Commonwealth v. Smith
Decision Date | 20 June 2019 |
Docket Number | No. 1695 MDA 2018,1695 MDA 2018 |
Citation | 213 A.3d 307 |
Parties | COMMONWEALTH of Pennsylvania v. William Bonny SMITH, Appellant |
Court | Pennsylvania Superior Court |
Diana C. Kelleher, Public Defender, Lancaster, for appellant.
Craig W. Stedman, District Attorney, and Jennifer L. Ponessa, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
William Bonny Smith (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of attempted rape of a child, attempted involuntary deviate sexual intercourse with a child, three counts of indecent assault of a person less than 13 years of age, unlawful contact with a minor, and corruption of minors.1 Upon review, we affirm.
The charges in this case arose from Appellant's attempted rape and repeated sexual abuse of a child victim between June 2015 and July 2016. The Commonwealth filed a criminal complaint against Appellant on May 1, 2017. On April 3, 2018, the case proceeded to trial. The jury convicted Appellant of the above crimes on April 4, 2018.
On September 14, 2018, the trial court sentenced Appellant to an aggregate 7 to 20 years of imprisonment. Appellant did not file any post-sentence motions. On October 12, 2018, Appellant filed this timely appeal. Both the trial court and Appellant have complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant presents a single issue for our review:
I. Did the trial court err in barring the defense from presenting a character witness to testify as to [Appellant's] character trait of appropriateness with children in the community pursuant to Pennsylvania Rule of Evidence 404(a)(2)(A) ?
Appellant argues that the trial court "erred in not permitting [him] to introduce character evidence on his own behalf for the character trait of appropriateness with children." Id. at 11. We recognize that "[q]uestions concerning the admissibility of evidence lie within the sound discretion of the trial court, and a reviewing court will not reverse the trial court's decision absent a clear abuse of discretion." Commonwealth v. Young , 989 A.2d 920, 924 (Pa. Super. 2010) (citations omitted).
Upon review, we find that Appellant's issue is waived because he failed to raise a timely objection at trial. "The absence of a contemporaneous objection below constitutes a waiver of the claim on appeal." Commonwealth v. Rodriguez , 174 A.3d 1130, 1145 (Pa. Super. 2017) (citing Commonwealth v. Powell , 598 Pa. 224, 956 A.2d 406, 423 (2008) ). Our Supreme Court has stated:
[I]t is axiomatic that issues are preserved when objections are made timely to the error or offense. See Commonwealth v. May , [ ] 584 Pa. 640, 887 A.2d 750, 761 ( [Pa.] 2005) ("absence of contemporaneous objections renders" an appellant's claim waived) that an ; and Commonwealth v. Bruce , [ ] 207 Pa.Super. 4, 916 A.2d 657, 671 ( [Pa. Super.] 2007), appeal denied , [ ] 593 Pa. 754, 932 A.2d 74 ( [Pa.] 2007) ("failure to offer a timely and specific objection results in waiver of" the claim) that a . Therefore, we shall consider any issue waived where Appellant failed to assert a timely objection.
Commonwealth v. Baumhammers , 599 Pa. 1, 960 A.2d 59, 73 (2008).
Similarly, this Court has stated:
Our Pennsylvania Rules of Appellate Procedure and our case law provide the well-established requirements for preserving a claim for appellate review. It is axiomatic that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). "The absence of a contemporaneous objection below constitutes a waiver" of the claim on appeal. Commonwealth v. Powell , [ ] 598 Pa. 224, 956 A.2d 406, 423 ( [Pa.] 2008) ; Tindall v. Friedman , 970 A.2d 1159, 1174 (Pa. Super. 2009) () (citation omitted)).
Rodriguez , 174 A.3d at 1144–45. We further note that where an appellant includes an issue in his Pa.R.A.P. 1925(b) statement, such inclusion does not "resurrect" a waived claim. Id. at 1145 n.6 (citing Steiner v. Markel , 600 Pa. 515, 968 A.2d 1253 (2009) ).
In this case, after an off-the-record conference between the parties and the trial court, the following on-the-record discussion took place during trial:
When the Commonwealth rested its case-in-chief, the following dialogue occurred:
Upon review of the record, specifically the excerpts from the notes of testimony reproduced above, it is clear that Appellant's counsel failed to place a timely objection on the record to the trial court's denial of the request to present evidence regarding Appellant's appropriateness with children. The trial court, in its opinion, states: Trial Court Opinion, 11/13/18, at 8 ( ).
To preserve the issue, Appellant was required to make a contemporaneous objection to the trial court's determination. Also, after the Commonwealth rested, defense counsel did not seek to present a character witness, nor did counsel voice an objection. Instead, counsel proceeding to closing arguments. Thus, Appellant's issue is waived.3 See Commonwealth v....
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