J-S24034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GABRIEL PASTRANA                           :
                                               :
                       Appellant               :   No. 3056 EDA 2018

             Appeal from the Judgment of Sentence May 17, 2018
     In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-XX-XXXXXXX-2017


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

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JUNE 12, 2019

       Appellant Gabriel Pastrana appeals from the judgment of sentence

entered on May 17, 2018, in the Court of Common Pleas of Monroe County as

made final by the denial of post-sentence motions on September 13, 2018.1

We affirm.

       The trial court aptly set forth the relevant facts and procedural history

herein as follows:

            [Appellant] was convicted by jury on February 8, 2018 of
       two criminal offenses and by the [c]ourt of several summary
____________________________________________


1 We note that Appellant purported to appeal the “Order and Opinion imposed
in this matter on September 13, 2018,” wherein the trial court denied his post-
sentence motions. In a criminal action, appeal properly lies from the judgment
of sentence made final by the denial of post-sentence motions. See
Commonwealth v. Shamberger, 788 A.2d 408, 410 (Pa.Super. 2001). We
have corrected the caption accordingly.



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S24034-19


     criminal offenses. [Appellant] was convicted by jury of Count III,
     75 Pa.C.S. §3802(a)(1), Driving Under the Influence of Alcohol -
     General Impairment, Third Offense; and Count IV, 75 Pa. C.S.
     §3742.1(a). Accident Involving Death or Injury-Not Properly
     Licensed. Count I and II of the Criminal Information were
     withdrawn by the Commonwealth at trial. [Appellant] was found
     guilty by the [c]ourt of the following summary offenses: 75 Pa.
     C.S. §1543(b)(1), Driving With A Suspended License Pursuant to
     §3802/1547(b)(1); 75 Pa. C.S. §3323(b), Duties at Stop Sign; 75
     Pa. C.S. §3361, Driving at Safe Speed; 75 Pa. C.S. §3714(a),
     Careless Driving; 75 Pa. C.S. §3736(a), Reckless Driving.
           The facts of this case were testified to during trial. The
     underlying act involved a two-vehicle accident which occurred late
     on February 4, 2017 into early morning February 5, 2017. That
     time period coincided with Super Bowl Sunday. N.T., 2/8/18, p.
     19. During half-time of the game, Thomas Cunningham drove his
     wife from their home in Monroe County to St. Luke's Hospital-
     Anderson Campus in Bethlehem Twp. to retrieve her vehicle. N.T.,
     2/8/18, p.21. On the return trip Mr. Cunningham was driving by
     himself along Old Route 115 in the area of Saylorsburg, Monroe
     County, PA. N.T. 2/8/18, p. 22. Old Route 115 and Hamilton South
     Road intersect in the vicinity of Saylorsburg with a stop sign facing
     drivers turning from Hamilton South onto Old Route 115. N. T
     2/8/18, p.70. There is no stop sign on Old Route 115. N.T.,
     2/8/18, p.70. As Mr. Cunningham approached the intersection he
     observed a vehicle that did not appear to be slowing for the stop
     sign on Hamilton South. NJ., 2/8/18, p.22. Fearing the oncoming
     driver would run the stop sign and strike him, Mr. Cunningham
     sped up. N.T., 2/8/18, p. 22. Nevertheless, a collision occurred.
     Mr. Cunningham remained in his vehicle until assistance arrived
     and was later taken to the hospital with a broken rib and
     contusions to his knee, ankle, and lower leg. N.T., 2/8/18, p.30-
     31.
           Meanwhile, the occupants of the other vehicle, [Appellant]
     and his 18 year-old brother, Elson Pastrana, exited their vehicle.
     [Appellant] and Elson Pastrana were returning from a Super Bowl
     Party at the home of friends of Elson Pastrana's girlfriend's
     parents. N.T., 2/8/18, p.42. The car they were in was owned by
     and registered to [Appellant]. N.T., 2/8/18, p. 156. [Appellant]
     estimated that he had consumed approximately six beers during
     the party and at least one shot of clear liquor. N.T., 2/8/18.,
     p.159. An ambulance operated by EMT Joyce Schuster arrived on
     the scene prior to the arrival of Pennsylvania State Troopers Justin
     S. Magluilo and Kevin Kreidler. During the course of the troopers'

                                     -2-
J-S24034-19


      investigation, [Appellant] and his brother were separated. N.T.,
      2/8/18, p.118. By all accounts of the testimony offered at trial,
      [Appellant] was severely intoxicated at this point. Trooper Kreidler
      interviewed Elson Pastrana at the scene. N.T., 2/8/18, p. 118.
      Elson Pastrana initially stated he was operating the vehicle at the
      time of the accident, but upon further questioning by Trooper
      Kreidler, admitted [Appellant] had actually been operating the
      vehicle. N.T., 2/8/18, p.118. Elson Pastrana then also told Trooper
      Magluilo that he was the passenger and [Appellant] was the
      driver. N.T., 2/8/18, p.72. [Appellant] was requested to perform
      field sobriety tests which he refused. N.T., 2/8/18, p. 77. At that
      point, [Appellant] was arrested and placed in the back of Trooper
      Kreidler's car on suspicion of driving under the influence. Trooper
      Magluilo then gave Elson Pastrana a ride to his girlfriend's home.
      N.T 2/8/18, p.78.
             [Appellant] was sentenced by the [c]ourt on May 17, 2018.
      As to Count III, [Appellant] was sentenced to a minimum of three
      months[’] incarceration and maximum of twelve months plus fines
      and costs. As to Count IV, [Appellant] was sentenced to a
      minimum of three months[’] incarceration and a maximum of six
      months plus fines and costs. These two sentences were ordered
      to run consecutively. As to the 75 Pa. C.S. §1543(b) violation,
      [Appellant] was sentenced to the statutorily required minimum
      sixty days[’] incarceration to run concurrent to the sentences in
      Count III and IV. [Appellant] was ordered to pay fines and costs
      for the remainder of the summary offenses. [Appellant] filed
      timely Post-Sentence Motions on May 25, 2018. A hearing was
      held on [Appellant’s] motions on June 25, 2018, at which time the
      Court heard argument from defense counsel and the
      Commonwealth.

Trial Court Opinion, filed 9/13/18, at 1-3.

      On September 13, 2018, the trial court denied Appellant’s post-

sentence motions, and on October 12, 2018, Appellant filed his notice of

appeal. On October 15, 2018, the trial court ordered Appellant to file a concise

statement of the matters complained of on appeal, and Appellant complied on

October 30, 2018.    On that same date, the trial court filed its Statement

Pursuant to Pa.R.A.P. 1925(a) wherein it stated it had adequately addressed


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in its September 13, 2018, Opinion and Order the issues Appellant raised in

his Statement of Matters Complained of Pursuant to Pa.R.A.P. 1925(b).

        In his appellate brief, Appellant presents the following questions for this

Court’s review:

                 1. Should a judgment of acquittal be granted because the
                    jury verdict was against the weight of the evidence,
                    which was insufficient to convict, and the verdict was
                    based upon conjecture?

                 2. Should Appellant be granted a new trial because the
                    Commonwealth presented two eyewitnesses at trial,
                    one of whom was not identified in the discovery
                    materials and the other, who was listed as an
                    eyewitness, made a statement regarding the Appellant
                    which was not included in the discovery materials?

Appellant’s Brief at 4 (unnecessary capitalization omitted).2

        In both his Statement of Matters Complained of Pursuant to Pa.R.A.P.

1925(b) and his appellate brief, Appellant conflates challenges to the

sufficiency and weight of the evidence in arguing that the sole witness who

could identify Appellant as the driver of the vehicle was his brother, Elson

Pastrana, who testified that he, not Appellant, was operating the vehicle at

the time of the collision. However, this Court has stressed that challenges to

the weight and sufficiency of the evidence are distinct. Commonwealth v.

Richard, 150 A.3d 504, 517–18 (Pa.Super. 2016). As we have explained,

        [a] challenge to the weight of the evidence is distinct from a
        challenge to the sufficiency of the evidence in that the former
        concedes that the Commonwealth has produced sufficient
____________________________________________


2   The Commonwealth has not filed an appellate brief.

                                           -4-
J-S24034-19


     evidence of each element of the crime, “but questions which
     evidence is to be believed.” Commonwealth v. Charlton, 902
     A.2d 554, 561 (Pa.Super. 2006), appeal denied, 590 Pa. 655, 911
     A.2d 933 (2006). “A new trial should not be granted because of a
     mere conflict in the testimony or because the judge on the same
     facts would have arrived at a different conclusion.”
     Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1055
     (2013). “Rather, the role of the trial judge is to determine that
     notwithstanding all the facts, certain facts are so clearly of greater
     weight that to ignore them or to give them equal weight with all
     the facts is to deny justice.” Id. (citation omitted). “It has often
     been stated that a new trial should be awarded when the jury's
     verdict is so contrary to the evidence as to shock one's sense of
     justice and the award of a new trial is imperative so that right may
     be given another opportunity to prevail.” Id.

Richard, supra, at 516–17.      In addition, in reviewing a challenge to the

weight of the evidence, this Court has stated:

     The weight of the evidence is exclusively for the finder of fact who
     is free to believe all, part, or none of the evidence and to
     determine the credibility of the witness. An appellate court cannot
     substitute its judgment for that of the finder of fact. Thus, we may
     only reverse the lower court's verdict if it is so contrary to the
     evidence as to shock one's sense of justice. Moreover, 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.
     Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003).

Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013), appeal

denied, 622 Pa. 755, 80 A.3d 774 (2013).

     Herein, Appellant challenged the weight of the evidence to support his

convictions in a timely post-sentence motion which the trial court denied;

therefore, he properly raised this challenge before the trial court. See

Pa.R.Crim.P. 607(A)(1)-(3) (claim the verdict was against the weight of the

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J-S24034-19


evidence shall be raised before or after sentencing). Notwithstanding,

although he claims the “verdict was against the weight of the evidence” he

provides no legal argument or support to develop this claim, for in his concise

statement and the first question presented in his appellate brief, he further

states that evidence was “insufficient to convict.” Also, in the first sentence

of the argument portion of his brief, Appellant states his “first claim is a

challenge to the sufficiency of the evidence[,]” and he cites to caselaw

pertaining only the sufficiency of the evidence thereafter.        See Brief for

Appellant at 13-16. In addition, the trial court viewed Appellant’s challenge

as to the sufficiency of the evidence. See Trial Court Opinion, filed 9/13/18,

at 4. As such, Appellant has waived a challenge to the weight of the evidence

on appeal due to his failure to develop it fully in his brief. See

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super. 2007), appeal

denied, 603 Pa. 679, 982 A.2d 509 (2017) (noting failure to develop

adequately an argument in an appellate brief may result in waiver of the claim

under Pa.R.A.P. 2119).

      Even if Appellant had developed a proper challenge to the weight of the

evidence, such a claim provides him no basis for relief. When, as herein, the

challenge to the weight of the evidence is predicated on the credibility of trial

testimony, this Court’s review of the trial court's decision is extremely limited.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.Super. 2009), appeal

denied, 607 Pa. 690, 3 A.3d 670 (2010). “On issues of credibility and weight


                                      -6-
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of the evidence, an appellate court defers to the findings of the trial [court],

who has had the opportunity to observe the proceedings and demeanor of the

witnesses.” Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa.Super.

2002) (citations omitted), appeal denied, 573 Pa. 663, 820 A.2d 703 (2013).

Thus, generally, unless the evidence is so unreliable or contradictory as to

make any verdict based thereon pure conjecture, these types of claims will be

rejected on appellate review. Commonwealth v. Trippett, 932 A.2d 188,

198 (Pa.Super. 2007).

      The trial court opined on the credibility of the witnesses as follows:

             Upon careful review of the trial transcript and exhibits
      produced in this case we find that the Commonwealth provided
      sufficient evidence that [Appellant] was operating his vehicle on
      the night of the accident. [Appellant] is correct that no eyewitness
      was able to definitively testify that he was driving. However, the
      Commonwealth may establish its case through circumstantial
      evidence. Com. v. Wilson, 225 Pa. Super. 513, 312 A.2d 430, 432
      (1973). "Our jurisprudence does not require fact-finders to
      suspend their powers of logical reasoning or common sense in the
      absence of direct evidence." Com. v. Teems, 2013 PA Super 147,
      74 A.3d 142, 148 (2013).
             Both [Appellant] and Elson Pastrana claimed at trial that
      [Appellant] had not been driving. Elson Pastrana stated that he
      had told one of the troopers that he was the designated driver,
      but that the trooper "got up in [his] face and [the trooper] was
      questioning [him.]." N.T., 9/8/18, p.45. Elson Pastrana further
      testified that he felt disorientated and threatened and finally just
      agreed with the trooper in implicating his brother so that he could
      leave and go home. N.T., 9/8/18, p.45. However, Trooper Kreidler
      denied threatening Elson Pastrana. N.T., 9/8/18, p.135. Trooper
      Kreidler explained that he did not believe Elson Pastrana's
      explanation because in his experience the crash scene did not lend
      itself to have been caused by a sober driver, and that it was not
      unusual for him to further question someone who did not appear
      truthful at the scene of an accident. N.T., 9/8/18, p.1 18, 137
      Trooper Kreidler also stated that while questioning Elson Pastrana,

                                     -7-
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     he would not meet his eyes and was answering very quietly. N.T
     9/8/18, p.118.
            This information alone could cast sufficient doubt on the
     validity of Elson Pastrana's testimony at trial for the jury to have
     disregarded it. By Elson Pastrana's own admission, he gave two
     conflicting statements to the troopers who responded to the
     accident. The [c]ourt's charge advised the jury to consider
     whether testimony was "uncertain or confused, self-contradictory
     or evasive." N.T., 9/8/18, p.204. Further, the jury was told to
     consider whether a witness had any motive that may have
     affected [his or her] testimony. N.T., 9/8/18, p.204. As the
     Commonwealth pointed out, Elson Pastrana had a very real
     interest in protecting his brother from conviction and possible
     imprisonment, casting his testimony into doubt. As already stated,
     "[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." Com. v. Johnson at 262-263
     (emphasis added). This was also an instruction given to the jury.
            The validity of Elson Pastrana's testimony was further called
     into doubt by Trooper Magluilo's testimony. Trooper Magluilo
     testified that during all of his interactions with the witness, Elson
     Pastrana stated that he had been the passenger in [Appellant’s]
     vehicle and [Appellant] was driving. N.I 2/9/18, p.72. Also, upon
     questioning by the Commonwealth, Elson Pastrana denied making
     any statements about Defendant to Trooper Magluilo while being
     transported to his girlfriend's home. N.T., 2/8/18, 47-48.
     However, Trooper Magluilo stated that during the ride, Elson
     Pastrana had a "disappointed look on his face" and repeatedly
     mentioned that he did not understand why [Appellant] kept "doing
     things like this" and making mistakes. N.T., 2/9/18, p.79. Again,
     this testimony could clearly call into question Elson Pastrana's
     statements made at trial and lead the jury to disbelieve him. The
     jury was free to accept the testimony of Elson Pastrana at trial, or
     the troopers' testimony at trial, or some or none. The jury chose
     to believe the troopers' testimony in finding [Appellant] guilty.
            In addition to the testimony of Elson Pastrana and the
     troopers, the Commonwealth presented two other witnesses that
     reported odd behavior between [Appellant] and Elson Pastrana at
     the accident scene. Mr. Cunningham reported that after the
     accident, while still in his vehicle, [Appellant] approached his
     vehicle and began demanding to know how much Mr. Cunningham
     had been drinking. N.T., 2/8/18, p.31-32. As the Commonwealth
     suggested during its closing, and the jury could have inferred, this


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     was odd behavior from someone who had just been in an accident.
     It is possible that with the sum of all of the evidence before it, the
     jury believed that [Appellant] asked Mr. Cunningham this question
     in hopes that the victim had also been drinking and would not
     report the accident to the police. Finally, the responding EMT, Ms.
     Schuster, testified to her unusual observations of the [Appellant].
     The [Appellant] physically pushed her towards Mr. Cunningham's
     vehicle, was slurring his speech, and acted in a belligerent
     manner. N.T., 2/8/18, p.104. While she was administering to Mr.
     Cunningham, Ms. Schuster heard [Appellant] say to Elson
     Pastrana "tell them you were driving. You were driving, right? Just
     tell them that you were driving." NJ., 2/8/18, p.107. All of this
     evidence certainly could have convinced the jury [Appellant] was
     the driver, and that he was under the influence of alcohol. The
     testimony conflicted in part with [Appellant’s] testimony and Elson
     Pastrana's testimony, but does not mean the jury had to find it
     less convincing.
            In response to the evidence provided by the
     Commonwealth, [Appellant] chose to testify on his own behalf
     during trial. [Appellant] adamantly denied driving his vehicle the
     night of the accident and stated his brother had always been the
     planned designated driver. N.T., 2/8/18, p.150. [Appellant] stated
     that he was using the GPS on his phone to guide his brother and
     that the accident occurred when they were both looking at the
     phone. N.T., 2/8/18, p.151-152. However, considering all of the
     testimony as a whole, we do not find it unreasonable that the jury
     disbelieved [Appellant’s] testimony. First of all, it is undisputed
     that [Appellant] was severely intoxicated at the time of the
     accident. Ms. Schuster, Mr. Cunningham and both troopers
     reported [Appellant] showed signs of intoxication. On cross-
     examination, [Appellant] admitted that when he approached Mr.
     Cunningham he was still under the effects of alcohol. N.T., 2/8/18,
     p. 163. Additionally, the jury viewed an MVR from Trooper
     Magluilo's vehicle. In the video [Appellant] is seen speaking to the
     trooper in a belligerent manner and visibly wavering back and
     forth while leaning against the trooper's vehicle, unable to keep
     himself upright. Commonwealth's Exhibit "5," 17:50-18:12. This
     level of intoxication could easily have caused the jury to doubt
     [Appellant’s] recollection of the events, especially in light of the
     testimony of the other witnesses. The jury could also have chosen
     to disbelieve [Appellant] and Elson Pastrana in part or in full. A
     "witness's credibility is solely for the jury to determine." Com. v.
     Simmons, 541 Pa. 211, 229, 662 A.2d 621, 630 (1995). Viewing
     this testimony in the light most favorable to the verdict winner, it

                                     -9-
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      could clearly be inferred that there was sufficient evidence
      [Appellant] had been driving and attempted to persuade his
      brother to lie to the police. Therefore, we find that the
      Commonwealth provided sufficient evidence at trial to sustain the
      verdict.

Trial Court Opinion, filed 9/13/18, at 5-9.

      After a careful review of the certified record, we would ascertain no

abuse of discretion by the trial court.

      To the extent Appellant attempts to develop a challenge the sufficiency

of the evidence, we note that:

            In order to preserve a challenge to the sufficiency of the
      evidence on appeal, an appellant's Rule 1925(b) statement must
      state with specificity the element or elements upon which the
      appellant alleges that the evidence was insufficient. Such
      specificity is of particular importance in cases where, as here, the
      appellant was convicted of multiple crimes each of which contains
      numerous elements that the Commonwealth must prove beyond
      a reasonable doubt. Commonwealth v. Stiles, 143 A.3d 968,
      982 (Pa.Super. 2016) (internal quotation marks omitted).

Commonwealth v. Richard, 150 A.3d 504, 517–18 (Pa.Super. 2016).

      Herein, Appellant was convicted of multiple offenses each of which

contains numerous elements, yet his Rule 1925(b) statement does not identify

with specificity the elements of any crime or identify those which he alleges

the Commonwealth has failed to prove. On this basis alone, we could find this

issue waived. See Richard, supra.

      Notwithstanding, even if Appellant had presented an adequate Rule

1925(b) statement, we would find no merit to this claim. While Appellant did

not specify the allegedly unproven element or elements of his convictions in



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his Rule 1925(b) statement, his sufficiency challenge developed in his

appellate brief stems from his position that he was not driving the vehicle, as

proven by his brother’s testimony.    As stated previously, such a challenge

goes to the weight, not the sufficiency of the evidence. See Commonwealth

v. Samuel, 102 A.3d 1001, 1005 (Pa.Super. 2014), appeal denied, 635 Pa.

742, 134 A.3d 56 (2016) (stating a claim that the Commonwealth's evidence

was incredible goes to the weight, not the sufficiency, of the evidence).

      Appellant next argues he should be granted a new trial because, over

objection, the Commonwealth presented the testimony of Joyce Schuster who

had not been identified in the discovery materials and Thomas Cunningham

who was listed as an eyewitness but made a statement at trial regarding

Appellant that had not been included in the discovery materials. Appellant

first maintains that Mr. Cunningham was permitted to “amplify” at trial the

information he had provided to the police to include a statement that Appellant

approached the window of his vehicle as asked Mr. Cunningham how much he

had been drinking. Appellant stresses the Commonwealth did not supplement

the discovery prior to trial, although the prosecutor indicated that he learned

of this information, which Mr. Cunningham stated he had not told police, late

the previous evening. Brief for Appellant at 17-18.

      Appellant next maintains the Commonwealth’s failure to disclose the

existence of Joyce Schuster, whose testimony “is tantamount to a confession

from the Appellant, [as] it corroborates the Commonwealth’s theory of the


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case with words directly from the mouth of the Appellant” was “extremely

prejudicial” to him.    Id. at 18-20.      Specifically, Appellant avers “[t]he

testimony offered by Ms. Schuster was extremely prejudicial to [] Appellant

because she not only claimed that he was drunk and disorderly, even pushing

her, but also that he was attempting to convince Elson Pastrana to tell the

police that he was driving.”        Id. at 19.      Appellant argues that the

Commonwealth was under a continuing duty to disclose this additional

evidence, which was discovered on the eve and morning of trial, and its failure

to do so deprived him of an opportunity to reconsider his trial strategy and

entitles him to a new trial. Id. at 21-23.

      This Court will reverse a trial court's decision regarding the admissibility

of evidence only when the appellant sustains the heavy burden of establishing

that the trial court has abused its discretion. An abuse of discretion will not be

found based on a mere error of judgment, but rather exists where the court

has reached a conclusion which overrides or misapplies the law, or where the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will. Commonwealth v. Frein, 2019 WL 1866731, at

*14 (Pa. Apr. 26, 2019) (citation and quotation marks omitted).

      Appellant’s first argument pertains to the following exchange between

the prosecutor and Mr. Cunningham:


      [The Prosecutor] Okay. Now, after this collision occurred, you
      stated you weren’t able to get out of your car. But did you have
      any contact or see anybody come up to your car?

                                     - 12 -
J-S24034-19



     [Mr. Cunningham]: Very shortly after the impact, someone came
     up to my window and was yelling into the car, How much you been
     drinking? How much you been drinking?

     [The Prosecutor] Okay. And how did that strike you?

     [Mr. Cunningham]: I said, What? Why is somebody asking me
     this?

     [The Prosecutor]: And was there any other conversation with that
     person?

     [Mr. Cunningham]: They continued to ask me, How much you
     been drinking? I said, I haven’t drank anything. Who the hell are
     you? Get away from me. It was really odd.

     [The Prosecutor: And who was—

     [Defense Counsel]: Your Honor, may we approach?

     THE COURT: Yes.

           (Whereupon, the following took place outside the hearing of
     the jury.)

     [Defense Counsel]: I don’t have anything in discovery or in a
     police report regarding this.   Nothing at all regarding any
     statements made by this person.

     THE COURT: Uh-huh.

     [Defense Counsel]: So—

     [The Prosecutor]: That’s accurate. The witness told me--I talked
     to him late yesterday. He told me he didn’t tell the police this.
     He didn’t view it as important to the accident itself.

     THE COURT: All right. Well, I’ll allow it.



     [Defense Counsel]: It wasn’t in the report.


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J-S24034-19


      THE COURT: You can cross-examine him on that. . . .

N.T. Trial 2/8/18, at 31-33. At no point thereafter did defense counsel ask for

a recess or continuance, nor did he otherwise express a view that the

Commonwealth had committed a discovery violation. To the contrary, he did

not respond at all when the trial court indicated Mr. Cunningham would be

subject to cross-examination on Appellant’s alleged statement to him. Id. at

33. Instead, counsel cross-examined Mr. Cunningham regarding his failure to

tell police previously that someone from the other vehicle had spoken to him

at the scene, at which time the latter indicated he could not recall being

questioned by any officer at that time. Id. at 37-39.

      Initially, we note that the basis of Appellant’s objection at trial that Mr.

Cunningham’s aforementioned testimony was outside the scope of the police

report is not the same as the prosecutorial misconduct argument he advances

in his appellate brief. It is axiomatic that in order to preserve a claim for

appeal, a party must make a timely and specific objection at trial. Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”); Commonwealth v Pearson, 685 A.2d 551,

555 (Pa.Super. 1996), appeal denied, 549 Pa. 699, 700 A.2d 439 (1997) “[A]n

appellant may not raise a new theory for an objection made at trial on his

appeal[;]” see also Commonwealth v. McGriff, 160 A.3d 863, 866,

reargument denied (June 20, 2017), appeal denied, 644 Pa. 372, 176 A.3d

853 (2017) (to preserve an issue for review, a party must make a timely and


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specific objection at trial, for this Court will not consider claim on appeal not

called to trial court's attention at a time purported error could have been

corrected). Even constitutional claims are waived if they are not raised before

the trial court. Commonwealth v. Kennedy, 598 Pa. 621, 959 A.2d 916,

922 (2008) cert. denied, 556 U.S. 1258, 129 S.Ct. 2433, 174 L.Ed.2d 229

(2009) (finding Sixth Amendment issue waived where defendant failed to raise

objection on this basis at trial). The penalty of waiver is the result for failing

to object, even in capital appeals. Commonwealth v. Ballard, 622 Pa. 177,

80 A.3d 380, 406 (2013), cert. denied, 573 U.S. 940, 134 S.Ct. 2842, 189

L.Ed.2d 824 (2014). As such, we find this claim waived.

      Notwithstanding the foregoing, on cross-examination, Mr. Cunningham

explained that while he may have been asked “one or two questions” by police,

he did not have extensive discussions with them, and he could not remember

the details of the conversations he might have had with the officers. N.T. at

38.    He did specifically state that he “did not have any conversations with

police regarding someone speaking with [him].” Id. He indicated that he did

not reveal this information to the ADA until a “couple days ago.”            This

testimony explains why such information was not in any police report and

evinces that Mr. Cunningham did not reveal it until the eve of trial; therefore,

as the trial court determined, the Commonwealth did not fail to provide

evidence or written discoverable statements within its possession or




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knowledge, because there was no written or recorded statement pertaining to

Mr. Cunningham’s conversation with Appellant to obtain.

      Moreover, as one who was present at the scene of the accident, Mr.

Cunningham hardly can be deemed a surprise witness, and it is not unforeseen

that he may have observed more than the brief details noted in the police

report.   Appellant subjected Troopers Magluilo and Kreidler as well as Mr.

Cunningham to a thorough cross-examination in this regard, and the jury was

free to make credibility determinations following that testimony.       Finding no

error in the trial court’s evidentiary rulings in this regard, no relief is due.

      Appellant next contends the Commonwealth had a continuing duty to

disclose Joyce Schuster’s anticipated testimony. Prior to her testifying at trial,

defense counsel requested an offer of proof. N.T. Trial, 2/8/18, at 97. The

Commonwealth responded by explaining that Ms. Schuster was an EMT who

responded to the scene of the accident and witnessed Appellant tell his brother

to indicate that he had been driving.        She would express her belief that

Appellant had been intoxicated and describe his behavior as “belligerent.” Id.

at 97-98. In response, the following exchange occurred:

            [Defense Counsel]: Yeah. I’m just going to make an
      objection based upon the fact that none of this was in the
      discovery. Nothing with Ms. Schuster, no statements, no mention
      of her person. I don’t think she’s even mentioned as an individual
      who was present.
            [The Prosecutor]: It is not in the police reports. We—I
      discovered it this morning in speaking with Trooper Magluilo who
      is not the affiant. He is right, Trooper – I’m sorry, [defense
      counsel]. It was not in reports, but he did mention her presence
      at the scene.

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J-S24034-19


             And actually, interestingly, Judge, as the [c]ourt will hear
     when the MVR is played later, this is what drew my attention to
     it. I listened to the MVR previously and was focused more on the
     field sobriety test portion. But as I listened to other portions of
     the MVR last evening, I heard Trooper Magluilo making a reference
     to hearing from someone, meaning Trooper Magluilo hearing from
     someone that the brother had been witnessed putting pressure on
     the other brother. In other words, [Appellant] had been witnessed
     putting pressure on the other brother.
             So that led to my curiosity because as I heard Trooper
     Magluilo say it on the MVR last evening. I questioned Trooper
     Magluilo about it this morning. He then referenced that he
     believed it was this particular person. He then reached out to her
     and arranged for her to come and testify this morning. So I
     literally knew nothing about who she was or any specifics until this
     morning when we reached out to have her here.
     THE COURT: The objection is noted. It’s overruled I’ll allow her
     to testify.
     [The Prosecutor]: Thank you, Your Honor.

Id. at 98-99. Defense counsel made no further objection, and direct

examination of Ms. Schuster immediately ensued.

     Once again, Appellant did not ask for a recess, continuance or mistrial

in light of Ms. Schuster’s proposed testimony, nor did he otherwise express a

view that the Commonwealth had committed a discovery violation or violated

the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d

215 (1963). In light of this failure, Appellant’s arguments pertaining to Ms.

Schuster’s subsequent testimony are waived. See Pearson, supra.

     However, Appellant is entitled to no relief on the merits.        As the

Pennsylvania Supreme Court has explained:

           Under Brady and subsequent decisional law, a prosecutor
     has an obligation to disclose all exculpatory information material
     to the guilt or punishment of an accused, including evidence of an
     impeachment       nature.   See,    e.g.,   Commonwealth        v.

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J-S24034-19


     Hutchinson, 611 Pa. 280, 25 A.3d 277, 310 (2011). To establish
     a Brady violation, an appellant must prove three elements:
           (1) the evidence at issue was favorable to the accused,
           either because it is exculpatory or because it impeaches;
           (2) the evidence was suppressed by the prosecution,
           either willfully or inadvertently; and (3) prejudice
           ensued.
     Hutchinson, supra (citation omitted).
             The burden rests with the appellant to “prove, by reference
     to the record, that evidence was withheld or suppressed by the
     prosecution.” Id. (citation omitted). The evidence at issue must
     have been “material evidence that deprived the defendant of a fair
     trial.” Id. (citation and emphasis omitted). “Favorable evidence is
     material, and constitutional error results from its suppression by
     the government, if there is a reasonable probability that, had the
     evidence been disclosed to the defense, the result of the
     proceeding would have been different. A reasonable probability is
     a probability sufficient to undermine confidence in the outcome.”
     Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 450
     (2011) (quoting Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct.
     1555, 131 L.Ed.2d 490 (1995)).
             Brady does not require the disclosure of information “that
     is not exculpatory but might merely form the groundwork for
     possible arguments or defenses,” nor does Brady require the
     prosecution to disclose “every fruitless lead” considered during a
     criminal investigation. Id. (citation omitted). The duty to disclose
     is limited to information in the possession of the government
     bringing the prosecution, and the duty does extend to exculpatory
     evidence in the files of police agencies of the government bringing
     the prosecution. Commonwealth v. Puksar, 597 Pa. 240, 951
     A.2d 267, 283 (2008); Commonwealth v. Lesko, 609 Pa. 128,
     15 A.3d 345, 370 (2011) (applying Kyles, supra at 438, 115
     S.Ct. 1555). Brady is not violated when the appellant knew or,
     with reasonable diligence, could have uncovered the evidence in
     question, or when the evidence was available to the defense from
     other sources. Commonwealth v. Smith, 609 Pa. 605, 17 A.3d
     873, 902–03 (2011); Paddy, supra at 451.
             Brady sets forth a limited duty, not a general rule of
     discovery for criminal cases. Paddy, supra at 451 (citing
     Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51
     L.Ed.2d 30 (1977) for the proposition that “there is no generalized
     constitutional right to discovery in a criminal case, and Brady did
     not create one”).


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J-S24034-19


Commonwealth v. Roney, 622 Pa. 1, 22–28, 79 A.3d 595, 607–08 (2013),

cert. denied, 135 S.Ct. 56, 190 L.Ed.2d 56, 83 USLW 3185 (2014).

        While he acknowledges that the Commonwealth was not aware of Ms.

Schuster until the morning of trial, Appellant asserts that under Brady and

Pa.R.C.P. 573(G)3 it remained obligated to disclose her name.           Appellant’s


____________________________________________


3   The rule in question requires the following disclosure by the Commonwealth:

        (1) Mandatory. In all court cases, on request by the defendant,
        and subject to any protective order which the Commonwealth
        might obtain under this rule, the Commonwealth shall disclose to
        the defendant's attorney all of the following requested items or
        information, provided they are material to the instant case. The
        Commonwealth shall, when applicable, permit the defendant's
        attorney to inspect and copy or photograph such items.
              (a) Any evidence favorable to the accused that is material
        either to guilt or to punishment, and is within the possession or
        control of the attorney for the Commonwealth;
              (b) any written confession or inculpatory statement, or the
        substance of any oral confession or inculpatory statement, and
        the identity of the person to whom the confession or inculpatory
        statement was made that is in the possession or control of the
        attorney for the Commonwealth;
              (c) the defendant's prior criminal record;
              (d) the circumstances and results of any identification of the
        defendant by voice, photograph, or in-person identification;
              (e) any results or reports of scientific tests, expert opinions,
        and written or recorded reports of polygraph examinations or
        other physical or mental examinations of the defendant that are
        within the possession or control of the attorney for the
        Commonwealth;
              (f) any tangible objects, including documents, photographs,
        fingerprints, or other tangible evidence; and
              (g) the transcripts and recordings of any electronic
        surveillance, and the authority by which the said transcripts and
        recordings were obtained.

Pa.R.Crim.P. 573.

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J-S24034-19


argument focuses primarily upon Ms. Schuster’s testimony, and he claims that

“[h]ad it been disclosed, and her impeachment been planned, the result of the

case could have been different.”        Brief for Appellant at 22.     In doing so,

Appellant highlights the following statements:

      [Ms. Schuster]: As I was leaning in the [Cunningham] car, [ ]
      Appellant was leaning in over, as I'm trying to talk, [Appellant
      was] still yelling. At that point I just kind of blocked it out because
      I was trying to talk to him. . . .

      [The Prosecutor]: Through the course of this event, were you able
      to hear any other conversations [Appellant] had with the person
      you later found out was his brother?

      [Ms. Schuster]: Yes, I did. When we pulled up on scene and I
      asked if they were okay, one of my questions on every accident
      scene was, Who is driving? And the other brother just stood there
      like a deer in headlights. He just had this look on his face like he
      didn't know how to respond. And as I was walking up, I had heard
      [Appellant] say to the brother, Tell them you were driving. You
      were driving, right? Just tell them that you were driving.

Brief for Appellant at 19 (citations to reproduced record omitted) citing N.T.

Trial 2/8/18, at 105-06; 107.

      Appellant   has   not   carried     his    burden   to   establish   that   the

Commonwealth withheld any evidence concerning Ms. Schuster which was

favorable to his defense.     First, as the trial court states, see infra, her

testimony cannot be viewed as clearly exculpatory. See Trial Court Opinion,

filed 9/13/18, at 9.    Also, Appellant’s arguments ignore the fact that the

Commonwealth clearly indicated Ms. Schuster’s name did not appear on any

of the discovery in its possession, and it was the prosecutor’s repeat viewing

of the MVR which led him to inquire about her. Appellant was free to view the

                                        - 20 -
J-S24034-19


MVR prior to trial and make the same inquiries which led the Commonwealth

to Ms. Schuster, whom the prosecutor met on the same day her identity was

revealed to Appellant.

      In addition, the trial court made additional findings in this regard:

            [W]e do not find that Ms. Schuster’s testimony was either
      exculpatory or tantamount to a confession.


                                     ***

      Based upon Ms. Schuster’s testimony, the jury could have taken
      the words of [Appellant] to mean he had been driving and was
      trying to convince Elson Pastrana to take the blame, or that he
      had not been driving and was urging his brother to tell the truth.
      The statement was up to the jury to interpret a meaning.
      Furthermore, the statement did not appear to be one that the
      Commonwealth was aware of prior to trial, and therefore, not a
      statement in the possession or control of the attorney for the
      Commonwealth.

                                     ***
      [Appellant] could have investigated the matter and learned of Ms.
      Schuster’s observations prior to trial. She was not a protected
      witness and she was an uninvolved third party to the accident.
      Even if her name was not in the accident report, it was noted that
      an ambulance responded to the scene, and that information could
      have been further investigated. Finally, the information was not
      so prejudicial that relief was necessary. The statement as given
      could be interpreted for or against [Appellant] as the driver. The
      issue of intoxication was not in question, considering all other
      evidence, so that portion of the testimony was not prejudicial
      either. Therefore, we find no error in allowing Ms. Schuster’s
      testimony under the circumstances.

Trial Court Opinion, filed 9/13/18, at 13-14.




                                     - 21 -
J-S24034-19


      In sum, Appellant's claims of a Brady violation have been waived, but

even if we were to review these claim on the merits, as did the trial court, we

would find they fail.   Appellant is entitled to no relief on his second issue.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/19




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