Com. v. Ames, T.

• Court: Superior Court of Pennsylvania
• Decided: December 19, 2022
• Docket: 1387 MDA 2021
• Status: Unpublished

Opinion

J-S32024-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TROY DAVID AMES : : Appellant : No. 1387 MDA 2021

Appeal from the Judgment of Sentence Entered September 14, 2021 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005889-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TROY DAVID AMES : : Appellant : No. 1388 MDA 2021

Appeal from the Judgment of Sentence Entered September 14, 2021 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005878-2019

BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: DECEMBER 19, 2022

Appellant, Troy David Ames, appeals from the aggregate judgment of

sentence of 40½ to 81 years of incarceration, imposed following his

convictions for nine counts, all of which involve the domestic abuse of his

then-spouse. We affirm.

The essential facts are straightforward, as the case turned on the

credibility of the victim, L.A. She and Appellant met in November of 2014 and J-S32024-22

married in June of 2015. N.T., 4/19-23/21, at 129. The couple and their

child, born in 2017, shared a residence. Id. On Saturday, October 28, 2018,

Appellant came home at approximately 3:00 a.m. Id. at 130. Appellant was

visibly intoxicated and entered their bedroom, where L.A. was sleeping. Id.

at 131. He straddled L.A. and put a butcher knife against her neck, telling her

that he was going to kill her. L.A. begged Appellant to stop and managed to

grab the knife and throw it. Id. at 132. Appellant began punching her head

and face with a closed fist, telling her that she was going to die. Id. at 134.

Appellant eventually took a pillow, held it over her face, and began

choking her. Id. at 134-35. Appellant ultimately ended the attack on his own

and told her to “do what you want to do.” Id. at 136. Both were bleeding

and Appellant told her to take a shower with him. He began crying, “asking

why [she] made him do what he did[.]” Id. at 138. Afterwards, Appellant

told her to perform oral sex. L.A. said she did not want to and that she was

in pain and scared. Id. at 139. She started but “stopped and said [she]

couldn’t do it.” Id. Appellant then forcibly engaged in anal and vaginal

intercourse, telling her “to be quiet and enjoy it.” Id. Afterwards, Appellant

fell asleep. While he slept, L.A. took pictures of her injuries and sent them to

a friend. Id. at 141. The following Monday she sought treatment at a walk-

in clinic, where she made an excuse for her injuries.1

____________________________________________

1These acts formed the basis for the charges at docket 2019-5889. Appellant was charged with one count each of the following crimes: sexual assault, 18 (Footnote Continued Next Page)

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L.A. stayed with Appellant for a few days and then stayed with her

parents for three nights. Id. at 143. She returned home because Appellant

called her to apologize and say that he loved her. Id. at 145. When she

walked inside, Appellant pushed her against the wall and choked her with both

hands. Id. at 146. He said “if [she] called the police, he was going to kill

[her] and cut [her] body up in pieces and bury [her.]” Id.2

In December, L.A. left Appellant and, at some point over the next two

months, contacted his parole agent. Appellant’s parole conditions were

modified to include a no contact provision, which Appellant violated by

contacting L.A. via phone and Skype. Id. at 161. Appellant instructed her

“to drop the no contact order or he was going to drive his truck through [her]

office building.” Id.

L.A. testified that this was not the first time Appellant abused her. In

September of 2015, Appellant came home drunk and started beating L.A. with

his fists. She escaped and ran to a neighbor’s yard. Appellant gave chase

and pulled her home by the hair, where he continued beating her. He also

stabbed her stomach several times with a pencil. She called 911 and Appellant

Pa.C.S. § 3124.1; aggravated assault, 18 Pa.C.S. § 2702(a)(4); simple assault, 18 Pa.C.S. § 2701(a)(1); terroristic threats, 18 Pa.C.S. § 2706(a)(1); and strangulation, 18 Pa.C.S. § 2718(a)(1).

2Appellant was separately charged at docket 2019-5878 with one count each of the following crimes: strangulation, 18 Pa.C.S. § 2718(a)(1); simple assault, 18 Pa.C.S. § 2702(a)(1); terroristic threats, 18 Pa.C.S. § 2706(a)(1); and intimidation of witness, 18 Pa.C.S. § 4952(a)(1). The cases were consolidated for trial.

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was arrested. The Commonwealth inquired if Appellant was abusive on other

occasions. L.A. responded that Appellant had been physically abusive multiple

times and would often throw plates and punch holes in walls. Id. at 170. L.A.

described Appellant as controlling, stating that he forced her to quit social

media and prevented her from contacting family and friends. Id. at 170-71.

Appellant’s 2015 conviction was also referenced during the testimony of

David Woodring, a parole agent employed by the Pennsylvania Board of

Probation and Parole. Agent Woodring supervised Appellant during 2018 and

2019. Id. at 346. He explained that on or about February 6, 2019, Appellant’s

parole conditions were modified to include a no contact provision regarding

L.A. This condition was imposed at L.A.’s request and due to her “reports that

they were getting a divorce and things were getting kind of ugly and it was in

the best interest.” Id. at 347. L.A. then contacted Agent Woodring on March

27th or 28th of 2019. Id. She reported the incidents recounted above, as well

as Appellant’s violations of the no contact condition. L.A. supplied screenshots

from her cellphone showing Appellant attempted to contact her four times on

February 16th, once on the 18th, and once on the 25th. Agent Woodring, with

L.A.’s consent, contacted the Lower Windsor Police Department and provided

them with a written statement by L.A. and the photographs that L.A. had sent

to her friend. Id. at 348.

Before the Lower Windsor Police Department officially filed charges,

Agent Woodring instructed Appellant to report to his office on April 1, 2019,

whereupon Appellant was taken into custody for technical violations of his

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parole conditions, namely the requirement that a parolee “shall refrain from

assaultive behavior” and his violation of the no contact condition. Id.

Appellant was provided with a notice that a hearing would be held concerning

these alleged violations and Agent Woodring explained his accompanying

rights. Id. at 349. Appellant was also “afforded the opportunity ... to admit

to the violations,” which would obviate the need for a hearing. Id. at 350.

Appellant signed the “Notice of Charges and Hearing” document. Id. at 357.

That document set forth the alleged violations, which included details of L.A.’s

account of the assault and Appellant’s attempts to contact L.A. The bottom

of the form contained an admission by Appellant that he “was in violation of

the terms and conditions of my parole. The specific violation(s) that I

committed was/were: 5C: Assaultive Behavior; 7: Violation of no contact with

[L.A.].” Commonwealth’s Exhibit 23 at 1-2 (some capitalization omitted).

The jury convicted Appellant of all counts on April 23, 2021. Following

a postponement at Appellant’s request, the trial court imposed its aggregate

sentence of 40½ to 81 years of incarceration on September 14, 2021. That

sentence included a mandatory minimum of 25 to 50 years of incarceration,

triggered by Appellant’s prior conviction for aggravated indecent assault. 42

Pa.C.S. § 9718.2(a)(1) (requiring mandatory minimum sentence of 25 to 50

years if the person has, at the time of the commission of the current offense,

previously been convicted of, inter alia, aggravated indecent assault).

Appellant timely filed post-sentence motions, which were denied. He then

filed a timely notice of appeal, and complied with the trial court’s order to file

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a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. The trial

court thereafter filed a Rule 1925(a) opinion. Appellant raises six issues for

our review:

I. Whether the lower court erred in permitting into evidence Appellant’s prior conviction(s) in case number 7438 CA 2015, and the lower court erred in permitting into evidence that Appellant was on parole for the sentence imposed in case number 7438 CA 2015 and/or 3158 CA 2008.

II. Whether trial counsel was ineffective in failing to file a pretrial motion to suppress [A]ppellant’s statements to parole Agent David Woodring and Commonwealth’s Exhibit “23”.

III. Whether trial counsel was ineffective in failing to object at trial statements made by … [A]ppellant to parole agent David Woodring and Commonwealth’s Exhibit “23”.

IV. Whether the trial court erred in sustaining the Commonwealth’s objection to defense counsel attempting to illicit [sic] testimony from [P]arole [A]gent Woodring regarding … [A]ppellant’s explanation concerning the parole violations/admissions previously testified to by [P]arole [A]gent Woodring and contained in Commonwealth’s Exhibit “23”.

V. Whether the verdicts in 5889 CA 2019 and 5878 CA 2019 were against the greater weight of the evidence in that the overwhelming evidence established … [A]ppellant could not have committed the offenses.

VI. Whether the trial court abused its discretion in sentencing the appellant to 40½-80 years in that the court erred in imposing a mandatory sentence of 25-50 years and in running [the] sentences consecutive[ly].

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

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Appellant’s first issue challenges the Honorable Maria Musti Cook’s

ruling3 granting the Commonwealth’s motion to admit Appellant’s 2015

conviction, as well as Appellant’s admission to Agent Woodring.4 We find that

these claims are waived.

On August 27, 2020, the Commonwealth filed a motion to introduce

Appellant’s prior abuse of L.A., which included both the prior conviction and

general assaultive behaviors that were unreported. The latter encompassed

“throwing plates of food at her, hitting her, pulling her hair, yelling at her,

threatening to kill her[,] and acts of controlling behavior.” Commonwealth’s

Motion In Limine, 8/27/20, at 3. The Commonwealth asserted that these acts

were admissible pursuant to Rule of Evidence 404(b). Broadly speaking, that

Rule precluded the Commonwealth from establishing that Appellant assaulted

L.A. based on the fact he previously assaulted her, as that would invite the

jury to convict Appellant based on his propensity to commit violence against

L.A. See Pa.R.E. 404(b)(1). However, Rule 404(b)(2) permits the

introduction of that type of evidence “for another purpose[.]” Pa.R.E.

404(b)(2). The Commonwealth’s motion in this case relied on three separate

other purposes: common scheme, motive, and res gestae.

3 Judge Cook decided the pre-trial motions, and the Honorable Craig T. Trebilcock presided over the trial.

4 As indicated by Appellant’s statement of questions, Appellant was on parole from his conviction for the 2015 incident “and/or 3158 CA 2008.” Appellant’s Brief at 4. That conviction was for burglary. The jury was not told for which crime Appellant was on parole.

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Beginning with common scheme, caselaw requires a comparison of the

other crimes and the charged crimes. If there is a “logical connection”

between the crimes, then the evidence may be admissible on a non-propensity

basis. See Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014).

According to the Commonwealth, “[Appellant]’s plea of no contest to charges

of terroristic threats and simple assault are admissible to prove a common

scheme by [Appellant] to preserve his intimate relationship ‘through

harassment, intimidation, and physical violence.’” Motion In Limine, 8/27/20,

at 5. The prior acts met the comparative criteria because they were identical

in terms of location (the marital home) and victim (L.A.). For purposes of this

theory of admissibility the Commonwealth did not specifically address the host

of uncharged assaultive behavior.

The second theory was motive. The Commonwealth asserted that

evidence of prior abuse is generally admissible “to establish motive, intent,

malice, or ill-will.” Id. at 6 (quoting Commonwealth v. Ivy, 146 A.3d 241,

252 (Pa. Super. 2016)). The Commonwealth noted that L.A. testified at the

preliminary hearing that when she begged him to stop the attack, “he said he

had to kill me because back in 2015, I called the cops on him before and he

knew I’d do it again.” N.T. Preliminary Hearing, 9/12/19, at 10. Thus, the

Commonwealth posited that Appellant attacked her, in part, as revenge for

reporting the abuse to the police.

Third, the Commonwealth cited the “res gestae” theory of relevance,

which at its broadest level of application allows the introduction of evidence

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to “complete the story of the crime on trial by proving its immediate context

of happenings near in time and place.” Commonwealth’s Motion In Limine,

8/27/20, at 8 (quoting Ivy, supra at 252-53). According to the

Commonwealth, both the prior conviction and the general history of assaultive

behavior were necessary to form a complete picture in this case. The

Commonwealth asserted that the probative value of the evidence outweighed

its prejudicial effect.

The trial court ultimately granted the motion in all respects, agreeing

with the Commonwealth that the prior conviction was admissible “as evidence

to show a common scheme to preserve [Appellant]’s intimate relationship with

the victim through harassment, intimidation, and physical violence.” Order,

12/14/20, at 2. Appellant now challenges that ruling on appeal. However,

we find that Appellant waived any objection regarding the prior convictions.5

While the trial court and Commonwealth both address the merits of his

argument, the certified record establishes that Appellant waived this issue. At

the pre-trial hearing on the Commonwealth’s motion, Appellant largely

focused on the uncharged behavior and conceded the admission of the prior

conviction.

ATTORNEY REINER: Your Honor, the Commonwealth cited 404(b) rules in his motion. Clearly, all of these are extremely prejudicial for my client if they are allowed to be introduced at trial. With respect to – specifically, again, I think the Commonwealth passed up a list of allegations by the victim. It is a laundry list of ____________________________________________

5 Appellant does not challenge the admission of the uncharged assaultive behavior.

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complaints and allegations and I would object to all of those coming in. They are all – they were reported to the police on April 25, 2020. They weren’t charged offenses. I would ask for those all to be excluded from testimony at trial.

One, for primarily being irrelevant, and the prejudicial nature of all of those statements. I would ask that the victim’s testimony would be limited to the prior conviction. I can’t dispute that. The case law supports that. The prior conviction comes in as common scheme.

N.T. Motion In Limine, 9/10/20, at 19-20 (emphasis added).

This concession waives Appellant’s challenge to the admission of the

prior conviction he now raises on appeal. We acknowledge that the filing of a

motion in limine entails a recognition that the evidence is presumably

inadmissible. See Cicconi Auto Body v. Nationwide Ins. Co., 904 A.2d

933, 935 n.4 (Pa. Super. 2006) (“A motion in limine is a ‘pretrial request that

certain inadmissible evidence not be referred to or offered at trial.’”) (quoting

Black’s Law Dictionary, 8th ed. 2004). Nevertheless, issue preservation

requirements still apply. For example, in Commonwealth v. Cousar, 928

A.2d 1025 (Pa. 2007), the Commonwealth introduced evidence that the

defendant had a tattoo with the letters “M.O.B.” to link the defendant to

another participant in a robbery, who also had a tattoo with the same letters.

The defendant argued that this evidence was subject to Rule 404(b),

“imply[ing] that [the defendant] had criminal propensities and was connected

to illegal gang activity.” Id. at 1040. However, at trial, the defendant alleged

only that the evidence was irrelevant. Our Supreme Court observed:

Even assuming his presentation to this Court can be interpreted to raise the contention that the trial court’s ruling violated Rule 404(b)(3), see Pa.R.E. 404(b)(3) (stating that other-crimes

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evidence may only be admitted upon a showing that its probative value outweighs its potential for prejudice),[6] [the a]ppellant failed to preserve this issue for appeal, as the objection lodged in the trial court dealt solely with the question of relevance. See N.T. May 4, 2001, at 17. “The rule is well settled that a party complaining, on appeal, of the admission of evidence in the [c]ourt below will be confined to the specific objection there made.” Commonwealth v. Boden, … 159 A.2d 894, 900 ([Pa.] 1960). See generally Commonwealth v. Rovinski, 704 A.2d 1068, 1075 (Pa. Super. 1997). Thus, any claim based on Rule 404(b)(3) is waived.

Id. at 1041 (footnote added).

If a generalized relevancy objection is insufficient to preserve a separate

Rule 404(b) issue for appellate review, then a concession that the evidence is

admissible also cannot preserve the issue. See also Commonwealth v.

Lehman, 275 A.3d 513, 529 (Pa. Super. 2022) (“Although [the a]ppellant

objected to the at-issue impeachment at trial, he never cited Rule 404(b) at

that time, nor did he reference the rule’s ban on prior bad acts evidence during

the sidebar discussion.”).

We also find that waiver is an appropriate sanction because permitting

a party to concede admissibility of evidence only to later complain on appeal

creates a tactical advantage.7 There is some evidence demonstrating that

6 Rule 404(b) has since been amended, and the referenced language now appears within Rule 404(b)(2).

7The Commonwealth’s position on the merits heavily relies on precedents like Arrington, supra, which permitted the introduction of evidence of prior abuse against separate women to show a “common scheme.” Various Justices (Footnote Continued Next Page)

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Appellant’s counsel intended to use the prior conviction and incarceration as

a reason to discredit L.A., theorizing that L.A. was motivated to have Appellant

returned to prison for violating his parole due to their relationship ending.

Immediately prior to jury selection, the Commonwealth raised an issue about

Appellant’s incarceration, stating: “I believe the defense … actually wanted

that information to come out, that she was having contact with him while he

was incarcerated.” N.T., 4/19-23/21, at 13. Appellant’s counsel responded,

“I was planning on bringing up the fact that he was in prison[.]” Id.

Appellant’s counsel followed up by referencing Appellant’s sentencing for the

2015 conviction: “[I]t was said on the record that [L.A.] wished to have

contact with him, even though he was in prison, and they proceeded to have

contact the entire time. So that’s part of our defense is that she continued to

of the Supreme Court of Pennsylvania have expressed reservations about cases like Arrington. See Commonwealth v. Hicks, 156 A.3d 1114, 1152– 53 (Donohue, J., dissenting) (criticizing Arrington as involving “unconnected acts, constituting, at most, a pattern of abusive behavior toward women” that was clearly not part of the defendant’s purpose in committing the crime charged); id. at 1157 (Wecht, J., dissenting) (agreeing with Justice Donohue and adding that “[i]t is natural and well-nigh inevitable … that a juror will conclude that, if a person has assaulted women before, he likely will do so again”); id. at 1130 (Saylor, C.J., concurring) (distinguishing between use of other acts evidence to prove identity versus other theories of relevance; agreeing with Justice Donohue that “various majority opinions ... have incorrectly blended various distinct grounds for relevance”). Hicks did not produce a majority opinion, but in light of these strong criticisms, we decline to address whether the evidence was properly admitted on this basis.

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have contact with him.” Id. Appellant’s counsel also stated, “[L.A.] went into

parole and knew that he was going to be locked up.” Id. at 14.

Appellant’s opening statement also informed the jury that the case “is

about a failed marriage, it’s about custody, it’s about timing and it’s about

revenge.” Id. at 120. Counsel told the jury that they would hear about

Appellant’s prior conviction and incarceration, “and you are going to hear that

he did counseling, he did anger management, he did everything that was

asked of him during that time.” Id. at 121. Counsel also claimed that, during

that period of time, L.A. “stayed in contact” with Appellant and “they were

planning their future together.” Id. However, “their marriage began to fall

apart. … [Appellant] was moving on with his life without [L.A.].” Id.

Appellant’s attorney emphasized that L.A. failed to report the incident for

months afterward, and argued that L.A. was angry that the two had separated.

Counsel claimed: “She began to make threats to contact his parole officer,

which she ultimately followed through on. She texted him, I can’t wait to see

you back in jail, which was her plan all along.” Id. at 125. Appellant’s counsel

further pointed out that L.A. did not contact the police directly; instead, “she

reported it to the one person that she knew who could put him in jail

immediately.” Id. at 126.

Had that theory convinced the jury, then Appellant would have

benefitted from the concession that his prior conviction was admissible.

Obviously, if Appellant had voluntarily introduced his prior conviction and

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parole status as a tactical choice, there would be no question that he could

not complain that the jury heard the evidence. We see no difference between

that scenario and what occurred here. Simply put, we cannot find that the

court abused its discretion when our adversarial system of justice

contemplates that the judge will be called upon to choose between competing

positions. It is, of course, possible that counsel was merely making the best

of a bad situation, in light of the ruling. But counsel’s concession created

confusion where an objection would have eliminated it.

Turning to the admissibility of Appellant’s admission to Agent Woodring,

we conclude that Appellant failed to preserve the argument put forth in his

brief. Appellant’s brief focuses on the prejudicial nature of his status as a

parolee, thus arguing that the jury was unduly inflamed by hearing that

Appellant was on parole. See Appellant’s Brief at 15-16. However, at the

pre-trial hearing, Appellant merely objected to the statements on the basis

that the statements themselves were prejudicial. See N.T. Motion In Limine,

9/10/20, at 21 (“Again, my basis for objecting to that coming into trial is the

prejudicial nature of that document and that admission.”). Appellant’s current

argument is essentially a variation of the argument that the prior conviction

should not have been admitted. Certainly, absent the admissibility of the

2015 conviction, informing the jury that Appellant was on parole for a crime

would raise serious questions concerning the admissibility of that evidence.

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Because Appellant objected only on the basis that the statements themselves

were prejudicial, as opposed to his status as a parolee, the claim is waived.

Appellant’s second and third issues both challenge trial counsel’s

stewardship with respect to the admissibility of Appellant’s statement to Agent

Woodring. We find that these issues must be deferred to collateral review.

The substance of both claims is the same. Appellant contends that trial

counsel ineffectively failed to file a pre-trial motion to suppress Appellant’s

statements to Agent Woodring. Relatedly, Appellant separately alleges that

trial counsel ineffectively failed to object to Agent Woodring’s testimony. As

a general rule, ineffective assistance of counsel claims should be deferred to

the collateral review stage. See Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002). In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the

Supreme Court of Pennsylvania recognized two exceptions to this general rule.

First, trial courts retain discretion to consider claims of ineffective assistance

“where a discrete claim (or claims) of trial counsel ineffectiveness is apparent

from the record and meritorious to the extent that immediate consideration

best serves the interests of justice[.]” Id. at 563. The second exception

applies where there is “good cause shown” and the review “is preceded by the

defendant’s knowing and express waiver of his entitlement to seek PCRA

review from his conviction and sentence, including an express recognition that

the waiver subjects further collateral review to the time and serial petition

restrictions of the PCRA.” Id. at 564.

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The latter exception does not apply. Even assuming Appellant

established “good cause” to review this issue at this juncture, he did not waive

his right to seek collateral review. “A court should agree to such review only

upon good cause shown and after a full PCRA waiver colloquy.” Id. at 580.

Thus, the claim(s) would have to satisfy the first exception and be sufficiently

“meritorious” to the extent that immediate review is required to “best serve[]

the interests of justice[.]” Id. at 599. They are not. We agree that the

statements were potentially suppressible as the product of a custodial

interrogation because parolees must be given Miranda8 warnings when

subjected to custodial interrogation. Minnesota v. Murphy, 465 U.S. 420

(1984); Commonwealth v. Cooley, 118 A.3d 370, 376 (Pa. 2015)

(concluding that parolee was in custody during parole meeting). Appellant

does not develop an argument establishing that he was both in custody and

interrogated such that the statements were clearly inadmissible. Instead, he

merely claims that a motion “would likely have been successful.” Appellant’s

Brief at 20.

Additionally, Appellant does not seriously address whether the prejudice

component has been met. To prevail on an ineffective assistance of counsel

claim, the claimant must establish, in addition to other requirements, a

“reasonable probability that the outcome of the proceedings would have been

8 Miranda v. Arizona, 384 U.S. 436 (1966).

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different.” Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). Appellant’s

argument on that point is undeveloped. “Had the statement not been

admiss[i]ble, Appellant argues the outcome of the trial would have been

different. This is especially highlighted in that the jury verdict was against the

greater weight of the evidence.” Appellant’s Brief at 20. These conclusory

statements, which rely in part on a presumption that this Court will agree that

he was entitled to a new trial based on the weight of the evidence, do not rise

to the level of a sufficiently “meritorious” claim, such that the usual rule of

deferring ineffective assistance claims to collateral review does not apply.

Finally, Appellant’s waiver of the first issue poses obstacles to

performing a prejudice analysis. Whether Appellant can establish a

reasonable probability that the outcome would have been different requires

an analysis of whether the 2015 conviction was properly admitted.9 For the

9 We appreciate that the trial court attempted to address the ineffective assistance of counsel claims in the alternative. However, insofar as these claims will almost assuredly be pursued during subsequent proceedings, we caution that nothing in the trial court’s analysis should be read to resolve the issues on their merits. For example, the court concluded that filing a motion to suppress the statements was not a viable strategy because “Judge Cook had already ruled upon these matters as a result of the Commonwealth’s motion in limine.” Trial Court Opinion, 12/29/21, at 13.

The fact that Judge Cook granted a motion to admit the statements as an inculpatory admission is analytically distinct from whether a basis to exclude the statements exists. A successful challenge on Miranda grounds would prohibit the introduction of those statements regardless of whether some other evidentiary rule would otherwise permit the Commonwealth to introduce the statements. The Rules of Evidence cannot, of course, conflict with the (Footnote Continued Next Page)

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foregoing reasons, we find that these two claims must be pursued during

collateral proceedings.

Appellant’s fourth issue involves the trial court’s sustaining the

Commonwealth’s objection during a portion of Appellant’s cross-examination

of Agent Woodring. Appellant’s counsel asked, “[Appellant] told you that the

messages were him trying to talk to his daughter, is that true?” N.T., 4/19-

23/21, at 362. The Commonwealth objected on the grounds of hearsay.

Appellant’s response argued that the conversation between Appellant and

Agent Woodring was relevant, with the trial court’s responding that “[t]heir

objection is not relevance, their objection is hearsay.” Id. Appellant did not

make any further response.

We review evidentiary decisions for an abuse of discretion.

Commonwealth v. Jacoby, 170 A.3d 1065, 1090 (Pa. 2017). “An abuse of

discretion is not merely an error of judgment, but if in reaching a conclusion

the law is overridden or misapplied, or the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by

the evidence or the record, discretion is abused.” Commonwealth v.

Walker, 92 A.3d 766, 772–73 (Pa. 2014) (internal quotation marks and

citations omitted).

United States Constitution. Cf. Crawford v. Washington, 541 U.S. 36, 61 (2004) (“Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’”).

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Appellant now contends that the trial court abused its discretion by

failing to afford him the latitude to elicit necessary context pursuant to

Pennsylvania Rule of Evidence 106, colloquially known as the “rule of

completeness.” That Rule states: “If a party introduces all or part of a writing

or recorded statement, an adverse party may require the introduction, at that

time, of any other part – or any other writing or recorded statement – that in

fairness ought to be considered at the same time.” Pa.R.E. 106. The purpose

of the Rule is to “give the adverse party an opportunity to correct a misleading

impression” if another portion of that statement is introduced. Comment,

Pa.R.E. 106.

Here, we find no abuse of discretion by the trial court, as Appellant has

not established that his reasons for contacting L.A. would combat any

misimpression created by the Commonwealth. The Commonwealth merely

established that Appellant attempted to contact L.A. It did not suggest that

Appellant contacted L.A. for any specific reason. We thus agree with the trial

court that Appellant was attempting to introduce his own hearsay.10

10The trial court observed, “There does appear to be a preference, within our case law, against allowing defendants to assert the privilege of not testifying while nonetheless attempting to inject their own, favorable, hearsay statements into the proceedings.” Trial Court Opinion, 12/29/21 at 18. We agree, but we note that the “rule of completeness” can permit the introduction of evidence that would otherwise be hearsay on the basis that supplying context is a non-hearsay purpose.

(Footnote Continued Next Page)

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Appellant’s fifth issue challenges the weight of the evidence. He points

to several pieces of evidence that undermine L.A.’s testimony to the extent

that the trial court erred in declining to grant a new trial on weight grounds.

Appellant points out that the physician who treated L.A. two days after the

initial incident, Dr. Kathleen Struminger, stated that L.A. complained of a toe

injury and a laceration on her finger. N.T., 4/19-23/21, at 399. She said that

the laceration did not appear to be serious, and she treated the toe fracture

with tape. Id. Dr. Struminger also noted a bruise on the left side of L.A.’s

face. Additionally, Dr. Struminger is a mandated reporter and required to

report any suspected abuse to authorities. Id. at 402. She did not believe

that there was anything to report based on “what [L.A.] told me.” Id.

Appellant also offered the testimony of Dr. Kathleen Brown, a professor

at the University of Pennsylvania’s nursing school who specializes in the field

of sexual assault. Id. at 433. Dr. Brown was qualified as an expert in the

fields of forensic nursing, physical injury, and treating sexual assault. Id. at

It is sometimes stated that the additional material may be introduced only if it is otherwise admissible. However, as a categorical rule, that statement is unsound. In particular, the statement is sometimes inaccurate as applied to hearsay law. At least when the other passage of the writing or statement is so closely connected to the part the proponent contemplates introducing that it furnishes essential context for that part, the passage becomes admissible on a nonhearsay theory.

The effect of the introduction of part of a writing or conversation, 1 McCormick On Evid. § 56 (8th ed.) (footnotes omitted).

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438. Dr. Brown reviewed the incident reports and the photographs depicting

L.A.’s injuries, and opined that “the history she gave and the injury that I see

are not consistent with one another. I would expect to see much more injury

than she has.” Id. at 449. Additionally, she would expect to see more cuts

and lacerations if a knife were held to the throat. Id. Appellant submits that

these observations contradict L.A.’s testimony that Appellant repeatedly

punched her in the face and that she grabbed a knife with her hand. When

combined with other circumstances, including the fact that L.A. gave various

explanations for the source of her injuries, Appellant argues that he is entitled

to a new trial.

The judge’s task in ruling on a weight of the evidence claim is well-

settled.

Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. 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.”

Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000) (citation

omitted). The trial court cogently explained its reasons for rejecting

Appellant’s claim:

There was evidence in which a jury might have found some support for the notion that the victim was lying. The defense cites to various evidence that is potentially at odds with the victim’s claims. These include the testimony of a defense expert in forensic nursing and sexual[-]assault examinations, Doctor Kathleen Brown, who expected to see more significant

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injuries, based upon the victim’s claims, than what were present. The treating physician, Doctor Kathleen Struminger, a mandatory reporter, did not see any injuries prompting her to make a report— though, it should be noted, this physician stated that there was nothing to report “with what [the victim] told me.” And the victim had stayed with [Appellant] and expressed feelings of love and sexual desire for him.

Unacknowledged, for obvious reasons, by the defense is that victims of physical and sexual abuse have reasons for reporting in the manner in which they choose — reasons that can often appear incomprehensible to an outsider who is not the one suffering abuse at the hands of a supposed loved one. And, in fact, as the victim testified about some of these inconsistencies, which we recounted in the facts section above, she loved [Appellant] at one time, she wanted her marriage to work, and they shared a daughter for whose safety the victim worried. Hence, Dr. Struminger, the mandatory reporter, testifying that there was nothing to report with what the victim had told her. The doctor’s own views were distorted by the victim’s claims as to how the injuries were incurred and the victim supplied a pretty standard reason as to why she acted in a manner that some might construe as inconsistent with her later allegations.

Arguably, there are pieces of evidence which undermine the Commonwealth’s case; however, the test is not whether there is any evidence that goes against the Commonwealth’s assertions. Rather, this [c]ourt is to examine whether the verdict was “so contrary to the evidence as to shock one’s sense of justice.” In light of the evidence favoring conviction, recounted throughout this opinion, we were not shocked by the verdict and, therefore, we were barred from overturning that verdict. Upon receiving the verdict, we did not lose our breath or threaten to slip from the bench. In spite of some inconsistencies, present in all cases, but especially in the he-said-she- said sort involving domestic strife, Lady Justice is still

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firmly rooted atop her pedestal. As to either case, no relief was due on this claim.

Trial Court Opinion, 12/29/21, at 19-21 (citations omitted).

Mindful that we are reviewing the exercise of discretion and not whether

the verdict is against the weight of the evidence, Widmer, supra at 753, we

find no abuse of discretion. The trial court’s opinion addresses the points

raised by Appellant and explains why, as the presiding judge who heard and

saw the witnesses firsthand, a new trial is not warranted. We do not find that

the court “abused its discretion by reaching a manifestly unreasonable

judgment, misapplying the law, or basing its decision on partiality, prejudice,

bias, or ill-will.” Commonwealth v. Clay, 64 A.3d 1049, 1056 (Pa. 2013).

No relief is due.

Appellant’s final claim concerns his aggregate sentence. He presents

challenges to both the legality and discretionary aspects of his sentence. We

readily dispose of the former claim, which is that the mandatory minimum

sentence required by 42 Pa.C.S. § 9718.2(a)(1) is unconstitutional.

Appellant’s precise challenge is not entirely clear, as he claims that the statute

unconstitutionally permits a judge to impose the sentence without having the

jury find the facts of the prior conviction, while conceding that caselaw has

rejected this argument. See generally Commonwealth v. Golson, 189

A.3d 994, 1002 (Pa. Super. 2018) (explaining that the fact of a prior conviction

is the remaining exception to line of United States Supreme Court cases

holding that facts leading to increased punishment must be determined

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beyond a reasonable doubt by the fact-finder). Appellant then claims the

mandatory sentence “manifestly results in cruel and unusual punishment.”

Appellant’s Brief at 33. The reasons why his sentence is “cruel and unusual”

are not explained.

Briefly, we note that in Commonwealth v. Baker, 78 A.3d 1044 (Pa.

2013), the Supreme Court of Pennsylvania rejected a claim that the Section

9718.2 mandatory punishment was “grossly disproportionate” based on the

gravity of the triggering conviction (in that case, possessing and viewing child

pornography). The proportionality concept recognizes that “punishment for

crime should be graduated and proportioned to offense.” Weems v. United

States, 217 U.S. 349, 367 (1910). Appellant offers no substantive argument

that the mandatory period of incarceration is “grossly disproportionate” based

on his triggering offense. See also Commonwealth v. Colon-Plaza, 136

A.3d 521, 529 (Pa. Super. 2016) (applying Baker and rejecting the appellant’s

attempt to compare the mandatory minimum sentence against the guideline

ranges for a first-time offender). Thus, his legality-of-sentencing argument

fails.

Turning to the discretionary aspects of Appellant’s sentence, those

appeals are not permitted as of right. A four-part test must be met to invoke

our jurisdiction to review the discretionary aspects of sentencing.

[W]e conduct a four-part analysis to determine: (1) whether [the] appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether [the] appellant’s brief has a

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fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.

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

omitted).

Appellant filed a timely appeal, preserved his sentencing issue in a post-

trial motion, and included a Rule 2119(f) statement in his brief. Regarding

the substantial question component, the Commonwealth argues that Appellant

has failed to present a substantial question because his complaint is simply

that the judge imposed consecutive sentences. “Generally speaking, the

court’s exercise of discretion in imposing consecutive as opposed to

concurrent sentences is not viewed as raising a substantial question that

would allow the granting of allowance of appeal.” Commonwealth v.

Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010) (citations omitted).

In Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), we

acknowledged “the critical distinction between a bald excessiveness claim

based on imposition of consecutive sentences and an argument that

articulates reasons why consecutive sentences in a particular case are

unreasonable or clearly unreasonable.” Appellant appears to argue that the

imposition of consecutive sentences is unreasonable because, in part, the

mandatory sentence of 25 to 50 years’ incarceration was sufficient on its own.

We accept that this is an articulable reason beyond the mere fact that the

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sentences were imposed consecutively, thus constituting a substantial

question for our review.

Having invoked our jurisdiction, Appellant fails to show that the trial

court abused its discretion. Appellant’s argument on the merits is little more

than an attack on the trial court’s decision to impose the sentences

consecutively. For instance, he claims: “[T]he sentences in the individual

cases should have run concurrent[ly]. If so, but still running the sentences

consecutive[ly] for the two cases, the aggregate sentence would have been

30–60 years as opposed to 40½ to 80 years.” Appellant’s Brief at 33. Of

course, every instance of consecutive instead of concurrent sentences will

result in a longer sentence. Appellant makes no attempt to show that the trial

court abused its discretion in any way.

We have reviewed the sentencing transcript, wherein the trial court

stated that it considered the pre-sentence report, Appellant’s background,

age, substance abuse issues, and the effect on the victim. N.T. Sentencing,

9/14/21, at 17-18. The court recognized that Appellant’s prior record score

was a five and, in considering Appellant’s rehabilitative needs and potential,

recounted the convictions that led to that score, which included convictions

for aggravated indecent assault, terroristic threats, and several counts of

simple assault. The court determined that these convictions establish “a

common theme here in [Appellant]’s background of victimizing others. He

seeks to impose his rule on others through violence, intimidation, and

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threats.” Id. at 20. The court opined that little has changed in Appellant’s

behavior from his earlier convictions in 1996 to the present case. The court

determined that these crimes were more of the same, as Appellant “was found

guilty of victimizing this same woman, not once, but multiple times.” Id. at

20-21. The court found “no rehabilitative potential. He’s reached his middle

age with a chronic pattern of extreme[,] violent behavior.” Id.

Sentencing judges enjoy a great degree of latitude in fashioning an

appropriate sentence because of their superior position to weigh these sorts

of issues. “Simply stated, the sentencing court sentences flesh-and-blood

defendants…. Moreover, the sentencing court enjoys an institutional

advantage to appellate review, bringing to its decisions an expertise,

experience, and judgment that should not be lightly disturbed.”

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). The trial court

thoroughly explained why some consecutive sentences were warranted in light

of Appellant’s history and the offenses, and we find no abuse of discretion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/19/2022

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