J-A23020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JENNIFER MORRISSEY 

Appellant

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 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, we 

affirm.

We adopt the facts and procedural history set forth in the trial court’s 

opinion. See Trial Ct. Op., 12/27/19, at 1-6, 8. We add that Appellant did 

not object to the trial court’s allegedly erroneous statements 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 but 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 

untimely Rule 1925(b) statement.2

Appellant raises the following issues:

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 trial court erred in stating that the 

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2 This Court’s docket states that on April 30, 2019, the trial court gave 

Appellant a forty-five day extension of time within 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 if 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. 2009) (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).
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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 jury 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.

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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 guilty 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 middeliberation request to take the toxicology report back to the jury room. See 

N.T. Trial, 2/1/19, at 27. The trial 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. 
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This Court has held:

[o]ur Pennsylvania Rules of Appellate 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 corollary 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 

advantage 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 of 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 court’s 

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Id.
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resolution of her issues 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 pre-trial motions the trial [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 since 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 those 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 formatting 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 argue 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 “allegation of error is not clearly or explicitly stated” 
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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 failing to cite or discuss

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 admitted 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, the record did not include any mention of 

any young women who liked to “tussle” in the PFA to arguably support 

Appellant’s argument. See 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 she would 

abandon it. Appellant’s Brief at 1. However, in her summary of the 

arguments, Appellant outlined her argument for her third issue, specifically
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alleging that the trial court erred by not prohibiting “the fruits of [her] 

interrogation.” Id. at 5. Appellant asserts that “the Commonwealth learned 

the 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 of 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. Accordingly, 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: 3/17/2021
Circulated 02/26/2021 03:01 PM