J-S12024-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DARRYL JONES 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 925 EDA 2021

Appeal from the Judgment of Sentence Entered November 1, 2016

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

No(s): CP-51-CR-0016321-2008

COMMONWEALTH OF PENNSYLVANIA

v.

DARRYL JONES 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 926 EDA 2021

Appeal from the Judgment of Sentence Entered November 1, 2016

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

No(s): CP-51-CR-0001994-2009

BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.

MEMORANDUM BY BOWES, J.: FILED JULY 15, 2022

Darryl Jones appeals nunc pro tunc from his November 1, 2016

judgment of sentence of twenty-five to fifty years of incarceration, followed 

by forty-eight years of probation, imposed in the above-captioned cases after 
J-S12024-22

- 2 -

a jury convicted him of four counts of robbery and one count each of unlawful 

possession of a firearm and possessing an instrument of crime..

1

 We affirm.

This Court previously summarized the history of these cases as follows:

At approximately 6:30 p.m. on November 2, 2008, 

Appellant committed an armed robbery of Patricia Cassidy and her 

boyfriend, Chris Gaglione, taking both victims’ wallets. Several 

hours later, at around 10:35 p.m., Appellant committed another 

armed robbery of brothers Christian and Michael Pekula, taking 

both men’s wallets and Christian’s cell phone. After the robbery, 

Christian Pekula called the police and provided a description of 

Appellant. 

Around midnight, two Philadelphia Police Officers, who were 

patrolling in the area, spotted Appellant and believed he matched 

the description of the armed robber. As the officers drove their 

marked police car past Appellant, one of the officers observed 

Appellant discard something that “appeared to be a firearm.” The 

officers stopped and exited their vehicle, and as one officer went 

to secure the weapon, the other officer approached Appellant and 

asked for identification. Appellant pulled out a wallet and the 

officer “noticed a bunch of IDs for white males.” Appellant, a black 

man, could not explain why he had identification cards for white 

males. 

At that point, the officer “went to secure Appellant for the 

investigation, because of the firearm on the ground and the IDs,” 

and Appellant “began swinging at the officer.” Both officers 

ultimately forced Appellant to the ground and placed him under 

arrest. Shortly thereafter, Christian Pekula was brought to the 

____________________________________________

1 Appellant purported to appeal from his original July 20, 2012 judgment of 

sentence rather than the November 1, 2016 resentencing that occurred after 

this Court vacated the 2012 sentence, presumably because, as we discuss 

further infra, he was granted leave to challenge his underlying convictions 

rather than the later resentencing. While Appellant’s appeal does properly lie 

from a judgment of sentence, one cannot appeal from a vacated order. See, 

e.g., Kuppel v. Auman, 529 A.2d 29, 31 (Pa.Super. 1987) (indicating order 

vacated by this Court in prior appeal ceased to exist). Accordingly, we have 

amended the caption to reflect the only extant judgment of sentence in these 

cases. 
J-S12024-22

- 3 -

scene of Appellant’s arrest and Pekula immediately identified 

Appellant as the man who had robbed him. Due to cuts on 

Appellant’s face that he sustained when he resisted arrest, he was 

transported to the hospital, where Patricia Cassidy also positively 

identified Appellant. Additionally, at trial, Christian Pekula, 

Patricia Cassidy, and Chris Gaglione all identified Appellant as the 

individual who robbed them at gunpoint. 

On September 29, 2011, at the close of his jury trial, 

Appellant was convicted of, inter alia, four counts of robbery, one 

count of unlawful possession of a firearm, and one count of 

possessing an instrument of crime. On July 20, 2012, Appellant 

was sentenced to an aggregate term of 25 to 50 years’

incarceration, which included three mandatory minimum terms of 

5 years’ incarceration pursuant to 42 Pa.C.S. § 9712 (Sentences 

for offenses committed with firearms). The court also imposed an 

aggregate term of 53 years’ probation, to be served consecutively 

to Appellant’s sentence of incarceration.

Appellant proceeded pro se on appeal to this Court after we 

remanded to the trial court for a hearing pursuant to 

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Several 

additional remands were necessary, delaying this Court’s 

consideration of Appellant’s issues. Ultimately, we affirmed 

Appellant’s convictions, finding his challenges thereto meritless or 

waived. [Among the claims we found to be waived were that the 

trial court erred in denying his suppression motion.] However, we 

vacated his sentences as illegal under Alleyne v. United States, 

570 U.S. 99 (2013), and its progeny, and remanded for 

resentencing without consideration of any mandatory minimum 

sentences. 

On November 1, 2016, Appellant was resentenced as 

indicated above. . . .

Commonwealth v. Jones, 227 A.3d 402 (Pa.Super. 2020) (non-precedential 

decision at 2-3) (cleaned up).

Appellant did not file a timely direct appeal from his 2016 judgment of 

sentence. He thereafter timely filed a PCRA petition seeking reinstatement of 

his rights to appeal from the new judgment of sentence, as well as raising 
J-S12024-22

- 4 -

claims of ineffective assistance of counsel in, inter alia, failing to contest the 

adequacy of the Grazier hearing conducted during his first direct appeal. The 

PCRA court granted Appellant the right to appeal the 2016 sentence nunc pro 

tunc and did not address the merits of Appellant’s other PCRA claims. 

In this Court, Appellant challenged the discretionary aspects of his 2016 

sentence, as well as the trial court’s Grazier ruling. We affirmed the judgment 

of sentence and did not reach the issue concerning the sufficiency of 

Appellant’s waiver of his right to counsel in his initial direct appeal. 

Specifically, while we noted that the Commonwealth conceded that Appellant’s 

Grazier hearing was deficient, Appellant acknowledged that the issue was 

beyond the scope of the appeal, which was limited to challenging the 2016 

sentence. See Jones, supra (non-precedential decision at 8-9) (citing, inter 

alia, Commonwealth v. Williams, 151 A.3d 621, 625 (Pa.Super. 2016)). 

We observed that the only avenue for Appellant to obtain relief on his Grazierrelated claim was “a collateral attack pursuant to the PCRA.” Id. (nonprecedential decision at 9) (cleaned up). 

Appellant promptly filed a pro se PCRA petition, counsel was appointed, 

and an amended petition was filed. Therein, Appellant alleged, inter alia, that 

counsel at the time of his direct appeal was ineffective for abandoning him at 

the Grazier hearing rather than assuring that Appellant made a knowing, 

intelligent, and voluntary waiver of his right to counsel. See Amended PCRA 

Petition, 10/29/20, at 6; Memorandum of Law, 10/29/20, at 21-22. 
J-S12024-22

- 5 -

Accordingly, Appellant sought the reinstatement of his right to file a direct 

appeal raising new guilt-phase claims.

The Commonwealth filed an answer to the amended petition. Therein, 

it correctly observed that, when a first direct appeal results only in a remand 

for sentencing relief, the imposition of a new sentence does not reset the oneyear clock for filing a PCRA petition challenging the underlying conviction. 

Rather, the judgment of sentence as to guilt-phase claims became final at the 

conclusion of the initial direct appeal for purposes of the PCRA. See Answer 

to PCRA Petition, 4/21/21, at 3 (citing Commonwealth v. Dehart, 730 A.2d 

991, 994 n.2 (Pa.Super. 1999)). However, the Commonwealth suggested that 

Appellant’s petition satisfied the PCRA timeliness exception at 42 Pa.C.S. 

§ 9545(b)(1)(i), in that, through allowing counsel to withdraw absent a proper 

Grazier hearing, the government, however inadvertently, interfered with 

Appellant’s right to counsel on his direct appeal, and Appellant raised the claim 

at the first opportunity when he again had counsel. Id. at 3-4. Further, the 

Commonwealth agreed that, because Appellant had been denied his 

constitutional right to pursue a counseled direct appeal challenging his 

convictions, he was entitled to relief in the form of reinstatement of his rights 

to do so. Id. at 5.

The PCRA court agreed with the parties, and reinstated Appellant’s direct 

appeal rights nunc pro tunc. See Order, 4/26/21. Appellant filed a timely 
J-S12024-22

- 6 -

notice of appeal, and both he and the trial court complied with Pa.R.A.P. 1925. 

Appellant presents the following questions for our review:

I. Whether the trial court erred in denying the suppression 

motion.

II. Whether the Commonwealth committed a Brady violation.

III. Whether the trial court erred in granting the 

Commonwealth’s consolidation motion.

IV. Whether the trial court erred in not allowing the Appellant 

to confront a witness.

V. Whether the Commonwealth presented perjured testimony.

Appellant’s brief at 4.

We begin with Appellant’s suppression challenge. We consider this 

question mindful of the following standard of review:

In reviewing appeals from an order denying suppression, 

our standard of review is limited to determining whether the trial 

court’s factual findings are supported by the record and whether 

its legal conclusions drawn from those facts are correct. When 

reviewing the rulings of a trial court, the appellate court considers 

only the evidence of the prosecution and so much of the evidence 

for the defense as remains uncontradicted when read in the 

context of the record as a whole. When the record supports the 

findings of the trial court, we are bound by those facts and may 

reverse only if the legal conclusions drawn therefrom are in error. 

Our scope of review is limited to the evidence presented at the 

suppression hearing.

Commonwealth v. Bellamy, 252 A.3d 656, 663 (Pa.Super. 2021) (cleaned 

up). 

Appellant contends that the out-of-court identifications of him made by 

Christian Pekula, Bernard Talmage, and Laura Dillingham should have been 
J-S12024-22

- 7 -

suppressed because it was unduly suggestive, and that the subsequent incourt identification was tainted as a result. See Appellant’s brief at 16. 

Consequently, the following principles apply:

In reviewing the propriety of identification evidence, the central 

inquiry is whether, under the totality of the circumstances, the 

identification was reliable. The purpose of a one on one 

identification is to enhance reliability by reducing the time elapsed 

after the commission of the crime. Suggestiveness in the 

identification process is but one factor to be considered in 

determining the admissibility of such evidence and will not warrant 

exclusion absent other factors. As this Court has explained, the 

following factors are to be considered in determining the propriety 

of admitting identification evidence: the opportunity of the witness 

to view the perpetrator at the time of the crime, the witness’[s] 

degree of attention, the accuracy of his prior description of the 

perpetrator, the level of certainty demonstrated at the 

confrontation, and the time between the crime and confrontation. 

The corrupting effect of the suggestive identification, if any, must 

be weighed against these factors. Absent some special element 

of unfairness, a prompt one on one identification is not so 

suggestive as to give rise to an irreparable likelihood of 

misidentification. 

In re K.A.T., Jr., 69 A.3d 691, 700-01 (Pa.Super. 2013) (cleaned up). 

Appellant’s specific complaints are as follows. As for witnesses 

Talmadge and Dillingham, Appellant sought suppression on the bases that 

their identifications took place while Appellant “was facially disfigured after his 

scuffle [with] police, he was surrounded by police[,] and was the lone suspect 

to be identified.” Motion to Preclude Out-of-Court and In-Court Identification 

of the Defendant, 3/1/11, at ¶ 13. Regarding Pekula, Appellant similarly 

complained that “the identification took place approximately 2 hours after the 
J-S12024-22

- 8 -

robbery,” and that Appellant “was the lone suspect, in custody and surrounded 

by police.”2 Id. at ¶ 14. 

The trial court addressed Appellant’s contentions as follows:

While all three of the stated identifications have suggestive 

elements, other factors exist which establish an independent 

origin for each witness. Laura Dillingham made her identification 

of Appellant only six and a half hours after her robbery took place. 

In addition, shortly after the robbery took place, Dillingham gave 

the police a description of the assailant as being a male, around 

five eleven, dark complexion, and dark clothes. Dillingham’s 

robbery lasted several minutes with enough light from the 

surrounding streetlights to have a view of Appellant’s face. 

Additionally, when Dillingham was brought into Appellant’s room 

for identification, she was able to identify Appellant almost 

immediately as her assailant, with complete certainty and virtually 

no hesitation.

With regard to Bernard Talmadge, he gave a very detailed 

description of his assailant as a black male, thirty-five to forty-five 

years old, brown complexion, trim build, mustache, and around 

five eleven. Talmadge’s identification of Appellant took place only 

a few hours after the robbery occurred and was made by 

Talmadge with certainty.

Finally, Chris Pekula was able to give the most extensive 

description [of] his assailant as both he and his brother had

attempted to tackle [Appellant] and resist the robbery. Pekula 

described his assailant as a black male, around six foot, one 

hundred and fifty pounds, thin build, medium dark complexion, 

short black hair, unshaven, denim jacket, black jeans, black 

combat boots, and a knitted hat. Chris Pekula was able to give 

the most accurate description of his assailant and the time delay 

between his robbery and the identification was the shortest among 

all of the witnesses in this matter.

____________________________________________

2 We observe that the suggestiveness of Pekula’s out-of-court identification 

was considered by this Court in Appellant’s initial, pro se direct appeal. 

However, because the lack of a proper waiver of the right to counsel in effect 

undermined that appeal, we consider the issue anew now that Appellant has 

the benefit of counsel to present it. 
J-S12024-22

- 9 -

Based on the totality of the circumstances, the various 

factors of each witness’s identification are enough to establish an 

independent origin from any of the suggestive factors claimed by 

Appellant. Each witness had ample time to view their assailant 

during the commission of the robbery, each witness gave an 

accurate description of their assailant which matched Appellant, 

only a few hours separated the robberies and the identifications, 

and all three witnesses displayed absolute certainty at the time of 

the identification. Based on these facts, Appellant’s claim is 

meritless.

Trial Court Opinion, 7/8/21, at 12-13 (citations omitted). 

We discern no cause to disturb the trial court’s ruling. Appellant’s 

speculation that the individuals “could have been under duress during the 

encounter” and “could have been suffering from exhaustion” at the time of 

the identification, Appellant’s brief at 17, fails to establish that the trial court’s 

findings are unsupported by the record or that its legal conclusions are 

incorrect. The issue merits no relief. 

Appellant next claims that the trial court erred in denying relief on his 

claims based upon Brady v. United States, 397 U.S. 742 (1969). “This issue 

presents a question of law, for which our standard of review is de novo and 

our scope of review is plenary.” Commonwealth v. Bagnall, 235 A.3d 1075, 

1084 (Pa. 2020). Our Supreme Court summarized the law governing Brady

claims as follows:

The law governing alleged Brady violations is well-settled. 

In Brady, the United States Supreme Court held that the 

suppression by the prosecution of evidence favorable to an 

accused upon request violates due process where the evidence is 

material either to guilt or to punishment, irrespective of the good 

faith or bad faith of the prosecution. The Supreme Court 
J-S12024-22

- 10 -

subsequently held that the duty to disclose such evidence is 

applicable even if there has been no request by the accused, and 

that the duty may encompass impeachment evidence as well as 

directly exculpatory evidence. Furthermore, the prosecution’s 

Brady obligation extends to exculpatory evidence in the files of 

police agencies of the same government bringing the prosecution. 

On the question of materiality, the Court has noted that such 

evidence is material if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the 

proceeding would have been different. The materiality inquiry is 

not just a matter of determining whether, after discounting the 

inculpatory evidence in light of the undisclosed evidence, the 

remaining evidence is sufficient to support the jury’s conclusions. 

Rather, the question is whether the favorable evidence could 

reasonably be taken to put the whole case in such a different light 

as to undermine confidence in the verdict. Thus, there are three 

necessary components that demonstrate a violation of the Brady

strictures: the evidence was favorable to the accused, either 

because it is exculpatory or because it impeaches; the evidence 

was suppressed by the prosecution, either willfully or 

inadvertently; and prejudice ensued.

Commonwealth v. Lambert, 884 A.2d 848, 853-54 (Pa. 2005) (cleaned up).

Appellant argues Brady claims as to four items of evidence: (1) the 

affidavit of probable cause for Appellant’s arrest; (2) Philadelphia police patrol 

activity logs; (3) the police incident history and flash report; and (4) the time 

sheets of the officers. See Appellant’s brief at 18. Specifically, Appellant 

indicates that he was unable to review and argue the initial probable cause 

determination for his seizure and search because the prosecution withheld the 

affidavit of probable cause. Id. at 20. Further, he maintains that the missing 

evidence would have raised doubts about the officers’ whereabouts during the 

investigation of the robberies, provided a more detailed timeline of events, 
J-S12024-22

- 11 -

and could have been used to impeach the officers if they were not “in fact on 

duty when they said they were, on patrol where they said they were.” Id. 

Upon review, we conclude that Appellant failed to establish a right to 

relief as to any of them. First, as the trial court observes in its opinion, an

affidavit of probable cause is filed as a public record that was available to 

Appellant, and, therefore, was not Brady material. See Trial Court Opinion, 

7/8/21, at 14. See also Commonwealth v. Benvenisti-Zarom, 229 A.3d 

14, 26 (Pa.Super. 2020) (“Brady is not violated when the appellant knew or, 

with reasonable diligence, could have uncovered the evidence in question, or 

when the evidence was available to the defense from other sources.” (cleaned 

up)). 

Second, the patrol activity logs were not suppressed by the 

Commonwealth, but were lost before trial and not available to either party. 

See Trial Court Opinion, 7/8/21, at 15. Accordingly, the material was only 

possibly exculpatory and no Brady violation occurred because Appellant did 

not establish bad faith on the part of the Commonwealth. See, e.g., 

Commonwealth v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011) (“Evidence 

that is possibly exculpatory is only merely potentially useful, the loss of which 

. . . creates a constitutional deprivation only if the Commonwealth acted in 

bad faith.”). 

Third, Appellant not only received the flash report and time sheets, but 

used them at trial, even marking one as a defense exhibit. See Trial Court 
J-S12024-22

- 12 -

Opinion, 7/8/21, at 14-15 (citing N.T. Trial, 9/27/11, at 157, 191, 214, Exh. 

D-5). Hence, Brady is not implicated. See Commonwealth v. Causey, 833 

A.2d 165, 170–71 (Pa.Super. 2003) (holding the defendant’s “reliance on 

Brady [was] wholly misplaced” where “the evidence was not suppressed by 

the Commonwealth but was, in fact, disclosed during trial”). Rather, 

Appellant’s complaint is of a discovery violation, which warrants no relief 

unless the defendant can establish prejudice, which Appellant does not here 

attempt to do. Consequently, Appellant’s Brady claims fail. 

Next, Appellant asserts that the trial court erred in granting the 

Commonwealth’s motion to consolidate all four robberies into one case. The 

following legal principles apply to our review of this issue:

It is well settled that the decision of whether to join or sever 

offenses for trial is within the discretion of the trial court, and such 

decision will not be reversed on appeal absent a manifest abuse 

of that discretion or a showing of prejudice and clear injustice to 

the defendant. The Pennsylvania Rules of Criminal Procedure 

provide that distinct offenses which do not arise out of the same 

act or transaction may be tried together if the evidence of each of 

the offenses would be admissible in a separate trial for the other 

and is capable of separation by the jury so that there is no danger 

of confusion.

Commonwealth v. Stiles, 143 A.3d 968, 975–76 (Pa.Super. 2016) (cleaned 

up). See also Pa.R.Crim.P. 582(A)(1) (“Offenses charged in separate 

indictments or informations may be tried together if: (a) the evidence of each 

of the offenses would be admissible in a separate trial for the other and is 

capable of separation by the jury so that there is no danger of confusion[.]”). 
J-S12024-22

- 13 -

It is axiomatic that “evidence concerning distinct crimes is inadmissible 

solely to demonstrate a defendant’s bad character or his propensity to commit 

crimes[.]” Id. at 975-76. However, such evidence is properly admitted as 

proof of the following:

(1) motive; (2) intent; (3) absence of mistake or accident; (4) a 

common scheme, plan or design embracing commission of two or 

more crimes so related to each other that proof of one tends to 

prove the others; or (5) to establish the identity of the person 

charged with the commission of the crime on trial, in other words, 

where there is such a logical connection between the crimes that 

proof of one will naturally tend to show that the accused is the 

person who committed the other.

Commonwealth v. Janda, 14 A.3d 147, 156 (Pa.Super. 2011) (cleaned up). 

Appellant concedes that “the time lapse between the crimes was just 

within a few hours, the robberies occurred in the same city, and the method 

of the crimes were all robberies at gunpoint.” Appellant’s brief at 23. He 

further acknowledges that the victims all offered similar descriptions of the 

perpetrator’s clothing. Id. Nonetheless, he argues that “the four robberies 

were not connected in any way” to show intent, motive, a common plan, or a 

particular modus operandi. Instead, he maintains that these robberies were 

“similar to many robberies,” and “[r]obberies during evening hours generally 

have the perpetrator wearing darker clothes to be harder to see, and it is not 

unusual for them to be armed.” Id. at 22-23. 

The trial court disagreed, concluding that consolidation was warranted 

because “the facts represented by each victim, coupled with the timing and 

locations of each robbery, creates such a high correlation in details that a 
J-S12024-22

- 14 -

modus operandi is apparent.” Trial Court Opinion, 7/8/21, at 16. The court 

highlighted that the robberies all took place on the same day, within a few 

hours of each other, all within a six-block radius. Id. All of the victims 

described the crimes as occurring when a slim, Black male close to six feet tall 

and wearing a dark hoodie and jeans approached them, showed a gun, 

demanded their wallets or money, then left. Id. Further, when Appellant was 

arrested, he had possession of the identification cards of victims of two of the 

robberies. Id. 

While the method of the robberies does not contain peculiar details to 

make them signature crimes, we agree that the fact that they were committed 

in the same manner, however commonplace, within such a short time span 

and geographical area established “a logical connection between the crimes 

that proof of one . . . naturally tend[ed] to show that the accused [wa]s the 

person who committed the other.” Janda, supra at 156. Indeed, this Court 

has affirmed consolidation of similar offenses committed with a significantly

less temporal and geographical proximity. See id. at 156-57 (affirming 

consolidated trial of nine burglaries committed within a five-mile radius of each 

other over a four-month period); Commonwealth v. Taylor, 671 A.2d 235, 

241 (Pa.Super. 1996) (affirming consolidation of three knife-point robberies 

that occurred within a thirty-four-day period where the victims offered similar 

descriptions of the perpetrator). Hence, Appellant has failed to convince us 

that the trial court abused its discretion, and no relief is due.
J-S12024-22

- 15 -

Appellant’s next issue, which alleges a violation of his confrontation 

rights, presents questions of law “for which our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Brown, 185 A.3d 

316, 324 (Pa. 2018). We begin our review of this claim of error with an 

examination of the applicable authority.

3

The Confrontation Clause of the Sixth Amendment, made 

applicable to the States via the Fourteenth Amendment, provides 

that “in all criminal prosecutions, the accused shall enjoy the right 

to be confronted with the witnesses against him.” In [Crawford 

v. Washington, 541 U.S. 36, 51 (2004)], the Court held that the 

Sixth Amendment guarantees a defendant’s right to confront 

those “who bear testimony” against him, and defined “testimony” 

as “a solemn declaration or affirmation made for the purpose of 

establishing or proving some fact.” The Confrontation Clause, the 

High Court explained, prohibits out-of-court testimonial 

statements by a witness unless the witness is unavailable and the 

defendant had a prior opportunity for cross-examination.

Commonwealth v. Yohe, 79 A.3d 520, 530-31 (Pa. 2013) (cleaned up). 

Appellant contends that he never had the opportunity to cross-examine 

Michael Pekula, one of the victims he was convicted of robbing. See

Appellant’s brief at 24. Although Christian Pekula testified at trial concerning 

Appellant’s robbery of both Pekula brothers, Appellant asserts that, based on 

____________________________________________

3 Although Appellant invokes both the federal and state constitutions, he 

presents no argument suggesting that the Pennsylvania Constitution affords 

greater protection. Accordingly, we treat the rights to be coextensive for 

purposes of this appeal. See, e.g., Commonwealth v. Baker, 78 A.3d 1044, 

1048 (Pa. 2013) (indicating no separate state constitutional review is 

warranted in the absence of a separate analysis pursuant to the factors 

established in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991)). 
J-S12024-22

- 16 -

the Confrontation Clause, the charges against Michael should have been 

dismissed based upon his failure to appear. Id. 

Appellant’s complaint that the Commonwealth failed to call one of the 

victims as a witness does not implicate the Confrontation Clause. As indicated 

above, the clause provides that Appellant has the right to cross-examine the 

witnesses who actually testify. The Confrontation Clause does not require the 

Commonwealth to call the victim of a crime as a witness to prove that the 

crime occurred. See Commonwealth v. Allen, 429 A.2d 1113, 1116 

(Pa.Super. 1981) (“The Sixth Amendment right to confrontation extends only 

to witnesses whose testimony is presented. . . . [T]he Commonwealth is not 

obligated to call the victim of a crime as a witness.”). In any event, as the 

trial court observes, Appellant was aware that Michael Pekula was out of town 

and would not testify at trial, yet he failed to object based on the Confrontation 

Clause or otherwise to the witness’s absence.

4

 See Trial Court Opinion, 

7/8/21, at 18 (citing N.T. Trial, 9/27/11, at 74). Thus, based on waiver or its 

substance, Appellant’s Confrontation Clause claim merits no relief. 

In his last issue, Appellant argues that the Commonwealth presented 

perjured testimony at trial from victim Patricia Cassidy. Specifically, Appellant 

asserts that Ms. Cassidy testified at trial the police took her in the middle of 

____________________________________________

4 Rather, Appellant raised a hearsay objection and succeeded in precluding 

Chris Pekula from testifying about what his brother said during the robbery. 

See N.T. Trial, 9/27/11, at 73-75.
J-S12024-22

- 17 -

the night to identify Appellant at the hospital, but she did not include that 

information in her police statement or in her testimony at the preliminary 

hearing. See Appellant’s brief at 25. She further testified that she did not 

remember giving a second police statement. Id. Appellant concludes from 

this that Ms. Cassidy offered “false and misleading” trial testimony by 

testifying to something that she had not testified to previously. He claims that 

this statement, inconsistent with her prior testimony, was not admissible. Id. 

(citing Commonwealth v. Lively, 610 A.2d 7, 10 (Pa. 1992) (“[A] prior 

inconsistent statement may be used as substantive evidence only when the 

statement is given under oath at a formal legal proceeding; or the statement 

had been reduced to a writing signed and adopted by the witness; or a 

statement that is a contemporaneous verbatim recording of the witness's 

statements.”)). 

Appellant plainly misunderstands the import of decisions governing the 

use of prior inconsistent statement. The authority he cites addresses when 

an out-of-court statement may be introduced at trial when the witness testifies 

in a manner inconsistent with that prior statement. See also Pa.R.E. 803.1(1) 

(detailing requirements for prior inconsistent statements to be excepted from 

the rule against hearsay). Rule 803.1(1) would have prevented the 

Commonwealth from introducing as substantive evidence a prior statement 

from Ms. Cassidy that was inconsistent with what the jury heard from her at 

trial if the statement it sought to offer was not given under oath, in a signed 
J-S12024-22

- 18 -

writing, or in the form of a contemporaneous electronic recording. Nothing in 

the law concerning prior inconsistent statements requires a lay witness’s 

testimony to stay within the four corners of her prior statements. 

At Appellant’s trial, the Commonwealth offered no prior inconsistent 

statement from Ms. Cassidy into evidence. As the trial court explains, Ms. 

Cassidy’s trial testimony was not inconsistent with her preliminary hearing 

testimony, as at that time she only described the robbery itself, and was not 

questioned about her identification of Appellant. See Trial Court Opinion, 

7/8/21, at 19-20. Appellant’s failure to delve into that subject matter at the 

preliminary hearing did not somehow preclude Ms. Cassidy from offering the 

testimony at trial. Thus, Appellant’s final issue is wholly devoid of merit.

For the foregoing reasons, we conclude that Appellant has presented no 

basis for this Court to disturb the jury’s finding of guilt. Accordingly, we affirm 

his convictions and his resultant judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/15/2022