. § 9781(b).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
     2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
     (internal citations omitted).   Objections to the discretionary
     aspects of a sentence are generally waived if they are not raised
     at the sentencing hearing or in a motion to modify the sentence
     imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
     Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

           The determination of what constitutes a substantial
     question must be evaluated on a case-by-case basis.
     Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
     A substantial question exists “only when the appellant advances
     a colorable argument that the sentencing judge's actions were
     either: (1) inconsistent with a specific provision of the
     Sentencing Code; or (2) contrary to the fundamental norms
     which underlie the sentencing process.” Sierra, supra at 912-
     13.



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            As to what constitutes a substantial question, this Court
      does not accept bald assertions of sentencing errors.
      Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
      2006). An appellant must articulate the reasons the sentencing
      court's actions violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

      Here, Appellant filed a timely notice of appeal and preserved his claim

by objecting at the sentencing hearing, and by raising it in a post-sentence

motion. However, he has failed to provide this Court with a Rule 2119(f)

statement in his brief, and he has not set forth any argument in his brief

that this claim presents a substantial question for our review.    When an

appellant “has not included a Rule 2119(f) statement and the appellee has

not objected, this Court may ignore the omission and determine if there is a

substantial question that the sentence imposed was not appropriate….”

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004).

Instantly, the Commonwealth has not objected to Appellant’s failure to

include a Rule 2119(f) statement in his brief, and we determine that

Appellant’s claim presents a substantial question for our review.        See

Commonwealth v. Downing, 990 A.2d 788, 792 (Pa. Super. 2010)

(holding reliance on an improper sentencing factor raises a substantial

question permitting review).    Accordingly, we now turn to the merits of

Appellant’s sentencing claim.

      At Appellant’s sentencing hearing, and following a victim impact

statement of Gloria Wolowski, the Commonwealth called Detective Mecurio

to testify.   Appellant objected, arguing that “she was not a victim in this


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case.”    N.T. Sentencing, 1/12/16, at 8.         The substance of Detective

Mecurio’s testimony was as follows:

            I've been on with the City for over nine years. I've
      interviewed a lot of criminals. Most of them, by the time you
      catch up to them[,] after the fact[, they] show a little bit of
      remorse. In this case that didn't happen. When we interviewed
      [Appellant], weeks later, you know, he referred to these women
      as mother fuckers -- and old mother fuckers, actually. [He
      s]howed no remorse [for] what he did to these women.

            He picked women middle-aged or older. Could have been
      any one of our mothers, grandmothers, sisters. He kind of
      snickered through some of the interview. I just never seen [sic]
      that kind of behavior from anyone that I've interviewed in my
      past; and even later, on [the] jail tape, in jail, months later he
      referred to them as mother fuckers on the jail tape.

            I don't believe that [Appellant] is sorry for what he did;
      and I just hope that you consider today how big of a -- I want to
      say that he's very dangerous to society, and I hope that you
      consider that today, after he displayed this reckless behavior
      over and over and over, again, towards these older women….

Id. at 9-10.

      Appellant asserts that this testimony was not permitted pursuant to 42

Pa.C.S. § 9738, which governs victim impact statements.        That provision

provides, in its entirety, as follows:

      (a) General rule.--Notwithstanding any other statute, rule or
      provision of law to the contrary, in the trial of a defendant
      accused of an offense, including an offense subject to sentence
      under section 9711 (relating to sentencing procedure for murder
      of the first degree), a court shall not order the exclusion of any
      victim of the offense from the trial on the basis that the victim
      may, during the sentencing phase of the proceedings:

         (1) make a victim impact statement or present any victim
         impact information in relation to the sentence to be
         imposed on the defendant; or


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        (2) testify as to the effect of the offense on the victim or
        the family of the victim.

     (b) Definition.--As used in this section, the term “victim” shall
     mean a “victim” as defined in:

        (1) section 103 of the act of November 24, 1998 (P.L. 882,
        No. 111),1 known as the Crime Victims Act; or

        (2) 18 Pa.C.S. § 3001 (relating to definitions).
        1
            18 P.S. § 11.103.

42 Pa.C.S. § 9738.

     “Victim” is defined by 18 P.S. § 11.103 as follows:

     (1) A direct victim.

     (2) A parent or legal guardian of a child who is a direct victim,
     except when the parent or legal guardian of the child is the
     alleged offender.

     (3) A minor child who is a material witness to any of the
     following crimes and offenses under 18 Pa.C.S. (relating to
     crimes and offenses) committed or attempted against a member
     of the child's family:

     Chapter 25 (relating to criminal homicide).

     Section 2702 (relating to aggravated assault).

     Section 3121 (relating to rape).

     (4) A family member of a homicide victim, including stepbrothers
     or stepsisters, stepchildren, stepparents or a fiance, one of
     whom is to be identified to receive communication as provided
     for in this act, except where the family member is the alleged
     offender.

18 P.S. § 11.103.

     Based on these provisions, Appellant contends that:

            As written, the law offers very little room for anyone who
     is not either a direct victim or a family member of the victim to
     testify. The law allows non-victims to offer statements only


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      when they are closely related to a deceased victim, or else the
      minor witness to a crime. It does not permit statements by
      police or investigators.

Appellant’s Brief at 16.

      The Commonwealth argues that 42 Pa.C.S. § 9738 does not serve to

prohibit any testimony, by anyone, at any time. Even if it did, however, the

Commonwealth contends that Detective Mecurio’s testimony was not

presented to the trial court as a victim impact statement, nor did the

Commonwealth claim the detective was a victim.              The Commonwealth

argues that her testimony was nevertheless relevant to the trial court’s

contemplation of “legitimate” considerations “under the Sentencing Code:

[A]ppellant’s demonstrated character and amenability to rehabilitation, and

the   impact   of   [A]ppellant’s   behavior   on   the   community   at   large.”

Commonwealth’s Brief at 26.

      We agree with the Commonwealth. Nothing in our reading of Section

9738 purports to restrict who may testify at sentencing, or at any other

stage of criminal proceedings. To the contrary, the statute dictates that a

court shall not exclude a victim from testifying at trial, on the basis that they

might subsequently make a victim impact statement at sentencing.               42

Pa.C.S. § 9738(a)(1).      Appellant’s interpretation of the statute as placing

restrictions on who may testify at sentencing is irrational.          Moreover,

Appellant has not cited any other legal authority which would serve to

prohibit Detective Mecurio’s testimony.         Accordingly, we conclude that

Appellant’s second claim lacks merit.


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J-S39005-17



     Judgment of sentence affirmed.

     Judge Bowes joins this memorandum.

     Judge Strassburger files a concurring memorandum in which Judge

Bowes joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2017




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