Com. v. David, E.

• Court: Superior Court of Pennsylvania
• Decided: October 12, 2022
• Docket: 103 WDA 2022
• Status: Unpublished

Opinion

J-A22028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EUGENE R. DAVID : : Appellant : No. 103 WDA 2022

Appeal from the Judgment of Sentence Entered October 6, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001889-2021

BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED: OCTOBER 12, 2022

Appellant, Eugene R. David, appeals from the October 6, 2021 Judgment

of Sentence entered in the Allegheny County Court of Common Pleas following

his conviction of Failing to Comply with Registration Requirements. After

careful review, we affirm.

The relevant facts and procedural history are as follows. On November

11, 2020, the Commonwealth charged Appellant, a convicted sex offender,1

with two counts of Failing to Comply with Registration Requirements2 after

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* Retired Senior Judge assigned to the Superior Court.

1 Appellant was convicted of Sexual Misconduct in New York on May 3, 2005.

2 18 Pa.C.S. §§ 4915.2(a)(1) and 4915.2(a)(2), respectively. J-A22028-22

Pennsylvania State Police conducted a Megan’s Law compliance check and

discovered that Appellant was not residing at his registered address.3

On October 6, 2021, the matter proceeded to a stipulated non-jury

trial.4 Following the court’s review of the stipulated evidence, the court asked

Appellant whether he intended to testify or present any character witnesses.

Appellant indicated that he did not. Then, the court asked Appellant’s counsel

if he wished to make any “comments” on Appellant’s behalf.5 Appellant’s

counsel replied that the Commonwealth had failed to meet its burden of proof.

At the conclusion of Appellant’s argument, the court looked to the

Commonwealth for a reply, at which time the Commonwealth requested that

the court admit into evidence the Pennsylvania State Police Megan’s Law

Packet and a certified copy of Appellant’s New York sexual misconduct

conviction. Appellant’s counsel did not object to the admission of this evidence

and the court admitted the exhibits.

3On July 14, 2020, Appellant updated his residential address as 304 Tangelo Drive, Clariton, PA. However, when Allegheny County Sheriff’s detectives conducted a compliance check at that address, a resident informed the detectives that Appellant had “not lived at that address for years” and he had not “seen [Appellant] in a long time.” Affidavit of Probable Cause at 2. The detectives’ further investigation revealed that Appellant was living with his mother at 5307 E. Wilcock Rd., Pittsburgh, PA. Id.

4 The Commonwealth and Appellant stipulated to the facts as set forth in the Affidavit of Probable Cause and the contents of the preliminary hearing transcript.

5 N.T. Trial, 10/6/21, at 11.

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The Commonwealth then argued that the evidence was sufficient to

convict Appellant. Appellant’s counsel then provided additional argument

stating, inter alia: “Your Honor, just at the beginning of the trial, the

stipulations were to the Affidavit, as well as the preliminary hearing transcript.

There was no additional agreement to stipulations as to additional evidence

being admitted during the trial. I would say that that evidence should not be

considered by the court.” N.T. Trial, 10/6/21, at 16. Immediately thereafter,

the court convicted Appellant of one count of Failing to Comply with

Registration Requirements.

Appellant waived his right to a pre-sentence investigation report and the

trial court sentenced him to three years of probation. Appellant filed a post-

sentence motion, which the trial court denied on January 12, 2022.

This appeal followed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

Appellant raises the following issue for our review:

Whether the trial court abused its discretion in granting the Commonwealth’s request to re-open the record where [Appellant’s] case was resolved as a stipulated non-jury trial where the parties stipulated as to the entirety of the evidence that would be considered by the trial court, such request was made only after the reception of evidence had closed, and defense counsel had already made his closing argument and motioned for judgment of acquittal pointing out the fatal deficiencies in the Commonwealth’s case?

Appellant’s Brief at 4.

Appellant argues that the trial court abused its discretion in permitting

the Commonwealth to reopen the record to include evidence outside the scope

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of the parties’ stipulation. Id. at 13. Appellant asserts that at the time the

Commonwealth moved for the admission of the certified copy of Appellant’s

New York conviction and the Megan’s Law Packet the record was closed and

the Commonwealth had rested its case. Id. at 15. Appellant also claims that

his counsel made a timely and specific objection to the admission of the

additional evidence. This Court’s review of the Notes of Testimony from

Appellant’s trial belies both claims.

We first observe that, as noted by the trial court in its Rule 1925(a)

opinion, the Commonwealth did not request permission to reopen the record

because the record was not yet closed. See Trial Ct. Op., 2/28/22, at 4-5

(explaining that “the Commonwealth did not make a request to reopen the

record, as the Commonwealth did not rest and the record had not closed”).

Moreover, even if the Commonwealth had requested that the court

reopen the record to admit additional evidence, it is clear from the Notes of

Testimony that Appellant did not raise a timely objection to the admission of

additional evidence. Rather, Appellant’s counsel waited until after the

Commonwealth had concluded its argument before suggesting that the court

not consider the additional evidence.6 Because Appellant failed to timely

object, he failed to preserve this issue for appellate review. Appellant has,

thus, waived this claim on appeal. See Commonwealth v. Baumhammers, ____________________________________________

6 Even then, Appellant’s counsel did not request that the court exclude the additional evidence, but only that the court not give it any weight. N.T. Trial at 16 (where counsel argued “that that evidence should not be considered by the court”).

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960 A.2d 59, 84 (Pa. 2008) (stating “the absence of a specific

contemporaneous objection renders the appellant’s claim waived” (citation

omitted)); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”).7

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/12/2022

7 Moreover, even if the court erred in admitting the additional evidence, the error was harmless as the additional evidence was merely cumulative and corroborative of the testimonial evidence to which Appellant stipulated. See Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (explaining that an error is harmless where, inter alia, “the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence[.]”) (citation omitted)).

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