J-S21026-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KORY LUCAS FITZGERALD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1292 MDA 2022

Appeal from the Judgment of Sentence Entered August 16, 2022

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

No(s): CP-01-CR-0000849-2021

BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED: OCTOBER 23, 2023

Appellant Kory Lucas Fitzgerald appeals from the judgment of sentence 

imposed following his convictions for fleeing or attempting to elude a police 

officer1 (fleeing) and related summary offenses. Appellant raises multiple 

evidentiary claims and challenges the weight of the evidence. We affirm.

The trial court summarized the underlying facts and procedural history 

of this case as follows:

On April 23, 2021, Ranger James Sleighter (hereinafter “Ranger 

Sleighter”), Law Enforcement Ranger for the Department of 

Conservation and Natural Resources, Bureau of Forestry 

(hereinafter “DCNR”), assigned to Michaux State Forest, was on 

patrol with Ranger Scott Greevy (hereinafter “Ranger Greevy”). 

Ranger Greevy was the driver, and they were in their law 

enforcement vehicle, a Ford[ F-250] pickup truck equipped with 

emergency lights and siren. The Rangers were traveling 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa. C.S. § 3733(a).
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northbound on Wenksville Road in Menallen Township, Adams 

County, Pennsylvania, and observed a white sedan turn in front of 

their vehicle from Slatersville Road onto Wenksville Road and 

travel northbound on Wenksville Road. Ranger Sleighter testified 

the white sedan drove erratically, drifting and weaving across the 

center line and the right shoulder line. The white sedan travelled 

from Wenksville Road to Coon Road and continued to drive 

erratically. As the Rangers crossed the boundary to Michaux State 

Forest, Ranger Greevy activated the vehicle’s emergency lights. 

The white sedan did not stop and accelerated rapidly. After the 

white sedan failed to stop[,] Ranger Greevy initiated his siren. 

Ranger Sleighter utilized his cellular telephone and took a video 

of the white sedan while it accelerated rapidly. The Rangers 

followed the white sedan from Coon Road to Back Road. The 

Rangers approached an intersection and stop sign at West Point 

Road. Ranger Sleighter lost sight of the white sedan because it 

had accelerated rapidly. A gentleman off the roadway (Chris 

Cover) pointed to the right on West Point Road. Ranger Greevy 

turned right on West Point Road, travelled up the hill, and at the 

crest of the hill, Ranger Sleighter observed the white sedan in the 

distance. Ranger Sleighter observed a school bus with flashing 

red lights travelling in the same direction as the white sedan. 

Concerned about their safety and the safety of other vehicles on 

the roadway, the Rangers discontinued their pursuit of the white 

sedan. 

The Rangers returned to Piney Apple Golf Course located off 

Slatersville Road. The Rangers observed surveillance cameras in 

the area of the clubhouse at Piney Apple Golf Course. The Rangers 

spoke with the owner, Marguerite Buch and her son, Cory Buch. 

Cory Buch showed the Rangers videos from earlier that day, and 

they observed an individual Ranger Sleighter identified as 

Appellant in golf cart #2 in the parking lot of Piney Apple Golf 

Course. A second video depicted Appellant walking towards a 

white sedan and entering the white sedan. A third video depicted 

the white sedan travelling on Slatersville Road from the parking 

lot of Piney Apple Golf Course and turning left on Wenksville Road 

directly in front of the Rangers’ F-250 pickup truck. 

Ranger Sleighter obtained a copy of the debit card receipt utilized 

by the individual in the video. The debit card was registered to 

Appellant. The debit card receipt displayed a debit sale on April 

23, 2021, at 2:30 p.m. at Piney Apple Golf Course for $20.00 for 

golf cart #2. 
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Ranger Sleighter obtained a JNET photograph of Appellant, who 

was the same individual depicted in the video from Piney Apple 

Golf Course. 

Ranger Sleighter eventually obtained an arrest warrant for 

Appellant and arrested Appellant on June 26, 2021, at Melissa 

Maben’s residence in Carlisle, Pennsylvania. Ranger Sleighter 

observed the white sedan depicted in the videos parked at this 

location. 

* * *

On June 26, 2021, Appellant was arrested in Carlisle, Pennsylvania 

and charged with fleeing or attempting to elude police officer, 

recklessly endangering another person, and several summary 

vehicle violations. . . . 

* * *

On June 10, 2022, Attorney Harper filed [Appellant’s] motion in 

limine seeking to prevent use of the three video recordings 

obtained from the surveillance footage from Piney Apple Golf 

Course. On June 14, 2022, this court denied [Appellant’s] motion 

in limine and ruled that the videos were admissible in accordance 

with Pennsylvania Rule of Evidence 1003. The videos were 

properly authenticated prior to their admission. 

Following jury trial on June 14, 2022, the jury could not reach a 

decision on the fleeing or attempting to elude police officer charge 

and found Appellant not guilty of recklessly endangering another 

person. This [c]ourt granted a mistrial concerning the fleeing or 

attempting to elude police officer charge.

* * *

On Wednesday, July 27, 2022, this court received a request for 

transcript for the June 14, 2022 jury trial. This court denied 

Appellant’s request for transcript because jury selection was 

scheduled for Monday, August 1, 2022, and the stenographer did 

not have sufficient time to prepare the transcript.

[Appellant appeared] for jury selection on August 1, 2022. On 

August 2, 2022, Attorney Harper filed [Appellant’s] motion in 

limine seeking to preclude the anticipated testimony of Melissa 
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Maben in violation of Pennsylvania Rule of Evidence 403, based 

on Appellant’s “volatile relationship between this witness and 

[Appellant] in that they share a child together and are in the midst 

of a dispute over custody and child support.” Hearing on 

[Appellant’s] motion in limine was held before this court on August 

3, 2022, and Appellant’s motion in limine was denied. Such 

identification testimony was allowed in accordance with 

Pennsylvania Rule of Evidence 701. This court also ruled that any 

innate, unfair prejudice to defendant stemming from the volatile 

relationship between Ms. Maben and the defendant goes to the 

weight of the evidence, not admissibility, and such unfair 

prejudice is not outweighed by the probative value of the 

testimony.

Trial Ct. Op. at 1-7.

The trial court summarized the evidence presented at trial as follows:

Chris Cover, who lives at the intersection of West Point Road, 

testified that late afternoon on April 23, 2021, he was outside his 

house and heard a siren. Mr. Cover observed a vehicle come 

around the corner at a high rate of speed and run the stop sign at 

West Point Road. Mr. Cover observed the DCNR pickup truck 

shortly thereafter, with lights and siren activated. Mr. Cover 

pointed in the direction of the other vehicle and the DCNR pickup 

truck travelled in that direction. 

Marguerite Buch testified that she knows Appellant as Kory, who 

played golf at Piney Apple. On April 23, 2021, Appellant played 

Golf at Piney Apple Golf Course, and rented golf cart #2, which 

was depicted in one of the videos offered into evidence by the 

Commonwealth. 

Ranger Greevy testified concerning the events of April 23, 2021. 

Ranger Greevy’s testimony was consistent with Ranger Sleighter’s 

testimony. Ranger Greevy testified that after he initially activated 

his vehicle’s emergency lights, the white sedan quickly. Ranger 

Greevy subsequently initiated the vehicle’s siren, increased his 

speed from 40 MPH to over 70 MPH and still lost sight of the white 

sedan for a period of time. After Ranger Greevy turned onto West 

Point Road and travelled up a hill, he observed the white sedan 

travelling in the distance near a school bus with its flashing red 

lights on. Shortly thereafter, Ranger Greevy decreased his speed 

and stopped the chase for safety reasons. Ranger Greevy testified 
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that the white sedan never tapped its brake lights when it was 

near the school bus. 

Ranger Greevy testified that after returning to Piney Apple Golf 

Course, he reviewed video surveillance with Cory Buch. Ranger 

Greevy utilized his cell phone and took three separate videos from 

the video surveillance footage at Piney Apple Golf Course. Ranger 

Greevy identified the white sedan in the videos, which had a 

temporary tag in the top left corner of the rear window. The same 

white sedan was observed in the cellphone video recorded during 

the high-speed chase by Ranger Sleighter and the temporary tag 

was located in the top left corner of the rear window. Other 

distinguishing marks were observed on the white sedan in the 

videos obtained from Piney Apple Golf Course and the white sedan 

observed during the high-speed chase recorded by Ranger 

Sleighter. Ranger Greevy testified that he observed the same 

white sedan when Appellant was arrested in Carlisle during June 

2021. 

Melissa Maben, who was involved in a relationship with Appellant 

for ten years, and with whom Appellant has a daughter, testified 

for the Commonwealth. During April 2021, Ms. Maben was living 

in Carlisle. Appellant was staying at her house occasionally. Ms. 

Maben identified the vehicle in Ranger Sleighter’s video taken 

during the high-speed chase as Appellant’s vehicle. She 

recognized the temporary tag in the left corner of the rear window. 

Ms. Maben also identified Appellant as the individual in several 

videos and screenshots taken while Appellant was in the parking 

lot of Piney Apple Golf Course and identified the white sedan as 

Appellant’s vehicle. Ms. Maben testified the same white sedan 

was at her residence in Carlisle when Appellant was arrested.

Id. at 3-5.

Ultimately, the trial court found Appellant guilty of fleeing or attempting 

to elude a police officer, graded as a second-degree felony, and two summary 

traffic violations. On August 16, 2022, the trial court sentenced Appellant to 
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partial confinement of 115 to 234 days at the Adams County Correctional 

Facility.2 

Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 

1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing 

Appellant’s claims.

On appeal, Appellant raises the following issues for review:

1. The trial court committed an error of law or abused its 

discretion in denying [Appellant’s] motion in limine and 

allowing bias[ed] testimony of Melissa Maben.

2. The trial court committed an error of law or abused its 

discretion in allowing the introduction of a video recording 

which was recorded on a cell phone and admitted in violation 

of the best evidence rule. 

3. The trial court abused its discretion in denying trial counsel’s 

request for the June 14, 2022 trial transcript (which ended in 

a mistrial) in anticipation and preparation of the second trial 

held August 4, 2022. 

4. The guilty verdict of fleeing and eluding (M2) and related 

summary offenses was against the weight of the evidence 

when: The Rangers could not identify [Appellant] as the driver 

of the vehicle; the vehicle in question was never pulled over or 

otherwise directly tied to defendant; [Appellant] made no 

admissions; [t]he eyewitness provided contradicting testimony 

in the second trial.

Appellant’s Brief at 8-9.3

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2 The record reflects that Appellant was given 234 days of credit for time 

served and immediately released following sentencing.

3 Although Appellant includes an additional issue in his statement of questions, 

Appellant notes that he has withdrawn that claim on appeal. See Appellant’s 

Brief at 9.
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Melissa Maben

In his first claim, Appellant argues that the trial court “abused its 

discretion and committed an error of law in allowing the lay witness testimony 

of Melissa Maben to establish Appellant as the driver of the white sedan on 

the day of the incident.” Id. at 28. In support, Appellant notes that “[Ms.] 

Maben was not present at the golf course on the date in question” and “did 

not testify to having any direct contact or communication with Appellant on 

[that date] to know what he was doing, where he was, what vehicle he was 

driving, or what he was wearing.” Id. at 31. Appellant claims that although 

Ms. Maben was a lay witness, she gave “opinion testimony . . . which was 

used for the sole purpose of identifying Appellant as the driver of the white 

sedan, a material and necessary element.” Id. at 30. Appellant asserts that 

Ms. Maben’s “testimony that she was familiar with Appellant’s appearance at 

or near the time of the alleged incident” was inadmissible “absent evidence 

that his appearance [] changed prior to trial.” Id. at 32 (citing 

Commonwealth v. Thomas, 2014 WL 10787879 (Pa. Super. filed Nov. 19, 

2014) (unpublished mem.). Therefore, Appellant concludes that the trial court 

erred in allowing Ms. Maben to testify at trial.

In reviewing a challenge to the admissibility of evidence, our standard 

of review is as follows: 

Questions concerning the admissibility of evidence are within the 

sound discretion of the trial court and we will not reverse a trial 

court’s decision concerning admissibility of evidence absent an 

abuse of the trial court’s discretion. An abuse of discretion is not 

merely an error of judgment, but is rather the overriding or 
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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 of record. If in reaching a 

conclusion the trial court overrides or misapplies the law, 

discretion is then abused and it is the duty of the appellate court 

to correct the error. 

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014) (citations 

omitted and formatting altered).

“Relevance is the threshold for admissibility of evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc) 

(citation omitted). 

Evidence is relevant if it logically tends to establish a material fact 

in the case, tends to make a fact at issue more or less probable, 

or tends to support a reasonable inference or proposition 

regarding a material fact. Relevant evidence may nevertheless be 

excluded if its probative value is outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the jury, 

or by considerations of undue delay, waste of time, or needless 

presentation of cumulative evidence. 

Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super. 2019) (citation 

and quotation marks omitted), appeal denied, 219 A.3d 597 (Pa. 2019).

Pennsylvania Rule of Evidence 701 states that in cases where a witness 

is not testifying as an expert, his or her opinion testimony must be limited to 

what is: “(a) rationally based on the witness’s perception; (b) helpful to clearly 

understanding the witness’s testimony or to determining a fact in issue; and 

(c) not based on scientific, technical, or other specialized knowledge within 

the scope of Rule 701.” Pa.R.E. 701. 
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“Generally, lay witnesses may express personal opinions related to their 

observations on a range of subject areas based on their personal experiences 

that are helpful to the factfinder.” Commonwealth v. Berry, 172 A.3d 1, 3-

4 (Pa. Super. 2017) (citations omitted). “Fact testimony may include opinion 

or inferences so long as those opinions or inferences are rationally based on 

the witness’s perceptions and helpful to a clear understanding of his or her 

testimony.” Commonwealth v. T.B., 232 A.3d 915, 919 (Pa. Super. 2020), 

appeal denied, 240 A.3d 98 (Pa. 2020) (citations omitted, some formatting 

altered).

Here, the trial court addressed Appellant’s claim as follows:

Melissa Maben was involved in a relationship with Appellant for 

approximately ten years and was familiar with Appellant’s vehicle 

during the time period in question (April 2021). Lay opinion 

identification testimony may be helpful to the jury if it is rationally 

based on the perception of the witness and is helpful to the 

determination of a fact in issue. Ms. Maben provided a proper 

foundation to support this lay identification testimony. The prior 

relationship between Appellant and Ms. Maben was not grounds 

to preclude her testimony. Defense counsel was granted the 

opportunity to question Ms. Maben concerning her prior 

relationship with Appellant, including pending litigation concerning 

the custody of their child. Such evidence went to the weight, not 

the admissibility, of Ms. Maben’s testimony.

Trial Ct. Op. at 11.

Following our review of the record, we discern no abuse of discretion by 

the trial court. See Belknap, 105 A.3d at 9-10. The record reflects that Ms. 

Maben’s testimony was based on her own perceptions of the video footage 

and her personal knowledge concerning Appellant’s vehicle and his 
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appearance around the time of the incident. See T.B., 232 A.3d at 919. 

Therefore, Appellant is not entitled to relief on this claim.4

Video Recording

Appellant argues that the trial court “abused its discretion and 

committed an error of law in admitting the security footage from the Piney 

Apple Golf Course when the recordings served as the foundation of the 

Commonwealth’s entire case against the best evidence rule.” Appellant’s Brief 

at 23. In support, Appellant notes that the footage used at trial was a 

recording of the surveillance footage which “was secured using the Ranger’s 

cell phone and does not include one continuous recording wherein other, 

potentially exculpatory evidence, including the movement of a second white 

sedan, would have been available.” Id. at 25. Further, Appellant argues that 

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4 As noted previously, Appellant relies on this Court’s decision Thomas to 

conclude that Ms. Maben’s testimony was inadmissible at trial in light of 

federal case law that imposes additional requirements for lay witnesses who 

identify individuals from surveillance evidence. See Thomas, 2014 WL 

10787879. However, Thomas is an unpublished decision by this Court that 

was filed prior to May 1, 2019. Therefore, the case is not only nonprecedential, but may not be cited or relied upon for its persuasive value. 

See, e.g., Commonwealth v. Finnecy, 249 A.3d 903, 910 n.9 (Pa. 2021); 

Pa.R.A.P. 126(b). 

In any event, more recent case law reflects that lay witnesses may provide 

identification testimony based on footage played at trial. See e.g., 

Commonwealth v. Connelly, 1004 MDA 2022, 2023 WL 5274028 at *9 (Pa. 

Super. filed Aug. 16, 2023) (unpublished mem.) (rejecting an appellant’s 

claim that lay witnesses cannot testify regarding the identity of a person 

depicted in a surveillance video that is also shown to the jury); see also 

Pa.R.A.P. 126(b)(1)-(2) (stating that unpublished, non-precedential decisions 

of this Court that are filed after May 1, 2019, “may be cited for their 

persuasive value”).
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“[t]he record is devoid of any evidence that the Rangers requested the consent 

of Piney Apple Golf Course to download or otherwise procure an original from 

their security system or that the Rangers requested a warrant or subpoena 

for the same.” Id. Therefore, Appellant concludes that the trial court erred 

in allowing the Commonwealth to use the video footage at trial. 

Pursuant to Rule 1002, known as the “best evidence rule” under 

common law, “[a]n original writing, recording, or photograph is 

required in order to prove its content unless these rules, other 

rules prescribed by the Supreme Court, or a statute provides 

otherwise.” Pa.R.E. 1002. Although the best evidence rule is 

traditionally applied only to writings, “[s]urveillance videotapes 

‘present the same type of circumstances which the best evidence 

rule was designed to guard against,’ namely testimony about the 

content of a videotape when the original tape has not been 

produced or admitted.” Commonwealth v. Green, 162 A.3d 

509, 518 (Pa. Super. 2017).

Commonwealth v. Abrams, 2022 WL 164560 at *3 (Pa. Super. filed Jan. 

19, 2022) (unpublished mem.) (footnote omitted).

While testimony to prove content is inadmissible if neither an original 

nor a duplicate is introduced, “[a] duplicate is admissible[,] to the same extent 

as the original[,] unless a genuine question is raised about the original’s 

authenticity or the circumstances make it unfair to admit the duplicate.”

Pa.R.E. 1003 (emphasis added). Duplicates are defined as “cop[ies] produced 

by a mechanical, photographic, chemical, electronic, or other equivalent 

process or technique that accurately reproduces [an] original.” Pa.R.E. 

1001(e). “In those cases where the opposing party raises a genuine question 

as to the authenticity or fairness of using a duplicate, the trial court may 
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require the production of the original under this rule.” Pa.R.E. 1003, 

Comment. However, “[a]n original is not required and other evidence of the 

content of a writing, recording, or photograph is admissible if . . . all the 

originals are lost or destroyed, and not by the proponent acting in bad faith.”

Pa.R.E. 1004(a). Further, evidence may be authenticated through the 

testimony of a witness with knowledge that an item is what it is claimed to 

be. Pa.R.E. 901(b)(1), (11)(A).

Here, the trial court addressed Appellant’s claim as follows:

Appellant also contends that the trial court committed an error of 

law or abused its discretion in allowing the introduction and 

playing of video evidence which was recorded on a cell phone in 

violation of the best evidence rule. Appellant contends that this 

court erred in allowing the admission of the videos and still 

photographs taken from the surveillance video from Piney Apple 

Golf Course by Ranger Greevy utilizing his cell phone. Appellant’s 

contention has no merit. 

[Appellant] filed [a] motion in limine on June 10, 2022 and this 

court reserved ruling on [the motion] pending testimony from 

witnesses at trial concerning authentication of the videos. Cory 

Buch testified during the June 14, 2022 jury trial that he is an 

employee of Piney Apple Golf Course and is in charge of the video 

surveillance at Piney Apple. On April 23, 2021 Cory Buch showed 

video surveillance from the original surveillance tape to Ranger 

Sleighter and Ranger Greevy. The surveillance tapes were on a

permanent loop, and the surveillance system automatically 

recycled the original videotape. Piney Apple Golf Course did not 

have a back-up surveillance system. If the Rangers attempted to 

seize the original videotape on April 23, 2021, Piney Apple Golf 

Course could not use their video surveillance system. Cory Buch, 

Ranger Sleighter and Ranger Greevy properly authenticated the 

videos Ranger Greevy had recorded from the original surveillance 

tape. As such, the videos were properly authenticated and 

admitted. . . . The original videotape was not destroyed as a result 

of bad faith on the Commonwealth’s part. Since the original 

videotape was unavailable at trial, the best evidence rule did not 
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apply. Based on denial of [Appellant’s] motion in limine on June 

14, 2022, such videos were properly admitted at jury trial on 

August 4, 2022. 

The three video recordings taken from the original video 

recordings were also admissible at trial in accordance with [Rule 

1003]. The duplicate videos were taken directly from the original 

surveillance videotape and truly depicted what was on the original 

videotape. Their admission was not prejudicial to Appellant.

Trial Ct. Op. at 12-13.

Following our review of the record, we discern no abuse of discretion by 

the trial court. See Belknap, 105 A.3d at 9-10. Although Appellant claims 

that the videos “do[] not include one continuous recording wherein other, 

potentially exculpatory evidence, would have been available,” see Appellant’s 

Brief at 23, Appellant does not explain how the format “raises a genuine 

question as to authenticity or the fairness of using a duplicate.” See Pa.R.E. 

1003; see also Pa.R.E. 1003 Comment (noting that since the best evidence 

rule was enacted, “[t]he extension [of admitting] all accurate copies seems 

justified in light of modern practice” where copies are “made by techniques 

that are more likely to produce accurate copies”). Therefore, the trial court 

did not abuse its discretion in admitting this evidence at trial. Accordingly, 

Appellant is not entitled to relief on this claim.

Trial Transcript

Appellant argues that the trial court abused its discretion in denying his

request for the transcript from the jury trial that ended in a mistrial. 

Appellant’s Brief at 33. Appellant argues that because the trial court denied 

his request for the transcript, “defense counsel could not cross reference the 
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testimony witnesses leaving him no opportunity to impeach their credibility or 

test their reliability.” Id. at 33-34. Further, Appellant contends that “[t]he 

trial court erroneously determined that defense counsel filed an untimely 

request for transcripts on July 27, 2022,” but that “[i]n reality, the request for 

transcripts was docketed on July 11, 2022, only weeks after the first trial and 

almost four weeks prior to the commencement of the second trial [on] August 

4, 2022.” Id. at 34.

Initially, we note that the Pennsylvania Rules of Appellate Procedure 

unequivocally require that an appellant support each question he or she raises 

with discussion and analysis of pertinent authority. See Commonwealth v. 

Johnson, 985 A.2d 915, 924 (Pa. 2009); see also Pa.R.A.P. 2119(a). 

“Where 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.” Johnson, 985 A.2d at 924.

Here, Appellant has failed to cite any relevant authority in support of his 

claim.

5

 Accordingly, this issue is waived. See id. 

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5 Although, generally, defendants may use previous sworn testimony to 

impeach a witness, we have been unable to identify any authority stating that 

a defendant is entitled to use the transcript from a mistrial in all situations. 

Indeed, this Court has declined to hold that “a trial judge must always order 

a transcript of a mistrial and make the transcript available to the parties for 

introduction into evidence at the new trial” and explained that “[t]o so hold 

would frequently frustrate the purpose for which a mistrial is granted because 

testimony which necessitated the mistrial would be introduced again at the 

second trial.” Commonwealth v. Cooper, 407 A.2d 456 (Pa. Super. 1979) 

(Footnote Continued Next Page)
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Weight of the Evidence

In his remaining claim, Appellant argues that his conviction for fleeing 

was against the weight of the evidence. Appellant’s Brief at 35-38. 

Before addressing this claim, we must determine whether Appellant 

properly preserved it for review. It is well settled that “[a] weight of the 

evidence claim must be preserved either in a post-sentence motion, by a 

written motion before sentencing, or orally prior to sentencing. Failure to 

properly preserve the claim will result in waiver, even if the trial court 

addresses the issue in its opinion.” See Commonwealth v. Rivera, 238 A.3d 

482, 497 (Pa. Super. 2020); Pa.R.Crim.P. 607(A). (citations omitted). 

Here, our review of the record confirms that Appellant did not file a postsentence motion. Therefore, because Appellant failed to properly preserve a 

weight claim, it is waived. See Rivera, 238 A.3d at 497. Accordingly, we 

affirm.

Judgment of sentence affirmed. Jurisdiction relinquished.

____________________________________________

(noting that “[i]t is fair and logical to say that the ordering of a transcript of a 

previous mistrial is part of the trial court’s broad discretion to order a new 

trial”).
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/23/2023