Com. v. Rosser, W.

• Court: Superior Court of Pennsylvania
• Decided: February 26, 2016
• Docket: 3258 EDA 2013
• Status: Published

Opinion

J-E03006-15

2016 PA Super 51

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

WANYA ROSSER,

Appellant No. 3258 EDA 2013

Appeal from the Judgment of Sentence June 4, 2013 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0008571-2010

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OTT, J., STABILE, J., AND JENKINS, J.

CONCURRING STATEMENT BY BOWES, J.: FILED FEBRUARY 26, 2016

I concur in the result reached by the distinguished majority.

Preliminarily, I agree that Appellant waived his federal and state

confrontation clause argument and that his weight of the evidence position is

without merit. However, I cannot agree that Commonwealth v. Briggs,

12 A.3d 291 (Pa. 2011), implicitly speaks to the merits of the waived

constitutional issue in question. The Briggs Court, as recognized by the

learned majority, nowhere mentioned the confrontation clause. Accordingly,

Briggs is simply inapposite as to a confrontation clause analysis. I would

refrain from addressing the merits of an important constitutional question

based in part on a case that simply does not speak to the issue and await

the proper case. J-E03006-15

By addressing an issue that is not properly preserved, the majority

precludes any development of this argument under the ineffective assistance

of counsel rubric that could be advanced in a PCRA petition. The underlying

claim is one which at least two members of the current Pennsylvania

Supreme Court consider to have potential merit.1 Indeed, part of the

rationale used for upholding the trial court’s decision to prohibit the question

at issue is that Appellant did not testify and counsel did not provide a

foundation for the proposed cross-examination. Both of these matters could

implicate counsel’s representation. Since I believe it is imprudent to address

the merits of Appellant’s waived argument under the facts of this case, I

concur in the result.2

____________________________________________

1 The original panel majority in this matter consisted of Judges, now Justices, Christine Donohue and David Wecht. 2 I note that the trial court erroneously concluded that Appellant’s question would elicit hearsay as the answer would not have been introduced to prove the truth of the matter asserted.

-2-