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COMMONWEALTH PENNSYLVANIA v. STEPHEN LLOYD (06/08/87)

submitted: June 8, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
STEPHEN LLOYD, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 84-07-3365-3368.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.

Cirillo, President Judge, and Tamilia and Watkins, JJ.

Author: Tamilia

[ 367 Pa. Super. Page 141]

On August 2, 1985, after a four-day trial, a guilty verdict against appellant was returned on charges of rape, statutory rape, indecent assault, and corruption of minors. After denial of post-verdict motions and appellant's motion to reconsider sentence, appellant was sentenced to an aggregate term of imprisonment of eight and one-half (8 1/2) to seventeen (17) years. Appellant timely appeals the judgment of sentence. We affirm.

Appellant raises three issues for our review: 1) did the trial court err in admitting irrelevant and prejudicial evidence of appellant's treatment for venereal disease; 2) did the trial court deny appellant his constitutional right to confrontation by refusing to allow appellant's counsel an opportunity to review the victim's psychiatric treatment

[ 367 Pa. Super. Page 142]

    records; and, 3) did the trial court improperly consider defendant's refusal to admit his guilt when sentencing, thus violating appellant's right to self-incrimination?

As to the first issue, appellant failed to preserve at trial (N.T. 8/1/85, pp. 4, 11-12), and in post-verdict motions*fn1 his claim that the admittance of evidence of his history of treatment for venereal disease was improper due to its prejudicial effect (while preserving the relevance issue), therefore, that claim is waived. Only those issues included in post-verdict motions will be considered for appellate review. Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Thier, 354 Pa. Super. 7, 510 A.2d 1251 (1986); see Pa.R.A.P. 302. "One of the purposes of this rule is to afford trial courts the first opportunity to correct error or grant new trials where necessary and, thus, obviate the need for appellate review." Monarch, supra, 510 Pa. at 146, 507 A.2d at 78. Here, the Honorable Ricardo C. Jackson only addressed the claim of relevancy (Slip Op., Jackson, J., 3/4/87, p. 5), and not a claim of prejudice. We will do the same. See Commonwealth v. Allen, 269 Pa. Super. 146, 409 A.2d 106 (1979) (where defendant objected only on grounds of relevance, he waived claims that evidence that he had gonorrhea and had infected the victim of a rape-murder was excludable because it was remote and prejudicial).

Admission or exclusion of evidence is a matter committed to the sound discretion of the trial court. Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Barnhart, 345 Pa. Super. 10, 497 A.2d 616 (1985). In order to be admissible evidence must be both competent and relevant. Commonwealth v. Hill, 340 Pa. Super. 155, 489 A.2d 889 (1985); Commonwealth v. Jackson, 336 Pa. Super. 609,

[ 367 Pa. Super. Page 143486]

A.2d 431 (1984). "Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when it in some degree advances the inquiry and thus has probative value." Commonwealth v. Shain, 324 Pa. Super. 456, 462, 471 A.2d 1246, 1249 (1984); see Commonwealth v. Haight, 332 Pa. Super. ...


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