J-S08017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

DAVID M. KING,

                          Appellant                    No. 789 WDA 2017


        Appeal from the Judgment of Sentence entered May 1, 2017,
             in the Court of Common Pleas of Cambria County,
           Criminal Division, at No(s): CP-11-CR-0000233-2015.


BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                             FILED APRIL 5, 2018

      David M. King appeals from the judgment of sentence imposed after a

jury convicted him of multiple sex crimes. After careful review, we affirm.

      The pertinent facts and procedural history are as follows.              On

December 29, 2014, the Commonwealth charged King with 58 crimes arising

out of illegal sex acts that he allegedly perpetrated upon his minor son over

a period of ten years. Prior to trial, King filed multiple motions, including a

motion for a psychological examination of the victim, a motion in limine to

exclude his prior bad acts, and a motion for a change of venue. The trial

court denied the first, denied the second as premature, and denied the third

without prejudice to King’s ability to re-raise it during jury selection.

      The trial court denied the Commonwealth’s attempt to supplement its

expert’s report on the eve of trial, and after the parties had already selected



*Former Justice specially assigned to the Superior Court.
J-S08017-18



a jury.   The Commonwealth filed an interlocutory appeal to this Court, in

which it certified that the trial court’s denial of the motion substantially

handicapped its ability to prosecute King. In an unpublished memorandum

filed on December 13, 2016, this Court affirmed the trial court’s order.

Commonwealth v. D.K., No. 1661 WDA 2015 (Pa. Super. 2016).

      At the conclusion of a two-day trial on February 7, 2017, the jury

convicted King of 54 of the 58 charges.      On May 1, 2017, the trial court

imposed an aggregate sentence of 55 to 110 years in prison.        This timely

appeal follows the denial of King’s post-sentence motion. Both King and the

trial court have complied with Pa.R.A.P. 1925.

      King raises the following issues on appeal:

          I.     Whether the Trial Court erred in entering an illegal
                 and unconstitutional mandatory sentence against
                 [King] in light of the holding in Alleyne v. United
                 States[, 133 S.Ct. 2151 (2013)]?

          II.    Whether the Trial Court erred in denying [King’s]
                 post-sentence motion that [his] conviction was
                 against the sufficiency of the evidence?

          III.   Whether the Trial Court erred in denying [King’s]
                 post-sentence motion seeking a new trial on the
                 basis the court erred in permitting the prejudicial
                 testimony of [his] former paramour, in denying [his]
                 request for a change of venue, and for denying [his]
                 request for a mental health evaluation of the alleged
                 victim?

          IV.    Whether the Trial Court erred in denying [King’s]
                 post-sentence motion requesting a dismissal of his
                 charges per [Pa.R.Crim.P.] 600(a)(2)(a)?

King’s Brief at 8.


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      Because, if meritorious, Appellant’s sufficiency challenge would result

in discharge, we consider it first. Commonwealth v. Toritto, 67 A.3d 29,

33 (Pa. Super. 2013) (en banc). Our standard of review is well settled:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable a fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.            In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [trier] of fact
         while passing upon the credibility of the witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations

omitted). “In evaluating the sufficiency of the evidence, we do not review a

diminished record. Rather, the law is clear that we are required to consider

all the evidence that was actually received, without consideration as to the

admissibility of that evidence or whether the trial court’s evidentiary rulings

are correct.”   Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super.

2005) (citation omitted).




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      In support of his sufficiency challenge, King does not challenge any

particular element of any crime of which the jury convicted him. Rather, he

argues the following as to all of the offenses:

         The Commonwealth failed to present any eye-witnesses to
         the alleged crimes but for the [victim] himself whose
         testimony was suspect; the Commonwealth failed to
         present DNA evidence or medical evidence (but for a
         medical report indicating that the [victim] had a scar on
         his back side, yet there was no conclusion as to what
         caused said scar; the [victim] testified that despite the
         alleged sexual assaults perpetuated upon him by [King],
         that he still returned to [King’s] residence after informing
         his mother of the alleged sexual assaults.               [King]
         respectively avers that the above-particulars caused him to
         have an unfair trial in violation of his [c]onstitutional rights
         under both the Pennsylvania and United States
         Constitutions.

King’s Brief at 18-19.

      The trial court found no merit to Appellant’s sufficiency challenge:

             Regarding the legal sufficiency of the Commonwealth’s
         evidence, the Court determined that the evidence of record
         supported the charges, and accordingly, allowed all of the
         charges to go to the jury for deliberation. [King] is now
         critical of the Commonwealth’s failure to present any eye-
         witnesses; however, we believe that the record, as
         discussed above, indicates the contrary, given both the
         extensive testimony of [the victim], as well as Ms. Stuller’s
         observations of [the victim] and [King] naked together in
         the small shower and in bed. [King] also asserts the
         absence of DNA or medical evidence; however, the
         Commonwealth noted the lack of DNA evidence at trial
         given [the victim’s] delay in disclosure. Relative to the
         alleged absence of medical evidence, we believe that
         [King] is simply incorrect, as the Commonwealth presented
         Dr. Kupchella’s report, which describes [the victim’s] anal
         scarring.




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Trial Court Opinion, 6/1/17, at 9. The trial court further noted that King’s

allegation regarding the victim’s decision to return to King’s residence after

informing his mother of the alleged sexual abuse questions the weight

accorded the vicitm’s testimony rather than its sufficiency. See id. at 10.

      Our review of the record supports the trial court’s conclusions.

Initially, it is well settled that the testimony of the victim of a sex offense, if

believed by the fact finder, is sufficient to support the convictions.

Commonwealth v. Jette, 818 A.2d 533, 534 (Pa. Super. 2003); 18

Pa.C.S.A. § 3106 (providing “[t]he testimony of a complainant need not be

corroborated in prosecutions under this chapter”).        “[M]edical evidence is

not required if the fact finder believes the victim.” Jette, 818 A.2d at 534.

As noted above, the jury, as fact finder, was free to believe all, part or none

of the victim’s testimony. Hansley, supra. Given the guilty verdicts, the

jury chose to believe the victim. Thus, King’s sufficiency challenge fails.

      King next claims that the aggregate sentenced imposed by the trial

court included an illegal 25-year mandatory sentence, pursuant to 42

Pa.C.S.A. § 9718.2(a)(1), in violation of Alleyne v. United States, 133

S.Ct. 2151 (2013), and the Pennsylvania Supreme Court’s decision in

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). We disagree.

      Subsection 9718.2(a)(1) reads, in pertinent part, as follows:

         Any person who is convicted in any court of this
         Commonwealth of an offense set forth in section 9799.14
         (relating to sexual offenses and the tier system) shall, if at
         the time of the commission of the current offense the
         person had previously been convicted of an offense set

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          forth in section 9799.14 or an equivalent crime under the
          laws of this Commonwealth in effect at the time of the
          commission of that offense or an equivalent crime in
          another jurisdiction, be sentenced to a minimum sentence
          of at least 25 years of total confinement, notwithstanding
          any other provision of this title or statute to the contrary.

42 Pa.C.S.A. § 9718.2(a)(1).

       King does not dispute that he was previously convicted of a qualifying

offense under this statute. Instead, he argues that subsection 9718.2(a)(1)

is unconstitutional pursuant to Alleyne, supra, and Wolfe, supra.1

       In Alleyne, the United States Supreme Court “held that any fact that,

by law, increases the penalty for a crime must be treated as an element of

the offense, submitted to a jury rather than a judge, and found beyond a

reasonable doubt.”       Wolfe, 140 A.3d at 653 (citing Alleyne, 133 S.Ct. at

2163)).    However, as this Court has explained, “Prior convictions are the

remaining exception to Apprendi v. New Jersey, 530 U.S. 466 [(2000)]

and Alleyne, [supra,] insofar as a fact-finder is not required to determine

disputed convictions beyond a reasonable doubt to comport with the Sixth

Amendment jury trial right.” Commonwealth v. Hale, 85 A.3d 570, 585

n.13 (Pa. Super. 2014).



____________________________________________


1 We note that King also improperly cites to our unpublished memorandum
in Commonwealth v. Elia, 2016 WL 2908553 (Pa. Super. 2016), in
violation Superior Court Internal Operating Procedure (IOP) § 65.37(A).
See 210 Pa.Code. §65.37.




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      Here, the mandatory minimum sentence the trial court imposed on

King was based upon King’s prior conviction for possession of child

pornography.       Thus, the Alleyne decision does not render it illegal.

Moreover, King’s reliance on Wolfe, supra, is inapposite because that case

did not involve the imposition of a mandatory minimum based on a prior

conviction. King’s illegal sentence claim is without merit.

      In his next issue, King argues three instances in which the trial court

erred in failing to grant him a new trial. He first claims that the trial court

erred in admitting the testimony of Ms. Stuller, a former paramour with

whom he and the then three-year-old victim lived for approximately nine

years.    As noted above, King filed a motion in limine to exclude her

testimony as “prior bad acts” evidence under Pennsylvania Rule of Evidence

404(b).   According to King, any probative value of Ms. Stuller’s testimony

was outweighed by the highly prejudicial effect that testimony would have

on the jury.

      “Admission of evidence is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

its discretion.”   Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa.

2002). “An abuse of discretion is not merely an error of judgment, but is

rather the overriding or misapplication of the law, or the exercise of

judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-

will or partiality, as shown by the evidence of record.” Commonwealth v.

Harris, 884 A.2d 920, 924 (Pa. Super. 2005).

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      The admissibility of prior bad acts of a defendant is governed by

Pennsylvania Rule of Evidence 404(b), which reads as follows:

         Rule 404. Character Evidence; Crimes or Other Acts

                                    ***

            (b)   Crimes, Wrongs, or Other Acts.

           (1) Prohibited uses. 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.

            (2) Permitted Uses. This evidence may be admissible
            for another purpose, such as proving motive,
            opportunity, intent, preparation, plan, knowledge,
            identity, absence of mistake or lack of accident. In a
            criminal case this evidence is admissible only if the
            probative value of the evidence outweighs its potential
            for unfair prejudice.

Pa.R.E. 404(b)(1)-(2). “[E]vidence of prior crimes is not admissible for the

sole purpose of demonstrating a criminal defendant’s propensity to commit

crimes.” Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283

(Pa. Super. 2004) (en banc).

      Our review of the record supports the Commonwealth’s claim that King

has waived this issue. “[A] motion in limine may preserve an objection for

appeal without any need to renew the objection at trial, but only if the trial

court clearly and definitively rules on the motion.”     Commonwealth v.

McGriff, 160 A.3d 863, 866 (Pa. Super. 2017). However, “if the trial court

defers ruling on a motion in limine until trial, the party that brought the

motion must renew the objection at trial or the issue will be deemed waived


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on appeal.”   Blumer v. Ford Motor Company, 20 A.3d 1222, 1232 (Pa.

Super. 2011 (citations omitted).

      Here, the trial court deferred ruling on King’s motion in limine to

exclude Ms. Stuller’s testimony pursuant to Pa.R.E. 404(b).          See Order,

9/4/15, at 3. A review of the pertinent trial transcript reveals that King did

not renew his objection at trial. See N.T., 2/6/17, at 4-26, 115-29. Thus,

this issue is waived. Blumer, supra.

      Nevertheless, it is clear from our review of the record that the

testimony presented by Ms. Stuller did not constitute “prior bad acts”

perpetrated by King, but rather was corroborative evidence of the charges

for which King was currently on trial.       The fact that Ms. Stuller did not

actually witness any sexual behavior between King and the victim involves

the weight of the evidence rather than its admissibility.          Thus, absent

waiver, King’s first basis for a new trial is meritless.

      As a second basis for a new trial, King claims that the trial court erred

in denying his pre-trial motion for a change of venue “due to the extensive

publicity of the alleged crime, and the inability of [King] to find an unbiased

jury that was not tainted by the news coverage of the case.” King’s Brief at

24. Our review of the record supports the trial court’s conclusion that King

has waived this challenge. The trial court explained:

         [W]e dismissed [King’s] Motion for          Change of Venue
         without prejudice, noting our practice      to first attempt to
         pick a jury. We also indicated that          should it become
         apparent during jury selection that the     jury pool has been
         exposed to and adversely affected by         media publicity in

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          this case, [King] can renew this Motion. However, Jury
          Selection was conducted by this Court on February 2,
          2017, and a renewed Motion was never forthcoming.
          Nonetheless, any juror who indicated a prejudice against
          [King] during voir dire based upon either information
          obtained from media coverage or person experience was
          stricken for cause.

Trial Court Opinion, 6/1/17, at 11 (citations omitted). Thus, because King

did not renew his challenge during jury selection, it is waived, and we need

not address it further.2

       As a third basis for new trial, King asserts that the trial court erred in

denying his pre-trial motion for a “mental health evaluation of the victim to

determine his competency to testify at trial.” King’s Brief at 25. The trial

court denied the motion because King “did not demonstrate a substantial

need for same.” Trial Court Opinion, 6/1/17, at 11. King disagrees, with the

trial court’s conclusion, and argues:

             [King] submits that there was compelling evidence to
          warrant a psychiatric evaluation of the [victim] in this
          case. Throughout these proceedings, [King] emphasized
          his innocence in regards to the many charges against him,
          and notes that there was no scientific evidence or eye
          witnesses to the alleged criminal acts of such a serious
          sexual nature. Regarding the [victim], [King] notes that
          prior to his current incarceration that the [victim] was
          undergoing mental health counseling through a local
          mental health agency. [King] was unaware if the [victim]
          is still continuing his counseling, but believed that in light
____________________________________________


2  This claim is also waived because the jury proceedings were not
transcribed. See Commonwealth v. Houck, 102 A.3d 443, 456 (Pa.
Super. 2014).




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           of the serious charges which have been leveled against
           him that the [victim] is delusional and acting in a
           sociopathic nature. For these reason[s], [King] contended
           that a mental health examination of the [victim] was
           warranted.

King’s Brief at 27.

      In support of his argument, King cites a 1984 trial court’s decision for

the proposition that “a victim of a crime of sexual violence may be compelled

to undergo a psychiatric evaluation pursuant to Pa.R.Crim.P. 578, if the

defendant can establish the necessity for the examination.”        Id. (citing

Commonwealth v. Ramer, 30 Pa. D. & C.3d 50 (York County 1984).

      We agree with King that, before any evaluation should be ordered by a

trial court, a defendant must establish a need for a psychiatric evaluation to

aid in a competency determination. What King fails to realize, however, is

that the quantum of evidence required to justify the evaluation needs to be

more than bare allegations of incompetency.          The record itself must

demonstrate a question of incompetency.

      In    Commonwealth v. Boich, 982 A.2d 102 (Pa. Super. 2009) (en

banc), the Commonwealth appealed from the trial court’s order granting the

defendant’s pre-trial motion requesting that the adult rape victim submit to

an involuntary psychiatric examination for purposes of determining her

competency to testify at trial. Among other reasons, the defendant based its

motion on the victim’s “mental instability.” Boich, 982 A.2d at 106. This

Court noted that a decision to disqualify a witness as incompetent is distinct




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from ordering an involuntary psychiatric examination to assist the court in

making this determination. We explained:

            When rendering a decision to disqualify a witness as
         incompetent, a court can rely on expert testimony.
         Nevertheless, whether the court can order an involuntary
         psychiatric examination of the witness to determine
         testimonial competency is an entirely distinct inquiry. The
         privacy implications of a compelled psychiatric examination
         are significant. Indeed, where the record fails to establish
         that there is a question as to the victim’s competency, we
         refuse to sanction any intrusion into the victim’s existing
         psychological records or any cross-examination as to
         psychiatric treatment.      The presumption of witness
         competency is necessary to effectuate the fundamental
         polices underlying both the constitutional right to privacy
         and the statutory psychiatrist-patient privilege. Thus, a
         court-ordered, involuntary psychiatric or psychological
         examination should never be the starting point for a
         competency evaluation. Therefore, a court ought not to
         order an involuntary psychiatric examination of a witness
         unless the record unequivocally demonstrates a compelling
         need for the examination.

Boich, 982 A.2d at 110 (citations omitted).

       This Court further noted in Boich that “Pennsylvania case law does not

expressly define ‘compelling need’ in the context of a court-ordered,

involuntary psychiatric examination of a sexual assault victim[.]”      Id. at

111.   Thus, we looked to see how other jurisdictions construed the term.

After doing so, and reviewing Pennsylvania cases that compared attacks on

credibility with competency, we stated:

         In an effort to transform his attack on [the victim’s]
         credibility into an issue of testimonial incompetency,
         essentially [Boich] suggested her credibility failed as a
         matter of law such that it rendered [the victim] legally


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          incompetent to testify.    Albeit an aggressive defense,
          [Boich’s] motions were bare allegations, which as
          presented did nothing more than attack [the victim’s]
          credibility. Therefore, we conclude the motions did not
          make out a compelling need for a court-ordered
          involuntary psychiatric and/or psychological evaluation of
          [the victim].

Id. at 113. Thus, this Court held that the trial court erred in ordering an

involuntary psychiatric evaluation of the rape victim on the grounds alleged.

Id. at 15.

      As in Boich, the trial court in this case correctly held that the bare

allegations of King’s pre-trial motion to compel the victim undergo a mental

health evaluation did not establish the requisite compelling need. Indeed, at

argument on the motion, King presented no addition information to support

his “need” for such an examination. Moreover, King ignores the fact that it

may be his own actions that necessitated the counseling the victim had

received in this case. King’s final basis for a new trial therefore is without

merit.

      In his final issue raised on appeal, Appellant argues that the trial court

erred in denying his motion to dismiss all of the charges, pursuant to

Pa.R.Crim.P. 600(A)(2)(a), because the 419-day period that his case was

pending before this Court due the Commonwealth’s appeal should be held

against   the   Commonwealth.       Accordingly,   King   “submits    that   the

Commonwealth failed to act with due diligence in bringing him to trial within

365 days of the date of the original criminal complaint.       The appropriate




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relief is dismissal      of all of [his]       charges pursuant to   Pa.R.Crim.P.

600(A)(2)(a).” King’s Brief at 30.

       Our standard of review for Rule 600 claims is an abuse of discretion.

Commonwealth v. Watson, 140 A.3d 696, 697-98 (Pa. Super. 2016).

Although King provides a complete Rule 600 calculation, we address only the

delay caused by the interlocutory appeal, as that was how he characterized

this claim in his Rule 1925(b) statement, and is the only portion of the

calculation addressed by the trial court. In support of his claim, King first

notes the fact that 120 days within this 419-day period was caused by the

Commonwealth twice requesting an extension of time in which to file its brief

and reproduced record. See King’s Brief at 28-29. He then “submits that

the interlocutory appeal filed against him was unwarranted as the

Commonwealth[’s] attorney had stated on the record at the September 3,

2015 Motions Hearing, that all that was required for a conviction was ‘the

victim’s testimony alone’, so why would the Commonwealth have to pursue

an interlocutory appeal on [an] unnecessary evidentiary issue.” King’s Brief

at 31-32.3
____________________________________________


3 Curiously, King did not acknowledge this legal principle when presenting
his sufficiency challenge. In addition, we note that a transcript of the
hearing on King’s Rule 600 motion does not appear in the certified record.
See Commonwealth v. Monarch, 165 A.3d 945, 949 (Pa. Super. 2017)
(explaining that when “a claim is dependent on materials not provided in the
certified record, that claim is considered waived”). Nevertheless, we address
King’s claim because the parties do not dispute the 419-day period of delay
at issue.



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      Pennsylvania      Rule   of   Appellate   Procedure   311(d)   permits   the

Commonwealth to take an interlocutory appeal in certain circumstances. It

provides:

         (d) Commonwealth appeals in criminal cases.—In a
         criminal case, under the circumstances provided by law,
         the Commonwealth may take an appeal as of right from an
         order that does not end the entire case where the
         Commonwealth certifies in the notice of appeal that the
         order will terminate or substantially handicap the
         prosecution.

Pa.R.A.P. 311(d).    In denying King’s motion for dismissal, the trial court

cogently recognized the interplay between this rule and Pa.R.Crim.P 600,

and recognized that King was essentially asking the court “to pass judgment

on the propriety of the Commonwealth’s Rule 311(d) certification relative to

an evidentiary pretrial ruling.” Trial Court Opinion, 6/1/17, at 13.

      The Pennsylvania Supreme Court explained the interplay between the

two rules as follows:

         Pa.R.A.P. 311(d) specifically allows for the pretrial appeal
         as an exception to the general bar to interlocutory appeals
         when the Commonwealth certifies that a trial court ruling
         will terminate or substantially handicap the prosecution. If
         Rule 600(G), as interpreted by [Commonwealth v.
         Matis, 710 A.2d 12 (Pa. 1998)], did not recognize the
         ancillary extension of time beyond the 365-day period of
         Rule 600(G), the Commonwealth’s right to a pretrial
         appeal would be illusory, as the appeal would result in the
         loss of prosecution at the expiration of Rule 600(G)’s 365-
         day time limitation.     Thus, this interplay of Pa.R.A.P.
         311(d) and Pa.R.Crim.P. 600(G) protects, among other
         things, the Commonwealth’s ability to seek review of
         adverse trial court rulings without facing the loss of
         prosecutions under Rule 600(G). Moreover, defendants do


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          not have their rights unconstitutionally infringed through
          this process as they are presumably at liberty, and their
          right to speedy trial is fully protected by the
          Commonwealth’s obligation pursuant to Rule 600(G) to
          pursue diligently the initiation of trial.

Commonwealth v. Dixon, 907 A.2d 468, 476 (Pa. 2006) (citation

omitted).     Moreover, the high court has further explained that “[t]he

certification by an officer of the Court guards against frivolous appeals or

appeals     intended   solely   for   delay,”    and   that   “the   Commonwealth’s

certification ‘is not contestable’ and ‘in and of itself, precipitates and

authorizes the appeal.’” Commonwealth v. Boczkowski, 846 A.2d 75, 87

(Pa. 2004) (citing Commonwealth v. Dugger, 486 A.2d 382, 386 (Pa.

1985)). In fact, the Pennsylvania Supreme Court has further held that “a

Rule 311(d) certification by the Commonwealth, especially relative to an

evidentiary ruling, is sufficient to trigger the Commonwealth’s right to

appeal, and appellate courts “are not authorized to go behind that

certification.” Boczkowski, 846 A.2d at 87.

     Here, the trial declined to assess the propriety of the interlocutory

appeal filed by the Commonwealth. The court then referred to its Pa.R.A.P.

1925(a) opinion in that direct appeal, and noted:

          [A]lthough we disagreed with the Commonwealth’s need
          for Dr. Kupchella’s supplemental report at trial, especially
          as it was authored on the eve of trial, and after a jury had
          been selected on October 1, 2015, we are not authorized
          to scrutinize the Commonwealth’s certification to appeal
          our evidentiary ruling. This concept is understandable, as
          only the Commonwealth knows the caliber of any given
          piece of its evidence, and the potential risk it faces at trial
          if said evidence is excluded. Additionally, because we

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         expeditiously scheduled a new trial upon resolution of the
         Commonwealth’s interlocutory appeal, we do not believe
         that prejudice befell [King]. This is especially true given
         that during the pendency of the Commonwealth’s appeal,
         we granted [King’s] “Motion for Nominal Bail Pending
         Appeal Per Rule 600(B)(1)” via Order of May 2, 2016,
         albeit, with conditions to ensure community safety, and
         [King] was eventually released from the Cambria County
         Prison.

Trial Court Opinion, 6/1/17, at 14 (citation omitted).

      Our review of the record supports the trial court’s conclusions. King’s

claim of a Rule 600 violation based on the delay caused by the

Commonwealth’s interlocutory appeal is without merit.

      In sum, the Commonwealth presented sufficient evidence to support

King’s convictions, and each claim regarding his request for a new trial

and/or dismissal of the charges is without merit. We therefore affirm King’s

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/2018




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