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[U] Commonwealth v. Trojanovich

Superior Court of Pennsylvania

June 10, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHARLES GEORGE TROJANOVICH, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHARLES GEORGE TROJANOVICH, Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
CHARLES GEORGE TROJANOVICH, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered May 21, 2012, In the Court of Common Pleas of Erie County, Criminal Division, at No. CP-25-CR-0001523-2011.

BEFORE: SHOGAN, LAZARUS and PLATT[*], JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Charles George Trojanovich, appeals from the judgments of sentence entered following his convictions of kidnapping, sexual assault, terroristic threats, simple assault, possession of an instrument of crime ("PIC"), and harassment. Counsel has filed a petition to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we grant counsel's petition to withdraw and affirm Appellant's judgments of sentence.

The trial court summarized the procedural and factual history of this case as follows:

On September 20, 2011, Charles George Trojanovich ("Appellant") appeared before the Honorable [Ernest] J. DiSantis Jr. for a trial by jury. On September 21, 2011, the jury was hung on the following charges: one count of Kidnapping, two counts of Rape, two counts of Sexual Assault and one count of Simple Assault. The jury did reach a unanimous decision finding the Appellant guilty of one count of Terroristic Threats and one count of Possession of an Instrument of Crime. Appellant was found not guilty of Recklessly Endangering Another Person. Lastly, Judge DiSantis found Appellant guilty of the summary offense of Harassment. Immediately after the jury's verdict, the Commonwealth indicated that it would retry the Appellant on each of the aforementioned counts the jury was hung. On October 8, 2011, Judge DiSantis continued Appellant's sentencing pending Appellant's retrial. Appellant proceeded to a retrial before this Court on January 17, 2012.
After a two day jury trial, Appellant was found guilty of Kidnapping, Sexual Assault and Simple Assault. The jury found the Appellant not guilty of Rape. At trial, the following testimony was presented which led to the Appellant's convictions of the above-named offenses. On May 14, 2011, the victim, [] agreed to meet her former boyfriend, Appellant, at a secluded parking lot located at 21st and Greengarden Streets in the City of Erie, so she could return to him various personal items he left at her home. N.T. Day 1, 27:12 - 30:3, January 1, 2012. [The victim] met Appellant at the location shortly after 3:00 A.M., after she finished work. N.T. Day 1, 30:17 -20. Upon arrival, Appellant asked [the victim] to get into his car to which she complied. N.T. Day 1, 35: 1-23. While [the victim] was closing the door to Appellant[']s vehicle, he grabbed her keys and cell phone from her hand. N.T. Day 1, 36:7-9. [The victim] immediately attempted to exit the vehicle however Appellant had already engaged the master lock. N.T. Day 1, 36:18-23; N.T. Day 2, 43:2-15, January 18, 2012.
Appellant began searching [the victim's] phone and questioned her regarding a phone number he did not recognize. N.T. Day 1, 37:19-21. When [the victim] told Appellant that the number belonged to a man named "Nate", the father of her children, Appellant used the phone to hit [the victim] in the face. N.T. Day 1, 37:21-25. After striking [the victim], the Appellant continued to search her phone until it rang, at which point Appellant answered the call. N.T. Day 1, 38: 16-19. Nathan Dabrowski ("Nate") confirmed that he called [the victim] because she failed to contact him for nearly 45 minutes after she had told Nate she was meeting the Appellant. N.T. Day 1, 126:10-14. Nate confirmed [the victim's] testimony that the Appellant picked up the phone, testifying that the Appellant was swearing at him and making threats against his life if he ever called [the victim] in the future. N.T. Day 1, 126:17-22.
After the brief call, the Appellant continued to search [the victim's] messages and after noticing another message from a man named "Larry", the grandfather of [the victim's] children, Appellant again struck her in the face with the phone. N.T. Day 1, 39:16-25. Appellant, enraged by the situation, pulled out a machete, pointed it towards [the victim] and asked her "would you like it if I cut you" and told her that "he could if he wanted to" before placing the machete on the dashboard. N.T. Day 1, 40:2-19. Despite being "really scared" [the victim] tried not to do anything to further enrage the Appellant, and eventually Appellant began lamenting about his prior relationship with [the victim]. N.T. Day 1, 42:15-24.
[The victim] testified she was crying when the Appellant asked her to "give him one kiss then I could go" to which she leaned over and gave him a "peck on the cheek." N.T. Day 1, 43:6-23. Appellant informed [the victim] that "it's not good enough" and that she should try and "do it like you mean it." N.T. Day 1, 43:22-23. [The victim] continued to try to appease the Appellant so he would allow her to leave. N.T. Day 1, 44:6-10. Despite her effort, the Appellant did not allow [the victim] to leave, rather he asked her to "hold him through the night" again enticing her with the prospect of leaving the Appellant afterwards. N.T. Day 1, 44:20-21. The Appellant, having already reclined the driver seat so it was positioned on-top the rear bench seats asked [the victim] "are you comfortable" and "do you want to lay in the back" to which she responded "I'm fine." N.T. Day 1, 44:23-45:3. Despite her reservations, Appellant proceeded to pull [the victim] into the back seat and asked her if she would have sex with him one last time. N.T. Day 1, 45:5-10. [The victim] told the Appellant "no" and he responded "just do it and I'll let you go." N.T. Day 1, 45:14-15.
[The victim], continuing to cry, did not respond further to Appellant[']s requests but just lay in the back seat silent while Appellant proceeded to have sex with her. N.T. Day 1, 45:25 -46:1-19. When Appellant finished, he held [the victim] in his arms where she remained partially sleepless until the morning. Day 1, N.T. 47:6-25. The next morning, the Appellant further refused [the victim's] request to leave the Appellant's vehicle, insisting that she accompany him to the gas station. N.T. Day 1, 49:1:11. After running an errand to the gas station, the Appellant returned to the parking lot where [the victim's] vehicle was located. Appellant further refused to allow [the victim] to leave and he began ingesting a large quantity of pain and anti-depressant medication with some alcohol he had in his vehicle. N.T. Day 1, 52:4-25.
Appellant then made a series of phone calls to 911. N.T. Day 1, 53:18-19. Appellant did return [the victim's] keys and she attempted to get back in her car[;] however before she close[d] the door to her vehicle the Appellant began rapidly circling her vehicle, ultimately coming to a stop immediately in front of where she stood. N.T. Day 1, 56:10-16. Appellant ordered [the victim] back into his vehicle and she complied. N.T. Day 1, 56:18-25. Shortly thereafter, before the Appellant could drive away an Erie Police officer arrived on the scene. N.T. Day 1, 57:16-25. [The victim], fearful of the Appellant, exited [Appellant's] car and got in her[']s, leaving the scene without informing the police about the incident occurring over the past 12 hours. N.T. Day 1, 58:12-16.
Shortly after arriving at her home, [the victim] began receiving phone calls from the Appellant. N.T. Day 1, 59:21-24. [The victim] did not answer any of the calls, however did listen to several messages that the Appellant left her that were violent and threatening in nature. N.T. Day 1, 60:13 - 61:3. Fearful for her safety and that of her children, [the victim] took her children to her mother's house and immediately left to file a police report, mistakenly going to the State Police Barracks in Lawrence Park Township in Erie County where she was informed that she must go to the Erie City Police Station to file her complaint. N.T. Day 1, 61:12-25. Upon leaving the State Police, [the victim] received a phone call from the Corry State Police, inquiring about the whereabouts of her and her children. N.T. Day 1, 62:4-5.
During her conversation with the Corry State Police, [the victim] was informed that a man named Charles Trojanovich identifying himself as her husband called the Corry State Police to file a missing persons report. N.T. Day 1, 62:6-23. [The victim] explained her situation to the officer, and proceeded to travel into the City of Erie where she eventually provided a statement to Erie police on the evening of May 15, 2011.7
7 Officer James Cousins conducted the interview with [the victim] at the Erie Police Department. He testified as to the written report [the victim] completed as well as the search and seizure police conducted on the [Appellant's] automobile.
Due to Appellant[']s Sexual Assault conviction, this Court ordered that the State Board to Assess Sexual Offenders ("State Board") perform an assessment of [Appellant's] Sexual Offender status pursuant to 42 Pa.C.S. §9794. Appellant's sentencing hearing was scheduled to occur on February 29, 2012.
On February 1, 2012, the Commonwealth filed a Motion to Continue Sentencing, informing this Court that the February 29 sentencing did not allocate sufficient time for the State Board to conduct its assessment and prepare its report. The Commonwealth's motion was granted, and [Appellant's] sentence was rescheduled to occur on April 16, 2012. On April 5, 2012, Appellant requested another continuance of the sentencing hearing therein articulating his desire to participate in a second interview with the State Board for assessment purposes. The motion further indicated that Appellant required the presence of counsel at the interview as well as indicating a variety of scheduling conflicts that existed at the time. On April 11, 2012, this Court continued [Appellant's] sentencing hearing until May 21, 2012.
On May 21, 2012, this Court conducted a hearing to determine whether the Appellant was to be classified as a sexually violent predator ("SVP") pursuant to 42 Pa. C.S.A. §9795.4. The Commonwealth presented evidence that the Appellant met the classification criteria through the testimony of Brenda Manno ("Ms. Manno"), a licensed clinical social worker and member of the State Board. Ms. Manno performed an assessment of the Appellant and analyzed Appellant's behavior under the factors provided by statute whereupon she ultimately concluded that the Appellant engaged in predatory behavior in the commission of the offenses, suffered from a personality disorder with anti-social features and was likely to reoffend in light of the significant factors considered. N.T. SVP/Sentencing Hearing, 11:21 - 14:24, May 21, 2012.
Upon consideration of the evidence and arguments of counsel, this Court determined that the Commonwealth met its burden to establish by clear and convincing evidence that the Appellant should be classified as an SVP and subject to the registration requirements of Megan's Law. That same day, Appellant was sentenced to ninety-three (93) to one hundred and eighty six (186) months incarceration at Count 1 (Kidnapping). Appellant received three hundred and seventy two (372) days credit at Count 1. At Count 4 (Sexual Assault), Appellant was sentenced to sixty (60) to one hundred and twenty (120) months incarceration consecutive to Count 1. At Count 7 (Terroristic Threats), [Appellant was] sentenced to twenty two (22) to forty eight (48) months incarceration, consecutive to Count 1. At Count 8 (Simple Assault), Appellant was [sentenced] to twelve (12) to twenty four (24) months incarceration consecutive to Count 7. At Count 10 (Possessing Instrument of Crime), Appellant was sentenced to nineteen (19) to thirty six (36) months incarceration, concurrent to Count 8. At Count 9 (Harassment), Appellant was sentenced to thirty (30) to ninety (90) days incarceration concurrent to Count 1. This Court also determined, after taking testimony and reviewing the State Board report that the Appellant shall be classified a sexually violent predator ("SVP"). Appellant was provided Notice to Defendant of Duty to Register pursuant to 42 Pa.C.S.A. §9791. Following sentencing, Appellant filed three post sentence motions.
The same day Appellant was sentenced, he filed a Motion for Recusal, setting forth spurious allegations of judicial abuse and indiscretions that this Court allegedly perpetrated at [Appellant's] trial. The undersigned denied Appellant's motion that same day. On May 29, 2012, Appellant filed a Motion for Extension of Time to File Post Sentence Motion, and the following day filed a Post Sentence Motion for a New Trial and Motion to Modify/Reconsider Sentence. Substantively and despite the Court's denial of [Appellant's] Motion for Recusal, Appellant reiterated his claims of judicial abuse in his Motion for New Trial. On May 30, 2012, this Court denied Appellant's motion for extension of time as moot because Appellant submitted a timely post sentence motion that same day. This Court scheduled a hearing on Appellant's post sentence motion on July 23, 2012.
After appearing before the Court on July 23, 2012, this Court denied Appellant's motion for reconsideration of the Court's SVP finding by Order dated July 24, 2012. The Court granted Appellant's motion in part, merging [Appellant's] sentence at Count 11 (Harassment) with the sentence at Count 8 (Simple Assault).8 Appellant filed a timely notice of appeal on August 16, 2012. On August 17, 2012, Judge DiSantis issued a Concise Statement Order pursuant to Pa.R.A.P. 1925(b). Appellant filed his Statement of Matters Complained of on Appeal on September 7, 2012.
8 On August 1, 2012, the undersigned retired from the bench. The case was reassigned to Judge DiSantis in the interim. The undersigned was approved for Senior Status for September and October.

Trial Court Opinion, 10/9/12, at 1-7 (certain footnotes omitted).

In his Anders brief, Appellant presents the following issues for our review:

1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN MAKING A DETERMINATION THAT THE APPELLANT IS A "SEXUALLY VIOLENT PREDATOR" WHEN THE COMMONWEALTH FAILED TO MEET THE CLEAR AND CONVINCING EVIDENTIARY BURDEN.
2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO CONSIDER THE PENNSYLVANIA SENTENCING GUIDELINES WHEN IT APPLIED A "DEADLY WEAPONS ENHANCEMENT USED" RATHER THAN APPLYING A "DEADLY WEAPONS ENHANCEMENT POSSESSED" WHEN THE COURT SENTENCED THE APPELLANT FOR TERRORISTIC THREATS.
3. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING EDITORIAL COMMENTS AND IMPROPER REMARKS TO THE JURY WHEN ISSUING JURY INSTRUCTIONS.

Anders Brief at 4.

Appellant first argues that the trial court abused its discretion when it found him to be a sexually violent predator. Appellant contends that the Commonwealth failed to establish by clear and convincing evidence that Appellant met the appropriate classification. Appellant alleges that he did not display unusual cruelty towards the victim and he did not exceed the means necessary in order to commit the offense.

Our Supreme Court summarized the procedure for determining whether a defendant is a sexually violent predator and the associated registration, notification, and counseling provisions under Megan's Law as follows:

[A]fter a defendant is convicted of a predicate offense, but before he is sentenced, the trial court directs the Board to make an initial assessment as to whether he should be classified as a sexually violent predator, that is, whether he suffers from a mental abnormality or personality disorder making him likely to engage in future "predatory sexually violent offenses." 42 Pa.C.S. § 9792. The Board makes this assessment based upon various statutorily-prescribed, risk-related criteria and guidelines, as well as any other generally-applicable standards established by the Board. See 42 Pa.C.S. § 9795.4(b). After the Board issues its recommendation, the district attorney may request a hearing before the trial court to determine whether the individual should be adjudicated as a sexually violent predator. The individual and the district attorney are "given notice of the hearing and an opportunity to be heard, " 42 Pa.C.S. § 9795.4(e)(2); each may offer and cross-examine witnesses, including expert witnesses, and the defendant additionally retains the right to be represented by counsel, appointed if necessary. At the conclusion of the hearing, the court determines whether the Commonwealth has proven by clear and convincing evidence that the individual is a sexually violent predator. See 42 Pa.C.S. § 9795.4(e)(3). If the court so concludes, the individual is subject to lifetime registration, notification, and counseling; otherwise, he is deemed an "offender, " and is subject to registration only, for a period of either ten years or the remainder of his life, depending upon the predicate offense and/or the number of convictions. See 42 Pa.C.S. § 9795.1.

Commonwealth v. Maldonado, 838 A.2d 710, 712 (Pa. 2003) (footnote and case citations omitted).

We have reviewed the brief filed on behalf of Appellant, the applicable law, and the thorough opinion of the trial court. It is our conclusion that the trial court's opinion adequately addresses this claim by Appellant and concludes that it lacks merit. Accordingly, we adopt the trial court's discussion as our own and affirm on its basis.[1] See Trial Court Opinion, 10/9/12, at 8-15. Moreover, in reaching our conclusion that the Commonwealth presented clear and convincing evidence that Appellant met the qualifications of a sexually violent predator, we highlight the following relevant testimony offered by the expert witness at Appellant's sentencing:

[Assistant District Attorney:] Can you tell us about your review?
[Expert Witness:] Do you want me to go through the factors?
[Assistant District Attorney:] Yes, please.
[Expert Witness:] We look at the facts of the current offense. In this case there was one victim present. We look at whether or not the offender exceeded the means necessary to achieve the offense, which I found that he did. And the fact that he kidnapped her, was threatening during the assault, had a weapon that was laid on the dashboard during part of the assault, physically assaulted her. We look at the nature of the sexual contact of the victim, and he engaged in sexual intercourse with her during the time that she was with him. The relationship of the offender to the victim, they had known each other and been in a previous relationship. The age of the victim, she was an adult at the time of the offense, I believe she was in her thirties. We look at whether there was a display of unusual cruelty present in the offense, and I found that there was. She was physically assaulted. She reported being fearful during the offense. We review the prior criminal history, both juvenile and adult of the offender. And in this case [Appellant] does have a juvenile criminal history dating back until 1989 for theft; in 1993 he had a simple assault charge. The records indicate that he attempted to steal someone's clothing and that he punched them and held a knife to them. Again, in 1993 his mother had reported to probation that he -- I believe the police said he was out of control, she couldn't handle his behavior. He had a prior adult criminal history. In 1998 he was charged with terroristic threats and simple assault; in 1999 disorderly conduct; in 2002, simple assault; in 2003, indecent assault. The 2003 offense involved [Appellant] being a cab driver. The report in the victim's statement indicates that the victim had been out and was intoxicated. Her friends put her in a cab to send her home and [Appellant] was the cab driver and sexually assaulted her, which involved -- or resulted in her becoming pregnant after the assault. The 1998 offense involved a female who had previously lived with him. She recalled that he punched her in the face, threw her on the floor, threatened her with a knife and threatened to kill her. There is an extensive prior criminal record, and he has served prior sentences of incarceration. He has not participated in any known sex offender treatment. We also look at characteristics of the offender, the age at the time of the offense was 34 years old. But we looked at criminal behaviors dating back to when he was a child, approximately, I think 12 years old. We look at the use of illegal drugs. He did report a past experimentation with substances. He has had substance abuse treatment in the past. We look at mental illness, mental disability or mental abnormalities. He reported having prior mental health treatment. And there's documentation of suicidal attempts in the records. We look at behavioral characteristics that contribute to the offender's conduct. I note that he has a history of criminal behavior, as well as a prior sexual offense. And then we look at other factors in the field, which, again, I discussed here, the sexually assaultive behavior to another woman, as well as physically assaultive behavior to others including two additional women outside of this instant offense.
[Assistant District Attorney:] Okay. Based on that, were you able to conclude – to form a conclusion as to whether or not [Appellant] is a sexually violent predator?
[Expert Witness:] Yes.
[Assistant District Attorney:] What was that conclusion?
[Expert Witness:] When we looked at the presence of a mental abnormality or personality disorder that makes him likely to engage in sexually violent predatory behavior, I found that he had personality disorder – anti-social personality disorder. When we look at the issue of predatory behavior in the statute, an act directed at a stranger or a person with whom a relationship is initiated, established, maintained, or promoted in whole or in part, in order to support or facilitate victimization, I felt that his behavior was predatory in nature. The victim was not a stranger but there was maintenance or promotion of the relationship he did with her in order to assault her.
[Assistant District Attorney:] And did you find that he is, in fact, a sexually violent predator based on that?
[Expert Witness:] Yes.
[Assistant District Attorney:] Okay. And is that opinion expressed to a reasonable degree of professional certainty in your field?
[Expert Witness:] Yes, it is.

N.T., 5/21/12, at 11-14.

In his second issue, Appellant argues that the trial court erred when it employed the deadly weapon "used" enhancement of the sentencing code instead of the deadly weapon "possessed" enhancement when it imposed his sentence for terroristic threats. Initially, we note that Appellant's issue challenges the discretionary aspects of his sentence. See Commonwealth v. Phillips, 946 A.2d 103, 111-112 (Pa. Super. 2008) (stating that a challenge to the application of the weapon enhancement implicates discretionary aspects of sentence) (citing Commonwealth v. Pennington, 751 A.2d 212 (Pa. Super. 2000)). Our standard of review is one of abuse of discretion. Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

Where an appellant challenges the discretionary aspects of a sentence, there is no automatic right to appeal, and an appellant's appeal should be considered as a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

[a]n 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 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 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.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)).

Whether a particular issue constitutes a substantial question about the appropriateness of sentence is a question to be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001). 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.

Herein, the first three requirements of the four-part test are met, those being that Appellant brought an appropriate appeal, raised the challenge in his post-sentence motion, and included in his appellate brief the necessary separate concise statement of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether Appellant raises a substantial question requiring us to review the discretionary aspects of the sentence imposed by the trial court.

As we previously stated, Appellant argues that the trial court erred in applying the deadly weapons enhancement to his conviction of terroristic threats. We have held that such a challenge presents a substantial question for our review. See Phillips, 946 A.2d at 112 (stating that "[a] substantial question is raised where an appellant alleges his sentence is excessive due to the sentencing court's error in applying the deadly weapon enhancement"). Accordingly, because Appellant has stated a substantial question, we will consider this issue on appeal.

We reiterate that sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006). In this context, an abuse of discretion is not shown merely by an error in judgment. Id. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Id.

Our review of the certified record reflects that Appellant was convicted of, among other crimes, terroristic threats. The crime of terroristic threats carries an offense gravity score of "3, " and Appellant had a prior record score of "5." See Sentencing Guideline Forms, 5/22/12, certified record docket entry No. 47. The deadly weapon enhancement "possessed" matrix indicates that a standard range sentence would be a minimum sentence between nine and nineteen months. 204 Pa. Code § 303.17. A sentence in the aggravated range of the matrix would be an addition of three months, or a minimum sentence of up to twenty-two months. Id. Here, for the conviction of terroristic threats, the trial court employed the deadly weapon "possessed" enhancement and sentenced Appellant to a term of incarceration of twenty-two to forty-eight months. N.T., 5/21/12, at 55. Therefore, Appellant's claim that the trial court did not use the deadly weapon "possessed" matrix in fashioning his sentence, but rather used the deadly weapon "used" matrix, is completely belied by the record. Hence, Appellant's contrary claim lacks merit.

In the final issue raised in his Anders brief, Appellant argues that the trial court abused its discretion by making editorial comments and improper remarks to the jury when issuing jury instructions. Essentially, Appellant contends "that on more than one occasion, the trial judge inserted his editorial comments into the jury instructions and his personal recollection of the facts thereby eliminating his position as a neutral factfinder and, instead, advocated for the Commonwealth." Anders Brief at 16.

A party's obligations to object to jury instructions are set forth in Pennsylvania Rule of Criminal Procedure 647, which provides, in relevant part, as follows:

Rule 647. Request for Instructions, Charge to the Jury, and Preliminary Instructions

(B) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury

Pa.R.Crim.P. 647(B). See also Pa.R.A.P. 302(b) ("A general exception to the charge to the jury will not preserve an issue for appeal. Specific exception shall be taken to the language or omission complained of.")

Interpreting this rule, our Supreme Court has held that the plain language of Rule 647(B) requires a specific objection to assign error to a controverted aspect of or omission from a jury charge. Commonwealth v. Pressley, 887 A.2d 220, 223 (Pa. 2005). The Court has held further that in the event counsel fails to posit the appropriate objection prior to the jury's retirement for deliberation, the underlying point is not preserved for appellate review and will be deemed waived on appeal. Id. See also Commonwealth v. Sherwood, 982 A.2d 483, 505 (Pa. 2009) (citing Pa.R.Crim.P. 647(B)); Commonwealth v. Montalvo, 956 A.2d at 935-936 (Pa. 2008) (holding that the law is clear that in order to preserve a claim predicated on an allegedly erroneous jury instruction, a litigant must raise an objection before the jury retires to deliberate).

Our review of the record reflects that Appellant failed to make a timely objection at any point during the jury instructions. Indeed, as the record indicates, at the conclusion of the instructions to the jury, the following transpired:

THE COURT: So with that, counsel, do – I always ask because I've been known to forget things – anything else that you need to meet with me at sidebar?
[Assistant District Attorney]: No.
[Defense Counsel]: No, Your Honor.
THE COURT: Thank you very much. . . .

N.T., 1/18/12, at 115. Accordingly, because Appellant failed to object to the trial court's jury instructions, his claim is waived.

In summary, it is our determination that Appellant's counsel has complied with the requirements of Anders and that an appeal in this case would be wholly frivolous. Furthermore, we have conducted our own, independent review of the record. We do not discern any non-frivolous issues that Appellant could have raised. In light of the foregoing, we grant counsel's petition to withdraw and affirm the judgments of sentence.

Petition to withdraw granted. Judgments of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

(IMAGE OMITTED)


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