J-S91044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ZACHARY CHANCE ETKA                        :
                                               :
                      Appellant                :   No. 1919 MDA 2015

             Appeal from the Judgment of Sentence March 5, 2015
               In the Court of Common Pleas of Bradford County
             Criminal Division at No(s): CP-08-CR-0000431-2014



BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 10, 2017

       Appellant, Zachary Chance Etka, appeals pro se1 from the judgment of

sentence entered in the Court of Common Pleas of Bradford County following

his conviction by a jury on three counts of robbery, three counts of

____________________________________________


1
   Appellant was represented by court-appointed counsel throughout the
proceedings in the trial court, including the filing of a counseled notice of
appeal to this Court. However, thereafter, Appellant filed a motion in the
trial court requesting permission to proceed pro se on appeal, and in
response, counsel filed in this Court an application for remand for a Grazier
hearing. Accordingly, by order filed on May 24, 2016, we remanded this
matter for a hearing, and on July 11, 2016, the trial court filed an order
indicating it held a Grazier hearing and determined Appellant has
knowingly, intelligently, and voluntarily waived his right to counsel on
appeal. Appellant subsequently filed in this Court a pro se brief, which we
shall consider.


* Former Justice specially assigned to the Superior Court.
J-S91044-16


conspiracy, two counts of terroristic threats, and one count of receiving

stolen property.2     After a careful review, we affirm.

       Following Appellant’s arrest in connection with the robbery of a bank,

Appellant, who was represented by counsel, proceeded to a jury trial on

November 20, 2014.         The trial court has aptly summarized the testimony

and evidence presented during the trial as follows:

              On May 15, 2014[,] at approximately 1:00 p.m.,
       [Appellant] and [his co-conspirator,] Chaz Talada parked in the
       parking lot in front of Citizens and Northern Bank located in East
       Smithfield, Bradford County, Pennsylvania. A bank teller on duty
       noticed the vehicle and [that] the individuals inside seemed to
       be looking around. [N.T. 11/20/14 at 20.] A male exited the
       vehicle wearing a white baseball cap, sunglasses, and a heavy
       winter coat, which [seemed] unusual [to the teller] because it
       was not cold that day. [Id.] The individual was carrying a
       backpack. [Id.] The individual entered the bank, approached a
       teller window, showed a hand gun, passed over the bag[,] and
       demanded money. [Id. at 22.] The teller placed the money
       from her drawer and the next teller[’s] drawer into the bag. [Id.
       at 23.] Included in the money was “bait money,” [for] which the
       serial numbers ha[d] been recorded. [Id.] [The teller] handed
       the bag back to the individual[,] and he left the building. [Id. at
       24.] The teller then hit the bank alarm and went to the window
       to get the license plate number of the vehicle, but there was no
       plate on the car. [Id.] The second teller identified the vehicle
       as a green Subaru with a black gas tank cover. [Id. at 28.]

             New York State Trooper Mary Carsen, upon learning of the
       robbery over a radio transmission and the direction the vehicle
       was heading, drove to the town of Wellsburg, New York in hopes
       of locating the vehicle. She did locate a green Subaru[, which
       was] pulled up against the back of a minimart. [Id. at 36.]
       [Prior to Trooper Carsen’s arrival upon the scene,] [Appellant]
____________________________________________


2
  18 Pa.C.S.A. §§ 3701(a)(1)(vi), (ii), and (iv); 903; 2706(a)(1); and 3825,
respectively.



                                           -2-
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     had entered the minimart and purchased a pack of cigarettes.
     This was shown on the video surveillance from the minimart.
     [Subsequently,] [a] Pennsylvania State Trooper[, Michael
     Adams,] [also] arrived at the scene[,] and [Appellant and
     Talada] exited their vehicle. [Id. at 37.]

           [After frisking the two men for weapons, the troopers
     placed the men in separate vehicles. Trooper Adams questioned
     Talada and then, after reading him his Miranda rights,
     questioned Appellant. Id. at 55-56.] [Trooper Adams] testified
     that [Appellant told him] the vehicle belonged [to him.] [Id. at
     56.] [Appellant] said he did nothing wrong. [Id.] [Appellant]
     told [the] trooper that when [Talada] went into [the] bank, he
     couldn’t drive away because he did not have a driver[’s] license;
     that he didn’t walk away because [Talada] was his friend; and
     that he did not attempt to call [the] police or anyone [else].
     [Id.] [Appellant] did tell [the] trooper that he and [Talada] had
     planned the robbery earlier that day[,] and that upon arriving at
     the bank, he told [Talada] not to commit the robbery. [Id. at
     62.]

           [Pennsylvania State Corporal Douglas Smith testified that
     the vehicle was impounded and he searched it pursuant to a
     search warrant. Id. at 64.] [He] testified that a backpack was
     in the vehicle on the floorboard of the driver’s side and the cash
     from the bank was inside [of] the backpack[. Id. at 65.] [The
     backpack also contained] a pistol pellet gun ... a jacket with a
     hood on it, ... and a white baseball cap. [Id. at 65-87.] The
     cash totaled $3,342.00[, which] was the amount reported stolen.
     [Id. at 71, 76, 89.] Also in the vehicle were improvised smoking
     devices and marijuana. [Id. at 75.]

           [Pennsylvania State Corporal Norman Strauss, III, testified
     that after Appellant’s arrest he gave him his Miranda rights and
     transported him to the police station. Id. at 77-78.] [Appellant]
     [ ] told him that he thought about robbing the bank two days
     prior; it was his idea; he planted the seed in his friend’s
     (Talada’s) head; and he did a 30 second Google research on the
     topic of successful bank robberies. [Id. at 79, 83.] Further, [he
     told the corporal] that he waited in the vehicle while [Talada]
     entered [the] bank and then traveled to the minimart where
     they were picked up by [the] state police. [Id. at 80.] Also,
     there were times when [Appellant] [told the corporal that] the
     conversation about the robbery with [Talada] was a joke. [Id.


                                   -3-
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       at 83.] Finally, [ ] [Appellant] [told Corporal Strauss that he]
       wouldn’t commit the robbery but [Talada] had his mind set on it.

             Annetta Lewis testified that she was an employee of the
       minimart where [Appellant] was [apprehended]. When she left
       work [on] the day of the robbery, she noticed two men in a
       vehicle with cash in their hands. [Id. at 92.] The passenger was
       the only one she could see and he had a lot of cash in his hand.
       [Id. at 91-92.]

                                           ***

              [Pennsylvania State Trooper Nathan Lewis] testified that
       he [advised Appellant of his Miranda rights and] interviewed
       him at the police barracks. [Id. at 96-97.] [Appellant] indicated
       that he and [Talada] had been together for two days and had
       been using mind altering substances. [Id. at 97.] He told
       Trooper [Lewis] that they discussed a bank robbery and that the
       original plan was for him to go into the bank. [Id.] [Appellant]
       stated that they proceeded to the bank and along the way
       stopped to remove the license plate from a vehicle. [Id.]
       [Appellant indicated] they parked near the bank[,] discussed the
       robbery for approximately fifteen minutes[,] and [Appellant]
       tried to talk [Talada] out of the robbery. [Id. at 98.] They then
       drove to the bank. [Appellant stated] he then advised [Talada]
       that he did not want to go into the bank. [Id.] [Talada] entered
       [the] bank and came out[,] and they [then] fled [in the vehicle.]
       [Id.] [Appellant told the trooper] that while he and [Talada]
       were talking about [the robbery,] it was a joke. [Id. at 105.]
       Trooper Lewis also testified that he determined that [Appellant]
       did not have a valid driver[’s] license. [Id. at 109.]

             [The] [d]efense presented the testimony of [Talada, who]
       admitted to the robbery of the bank.3 He admitted that he drove
       to the bank and he went into the bank wearing a coat, gloves[,]
       and sunglasses,[ which were] all his. [Id. at 115-16.] He also
       admitted that he was wearing a backpack that belonged to
       [Appellant, and it was Appellant’s idea to use the backpack
       during the robbery. Id. at 116, 130.]          [Talada testified
____________________________________________


3
  Prior to Appellant’s jury trial, Talada entered a guilty plea in connection
with the robbery.



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     Appellant] gave him the backpack when they went to the bank.
     [Id. at 130.] [He testified the] pellet gun was not loaded [but
     he] pointed the gun at the tellers. [Id. at 116.] [Talada
     testified that, prior to robbing the bank, he and Appellant sat in
     the car near the bank and talked about the robbery. Id. at
     117.]     [Appellant] told him he did not want to do it and
     suggested that he should do it. [Id.] They had conversations
     about robbing the bank [in the days leading up to the robbery,
     including] the day before[, at which time] they had been
     smoking marijuana. [Id. at 117-18.] He had also been taking
     Percocet and heroin. [After being apprehended, Talada] told the
     state troopers that he needed money for rent and to get his car
     repaired. [Id. at 124.] He testified that he [was] addicted to
     heroin and needed money to purchase more. [Id. at 123.]
     [Talada] testified that [Appellant] was too scared to commit the
     robbery and wanted [Talada] to do so. [Prior to the robbery,
     Appellant] took the license plate off the car. [Id. at 131.]
     [Talada testified that, when they left the house to commit the
     robbery, Appellant knew the robbery was going to happen. Id.]
     [At this time, Appellant] was wearing gloves ... and [a] jacket[.]
     [Id.] [After Appellant decided not to go into the bank, the men
     discussed Appellant getting a portion of the money. Id. at 132.]
     [Appellant] was going to use the money towards his business.
     [Talada] testified that [Appellant] did not tell him to not go in
     the bank. [Id. at 135.] [After the robbery, the men] began
     counting the money at the minimart[, and Talada gave Appellant
     a “handful.”] [Id.] After [Talada] came out of [the] bank, he
     handed all the “stuff”—clothing, etc., to [Appellant] because he
     removed it as he was driving[,] and [Appellant] put it in the
     back[, as well as] hid the gun. [Id. at 136.]

           [Appellant] testified as follows: That he and [Talada] were
     watching a movie, smoking marijuana[,] and talking about the
     robbery hypothetically. [Id. at 145.] The day of the robbery,
     there were a lot of clothes and items in his car, so he did not
     notice anything out of the ordinary. [Id. at 149.] [He and
     Talada] drove around.        Periodically, they would stop and
     [Talada] would get some marijuana out of the trunk of the car.
     [Id. at 150.] [Talada was driving Appellant’s car on the day of
     the robbery. Id. at 149.] [Appellant testified that he] never
     knew [Talada] was going to rob the bank. [Id. at 151.] [When
     the men got close to the bank, Talada brought up robbing the
     bank[,] and [Appellant] [tried to] talk[] him out of it. [Id. at
     152.] [Talada] agreed to go home, but he pulled into the bank[.

                                   -5-
J-S91044-16


        Id.] [Talada] went into the bank and was out in twenty some
        seconds, so [Appellant] did not jump to conclusions. [Id. at
        152-53.] [Talada] put [the] bag by his leg on [the] driver[’s]
        side. Upon arriving at the minimart, [Talada had] money in his
        hand and that was the first time [Appellant] realized that
        [Talada] had robbed the bank. [Id. at 154.] [Appellant took]
        $5.00 from [Talada] and went inside the minimart to buy
        cigarettes. [Id.] If the police had not [arrived,] he would have
        called them. He was not aware that [the] license plate [had
        been] removed. [Id. at 157.]

              The pellet gun was not processed for fingerprints or other
        trace evidence. [Id. at 88.] [T]here was no evidence from
        [Appellant’s] cellphone regarding a Google search. [Id.]

Trial Court Opinion, filed 3/11/16, at 2-5 (footnote added).

        At the conclusion of all evidence, the jury convicted Appellant of the

offenses indicated supra, and he was sentenced to an aggregate of forty-six

months to ninety-six months in jail. Appellant filed a timely, counseled post-

sentence motion, which was denied by operation of law on October 19,

2015.     On October 29, 2015, counsel simultaneously filed on behalf of

Appellant a notice of appeal and a Concise Statement pursuant to Pa.R.A.P.

1925(b). Thereafter, on March 11, 2016, the trial court entered its Pa.R.A.P.

1925(a) order.

        Subsequently, as indicated supra, following a Grazier hearing,

Appellant was granted permission to proceed pro se on appeal.       Appellant

filed a petition seeking permission to amend his Pa.R.A.P. 1925(b)

statement, which had been filed by counsel, and this Court directed the trial

court to rule on the motion.    On August 22, 2016, the trial court granted

Appellant permission to file an amended Pa.R.A.P. 1925(b) statement, and

                                     -6-
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on August 31, 2016, Appellant filed an amended pro se Pa.R.A.P. 1925(b)

statement.     The trial court filed a supplemental opinion on September 21,

2016.

        In his first claim, Appellant contends the evidence was insufficient to

sustain his convictions.4 Specifically, Appellant contends that he could not

be convicted of the crimes since the evidence proves Appellant was merely

present in the vehicle while Talada committed the robbery. Appellant argues

“there is no evidence supported by the record of an unlawful agreement, [ ]

of Appellant’s participation in the criminal act, [ ] of specific intent that

Appellant intended for [the robbery] to happen ... [or of] Appellant[’s]

participat[ion] in any of [Talada’s] misdeeds.” Appellant’s Brief at 19-20.

               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 the 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
____________________________________________


4
  Intertwined within Appellant’s sufficiency claim are various challenges to
the credibility of testimony from various witnesses. Such challenges are
more appropriately addressed as weight of the evidence claims, and thus,
we shall address these claims with Appellant’s additional weight of the
evidence claims infra. Commonwealth v. Wilson, 825 A.2d 710, 713–14
(Pa.Super. 2003) (holding that review of the sufficiency of the evidence does
not include an assessment of the credibility of testimony; such a claim goes
to the weight of the evidence).



                                           -7-
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      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
      [finder] of fact while passing upon the credibility of witnesses
      and the weight of the evidence produced, is free to believe all,
      part or none of the evidence.
            Further, in viewing the evidence in the light most favorable
      to the Commonwealth as the verdict winner, the court must give
      the prosecution the benefit of all reasonable inferences to be
      drawn from the evidence.

Commonwealth v. Harden,           103   A.3d   107,   111   (Pa.Super.     2014)

(quotation marks and quotations omitted).

      Here, there is no dispute that Talada was the person who actually

entered and robbed the bank at issue and that Appellant remained outside in

the vehicle during the robbery. However, Appellant’s guilt as to the crimes

was premised upon conspiratorial liability.

            To convict a defendant of conspiracy, the trier of fact must
      find that: (1) the defendant intended to commit or aid in the
      commission of the criminal act; (2) the defendant entered into
      an agreement with another (a “co-conspirator”) to engage in the
      crime; and (3) the defendant or one or more of the other co-
      conspirators committed an overt act in furtherance of the agreed
      upon crime. 18 Pa.C.S.[A.] § 903. The essence of a criminal
      conspiracy, which is what distinguishes this crime from
      accomplice liability, is the agreement made between the co-
      conspirators.

            “[M]ere association with the perpetrators, mere presence
      at the scene, or mere knowledge of the crime is insufficient” to
      establish that a defendant was part of a conspiratorial
      agreement to commit the crime. There needs to be some
      additional proof that the defendant intended to commit the crime
      along with his co-conspirator. Direct evidence of the defendant's
      criminal intent or the conspiratorial agreement, however, is

                                     -8-
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     rarely available. Consequently, the defendant's intent as well as
     the agreement is almost always proven through circumstantial
     evidence, such as by “the relations, conduct or circumstances of
     the parties or overt acts on the part of the co-conspirators.”
     Once the trier of fact finds that there was an agreement and the
     defendant intentionally entered into the agreement, that
     defendant may be liable for the overt acts committed in
     furtherance of the conspiracy regardless of which co-conspirator
     committed the act.

Commonwealth v. Murphy, 577 Pa. 275, 292, 844 A.2d 1228, 1238

(2004) (citations and quotations omitted).

     Here, viewing the evidence in the light most favorable to the

Commonwealth, as verdict winner, the evidence is sufficient to establish that

Appellant was not merely associated with Talada, was not merely present at

the scene, and did not have mere knowledge of the crime.         Rather, the

evidence sufficiently establishes that Appellant conspired with Talada to rob

the bank and, accordingly, he is liable for all overt acts committed in

furtherance of the conspiracy. See Murphy, supra.

     For instance, Talada testified that, for a few days prior to the robbery,

he and Appellant discussed robbing a bank.      He indicated that Appellant

gave him the backpack to use during the robbery, and on the day of the

robbery, they left the house with both men wearing jackets and gloves,

despite the fact it was a warm day in May. Talada drove Appellant’s vehicle,

in which Appellant was a passenger.       Talada testified that, prior to the

robbery, Appellant removed the license plate from the vehicle and, as they

arrived at the bank, Appellant expressed fear, indicating he would remain in


                                    -9-
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the vehicle.   Talada further testified that, after the robbery, as the men

drove away from the bank, Talada handed his clothing and the pellet gun to

Appellant, who put the items in the back of the vehicle.     Later that same

day, the men began to split the stolen money while parked at a minimart,

but they were interrupted when they were apprehended by the police.

      Furthermore, three state troopers testified Appellant admitted to them

that, in the days preceding the robbery, he and Talada had discussed

robbing a bank.   Trooper Strauss, who transported Appellant to the police

station, specifically testified Appellant admitted that he thought about

robbing the bank and had “planted the seed in Talada’s head.”              N.T.

11/20/14 at 79. Additionally, Trooper Lewis, who interviewed Appellant at

the police station, testified Appellant admitted to him that the original plan

involved Appellant entering the bank, along with Talada; however, just

before the robbery, Appellant decided to wait in the car. Id. at 97-100.

      Accordingly, based on the aforementioned, we conclude the evidence

was sufficient to establish the necessary elements for conspiracy under

Section 903, thus rendering Appellant liable for all of the overt acts

committed in furtherance of the conspiracy. Thus, we find no merit to his

first claim.

      In his second claim, Appellant contends the jury’s verdict was against

the weight of the evidence.     Specifically, he alleges that a new trial is

warranted since (1) the Commonwealth’s case included testimony and


                                    - 10 -
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evidence consistent with Appellant’s trial testimony that he was joking when

he told Talada he wanted to rob a bank; (2) the evidence reveals Appellant

was unaware that Talada was addicted to heroin such that he could not

possibly have been aware that Talada was serious about robbing a bank; (3)

the state troopers’ testimony was “full of perjury and false evidence;” and

(4) the credible evidence establishes Appellant abandoned any plan to rob a

bank prior to Talada robbing the bank.5

       In reviewing a challenge to the weight of the evidence, we are mindful

of the following:

       [A] new trial can only be granted on a claim that the verdict was
       against the weight of the evidence in the extraordinary situation
       where the jury's verdict is so contrary to the evidence that it
       shocks one's sense of justice and the award of a new trial is
       imperative so that right may be given another opportunity to
       prevail. An appellate court cannot substitute its judgment for
       that of the finder of fact.

Commonwealth v. Drumheller, 570 Pa. 117, 143, 808 A.2d 893, 908

(2002) (quotation marks and quotations omitted). “[T]he trier of fact while

passing upon the credibility of witnesses and the weight of the evidence

produced,     is   free   to   believe   all,   part   or   none   of   the   evidence.”

Commonwealth v. Askins, 761 A.2d 601, 603 (Pa.Super. 2000) (quoting

Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992)).

Furthermore:
____________________________________________


5
  Appellant sufficiently preserved his weight of the evidence claim in his
timely post-sentence motion. See Pa.R.Crim.P. 607.



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      [Where] ... the judge who presided at trial 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. Tharp, 574 Pa. 202, 217–18, 830 A.2d 519, 528 (2003)

(citations omitted).

      In its Pa.R.A.P. 1925(a) opinion, the trial court addressed Appellant’s

weight of the evidence claims and concluded they lack merit. With regard to

Appellant’s allegation that there was ample, credible evidence, including

from the Commonwealth’s own witnesses, that he was joking about

committing a robbery, the trial court indicated the jury was free to weigh

this testimony along with the other evidence.      Trial Court Opinion, filed

3/11/16, at 9.     While state troopers testified that, upon questioning,

Appellant told them that he had been joking with Talada when they

discussed the robbery and in the moments before the robbery he told Talada

not to do it, the jury was free to conclude Appellant made the statements to

the police for self-serving reasons.

      With regard to Appellant’s allegations that he was unaware that Talada

was addicted to heroin such that he could not possibly have been aware that

Talada was serious about robbing a bank, the state troopers’ testimony was

“full of perjury and false evidence,” and the evidence establishes Appellant

abandoned any plan to rob a bank prior to Talada robbing the bank,

Appellant asks us to reweigh the evidence in his favor.    As the trial court

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indicated, the jury was in the best position to view the demeanor of the

witnesses, assess each witness’ credibility, and resolve any inconsistencies

in their testimony in the Commonwealth’s favor.          Commonwealth v.

Olsen, 82 A.3d 1041, 1049 (Pa.Super. 2013). Based on the facts elicited at

trial and believed by the jury, the trial court determined that the verdict was

not against the weight of the evidence. Appellant has not demonstrated that

the trial court committed a palpable abuse of discretion by rejecting his

request for a new trial based on the weight of the evidence, and thus, we

find no abuse of discretion. Tharp, supra.

       In his third claim, Appellant argues the trial court erred in denying

Appellant’s motion for a new trial based on the Commonwealth’s late

disclosure of an eyewitness, Annetta Lewis.6       We find this issue to be

waived.

       Appellant’s entire appellate argument regarding this issue, which we

set forth verbatim, is as follows:

       The Trial court erred in denying a Motion for New Trial based on
       Late Disclosure of Eye-witness. At trial the Commonwealth
       presented the testimony of Anetta [sic] Lewis, Dandy Mini-Mart
       worker, who was discovered due to her family relationship with
       an employee of the courthouse who was discussing the case with
       her. The Defense was notified of this witness at 4:30 pm the
       eve of trial, after jury had been selected. The defense objected
       to the introduction of this evidence as the Commonwealth had
____________________________________________


6
  As the trial court indicates in its supplemental Rule 1925(a) opinion, the
Commonwealth notified Appellant of the witness the day before trial, after
the jury was selected. Trial Court Opinion, filed 9/21/16, at 2.



                                          - 13 -
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       not previously indicated that it would seek to present this
       testimony. The Appellant was prejudiced in this late disclosure
       of eye-witness and in not being able to adequately investigate
       this witness and her ability to perceive and recall the events in
       question before trial. Wherefore, Appellant requests a New trial
       based on the denial of the Motion for New Trial on Late
       Disclosure of Eye-Witness.

Appellant’s Brief at 22.

       Appellant has not adequately developed his argument on appeal. For

instance, as is evident, Appellant neither provided this Court with any

relevant citations supporting his assertion nor set forth that place in the

record where he objected to Ms. Lewis testifying on this basis. 7           See

Pa.R.A.P. 2119(b), (e).        Moreover, Appellant’s bald assertion of error and

prejudice is insufficient to permit meaningful review in this case. 8       See

Pa.R.A.P. 2119.

       While we acknowledge Appellant is proceeding pro se in this appeal,

his pro se status does not entitle him to any advantage due to his lack of

____________________________________________


7
 It is noteworthy that, in its opinion, the trial court concluded Appellant has
waived the issue since there was no objection placed on the record to Ms.
Lewis testifying. See Trial Court Opinion, filed 9/21/16, at 2-3.
8
  In any event, the trial court noted any error was harmless since the
evidence against Appellant was overwhelming. Trial Court Opinion, filed
9/21/16, at 3. Further, the trial court noted:
      The witness had little to offer other than stating she saw two
      men in a vehicle when she left work at the Dandy Mini Mart
      where [Appellant and Talada] were found and the man in the
      passenger seat had cash in his hands—not a large amount to
      cause alarm, but more than a little.
Id. (citation to record omitted).



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legal training. See Commonwealth v. Ray, 134 A.3d 1109 (Pa.Super.

2016). Rather, as a pro se litigant, Appellant must still abide by the Rules of

Appellate Procedure and his decision to represent himself requires him to “a

reasonable extent assume[ ] the risk that his legal training will place him at

a disadvantage.” Id. at 1114-115 (citation omitted).

      In his fourth claim, Appellant alleges the prosecutor engaged in

misconduct by permitting three state troopers to perjure themselves on the

stand. He also alleges the prosecutor improperly informed the jury during

closing arguments that Talada “has no reason to lie, he has no interest in

this case.” N.T. 11/20/14 at 173-74.

      Initially, we note that Appellant has waived these claims. With regard

to the alleged perjured testimony given by three state troopers, Appellant

has failed to indicate precisely which portions of the testimony he is

challenging. Rather, he baldly asserts:

             [T]he District Attorney lead [sic] three State Troopers—
      Trooper Adams, Trooper Strauss[,] and Trooper Lewis—to
      perjure themselves on the stand,--[to] lie in front of the jury
      about what is on record—to prejudice, harass[,] and attack the
      Appellant[’]s credibility by the use of false evidence and false
      testimony, known to be by him, and allowed to go uncorrected
      as it appeared[.]

Appellant’s Brief at 22-23. Such vague assertions do not permit meaningful

review. See Pa.R.A.P. 2119.

      Moreover, with regard to the prosecutor’s statement, which he made

during closing arguments to the jury, Appellant failed to object to the


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prosecutor’s statements at trial. Accordingly, he has waived any challenge

thereto. See Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282 (2010)

(stating failure to raise objection to prosecutor's comment at trial waives

claim of error arising from comment).

      Notwithstanding Appellant’s waiver of the claim, a new trial is not

warranted.

            Our standard of review for a claim of prosecutorial
      misconduct is limited to whether the trial court abused its
      discretion. In considering this claim, our attention is focused on
      whether the defendant was deprived of a fair trial, not a perfect
      one. Not every inappropriate remark by a prosecutor constitutes
      reversible error. A prosecutor's statements to a jury do not
      occur in a vacuum, and we must view them in context. Even if
      the prosecutor's arguments are improper, they generally will not
      form the basis for a new trial unless the comments unavoidably
      prejudiced the jury and prevented a true verdict.


Commonwealth v. Bedford, 50 A.3d 707, 715–16 (Pa.Super. 2012) (en

banc) (citations, quotation marks, and quotations omitted).

      With regard to the prosecutor presenting the testimony of the three

state troopers, the trial court indicated:

      [Appellant] first claims that the District Attorney knowingly led
      three state troopers to lie and allowed perjury. [Appellant] does
      not point to a specific portion of the record to support his claim.
      Although [Appellant’s] testimony was in conflict with that of the
      state troopers, there is nothing upon review of the record to
      indicate that a state trooper gave false testimony or that false
      evidence was presented. Defense counsel thoroughly cross-
      examined each witness. [Appellant] is arguing that his testimony
      should be believed over that of three Pennsylvania state troopers
      who testified. In weighing the credibility of a witness, including
      the defendant, the jury is free to weigh and reject the questions
      trial counsel raised. The jury obviously found the state troopers’


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      testimony more credible than [Appellant’s testimony].          This is
      not prosecutorial misconduct.

Trial Court Opinion, filed 9/21/16, at 4-5. We find no abuse of discretion in

this regard.

      Additionally, with regard to the prosecutor’s statements during closing

argument, the trial court indicated, in relevant part:

      [The challenged statements] can hardly be characterized as
      prosecutorial misconduct. The prosecutor is drawing inferences
      on the evidence that was presented. Further, the [prosecutor’s]
      remarks [were a fair] response to defense counsel’s attack on
      [Talada] arguing he was lying. See [N.T. 11/20/14 at] 164, 166
      (wherein defense counsel [argued during closing] that [Talada]
      was lying).

Trial Court Opinion, filed 9/21/16, at 6. We find no abuse of discretion in

this regard. Commonwealth v. Judy, 978 A.2d 1015 (Pa.Super. 2009)

(holding the prosecutor may fairly respond to comments made by defense

counsel during closing and may draw fair inferences from the evidence

presented).

      In his fifth claim, Appellant alleges the trial court erred in denying his

pre-trial motion in limine seeking to disqualify the district attorney, Daniel J.

Barrett, Esquire, from prosecuting this case.            Appellant initially avers

disqualification was necessary under the Rules of Professional Conduct since

the district attorney and Talada’s counsel, Patrick Barrett, are brothers.

Appellant additionally suggests disqualification was necessary since the

district attorney had a conflict of interest in that he utilized Talada to present

false testimony against Appellant so that the district attorney could convict

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Appellant, and in return, the district attorney gave his brother’s client

(Talada) favorable treatment

      We note that “[w]e review the trial court's decisions on disqualification

and conflict of interest for an abuse of discretion.”      Commonwealth v.

Sims, 799 A.2d 853, 856 (Pa.Super. 2002).

      In his pre-trial motion, Appellant sought disqualification of the district

attorney under Pennsylvania Rule of Professional Conduct 1.7, which

provides the following:

      Rule 1.7. Conflict of Interest: Current Clients
      (a) Except as provided in paragraph (b), a lawyer shall not
      represent a client if the representation involves a concurrent
      conflict of interest. A concurrent conflict of interest exists if:
             (1) the representation of one client will be directly adverse
      to another client; or
             (2) there is a significant risk that the representation of one
      or more clients will be materially limited by the lawyer's
      responsibilities to another client, a former client or a third person
      or by a personal interest of the lawyer.
      (b) Notwithstanding the existence of a concurrent conflict of
      interest under paragraph (a), a lawyer may represent a client if:
             (1) the lawyer reasonably believes that the lawyer will be
      able to provide competent and diligent representation to each
      affected client;
             (2) the representation is not prohibited by law;
             (3) the representation does not involve the assertion of a
      claim by one client against another client represented by the
      lawyer in the same litigation or other proceeding before a
      tribunal; and
             (4) each affected client gives informed consent.

Pa. R. Prof. Conduct, Rule 1.7.

      In the case sub judice, we conclude the district attorney was not

required to be disqualified under Rule 1.7.      By its plain terms, Rule 1.7


                                     - 18 -
J-S91044-16


relates to a client’s interest as it relates to his attorney. Appellant is not the

client of either Daniel J. or Patrick Barrett.   Simply put, Appellant has not

explained how Rule 1.7 is applicable to his circumstance.

      Furthermore, we find meritless Appellant’s suggestion the district

attorney had a conflict of interest in that he utilized Talada to present false

testimony against Appellant so that the district attorney could convict

Appellant, and in return, the district attorney gave his brother’s client

(Talada) favorable treatment.      The record reveals that Appellant, and not

the district attorney, called Talada as a witness during trial. Moreover, aside

from vague, bald assertions, Appellant has not explained what false

testimony was suborned by the district attorney. Accordingly, the trial court

did not abuse its discretion in denying Appellant’s pre-trial motion seeking

disqualification of the district attorney. See Sims, supra.

      In his final claim, Appellant alleges the trial court erred in permitting

the Commonwealth to amend the Information in violation of Pennsylvania

Rule of Criminal Procedure 564.         Specifically, he avers the trial court

improperly permitted the Commonwealth to amend the original Information

to add new, additional charges resulting in prejudice to him.

      Our rules of criminal procedure allow a trial court to grant a motion to

amend a criminal information “when there is a defect in form, the

description of the offense(s), the description of any person or any property,

or the date charged, provided the information as amended does not charge


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an additional or different offense.” Pa.R.Crim.P. 564. After allowing such an

amendment, “the court may grant such postponement of trial or other relief

as is necessary in the interests of justice.” Id.

      Our courts have applied amendment rules “with an eye toward [their]

underlying purposes and with a commitment to do justice rather than be

bound by a literal or narrow reading of procedural rules.” Commonwealth

v. Grekis, 601 A.2d 1284, 1289 (Pa.Super. 1992). This Court has observed

that “[t]he purpose of Rule 564 is to ensure that a defendant is fully

apprised of the charges, and to avoid prejudice by prohibiting the last

minute addition of alleged criminal acts of which the defendant is

uninformed.” Commonwealth v. Mentzer, 18 A.3d 1200, 1202 (Pa.Super.

2011) (quotation marks and quotation omitted). Thus, our case law “sets

forth a broader test for propriety of amendments than the plain language of

the rule suggests.” Commonwealth v. Mosley, 585 A.2d 1057, 1060

(Pa.Super. 1991) (en banc) (citation omitted).

      In reviewing a challenge to the propriety of an amendment, this Court:

      will look to whether the appellant was fully apprised of the
      factual scenario which supports the charges against him. Where
      the crimes specified in the original information involved the same
      basic elements and arose out of the same factual situation as the
      crime added by the amendment, the appellant is deemed to
      have been placed on notice regarding his alleged criminal
      conduct and no prejudice to defendant results.




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J-S91044-16


Commonwealth v. Sinclair, 897 A.2d 1218, 1222 (Pa.Super. 2006)

(citations omitted). Relief is proper only where the amendment prejudices a

defendant. Id.

      Further, the factors which the trial court must consider in determining

whether an amendment is prejudicial are:

      (1) whether the amendment changes the factual scenario
      supporting the charges; (2) whether the amendment adds new
      facts previously unknown to the defendant; (3) whether the
      entire factual scenario was developed during a preliminary
      hearing; (4) whether the description of the charges changed
      with the amendment; (5) whether a change in defense strategy
      was necessitated by the amendment; and (6) whether the timing
      of the Commonwealth's request for amendment allowed for
      ample notice and preparation.

Id. (citation omitted). Most importantly, we emphasize that “the mere

possibility amendment of information may result in a more severe penalty ...

is not, of itself, prejudice.”   Commonwealth v. Mentzer, 18 A.3d 1200,

1203 (Pa.Super. 2011) (quotation and quotation marks omitted).

      Here, in explaining the reasons it granted the Commonwealth’s motion

to amend the original Information, the trial court relevantly explained as

follows:

            The original [I]nformation charged Criminal Conspiracy—
      Robbery—demand money from financial institution, F2, 18
      Pa.C.S.A. § 903(a)(1) and § 3701(a)(1)(vi) and Robbery—
      demand money from financial institution, F2, 18 Pa.C.S.A. §
      3701(a)(1)(vi). The Commonwealth filed a Motion to Amend
      Information on September 26, 2014, to include: Robbery, F1, 18
      Pa.C.S.A. § 3701(a)(1)(ii); Robbery, F2, 18 Pa.C.S.A. §
      3701(a)(1)(iv), and two counts of Conspiracy to Commit
      Robbery, 18 Pa.C.S.A. § 903(a)(1), and § 3701(a)(1)(iv) and §


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J-S91044-16


      3701(a)(1)(ii). The relevant portions of the robbery statute are
      as follows:

           (a) Offense defined.-
              (1) A person is guilty of robbery if, in the course of
           committing a theft, he:
                                ***
                  (ii) threatens with or intentionally puts him in
           fear of immediate serious injury;
                                ***
                  (iv) inflicts bodily injury upon another or
           threatens another with or intentionally puts him in
           fear of immediate bodily injury;
                                ***
                  (vi) takes or removes the money of a financial
           institution without permission of the financial
           institution by making a demand of an employee of
           the financial institution orally or in writing with the
           intent to deprive the financial institution thereof.
[18 Pa.C.S.A. § 3701(a)(1)(ii), (iv), and (vi).]

            The Commonwealth argued [that] the additional counts
      are cognate offenses of the original charges, are supported by
      the Affidavit of Probable Cause, [allege] no additional elements
      or conduct ... and there is no unfair surprise [to Appellant.]
      [Appellant] argue[d] that the amendments include additional
      elements and conduct which were not alleged in the original
      [I]nformation and complaint[.] [For instance, Appellant alleged
      the following additional elements and conduct were included in
      the amended Information which were not included in the original
      Information and complaint]:

               (a) threatening or putting another in fear of
               immediate serious bodily injury and threatening
               or putting another in fear of bodily injury;
                                ***
               (c) committing the over act “did enter Citizens
               and Northern Bank” and approach Karen Hall and
               state “This is a robbery, put all the money in the
               bag” and brandished a handgun putting her in
               fear of immediate serious bodily injury.

      Defense Answer to Commonwealth’s Motion to Amend, [filed
      9/30/14.] The Amendment to Information was permitted by


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J-S91044-16


     Order of October 23, 2014.    Trial took place on November 20,
     2014.
                                    ***
          [Here, the trial court considered the following factors in]
     permitting the amendment to the [I]nformation:
     (1) The amendments did not change the factual scenario
          supporting the charges. The Affidavit of Probable Cause
          set forth the factual scenario: that two occupants were in a
          Subaru vehicle parked in the parking lot; one occupant
          exited the vehicle wearing a white ball cap, black gloves,
          large sunglasses[,] and a dark winter coat while carrying a
          backpack; he entered the bank building and walked to a
          teller station and stated “This is a robbery, put all the
          money in the bag;” he pulled a handgun out with his right
          hand. [See] Affidavit of Probable Cause.

     (2)   The amendment does not add new facts that were not
           known to [Appellant]. As set forth in (1) above, the facts
           were set forth in the Affidavit of Probable Cause. Further,
           numerous charges in the original [I]nformation allege the
           brandishing of a handgun and/or threatening or putting
           another in fear of immediate serious bodily injury. See
           [Original] Information Count 1 Criminal Conspiracy—
           Robbery, Counts 2 and 3, Criminal Conspiracy—Terroristic
           Threats; Counts 5 and 6, Criminal Conspiracy—Unlawful
           Restraint, Counts 7 and 8 Simple Assault; Counts 9 and
           10; and Criminal Conspiracy—Recklessly Endangering
           Another Person.

     (3)   [Appellant] waived his preliminary hearing. [Appellant]
           argues that he had a right to a preliminary hearing on
           these additional charges. However, again, [Appellant] was
           aware of the factual scenario. Further, [Appellant]
           executed a plea agreement at the time of the preliminary
           hearing wherein term #4 stated “If the Defendant does not
           comply with this agreement, the Commonwealth may
           amend or add to the charges or take other prosecutorial
           options.” See Commonwealth Brief, Exhibit A—Agreement
           at Preliminary Hearing.

     (4)   The description of the charges did not change with the
           amendment. The amended charges were based on
           Robbery.



                                  - 23 -
J-S91044-16


      (5)   [Appellant] did not argue that [his] defense strategy was
            required to change after the amendment.          The only
            [reasonable] defenses available for any of the charges
            would be that [Appellant] did not commit the acts or
            agreement, that he was unaware of [Talada’s] actions, or
            that he abandoned any conspiracy. [Thus, there was no]
            change of defense strategy as a result of the amendment.

      (6)   The request for amendment allowed for ample notice and
            preparation time. The Motion to Amend was filed on
            September 26, 2014. The Amendment was permitted by
            Order of October 23, 2014. Trial took place on November
            20, 2014. [Appellant] did not request a continuance of the
            trial.

                                  ***

            Here, although the elements of “threatens or intentionally
      puts another in fear of bodily injury or serious bodily injury” are
      separate elements, they are not additional facts. [Appellant]
      does not cite any prejudice as a result of the amendment.
      [Appellant] makes only a bald assertion of prejudice in his
      Response [as follows]: “The amendment at this time causes
      unfair surprise and prejudices the defendant in that had the
      more serious allegations been alleged in the complaint, the
      defendant may have opted to challenge a prima facie case of
      guilt on those issues.” However, the serious allegations of
      brandishing a gun and placing another in fear of serious bodily
      injury are set forth in the Affidavit of Probable Cause, the
      complaint, and the original Information. [Thus,] there was no
      prejudice to [Appellant] and no error in permitting the
      amendment to the Information.

Trial Court Opinion, filed 3/11/16, at 12-18.

      In the case sub judice, based upon our review of the certified record, it

is evident that the trial court fully considered the mandates of Pa.R.Crim.P.

564 and its accompanying case law prior to granting the Commonwealth's

motion to amend the criminal Information. We find no abuse of discretion




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J-S91044-16


and conclude the trial court acted well within the boundaries of its role in

granting the Commonwealth’s motion for amendment.

     For all of the foregoing reasons, we affirm the judgment of sentence.

     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017




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