J-A22028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EUGENE R. DAVID 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 103 WDA 2022

Appeal from the Judgment of Sentence Entered October 6, 2021

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

No(s): CP-02-CR-0001889-2021

BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED: OCTOBER 12, 2022

Appellant, Eugene R. David, appeals from the October 6, 2021 Judgment 

of Sentence entered in the Allegheny County Court of Common Pleas following 

his conviction of Failing to Comply with Registration Requirements. After 

careful review, we affirm.

The relevant facts and procedural history are as follows. On November 

11, 2020, the Commonwealth charged Appellant, a convicted sex offender,1

with two counts of Failing to Comply with Registration Requirements2 after 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Appellant was convicted of Sexual Misconduct in New York on May 3, 2005.

2 18 Pa.C.S. §§ 4915.2(a)(1) and 4915.2(a)(2), respectively.
J-A22028-22

- 2 -

Pennsylvania State Police conducted a Megan’s Law compliance check and 

discovered that Appellant was not residing at his registered address.3

On October 6, 2021, the matter proceeded to a stipulated non-jury 

trial.

4

 Following the court’s review of the stipulated evidence, the court asked 

Appellant whether he intended to testify or present any character witnesses. 

Appellant indicated that he did not. Then, the court asked Appellant’s counsel 

if he wished to make any “comments” on Appellant’s behalf.5 Appellant’s 

counsel replied that the Commonwealth had failed to meet its burden of proof. 

At the conclusion of Appellant’s argument, the court looked to the 

Commonwealth for a reply, at which time the Commonwealth requested that 

the court admit into evidence the Pennsylvania State Police Megan’s Law 

Packet and a certified copy of Appellant’s New York sexual misconduct 

conviction. Appellant’s counsel did not object to the admission of this evidence 

and the court admitted the exhibits. 

____________________________________________

3 On July 14, 2020, Appellant updated his residential address as 304 Tangelo 

Drive, Clariton, PA. However, when Allegheny County Sheriff’s detectives 

conducted a compliance check at that address, a resident informed the

detectives that Appellant had “not lived at that address for years” and he had 

not “seen [Appellant] in a long time.” Affidavit of Probable Cause at 2. The 

detectives’ further investigation revealed that Appellant was living with his 

mother at 5307 E. Wilcock Rd., Pittsburgh, PA. Id.

4 The Commonwealth and Appellant stipulated to the facts as set forth in the 

Affidavit of Probable Cause and the contents of the preliminary hearing 

transcript. 

5 N.T. Trial, 10/6/21, at 11.
J-A22028-22

- 3 -

The Commonwealth then argued that the evidence was sufficient to 

convict Appellant. Appellant’s counsel then provided additional argument

stating, inter alia: “Your Honor, just at the beginning of the trial, the 

stipulations were to the Affidavit, as well as the preliminary hearing transcript. 

There was no additional agreement to stipulations as to additional evidence 

being admitted during the trial. I would say that that evidence should not be 

considered by the court.” N.T. Trial, 10/6/21, at 16. Immediately thereafter, 

the court convicted Appellant of one count of Failing to Comply with 

Registration Requirements.

Appellant waived his right to a pre-sentence investigation report and the 

trial court sentenced him to three years of probation. Appellant filed a postsentence motion, which the trial court denied on January 12, 2022.

This appeal followed. Both Appellant and the trial court complied with 

Pa.R.A.P. 1925.

Appellant raises the following issue for our review:

Whether the trial court abused its discretion in granting the 

Commonwealth’s request to re-open the record where 

[Appellant’s] case was resolved as a stipulated non-jury trial 

where the parties stipulated as to the entirety of the evidence that 

would be considered by the trial court, such request was made 

only after the reception of evidence had closed, and defense 

counsel had already made his closing argument and motioned for 

judgment of acquittal pointing out the fatal deficiencies in the 

Commonwealth’s case?

Appellant’s Brief at 4.

Appellant argues that the trial court abused its discretion in permitting 

the Commonwealth to reopen the record to include evidence outside the scope 
J-A22028-22

- 4 -

of the parties’ stipulation. Id. at 13. Appellant asserts that at the time the 

Commonwealth moved for the admission of the certified copy of Appellant’s 

New York conviction and the Megan’s Law Packet the record was closed and 

the Commonwealth had rested its case. Id. at 15. Appellant also claims that 

his counsel made a timely and specific objection to the admission of the 

additional evidence. This Court’s review of the Notes of Testimony from 

Appellant’s trial belies both claims.

We first observe that, as noted by the trial court in its Rule 1925(a) 

opinion, the Commonwealth did not request permission to reopen the record

because the record was not yet closed. See Trial Ct. Op., 2/28/22, at 4-5

(explaining that “the Commonwealth did not make a request to reopen the 

record, as the Commonwealth did not rest and the record had not closed”). 

Moreover, even if the Commonwealth had requested that the court 

reopen the record to admit additional evidence, it is clear from the Notes of 

Testimony that Appellant did not raise a timely objection to the admission of 

additional evidence. Rather, Appellant’s counsel waited until after the 

Commonwealth had concluded its argument before suggesting that the court 

not consider the additional evidence.6 Because Appellant failed to timely 

object, he failed to preserve this issue for appellate review. Appellant has, 

thus, waived this claim on appeal. See Commonwealth v. Baumhammers, 

____________________________________________

6 Even then, Appellant’s counsel did not request that the court exclude the 

additional evidence, but only that the court not give it any weight. N.T. Trial 

at 16 (where counsel argued “that that evidence should not be considered by 

the court”). 
J-A22028-22

- 5 -

960 A.2d 59, 84 (Pa. 2008) (stating “the absence of a specific 

contemporaneous objection renders the appellant’s claim waived” (citation 

omitted)); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived 

and cannot be raised for the first time on appeal.”).7

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2022 

____________________________________________

7 Moreover, even if the court erred in admitting the additional evidence, the 

error was harmless as the additional evidence was merely cumulative and 

corroborative of the testimonial evidence to which Appellant stipulated. See 

Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (explaining that 

an error is harmless where, inter alia, “the erroneously admitted evidence was 

merely cumulative of other untainted evidence which was substantially similar 

to the erroneously admitted evidence[.]”) (citation omitted)).