J-A12010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

KEITH ROBERT SCHMOCKER,

                         Appellant                   No. 673 WDA 2018


     Appeal from the Judgment of Sentence Entered December 7, 2017
             In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0010612-2016

BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JULY 23, 2019

      Appellant, Keith Robert Schmocker, appeals from the judgment of

sentence of 6-23 months’ incarceration, imposed following his conviction for

indecent assault. After careful review, we affirm.

      The trial court summarized the facts adduced at trial as follows:

      On August 18, 2016, [Victim] spent the evening celebrating the
      birthday of her best friend Janelle Krisulevicz. After pre-party
      drinks at the home of Janelle’s sister ([Appellant]’s wife) in West
      View[,] Janelle, [Victim], and a few friends ha[d] a few drinks at
      Rum Runners on Babcock Boulevard in the North Hills where they
      were joined by Janelle’s brother-in-law[, Appellant]. Upon leaving
      Rum Runners at around 11:30 pm, [Appellant] and his wife drove
      Janelle and [Victim] back to [Appellant]’s home. [Appellant] and
      his wife went to bed upstairs while Janelle, who was quite
      intoxicated, “passed out” on the couch. At this time, [Victim] fell
      asleep on an oversized chair and ottoman next to Janelle.

      [Victim] was then awake[ne]d by the feeling of someone touching
      her thigh under her dress and digitally penetrating her vagina.
      Upon opening her eyes[,] [Victim] was face to face with
      [Appellant,] who turned [Victim] on her back and pushed her legs
J-A12010-19


     apart. He then whispered to her that there was “a bedroom
     upstairs[;]” it was at this time [Victim] became fearful she would
     be raped. [Victim] screamed for [Appellant] to “get off” and
     pushed him away from her and [Appellant] retreated to the
     kitchen. A crying and distraught [Victim] used her cellphone to
     call her then boyfriend, Officer Scott Seserko, and fled the
     residence. [Victim] drove to her apartment[,] where she met her
     boyfriend and they proceeded to West View Police Station where
     [Victim] recounted the night’s events to Officer Gary Pavlecic, who
     contacted County Detectives.

     Officer Pavlecic testified that although there was an odor of alcohol
     on [Victim]’s breath, she exhibited no signs of intoxication.
     [Victim] then proceeded to UPMC Passavant Hospital where she
     received a rape-kit. Parts of the rape kit were administered to
     [Victim] by Nurse Monica Wynne who is trained as a sexual assault
     nurse.

     At 2:00 am on August 19, 2016, County Detectives Anthony
     Felicion and Darrin Gerlach responded to West View Police
     Department’s request for assistance. Detective Felicion testified
     that he interviewed [Victim] at roughly 3:00 am and although she
     did have alcohol on her breath he did not believe her to be
     intoxicated. After interviewing [Victim], Detectives Felicion and
     Gerlach, accompanied by Officer Pavlecic, made contact with
     [Appellant] at his residence. Janelle Krisulevicz, who had been on
     the couch in the living room testified she was awoken by the sound
     of the steps creaking as her sister descended to open the door for
     the police.    [Appellant] was asked to accompany them to
     Allegheny County Police Headquarters, which he did.            The
     subsequent interview was recorded in both audio and video[,]
     which was played for the jury. During the interview, [Appellant]
     recount[ed] his employment history as both a nurse and an Air
     Force Reserve Medic and a buccal swab was administered to send
     for DNA testing. This [c]ourt witnessed [Appellant]’s reaction
     when he was informed of the accusations and his protestations of
     “no, no, no, no” were not credible. As detectives revealed more
     information to [Appellant] his story changed, until eventually he
     admitted he may have touched [Victim]’s genitals as he attempted
     to pick her up and became concerned his DNA might be present.

     Scientist Ashley Platt of the Forensic Biology Section of the
     Allegheny County Office of the Medical Examiner, testified as to
     the testing she performed on the samples collected in the rape kit,
     as well as those collected from [Appellant]. Ms. Platt opined the

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       only DNA found in the victim was that of [Victim], and this result
       is possible in cases of digital penetration, because it is like
       “searching for a needle in a haystack.”

       First Lieutenant Michael A. Cilli, Medical Director of the 911th[
       Airlift Wing of the Air Force Reserve Command,] as well as Head
       Medical Administrator for the Aeromedical Staging Squadron
       stationed in Pittsburgh[,] was called by the Commonwealth to
       testify in his capacity as an Air Force Medic. Lt. Cilli testified as to
       the training he and [Appellant] have received working as Air Force
       Medics and that they are trained in the use of the “fireman’s
       carry.” Lt. Cilli testified that they are not trained in a carry that
       would involve placing their hand behind a woman’s back and their
       other hand on the vagina in order to lift.

Trial Court Opinion (“TCO”), 10/16/18, at 2-5 (citations omitted).

       The Commonwealth charged Appellant with two counts of aggravated

indecent assault, 18 Pa.C.S. §§ 3125(a)(1) and (a)(4), and two counts of

indecent assault, 18 Pa.C.S. §§ 3126(a)(1) and (a)(4). Following a trial held

on August 1, 2017, a jury convicted Appellant of one count of indecent assault

(subsection (a)(1)), and acquitted him of the remaining offenses.                 On

December 7, 2017, the trial court sentenced Appellant to 6-23 months’

incarceration, and a consecutive term of 30 days’ probation.1 Appellant filed

a timely post-sentence motion, which the court denied on April 5, 2018.

       Appellant filed a timely notice of appeal, and a timely, court-ordered

Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion

on October 16, 2018. Appellant now presents the following questions for our

review:

____________________________________________


1 The trial court also ordered Appellant to register under Pennsylvania’s Sex
Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10–9799.41,
for a period of 15 years.

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     [I.] Did [t]he [trial c]ourt abuse its discretion and commit an error
     of law, as well as deny [Appellant] [d]ue [p]rocess, by failing to
     grant [his] motion for judgment of acquittal as no evidence or
     insufficient evidence was introduced at trial, failing to establish
     beyond a reasonable doubt that [Appellant] took any action or
     made any statements indicating he made contact with [the]
     complainant for the purpose of arousing or gratifying sexual
     desire?

     [II.] Did [t]he [trial c]ourt abuse its discretion and commit an
     error of law, as well as deny [Appellant] [d]ue [p]rocess, by failing
     to grant [his] motion for a new trial based upon the weight of the
     evidence as the guilty verdict is contrary to the weight of the
     evidence and the interests of justice must be served by granting
     [him] a new trial?

     [III.] Did [t]he [trial c]ourt abuse its discretion and commit an
     error of law, as well as deny [Appellant] [d]ue [p]rocess, by failing
     to grant [his] motion for a new trial based upon the weight of the
     evidence as the fact of the alleged victim’s intoxication and/or the
     fact that [Appellant]’s DNA was not found on the victim are so
     clearly of greater weight that to ignore them or to give them equal
     weight with all the facts is to deny justice and the interests of
     justice must be served by granting [him] a new trial?

     [IV.] Did [t]he [trial c]ourt abuse its discretion and commit an
     error of law, as well as deny [Appellant] [d]ue [p]rocess, by failing
     to grant [his] motion for a [n]ew [t]rial [b]ased [u]pon [c]onduct
     of the [p]rosecutor as remarks by the prosecutor made during
     opening statements, throughout trial, and in the closing argument
     were of such a nature or were delivered in such a manner that it
     may reasonably be said to have deprived [Appellant] of a fair or
     impartial trial and had the unavoidable effect of prejudicing the
     jury and forming in their minds a fixed bias and hostility toward
     [Appellant] such that they could not weigh the evidence
     objectively and render a true penalty determination, and the
     interests of justice must be served by granting [him] a new trial[?]

     [V.] Did [t]he [trial c]ourt abuse its discretion and commit an error
     of law, as well as deny [Appellant] [d]ue [p]rocess, by failing to
     grant [his] motion for a [n]ew [t]rial [b]ased [u]pon [m]isconduct
     of [a w]itness as remarks made by witness Robert Huttenhower
     were of such a nature and were delivered in such a manner that
     it may reasonably be said to have deprived [Appellant] of a fair or
     impartial trial and had the unavoidable effect of prejudicing the


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     jury and forming in their minds a fixed bias and hostility toward
     [him] such that they could not weigh the evidence objectively and
     render a true penalty determination, and because the jury was
     swayed by a his outbursts of grief a new trial should be granted?

     [VI.] Did [t]he [trial c]ourt abuse its discretion and commit an
     error of law, as well as deny [Appellant] [d]ue [p]rocess, by failing
     to grant [his] motion for a [n]ew [t]rial [b]ased [u]pon
     [i]mproperly [a]dmitted [t]estimony and [e]vidence which
     constituted a material part of the Commonwealth’s case and which
     had a substantial effect on the verdict and were improperly
     admitted, and had the unavoidable effect of prejudicing the jury
     and forming in their minds a fixed bias and hostility toward
     [Appellant] such that they could not weigh the evidence
     objectively and render a true penalty determination, and a
     substantial wrong or miscarriage has been occasioned thereby
     entitling [Appellant] to a new trial when:

        - Testimony of [Victim]’s employment with the Office of the
        District Attorney of Allegheny County was improperly
        admitted; and

        - Witness Monica Wynne was asked to offer an opinion, but
        was not an expert witness and testified to speculation
        regarding alleged victims affect; and

        - [Victim] was asked leading questions regarding a finger
        being inserted into her vagina and her relationships with
        people in the criminal justice system; was asked irrelevant
        questions regarding how long she had been dating witness
        Scott Seserko; was asked questions on redirect examination
        beyond the scope of cross examination; and

        - Witness Scott Seserko was asked for his experience
        responding to sex assault cases with a lack of foundation
        being laid; and

        - Expert Witness Ashley Platt was asked an improper
        question regarding whether male DNA would be detected on
        a vaginal swab if there was digital penetration; and

        - Witness Lt. Michael Cilli was not qualified to answer
        questions regarding firemen’s training and was asked an
        improper question regarding non-emergency training
        regarding a hold used to lift a woman by her vagina; and



                                     -5-
J-A12010-19


        - Witness Col. Sharon Colaizzi was asked questions on
        cross[-]examination beyond the scope of direct[-
        ]examination; and

        - Witness Janelle Krisulevicz was asked irrelevant questions
        regarding the time she spent and the activities she
        undertook at [Appellant]’s house and an irrelevant question
        about good times she had in the last year; and

        - Witness Robert Huttenhower was permitted to testify but
        is not a prompt complaint witness, his testimony is
        needlessly cumulative, and his testimony caused unfair
        prejudice; and

        - Witness Ashley Platt improperly testified beyond the scope
        of the four corners of her expert report.

     [VII.] Did [t]he [trial c]ourt abuse its discretion and commit an
     error of law, as well as deny [Appellant] [d]ue [p]rocess, by failing
     to grant [Appellant]’s motion for a [n]ew [t]rial [b]ased [u]pon
     [i]mproper [i]nstructions to the [j]ury because a charge given by
     the [trial c]ourt to the jury was based upon a mistaken view of
     the applicable law when [t]he [c]ourt charged the jury as to Count
     3 [(]Indecent Assault[),] and the interests of justice must be
     served by granting [Appellant] a new trial?

     [VIII.] Did [t]he [trial c]ourt abuse its discretion and commit an
     error of law, as well as deny [Appellant] [d]ue [p]rocess, in
     imposing sentence as [his] sentence was above the standard
     range, starting in the aggravated range, and exceeding the
     aggravated range[, and] fail[ed] to call for confinement that is
     consistent with the protection of the public, the gravity of the
     offense as it relates to the impact on the life of the victim and on
     the community, and the rehabilitative needs of [Appellant]; and
     the [c]ourt failed to consider the background and character of
     [Appellant], the circumstances of the crime, and impose a
     sentence that is consistent with the protection of the public and
     the rehabilitative needs of [Appellant]; and the [c]ourt failed to
     cite accepted aggravating factors or factors equivalent to those
     accepted, so the interests of justice will be served by modifying
     the sentence?

     [IX.] Did [t]he [trial c]ourt abuse its discretion and commit an
     error of law, as well as deny [Appellant] [d]ue [p]rocess, by failing
     to vacate [the] sentence as any pending motions must be
     disposed of before sentencing, and only after such motions have

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J-A12010-19


       been argued and ruled upon may the trial judge [issue a]
       sentence…, and at the time of sentencing of [Appellant] a [m]otion
       for a [n]ew [t]rial was pending so the interests of justice will be
       served by vacating the sentence?

Appellant’s Brief at 7-14 (unnumbered in original).2

       Appellant’s first claim concerns the sufficiency of the evidence.      Our

standard of review of sufficiency claims is well-settled:

       A claim challenging the sufficiency of the evidence is a question of
       law. Evidence will be deemed sufficient to support the verdict
       when it establishes each material element of the crime charged
       and the commission thereof by the accused, beyond a reasonable
       doubt. Where the evidence offered to support the verdict is in
       contradiction to the physical facts, in contravention to human
       experience and the laws of nature, then the evidence is insufficient
       as a matter of law. When reviewing a sufficiency claim[,] the court
       is required to view the evidence in the light most favorable to the
       verdict winner giving the prosecution the benefit of all reasonable
       inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (cleaned up).

       Appellant was convicted under the following provision of the indecent

assault statute:

       A person is guilty of indecent assault if the person has indecent
       contact with the complainant, causes the complainant to have
       indecent contact with the person or intentionally causes the
       complainant to come into contact with seminal fluid, urine or feces



____________________________________________


2 We remind Appellant’s counsel that “[t]he statement of the questions
involved must state concisely the issues to be resolved, expressed in the
terms and circumstances of the case but without unnecessary detail.”
Pa.R.A.P. 2116(a) (emphasis added). Appellant’s statement of the questions
involved covers seven pages of his brief, whereas his summary of the
argument covers five pages of the same. This strongly suggests that
Appellant’s counsel demonstrated little effort, if any, to conform to the
Appellate Rules in the drafting of Appellant’s brief.

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      for the purpose of arousing sexual desire in the person or the
      complainant and:

         (1) the person does so without the complainant’s consent;

18 Pa.C.S. § 3126(a)(1). “Indecent contact” is “[a]ny touching of the sexual

or other intimate parts of the person for the purpose of arousing or gratifying

sexual desire, in any person.” 18 Pa.C.S. § 3101.

      Appellant argues “[n]o evidence was introduced at trial” that he “had

indecent contact with the complainant for the purpose of arousing sexual

desire in himself or the complainant.” Appellant’s Brief at 25. Thus, Appellant

challenges the sufficiency of the Commonwealth’s evidence in demonstrating

the mens rea element of indecent assault—that the touching occurred for the

purpose of arousing sexual desire. The trial court disagreed, reasoning that

the jury could infer that the Commonwealth’s burden had been met because,

inter alia, the jury could infer Appellant’s intent by the nature of the contact

itself. See TCO at 10. We agree.

      In Commonwealth Capo, 727 A.2d 1126 (Pa. Super. 1999), this Court

agreed with an argument presented by the Commonwealth that “the gropings

and pawings forcibly imposed on the victim are not consistent with artistic

interest or friendship, but speak eloquently of a failed attempt to gratify sexual

desire more directly.” Id. at 1128. Here, the victim’s testimony that she was

awoken to Appellant’s digitally penetrating her vagina is sufficient evidence of

an intent to gratify sexual desire. A reasonable inference of such intent can

be derived from the act itself, and we must “view the evidence in the light

most favorable to the verdict winner giving the prosecution the benefit of all

                                      -8-
J-A12010-19



reasonable inferences to be drawn from the evidence.” Widmer, 744 A.2d at

751. That other, asexual inferences are possible from the same act does not

undermine this conclusion, as the jury was free to reject such inferences.

Accordingly, Appellant’s first claim lacks merit.

      Appellant’s second and third claims concern the weight of the evidence.

Indeed, we can discern no difference between the claims, which both allege

that the jury ignored “both the intoxication of the alleged victim and the lack

of [Appellant]’s DNA on the alleged victim[,]” Appellant’s Brief at 27, and that

such 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. at 29.

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court:

         Appellate review of a weight claim is a review of the exercise
         of discretion, not of the underlying question of whether the
         verdict is against the weight of the evidence. Because the
         trial judge has had the opportunity to hear and see the
         evidence presented, an appellate court will give the gravest
         consideration to the findings and reasons advanced by the
         trial judge when reviewing a trial court’s determination that
         the verdict is against the weight of the evidence. One of the
         least assailable reasons for granting or denying a new trial
         is the lower court’s conviction that the verdict was or was
         not against the weight of the evidence and that a new trial
         should be granted in the interest of justice.

      This does not mean that the exercise of discretion by the trial court
      in granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is unfettered.             In
      describing the limits of a trial court’s discretion, we have
      explained:

         The term “discretion” imports the exercise of judgment,
         wisdom and skill so as to reach a dispassionate conclusion

                                      -9-
J-A12010-19


          within the framework of the law, and is not exercised for the
          purpose of giving effect to the will of the judge. Discretion
          must be exercised on the foundation of reason, as opposed
          to prejudice, personal motivations, caprice or arbitrary
          actions. Discretion is abused where the course pursued
          represents not merely an error of judgment, but where the
          judgment is manifestly unreasonable or where the law is not
          applied or where the record shows that the action is a result
          of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (cleaned up).

       Appellant’s weight claims border on frivolity. He cites to no case law

suggesting that a factfinder cannot find credible the testimony of victim of a

sexual offense if they were intoxicated at the time the abuse occurred or when

they reported it.3 Nor does Appellant cite to any case law remotely suggesting

that the absence of a defendant’s DNA on the victim in a sexual assault case

renders the victim’s testimony describing the assault not credible.

       Appellant cites to several cases for boilerplate weight-of-the-evidence

and reasonable-doubt law, but provides no analysis of those cases in light of

the facts presented in the case sub judice. Moreover, in none of those cases

did a court conclude that the trial court abused its discretion in concluding that

the verdict was not against the weight of the evidence. See Commonwealth

v. Brown, 648 A.2d 1177, 1191 (Pa. 1994) (“There is nothing in the record

which was likely to shock the trial court’s sense of justice and cry out for a

new trial in order to permit justice to prevail.”). In one case, In re J.B., 106

A.3d 76 (Pa. 2014), our Supreme Court remanded after concluding that the

____________________________________________


3In any event, as discussed infra, numerous witnesses testified that Victim
was not intoxicated.

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J-A12010-19



juvenile defendant had not waived his weight-of-the-evidence claim, and did

not even address the merits of that claim. In two other cases, the Supreme

Court did not address a weight-of-the-evidence claim at all.                  See

Commonwealth        v.   Fugmann,     198     A.   99   (Pa.   1938);   and   see

Commonwealth v. Green, 141 A. 624 (Pa. 1928).

      Here, the trial court rejected Appellant’s weight claims for the following

reasons:

      [Appellant] rather nebulously alleges that the victim’s intoxication
      was “clearly of greater weight.” This [c]ourt’s review of the
      transcript shows four separate individuals, a nurse, two police
      officers, and a county detective who all stated they did not believe
      the victim to be intoxicated, as well as the victim herself.

      [Appellant] likewise alleges that great weight must be afforded to
      the fact that [his] DNA was not found on the vagina swab taken
      [from] the victim. Expert witness Ashley Pratt testified that this
      is often a common result and that finding DNA in this situation
      amounts to “finding a needle in a haystack.” In fact, [Appellant]’s
      counsel managed to get the expert witness to appear to agree
      that touch DNA is of skeptical validity. The jury chose to believe
      the expert’s testimony that the absence of DNA would not be
      unexpected in this kind of case.         For the above reasons
      [Appellant]’s above claims must fail.

TCO at 11-12 (citations omitted). We agree with the trial court, and ascertain

no abuse of discretion in its denial of Appellant’s motion for a new trial based

on the weight of the evidence.

      In his fourth claim, Appellant alleges prosecutorial misconduct,

contending that the prosecutor made remarks during opening arguments,

throughout the course of the trial, and during closing arguments that

ostensibly “deprived [Appellant] of a fair or impartial trial and had the


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unavoidable effect of prejudicing the jury and forming in their minds a fixed

bias and hostility toward [him] such that they could not weigh the evidence

objectively….” Appellant’s Brief at 30.

       With one exception, all of the prosecutor’s comments that are discussed

in Appellant’s Brief, see id. at 32-35, occurred during closing arguments. At

no point did Appellant make a contemporaneous objection to those comments,

nor does he point to the portion of the record where he objected.4 Accordingly,

he waived that aspect of his prosecutorial misconduct claim, as “[i]ssues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.”    Pa.R.A.P. 302(a); see also Pa.R.A.P. 2117(c)(4) (requiring an

appellant to identify in the statement of the case where in the record a claim

was “timely and properly raised below”). Moreover, because Appellant failed

to identify the specific remarks complained of in his Rule 1925(b) statement,

the trial court was unable to address them. This constitutes an additional

ground upon which to deem this aspect of Appellant’s claim waived.        See



____________________________________________


4 Notably, Appellant provided a reproduced record in this case containing only
portions of the trial transcripts. However, the full transcripts were not
provided for our review and, thus, we could not discover where else in the
record Appellant’s claim might have been preserved. We remind counsel that:
“It has repeatedly been held by our courts that the burden to produce a
complete record for appellate review rests, solely with the appellant.”
Commonwealth v. Dunkle, 932 A.2d 992, 996 n.2 (Pa. Super. 2007)
(quoting Commonwealth v. Chopak, 615 A.2d 696, 701 n.5 (Pa. 1992)).




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Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not

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

      Furthermore, Appellant does not discuss any comments by the

prosecutor made during the trial itself. Accordingly, that aspect of Appellant’s

claim is waived and/or meritless. However, the Commonwealth concedes that

Appellant did object during opening arguments to the prosecutor’s use of the

term “predator” to describe him. Accordingly, we will review that aspect of

Appellant’s claim.

      It is well settled [that] a prosecutor may employ oratorical flair in
      arguing to the jury.          Such arguments do not constitute
      prosecutorial misconduct when the remarks are based upon the
      evidence or proper inferences deduced therefrom. An improper
      statement during the prosecutor’s closing [or opening] argument
      will warrant a new trial only when the unavoidable effect of the
      statement is to prejudice the jury against the defendant, or
      prevent it from weighing the evidence objectively and rendering a
      true verdict.

Commonwealth v. Patton, 985 A.2d 1283, 1287 (Pa. 2009).

      Appellant provides numerous citations of boilerplate case law, but

virtually no analysis of that case law in light of the Commonwealth’s use of

the term “predator” to describe Appellant during its opening argument. The

Commonwealth argues:

      Pennsylvania’s Appellate Courts have previously ruled that similar
      statements comparing criminals to hunters and victims as prey
      are permissible. See Commonwealth v. Miller, 897 A.2d 1281,
      1291 (Pa. Super. 2006) ([holding that the] Commonwealth’s
      opening and closing statements concerning use of noun “predator”
      and verb “preys” to describe defendant did not warrant new trial;
      defendant asked her victim for money and when refused, came
      back with hammer and knife and bludgeoned and stabbed her to


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       death, slitting her throat, and in the days that followed, she
       returned to victim’s apartment and stole checks, credit cards, and
       victim’s car, each time walking past victim’s corpse sitting at
       kitchen table, such that defendant’s actions could reasonably be
       termed predatory); Commonwealth v. Miles, 681 A.2d 1295,
       1300 (Pa. 1996) (concluding [that the] prosecutor’s comparison
       of defendant’s actions to the hunting style of “animals of prey”
       was not improper); Commonwealth v. Van Horn, 797 A.2d 983,
       989 (Pa. Super. 2002) (holding prosecutor’s characterization of
       victim as prey was within the limits of proper oratorical flair).
       Here, as noted by the lower court, the trial testimony established
       that [Appellant] attempted to take sexual advantage of what he
       believed to be an unconscious woman. Describing [Appellant] as
       a predator was certainly the product of a fair deduction from the
       prospective evidence. Based on the evidence produced during
       trial, the “predator” characterization proved to be as applicable
       here as it was in Miller, Miles and Van Horn.

Commonwealth’s Brief at 13-14.

       We agree with the Commonwealth, and note that Appellant fails to

distinguish this case from that of Miller, Miles and Van Horn. Accordingly,

we conclude that the trial court did not err when it declined to sustain

Appellant’s objection to the Commonwealth’s use of the term “predator.”

Thus, Appellant is not entitled to a new trial.

       Next, Appellant asserts that Robert Huttenhower, Victim’s father,

testified in a manner that deprived him of a fair trial.5 However, Appellant did

not issue a contemporaneous objection to either remark complained of and,

____________________________________________


5 When asked to describe his daughter, Mr. Huttenhower stated: “We have a
nickname for her. She is our smiling girl. And she [was] very bubbly, always
smiling, … prior to the assault.” N.T., 8/2/17-8/8/17, at 295. When asked if
the victim described the assault to him, he replied, “We did ask the details,
which no father should hear, but she did give the details.” Id. at 297.
Appellant describes these statements as “outbursts of grief.” Appellant’s Brief
at 41.

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therefore, he waived this issue for our review. Pa.R.A.P. 302(a). In any event,

even if we were to reach the merits of the claim, we agree with the

Commonwealth that Appellant’s characterization of Mr. Huttenhower’s

comments as outbursts of grief constitutes a “flagrant misrepresentation” of

the record. Commonwealth’s Brief at 17. As the trial court indicates: “There

[were] no outbursts by Mr. Huttenhower. There were no tears. This [c]ourt

even went as far as to place on the record that Mr. Huttenhower had conducted

himself with the utmost dignity and restraint.       For [Appellant] to claim

otherwise is simply, patently, and unequivocally false.”          TCO at 13.

Accordingly, if Appellant had not waived this issue, we would deem it

meritless.

      In Appellant’s sixth issue, he asserts no less than ten separate sub

claims that different testimonial remarks were inadmissible, or that they were

the product of improper questioning. No common thread of evidentiary rules

bind these claims.

      As the Appellate Rules dictate, “[t]he argument shall be divided into as

many parts as there are questions to be argued[.]”          Pa.R.A.P. 2119(a).

Additionally, the Rules state unequivocally that each question an appellant

raises is to be supported by discussion and analysis of pertinent authority. Id.

Appellate arguments which fail to adhere to these rules may be considered

waived, and arguments which are not appropriately developed are waived.

See Commonwealth v. Murchinson, 899 A.2d 1159, 1160 (Pa. Super.

2006) (deeming the appellant’s claims waived under Rule 2119(a) because he

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did not develop meaningful argument with specific references to relevant

caselaw and to the record to support his claims); see also Commonwealth

v. Heilman, 867 A.2d 542, 546 (Pa. Super. 2005) (recognizing that failure to

provide “such discussion and citation of authorities as are deemed pertinent”

may result in waiver); Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa.

Super. 2004) (declining to review the appellant’s claim where there was

limited explanation and development of the argument).

      As the Commonwealth accurately describes the argument presented in

support of Appellant’s sixth claim,

      [he] does not develop his claims in any meaningful way, nor does
      he bother to explain how each these various instances allegedly
      reflected an abuse of discretion by the trial court. He has cited no
      case law that would tend to specifically establish that any of these
      utterances were improper or inadmissible.            His conclusory
      allegations utterly fail to satisfy his burden of persuasion on
      appeal or to establish that he is entitled to any type of relief.

Commonwealth’s Brief at 18. Because Appellant’s argument in support of his

sixth claim constitutes a blatant and egregious violation of Rule 2119(a), we

deem it, and all subsidiary issues contained within, waived.

      In Appellant’s seventh claim, he asserts that that trial court improperly

instructed the jury that it could find Appellant guilty of indecent assault if he

acted recklessly with regard to the victim’s consent. Given that the element

of indecent contact requires “the purpose of arousing or gratifying sexual

desire, in any person[,]” 18 Pa.C.S. § 3101, he asserts it is not possible to

“recklessly make indecent contact for a purpose.”       Appellant’s Brief at 47

(emphasis added).

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      Appellant cites no authorities for this argument. The Commonwealth

contends that Appellant initially objected to that portion of the jury instruction,

but subsequently withdrew that objection.         Commonwealth’s Brief at 18.

Indeed, in its Rule 1925(a) opinion, the trial court indicated “[d]efense

[c]ounsel stated on the record that his own research convinced him of the fact

that the instructions were correct.” TCO at 14. Moreover, Appellant provides

no analysis or counterargument suggesting that this claim was preserved for

our review and his argument is, therefore, unresponsive to the trial court’s

opinion. Accordingly, we deem this claim waived as well.

      In Appellant’s penultimate claim, he asserts that the sentence imposed

by the trial court constituted an abuse of its discretion.

             Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must invoke
      this Court’s jurisdiction by satisfying a four-part test:

         [W]e conduct a four-part analysis to determine: (1) whether
         [the] appellant has filed a timely notice of appeal, see
         Pa.R.A.P. 902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, see Pa.R.Crim.P. [720]; (3) whether [the]
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
         (4) whether there is a substantial question that the sentence
         appealed from is not appropriate under the Sentencing
         Code, 42 Pa.C.S.[] § 9781(b).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
      appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal
      citations omitted). Objections to the discretionary aspects of a
      sentence are generally waived if they are not raised at the
      sentencing hearing or in a motion to modify the sentence imposed.
      Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003),
      appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

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            The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis. Commonwealth v.
      Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
      exists “only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent
      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.”
      Sierra, supra at 912-13.

            As to what constitutes a substantial question, this Court
      does not accept bald assertions of sentencing errors.
      Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
      2006). An appellant must articulate the reasons the sentencing
      court’s actions violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

      Instantly, Appellant failed to include a statement pursuant to Rule

2119(f) in his brief. The Commonwealth objects to Appellant’s noncompliance

with that rule. Commonwealth’s Brief at 21. “If the Commonwealth objects

to the appellant’s failure to comply with [Rule] 2119(f), the sentencing claim

is waived for purposes of review.” Commonwealth v. Griffin, 149 A.3d 349,

353 (Pa. Super. 2016).     Accordingly, Appellant’s discretionary-aspects-of-

sentencing claim is waived.

      Finally, Appellant contends that the trial court erred when it failed to

decide his motion for a new trial before sentencing him.      The trial court

addresses this claim as follows:

      [Appellate] Counsel[, Ryan A. Mergl, Esq.,] is deliberately
      misconstruing the timeline and facts as presented in the
      transcript. Said motion was not filed until the morning of the
      sentencing hearing by appellate counsel who had just entered his
      representation on this case. Trial counsel had yet to withdraw.
      [N.T. Sentencing, 12/7/17, at] 30-31. Appellate counsel was
      asked directly by this [c]ourt “it is my understanding the [c]ourt
      has 120 days from the filing of this motion to dispose of the
      motion. Does everyone agree with that?” Attorney Merg[]l

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J-A12010-19


      responded “Yes, Your Honor.” [Id. at] 31; 11-18. Attorney
      Merg[]l asked for oral argument on his motion and out of basic
      fairness this [c]ourt gave the Commonwealth thirty (30) days to
      file a responsive motion and set a date of January 31 to have
      argument. [Id. at] 32-33. Finally, Attorney Merg[]l then stated
      he wished to submit a brief on his motion within the thirty (30)
      days. [Id. at] 34-35. This [c]ourt finds this argument to be
      misleading, self-serving, specious, and one that is entirely
      produced by the actions of appellate counsel. Under appellate
      counsel[’]s view of practice it would be possible for a defendant to
      avoid sentencing simply by inundating the [c]ourt with
      superfluous motions that would have to be disposed of prior to
      sentencing. That is not how justice works—determinations are
      made and a case moves forward in a timely and orderly fashion.

      The above argument aside, this claim is meritless due to the fact
      that a Motion for a New Trial is an optional post-sentence motion
      under     Pennsylvania       Rule     of    Criminal   Procedure
      720(B)(i)(a)(iv). By its very definition, [Appellant]’s motion
      should not have been ruled upon until AFTER sentencing. There
      is simply no merit to this claim and it must be dismissed.

TCO at 16-17 (emphasis in original).

      Appellant argues that “[a]ny pending motions, such as motions for a

new trial, must be disposed of before sentencing, and only after such motions

have been argued and ruled upon may the trial judge sentence [the]

defendant.” Appellant’s Brief at 51-52. He cites two cases for this proposition,

Commonwealth v. Souder, 101 A.2d 693 (Pa. 1954), and Commonwealth

v. Middleton, 364 A.2d 342 (Pa. Super. 1976).           Appellant provides no

analysis of either case in his argument.

      In Souder, a four-paragraph opinion by our Supreme Court, the Court

reversed the order of the Superior Court, which had remanded for

resentencing, because “the defendants’ motions for new trial remained

undisposed of.” Souder, 101 A.2d at 694. No analysis was provided by our


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Supreme Court in that decision, nor did the High Court cite any previous

decision, statute, or rule of procedure.

      In Middleton, this Court applied former Pa.R.Crim.P. 1123, which had

stated, in pertinent part, that “[p]ost-verdict motions must be decided before

sentencing, because the appeal lies from the final Order of the trial court,

which includes sentence.” Middleton, 364 A.2d at 345 (quoting Rule 1123

(repealed)). The Commonwealth argues that since Rule 1123 is no longer in

effect, Appellant cannot rely on that rule for relief. We agree that Rule 1123,

now repealed, cannot provide Appellant relief.

      However, Pa.R.Crim.P. 704 provides, in pertinent part, as follows:

      (B) Oral Motion for Extraordinary Relief.

         (1) Under extraordinary circumstances, when the interests
         of justice require, the trial judge may, before sentencing,
         hear an oral motion in arrest of judgment, for a judgment
         of acquittal, or for a new trial.

         (2) The judge shall decide a motion for extraordinary relief
         before imposing sentence, and shall not delay the
         sentencing proceeding in order to decide it.

         (3) A motion for extraordinary relief shall have no effect on
         the preservation or waiver of issues for post-sentence
         consideration or appeal.

Pa.R.Crim.P. 704(B).

      Thus, if a trial court decides to consider a post-verdict, pre-sentence

motion for a new trial, it must decide such a motion before proceeding to

sentence a defendant. In other words, a trial court is not obliged to consider

post-verdict motions at all, but may do so at its discretion. If it chooses to



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J-A12010-19



consider such motions, Rule 704 dictates that the court “shall” rule on the

motion before sentencing.6         Id.    Nevertheless, for the following reasons,

Appellant is not entitled to relief.

       It is clear from the record that the trial court treated Appellant’s motion

for a new trial as a prematurely filed post-sentence motion, not as a Rule

704(B) motion. After acknowledging that the motion had been filed, the trial

court stated: “The [c]ourt’s going to review that. The [c]ourt’s going to make

a determination as to whether it wants to have a hearing on this matter or

not. It’s my understanding the [c]ourt has 120 days from the filing of this

motion to dispose of the motion.”          N.T. Sentencing, 12/7/17, at 31.   Rule

704(B) has no provisions that contemplate a hearing before a decision is made

on a Rule 704(B) motion. To the contrary, Rule 704(B)(2) dictates that the

court “shall decide a motion for extraordinary relief before imposing sentence,

and shall not delay the sentencing proceeding in order to decide it.”

Pa.R.Crim.P. 704(B)(2) (emphasis added). By the same token, the court does

not have 120 days from the filing of a Rule 704(B) motion to decide—the rule

requires an immediate decision. However, for optional post-sentence motions

filed pursuant to Rule 720(B), “the court shall … determine whether a hearing

or argument on the motion is required[,]” see Rule 720(B)(2)(b), and the

court has 120 days to decide such a motion, see Rule 720(B)(3)(a). Thus, it
____________________________________________


6 Notably, appellate counsel did not cite Rule 704(B) in the motion for a new
trial filed on Appellant’s behalf, orally at the sentencing hearing, or in
Appellant’s brief. As such, it appears that he arrived at a vaguely correct
recitation of the applicable, current rule purely by accident.

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J-A12010-19



is clear that the trial court treated Appellant’s motion as if it were a

prematurely filed, optional post-sentence motion filed pursuant to Rule

720(B), not as a Rule 704(B) motion.               As the court was not required to

consider a Rule 704(B) motion at all, we ascertain no error or abuse of

discretion in the trial court’s actions in this regard.

       In any event, Appellant made no objection to the manner in which the

trial court indicated it would address his motion. When apprised of the court’s

intention to determine whether a hearing was required, and to reach a decision

within 120 days, counsel did not object. Indeed, counsel explicitly agreed

with the court as to the manner in which it was going to proceed on deciding

the motion.     See N.T. Sentencing, 12/7/17, at 31.          Finally, Appellant has

provided no analysis, whatsoever, regarding how he was prejudiced by the

court’s failure to decide the motion prior to sentencing.7 Thus, his final claim

is waived, moot, and/or meritless.

       Judgment of sentence affirmed.




____________________________________________


7 We note that Appellant’s pre-sentence, post-verdict motion presented the
same weight-of-the-evidence claim that he subsequently preserved in a post-
sentence motion, and which we addressed above pursuant to issue III. Thus,
Appellant has not been denied the opportunity to have that claim reviewed on
the merits.

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J-A12010-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/2019




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