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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

FRANK J. BROWN

                            Appellant                 No. 2098 EDA 2013


             Appeal from the Judgment of Sentence March 18, 2010
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009516-2008


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED JANUARY 09, 2015

        Frank J. Brown appeals, nunc pro tunc, from the judgment of sentence

imposed by the Court of Common Pleas of Philadelphia County, following a

waiver trial. We affirm.

        The trial court summarized the facts of this matter as follows:

        On December 18, 2007, Kathleen Kirchner (victim) and Barbara
        Kirchner (victim, 91 years-old) were returning to Barbara’s home
        around 10 p.m.; Kathleen double-parked to allow Barbara to
        easily enter her home. As Kathleen began to escort Barbara up
        the front steps, [Brown] came up from behind and held a gun to
        Kathleen’s neck and demanded cash. With the gun embedded in
        her neck, Kathleen managed to turn over her wallet filled with
        cash to [Brown]. Kathleen also went into Barbara’s purse and
        retrieved $500.00 in cash and handed it to [Brown]. After taking
        the money, [Brown] ordered both to lie down in street or they


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        would be shot. When Kathleen refused, [Brown] fled the scene
        and ran down the street.

Trial Court Opinion, 12/17/13, at 2.

        At trial, Brown testified on his own behalf and offered an alibi defense.

He stated he was working in South Carolina at a satellite television company

on the date the crimes took place in Philadelphia.             Although Brown

established his employment through pay stubs and time sheets, the

company indicated that Brown was not working at the company from

December 14, 2007 through December 22, 2007.               Brown also had two

family members offer testimony that he was employed with the same

company in South Carolina, but neither could rule out the possibility that

Brown was present in Philadelphia on the day in question.

        On February 1, 2010, the court found Brown guilty of two counts each

of the following crimes: aggravated assault,1 robbery,2 firearms not to be

carried without a license,3 unlawful restraint,4 theft by unlawful taking,5

receiving stolen property,6 terroristic threats,7 simple assault,8 recklessly
____________________________________________


1
    18 Pa.C.S. § 2702(a).
2
    18 Pa.C.S. § 3701(a)(1)(ii).
3
    18 Pa.C.S. § 6106(a)(1).
4
    18 Pa.C.S. § 2902(a)(1).
5
    18 Pa.C.S. § 3921(a).
6
    18 Pa.C.S. § 3925(a).




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endangering another person,9 and false imprisonment.10            The court also

found Brown guilty of one count each of carrying firearms in public 11 and

possession of an instrument of a crime.12         On March 18, 2010, the court

sentenced Brown to an aggregate term of 7 to 14 years’ incarceration,

followed by a term of 15 years’ reporting probation.        The court appointed

counsel to represent Brown on direct appeal; however, counsel failed to file

an appellate brief. As a result, this Court dismissed Brown’s appeal. On July

11, 2013, the trial court reinstated Brown’s direct appeal rights nunc pro

tunc. This timely appeal followed.

        On appeal, Brown presents the following issues for our review:

        1. Did the trial court commit reversible error when the court
           elicited testimony that Brown was wanted by the police for
           other crimes?

        2. Did the trial court commit reversible error when the court
           conducted an extensive cross-examination of Brown when he
           took the stand at trial including eliciting testimony that he did
           not file taxes and was fired from his job?


                       _______________________
(Footnote Continued)
7
    18 Pa.C.S. § 2706(a)(1).
8
    18 Pa.C.S. § 2701(a).
9
    18 Pa.C.S. § 2705.
10
     18 Pa.C.S. § 2903(a).
11
     18 Pa.C.S. § 1608.
12
     18 Pa.C.S. § 907(a).



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       3. Did the prosecution commit a Brady violation when the
          prosecution failed to provide the defense a copy of the line-up
          photograph prior to trial?

       4. Did the trial court abuse its discretion when the court denied
          Brown’s motion for acquittal because there was insufficient
          evidence to convict Brown of aggravated assault against
          Kathleen or Barbara Kirchner?

       5. Did the trial court abuse its discretion when the court denied
          the verdict in this case was against the weight of the
          evidence?

Brief of the Appellant, at 5.

       In his first issue, Brown argues that the questions asked by the

Honorable Peter F. Rogers to Detective Timothy Tague elicited information in
                                    13
violation of Pa.R.E. 404(b).             Brown bases his claim on the following

exchange:

       THE COURT: All right. When you say a candidate is a prime
       suspect, how did that get developed?

       DETECTIVE: From earlier contact with [Brown].

       THE COURT: Earlier when?

       DEFENSE COUNSEL: I’m going to object.

       THE COURT: Objection is noted. Overruled.

       DETECTIVE: Prior arrest, Your Honor, which occurred right
       across the street from this instance.

N.T. Trial, 2/1/10, at 38.


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13
   Rule 404(b) states: Evidence of a crime, wrong, or other act is not
admissible to prove a person's character in order to show that on a
particular occasion the person acted in accordance with the character.
Pa.R.E. 404(b).



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       The Commonwealth contends, and Brown concedes, that Brown

waived this claim because he failed to object to the evidence upon its

admission. However, Brown, relying on Commonwealth v. Hammer, 494

A.2d 1054 (Pa. 1985),14 urges this Court to overlook the waiver doctrine and

address the merits of his claim on appeal.               We find Brown’s reliance on

Hammer misplaced and his claim waived.

       To preserve a claim of error for appellate review, a party must make a

specific objection to the alleged error before the trial court in a timely

fashion and at the appropriate stage of the proceedings; failure to raise an

objection    results    in    waiver    of     the    underlying    issue   on     appeal.

Commonwealth           v.    Charleston,       16    A.3d   505    (Pa.   Super.   2011).

Additionally, a defendant’s failure to raise a contemporaneous objection to

evidence at trial waives such a claim on appeal. See Pa.R.Crim.P. 302(a);

see also Commonwealth v. Bryant, 855 A.2d 726, 741 (Pa. 2004) (failure

to raise contemporaneous objection to evidence at trial waives claim on

appeal).    Here, Brown concedes he did not object to the complained of

testimony. Additionally, our Supreme Court specifically overruled Hammer,

indicating that, “generally, the appellate courts will not overlook defense

counsel’s failure to object and, with regard thereto, an appellant may
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14
   In Hammer, our Supreme Court concluded that justice would not be
served by strictly enforcing the waiver doctrine where the record revealed
that objection by counsel would be meaningless and, in fact, intensifies
judicial animosity.



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present claims of ineffective assistance of counsel in a PCRA petition.”

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). Accordingly, Brown’s

claim is waived and we cannot address it.

      In his second issue, Brown argues that the court erred when Judge

Rogers elicited testimony from Brown that he did not file taxes and was fired

from his job.    Our Supreme Court has described the role of a judge as

follows:

      Witnesses should be interrogated by the judge only when he
      conceives the interest of justice so requires. It is better to
      permit counsel to bring out the evidence and clear up disputed
      points on cross-examination unaided by the court; but where an
      important fact is indefinite or a disputed point needs to be
      clarified, the court may see that it is done by taking part in the
      examination. . . . Judges should refrain from extended
      examination of witnesses; they should not, during the trial,
      indicate an opinion on the merits, a doubt as to the witnesses’
      credibility, or do anything to indicate a leaning to one side or the
      other, without explaining to the jury that all these matters are
      for them.

Commonwealth v. Seabrook, 379 A.2d 564, 567 (Pa. 1977) (citations and

quotations omitted).    A new trial is required “only when the trial court’s

questioning is prejudicial, that is when it is of such nature or substance or

delivered in such a manner that it may be reasonably be said to have

deprived the defendant of a fair and impartial trial.”    Commonwealth v.

Manuel, 844 A.2d 1, 9 (Pa. Super. 2004).

      Our review of the record shows that Judge Rogers’ questioning was not

prejudicial.   Manuel, supra. Rather, the purpose of his questions was to

clarify Brown’s employment status as it related to his alibi defense.        N.T.


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Trial, 2/1/10, at 140-60. To the extent Brown felt Judge Rogers’ questioning

was protracted, we disagree and highlight that this was a bench trial so

there was no jury to mislead. See Seabrook, supra. Accordingly, Brown is

not entitled to a new trial.

        In his third issue, Brown argues that the Commonwealth’s failure to

provide a copy of the photograph of the pretrial lineup constituted a Brady15

violation. In Brady, the Supreme Court of the United States held that “the

suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the

prosecution.”     Brady, 373 U.S. at 87.         A Brady violation is comprised of

three elements:         (1) suppression by the prosecution, (2) of either

exculpatory or impeachment evidence favorable to the defendant, and (3)

resulting prejudice of the defendant. Commonwealth v. Paddy, 800 A.2d

294, 305 (Pa. 2002).

        Brown’s claim is meritless because the Commonwealth introduced the

photograph of the pretrial lineup at trial.        N.T. Trial, 2/1/10, at 4-5; see

Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003) (Brady

claim meritless when evidence disclosed during trial).         Thus, Brown is not

entitled to relief.


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15
     Brady v. Maryland, 373 U.S. 83 (1963).



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      In his fourth issue, Brown challenges the sufficiency of the evidence

sustaining his convictions for aggravated assault against Kathleen and

Barbara.   Our standard of review for sufficiency of the evidence claims is

well settled:

      We must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail. The
      evidence established at trial need not preclude every possibility
      of innocence and the fact-finder is free to believe all, part, or
      none of the evidence presented. It is not within the province of
      this Court to re-weigh the evidence and substitute our judgment
      for that of the fact-finder. The Commonwealth’s burden may be
      met by wholly circumstantial evidence and any doubt about the
      defendant’s guilt is to be resolved by the fact finder unless the
      evidence is so weak and inconclusive that, as a matter of law, no
      probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citations

omitted). Additionally,

      A person may be convicted of aggravated assault graded as a
      first-degree felony if he attempts to cause serious bodily injury
      to another, or causes such injury intentionally, knowingly or
      recklessly under circumstances manifesting extreme indifference
      to the value of human life. “Serious bodily injury” has been
      defined as [b]odily injury which creates a substantial risk of
      death or which causes serious, permanent disfigurement, or
      protracted loss or impairment of the function of any bodily
      member or organ.         For aggravated assault purposes, an
      “attempt” is found where an accused who possesses the
      required, specific intent acts in a manner which constitutes a
      substantial step toward perpetrating a serious bodily injury upon
      another.     An intent ordinarily must be proven through


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     circumstantial evidence and inferred from acts, conduct or
     attendant circumstances.

Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (en banc)

(citations and quotations omitted).     In Fortune, this Court found the

evidence sufficient to sustain a conviction for aggravated assault where, in

the course of a robbery, the defendant “appeared before the victim without

warning, pointed a gun at the middle of her forehead, demanded her keys,

and threatened to ‘blow [her] head off’ if she did not comply.”     Fortune,

supra at 987.

     In the case sub judice, Brown approached the women as Kathleen was

assisting Barbara, who is elderly and infirm, up the steps.      Brown then

pressed a gun to Kathleen’s neck, and demanded cash from both women

saying, “If you don’t give me your money, I’m going to blow your fucking

head off.”   N.T. Trial, 2/10/10, at 62-63.   When Barbara verbally resisted

giving up her money, Kathleen told her to “be quiet. He’s got a gun,” N.T.

2/10/10, at 71, indicating that Brown’s explicit threat included both women.

Brown kept the gun against Kathleen’s neck for the duration of the

encounter.    After Kathleen gave Brown their money, Brown ordered both

women to lie in the street, threatening to shoot them if they did not comply.

     Given the similarity in facts, we find Fortune dispositive, and conclude

that the trial court properly determined that the evidence was sufficient to

support a guilty verdict for the charges of aggravated assault against

Kathleen and Barbara.     Although Brown may not have directly addressed

Barbara, his threat to “blow your head off” was directed at both women. In

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addition, Kathleen was holding Barbara by the arm when Brown pressed the

gun into her neck.   Had Brown fired his gun, Barbara was well within the

range of a bullet. Because Brown took a substantial step towards seriously

injuring both women, no relief is due.

      Lastly, we address Brown’s challenge to the weight of the evidence

supporting the verdict. Brown argues that the verdict is against the weight

of the evidence because the Commonwealth failed to prove beyond a

reasonable doubt that he was the assailant on the night in question.         Our

standard of review of a weight of the evidence claim is as follows:

      The finder of fact is the exclusive judge of the weight of the
      evidence as the fact finder is free to believe all, part, or none of
      the evidence presented and determines the credibility of the
      witnesses. As an appellate court, we cannot substitute our
      judgment for that of the finder of fact. Therefore, we will
      reverse a jury’s verdict and grant a new trial only where the
      verdict is so contrary to the evidence as to shock one’s sense of
      justice. Our appellate courts have repeatedly emphasized that
      “[o]ne of the least assailable reasons for granting or denying a
      new trial is the lower court’s conviction that the verdict was or
      was not against the weight of the evidence.”

      Furthermore,

         Where the trial court has ruled on the weight claim below,
         an appellate court’s role is not to consider the underlying
         question of whether the verdict is against the weight of the
         evidence. Rather, appellate review is limited to whether
         the trial court palpably abused its discretion in ruling on
         the weight claim.

Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)

(citations omitted). “A motion for a new trial on the grounds that the verdict

is contrary to the weight of the evidence[] concedes that there is sufficient


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evidence to sustain the verdict[.]”     Commonwealth v. Brown, 48 A.3d

426, 431-32 (Pa. Super. 2012).

     Here, Kathleen provided a detailed account to the police regarding the

events of the night in question.   Kathleen also positively identified Brown

from a photo array and in court.      In addition, Brown’s alibi defense failed

because he could not establish that he was working in South Carolina on the

night in question. Further, no witness could verify that Brown was, or was

not, in South Carolina on the date the robbery occurred.        Based on this

evidence, the trial court concluded that the Commonwealth proved beyond a

reasonable doubt that Brown was the assailant on the night in question, and

therefore the verdict was not against the weight of the evidence. Upon our

review, we ascertain no abuse of discretion by the trial court        Rabold,

supra.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2015




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