J-A08006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LEONARD D. BERNARD, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2286 EDA 2017

Appeal from the Judgment of Sentence May 25, 2016

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0000120-2015

BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, J. FILED OCTOBER 01, 2018

After a bench trial, the court convicted Leonard Bernard of robbing 76-

year-old Alice Stackhouse in her home and tying her up while he escaped. In 

this nunc pro tunc appeal,1 Bernard contends the court committed six separate 

errors: (1) improperly allowing Stackhouse to identify him in court; (2) 

improperly admitting opinion testimony from a witness not qualified as an 

expert; (3) improperly admitting hearsay testimony from the same witness; 

(4) improperly admitting evidence subject to the spousal communications 

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 Bernard exercised his right to represent himself during trial and during the 

initial post-sentence proceedings. He retained private counsel after filing 

several pro se appeals and post-sentence motions. Ultimately, his direct 

appeal rights were restored via a Post Conviction Relief Act proceeding and 

the agreement of the Commonwealth.
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privilege; (5) finding the evidence at trial sufficient and credible enough to 

support a guilty verdict; and (6) imposing an unreasonably excessive 

sentence. We conclude Bernard has failed to establish any grounds for relief, 

and therefore affirm.

Stackhouse testified that due to several chronic illnesses, she relied on 

in-home care services. See N.T., Bench Trial, 2/17/16, at 49. Brianna Mitchell, 

Bernard’s girlfriend (now wife), had provided in-home care for Stackhouse in 

2014. See id., at 50. Stackhouse fired Mitchell in November 2014, due to her 

belief that Mitchell had stolen Stackhouse’s supply of pain medication. See 

id., at 52.

On December 20, 2014, Stackhouse answered a knock on her door. See 

id., at 56. A man was at the door, and he forced his way in to Stackhouse’s 

apartment. See id., at 57. The man ripped a necklace off of Stackhouse while 

pushing her onto a couch. See id., at 59.

When Stackhouse began screaming, he slapped her in the face. See id., 

at 62. He threatened to “cut” her if she didn’t stop screaming. Id. He 

proceeded to steal her wedding and engagement rings, as well as her watch.

See id., at 65.

The man helped Stackhouse into another room using her walker. See 

id., at 71. He ransacked the room, stealing more jewelry. See id., at 74. He 

placed a beach bag over Stackhouse’s head, and then bound her hands 

together with a belt. See id., at 75, 77-78. The man continued to ransack her 
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apartment. See id., at 81. Ultimately, he left the apartment with Stackhouse 

tied up on the floor. See id., at 96. 

During her testimony, Stackhouse identified Bernard as the man who 

had robbed her. See id., at 110. She admitted she had previously been unable 

to identify him from a photographic array. See id., at 112.

Detective Michael Buchmann testified police immediately suspected 

Mitchell and her significant other were involved with this crime. See id., at 

25-26. Police obtained a search warrant for Bernard and Mitchell’s home. 

Detective Jeffrey McCloskey testified that during the search, police found 

several items clearly belonging to Stackhouse. See N.T., Bench Trial, 2/22/16, 

at 70-78.

Turning to Bernard’s first issue on appeal, he argues the court 

erroneously permitted Stackhouse to identify him in court. We may not 

reverse a court’s ruling on admission of evidence absent an abuse of 

discretion. See Commonwealth v. Hardy, 918 A.2d 766, 776 (Pa. Super. 

2007). To constitute an abuse of discretion, a ruling must be more than a 

mere error in judgment. See id. We can find an abuse of discretion only when 

we determine the ruling was the result of partiality, prejudice, bias, ill-will, or 

manifest unreasonableness. See id. 

“Evidence that is not relevant is not admissible.” Pa.R.E. 402. Relevant 

evidence is defined as evidence “having any tendency to make the existence 

of any fact that is of consequence to the determination of the action more 
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probable or less probable.” Pa.R.E. 401(a) (emphasis supplied). Even if 

evidence is relevant, it may be excluded if its probative value is outweighed 

by, among other considerations, the danger of delay caused by unnecessary 

cumulative evidence. See Pa.R.E. 403. Balancing of the competing interests 

is vested in the sound discretion of the trial court, and we will disturb the 

court’s decision only if it has abused its discretion. See Commonwealth v. 

Parker, 882 A.2d 488, 492 (Pa. Super. 2005).

Bernard argues he was entitled to a pre-trial lineup before Stackhouse 

was permitted to identify him in court.2 Bernard, however, did not have an 

absolute right to a pre-trial lineup. See Commonwealth v. Sexton, 400 A.2d 

1289, 1293 (Pa. 1979). Nor was the in-court identification per se inadmissible. 

See id. However, “a timely request for a pre-trial ... identification procedure 

should be granted.” Id. The request should be granted as otherwise the 

defendant is denied “the possibility of evidence which could have been used 

to challenge the credibility of the subsequent in-court identifications.” Id.

Here, the Commonwealth presented evidence of failed pre-trial 

identifications, albeit not pre-trial lineups. Bernard was permitted to crossexamine Stackhouse regarding the failed identifications. She admitted she did 

____________________________________________

2 Bernard, acting pro se, filed a motion for an identification lineup prior to the 

start of trial. However, he did not serve the Commonwealth or the trial court. 

Thus, the issue was not formally presented to the trial court until after 

Stackhouse had identified Bernard in court. The issue is thus waived. In any 

event, we conclude it is meritless, as set forth further in our analysis.
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not identify her assailant in two separate pre-trial photo arrays. See N.T., 

Bench Trial, 2/18/16, at 19-20. Thus, the requested pre-trial lineup would 

have merely been cumulative to the evidence that was presented at trial 

attacking the credibility of Stackhouse’s identification. The court did not abuse 

its discretion and we conclude Bernard’s first issue on appeal merits no relief.

Next, Bernard contends the court erred by permitting Detective Michael 

McGinnis to provide expert opinion testimony when he was not qualified as an 

expert. Bernard concedes that this objection was not raised at trial. 

Regardless, he argues the Commonwealth’s failure to offer McGinnis as an 

expert “should be viewed as prejudicial against [Bernard].” See Appellant’s 

Brief, at 19. 

“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.” Pa.R.A.P. 302(a). “[I]t is axiomatic that issues 

are preserved when objections are made timely to the error or offense.” 

Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008) (citations 

omitted). See also Commonwealth v. Clair, 326 A.2d 272, 274 (Pa. 1974) 

(“[A] party may not remain silent and afterwards complain of matters which, 

if erroneous, the court would have corrected.”) This issue is waived.

In his third issue, Bernard raises another challenge to the testimony of 

Detective McGinnis, this time on hearsay grounds. However, he once again 

concedes he made no timely objection to the testimony at trial. See 

Appellant’s Brief, at 21. This issue is also waived.
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Next, Bernard asserts the court erred in permitting the Commonwealth 

to present communications between himself and Mitchell. He claims the 

communications are protected under the spousal communications privilege, 

codified at 42 Pa.C.S.A. § 5914: “Except as otherwise provided in this 

subchapter, in a criminal proceeding neither husband nor wife shall be 

competent or permitted to testify to confidential communications made by one 

to the other, unless this privilege is waived upon the trial.”

Communications between spouses are presumed to be 

confidential, and the party opposing application of the rule 

disqualifying such testimony bears the burden of overcoming this 

presumption. In order for a confidential communication between 

spouses to be protected, knowledge must be gained through the 

marital relationship and in the confidence which that relationship 

inspires. In order to be protected under § 5914, it is essential that 

the communication be made in confidence and with the intention 

it not be divulged. Therefore, whether a particular communication 

is privileged depends upon its nature and character of the 

circumstances under which it was said. Accordingly, if the nature 

of the communication is not imbued with an aura of a sharing 

disclosure precipitated largely due to the closeness spouses share, 

then arguably it is not privileged. 

Commonwealth v. McBurrows, 779 A.2d 509, 514 (Pa. Super. 2001) 

(internal quotation marks and citations omitted). Only the spouse asserting 

the privilege can waive it. See Commonwealth v. May, 656 A.2d 1335, 1341 

(Pa. 1995).

The evidence challenged by Bernard falls into two categories. The first 

involves Mitchell’s testimony on the events leading up to the robbery. The 

Commonwealth filed a pre-trial motion to present Mitchell’s testimony of her 

observations of Bernard leading up to the robbery. See N.T., Hearing, 
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2/12/16, at 91. Bernard did not oppose the Commonwealth’s motion: “Yes, 

Your Honor. So long as the rule is limited to her observation and not words.” 

See id., at 91-92. See also id., at 77 (Bernard requesting to limit Mitchell’s 

testimony to things she had seen and not what she had heard). Thus, Bernard 

failed to preserve this challenge.

Bernard’s second challenge to the trial court’s application of the marital 

communication privilege involves letters Bernard wrote to Mitchell while both 

were in jail. The Commonwealth presented evidence that all mail between 

inmates at the jail was subject to inspection by authorities. See id., at 14-15. 

Inmates were given notice of this inspection through the inmate handbook. 

See id., at 16-17. Records indicated that Bernard was given a copy of the 

handbook during his intake proceedings. See id., at 26. 

For the spousal communication privilege to apply, “it is essential that 

the communication be made in confidence and with the intention that it not 

be divulged.” May, 656 A.2d at 1342 (citations omitted). A prisoner has no 

reasonable expectation of confidentiality of his letters to his spouse if he 

knows the letters are subject to inspection by prison officials. See id.

Bernard asserted that he was unaware jail officials had the right to 

review his letters to Mitchell. See N.T., Hearing, 2/12/16, at 71. He claimed 

he did not have access to the prison handbook at the time he wrote the letters, 

as he only had access to the handbook during certain times. See id., at 72-

73. However, these claims were not made while Bernard was testifying under 
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oath. See id., at 69-71 (Bernard refusing to testify at the hearing). See also 

id., at 73 (the court informing Bernard that his arguments were not evidence 

of record).

Bernard does not point to any evidence of record which contradicts the 

court’s findings. As noted, there is significant evidence of record supporting 

the findings. Under these circumstances, we cannot conclude the court erred 

in finding Bernard did not have a reasonable expectation of confidentiality in 

his jail-house letters to Mitchell. Bernard’s fourth issue on appeal merits no 

relief.

Next, Bernard challenges, in a single issue, the weight and sufficiency 

of the evidence supporting the court’s verdict.3 Generally, blending these two 

issues is improper, as a challenge to the weight of the evidence is a legally 

distinct claim from a challenge to the sufficiency of the evidence. In fact, a 

challenge to the weight of the evidence concedes the sufficiency of the 

evidence. See Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

However, despite this flaw, we will address both of Bernard’s arguments, 

as they are both premised upon the same condition: that we conclude Bernard 

was entitled to relief on his prior evidentiary claims on appeal. See Appellant’s 

Brief, at 32 (“Without Ms. Mitchell’s testimony, the guilty verdict reached by 

____________________________________________

3 Bernard filed multiple post-trial and post-sentence motions. He raised his 

challenge to the weight of the evidence in a post-trial, but pre-sentence 

motion. The court addressed the issue post-sentence.
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the trial court would have been against the weight of the evidence.”). See 

also id., at 32-33 (“Appellant concedes that there is sufficient evidence to 

convict him if the tainted in court identification, unqualified expert opinion of 

Detective McGinnis, and privileged marital communications are deemed 

properly admitted under the ... Rules of Evidence.”). As we have concluded he 

is due no relief on his evidentiary challenges, his challenges to the weight and 

sufficiency of the evidence at trial merit no relief.

In his final issue on appeal, Bernard raises two challenges to the 

discretionary aspects of the sentence imposed by the trial court. “A challenge 

to the discretionary aspects of a sentence must be considered a petition for 

permission to appeal, as the right to pursue such a claim is not absolute.” 

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation 

omitted). “Two requirements must be met before we will review this challenge 

on its merits.” Id. (citation omitted). 

“First, an appellant must set forth in his brief a concise statement of the 

reasons relied upon for allowance of appeal with respect to the discretionary 

aspects of a sentence.” Id. (citation omitted). See also Pa.R.A.P. 2119(f). 

“Second, the appellant must show that there is a substantial question that the 

sentence imposed is not appropriate under the Sentencing Code.” Id. (citation 

omitted). That is, “the sentence violated either a specific provision of the 

sentencing scheme set forth in the Sentencing Code or a particular 
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fundamental norm underlying the sentencing process.” Commonwealth v. 

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).

We examine an appellant’s Rule 2119(f) statement to determine 

whether a substantial question exists. See id. “Our inquiry must focus on the 

reasons for which the appeal is sought, in contrast to the facts underlying the 

appeal, which are necessary only to decide the appeal on the merits.” Id. 

(citation omitted). Here, Bernard has preserved his arguments through a postsentence motion and his appellate brief contains the requisite Rule 2119(f) 

concise statement.

First, Bernard claims the sentence imposed by the court was excessive, 

as the court ran the sentences consecutively, as opposed to concurrently. “The 

imposition of consecutive, rather than concurrent, sentences may raise a 

substantial question in only the most extreme circumstances, such as where 

the aggregate sentence is unduly harsh, considering the nature of the crimes 

and the length of imprisonment.” Commonwealth v. Moury, 992 A.2d 162, 

171-172 (Pa. Super. 2010). 

The sentence imposed here, an aggregate of thirty-three to sixty-six 

years in prison, is not unduly harsh given the severity of the crimes at issue. 

Bernard robbed, beat, and tied up the elderly victim. The crime was premeditated and was intended to victimize a vulnerable person. The court was

entitled to consider the danger Bernard presents to the community and impose 
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sentence accordingly. Thus, Bernard’s excessiveness claim does not raise a 

substantial question.

In his second sentencing claim, Bernard contends his sentences for 

robbery and terroristic threats should have merged. This claim presents a 

challenge to the legality of his sentence. See Commonwealth v. Quintua, 

56 A.3d 399, 400 (Pa. Super. 2012). Thus, we review the entire record de 

novo to evaluate it. See Commonwealth v. Baldwin, 985 A.2d 830, 833 

(2009). Merger is appropriate only when two distinct criteria are satisfied: “1) 

the crimes arise from a single criminal act; and 2) all of the statutory elements 

of one of the offenses are included within the statutory elements of the other.”

Id.

The court found Bernard guilty of robbery under 18 Pa.C.S.A. § 

3701(a)(1)(ii) and terroristic threats under 18 Pa.C.S.A. § 2706(a)(1). To find 

Bernard guilty of robbery under § 3701(a)(1)(ii), the court was required to 

find that he threatened Stackhouse with, or intentionally put her in fear of, 

immediate serious bodily injury while stealing from her. Bernard’s conviction 

of terroristic threats under § 2706(a)(1) required the court find him guilty of 

threatening Stackhouse with a crime of violence with the intent to terrorize 

her.

We have no difficulty in determining Bernard has not established either 

of the criteria necessary for merger of these sentences. First, the convictions 

did not arise from a single criminal act. Among other threats during the 
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robbery, Bernard threatened to “cut” her at two different times. N.T., Bench 

Trial, 2/17/16, at 93.

Second, the crimes each have at least one element that is not contained 

in the other. Robbery requires a theft, while terroristic threats does not. 

Similarly, terroristic threats requires an intent to terrorize, while robbery does 

not. 

We therefore conclude Bernard’s merger claim merits no relief. As we 

conclude none of Bernard’s claims on appeal merit relief, we affirm the 

judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/1/18