J. S22027/16

                               2016 PA Super 103

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
TABU NAZSHON PHILLIPS,                     :
                                           :
                         Appellant         :     No. 802 MDA 2015

             Appeal from the Judgment of Sentence March 31, 2015
               In the Court of Common Pleas of Dauphin County
               Criminal Division No(s): CP-22-CR-0001621-2012

BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

OPINION BY DUBOW, J.:                                      FILED MAY 19, 2016

        Appellant, Tabu Phillips, appeals from the Judgment of Sentence

entered in the Dauphin County Court of Common Pleas on March 31, 2015.

Following a trial, the jury convicted Appellant of one count of Persons Not to

Possess Firearm and one count of Possessing an Instrument of Crime –

Unlawful Body Armor.1 We hold that: (i) the trial court was not required to

advise Appellant of the applicable sentencing guidelines prior to finding that

Appellant knowingly, voluntarily and intelligently waived his right to counsel;

(ii) having already obtained a valid waiver of counsel, the trial court was not

required to perform a new waiver-of-counsel colloquy absent a substantial

change in circumstances; (iii) Appellant waived his claim that certain out-of-



*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §6105 and 18 Pa.C.S. §907(c) respectively.
J.S22027/16


court statements were inadmissible proof of prior acts under Pa.R.E. 404(b)

when he failed to preserve this claim in the trial court and in his Rule

1925(b) Statement; and (iv) Appellant waived his claim that these out-of-

court statements were irrelevant by failing to develop this claim in the

argument section of his Appellate Brief.        Accordingly, we affirm the

Judgment of Sentence.

                     Factual and Procedural History

      This is Appellant’s second conviction and appeal to this Court for the

same underlying offense.    This Court previously vacated Appellant’s initial

convictions and remanded for a new trial after concluding that the trial court

had failed to elicit a knowing, voluntary and intelligent waiver of counsel

from Appellant before permitting him to proceed pro se in his first trial. See

Commonwealth v. Phillips, 93 A.3d 847, 855 (Pa. Super. 2014). At his

re-trial, Appellant again elected to represent himself pro se. That jury also

convicted Appellant. The facts and procedural history are as follows.

      On December 22, 2011, officers of the Harrisburg City Police

Department responded to a 911 call from a female screaming for help and

stating that someone was trying to kill her. Id. at 849. Officers responded

to a boarding house and followed the sounds of a screaming female to the

second floor, where they encountered Appellant breathing rapidly as he

walked out of a bedroom. Id.




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     In the bedroom that Appellant had just vacated, officers found Jasmine

Matthews (“Matthews”), who was “crying, breathing very hard, and had

blood coming from her nose and mouth.”          Id.   The visibly distraught

Matthews told officers that Appellant had repeatedly struck her with his fists

and with a gun. N.T. Suppression, 11/13/14, at 20-21. Matthews showed

officers the gun Appellant used to strike her, a .32 caliber Colt gray top

action revolver located under the foot of the bed. Phillips, supra at 849.

     Officers discovered Appellant had a warrant out for his arrest, and took

him into custody. Id. While searching Appellant incident to arrest, officers

discovered Appellant was wearing a Kevlar vest with ammunition for a .32

caliber firearm in the pocket. Id. Appellant was charged with one count of

Persons Not to Possess Firearm, one count of Possessing an Instrument of

Crime – Unlawful Body Armor, and one count of Simple Assault.

     As noted above, Appellant represented himself pro se in his first trial.

After a jury convicted him of the two possession charges and acquitted him

of the simple assault, Appellant appealed to this Court alleging, inter alia,

that his waiver of counsel had not been knowing, voluntary and intelligent.

This Court agreed, finding none of the waiver-of-counsel colloquies given by

the trial court satisfied the minimum requirements under Pa.R.Crim.P. 121.

Id. at 852-55. We remanded for a new trial on the possession charges only.

     On October 7, 2014, Appellant filed two motions pro se: (1) a Motion

to Proceed Pro Se citing a disagreement in trial strategy between Appellant



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and his appointed counsel; and (2) a Motion to Suppress challenging the

officer’s warrantless entry into the boarding house and the subsequent

seizure of the firearm discovered therein.

      On November 13, 2014 the Honorable Scott Arthur Evans held a

hearing on both Motions.     At the commencement of the hearing, the trial

court presided over a waiver-of-counsel hearing of Appellant on the record

before granting Appellant’s Motion to Proceed Pro Se and appointing standby

counsel. N.T. Suppression, 11/13/14, at 3-12. The parties then proceeded

with testimony on the Motion to Suppress, which Judge Evans denied at the

close of the hearing.

      A two-day jury trial began on March 11, 2015. Prior to jury selection,

Appellant presented the trial court with a Motion in Limine challenging the

admissibility of (1) Appellant’s prior criminal record, (2) a recording of a

prison phone conversation, and (3) the content of the 911 call from

Matthews. Appellant challenged the 911 call, in which Matthews states “He

is trying to kill me,” as irrelevant and unfairly prejudicial given the absence

of assault charges against Appellant on remand.

      The trial court denied Appellant’s Motion in Limine, and then conducted

a second waiver-of-counsel hearing of Appellant on the record before

proceeding with jury selection and trial.

      The jury convicted Appellant of both possession charges. Judge Evans

subsequently sentenced Appellant to five to ten years of incarceration for



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Persons Not to Possess Firearms, and a consecutive one to four years

sentence for Unlawful Body Armor. Appellant filed a pro se post-sentence

motion on April 8, 2015. The next day, counsel entered an appearance on

behalf of Appellant and filed an amended post-sentence motion. The court

denied the Motion on April 13, 2015.      Appellant timely appealed.      Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

                         Issues Raised on Appeal

     Appellant raised the following alleged errors in his counseled Rule

1925(b) Statement:

     1. [The trial court] erred by failing to conduct a complete and
     thorough, on-the-record colloquy of Appellant before allowing
     him to proceed to his suppression hearing and trial pro se in
     violation of Pa.R.Crim.P. Rule 121, resulting in an unknowing,
     involuntary, and unintelligent waiver of his right to counsel
     under the Fifth and Sixth Amendments to the United States
     Constitution and Articles I and V, Section 9 of the Pennsylvania
     Constitution.

     2. [The trial court] erred in admitting evidence of the 911 call
     where such was irrelevant to the underlying charges, and where
     any probative value was outweighed by the danger of unfair
     prejudice, confusing the issues, and misleading the jury.

     3. [The trial court] erred in admitting the victim's statement to
     police where the statement constituted inadmissible hearsay not
     subject to any exception.

     4. [The trial court] erred in denying Appellant's Post-Sentence
     Motion where his sentence is excessive and unreasonable and
     constitutes too severe a punishment in light of the gravity of the
     offense, Appellant's rehabilitative needs, and what is needed to
     protect the public.

Appellant’s Statement of Errors Complained of Upon Appeal Pursuant to

PA.R.A.P. 1925(b).


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      Appellant’s Statement of Questions Presented in his counseled Brief to

this Court raises two issues on appeal:

      a. Did not the lower court fail to insure that [Appellant’s] waiver
      of his right to counsel was knowing, voluntary, and intelligent
      when it failed to conduct a waiver-of-counsel colloquy at a
      critical stage of the proceedings and when the two colloquies
      that it did conduct were insufficient under the standards of
      Pa.R.Crim.P. 121(A)(2)?

      b. Did the trial court err in denying [Appellant’s] Motion In
      Limine to exclude as irrelevant certain out-of-court declarations
      of the alleged victim of the simple assault when the defendant
      had been acquitted of the simple assault at the first jury trial and
      when it was unnecessary for the Commonwealth at the second
      trial to introduce a detailed account of the alleged assault?

Appellant’s Brief at 5 (capitalization omitted).

                         Waiver of Counsel Claims

      Although stated as a single question in his brief to this Court,

Appellant’s waiver-of-counsel claim consists of two distinct arguments. First,

Appellant avers that the trial court was required to advise him of the

applicable sentencing guidelines prior to finding Appellant’s waiver of counsel

was knowing, voluntary and intelligent.      Second, Appellant avers that the

trial court was required to conduct a new waiver-of-counsel colloquy prior to

hearing Appellant’s Motion in Limine.

      The right to counsel and the corresponding right to self-representation

are deeply entrenched in both state and federal law. As our Supreme Court

has made clear:

      [i]t is . . . firmly established that an accused has a constitutional
      right to counsel during trial. While an accused may waive his


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        constitutional right, such a waiver must be the free and
        unconstrained choice of its maker, and also must be made
        knowingly and intelligently. To be a knowing and intelligent
        waiver defendant must be aware of both the right and of the
        risks of forfeiting that right.

Commonwealth v. Tyler, 360 A.2d 617, 620 (Pa. 1976) (citations and

quotations omitted).     Deprivation of the right to counsel, or the right to

waive counsel, can never be harmless.        Commonwealth v. Payson, 723

A.2d 695, 699–700 (Pa. Super. 1999). Moreover,

        the presumption must always be against the waiver of a
        constitutional right. Nor can waiver be presumed where the
        record is silent. The record must show, or there must be an
        allegation and evidence which shows, that an accused was
        offered counsel but intelligently and understandingly rejected the
        offer. Anything less is not waiver.

Commonwealth v. Monica, 597 A.2d 600, 603 (Pa. 1991).

        Pennsylvania Rule of Criminal Procedure 121 outlines additional

requirements for a valid waiver-of-counsel colloquy. It states, in pertinent

part:

        Rule 121. Waiver of Counsel

        (A) Generally.

        (1) The defendant may waive the right to be represented by
        counsel.

        (2) To ensure that the defendant's waiver of the right to counsel
        is knowing, voluntary, and intelligent, the judge or issuing
        authority, at a minimum, shall elicit the following information
        from the defendant:

             (a) that the defendant understands that he ... has
             the right to be represented by counsel, and the right
             to have free counsel appointed if the defendant is
             indigent;


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           (b) that the defendant understands the nature of the
           charges against the defendant and the elements of
           each of those charges;

           (c) that the defendant is aware of the permissible
           range of sentences and/or fines for the offenses
           charged;

           (d) that the defendant understands that if he ...
           waives the right to counsel, the defendant will still be
           bound by all the normal rules of procedure and that
           counsel would be familiar with these rules;

           (e) that the defendant understands that there are
           possible defenses to these charges that counsel
           might be aware of, and if these defenses are not
           raised at trial, they may be lost permanently; and

           (f) that the defendant understands that, in addition
           to defenses, the defendant has many rights that, if
           not timely asserted, may be lost permanently; and
           that if errors occur and are not timely objected to, or
           otherwise timely raised by the defendant, these
           errors may be lost permanently.

                                    ***

     (C) Proceedings Before a Judge. When the defendant seeks
     to waive the right to counsel after the preliminary hearing, the
     judge shall ascertain from the defendant, on the record, whether
     this is a knowing, voluntary, and intelligent waiver of counsel.

Pa.R.Crim.P. 121(A)(1)-(2)(a)-(f), (C) (emphasis in original).        Finally, “a

waiver colloquy must, of course, always contain a clear demonstration of the

defendant's ability to understand the questions posed to him during the

colloquy.” Commonwealth v. McDonough, 812 A.2d 504, 507 n. 1 (Pa.

2002).

     With these requirements in mind, we now turn to Appellant’s waiver of

counsel claims.


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             Adequacy of the November Waiver-of-Counsel Colloquy

         During the November 13, 2014 waiver-of-counsel colloquy, Appellant

answered        questions   about   his   age,   educational   background,   and

comprehension skills.       N.T. Suppression, 11/13/14, at 4.     The trial court

confirmed that Appellant understood that he had a right to counsel, including

the right to be appointed counsel free of charge in the event he could not

afford an attorney. Id. The trial court confirmed that Appellant understood

the nature of the charges against him, going over both of the charges then

pending as well as the elements of each offense.               Id. at 4-5, 9-11.

Appellant acknowledged that he understood the maximum possible penalty

for each of the offenses charged.            Id. at 5.    Appellant indicated he

understood he would be held to the same procedural and evidentiary rules

as an attorney, and that an attorney would “be more familiar” with those

rules.    Id.    In addition, Appellant acknowledged he might have “possible

defenses that an attorney may be aware of that if not raised at trial [could

be lost] permanently.”       Id. at 6.    Finally, Appellant stated he understood

that he had many rights that he would have to assert in a timely manner or

avoid losing permanently, including the right to appeal errors at trial. Id.

         In spite of this extensive inquiry, Appellant now argues that the

waiver-of-counsel colloquies conducted in the trial court did not comply with

the minimum standards set forth in Pa.R.Crim.P. 121(A)(2) and that

therefore Appellant’s waiver of counsel was not knowing, voluntary and



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intelligent.    In    particular,   the    Appellant    argues     that   Pa.R.Crim.P.

121(A)(2)(c), which requires the trial court to advise potential pro se

defendants of the “permissible range of sentences,” also required the trial

court to advise Appellant of the sentencing guidelines applicable to his case.

      Addressing Appellant’s claim requires us to interpret the meaning of

Rule 121. The interpretation of procedural rules is a question of law, so our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Dowling, 959 A.2d 910, 913 (Pa. 2008).

      The rules for interpreting a Rule of Criminal Procedure in this Court are

well established:

      When we interpret our Rules of Criminal Procedure, we employ
      the same principles employed in the interpretation of statutes.
      Pa.R.Crim.P. 101(C); Commonwealth v. Cooper, 611 Pa. 437,
      27 A.3d 994, 1003 (2011). The object of interpretation of the
      criminal rules “is to ascertain and effectuate the intention” of our
      Supreme Court, as the rule-issuing body. “Every [rule] shall be
      construed, if possible, to give effect to all its provisions.” 1
      Pa.C.S. § 1921(a). “When the words of a [rule] are clear and
      free from all ambiguity, the letter of it is not to be disregarded
      under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b).

Commonwealth v. Noel, 53 A.3d 848, 855 (Pa. Super. 2012).

      As the language of Pa.R.Crim.P. 121 is “clear and free from all

ambiguity,     we    need   not   delve    further   into   the   applicable   rules   of

construction.” Id. at 855-56.

      Rule 121, by its plain language, requires the trial court to determine

“that the defendant is aware of the permissible range of sentences and/or

fines for the offenses charged[.]”           Pa.R.Crim.P. 121(A)(2)(c) (emphasis


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added). The plain language of Rule 121 does not mention that the trial court

must advise the defendant of the applicable sentencing guidelines.         Our

Supreme Court is aware of the existence of sentencing guidelines, and if it

wished to include the sentencing guidelines in the requirements under Rule

121, it was free to do so. The Supreme Court did not.

      We, thus, conclude that under the plain language of Rule 121, the trial

court was not required to advise Appellant of the applicable sentencing

guidelines prior to finding that Appellant had knowingly, voluntarily and

intelligently waived his right to counsel. Therefore, Appellant is not entitled

to relief on this claim.

                     Duration of a Valid Waiver of Counsel

      Appellant next argues that the Motion in Limine was a “critical stage,”

and therefore the lower court erred in hearing Appellant’s Motion without

first conducting a waiver-of-counsel colloquy.    Even assuming, arguendo,

that the Motion in Limine was a “critical stage,” we have already held,

supra, that the trial court previously elicited a knowing, intelligent and

voluntary waiver of counsel from Appellant at the November 13, 2014

hearing on the Motion to Suppress.       Accordingly, the relevant inquiry is

whether, and under what circumstances, the trial court has a duty to repeat

the waiver-of-counsel colloquy.

      After a thorough review of the case law in this Commonwealth, we

conclude this is a case of first impression.        Although our Opinion in



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Commonwealth v. Baker, 464 A.2d 496 (Pa. Super. 1983), refers in dicta

to the need for a thorough waiver-of-counsel colloquy “at every critical stage

of a criminal proceeding,” this Court in Baker expressly declined to decide

the question of whether a waiver-of-counsel colloquy must be repeated at

every critical stage of the prosecution.2 Baker, 464 A.2d at 500. Although

the appellant in Baker raised the issue of whether the trial court was

required to re-colloquy the appellant prior to sentencing, this Court found

the initial waiver colloquy constitutionally inadequate, and granted relief

without addressing the issue of re-colloquy.

      Although our research yielded no controlling case law in Pennsylvania

on the issue of the need to repeat the colloquy, our survey of our sister

states and federal circuit courts shows that every jurisdiction but one has

held that a valid waiver of counsel is presumed to remain effective

throughout any subsequent trial proceedings absent either a revocation by

the defendant or a substantial change in circumstances.3


2
  Moreover, none of the cases relied upon by this Court in Phillips, supra or
Baker holds that a waiver-of-counsel colloquy must be repeated at every
critical stage of the prosecution. Instead, they highlight the fact that the
question of waiver may arise for the first time at various stages, and that
when it arises, if ever, the court must conduct a thorough waiver-of-counsel
colloquy. See Phillips, 93 A.3d at 854; Baker, 464 A.2d at 499.
3
  Importantly, the only jurisdiction to address the issue and hold otherwise
did so on the basis of a state statute that explicitly requires re-colloquy at
each subsequent stage, and not on constitutional right-to-counsel grounds.
See Meuhleman v. State, 3 So.3d 1149, 1156 (Fla. 2009) (relying on Fla.
R.Crim. P. 3.111(d)(5) (2003)).



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      This “ongoing waiver” rule was first adopted by the Eighth Circuit in

Davis v. United States, 226 F.2d 834, 840 (8th Cir. 1955) (finding the trial

judge was “entirely justified in taking [the appellant’s] prior refusal of

counsel as ‘definite’” and still valid at a later proceeding, and reasoning that,

absent some change in circumstance, it would be “mere ceremony” and

“neither good law nor good sense” to require the trial court to re-colloquy a

defendant at each subsequent proceeding).         Since Davis, every federal

Circuit Court that has considered the issue has adopted some version of the

ongoing waiver rule announced in Davis.         See, e.g., United States v.

Unger, 915 F.2d 759, 762 (1st Cir. 1990) (holding that, in the absence of

intervening events, a defendant's earlier waiver was still in force at the

sentencing hearing); United States v. McBride, 362 F.3d 360, 367 (6th

Cir. 2004) (adopting “the rule set forth above by our sister circuits that a

defendant's waiver of counsel at trial carries over to subsequent proceedings

absent a substantial change in circumstances”); United States v. Fazzini,

871 F.2d 635, 643 (7th Cir. 1989) (holding that “[o]nce the defendant has

knowingly and intelligently waived his right to counsel, only a substantial

change in circumstances will require the district court to inquire whether the

defendant wishes to revoke his earlier waiver.”); Panagos v. United

States, 324 F.2d 764, 765 (10th Cir. 1963) (denying motion to vacate

sentence where the record contained “no facts or circumstances which would

prevent the initial waiver of the right to counsel, knowingly and intelligently



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made, from extending to and being fully effective at the time of

sentencing”).

      The Ninth Circuit has pointed out that certain acts by the defendant

may trigger the need for a re-colloquy. In Arnold v. United States, 414

F.2d 1056, (9th Cir. 1968), the Ninth Circuit Court of Appeals found that,

although the Sixth Amendment right to counsel applies at each critical stage

of the prosecution, “it does not follow that once the assistance of counsel in

court has been competently waived, a new waiver must be obtained at every

subsequent court appearance by the defendant.”       Id. at 1059. The Court

then considered whether the defendant may have triggered the need for a

re-colloquy by expressly requesting the appointment of counsel or indicating

in the initial waiver that he wanted to limit that waiver to a particular stage

of the proceedings.    Id.   The Ninth Circuit found the defendant had not

triggered the need for a new colloquy, and therefore his valid waiver of

counsel prior to pleading guilty remained valid at sentencing and at re-

sentencing some six months later. Id. at 1057.

      Similar to the Federal Courts, nearly every state Supreme Court to

consider the issue has adopted the ongoing waiver rule. See, e.g., State v.

Mathis, 159 N.W.2d 729, 732 (Wis. 1968) (holding that a valid waiver

“continues through the proceedings until, by some act of the defendant, it is

withdrawn or the presumption of continuance interrupted”); State v. Harig,

218 N.W.2d 884, 890-91 (Neb. 1974), reaffirmed, State v. Tiff, 260 N.W.2d



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296, 303 (Neb. 1977) (adopting the reasoning of the Circuit Courts in Davis

and Panagos, supra); State v. Steed, 506 P.2d 1031, 1033 (Ariz. 1977)

(holding that “[a] defendant's election, once properly made, continues

throughout the trial and sentencing”); State v. Carpenter, 390 So.2d 1296,

1299 (La. 1980) (adopting the reasoning of the Ninth Circuit in Arnold,

supra); People v. Baker, 440 N.E.2d 856, 860-61 (Ill. 1982) (“In the

absence of some circumstances indicating that the waiver is limited, or other

facts which would give the trial court reason to conduct a further inquiry, we

hold . . . that a competent waiver of counsel at arraignment by a defendant

who is advised that he has a constitutional right to counsel at all stages of

the proceedings is operative at the time of sentencing.”); Lay v. State, 179

P.3d 615, 620 (Okla. 2008) (finding defendant in a capital murder trial

properly waived his right to counsel during the guilt phase, and that this

waiver remained valid throughout the trial and sentencing phases),

abrogated on other grounds by Harmon v. State, 248 P.3d 918 (Okla.

2011).

      Consistent with the weight of authority, we now hold that once a

defendant has made a competent waiver of counsel, that waiver remains in

effect through all subsequent proceedings in that case absent a substantial

change in circumstances.




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      Having adopted this rule, we now consider whether some substantial

change is present here.4     There is nothing in the record to suggest any

change in circumstances beyond the passage of a few months’ time.

Moreover, there is no evidence that suggests Appellant intended to limit his

waiver of counsel to the suppression hearing, or that Appellant requested

the re-appointment of counsel. Absent any of these triggers, the trial court

was not required to colloquy Appellant again prior to hearing Appellant’s

Motion in Limine on March 11, 2015. Therefore, Appellant is not entitled to

relief on this claim.

             Admissibility of Out-of-Court Statements Claims

      Appellant    next   challenges    the     admission   of   two   out-of-court

statements made by Matthews to 911 and to the responding police officers.

Appellant’s challenge to the admission of the statements includes two

distinct parts.5 First, Appellant argues that the out-of-court statements were

inadmissible evidence of prior bad acts. Second, Appellant argues the out-

of-court statements were irrelevant. We address and deny each argument

in turn.

      The out-of-court statements at issue were those of Matthews, who was

allegedly beaten by Appellant with the gun and who initially summoned

4
  We expressly decline to define all the facts under which we would find a
substantial change in circumstances.
5
  Appellant’s Brief expressly abandons any hearsay objection raised at trial
or in his Rule 1925(b) Statement. See Appellant’s Brief at 30.



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police to the scene. She did not testify at trial. Instead, the Commonwealth

brought in two different out-of-court statements made by Matthews through

other witnesses.

      First, the Commonwealth played a 911 call in which Matthews asked

for help and told the dispatcher “he is trying to kill me.” N.T. Trial, 3/12/15,

at 52-53.     Appellant objected to the introduction of this evidence as

irrelevant and unfairly prejudicial in the pre-trial Motion in Limine discussed

above.

      Second, one of the Commonwealth’s witnesses testified to statements

Matthews made to the responding officers. N.T. Trial, 3/12/15, at 69-71. In

her statements on scene, Matthews told officers that Appellant had struck

her about her face and abdomen with his fists and with a gun. Id. When

asked about the gun, Matthews directed officers to the firearm recovered

from under the bed.     Id.   Appellant made two hearsay objections to this

testimony, which the trial court overruled on the grounds that the

statements were admissible excited utterances. Id.

      In the argument portion of Appellant’s Brief to this Court, he avers

that the 911 call and statements made at the scene of Appellant’s arrest

were inadmissible evidence of prior bad acts under Pa.R.E. 404(b). We find

Appellant waived this argument as to both statements.

      Our Pennsylvania Rules of Appellate Procedure and our case law set

forth the well-established requirements for preserving a claim for appellate



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review.    “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).    This requirement

bars an appellant from raising “a new and different theory of relief” for the

first time on appeal. Commonwealth v. York, 465 A.2d 1028, 1032 (Pa.

Super. 1983).

      Similarly, our Supreme Court has made it clear that “[a]ny issues not

raised    in   a   [Rule]   1925(b)   statement   will   be   deemed   waived.”

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (citation and

quotation omitted).         See also Pa.R.A.P. 1925(b)(4)(vii) (“Issues not

included in the Statement . . . are waived.”). Moreover, the issues raised

must be identified with sufficient particularity; a Rule 1925(b) statement

“which is too vague to allow the court to identify the issues raised on appeal

is the functional equivalent of no [Rule 1925(b)] Statement at all.”

Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006).

      In the instant case, Appellant’s arguments to the trial court were

limited to objections on the basis of relevance and hearsay.        At no point

before, during, or after trial did Appellant object on the ground that the

evidence was inadmissible as prior bad acts. Nor did Appellant raise this bad

acts argument in his Rule 1925(b) Statement, which again was limited to

alleging error on the grounds the testimony was irrelevant and/or hearsay.

Because Appellant is improperly attempting to raise a new theory of relief for




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the first time on appeal, we conclude Appellant waived this prior acts claim.

See Pa.R.A.P. 302(a); York, supra.

      Appellant’s Statement of Questions Involved also avers that the out-

of-court statements were not relevant on remand given that the initial jury

acquitted Appellant of Simple Assault. The argument section of Appellant’s

counseled Brief to this Court, however, lacks any discussion of this relevance

claim.   Instead, the argument section of Appellant’s Brief sets forth, in

substance, only a prior bad acts argument.     Accordingly, Appellant waived

this relevance claim.

      This Court will address only those issues properly presented and

developed in an appellant’s brief as required by our Rules of Appellate

Procedure, Pa.R.A.P. 2101-2119. “Appellate arguments which fail to adhere

to these rules may be considered waived, and arguments which are not

appropriately developed are waived.” Coulter, supra at 1088 (citation and

quotation omitted). Thus, issues raised in a Brief’s Statement of Questions

Involved but not developed in the Brief’s argument section will be deemed

waived. Harkins v. Calumet Realty Co., 614 A.2d 699, 703 (Pa. Super.

1992).

      Appellant’s Brief does not refer to Pennsylvania Rule of Evidence 401,

defining the test for whether evidence is relevant, or to Rule 402, which

governs the admissibility of relevant evidence generally. Nor does Appellant

cite to any cases which interpret or apply our relevance standards outside of



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those cases that consider whether evidence of prior bad acts may be

excluded as unfairly prejudicial.

      In fact, Appellant expressly concedes that the out-of-court statements

had at least “minimal relevance,” but argues that the evidence should have

been excluded as improper evidence of a prior bad act under Rule 404(b).

Appellant’s Brief at 32. As discussed supra, Appellant failed to preserve any

prior bad acts claim.     He cannot now resurrect that claim on appeal by

calling it something else.   Nor can he preserve a relevance argument in a

brief that only discusses the evidence’s admissibility as a prior bad act. See

Harkings, 614 A.2d at 703.          Therefore, we find Appellant waived this

relevance claim.

                                    Conclusion

      Having found Appellant waived two of his claims and is not entitled to

relief on the merits of his remaining claims, we affirm the trial court’s

Judgment of Sentence.

      Judgment of Sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/19/2016




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