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[U] Commonwealth v. Gervasi

Superior Court of Pennsylvania

July 8, 2013



Appeal from the Judgment of Sentence March 16, 2012 In the Court of Common Pleas of Lackawanna County Criminal Division at No.: CP-35-CR-0000440-2010.




Appellant, Thomas S. Gervasi, appeals from the judgment of sentence[1] imposed following his conviction of six counts of arson—endangering persons, four counts of criminal mischief, two counts of arson—reckless burning or exploding, and one count each of arson—endangering property and insurance fraud.[2] We affirm.

The trial court set forth the facts of this case in its December 27, 2012 opinion as follows:

On June 17, 2008, a fire broke out at 1021 Mark Avenue in Scranton. Shortly after the fire was reported, the Scranton Fire Department was dispatched to the scene. When the Fire Department arrived at the scene, they not only found both the residence and garage at 1021 Mark Avenue on fire, but also the neighboring residences of 1023-1025 Mark Avenue. . . . [I]njured as a result of the fire were Samantha McDonald and her infant son, [N.L.], residents of 1021 Mark Avenue, who were treated at CMC Hospital in Scranton for their injuries. In addition, others present on the scene during the fire were Tracy Smith, also a resident of 1021 Mark Avenue, Otto Vasquez, resident and owner of 1023 Mark Avenue, and Jolene and Duey Belles, residents of 1025 Mark Avenue, none of whom were injured. In addition to the above mentioned medical injuries, a number of the residents of 1021, 1023, and 1025 Mark Avenue also suffered the loss of their personal property, some losing nearly all of their possessions.
During the course of investigating the fire, Pennsylvania State Trooper Russell Andress and Scranton Fire Detective Martin Monahan discovered that the fire started in the garage attached to 1021 Mark Avenue. Also during the course of the investigation, both officers had the opportunity to, on multiple occasions, speak with [Appellant], who was the owner and landlord of 1021 Mark Avenue during the time that the fire took place. In speaking to Trooper Andress and Det. Monahan, [Appellant] maintained that, although he was present at 1021 Mark Avenue when the fire was started, doing some yard work, he did not know how the fire in the garage began, and that he thought that it was either the catalytic converter in his Cadillac Escalade, which was parked in the garage at the time, or an old chain saw, which was also in the garage at the time, that he had trouble starting that day.
As the investigation . . . continued, Trooper Andress and Det. Monahan determined that neither the catalytic converter in the car, nor the defective chain saw, was the cause of the fire, based on all the evidence gathered, including information obtained from others who were present at the scene of the fire that day.
Moreover, during the course of the investigation, Trooper Andress became aware of the circumstances surrounding [Appellant's] financial situation at the time of the fire. For instance, Trooper Andress discovered that [Appellant] had filed for bankruptcy in 2004 and was discharged unsuccessfully on June 12, 2008, just five (5) days before the fire. Also, [Appellant] owned numerous properties that were in foreclosure at the time of [the] fire, including 1021 Mark Avenue, in addition to multiple liens and late credit card and mortgage payments.
At the conclusion of the investigation, based on all of the evidence that had been gathered, including extensive examinations of the scene of the fire, countless interviews with numerous witnesses, multiple conversations with [Appellant], and the discovery of [Appellant's] dire financial circumstances, Trooper Andress declared the fire an arson, and [Appellant] was arrested on January 21, 2010 and charged with setting the fire.

(Trial Court Opinion, 12/27/12, at 2-4 (record citations omitted)).

On December 21, 2011, a jury convicted Appellant of the fourteen above charges. On March 16, 2012, the court sentenced Appellant to an aggregate term of no less than five nor more than ten years' incarceration in a state correctional institution, followed by one year of special probation. The trial court denied Appellant's post-sentence motions and, on August 23, 2012, Appellant timely appealed.[3]

Appellant raises four questions for this Court's review:

1. Where the Pennsylvania Supreme Court prohibits admission of evidence of a defendant's financial condition to prove motive to commit a crime for monetary gain, and where the trial of a case is dominated by a parade of witnesses, exhibits, and prosecutorial remarks emphasizing [Appellant's] allegedly precarious financial condition, does the admission of this inadmissible and highly prejudicial evidence require reversal of the judgment below?
2. Where Pennsylvania law recognizes that juries are likely to attach exaggerated significance to a demonstration purporting to re-create the manner in which the crime was committed, and therefore prohibits admission of such re-creations unless the conditions of the re-creation are substantially similar to those of the underlying incident, and where the conditions in the recreation are drastically different from those in the underlying incident, is it reversible error to admit such evidence?
3. Where the admissible evidence against [Appellant] was that he was in the general vicinity of a fire, which started in broad daylight, and where the remaining evidence against [Appellant] was an inadmissible attempted re-creation of how the fire started, and inadmissible evidence of [Appellant's] financial condition, should the judgment below be reversed for insufficient evidence?
4. Where the Commonwealth focused on [Appellant] as the suspect as early as June 18, 2008, just one day after the fire, and did not arrest him until more than IV2 years later, on January 22, 2010, and where in the meantime the Commonwealth had free rein to inspect and alter the scene of the incident and the vehicle, while denying [Appellant] access to the scene and the vehicle, and where the trial court denied [Appellant's] request for a jury view of the scene, in part on the ground that the conditions at the scene had changed since the date of the incident, should the judgment be reversed on the ground of prejudicial prosecutorial delay?

(Appellant's Brief, at 2-3 (quotation marks omitted)).

In Appellant's first issue, he argues that the court erred in admitting evidence of his "financial situation as indicative of a criminal motive." (Id. at 10; see id. at 10-17). This issue is waived and would not merit relief.

It is settled law that "[i]n order to preserve an issue for review, a party must make a timely and specific objection." Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003), appeal denied, 845 A.2d 816 (Pa. 2004) (citation omitted); see also 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."). Here, Appellant does not point to any such timely objection and our review of the record does not reveal one. (See Appellant's Brief, at 10-17). see also Commonwealth v. Baker, 963 A.2d 495, 502 n.6 (Pa.Super. 2008) ("[I]t is not the responsibility of this Court to scour the record to prove that an appellant has raised an issue before the trial court, thereby preserving it for appellate review."). Therefore, because Appellant failed to object to the admission of this evidence at trial, we deem the claim waived.[4] See Duffy, supra at 1136; see also Pa.R.A.P. 302(a). Moreover, it would not merit relief.

Our standard of review of this issue is well-settled.

With regard to the admission of evidence, we give the trial court broad discretion, and we will only reverse a trial court's decision to admit or deny evidence on a showing that the trial court clearly abused its discretion. An abuse of discretion is not merely an error in judgment, but an overriding misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record.

Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012) (citations and quotation marks omitted).

Here, the trial court found that evidence regarding Appellant's financial situation was relevant to establish his motive to commit arson. (See Trial Ct. Op., 12/27/12, at 7). We agree.

Appellant correctly points out that our Supreme Court has stated that the Commonwealth cannot use evidence of a defendant's financial situation to establish motive to commit a crime. (See Appellant's Brief, at 10-15); see also Commonwealth v. Barkelbaugh, 584 A.2d 927, 929 (Pa. 1990) ("Ascribing unemployment as a motive for committing a crime violates our holding in [Haight, infra]."); Commonwealth v. Haight, 525 A.2d 1199, 1200 (Pa. 1987) ("Testimony of income, however, does not tend to prove or disprove any of the facts needed to establish the crime of burglary . . . ."). However, more recently, this general rule has been interpreted specifically to mean:

the Commonwealth cannot introduce evidence of [financial problems] in order to suggest to the jury some stigma to be attached to [the] individual^. However, this Court has held that there is no absolute bar to the admission of all evidence of financial difficulties. That is, where evidence of the financial difficulty/debt is specific and evidence of the debt was not intended to stigmatize the appellant on the basis of his economic status, the general prejudice discussed in Barkelbaugh is not present. Under such circumstances, the admissibility of the disputed testimony should be assessed under the traditional considerations of relevancy.

Commonwealth v. Brown, 911 A.2d 576, 584 (Pa. Super. 2006), appeal denied, 920 A.2d 830 (Pa. 2007) (citations and quotation marks omitted). In this case, although Appellant alleges that the Commonwealth "intended" the evidence of Appellant's financial condition to suggest that some stigma should be attached to him on that basis, he offers no proof of this, other than his bald allegation. (Appellant's Brief, at 14; see id. at 10-17). Instead, a review of the record reveals that the Commonwealth argued that Appellant's specific financial circumstances showed his potential motive for committing arson was to maintain his lifestyle. (See N.T., 12/21/11, at 96- 103). Therefore, we assess the admission of the testimony under traditional relevancy considerations. See Brown, supra at 584.

Relevant evidence is that which, either taken alone or in connection with other evidence, tends to prove or disprove some material issue in the case. Stated another way, to establish relevancy we ask whether the evidence sheds light upon or advances the inquiry in which the fact-finder is involved. If the evidence in question is logically relevant it is admissible unless the trial court, in its discretion, determines that its potential prejudicial impact outweighs its probative value.
[E]vidence of specific debts may be introduced where the jury may clearly draw an inference that the financial difficulties of the defendant were material to his motive or state of mind in committing a crime. We recognize that while evidence of indebtedness or of other financial burdens may be clearly probative of a possible motive to commit a crime for monetary gain, we must also consider whether, on the other side of the equation, the potential for prejudice outweighs the obvious relevance of the proof. We are sensitive to the fact that a blanket application of this principle would "prove too much against too many" and may encourage the Commonwealth to argue that a "defendant [with] no apparent means of income . . . was more likely to commit a crime for dollar gain." We do not hold that financial indebtedness is always relevant.
Instead, we require a common sense evaluation of the disputed evidence and an inquiry into whether the probative value of the evidence exceeds its prejudicial impact.

Id. (citing Commonwealth v. Wax, 571 A.2d 386, 388-89 (Pa. Super. 1987)). Finally,

Evidence is not unfairly prejudicial simply because it is harmful to the defendant's case. The trial court is not required to sanitize the trial to eliminate all unpleasant facts from the jury's consideration where those facts are relevant to the issues at hand. Exclusion of evidence on the grounds that it is prejudicial is limited to evidence so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the case.

Flamer, supra at 88 n.7 (citations and quotation marks omitted).

In this case, the Commonwealth presented evidence that Appellant filed for bankruptcy and, only five days before the fire, the filing was unsuccessfully dismissed. (See N.T., 12/14/11, at 259-99). Following the dismissal, Appellant owed over $150, 000.00. (See id. at 286). Additionally, Appellant's property at which the fire occurred, as well as other properties owned by him, was in foreclosure. (See N.T., 12/19/11, at 220-21). Finally, Appellant's properties had many liens on them, and he had late credit card and mortgage payments. (See N.T., 12/14/11, at 175-81).

Based on the foregoing, we conclude that the evidence of Appellant's financial condition was relevant evidence of motive. Additionally, Appellant has failed to establish that the jury reached its verdict based on "something other than the legal propositions relevant to the case." Flamer, supra at 88 n.7. Therefore, we conclude that the trial court did not abuse its discretion in admitting the evidence of Appellant's financial condition and this claim would fail. See id. at 86.

In his second issue, Appellant again challenges the court's admission of evidence. Specifically, he claims that the court "erred or abused its discretion in admitting evidence of the alleged re-creation of the fire because the conditions of the alleged re-creation were drastically different from those of the actual fire." (Appellant's Brief, at 17 (footnote and capitalization omitted)). Appellant's issue lacks merit.

Preliminary, we note that Appellant's characterization of the evidence as a "re-creation of the fire, " is inaccurate, because it was demonstrative of Trooper Andress' theory, not a recreation of what actually occurred. (Id.; see also N.T., 12/19/11, at 68-69, 80-81; 12/21/11, at 64-65).

There are three basic types of evidence that are admitted into court: (1) testimonial evidence; (2) documentary evidence; and (3) demonstrative evidence. Presently, at issue is demonstrative evidence, which is tendered for the purpose of rendering other evidence more comprehensible to the trier of fact. As in the admission of any other evidence, a trial court may admit demonstrative evidence whose relevance outweighs any potential prejudicial effect.

Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006), cert denied, 549 U.S. 920 (2006) (case citations and quotation marks omitted).

In Serge, our Supreme Court held that the trial court properly admitted demonstrative evidence in the form of computer-generated animation (CGA). The Court noted that the CGA illustrated the opinions of the Commonwealth's experts and showed the Commonwealth's theory based on forensic and physical evidence of how the victim had been shot. See id. at 1175-76, 1181. The Court concluded that the CGA was not intended to be a precise re-creation of the crime, but a demonstration of the Commonwealth's theory of how the crime occurred, and therefore was admitted properly. See id. at 1181.

In this case, the investigators, after eliminating all other possible causes of the fire, found a large hole in the right rear corner of the garage that had burned through the floor.[5] (See N.T., 12/19/11, at 4, ; 57-59, 80). They smelled an overpowering odor of gasoline when digging through the debris in the hole and found a large number of steel belts from a tire at the bottom of it. (See id. at 46, 48-49). Trooper Andress also recalled how a neighbor, Otto Vasquez, smelled rubber burning before seeing smoke and flames at the site of the fire. (See id. at 68). Based on this evidence, Trooper Andress theorized that the fire started by burning a tire and that gasoline was involved. (See id. at 68, 80).

At trial, Trooper Andress testified regarding photographs and his report addressing an experiment he conducted to test the theory. (See id. at 81-96). As part of the experiment, Trooper Andress stuffed cotton/polyester rags inside an old car tire, sprinkled gasoline on them, and then lit them on fire. (See id. at 82-83). This test was not to recreate the actual crime, but a test of the trooper's general theory regarding the mechanism (gasoline) used to start the fire. (See id. at 68-69, 80-81); see also Serge, supra at 1175-76, 1181.

Based on the foregoing, we conclude that the trial court properly found that the demonstrative evidence was relevant to show that the Commonwealth's theory of how the fire started was more likely than it would be without the demonstration. See Pa.R.E. 401. We also conclude that the trial court did not err or abuse its discretion when it found that the relevance of the evidence outweighed any potential prejudicial effect. See Serge, supra at 1177.

Appellant argues that he was prejudiced, however, because the jury could have given "undue significance" to the demonstrative evidence. (Appellant's Brief, at 23). Other than such conclusory statements, Appellant fails to show actual prejudice. (See id. at 17-23). In fact, at trial, Appellant had a full opportunity to cross-examine the trooper about whether his experiment actually reflected the way the fire started in the garage and whether the circumstances of the experiment represented those in the garage at 1021 Mark Avenue on the day of the fire. (See N.T. 12/19/11, at 97-134, 143-45). Additionally, the court instructed the jury, using language agreed upon by the parties, on the nature of the experiment and that it was a demonstration merely to test the trooper's theory of how the fire started. (See id. at 74-80). Therefore, Appellant has failed to establish that he was prejudiced by the admission of the videotape because it "inflame[d] the jury to make a decision based upon something other than the legal propositions relevant to the case." Flamer, supra at 88 n.7. Hence, we conclude that the court did not abuse its discretion in admitting it and Appellant's second issue does not merit relief. See Serge, supra at 1170; Flamer, supra at 86.

In Appellant's third issue, he claims that "[t]he judgment should be reversed because there was insufficient evidence to establish guilt beyond a reasonable doubt." (Appellant's Brief, at 23). This issue is waived and would not merit relief.

It is well-settled that:

when challenging the sufficiency of the evidence on appeal, the Appellant's 1925 statement must "specify the element or elements upon which the evidence was insufficient" in order to preserve the issue for appeal. [Commonwealth v.] Williams, 959 A.2d [1252, ] 1257 [(Pa. Super. 2008)] (quoting Commonwealth v. Flores, 2007 Pa. Super. 87, 921 A.2d 517, 522-23 (Pa. Super. 2007)). Such specificity is of particular importance in cases where, as here, the Appellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt. Id., at 1258 n.9. Here, Appellant . . . failed to specify which elements he was challenging in his 1925 statement .... While the trial court did address the topic of sufficiency in its opinion, we have held that this is "of no moment to our analysis because we apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in a selective manner dependent on an appellee's argument or a trial court's choice to address an unpreserved claim." Id. at 1257 (quoting Flores at 522-23).

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010).

Appellant's Rule 1925(b) statement does not identify which elements of the fourteen crimes the Commonwealth allegedly failed to prove. (See Statement of Errors Complained Of On Appeal, 10/26/12, at 3). Specifically, his statement merely claims that "[t]he [c]ourt erred in that the evidence was insufficient to sustain the verdict on any of the Counts." (Id.). Accordingly, Appellant's challenge to the sufficiency of the evidence is waived. See Gibbs, supra at 281. Moreover, even were it not waived, this claim would not merit relief.

Appellant generally challenges his arson convictions. (See Appellant's Brief, at 23-32). Specifically, Appellant argues that "[i]t is undisputed in this case that there was a fire, but the Commonwealth failed to sustain its burden of proving beyond a reasonable doubt that it was maliciously set and that [Appellant] was the guilty party." (Id. at 23-24).

Preliminarily, we note that Appellant mischaracterizes our standard of review. (See id. at 24 (citing Commonwealth v. Key, 492 A.2d 48, 49 (Pa. Super. 1985) for the proposition that a conviction may not stand where evidence is consistent with both guilt and innocence)). In a sufficiency challenge, our standard of review is well-settled:

As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty." [See] Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) ("[T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence"). Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence." Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld.

Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa. Super. 2012 (some quotation marks and citations omitted) (emphases added). Under this well-established standard of review, we conclude that the evidence was indeed sufficient.

Here, Appellant was convicted of nine counts of arson pursuant to 18 Pa.C.S.A. § 3301.[6] To prove the offense of arson, the Commonwealth must establish "(1) that there was a fire; (2) that it was of incendiary origin; and (3) that appellant set the fire." Commonwealth v. Ford, 607 A.2d 764, 766 (Pa. Super. 1992) (citation omitted); see also 18 Pa.C.S.A. § 3301. A defendant's guilt may be proven by entirely circumstantial evidence, "especially in arson cases." Commonwealth v. Nicola, 468 A.2d 1078, 1080-81 (Pa. 1983).

In the trial of this matter, Mr. Vasquez testified that he was outside getting his mail and he noticed that Appellant was in the subject garage leaning into the Escalade's trunk, at the time that it smelled like rubber was burning. (See N.T., 12/13/11, at 268-69, 326; see also N.T., 12/20/11, at 208-209 (Appellant testifying to being in the right rear corner of the garage at the relevant time)). Several residents of the subject property and nearby homes testified that Appellant did not normally park the Escalade in the garage until that day. (See N.T., 12/14/11, at 31, 87; N.T., 12/16/11, at 65, 85-86). When Mr. Vasquez went back into his home, the smell became stronger. (See, N.T., 12/13/11, at 271). When he went back outside, he saw smoke coming from the right rear corner of the garage. (See id. at 272-73). After he called 911, Mr. Vasquez observed that the garage was on fire and that Appellant was across the street, outside of Appellant's ex-wife's house. (See id. at 344). Despite being at the scene, Appellant did not call 911 to report the fire. (See N.T., 12/14/11, at 9-10; N.T., 12/16/11, at 68).

Also, as discussed more fully above, the evidence showed that the fire started in the right rear corner of the garage by burning a tire with gasoline. (See N.T., 12/19/11, at 45-46, 48-49, 57-59, 80-96). The Commonwealth also established Appellant's financial motive for committing the crime. (See N.T., 12/14/11, at 259-99; N.T., 12/19/11, at 175-81, 220-21). Viewing the foregoing circumstantial evidence in the light most favorable to the Commonwealth, we conclude that it sufficiently established that "(1) that there was a fire; (2) that it was of incendiary origin; and (3) that appellant set the fire." Ford, supra at 766 (citation omitted); see also Nicola, supra at 1080-81. Therefore, Appellant's sufficiency of the evidence challenge would not merit relief.[7] See Pettyjohn, supra at 1074-75.

In his fourth issue, Appellant argues that his "judgment should be reversed because of prejudicial prosecutorial delay" where the Commonwealth "was not engaging in a reasonable investigation up to the time of [his] arrest." (Appellant's Brief, at 32, 33 (emphasis omitted)). This issue is waived for Appellant's failure to raise it in the trial court. See Pa.R.A.P. 302(a); see also Commonwealth v. McCord, 644 A.2d 1206, 1210 (Pa. Super. 1994), appeal denied, 673 A.2d 332 (Pa. 1996) ("[T]he proper procedure for objecting to the length of delay in being brought to trial is a motion to quash the indictment.") (citation and internal quotation marks omitted). Moreover, the issue would not merit relief.

When a defendant argues undue delay in the filing of charges, proof of prejudice is a prerequisite to consideration of whether there has been a denial of due process. However, even if a defendant were to show prejudice, the adverse effect on his defense is excusable if the delay was a derivation of reasonable investigation by the authorities. In addition, a defendant must show that the Commonwealth's action in causing or allowing the delay was fundamentally unfair.

McCord, supra at 1210 (citations and quotation marks omitted).

In McCord, the defendant claimed that his due process rights were violated where there was a five-year delay between the subject fire and his arson charge. See id. at 1208. This Court found that the appellant did not establish prejudice because there was no evidence suggesting that the delay was intentionally caused by the Commonwealth in order to gain a tactical advantage. See id. at 1210. Also, the five-year statute of limitations for the crime of arson had not yet run at the time of the indictment and arrest. See id.

The fire at issue in this case occurred in June of 2008 and the Commonwealth charged Appellant with arson and related crimes in January 2010, less than two years after the fire. Therefore, the time between the commission of the offense and the filing of the charges was far shorter than in McCord. Appellant argues, however, that, unlike in McCord, the Commonwealth was not engaged in a reasonable investigation until that time, based on the testimony of two investigators who last interviewed Appellant on October 3, 2008. (See Appellant's Brief, at 34-35). However, he fails to provide any pertinent law or discussion to support his perfunctory conclusion that an investigation is complete on the date of a defendant's last interview. (See id.); see also Pa.R.A.P. 2119(a)-(b). Therefore, this argument is not legally persuasive and would fail, even were the issue not waived. See McCord, supra at 1210.

Appellant also alleges that the Commonwealth engaged in unfair conduct by failing to preserve the scene of the fire properly, resulting in his expert's inability to conduct an examination of the Escalade and the garage, and the denial of his motion for a jury view. (See Appellant's Brief, at 35-37).

For undue delay on the part of the Commonwealth to be found based on a claim that it failed to preserve the scene of a crime properly, the defendant must prove that it did so in bad faith. See Commonwealth v. Coon, 26 A.3d 1159, 1162 (Pa. Super. 2011), appeal denied, 40 A.3d 1233 (Pa. 2012). Here, Appellant does not claim that the Commonwealth acted in bad faith. (See Appellant's Brief, at 32-37). Therefore, this argument also would fail and Appellant has not proven undue prosecutorial delay. See Coon, supra at 1162; McCord, supra at 1210.

Judgment of sentence affirmed.

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