*1
Superior Pennsylvania. Court of
Argued Jan. 1996. April Filed *6 Makoul, Allentown, Richard J. appellant. for Coyle, Attorney, Bethlehem, Victoria Assistant District for Commonwealth, appellee. CAVANAUGH, OLSZEWSKI,
Before EAKIN and JJ. OLSZEWSKI, Judge: 20, 1994, January
On appellant Michael Weber was arrested and charged with numerous of rape,1 statutory counts rape,2 intercourse,3 involuntary deviate sexual aggravated indecent assault,4 assault,5 indecent and corruption minors.6 These charges from daughter’s stemmed his (Daughter’s) accusations continuously Weber had forced her to him in engage sexual during relations the ten years following her eighth birthday. The Honorable Jack A. Panella over presided Web- er’s four-day jury trial and the guilty returned verdicts on all charges. Panella Judge sentenced Weber to years 20-to-64 imprisonment. timely In his appeal, Weber asks us to the following review the issues:
1. Whether the trial court erred in applying Rape Shield Law to the defendant preclude from introducing, and commenting summation, upon during testimony concerning a fabrication defense.
2. Whether trial counsel was for failing ineffective to ob- ject to certain sidebar comments made by the trial court a voice audible to the jury. 3121(1). § 18
1. Pa.C.S.A. §
2. 18 Pa.C.S.A. 3122. 3123(1). §
3. 18-Pa.C.S.A. 3125(1). §
4. Pa.C.S.A. 3126(A)(1). §
5. 18 Pa.C.S.A. §
6. Pa.C.S.A. 6301. failing for ob- ineffective trial counsel was Whether thoughts illicit testimony concerning the defendant’s ject to children. regarding other minor his first and vacate merit in contention Weber’s We Thus, retrial. remand this case for judgment sentence of error. remaining claims need not address his Law as follows: Rape reads Pennsylvania’s Shield § victim’s sexual conduct. 3104 Evidence of of the (a) instances specific Rule.—Evidence General conduct, opinion evidence alleged past victim’s sexual conduct, evidence alleged past reputation victim’s shall not be past sexual conduct alleged of the victim’s except chapter evi- prosecutions under admissible sexual conduct with alleged past of the victims dence alleged of the victim is issue defendant where consent *7 pursuant admissible the and such evidence is otherwise rules of evidence. § Pa.C.S.A. trial, Daughter to introduce evidence that sought
At Weber abortion but was afraid that pregnant planning was an This evi- punish her. physically Weber would out dence, asserts, Daughter’s motive fabri- Weber establishes to avoid the story: pre-emptive sexual strike cate the abuse beating. impending properly
In
should have been
arguing that
the evidence
planned
admitted,
Daughter’s
first
abor-
Weber
contends
“sexual
rather
than
procedure”
tion constitutes a “clinical
and, thus,
does not
Rape
our state’s
Shield Law
conduct”
Pennsylvania
no
has ad-
disagree. While
case
apply. We
issue,
the Pennsylva-
we are mindful that
specific
dressed
preference
broadly
demonstrated a
for
Supreme
nia
Court has
our
v.
construing
Rape
state’s
Shield Law.
Berkowitz,
defendant,
143,
(1994),
Pa.
The
of
Rape
Shield Law is
purpose
a sexual
prevent
assault
trial
from
into an
degenerating
upon
attack
victim’s
for
The
reputation
chastity.
allegation that
her boyfriend
victim and
had
over the issue
her
argued
of
infidelity
closely
fidelity
is so
tied to the issue of the victim’s
that,
Law,
itself
for the
of
purposes
Rape
they
Shield
are one and the same. This is precisely
type
allega-
regarding past
tion
Rape
sexual conduct from which the
specifically designed
Shield Law is
to protect victims.
(citations
Id.
omitted).
Razo 431 N.E.2d (Ind.App.1982) (by 554-555 *8 Hoffman, J., judges concurring). with two Consequently, we find that concerning evidence a victim’s is abortion properly encompassed within our Rape state’s Shield Law. however,
The fact that our Rape Shield Law applies,
not necessarily
does
mean
the offered evidence must have
above,
been excluded at trial. As noted
purpose
of the
Rape Shield Law is to
sexual
prevent a
assault
from
trial
degenerating into an
upon
reputation
attack
the victim’s
for
Berkowitz,
chastity.
149-51,
Pa. at
537
41 rape law, today, even to some extent At common and of abuse at the hands secondary suffered victim often who counsel defense judicial through aggressive system these to response victim on trial. essentially put rape enacted abuses, and the states government the federal by abuses to end the were intended shield laws which de- embarrassing inquiries] limiting harassing and sexual conduct of prior into irrelevant sexual fense counsel complainants. assault Smith, 368, A.2d 363, 599 v.
Commonwealth Pa.Super. 410 omitted). Thus, (1991) (citation our 1340, quotations and 1342 testimony “prevent to irrelevant Law needed Rape Shield in activities involvement past to the victim’s relating protect to trier fact order being from presented of unwarranted being prejudiced from because the victim upon based her moral character rather than as to perception Riley, Commonwealth v. Pa.Super. 434 facts the case.” (1994). 1090, 414, 420, 1093 643 A.2d howev recognized, have also Pennsylvania appellate courts er, Rape Shield long-overdue, laudable and “[tjhough [L]aws, construed, impermissibly if could encroach rigidly wit confront cross-examine upon right a defendant’s Pennsylva by the United States which is secured nesses Nieves, Pa.Super. 399 nia Constitutions.” Wall, (1990). In Commonwealth v. 287, 341, 277, 582 A.2d (en banc), 609-14, 449, 606 A.2d 454-57 (1992), denied, Court this alloc. 532 Pa. 614 A.2d as follows: competing these interests reconciled Rape created waged legislatively between the The battle confront and right constitutional Shield Law and the Penn- a familiar one in witnesses is now cross-examine have Supreme Both this Court and our Court sylvania. many conflict times before. battlegrounds as served however, diffi- disputes, task such remains resolving The cult____ face, may at their two authorities issue herein
On more no Examined to share common interests.... seem be, however, purposes may the authorities closely, *9 42 part, truth,
least in reconciled---- The search for there- fore, a common upon is bulwark both Rape which the Shield Thus, Law the Confrontation Clause are in many built. cases, the Rape intent of both the Shield Law and the may Confrontation Clause be encroaching advanced without upon the must other’s domain. We that the recognize attorney “great defense who kindles the engine cross- examination” to harass embarrass the does victim/witness so to conceal than Nothing rather unveil the truth. within either the terms or the of the history Confrontation Clause in any way interpreted protect could be to misguided such strategy, defense and thus the operation Rape the Shield in such Law cases remains unhindered.... only
It is the determining where truth process not by forwarded the past history exclusion of the Rape Shield Law and the Confrontation may Clause not be cases, reconciled---- In such rare the Rape Shield Law must to the to permit bow need an accused an opportunity to present genuinely exculpatory evidence. (citations
Id. at 609-14, 606 at A.2d 454-57 quotations omitted).
Thus, “the
protection
complainant
afforded
by
Shield
does
Rape
prohibit
Law
not act to
relevant evi
may exculpate
dence which
a defendant of
crime
with
Commonwealth v.
which
is charged.”
Spiewak,
1,
he
533 Pa.
8,
(1992).
“[wjhen
617 A.2d
Consequently,
the evi
dence of
sexual conduct
tend
prior
might
prove
accusation,
victim
had motive to fabricate the
it should be
Reed,
admitted.” Commonwealth v.
36, 51,
435 Pa.Super.
denied,
alloc.
1223, 1230 (1994),
A.2d
540 Pa.
Our state’s courts have developed an elabo rate procedure through which potentially exculpatory evi- Rape Shield dence, be excluded which would otherwise Law, being admitted trial. pass must before specific submitting a with the defendant *10 begins process
The he or she seeks exactly of what evidence to the court proffer to the defense. why it is relevant and precisely admit precise frame the the defendant to forces procedure This involved, him her from prevents or and interests and issues on intrusions the expedition style embarking upon “fishing is proffer but Where the protections.” Shield law Rape past of the victim’s conjectural, evidence vague need inquiry be and no further conduct will be excluded entertained.
Wall,
original)
(emphasis
at
Instantly, Weber 7, 1994, pre-trial supplemental submitted September Weber concerning Daughter’s proffer which his motions contained he to intro- Specifically, sought stated that abortion. Weber fact trial: following duce the at Temple University had an at Complainant
B. The abortion September, PA 1993. Philadelphia, in in Health Center not an act that would be 1. This act of abortion is Furthermore this act would the Defendant. by condoned the De- the great Complainant cause tension between fendant. to- Complainant the This fact would show bias
2. the wards Defendant. to the fabrication This is relevant defense evidence trial. will be at presented Motion, at 2-3.
Supplemental Pre-trial
9/7/94
brief,
have
we cannot
proffer may
While
been
Weber’s
conjectural.
set forth the
vague
find
it was
Weber
ie.,
introduced,
Daughter’s
be
sought
evidence
specific
abortion,
and the relevance of this evidence
September defense, ie.,
the sexual assault
fabricating
the
Daughter’s
clash
Weber once he
potential
to avoid a
with
charges
order
such,
proffer
the
As
that Weber’s
learned of
abortion.
in support
admitting
evidence of the abortion was adequate.
Wall,
Sanders,
supra.
420 Pa.Super.
Cf.
(1992)
479,
determine as matter of record to be (1) appellate served for proposed review: whether evi relevant dence is to show bias or motive or to attack (2) credibility; probative whether value the evidence *11 (3) effect; its outweighs prejudicial and whether there are alternative means of bias or proving to challenge motive the credibility. Black,
Commonwealth v.
557-58,
548,
Pa.Super.
337
487 A.2d
(1985) (en banc).
396,
Thus,
proffered
401
where “the
evi-
relevant,
by
dence excluded
the
Shield law
Rape
non-
cumulative, and more
than
it
probative
prejudicial,
must be
Wall,
Pa.Super.
615,
admitted.”
413
Instantly, sought testimony to introduce the of Mi- Weber, brother) chael Jr. (appellant’s son and Daughter’s and (Michael, Michelle girlfriend) LeBar Jr.’s concerning a tele- phone conversation had with they Daughter had on the eve- 20,1993. ning of of September During the course this conver- sation, Daughter couple revealed to the that she was pregnant Daugh- importantly, to have an abortion. More planning to information the couple not to disclose this pled ter with became being beaten once Weber because she feared appellant agree, and we Appellant argues, the news. aware of as it potential beating fear was relevant Daughter’s of assault for her to fabricate established motive is crucial. conversation charges. timing phone The her 1993, 20, Daughter September The occurred conversation later, on two months alleged first sexual abuse reported in proximity The order and sequential November the logical lend themselves to clearly time of these events were motivated allegations that the sexual assault conclusion by potential punishment. fear of Daughter’s
Further, submitting false Daughter history carries a beatings by to reports police expected to the order avoid Daughter reported In Pen April her father. by Argyl Department kidnapped Police that she had been two not Puerto Rican males in a black van. It was until next that, Daugh- intense morning questioning police, under story had in an attempt ter admitted she fabricated the poor report her card anger concerning avoid her father’s grades. above, light Daugh of the that evidence abortion was planned
ter’s fear of Weber’s reaction her fabricating for clearly establishing her motive relevant (evidence Black, supra allegations. sexual assault See *12 held daughter’s with brother was rele relationship her in establishing vant a motive for her to fabricate sexual abuse charges recently father where father had thrown against their (evidence Wall, home); family supra the brother out of the previously participated prose had in the successful victim cution former in her removal from of a abuser which resulted establishing in her home was held relevant her mother’s her uncle charges against motive to fabricate sexual assault disciplinarian where victim removal from her aunt and sought house).7 uncle’s
The second prong the Black test is whether probative value of the evidence outweighs prejudicial its effect. Instant- have, ly, do not doubt that the offered evidence would had a prejudicial impact on Daughter independent of the for purpose which it was offered. ... persistent belief among people
[TJhere some that a woman or girl would not be assaulted provoked unless she the assault by acting promiscuously deliberately placed in herself a situation where an assault anticipated. could be This is particularly so when the parties are known to each other. not yet We have disabused the public completely perception mind that an assault victim is somehow to blame assault, for the and this is even more so with child victims who, poor due to naivete or supervision, find themselves unprotected dangerously and vulnerable.
Smith, 372-73, (quotation A.2d at 1344 omitted).
While evidence of Daughter’s pregnancy and planned abortion would unfortunately raise issues concerning character, her moral this evidence was also critical estab her lishing motive for fabricating charges against defendant. While the Commonwealth did present witnesses who testified that they had observed bruises upon Daughter’s body, directly no-one Daughter’s corroborated testimony con cerning years fact, of alleged sexual abuse. every family witnessed, member testified that they never nor sus pected, acting Weber sexually daughter. towards his More over, took Weber the witness stand flatly and denied the acts his daughter had accused him such, of committing. As 7. We Daughter note that Weber also contends that the was motivated to allegations by fabricate the losing sexual assault her fear of her father’s monetary support once he learned pregnancy planned of her argument abortion. This Clearly, filing is nonsensical. false sexual against assault inevitably claims her father refusing would result in his Moreover, any support. continued financial any the record is devoid of did, fact, Daughter evidence that support fear loss of financial as a consequence discovering of her father pregnancy planned her abortion. *13 for the Common- credibility was the foundation Daughter’s circumstances, these Weber. Under against wealth’s case lie well been may very of motive to have Daughter’s evidence or incarceration. between Weber’s freedom the difference significant evidence’s find that the offered Consequently, we may have effect it outweighed any prejudicial value probative had in this case.8 is whether other
The final of the Black test prong evidence, by Rape precluded not be which would otherwise Law, or motive. prove the witness’s bias exists Shield Commonwealth, of an abundance by Instantly, as conceded upon poorly reflected was introduced at trial which evidence Daugh credibility. Particularly damaging were Daughter’s and her important dates regarding ter’s own inconsistencies evidence, police. to the This prior kidnapping report false avoiding however, from motive of remains distinct pregnancy and beating specifically concerning Daughter’s Thus, any that of the say abortion. we cannot planned evidence, credibility subjected Daughter’s which existing being of her question, was cumulative of the evidence fear her pregnancy planned once her father beaten learned abortion. sum, successfully has estab we that Weber Despite test. this
lished all
the elements of
Black
makes much of the
that the
finding,
note
may
that a
ruling
not
our
as a declaration
defendant
We do
intend
past
conduct
every
sexual
now introduce
instance the child/victim’s
guise
allegations
assault were
that
the child’s
of sexual
under
"effectively
by
punishment. To do would
remove
motivated
fear of
so
protections
[R]ape
by finding
[S]hield [L]aw
from the
of the
children
cry
likely
‘rape’
when confronted
evidence
sexual
child victims
parents
guard-
activity,
possible anger of
rather than deal with the
Smith,
Rather,
Establishing a witness’s motive to essentially lie is an Here, examination of the witness’s state of mind. Weber contends that Daughter fabricated the out allegations of fear. Fear, however, subjective. Thus, history whether a physical abuse actually independent existed is an question from Daughter whether genuinely beating. feared a While evidence of a history physical abuse clearly would lend itself to the Daughter beaten, conclusion that actually being feared absence of such evidence does necessarily genuine mean that fear did not presented exist. Weber direct evidence as to Daughter’s subjective state of mind concerning her fear of being beaten by appellant. Not only did she demonstrate such fear in 1990 when she admitted to the police that she submitted a false in report kidnapping order to avoid her father’s anger poor grades, with her Daughter also admitted to two witnesses that she specifically feared beaten being Weber once he learned of her pregnancy planned abor such, tion. As we cannot find that the direct evidence of Daughter’s subjective fear was inconsistent with Weber’s tes timony history that no of abuse existed. Consequently, proffered that evidence should have been properly at admitted trial.
The fact that proffered Weber’s evidence should have been properly trial, however, admitted at does not serve to termi- nate our review present of the Although case. appellate counsel for the defendant characterizes this case as a violation of Weber’s right accuser, constitutional to confront his review of the record reveals Judge that Panella did allow defense counsel to question Daughter her concerning admis- Weber, sions to Michael Jr. and Michelle LeBar. Specifically, defense counsel questioned Daughter as follows: Now, 1993, you had an September some in Q. time abortion; is that correct? Yes,
A. it is. abortion, done And after had that which was Q. you correct— Philadelphia,
A. Yes. called Mike and Michelle—Mike Weber
Q. —you Weber brother, that; Junior, about isn’t your girlfriend and his that correct? I pregnant. out I them when I found was
A. called them, I’m And, fact, I if not mistak- think called Q. you 20th, en, September right your around on or about birthday; isn’t correct? my pregnant. I on that I was birthday
A. found out night? you phone And talked them on the Q. *15 Yes. A. them, Weber, please tell Miss that don’t tell
Q. you Didn’t I’m my don’t father that my parents, please especially tell I I’m have an because know pregnant, going to abortion if tell you he’ll beat me him? Yes,
A. I did.
N.T., at 201-202. 5/9/95 of this we cannot find that light questioning, What is right infringed upon. pro to confront was Weber’s blematic, however, allowing is the fact that after the above occur, Judge precluded Panella Weber’s cross-examination 1) testimony of Michael presenting counsel from defense Weber, concerning Daughter’s Michelle admis Jr. and LeBar 2) sions, commenting Daughter’s being fear beaten and on during pregnancy planned a result of her abortion as by the trial prohibitions These constitute error summation.9 court. Judge steps upon finding would Panella took these that such evidence physical- testimony with that he had not have been inconsistent Weber’s above, however, we find Weber’s ly Daughter. As noted abused was, fact, subjective testimony Daughter’s with fear of in consistent being beaten.
50 Weber,
The error of
refusing
allow Michael
Jr. and
Michelle LeBar
testify
about
their conversation with
however,
Daughter,
is not fatal.
it
While was mistake to
nevertheless,
herself,
preclude
testimony,
Daughter,
ad
such,
mitted to the contents of the conversation. As
Michael,
testimony
girlfriend
Jr.
his
would have been
merely cumulative and we deem its prohibition harmless. See
v. Hradesky,
24, 29,
Commonwealth
Pa.Super.
170
84 A.2d
(1951)
393,
(“Any
may
396
error that
have resulted from the
testimony
point
exclusion of defense
at one
was harmless as
full
appellant
given
opportunity
was
to make denials and
Balles,
another.”);
Commonwealth v.
explanations
163
(1948) (“under
467, 471-72,
91,
Pa.Super.
62 A.2d
93
circumstances we feel that no reversible error was committed
insomuch as the
sought
answers
to be elicited
the defen
dant from
actually
did
come from her elsewhere
[the witness]
in the course of her examination or were
positively
testified to
Neill,
defendant.”).
also
See
Commonwealth v.
by the
362 Pa.
(1949) (it
507, 516,
67 A.2d
280
was error
to preclude
evidence,
public
certain
records from
partial
“but their
exclu
sion
damage
worked no substantial
to defendant
all
because
the material
of their
portions
brought
contents were
out
witnesses.”).
testimony of defendant himself or of other
The fact that
defense counsel was limited
his
however,
closing argument,
does constitute
a fatal error.
Statements which have been
into evidence can
properly placed
to,
be “referred
either counsel
quoted,
emphasized by
Stark,
during closing arguments.”
denied,
356, 373,
(1987),
alloc.
526 A.2d
*16
(1988).
622,
Further,
Pa.
may argue
51 by beaten Weber as Daughter being that feared evidence planned properly and abortion was pregnancy of her result have defense counsel should Consequently, at trial. admitted to draw for upon this evidence and allowed to comment been her Daughter inference that fabricated jury logical the the Moreover, this attempt specific beating. in an to avoid story this cannot be overstated. prejudicial effect of omission the defense argument no that for closing “There can be doubt in a fact-finding process adversary is a basic element York, 853, 858, 422 95 v. New Herring criminal trial.” U.S. (1975). 2553, 593, previously As 2550, 45 L.Ed.2d 598 S.Ct. Court, by found case a fact finder will have a very could well that
[i]t be credibility immediately on after opinion definite a witness’s when, hearing testify change opinion but the witness that something out during argument, points oral counsel to change fact that him It is opinion. finder causes that certainty with when impossible point often state exact opinion any one forms an on matter. 569, 581, 276 419 A.2d Lowery,
Commonwealth (1980). 604, Thus, the trial committed a 610 we court in prohibiting defense counsel from comment- prejudicial error beaten once learned ing upon Daughter’s being fear Weber clearly her abortion. This error pregnancy planned trial, and, consequently, of a fair must deprived Weber judgment of sentence and remand this case for vacate Weber’s retrial. any possible may appeal adverse conse- not from argument, quences improper jury propriety of a of a defendant's jury argument usually only defense arises when a convicted counsel’s ruling by challenges jury defendant some instruction the trial judge concerning argument. counsel’s defense Murchison, 58, 59, 561, 418 Commonwealth v. Mass. 634 N.E.2d (1994). event, any apply equally closing we find these standards to the arguments prosecution. of both the and the As stated defense land, Supreme accepted Court of our "it should be that both the general
prosecutor subject defense are to the limita- counsel same scope argument.” Young, United States v. 470 U.S. tions their 8-10, 1038, 1042-43, (1985). 105 S.Ct. L.Ed.2d *17 52 vacated, of
Judgment sentence case remanded for retrial. Jurisdiction relinquished.
EAKIN, J., a dissenting opinion. filed EAKIN, Judge, dissenting.
I respectfully the ruling my colleagues, dissent from of which reverses appellant’s grants conviction and a new trial.
I
that
of
agree completely
evidence
an abortion is necessari-
ly evidence of
sexual
prior
activity, so as to
it
the
bring within
scope of the
Law.
Rape Shield
Abortion does not arise
activity,
inadmissible,
if
without
the latter
is
treat evidence of the former
the
differently would defeat
law’s
Berkowitz,
intent. Commonwealth v.
143,
Pa.
641
537
A.2d
(1994). Thus,
1161
the evidence of abortion should have been
excluded, unless it had probative value
its
outweighing
inher-
See,
Black,
e.g.,
v.
ent prejudice.
Commonwealth
337 Pa.Su-
(1985).
per.
In this the defense a posits theory that the victim fabricated the charges, motivated of being fear beaten by appellant should he learn she had an abortion. Evidence of such falsify a motive to be probative. would Reed, (1994). Therefore, 435 A.2d abortion, determine the admissibility of evidence the weigh trial court must probative value of the otherwise testimony against prejudice excludable toward the victim that admission would cause.
My colleagues any prejudice outweighed determine that was value, by the probative and that the evidence should have been admitted, finding thus error. I do not the trial court evidence, was in in excluding error I appellant as believe directly negated himself theory that made the abortion testimony potentially relevant the first place.
This issue did not arise suddenly at It subject trial. was the pretrial proceeding ruling, whereby the court stated it would consider the evidence of only abortion if there was independent evidence the victim’s fear that physical abuse is, would ensue. That relevance the abortion is nonexis- otherwise retaliatory beating of a tent unless fear fear, probity is no established. Without there evidence. proffered (fear beating if this judge theory
The trial ruled that *18 father) evidence, independent not by from her was established theory, manifestly prejudi- merely alleging rather than the To rule of not be allowed. testimony cial abortion would a any theory from defen- self-serving otherwise would allow without bootstrap to all sorts of slander into evidence dant of prejudicial or hint of trustworthiness any corroboration allegations. thrashing daughter over the
Had admitted his appellant water; of “theory” the other evidence years, might his hold enough be allow admission of might corroborative to bruising However, he sought he to introduce. denied the evidence trial; personally took stand and appellant such abuse daughter repudiated any physical abuse that would cause his beating. fear he disavowed the factual personally to a When theory, of he took wind of value out of any probative basis his admissibility. the sails of clearly present multiple
The law allows one to and inconsis- defenses, prejudicial the introduction of highly tent but not be countenanced otherwise inadmissible evidence should theory of relevance refuted specifically when the defense See, Mayfield, e.g., himself. proponent (1991) (while A.2d 1069 defendant has self-defense, may testify claim of he not prove no burden to of, with, defense and inconsistently negate an element it). still himself of avail such,
As I would affirm the trial court’s decision that of a only not failed make out the victim’s fear appellant oath beating, negated very he its existence under and nullified in the That any probative value evidence of abortion. of through evidence came in at all cross-examination than to. victim is more the defense was entitled error, My colleagues find the court but that error to (a reach), I as question be harmless need not the evidence ruling, came in under cross-examination despite victim. They reverse because of the trial purported court’s preclusion closing argument on Appellant the issue. states thusly; his issue
DID THE TRIAL COURT COMMIT REVERSIBLE ER- IN REQUEST ROR DENYING TO IN- DEFENDANT’S TRODUCE A TESTIMONY CONCERNING FABRICA- TION A DEFENSE THROUGH MISAPPLICATION OF RAPE THE SHIELD LAW?
This issue not has been raised us.1 has Appellant before not complained preclusion argument, heretofore closing and if he us to that ruling, wished consider he should have timely raised it in his Complained Statement Matters of on Appeal. issue, Thus he has not to appeal chosen which is therefore waived. The Commonwealth not has been alerted to issue, address the nor has the trial court had the opportunity provide its into As insight this. we have answered the issue raised, I would not endeavor consider not com- matters *19 of. plained
In re ESTATE OF Helen U. Deceased. Jr., Appeal GENIVIVA, Cosmo S. Executor of the Estate of Helen U. Geniviva.
Superior Pennsylvania. Court
Argued Feb. 1996. April
Filed 1996. us, if properly my Even before primary resolution of the issue would moot, question closing argument my make result still would be to affirm conviction.