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

v.

JENNIFER MORRISSEY

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 962 EDA 2019 Appeal from the Judgment of Sentence Entered March 1, 2019 In the Court of Common Pleas of Bucks County Criminal Division at

No(s): CP

- 09

- CR

- 0007677

- 2017 BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J. * MEMORANDUM BY NICHOLS, J.: FILED MARCH 17, 2021 Appellant Jennifer Morrissey appeals from the judgment of sentence imposed following a jury trial and convictions for first

- degree murder, possession of an instrument of crime, and tampering with or fabricating physical evidence. 1 Appellant challenges several statements by the trial court as allegedly erroneous, among other issues. For the reasons that follow, w e affirm. We adopt the facts and procedural history set forth in the trial court’s opinion. See Tria l Ct. O p., 12/27/19, at 1

- 6 , 8

. We add that Appellant did not object to the trial court’s allegedly erroneous statement s at issue in this

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(a), 907(a), and 4910(1) , respectively

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appeal , which were quoted in the trial court’s opinion. Id. at 4

- 5. Appellant did not file a post

- sentence motion b ut filed a timely notice of appeal. On April 3, 2019, the trial court ordered Appellant to comply with Pa.R.A.P. 1925(b) within twenty

- one days. On August 12, 2019, Appellant filed an
unti mely Rule 1925(b) statement. 2 Appellant raises the following issue s: 1. Did the trial court err in using the terms, “will prove”, important, and “significant” in its jury instructions and comment throughout the trial [?] 2. Did the trial court err in not permitting the testimony of witnesses who had physical struggles with [the] victim [?] 3. Did the trial court err in not limiting the fruits of the illegal interrogation of Appellant [?] Appellant’s Brief at 1, 9 , 10. We briefly summarize Appellant’s argument in support of her first issue. Appellant contends that the t rial court erred in stating that the

_________________ __________ ______ ____ _______ 2 This Court’s docket states that on April 30, 2019, the trial court gave Appellant a forty

- five day extension of time w ithin which to file a Rule 1925(b) statement. Docket, 962 EDA 2019. The trial court’s docket and certified record, however, do not reflect any such request for or grant of extension of time. In any event, even i f a counseled Rule 1925(b) statement in a criminal matter was untimely filed, “ this Court may decide the appeal on the merits if the [ trial ] court had adequate opportunity to prepare an opinion addressing the issues being raised on appeal .” Commonwealth v. Burton , 973 A.2d 428, 433 (Pa. Super. 20 09) ( en banc ) . Because the trial court filed a responsive Rule 1925(a) opinion, we decline to remand. See id. ; see also Pa.R.A.P. 1925(c)(3).J

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Commonwealth’s opening statement would refer to evidence that “will prove ” Appellant’s guilt

. 3 Id. at 6

. Appellant also challenges the trial court’s description of a toxicology report that it refused to give to the ju ry during its deliberations as “significant. ” 4 Id. at 8. Appellant additionally argues that the court erred in describing the upcoming testimony of a Commonwealth’s expert witness as “ important. ” 5 Id.

_________________ __________ ______ ____ _______ 3 Specifically, Appellant’s argument refers to the following comment by the trial court before opening statements: “The Commonwealth will begin by making an opening statement outlining what witnesses and/or evidence they expect to present and how that testimony or evidence will prove the defendant’s gu ilty beyond a reasonable doubt.” N.T. Trial, 1/24/19, at 7.

4 Appellant apparently references the trial court’s response to the jury’s mid

deliberation request to take the toxicology report back to the jury room. See N.T. Trial, 2/1/19, at 27. The tria l court responded: I’m not permitted to give you the toxicology report to take back to the jury room, but I can display it to you on the screen and read it to you. It’s a significant report, but I’m going to ask you, again, if you can narrow down what it is that you’re looking for, because there’s finding that may not be relevant to the issue in this case . . . . Id.

5 Appellant was referring to the trial court’s comments to the jury before dismissing it for the day. N.T. Trial, 1/28/19, at 207. Specifically, after noting that the Commonwealth would be calling an expert witness the next day, the trial court stated: It ’s been a long day. I think that we will end today now, come back tomorrow morning, start fresh. It’s important testimony, and it may be challenging testimony to understand. I’m not sure. I haven’t heard it. But I think that we will do better starting tomorrow morning.J

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This Court has held: [o]ur Pennsylvania Rules of App ellate Procedure and our case law set forth the well

- established requirements for preserving a claim for appellate review. “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). Commonwealth v. Phillips , 141 A.3d 512, 522 (Pa. Super. 2016); see also Commonwealth v. Smith , 213 A.3d 307, 309 (Pa. Super. 2019) (stating “it is axiomatic that issues are preserved when objections are made timely to the error or offense.” (citation omitted and some formatting altered)), appeal denied , 223 A.3d 1286 (Pa. 2020). A necessary corol lary is that if a court is unaware of a particular issue, then it cannot act on it. “ We have explained that if appellate courts were to consider issues not raised in the trial court, then the trial would become a dress rehearsal and would give an unfair

a dvantage to the ill

- prepared advocate. ” Commonwealth v. Dennis , 695 A.2d 409, 411 (Pa. 1997) (citation omitted). We may also affirm on any basis. Commonwealth v. Clouser , 998 A.2d 656, 661 n.3 (Pa. Super. 2010). Here, Appellant failed to object to any o f the statements at issue, and therefore failed to preserve her arguments for appellate review. See Pa.R.A.P. 302 (a) ; Dennis , 695 A.2d at 411; Phillips , 141 A.3d at 522. Regardless, even if Appellant preserved her claims, we would agree with the trial co urt’s

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resolution of her issue s on the merits. See Trial Ct. Op. at 4

- 7 ; see also Pa.R.Crim.P. 647(E) (permitting trial court to issue additional instructions to the jury as the court deems necessary) . We therefore hold Appellant is due no relief, albeit on partially different grounds. See Clouser , 998 A.2d at 661 n.3. In support of her second issue, we reproduce Appellant’s argument in its entirety: During p re - trial m otions the t rial [court] decided that two young ladies who knew the victim and had been in his house on previous occasions could not testify. The general reason or basis for their testimony were that they had been in the [ victim ’ s ] house, knew he like [d] to tussle, especially sin ce he did it with them. This testimony would have been used to help corroborate the Appellant’ s defense that there was a struggle for the gun in question. Although it is difficult to put a victim on trial it is necessary on occasion. This was one of tho se occasions as the victim like [d] to have young women in his home and he liked to get physical. The testimony was denied thereby depriving the Appellant the opportunity to present witnesses to assist in her defense. Appellant’s Brief at 9 (some formatti ng altered)

. Instantly , a review of the Commonwealth’s pre

- trial omnibus motion and the transcript of the hearing resolving all of the parties’ pre

- trial motions , reveals that Appellant did not object , discuss , or argu e about any “young ladies” who knew the victim , let alone that the victim liked to “tussle” with them

. Further , there is no indication that the trial court issued a ruling on this point. Therefore, Appellant waived the issue. See Pa.R.A.P . 302 (a) ; Trial Ct. Op. at 7 (noting that this “all egation of error is not clearly or explicitly stated”J

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and that “Appellant did not attempt to present testimony or any other evidence regarding the victim’s past conduct or interactions with a younger female”). Moreover, Appellant waived the issue by faili ng to cite or discu ss any applicable legal authorities. See Pa.R.A.P. 2119. Indeed, Appellant’s table of authorities cites only to Pennsylvania’s Suggested Standard Criminal Jury Instructions. Appellant’s Brief at ii. In any event , by way of background, Appellant opposed the Commonwealth's pretrial motion to exclude a 2005 protection from abuse (PFA) petition filed by the victim’s ex

- wife against the victim. N.T. Pretrial Hr’g, 11/19/18, at 56. Appellant wished to have the PFA admi tted into evidence but the trial court granted the Commonwealth’s motion because Appellant was unaware of the PFA and therefore she could not use it to bolster any theory of self

- defense. Here, t he record d id not include any mention of any young women who liked to “tussle” in the PFA to arguably support Appellant’s argument

. S ee Pa.R.A.P. 2119

. Accordingly, we affirm on the basis of the trial court’s opinion. See Trial Ct. Op. at 7

- 8 (stating the reasons why it excluded the PFA, which included that Appellant was unaware of the allegations in the PFA )

. For these reasons, Appellant is not due relief. See also Clouser , 998 A.2d at 661 n.3

. For her final issue, we note that Appellant ’s brief stated s he would abandon it

. Appellant’s Brief at 1. Howeve r , in her summary of the arguments, Appellant outlined her argument for her third issue, specificallyJ

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alleging that the trial court erred by not prohibiting “the fruits of [her] interrogation.” Id. at 5. Appel lant asserts that “ the Commonwealth learned
t he identity of a potential co

- defendant and eventually a Commonwealth witness.” Id. In sum, Appellant is arguing that although the trial court granted her motion to suppress the police interrogation, the trial court erred by not suppressing the fruits, i.e. , the aforementioned identity of the potential

co - defendant. See id. Even if Appellant did not abandon her issue , we nonetheless agree with the trial court that Appellant waived this issue for appellate review due to her vague Rule 1925(b) statement. See Trial Ct. Op. at 4; Pa.R.A.P. 1925(b); Commonwealth v. Dowling , 778 A.2d 683, 686

- 87 (Pa. Super. 2001) (holding that a Rule 1925(b) statement “which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent o f no Concise Statement at all”). The trial court stated that it “cannot even guess the underlying basis for this allegation of error. As such, we respectfully request that this allegation be dismissed or considered waived.” See Trial Ct. Op. at 8. Acco rdingly, for these reasons, we affirm the judgment of sentence. Judgment of sentence affirmed

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/17/2021Circulated 02/26/2021 03:01 PM