Com. v. Whitmore, S.

J-S41028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

STEVEN WHITMORE :

:

Appellant : No. 124 WDA 2023

Appeal from the Judgment of Sentence Entered September 26, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0002338-2022

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED: JANUARY 8, 2024

Appellant, Steven Whitmore, appeals from the judgment of sentence

entered on September 26, 2022, following his bench trial conviction for simple

assault, 18 Pa.C.S.A. § 2701(a)(1). We affirm.

We briefly summarize the facts of this case as follows. On February 25,

2022, police responded to an emergency call to the home of Jodi Moore in

Crafton, Pennsylvania. Moore called police after falling down a flight of steps

inside her home and sustaining injuries. She briefly lost consciousness and

called the police when she awoke. Moore told the emergency dispatch

operator and responding Crafton police officer, Sergeant Jason Chedwick, that

she was frightened of Appellant, her boyfriend, who was the only other person

present and living at the residence. Sergeant Chedwick arrived at the

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* Former Justice specially assigned to the Superior Court.

J-S41028-23

residence approximately three minutes after Moore called the police. Upon

arrival, Sergeant Chedwick observed that Moore was intoxicated, visibly

shaking, and crying. She told Sergeant Chedwick that Appellant “grabbed

[her] by the throat and choked her to the point where her throat was hurting

her,” he hit her, and later when she was sitting at the top of the stairs, he

“pushed her down the steps, and she woke up a few hours later.” N.T.,

9/26/2022, at 37-40. Sergeant Chedwick observed a bruise above Moore’s

hip, bumps on her head, and red marks around her neck. Moore went to the

hospital where she was diagnosed with a fractured rib and a bump on her

head. At trial, Moore testified that she was intoxicated and did not remember

how she fell down the stairs. She further testified that before police arrived,

Appellant told her that “a ghost pushed” her. Id. at 11. At trial, Moore

testified that a ghost did not push her. Appellant testified on his own behalf

and denied choking Moore or pushing her down the stairs.

At the conclusion of a bench trial on September 26, 2022, the trial court

found Appellant guilty of simple assault. Appellant waived his right to a

pre-sentence investigation report and proceeded directly to sentencing. The

trial court sentenced Appellant to 12 months of probation, but granted

Appellant’s request to remain at the Renewal Center for four days to complete

a drug and alcohol treatment program. This timely appeal resulted.1

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1 Appellant filed a timely post-sentence motion on September 29, 2022. On

January 26, 2023, Appellant filed a notice of appeal before the trial court ruled

(Footnote Continued Next Page)

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On appeal, Appellant presents the following issues2 for our review:

1. Did the trial court err by precluding cross-examination of the

alleged victim, who was the [Commonwealth’s] key witness,

concerning a pending [] criminal charge which carried

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on his post-sentence motion and one-day before the 120-day deadline for

entry of an order denying Appellant’s post-sentence motion by operation of

law pursuant to Pa.R.Crim.P. 720(B)(3)(a). On January 31, 2023, the trial

court entered an order directing Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied

timely on February 21, 2023. On February 13, 2023, before Appellant filed

his concise statement, this Court entered an order directing Appellant to show

cause why the instant appeal should not be quashed as premature. See

Pa.R.Crim.P. 720 (“No direct appeal may be taken by a defendant while his or

her post-sentence motion is pending.”); see also Commonwealth v.

Borrero, 692 A.2d 158, 160-161 (Pa. Super. 1997) (quashing appeal as

interlocutory when no order has been entered on the record on a timely filed

post-sentence motion). On February 21, 2023, Appellant acknowledged that

his notice of appeal appeared premature. On February 27, 2023, this Court

directed the trial court’s department of court records to enter an order denying

Appellant’s post-sentence motion by operation of law. We further discharged

our February 13, 2023 order to show cause and deemed Appellant’s notice of

appeal timely filed. On April 4, 2023, the trial court’s department of records

filed an order denying Appellant’s post-sentence motion by operation of law.

As such, this appeal became ripe for review upon the entry of the order

denying Appellant’s post-sentence motion. See Commonwealth v.

Ratushny, 17 A.3d 1269, 1271 n.4 (Pa. Super. 2011). On April 18, 2023,

the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

2 We have reordered Appellant’s issues for ease of discussion. Moreover, we

note that Appellant also presented a challenge to the sufficiency of the

evidence which the trial court addressed in its Rule 1925(a) opinion. However,

Appellant does not present that issue and fails to develop it on appeal. Thus,

we conclude that Appellant abandoned his sufficiency claim and find it waived.

See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citation

omitted) (“[W]here an appellate brief fails to provide any discussion of a claim

with citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.”); see also

Commonwealth v. Heggins, 809 A.2d 908, 912 (Pa. Super. 2002) (an issue

identified on appeal but not developed in the appellant's brief is abandoned

and, therefore, waived).

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mandatory penalties, that had been filed [against her] by the

same police department [involved in the instant matter] and

was being prosecuted [] by the same district attorney’s office

which was prosecuting [Appellant]?

2. Did the trial court err – when it imposed sentence – by failing

to credit [Appellant], in accord with 42 Pa.C.S.A. § 9760, for

time spent in custody (May 29, 2022 – September 26, 2022

(120 days))[?]

Appellant’s Brief at 5.

First, Appellant contends that the trial court erred by precluding

cross-examination of Moore concerning a pending criminal charge she faced

in the same county when she testified in this matter. Id. at 14. He claims

she was subject to impeachment regarding her “bias, interest and motive for

appearing and testifying” because of her potential prosecution on the

outstanding charge. Id. More specifically, Appellant contends that Moore’s

trial for driving under the influence (DUI) of alcohol was “looming large,”

scheduled 17 days after this trial, and she faced “a possible mandatory prison

sentence, possible mandatory fine in the range of $1,000[.00] or more, and

possible driver’s license suspension[.]” Id. at 15. Appellant argues that he

should have been permitted to question Moore about “what – if anything –

she expected or anticipated receiving from the district attorney’s office, police

department, or victim advocate in exchange for testifying against” Appellant,

which “profoundly impacted [] Moore’s credibility as a witness.” Id.

Appellant argues that the trial court erroneously sustained the

Commonwealth’s objections into this line of inquiry. Id. at 16. Appellant

maintains that “the evidence was exceptionally probative” and “would have

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explained [that] Moore called the police on February 25, 2023, when

[Appellant] had not assaulted her, [] because she needed leverage for her

own criminal case.” Id. at 20. Appellant further claims that

cross-examination regarding Moore’s DUI charge “would have also explained

why she initially testified she wanted [Appellant’s] court case to go away and

that she did not remember what had happened, it was because she did not

want to perjure herself by implicating [Appellant] in a crime he didn’t commit.”

Id.

We adhere to the following standards and legal precepts:

Preliminarily, we recognize that the scope and limits of

cross-examination are within the discretion of the trial court and

its rulings will not be reversed absent a clear abuse of that

discretion or an error of law. Nevertheless, a witness may be

cross-examined as to any matter tending to show interest or bias.

When a prosecution witness may be biased in favor of the

prosecution because of outstanding criminal charges or

because of any non-final criminal disposition against [her]

within the same jurisdiction, that possible bias, in fairness,

must be made known to the jury. Even if the prosecutor

has made no promises, either on the present case or on

other pending criminal matters, the witness may hope for

favorable treatment from the prosecutor if the witness

presently testifies in a way that is helpful to the prosecution.

And if that possibility exists, the [factfinder] should know

about it.

The [factfinder] may choose to believe the witness even

after it learns of actual promises made or possible promises

of leniency which may be made in the future, but the

defendant, under the right guaranteed in the Pennsylvania

Constitution to confront witnesses against him, must have

the opportunity at least to raise some doubt in the mind of

the [factfinder] as to whether the prosecution witness is

biased.

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* * *

The opportunity to impeach a witness is particularly important

when the determination of a defendant's guilt or innocence

depends on the credibility of the questioned witness. Furthermore,

a witness' status as accuser does not obviate the need for full

cross-examination. To the contrary, the victim, as accuser, must

be subject to the utmost scrutiny if [her] accusations are to fairly

form the basis of the criminal prosecution at hand.

* * *

Not every denial of an accused's right to cross-examine with

respect to an unrelated case requires a new trial. If the error did

not control the outcome of the case, it will be deemed harmless.

In making this assessment, we must consider the importance of

the witness' testimony in the prosecution's case, whether the

testimony was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the witness on

material points, the extent of cross-examination otherwise

permitted, and, of course, the overall strength of the prosecution's

case. When there is a reasonable possibility that an error might

have contributed to the conviction, the error is not harmless.

Commonwealth v. Mullins, 665 A.2d 1275, 1275–1278 (Pa. Super. 1995)

(internal citations, quotations, original brackets, and footnote omitted).

Initially, we note that on this claim, the trial court found “that the issue

was not properly preserved for purposes of this appeal.” Trial Court Opinion,

4/18/2023, at 6. The trial court explained that this matter “proceeded to trial

on two cases at the same time, as both involved [] Moore as the victim.”3 Id.

at 5-6. The trial court claims Appellant “did not propound any questions

regarding [] Moore’s pending DUI charge during his cross-examination” in this

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3 Appellant’s other criminal case is not currently before this panel.

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case, “rather, he reserved those questions for his cross-examination” later

regarding the other criminal case. The trial court further determined:

However, even if the issue had been raised during the examination

of [] Moore [in this matter, the court concluded it] properly

precluded cross-examination regarding [] Moore’s pending DUI

charge. Initially, whether [] Moore ha[d] pending charges [was]

not relevant to the issue of whether [Appellant] committed the

offense of [s]imple [a]ssault on February 25, 2022. A pending

charge of DUI is not [an] appropriate area of inquiry for purposes

of impeachment, as it is neither a conviction nor a crime involving

dishonesty as required by the Pennsylvania Rules of Evidence.

See Pa.R.E. 609 (“For purposes of attacking the credibility of any

witness, evidence that the witness has been convicted of a crime…

must be admitted if it involved dishonesty or false statement.”).

The only arguable basis for inquiry would be if [] Moore received

a withdrawal of charges, special plea bargain, or other benefit

from the Commonwealth as a result of her testimony in this

matter. Counsel for [Appellant] did not place on the record that

that was his intention regarding this line of inquiry. As such, [the

trial court opined it] properly precluded this area of inquiry.

Id. at 6.

Here, we find the trial court’s analysis flawed in two ways. First, upon

review of the trial transcript, we conclude that Appellant properly preserved

the issue. Pennsylvania Rule of Evidence 103 governs the preservation of a

challenge to a ruling to exclude evidence:

Rule 103. Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling

to admit or exclude evidence only:

* * *

(2) if the ruling excludes evidence, a party informs the court

of its substance by an offer of proof, unless the substance

was apparent from the context.

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(b) Not Needing to Renew an Objection or Offer of Proof. Once the

court rules definitively on the record—either before or at trial—a

party need not renew an objection or offer of proof to preserve a

claim of error for appeal.

Pa.R.E. 103(a)(2)-(b).

While it is true that Appellant questioned Moore about her pending DUI

charge during cross-examination on the companion case, her credibility was

at issue in both cases, she testified only once, and the trial court definitively

ruled on the question. During her testimony, defense counsel asked Moore

about her pending DUI charge. N.T., 9/26/2022, at 27. When the

Commonwealth objected, defense counsel replied that the evidence was

“absolutely relevant,” as “a pending charge [that] could be influencing her

testimony one way or another” and, therefore, Appellant was “entitled to

inquire into it and whether or not it came up with the District Attorney.” Id.

at 27-28. The trial court sustained the Commonwealth’s objection and denied

admission of the evidence at trial. Id. at 28. As such, Appellant's challenge

was preserved when the trial court issued its definitive ruling sustaining the

Commonwealth’s objection and precluding the evidence after learning its

substance. See Pa.R.E. 103(a)(2)-(b); see also N.T., 9/26/2022, at 27-28.

Next, we reject the trial court’s reliance on Pa.R.E. 609. Clearly that rule is

inapplicable as it deals with prior convictions for dishonesty or false

statements and Moore had not been convicted. See Pa.R.E. 609 (“For

purposes of attacking the credibility of any witness, evidence that the witness

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has been convicted of a crime… must be admitted if it involved dishonesty

or false statement.”) (emphasis added).

However, based upon our standard of review and the applicable law, we

conclude that the trial court’s error was harmless because it did not control

the outcome of the case. Here, Moore consistently testified that she was

intoxicated and did not recall how she fell down the stairs. See N.T.,

9/26/2022, at 12 (“I was sitting at the top of the stairs, and I fell down the

stairs. And [Appellant] said that a ghost pushed me down the stairs. But then

he told the officers that I fell down because I was drunk. We were both

intoxicated, so truly I don't remember… I'm sure a ghost didn't do it.”).

However, Sergeant Chedwick testified4 that Moore “explained that she was

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4 Appellant initially objected to Sergeant Chedwick’s testimony regarding

what Moore told him as hearsay. N.T., 9/26/2022, at 40. The Commonwealth

asserted that Moore’s statements qualified as excited utterances, an exception

to the hearsay rule. Id. Defense counsel asked the court to “reserve ruling

on whether or not it's excited utterance until after cross-examination [to]

develop some additional facts around it.” Id. However, upon review of the

record, defense counsel did not renew the objection and the trial court never

ruled on the issue. As such, Appellant did not properly challenge Sergeant

Chedwick’s testimony as hearsay and, therefore, the trial court was free to

consider it. Moreover, Appellant does not currently challenge Sergeant

Chedwick’s testimony on appeal. However, we are mindful of the following

legal principles:

Rule 803(2) of the Pennsylvania Rules of Evidence permits the

admission of an excited utterance as an exception to the general

rule that hearsay evidence is inadmissible. The Rule defines an

excited utterance as a statement relating to a startling event or

condition made while the declarant was under the stress of

excitement caused by the event. [F]or a statement to be

(Footnote Continued Next Page)

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considered an excited utterance, it must be made spontaneously

and without opportunity for reflection:

A spontaneous declaration by a person whose mind has

been suddenly made subject to an overpowering emotion

caused by some unexpected and shocking occurrence,

which that person has just participated in or closely

witnessed, and made in reference to some phase of that

occurrence which [s]he perceived, and this declaration must

be made so near the occurrence both in time and place as

to exclude the likelihood of its having emanated in whole or

in part from [her] reflective faculties.... Thus, it must be

shown first, that the declarant had witnessed an event

sufficiently startling and so close in point of time as to

render her reflective thought processes inoperable and,

second, that her declarations were a spontaneous reaction

to that startling event.

[T]his Court further held that there is no clear-cut rule as to the

time sequence required for a statement to qualify as an excited

utterance, but rather that fact-specific determination is to be

made on a case-by-case basis.

Additionally, in assessing a statement offered as an excited

utterance, the court must consider, among other things whether

the statement was in narrative form, the elapsed time between

the startling event and the declaration, whether the declarant had

an opportunity to speak with others and whether, in fact, she did

so. Our Courts have not established a bright line rule regarding

the amount of time that may elapse between the declarant's

experience and her statement. Rather, the crucial question,

regardless of time lapse, is whether, at the time the statement is

made, the nervous excitement continues to dominate while the

reflective processes remain in abeyance. It is the spontaneity of

... an excited utterance that is the source of reliability and the

touchstone of admissibility.

Commonwealth v. Gray, 867 A.2d 560, 569–571 (Pa. Super. 2005) (internal

citations, quotations and original brackets omitted; ellipses in original); see

also id. at 577 (Moreover, “an unsolicited excited utterance to police that is

made to obtain assistance during the commission of a crime would not

constitute a [testimonial] statement made in contemplation of prosecution [or

(Footnote Continued Next Page)

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sitting at the top of her steps, and her boyfriend pushed her down the steps,

and she woke up a few hours later.” N.T., 9/26/2022, at 38. Sergeant

Chedwick further “observed a large visible bruise, [] on the right side, just

above her hip area. And she had some knocks, like some bumps on her head.

And there [were] red marks which coincided with someone putting a hand

around somebody's neck.” Id. at 40. At the conclusion of trial, and in

rendering its decision, the trial court stated that its finding of guilt was “based

primarily on the testimony of [Sergeant] Jason Chedwick.” Id. at 82. As such,

we find that Moore’s testimony was not singularly important to the

Commonwealth’s case. Sergeant Chedwick testified to the presence of

physical evidence of Moore’s injuries, which were consistent with her

statements to the police and, thus, corroborated material points including the

evidentiary principles that supported the admission of her comments.

Moreover, defense counsel extensively cross-examined Moore about her

credibility and she consistently stated that she was too intoxicated to

remember precisely what happened to her and never outright implicated

Appellant. Finally, we examine the overall strength of the Commonwealth’s

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in violation of the Confrontation Clause]. In such a situation, the declarant is

not subject to police interrogation and is not influenced by reason or

deliberation. The declarant volunteers this information in effort to remedy a

perceived emergency, not to create a record against another for use in a future

prosecution.”). Here, Moore made the statements at issue to Sergeant

Chedwick minutes after she regained consciousness and called the police. She

was visibly shaking and crying from the stress of the event. Her nervous

excitement continued to dominate while her reflective processes remained in

abeyance.

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case. Here, Moore testified that she was pushed from behind when she was

alone in her residence with Appellant. She specifically rejected the suggestion

that a ghost pushed her. Taken all together, we conclude that there is no

reasonable possibility that Appellant’s inability to cross-examine Moore about

her pending DUI conviction contributed to Appellant’s conviction and the trial

court’s error precluding the evidence was harmless. Accordingly, Appellant’s

first issue lacks merit.

Next, citing 42 Pa.C.S.A. § 9760,5 Appellant argues that the trial court

failed to credit him for time for the 120 days he spent in pre-trial custody.

Appellant’s Brief at 11-14. Appellant asserts, “[i]nstead, the [c]ourt

sentenced [Appellant] to one year of probation, to complete the Batterer’s

Intervention Program, and to complete his current treatment program with

the Renewal Center, and made the sentence effective September 26, 2022,

without mentioning or accounting for the 120 days [Appellant] was

incarcerated.” Id. at 12. Appellant concedes that “research did not reveal a

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5 The Pennsylvania Sentencing Code, with regard to awarding credit for time

served, provides in pertinent part, that the court shall give credit as follows:

(1) Credit against the maximum term and any minimum

term shall be given to the defendant for all time spent

in custody as a result of the criminal charge for which

a prison sentence is imposed or as a result of conduct

on which such a charge is based. Credit shall include

credit for the time spent in custody prior to trial,

during trial, pending sentence, and pending the

resolution of an appeal.

42 Pa.C.S.A. § 9760(1).

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Pennsylvania Superior or Supreme Court case which controls the outcome of

this case – that is, a case where a defendant was in custody before trial [] but

whose sentence was limited to a period of probationary supervision.” Id.

However, Appellant suggests that the trial court erred by “focusing on the first

clause of 42 Pa.C.S.A. § 9760; it focused on ‘time spent in custody as a result

of a criminal charge for which a prison sentence is imposed,’ instead of

focusing on the second clause, ‘time spent in custody … as result of conduct

on which such charge is based.’” Id. at 13. Appellant maintains that such

“analysis is problematic because it could result in a defendant being subject

to supervision for, or serving more time in prison than, is statutorily

authorized.” Id. at 14.

On this issue, the trial court decided:

[Appellant] testified that he was arrested for failing to

appear for a court date in this matter and has remained in

the Allegheny County Jail or the Renewal Center since that

arrest. While the exact date of his incarceration was not

placed on the record, it [was] clear to [the trial c]ourt that

[Appellant] was incarcerated as result of his failure to

appear for a set trial date in this case. However, in this

instance, a prison sentence was not imposed. [Appellant]

was given a period of probation. [The trial c]ourt issued an

order permitting [Appellant] to remain at [the] Renewal

[Center] for an additional four (4) days at his request to

finish a drug and alcohol program. However, this was not

part of his sentence. As [Appellant] was not sentenced to a

period of incarceration, he is not entitled to credit for time

served.

Trial Court Opinion, 4/18/2023, at 5 (record citations omitted; emphasis in

original).

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We adhere to the following standards:

A claim asserting that the trial court failed to award credit for time

served implicates the legality of the sentence. Issues relating to

the legality of a sentence are questions of law. Our standard of

review over such questions is de novo and the scope of review is

plenary.

Commonwealth v. Gibbs, 181 A.3d 1165, 1166 (Pa. Super. 2018) (case

citations omitted). “The principle underlying [Section 9760] is that a

defendant should be given credit for time spent in custody prior to sentencing

for a particular offense.” Commonwealth v. Fowler, 930 A.2d 586, 595-596

(Pa. Super. 2007) (citation and emphasis omitted). “The easiest application

of 42 Pa.C.S.A. § 9760(1) is when an individual is held in prison pending trial,

or pending appeal, and faces a sentence of incarceration: in such a case,

credit clearly would be awarded.” Id. (citation and brackets omitted;

emphasis added).

Here, Appellant received a sentence of probation. Based upon our

standard of review and applicable law, we determine that Appellant was not

entitled to credit for time served for his pre-trial detention under Section 9760.

Appellant has not provided legal authority for his proposition, and our

independent research has not revealed any. Credit for time served applies

only to a subsequent sentence of total incarceration, rather than a sentence

of probation, when an individual is held in prison pending trial. Moreover, as

Appellant implicitly concedes, his sentence did not exceed the statutory

maximum for the offense of simple assault. As such, we conclude that

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Appellant did not receive an illegal sentence. Accordingly, Appellant’s

sentencing claim lacks merit.

Judgment of sentence affirmed.

FILED: 1/8/2024

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