*1
H79
dоsages
prior
(holding any
to be administered
to PCI
error
the admission of
procedures,
opine
allowed him to
that the
expert testimony regarding the standard
Heparin
5000 units of
to Decedent
given
of
quali-
care was harmless where another
procedure
prior
comported
to
PCI
expert
fied
to
testified
the same standard
II,
of
the standard
See Vicari
care.
trial).
of care at
1281; Hyrcza,
973-74;
at
978 A.2d at
case,
In the instant
trial
court con-
Smith,
885 A.2d
any
cluded that
error
the admission of
opine
Rinder’s refusal to
on
Dr.
other Dr.
testimony
Rinder’s
was harmless be-
of
of
dosagеs
areas outside
the correct
Kahn,
cause Dr.
an interventional cardiolo-
anticoagulation medication did not render
gist,
opined
also
that Appellee did not
unqualified
testify
him
regarding
to
his breach the standard of care in his adminis-
Therefore,
area of expertise.
we conclude
tration of anticoagulant
prior
medication
that
the trial court did not err
con-
procedure.
Decedent’s PCI
Our
of
review
cluding
sufficiently
that Dr. Rinder was
the record reveals no reason to disturb the
familiar with
of
Appellee’s standard
care
finding
trial
court’s
hаrmless error. Dr.
regarding
dosages
correct
anti-
specifically
Kahn
Appellee
noted that
com-
coagulation drugs prior
proce-
to a PCI
ported with
the standard
care when
thereby properly
dure and
admitted Dr.
5,000
administering
Heparin prior
units of
II,
expert testimony.
Rinder’s
Vicari
N.T.,
PCI procedure.
Decedent’s
Accordingly,
A.2d at 1281.
Appellant’s 1/20/15, at
step
38. Dr. Kahn even
awent
first three issues lack merit.
further, opining
Appellee
not
did
issue,
Appellant
his final
assets
breach the
failing
standard
care
that the trial
by finding
court also erred
an ACT
Accordingly,
conduct
test. Id.
be-
that a new trial
not
warranted because
Dr. Kahn
cause
testified
the same stan-
testimony
sufficiently
Dr. Rinder’s
not
Rinder,
dard
care as Dr.
we conclude
prejudicial Appellant’s
Specifically,
case.
any
in admitting
error
Dr. Rinder’s
Appellant avers that Dr. Rinder’s testimo
testimony
Hyrc-
was indeed harmless. See
ny regarding the
of care and the
standard
za,
Therefore, having
accurate. reviewing
When trial court’s rul trial,
ing regarding a new we note: request [I]f basis for a new J.G., IN the INTEREST OF: trial rulings the trial court’s Minor, Appellant A evidence, rulings then such J.G., Appeal A Minor of: only shown to have been not errone- Evidentiary ous but also'harmful .... EDA No.
rulings which not affect the did ver- Superior Pennsylvania. provide dict will a basis dis- June Submitted turbing jury’s judgment. August Filed Dodge, Inc.,
Detterline D’Ambrosio’s (citation (Pa.Super.2000) 763 A.2d
omitted); Hyrcza, see *4 Martino, appel- Philadelphia, for
Andre lant. Burns, Jr.,
Hugh Assistant District J. Carissimi, Attorney, Anthony Assis- and J. Philadelphia, Attorney, tant District for Commonwealth, appellee. LAZARUS, J., DUBOW, J.,
BEFORE: STEVENS, P.J.E.* and STEVENS, BY P.J.E.: OPINION (hereinafter “Juvenile”) appeаls J.G. dispositional from the order entered Philadelphia of Common Pleas 2, 2015, following his de- County June Con- linquency adjudication Robbery, for Taking Theft spiracy, Unlawful Simple Although Assault.1 find Juve- we challenges suppression nile’s court’s motion suppress of his lack merit denial and that waived, has we are issue been constrained provide opportu- to remand motion nity post-dispositional to file weight of pro challenging tunc nunc evidence. * Supe- assigned specially charge possession Former Justice court dismissed a of an rior Court. (PIC), instrument crime Pa.C.S.A. 907(A). § 903(C); 3701(A)( )(iii); §§ 1. 18 Pa.C.S.A. 2701(A), 3921(A); respectively. The juvenile court set forth the relevant The there was a noise in area loud procedural history (N.T. and factual herein as pg. males scattered. 1/20/15 63) follows:2 complainant The was able to see black, all of young, the males were PROCEDURAL HISTORY (N.T. wearing dark sweatshirts. hooded juvenile delinquency Prior to their 70-71) pgs. One male in the 1/20/15 hearing JJ co-defendants and [Juvenile] group complainant stood out to the be- jointly a motion to suppress cause he was a red hooded and out of court identification evi- (N.T. 70) sweatshirt. pg. alleging process and identifi- 1/20/15 catiоns violated the co-defendants’ due complainant The directly then went process rights. The motion was (N.T. denied his home police. and contacted the adjudication hearing 10) held pgs. Police Officers 1/20/15 adjudicated wherein defendants were complainant’s arrived at the home within delinquent robbery felony as a (N.T. 8-9) five minutes. pgs. 1/20/15 theft, degree, conspiracy, second There, told the Officers simple This appeal assault. followed. about the incident and described the (N.T. 9, 84) OF FACTS STATEMENT males. pgs. Based on 1/20/15 description complainant provid- suppression At the heаring and subse- *5 ed, the trial, descrip- Officers sent out a flash quent the Commonwealth offered (N.T. tion of five testimony the assailants. complainant the 1/20/15 9) Pg- Philadelphia Joseph Police Officers [sic],
Campbell, Colin Gershert Jef- Officer partner Goshert and his Offi- frey Thompson. The evidence estab- Thompson cer flash received the infor- following: lished the mation just while at a location two 10, 2014, On December at approxi- blocks from the 6900 block of Haines (N.T. mately complainant 27) 10:30 P.M. the was pgs. Street. At that 1/20/15 in walking location, the area of the 6900 Block of Officer Goshert a observed in Philadelphia, Pennsyl- Haines Street group of three young black males (N.T. 62-63) pgs. information, vania. As matching flash 1/20/15 includ- complainant was walking, young JJ, five ing the wearing defendant who was a approached him. sweatshirt, males Id. One of the red hood who was [Juvenile] approached males complainant wearing sweatshirt, from a dark hooded back, placed his arm around young another black wearing a male complainant’s body. Id. Another male dark hooded sweatshirt. Id. As Officer object held an unknown complain- partner, Goshert and his in both full head, “givе up uniform, males, ant’s neck and said it approached old two fled (N.T. 63) give it up.” pg. The on foot while the defendant JJ remained. 1/20/15 (N.T. 27-28) through other three males went pgs. Thomp- Officer 1/20/15 complainant’s pants pockets. pursued Id. The son and the other [Juvenile] male, complainant testified mo- while Officer Goshert detained de- thought ment he going get he was complaining fendant JJ so that the wit- (N.T. 66) nothing. shot for pg. transported ness could the location 1/20/15 minutes, (N.T. approximately After three to make an identification. 1/20/15 codefendant, procedural history gether 2. The facts and are derived with his J.J. J.J.’s case is transcripts adjudicatory from the of Juvenile’s separately with this Court at No. hearing which time Juvenile was tried to- 2071 EDA 2015. chase, [juvenile] by err 30) Did the [c]ourt [Juvenile] After brief pg. Suppress by Motion to denying Offi- apprehended [Juvenile’s] and detained complaining the out court identification Thompson so that cer Complainant stopped after J.G. was [] to make an transported could be witness the identification positively police because The identification. unduly suggestive? procedure was same indi- JJ as identified defendant wearing sweаt- vidual red hooded so con the verdict was Whether incident, in involved and [Juve- shirt trary to the the evidence as the other males one nile] justice when the shock one’s sense hooded sweatshirt involved dark eyewitness mis Commonwealth’s sole juveniles] were then [The Id. incident. as a co- Court [Juvenile] identified placed arrest. handcuffed under defendant[?] 33-34) (N.T. pgs. 1/20/15 so con Whether verdict 11/9/15, trary at 1- Opinion, Complainant misidentified [Ju when the Court as co-defendant. venile] January juvenile On Brief at 5. testimony on his co- heard Juvenile’s and joint suppress motion iden- defendant’s This Court’s standard review adjudicatory hearing im- tification and an proceed dispositional orders mediately followed. At the conclusion of ings The Juvenile Act is well-settled. hearing, court held the discretion to courts grants broad Ultimately, under matter advisement. determining appropriate dispositions. In adjudicat- court entered an order (Pa.Su C.A.G., re each ing delinquent one count addition, per.2014). this Court will *6 29, April of on charges the aforementioned disposition ab disturb court’s post-disposi- not a 2015. Juvenile did file manifest of discretion. In the abuse sent motion. tional J.D., (Pa.Su 210, of Interest per.2002). 2016, 26, a notice June Juvenile filed On 2015, 30, of On June appeal. chal Juvenile’s first two issues to file concise ordered Juvenile court of lenge the court’s denial ap- on complained of of statement matters complainant’s suppress motion to out 1925(b), peal to Pa.R.A.P. al- pursuant of of court identification Juvenile. When he though had titled filed what suppression reviewing a order: “Preliminary of Com- Statement Matters is to deter appellate required an court on plained Appeal” contemporaneously of supports mine the record whether of 2015. his notice on June findings court’s factual suppression 9, 2015, court On November legal conclu the inferences whether opinion pursuant to Pa.R.A.P. by the court suppression sions drawn 1925(a). appropriate. those are findings from brief, fol- presents In his supports the factual record Where lowing Questions Statement Involved: court, findings we are suppression [juvenile] by may err those facts and reverse Did the bound [e]ourt Suppress only if the conclusions drawn denying legal Motion to [Juvenile’s] However, are in where put .court identification therefrom error. appeal of stop? after an the determination Complainant unlawful suppression court allegations turns constitute an arrest. Id. The deter- courts error, legal suppression court’s con- mine whether suspicion reasonable exists by examining binding totality law are not on an clusions the circum- court, D.M., stances. In the appellate duty it interest of Pa. whose de- is 160, 167, (1999). if suppression proper- termine 727 A.2d An arrest, detention,” or ly applied the law to the “custodial facts. be supported by probable Clinton, 905 cause. an out of Whether court identification A.2d at 1030. unreliable, supрressed is to be process, therefore violative of due de- Juvenile first claims the victim’s totality termined from the of the circum- identification of sup him should have been Suggestiveness in stances. the identifica- pressed as the “fruit an unlawful sei process tion is a factor to be considered zure.” Juvenile’s Brief 10. Juvenile av determining admissibility of such police ers suspicion had neither reasonable evidence, suggestiveness but alone does to stop probable nor cause to arrest him as not warrant exclusion. Identification evi- he ran from them because the information will not suppressed unless the Campbell provided Officer police over facts demonstrate that the identification radio description failed include a procedure' sugges- was so impermissibly perpetrators’ height, weight, any dis give tive as to very rise to a substantial tinctive features or to indicate their di likelihood irreparable misidentifica- rection travel. Id. at 10-11. Juvenile Photographs tion. line-ups used in are stresses officers observed him clad dark unduly suggestive if the suspect’s clothing begin to run at a different picture does not stand out than more location from that where the had incident others, people depicted and the all ex- occurred. Id. similar facial hibit characteristics. D.M., supra, In police responded to the Fulmore, Commonwealth provided by flash information a victim. Of- (internal (Pa.Super.2011) citations and promptly ficers on the of á arrived scene quotation omitted). Moreover, marks our reported robbery armed and saw several from scope suppression ruling review men who matched description. Whén evidentiary limited record officers, they the men abruptly saw at the supрression hearing. was created changed quickly their direction and walked *7 L.J., 126, 148, 1073, re 622 Pa. 79 A.3d away. Supreme Our that noted the 1086(2013). police report particularly reliable be- victim, cause it came from the rather than There types are three of en D.M., anonymous an source. 556 Pa. at counters between law enforcement officials 164-65, 727 at 558. The Court con- A.2d private and citizens. A “mere encounter” circumstances, cluded that under an those supported need not- be by any level of experienced police reasonably officer suspiciоn but carries compulsion no official believe that engaged would were men or stop respond. to Commonwealth v. activity. in criminal Clinton, (Pa.Su 1026, 905 A.2d 1030 denied, per.2006), appeal 685, 594 Pa. Instantly, 934 police pos- we find officers (2007). An “investigative A.2d 71 suspicion deten sessed reasonable of criminal ac- supported tion” must tivity justify to investigatory stop reasonable suspicion subjects 10, and suspect to a on min- Juvenile December 2014. Just stop period detention, and it robbery, but does utes after the Officers Goshert not have the coercive conditions Thompson that would аnd walk- encountered Juvenile identify perpetrator, victim to him the young African as group of other
ing with a suggestive give are to rise to an two of the not so males within blocks American irreparable been complainant had likelihood of misidentification.” area where description Armstrong, com- Matching the v. robbed. Commonwealth A.3d (citation police,, 228, two of the plainant provided (Pa.Super.2Q13) had in- and jackets wearing omitted), dark and were quotation individuals ternal marks red, them 560, and one of wore pants tan granted grounds, on other 623 Pa. began to They disрerse (2014). Herein, hooded sweatshirt. A.3d 411 N.T., 1/10/15, at as the officers advanced. identify that he was testified able addition, seeing 28, the offi- 46. In complex- males their clothing their cers, another fled on foot Juvenile and ion. informed the court he He also Id. Juvenile under directions. hid opposite saw face individual police detection. Id. to avoid a car in effort holding jacket, that person red at 48. light-skinned neck instrument his 1/20/15, 70, N.T., African American. facts, light
In these glasses He he explained does not wear denying suppres not err did of his was not intoxicated at the time that he had been sion motion the basis which sever- identification occurred within unlawfully v. seized. See Commonwealth al of the Id. at 71. minutes incident. 296, 1043, 1049 Ellis, 541 Pa. (1995) may briefly suspect detain a (police Appellant’s argument conflates an undu- an on-scene identifica allow order ly suggestive process identification with tion). companions his Juvenile to be a witness’ afforded identi- suspects, the race of were matched Sanders, fication. See Commonwealth group in a and were dressed as traveling (Pa.Super.2012) (holding A.3d police broadcast over flash .described allegations sufficiently not the victim was observed Juvenile and radio. Officers pretrial go lucid to make a identification away just about two blocks cohorts within not to addition, In of the crime. minutes identification). admissibility In this evasively police he saw the when .acted regard, correctly the trial court reasoned D.M., 160, 165, 556 Pa. re vehicle. See as follows: (1999). totality of circumstances sur- [T]he maintains the Juvenile next identi identifications, rounding the victim’s procedure unduly sug been fication had particularly promptness which at 13. gestive. Juvenile’s Brief they completed, indicated were fact posits light the com out of court that the court identifications plainant while Juvenile identified Juvenile completely were There was no reliable. multiple police offi presence was in the presented indicated the cers, though he had been hand even presence special elements unfair- *8 cuffed, the adjudicatory and admitted at given an that would have ness rise hearing primarily that he based his identi irreparable of misidentifica- likelihood wore, upon clothing fication the Juvenile tion one the witness. While one not reliable. Juvenile’s his identifiсation is suspect the confrontations between 14-15., at Brief highly an on suggestive, victim are the “on-scene, shortly that scene identification made after Court has found This identifications, not, by the of crime even where an occurrence the does one-on-one itself, process suspect’s a offend a due appellant is and officers ask handcuffed
H87
Moye,
Ramtahal,
836 trial
rights. Commonwealth v.
court. Commonwealth
316,
(2011).
(Pa.Super.2003).
973
Gos-
33
appel-
Officer
613 Pa.
A.3d
“An
A.2d
602
court, therefore,
that the
iden-
hert testified
late
reviews the exercise
discretion,
hesi-
the defеndant JJ without
tified
of
not the underlying question
perpetrator
tation
the
red
against
weight
whether the verdict is
the
sweatshirt, and
as one
Id.,
327-28,
[Juvenile]
hooded
of the
with the Juve- be presented claim nile’s claim. it may court so that rule on claim Next, Juvenile asserts the verdict instance, necessary which is ... a first against light Id., appellate for prerequisite review.” complainant’s misidentification (footnote omit- Pa. at A.3d hearing adjudicаtory Juvenile as the ted). 620(A)(2) fil- governs the Pa.R.J.C.P. wearing jacket. the red individual ing expressly designates it as an of what complainant’s maintains statement “optional post-dispositional motion.” See he had based identification (“Issues 620(A)(2) be- raised Pa.R.J.C.P. juveniles rather clothing were during hearing the adjudicatory fore or than their actual one’s sense faces shocks preserved shall for be deemed justice. Juvenile’s Brief at 15. party or not the to file whether elects issues”). This the same applies motion on post-dispositional those of the evi reviewing weight standard Herein, claims in as those did not file cases R.N.,
involving
optional
pursuant
adults.
re
A.2d
motion
post-dispositional
(Pa.Super.2008),
question
alleging
called into
Pa.R.J.C.P.
the verdict
nor
grounds,
J.B.,
weight of the
against
on other
In re
630 Pa.
(2014).
challenge
that the
allegation
An
did he otherwise raise such
entry of its
against
prior
of the evi
court’s
*9
verdict
Instead,
pre-
of
to
order.
Juvenile
dispositional
is
dence
addressed
discretion
sufficiency
following
for
an
claim
of the evidence
weight
his
of
evidence
sented
1925(b)
adjudication
delinquency,
of
must re-
we
the first
in his Pa.R.A.P.
time
the entire record and
the еvi-
view
view
However,
court did
statement.
to
light
most
dence
favorable
of
not
this issue
its
the merits
consider
determining
In
whether
Commonwealth.
1925(a) opinion
focused its
Pa.R.A.P.
presented
the Commonwealth
sufficient
challenge to the
analysis
Juvenile’s
to
proof,
evidence meet its burden
sufficiency of the
See Juvenile
evidence.
whether,
applied
viewing
to be
test
11/9/15,
Under
Opinion,
at 5-6.3
light
in the
most favorable
the evidence
circumstances,
by
compelled
we are
such
all
drawing
to
Commonwealth and
controlling
to
mat-
precedent
remand the
therefrom,
therе
inferences
reasonable
to
ter
to allow
every ele-
is sufficient
find
evidence
pro
motion nunc
post-dispositional
to file a
charged.
Com-
ment
the crime
The
161-62,
J.B.,
In
tunc.
re
630 Pa. at
may
its
monwealth
burden
sustain
at
A.3d
99.4
every
crime be-
proving
element
Finally
contention
Juvenile’s
we address
wholly cir-
yond
by
a reasonable doubt
sufficiency
“contrary to the
the verdict was
cumstantial evidence.
Brief of
at 16.
of the evidence.”
The facts and
estab-
circumstances
Essentially,
the evidence
Juvenile avers
by
not
lished
the Commonwealth need
light
in a
most favorablе
when viewed
incompatible
absolutely
be
defen-
with a
the verdict winner
Commonwealth as
Questions of
are
dant’s innocence.
doubt
contradictory” because
was “unreliable and
hearing judge,
for the
unless
evi-
by
identified Juvenile
his
that,
is so
matter
weak
description
jacket”
of a
“race and the
law, no
fact
probability of
can
drawn
in court and
[Juvenile]
“misidentified
stat-
from the combined circumstances estab-
jacket during the
he
red
ed
wore the
by
lished
the Commonwealth.
17,
crime.”
Brief
V.C.,
(Pa.Su
re
In
348-349
A.3d
challenge
[17-23]
examining a
A.V.,
re
When
In
per.2013) (quoting
A.3d
sufficiency
supporting
(Pa.Super.2012)).
The
1252-1253
all,
some,
adjudication
delinquency,
this Court
of fact
or
an
finder
is free
believe
presented.
employs
review: none
Common
a-well-settled standard of
(Pa.Su
Gainer,
wealth
charged
an
with
When a
Herein,
first
per.2010).
we
consider wheth
if com-
act
constitute a crime
that would
er
Juvenile has waived
issue.
adult, the Commonwealth
by
mitted
of the crime
Appellate
establish
elements
Rule of
Pennsylvania
alia,
inter
proof beyond
1925(b)
a reasonable doubt.
provides,
“Is
Procedure
considering
challenge
in the Statement
sues
included
When
and/or
acknowledges
properly
failure to raise
3. While the Commonwealth
it
J,B.,
holding
challenges
specifically disagreed
re
concedes
court below
weight
suggestion
Majority
may
any
of the evidence
J.B.
distinct,
by raising
combines its
are
the Commonwealth
avoided
have
waiver
challenges
in its brief
discussion
Juvenile's
for
claim
the first
time
his Pa.R.A.P.
avoiding repetition.
1925(b) statement,
Brief
interest
See
Penn-
as it is his view that
n.2;
Appellee
for
14-18.
clearly provides
sylvania law
a Pa.R.A.P.
1925(b)
may not be
vehi-
statement
used
aas
previously
cle to resurrect
waived claims. In
Stevens filed dissent wherein
Then-Justice
J.B.,
167-68,
hе
Id. at 344 Judge joins Opinion. Dubow statement, In his concise Juve nile’s Judge of the evi files a Lazarus challenges read verbatim as Concurring/Dissenting Opinion. follows:6 1925(b)(4) provides: 5. Rule 7.We note properly that even had "1925(b) preserved this issue in his State- Requirements; waiver. ment,” just paragraph argu- he devotes one appellate ment to this in his claim brief (ii) concisely identify The Statement shall general wherein he reiterates his averments ruling each or appellant that the in- error support challenge of his challenge tends to with sufficient detail to again specify evidence and fails to which identify pertinent judge. all issues for the elements) crime(s) of which for which the judge The require shall not the citation to insufficient; therefore, evidence had been authorities; however, appellant may choose claim further waived for lack devel- utter pertinent Pa.R.A.P, to include authorities in State- 2119(a), opment. (b) (requiring See ment. properly developed argument ques- for each 1925(b)(4)(ii). Pa.R.A.P. presented including tion disсussion brief); appellate citation authorities merely replaced "weight 6. Juvenile of the evi- Buterbaugh, Commonwealth v. "sufficiency dence” with of the evidence” (en banc) (failure See (Pa.Super.2014) Preliminary Complained Statement of Matters Appellate conform to the Rules of Procedure ¶¶ Appeal issue). of on 1-2. underlying results waiver of the *11 Therein, claim. weight AND DISSENTING CONCURRING LAZARUS, to unanimously our Court refused find a BY J.: OPINION weight of the criminal defendant’s evi- disposition of Majority’s I in the join claim waived where it was raised suppression challenges the in the defendant’s statement mat- suffiсiency I of the evidence. write complained ters of on and ruled however, I disagree because separately, on the court. trial Majority’s the this with decision remand added). a Id. at filing post-disposition (emphasis for the case acknowledge I motion. we are bound While Here, J.B., trial court unlike the did Pennsylvania Supreme the Court’s deci weight on in its rule the claim Pa. J.B., 124, 106 in In re Pa. A.3d sion 1925(a) opinion. Notwithstanding R.A.P. (2014), not compel that does decision distinction, I note my agreement with here. remand reasoning sound then-Justice Ste- J.B., J.B., opinion dissenting held that J.B. did not vens’ that Court where а has not weight weight the evidence claim claim been raised his waive judge, appellant first in his court cannot he raised it for the time where 1925(b) 1925(b) it in a Rule trial court resurrect statement: Rule statement analysis, particu- In its “the text of Pa.R.J.C.P. addressed issue. Comments, larly supported by acknowledged that J.B. did not file a its sets Court motion; proper, providing the Court forth clear post-disposition also ac- mechanism juveniles present for knowledged raising closing argu- weight it in their chal- juvenile court, weight lenges [appel- to the inconsequential because a ment was рres- been presupposes adjudication. lant] Id. at should have aware of the challenge J.B., significant requirements.” found ervation A.3d at What the Court J., (Stevens, dissenting). fact that See Pa. 620(A)(1) (“The parties R.J.C.P. shall have did, however, his present weight J.B. right post-dispositional to make mo- court the evidence claim tion.”). See also Pa.R.J.C.P. 620 -Comment 1925(b) in his Pa.R.A.P. statement. The (“[Mjotions alleging that the court’s find- then, whether this manner question, is ings against weight evi- were coupled with the presentation, fact why findings to specify dence are were juvenile court ruled it in evidence.”). against weight of 1925(a) opinion its Pa.R.A.P. suffi ciently preserved appellate his claim for Instantly, since did not raise or J.G. Rules of review. The Juvenile preserve of the evidence issue not, present, specify Procedure do for it is appeal, waived and there no adjudicated has been how a who need for a remand. delinquent present foregoing, respectfully I Based claim the so disposi- majority concur as to the claim preserved appellate that the suppression tion of J.G.’s However, procedurally in a review. iden claims as to and dissent matter, Court, in [Commonwealth tical our decision to remand. Pa. ] [547 v. Widmer (1997)], addressed, the con proceedings, text criminal a similar
gap procedural governing rules appellate review of a
presentation and