J-A14043-22

2022 PA Super 103

COMMONWEALTH OF PENNSYLVANIA

v.

RAYMOND TAYLOR 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1167 MDA 2021

Appeal from the Judgment of Sentence Entered April 22, 2021

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

No(s): CP-35-CR-0000551-2020

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED: JUNE 3, 2022

Appellant, Raymond Taylor, appeals from the April 22, 2021, judgment 

of sentence entered in the Court of Common Pleas of Lackawanna County 

following his conviction by a jury on the charges of rape of a child, involuntary 

deviate sexual intercourse with a child, statutory sexual assault, unlawful 

contact with a minor, sexual assault, endangering the welfare of a child, and 

corruption of minors.1 After a careful review, we affirm.

The trial court has aptly summarized the relevant facts and procedural 

history as follows: 

In December [of] 2019, [Appellant] was babysitting C.R., 

who was his fiancé’s cousin’s four-year-old daughter. N.T.,

12/7/20, [at] 118. He babysat her in his home while her parents 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3131(c), 3123(b), 3122.1(b), 6318(a)(1), 3124.1, 

4304(a)(1), and 6301(a)(1)(i), respectively.
J-A14043-22

- 2 -

were at work. [Id.] Soon thereafter, C.R. was sitting on her 

father’s...lap, when she grabbed his genitals. [Id.] at 119. He 

thought she was going to try and put her mouth on his penis. [Id.] 

[He] told his wife about the incident. [Id.] at 120. They had a 

conversation with [C.R.] during which C.R. stated, “Uncle Ray 

sticks his cock in my mouth.” [Id.]. [C.R.’s parents] were both 

shocked by the statement. [Id.] [C.R.] subsequently made 

similar statements to her [paternal] grandfather.... [Id.] at 136. 

At that point, [C.R.] was taken to the Children’s Advocacy Center 

(“CAC”) where she made a similar disclosure. [Id.] at 121. 

Due to the above allegations, on December 18, 2019, 

[Appellant] appeared at the Carbondale Police Department at the 

request of Detective Timothy Mackrell. N.T., 12/9/20, at 15. 

Detective Mackrell began the interview by advising [Appellant] of 

his Miranda rights. [Id.] at 12. The first part of the videotaped 

interview lasted approximately one hour and nine minutes. N.T., 

12/8/20, at 40. In the first part of the interview, [Appellant] 

denied the allegations. N.T., 12/9/20, at 19. He agreed to take 

a Computer Voice Stress Analysis test (“CVSA”). The pre-CVSA 

interview, the CVSA, and the post-CVSA interviews were 

conducted by Detective Jess Van Deusen of the Carbondale Police 

Department. [Id.] at 121-22. This portion was not videotaped 

and lasted approximately one hour and ten minutes. N.T., 

12/8/20, at 6. The detectives then informed [Appellant] that he 

failed the exam. [Id.] at 4. Detective Mackrell resumed 

questioning [Appellant] for approximately thirty minutes. N.T., 

12/9/20, at 33. During this portion of the unrecorded interview, 

[Appellant] confessed. Detective Mackrell requested that 

[Appellant] repeat his admission statement on videotape. [Id.] 

at 27. The detective had trouble turning the recorder back on, so 

he enlisted the help of two other Carbondale Police Officers, along 

with [Appellant] himself. N.T., 12/8/20, at 32. [Appellant] then 

repeated his admission on tape in a recording that lasted one 

minute and eighteen seconds long. 

On or about December 18, 2019, [Appellant] was arrested 

for rape and related offenses. On the eve of trial, the 

Commonwealth filed an amended information, which listed the 

[charges indicated supra]. On December 9, 2020, after a threeday jury trial, the jury returned a verdict of guilty on all counts. 

On April 22, 2021, the trial court imposed the following 

sentence: On count I, rape of a child, ten (10) to twenty (20) 

years in a state correctional institution[;] count II merged with 

count I, [so] no further penalty was imposed[;] count III, 
J-A14043-22

- 3 -

statutory sexual assault, three (3) to six (6) years [in prison] 

consecutive to count I[;] count IV, unlawful contact with a minor, 

three (3) to six (6) years [in prison], also consecutive to counts I 

and III[;] count V merged with count III, [so] no further penalty 

was imposed[;] count VI, endangering the welfare of a child, one 

(1) to two (2) years [in prison] consecutive to counts I, III, and 

IV[;] count VII, corruption of minors, one (1) to two (2) years [in 

prison] consecutive to counts I, III, IV, and VI[.]

The aggregate sentence imposed [was] 18-36 years to be 

served in a state correctional facility. Additionally, [Appellant was 

ordered to] register as a Tier III lifetime registrant pursuant to the 

Adam Walsh Child Protection and Safety Act pursuant to 42 

Pa.C.S.A. § 9799.10 et seq.

[On May 14, 2021, Appellant filed a counseled motion 

seeking an application for extension of time to file post-sentence 

motions.] On May 19, 2021, the [trial] court [expressly] granted 

[Appellant’s] request for additional time to file post-sentence 

motions. [On June 1, 2021, Appellant filed a counseled postsentence motion, and the trial court denied the motion on August 

10, 2021.] Appellant filed a [notice of] appeal on August 31, 

2021.[2] [On that same date, the trial court ordered Appellant to 

file a Pa.R.A.P. 1925(b) statement, and Appellant timely complied. 

The trial court filed a responsive Rule 1925(a) opinion on October 

26, 2021.]

____________________________________________

2 We note that, generally, a post-sentence motion must be filed within ten 

days after the imposition of sentence, and to be timely, an appeal must be 

filed within thirty days of the entry of the order deciding the motion. 

Pa.R.Crim.P. 720(A)(2)(a). An untimely post-sentence motion does not toll 

the time to file an appeal. Commonwealth v. Green, 862 A.2d 613, 618

(Pa.Super. 2004) (en banc). However, where the defendant files a separate 

and distinct request to file a post-sentence motion nunc pro tunc, and the trial 

court expressly grants the request within thirty days of the imposition of 

sentence, the time to file an appeal may be tolled. Commonwealth v. 

Capaldi, 112 A.3d 1242 (Pa.Super. 2015). Here, Appellant filed a separate 

motion seeking to file post-sentence motions nunc pro tunc, and the trial court 

expressly granted the motion within thirty days of the imposition of sentence. 

Appellant then filed his post-sentence motion within ten days of being granted 

nunc pro tunc relief, and he filed his notice of appeal within thirty days of the 

order denying his post-sentence motion. Thus, this appeal is properly before 

us. See id. 
J-A14043-22

- 4 -

Trial Court Opinion, filed 10/26/21, at 1-4 (unnecessary parenthesis omitted)

(footnote added).

On appeal, Appellant sets forth the following issues in his “Statement of 

the Questions Involved” (verbatim):

1. Did the trial court commit reversible error when it violated the 

coordinate jurisdiction rule?

2. Did the trial court commit reversible error when it denied a trial 

continuance to the defense?

3. Did the trial court commit reversible error when it found C.R. 

competent to testify?

4. Did the trial court commit reversible error when it made 

evidentiary errors at trial?

5. Did the trial court commit reversible error when it did not issue 

a missing evidence and/or missing witness instruction to the 

jury?

6. Did the trial court arrive at a manifestly unreasonable sentence 

for the Defendant considering the discretionary aspects of

sentencing? 

Appellant’s Brief at 8-9 (suggested answers omitted).

In his first issue, Appellant contends the Honorable Margaret Moyle 

violated the coordinate jurisdiction rule when she granted, in part, the 

Commonwealth’s motion for reconsideration as it relates to an order entered 

by then President Judge Michael J. Barrasse. We conclude Appellant is not 

entitled to relief on this claim.

In the case sub judice, the Commonwealth filed a motion in limine 

seeking to introduce evidence of other crimes pursuant to Pa.R.E. 404(b). 

Specifically, the Commonwealth sought to admit testimony from D.D. and
J-A14043-22

- 5 -

S.T., both of whom reported that Appellant sexually abused them when they 

were young children and in his care. Judge Barrasse denied the motion in 

limine, thus precluding the testimony. 

However, the Commonwealth filed a timely motion for reconsideration 

of Judge Barrasse’s order. The next day, to assist the trial court in conducting 

several jury trials scheduled for December 7, 2020, Judge Barrasse 

transferred Appellant’s case to Judge Moyle for trial. See Trial Court Opinion, 

filed 10/26/21, at 6. Judge Barrasse specifically instructed Judge Moyle to 

rule on the Commonwealth’s outstanding motion for reconsideration. See id.

Accordingly, Judge Moyle held oral argument on the Commonwealth’s 

motion for reconsideration and granted, in part, the motion. Specifically, 

Judge Moyle held that D.D. and S.T. could testify to Appellant’s sexual abuse, 

but she limited the testimony to acts committed against them as of the time 

they were five years old. Judge Moyle specifically excluded testimony related 

to Appellant’s sexual abuse of D.D. after he turned five years old. 

Appellant now contends that, under the coordinate jurisdiction rule, 

Judge Moyle was required to adopt Judge Barrasse’s order, which denied the 

Commonwealth’s motion in limine in its entirety, when the case was 

transferred to her to rule on the Commonwealth’s motion for reconsideration.

Initially, we note Appellant raised his coordinate jurisdiction challenge 

for the first time in his post-sentence motion. That is, despite Judge Moyle 

advising the parties that the case had been transferred to her docket, she 
J-A14043-22

- 6 -

would be ruling on the Commonwealth’s motion for reconsideration, and she 

then held a pre-trial hearing on the motion, Appellant did not lodge a timely 

objection based on the coordinate jurisdiction rule.3 

Thus, this issue has been waived. See Commonwealth v. Sanchez, 

623 Pa. 253, 82 A.3d 943 (2013) (holding that, in order to preserve an issue, 

an objection must be lodged as soon as is practical); Keffer v. Bob Nolan’s 

Auto Service, Inc., 59 A.3d 621, 629 (Pa.Super. 2012) (finding issue based 

on coordinate jurisdiction rule to be waived where it was raised for the first 

time in post-trial motions). 

Nevertheless, even if Appellant has properly preserved this claim, we 

conclude Appellant’s claim is meritless.4It is well-settled that the coordinate 

jurisdiction rule is part of the law of the case doctrine and prohibits a court 

involved in the later phases of a litigated matter from reopening questions 

decided by another judge of the same court in earlier phases of the matter. 

See Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995). In 

deciding whether to apply the coordinate jurisdiction rule, the court must look 

to where the rulings occurred in the context of the procedural posture of the 

____________________________________________

3 Appellant acknowledges as much in his appellate brief. See Appellant’s Brief 

at 26 (arguing that, if the trial court would have granted Appellant’s pre-trial 

request for a continuance, defense counsel would have raised the coordinate 

jurisdiction rule).

4 Appellant’s claim raises a question of law, and therefore, our standard and 

scope of review is de novo and plenary. Commonwealth v. Viglione, 842 

A.2d 454 (Pa.Super. 2004) (en banc). 
J-A14043-22

- 7 -

case. See Riccio v. American Republic Ins. Co., 550 Pa. 254, 705 A.2d 

422 (1997). 

Generally, the coordinate jurisdiction rule commands that, upon transfer 

of a matter between trial judges of coordinate jurisdiction, a transferee trial 

judge may not alter resolution of a legal question previously decided by a 

transferor trial judge. See Starr, supra. As our Supreme Court stated in 

Starr, “[J]udges of coordinate jurisdiction sitting in the same case should not 

overrule each others’ decisions.” Id. at 1331. 

“Departure...is allowed only in exceptional circumstances such as where 

there has been an intervening change in the controlling law, a substantial 

change in the facts or evidence giving rise to the dispute in the matter, or 

where the prior holding was clearly erroneous and would create a manifest 

injustice if followed.” Id. at 1332. The rule serves “not only to promote the 

goal of judicial economy” but also: “(1) to protect the settled expectations of 

the parties; (2) to ensure uniformity of decisions; (3) to maintain consistency 

during the course of a single case; (4) to effectuate the proper and 

streamlined administration of justice; and (5) to bring litigation to an end.”

Id. at 1331.

In some circumstances, however, application of the rule can “thwart the 

very purpose the rule was intended to serve, i.e., that judicial economy and 

efficiency be maintained.” Salerno v. Philadelphia Newspapers, Inc., 546 

A.2d 1168, 1170 (Pa.Super. 1988). Thus,...the rule does not apply where two 
J-A14043-22

- 8 -

motions differ in kind, then a second judge is not precluded from granting 

relief though another judge has denied an earlier motion. Goldey v. Trustees

of University of Pennsylvania, 544 Pa. 150, 675 A.2d 264, 267 (1996). 

The rule does not apply when distinct procedural postures present different 

considerations, then a substituted judge may correct mistakes made by 

another judge at an earlier stage of the trial process, or, perhaps more 

accurately, may revisit provisional rulings made earlier in the litigation. See 

Riccio, supra.

In the case sub judice, in addressing Appellant’s claim that Judge Moyle 

violated the coordinate jurisdiction rule, the trial court indicated:

[The trial] court did not re-open an already settled issue. In 

this case, the previous Judge ruled on the Commonwealth’s 

motion in limine, but relinquished jurisdiction before a ruling could 

be made on the Commonwealth’s motion for reconsideration. As 

such, the coordinate jurisdiction rule was not violated. On 

December 4, 2020, [then] President Judge Barrasse notified 

[Judge Moyle] that he was relinquishing jurisdiction of the matter, 

and he specifically directed [her] to rule on the Commonwealth’s 

motion for reconsideration. [The trial] court allowed both the 

defense and the Commonwealth to present additional oral 

argument prior to trial regarding the Commonwealth’s motion for 

reconsideration. At oral argument, the Commonwealth submitted 

a proffer regarding S.T., stating that if called to testify, she would 

say she was five (5) years old when she was sexually assaulted 

by [Appellant], she was forced to remove her clothes, and 

[Appellant] penetrated her vagina with his penis. N.T., 12/7/20, 

at 17-18. She was in [Appellant’s] home and in his care at the 

time of the assault. [Id.] at 18.

Additionally, the Commonwealth proffered that D.D. would 

testify that when he also was five (5) years old he was left in 

[Appellant’s] care while his mother was at work. [Id.] at 20. The 

Commonwealth proffered that D.D. would testify that [Appellant] 

touched his penis and forced D.D. to perform oral sex on him. 

[Id.] at 32. The Commonwealth argued these similarities [to the 
J-A14043-22

- 9 -

instant matter] satisfied its burden under Rule 404(b) and that 

the evidence should be allowed to be admitted at trial[.] At the 

conclusion of oral argument, the [trial] court allowed the evidence 

after the Commonwealth agreed to modify its original proffer by 

significantly limiting the testimony of D.D.[5] More specifically, the 

[trial] court made the following finding:

THE COURT: All right. If you’re able to—I think that 

limiting the testimony to just that, that is enough 

similarity, and I would allow that.

[ADA]: Okay.

THE COURT: And allow [S.T.]. I think that the 

similarities are enough right there.

[ADA]: Okay.

THE COURT: The child is the same age, the child is 

known to [Appellant], [Appellant] is in a custodial 

capacity to each child, they’re alone in [Appellant’s] 

residence. And in two cases it’s oral sex, and in one 

case its vaginal touching. I think those similarities 

right there are sufficient under the rules. I will allow 

it. I will not allow the Commonwealth to go beyond 

and into all that other stuff. 

[Id.] at 31-32.

Initially, the Commonwealth sought to introduce Rule 

404(b) evidence, which included several incidents that were 

dissimilar. At oral argument on the motion for reconsideration, 

[the trial] court granted the motion, in part, and denied it, in part. 

The [trial] court excluded the instance of alleged sexual abuse on 

D.D., which did not satisfy the strictures of Rule 404(b) that 

requires sufficiently similar evidence.

[Pa.R.E.] 404(b) provides “evidence of other crimes is 

admissible when it tends to prove a common plan, scheme, or 

____________________________________________

5

In its motion in limine, the Commonwealth proffered that Appellant sexually 

abused D.D. until he was sixteen years old, and at times, he would dress D.D. 

in women’s clothing. However, at the hearing on the motion for 

reconsideration, the Commonwealth proffered that, in order to establish the 

similarities between the instant case of sexual abuse and the abuse of D.D., 

the Commonwealth would limit D.D.’s testimony to the fact Appellant sexually 

abused him when he was five years old without mentioning the women’s 

clothing. N.T., 12/7/21, at 29.
J-A14043-22

- 10 -

design embracing the commission of two or more crimes so 

related to each other that proof of one tends to prove the others.” 

Pa.R.E. 404(b); Commonwealth v. Saez, 225 A.3d 169, 178 

(Pa.Super. 2019)[; Commonwealth v. O’Brien, 836 A.2d 966

(Pa.Super. 2003) (two prior sexual assaults on minor boys 

admissible under common-scheme-or-plan exception in trial 

relating to assault on third minor boy).] In [the case sub judice], 

there were sufficient similarities in the newly proffered evidence 

presented at the motion for reconsideration. In light of the new 

proffer, [Judge Moyle] granted the Commonwealth’s motion for 

reconsideration and allowed the evidence. 

It is clear from the case law, additional oral argument on 

the motion for reconsideration, and the policy considerations 

behind the coordinate jurisdiction rule that [the trial] court acted 

properly. The [trial] court did not overturn a previous ruling made 

by a different judge but simply granted the motion for 

reconsideration. Additionally, [the trial] court was within the 

parameters of Rule 404(b) when it allowed the evidence as stated 

[supra], and for these reasons, [Appellant’s] appeal regarding the 

coordinate jurisdiction rule and the admissibility of the Rule 

404(b) evidence should be denied.

Trial Court Opinion, filed 10/26/21, at 7-10 (footnote omitted) (some citations 

to record omitted) (unnecessary parenthesis omitted) (footnote added).

We agree with the trial court’s sound reasoning. Thus, we find Appellant 

is not entitled to relief on his challenge based on the coordinate jurisdiction 

rule. See Starr, supra.

In his second issue, Appellant contends the trial court erred in denying 

his motion for a continuance, which he made at the beginning of the pre-trial 

hearing before Judge Moyle regarding the Commonwealth’s motion for 

reconsideration of Judge Barrasse’s order denying the Commonwealth’s 

motion in limine. Appellant’s entire appellate argument regarding this issue 

is as follows (verbatim):
J-A14043-22

- 11 -

When the trial court erred by ruling in violation of the 

Coordinate Jurisdiction Rule, it then compounded its error by 

denying a defense motion for continuance.

Had the Court permitted the continuance, the defense would 

have raised the Coordinate Jurisdiction Rule violation issue, it 

could have been corrected, and the defense could also have 

addressed the expected testimony of [D.D.] and S.T., more 

thoroughly. 

Ordinarily, denial of a continuance is within the sound 

discretion of the trial court, but it is reversible error and an abuse 

of discretion where the continuance requested is necessitated by 

a ruling of the trial court which misapplied the law. 

Commonwealth v. Ross, 57 A.3d 85 (Pa.Super. 2012) (en 

banc).

Here, defense counsel sought a continuance based on the 

ruling of the judge receiving transfer of the case which upended 

the decision of the transferring judge on the admissibility of 

evidence. That ruling violated the Coordinate Jurisdiction Rule[.] 

Therefore, the new ruling misapplied the law. A denial of a 

continuance under such circumstances permits a new trial. Id.

Appellant’s Brief at 26-27 (citation to record omitted). We conclude Appellant 

is not entitled to relief. 

Initially, as Appellant acknowledges, it is well-settled that the decision 

to grant or deny a request for a continuance is within the sound discretion of 

the trial court. Commonwealth v. Pries, 861 A.2d 951, 953 (Pa.Super.

2004). Discretion is abused when “the law is overridden or misapplied, or the 

judgment exercised is manifestly unreasonable, or the result of partiality, 

prejudice, bias, or ill-will, as shown by the evidence or the record....”

Commonwealth v. Chambers, 546 Pa. 370, 685 A.2d 96, 104 (1996)

(quotation omitted).
J-A14043-22

- 12 -

Here, Appellant suggests he should have been granted a continuance so 

that he could have raised the alleged coordinate jurisdiction rule violation. 

Initially, we note Appellant did not lodge his request for a continuance based 

on this theory, and he raised the instant theory for the first time in his postsentence motion. 

That is, during the pre-trial hearing on the Commonwealth’s motion for 

reconsideration, Appellant asked Judge Moyle that, “if [she was] going to 

change Judge Barrasse’s ruling on the prior bad acts,” he desired a 

continuance so that he could prepare for trial with the idea that the statements 

related thereto would be admissible. N.T., 12/7/20, at 4. Appellant did not 

inform the trial court he required a continuance to raise a theory regarding 

the coordinate jurisdiction rule. 

Moreover, Appellant has not explained how he was prevented from 

raising the coordinate jurisdiction rule during the pre-trial hearing before 

Judge Moyle or why a continuance was necessary for him to do so. See Pries, 

supra. In any event, to the extent Appellant’s request of a continuance is 

intertwined with his averments regarding an alleged coordinate jurisdiction 

rule violation, as indicated supra, we find there was no such violation. 

Further, Appellant baldly claims that, had Judge Moyle granted his 

request for a continuance, he would have addressed the trial testimony of 

D.D. and S.T. “more thoroughly.” Appellant’s Brief at 26. However, aside 

from his bald allegation, Appellant has not explained on appeal how he would 
J-A14043-22

- 13 -

have benefitted from a continuance in this regard. Thus, we conclude 

Appellant is not entitled to relief. See Pries, supra.

In his third issue, Appellant contends the trial court erred in finding C.R., 

who was five years old at the time of trial, competent to testify. 

We review a competency ruling for an abuse of discretion. 

Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27, 34 n.8 (2003). 

“Most fundamentally, a trial court’s judgment is manifestly unreasonable, and 

therefore an abuse of discretion, if it does not find support in the record.” 

Commonwealth v. D.J.A., 800 A.2d 965, 970 (Pa.Super. 2002) (en banc).

In Pennsylvania, competency is a threshold legal issue to be decided by 

the trial court. Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 

290 (2011). Although witnesses are generally presumed to be competent, 

Pennsylvania law presently requires that child witnesses be examined 

for competency. Pa.R.E 601(a). Our Supreme Court has explained, “[t]he 

capacity of young children to testify has always been a concern as their 

immaturity can impact their ability to meet the minimal legal requirements of

competency.” Delbridge, supra, 855 A.2d at 39.

[W]here a child under the age of 14 is called to testify as a 

witness, the trial court must make an independent determination 

of competency, which requires a finding that the witness 

possesses (1) a capacity to communicate, including both an ability 

to understand questions and to frame and express intelligent 

answers; (2) the mental capacity to observe the actual occurrence 

and the capacity of remembering what it is that he or she is called 

to testify about; and (3) a consciousness of the duty to speak the 

truth.
J-A14043-22

- 14 -

Commonwealth v. Walter, 625 Pa. 522, 93 A.3d 442, 451 (2014). 

“A competency hearing of a minor witness is directed to the mental 

capacity of that witness to perceive the nature of the events about which he 

or she is called to testify, to understand questions about that subject matter, 

to communicate about the subject at issue, to recall information, to distinguish 

fact from fantasy, and to tell the truth.” Hutchinson, supra, 25 A.3d at 290 

(citation omitted). Notably, a competency determination does not involve an 

assessment of credibility. Walter, supra, 93 A.3d at 451. 

Here, in ruling on the competency issue, the trial court relevantly 

indicated the following on the record:

THE COURT: Based on my...inquiry here in open court with 

the court reporter and [Appellant] present, I do find [C.R.] is 

competent to testify. She has exhibited the ability to answer 

questions and articulate the answers correctly.

Is it daytime, night[.] Her baby Yoda is green. What her 

brother’s and sister’s names are, where she goes to school, the 

name of the van driver, the name of the teacher, what her favorite 

activity is in school, whether her brothers or sisters are older than 

her or younger than her. She was able to identify correctly what 

is a lie as opposed to what is telling the truth. And she—while she 

did say more than once telling a lie is good and bad, she did also 

articulate that telling a lie is bad, and that she is punished—she 

can be punished...if she does tell a lie or does something to break 

the rules. She has to sit in the choice chair. And the other 

comments that she made on the record.

So based on the totality of it all, I do find that she is 

competent and will permit her to testify.

[ADA]: Judge, I will also ask the record to reflect that a 

number of times she looked over to [Appellant] and then 

ultimately identified [Appellant].

THE COURT: Yes. It was clear to the Court she spotted 

[Appellant] immediately, and she kept diverting her attention 
J-A14043-22

- 15 -

away from—I sat in the opposite line of sight. She kept looking 

back over her shoulder to see [Appellant]. 

N.T., 12/7/20, at 59-60.

Further, in support of its competency determination, the trial court 

indicated the following in its opinion: 

[T]he trial court held a competency hearing outside the 

presence of the jury and the court conducted an inquiry with the 

above-referenced competency test in mind. In the colloquy, the 

court assessed C.R.’s ability to accurately describe people, events, 

and relationships. N.T., 12/7/20, at 45-49. The court found C.R. 

was able to discern the differences between the truth and a lie, 

and C.R. recognized the duty to tell the truth. [Id.] at 44-56. The 

court entertained oral argument regarding C.R.’s competency and 

the court subsequently allowed her to testify in front of the jury. 

[Id.] at 58-61. The inquiry conducted supports [the trial] court’s 

decision to allow her to testify at trial.

Trial Court Opinion, filed 10/26/21, at 12. 

Our review of the record supports the trial court’s determination. For 

example, during the competency hearing, C.R. testified she knows that a lie 

is “bad,” and she gets in trouble when she tells a lie. N.T., 12/7/20, at 50-53. 

The trial judge asked her various questions regarding the time of day and the 

color of the judge’s robe, and C.R. was able to identify which statements were 

lies. Id. at 50-51. Further, C.R. confirmed she knew who “Ray is,” and she 

identified “Ray” by pointing at Appellant in the courtroom. Id. at 53. C.R. 

acknowledged she is in kindergarten, and she has to follow the school’s rules, 

including being quiet and keeping her area clean. Id. at 54. She told the trial 

court that, if she does not follow the rules at school, she has to sit in a “choice 
J-A14043-22

- 16 -

chair.” Id. C.R. promised the trial court judge that, when she returned to 

court, she would tell the truth. Id. at 56. 

The trial court analyzed the competency factors set forth in Walter, 

supra, and concluded that C.R. was able to communicate and accurately 

recall, as well as understood her duty to tell the truth. Our review of the 

record supports the trial courts findings, and we, thus, find no abuse of 

discretion. To the extent Appellant asks that we reweigh the evidence given 

during the competency hearing, we decline to do so. See id.

In his fourth issue, Appellant alleges various errors in the trial court’s 

evidentiary rulings at trial. He suggests the trial court erred in playing 

Appellant’s “confession” interview multiple times, placing restrictions on the 

defense as it relates to evidence regarding the voluntariness of Appellant’s 

confession, denying defense counsel the opportunity to introduce Children and 

Youth “unfounded” reports as it relates to allegations of sexual abuse made 

by D.D. and S.T, denying defense counsel the opportunity to inquire into the 

substance of the discussion between Officer Van Deusen and Appellant, and

denying defense counsel the opportunity to demonstrate Office Mackrell was 

dishonest or mistaken about the order of events in the interview. We find 

Appellant’s issue to be waived.

It is well-settled that the failure to develop an adequate argument in an 

appellate brief may result in waiver of the claim under Pa.R.A.P. 2119. 

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super. 2007) (en 
J-A14043-22

- 17 -

banc) (citation omitted). “[A]rguments which are not appropriately developed 

are waived.” Lackner v. Glosser, 892 A.2d 21, 29–30 (Pa.Super. 2006)

(citations omitted). “When issues are not properly raised and developed in 

briefs, or when the briefs are wholly inadequate to present specific issues for 

review, a Court will not consider the merits thereof.” Commonwealth v. 

Maris, 629 A.2d 1014, 1017 (Pa.Super. 1993). “[W]here an appellate brief 

fails to provide any discussion of a claim with citation to relevant authority or 

fails to develop the issue in any other meaningful fashion capable of review 

that claim is waived.” In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011).

In the case sub judice, in his fourth issue, Appellant presents a list of 

alleged evidentiary errors. See Appellant’s Brief at 33-35. However, aside 

from making bald assertions of error, Appellant has not developed his claims. 

He has not developed his argument or provided any meaningful discussion of 

relevant authority.6It is not this Court’s duty to develop arguments for an 

appellant. See Maris, supra. The defects in Appellant’s brief precludes us 

from conducting meaningful appellate review of this issue. In re W.H., 

supra. Thus, we find Appellant’s issue to be waived.

____________________________________________

6 The only authority provided by Appellant is for the general proposition that 

“the erroneous admission of harmful or prejudicial evidence constitutes 

reversible error.” Appellant’s Brief at 33 (citing Partlow v. Gray, 165 A.3d 

1013, 1016-17 (Pa.Super. 2017); Commonwealth v. Salazar, 2018 WL 

1477217 (Pa.Super. 3/27/18) (unpublished memorandum)).
J-A14043-22

- 18 -

In his fifth issue, Appellant alleges the trial court erred in refusing to 

give a missing evidence and/or missing witness jury instruction.7

As it relates to his allegation regarding the missing evidence instruction, 

Appellant’s entire appellate argument is as follows (verbatim):

The trial court erred in refusing a missing evidence 

instruction to the jury. R.R. 190a-238a. The defense is not at

fault for the police failure to record the entirety of the interview 

with [Appellant]. While the Commonwealth is correct that certain 

portions of the recorded interview would not be permissible 

evidence because there would be no way to avoid the CVSA, the 

Commonwealth must suffer the consequence of not recording the 

entire interview through a missing evidence instruction. 

Appellant’s Brief at 35-36. 

Aside from baldly asserting trial court error, Appellant has not developed 

his appellate argument regarding a missing evidence instruction. Specifically, 

he has not provided discussion of the claim with citation to relevant authority 

or otherwise developed the claim in a meaningful fashion capable of review. 

Thus, this issue has been waived on this basis. See In re W.H., supra; 

Beshore, supra.

As it relates to his allegation regarding the missing witness instruction, 

Appellant’s entire appellate argument is as follows (verbatim):

The trial court erred in refusing an absence of witness 

instruction as to Officer Van Deusen. R.R. 190a-238a. Officer 

Van Deusen was not called by the Commonwealth to testify that 

he participated in the interview, nor that he met with and spoke 

with [Appellant], nor that he advised [Appellant] that he did not 

____________________________________________

7 Appellant presents no citation to authority in his brief as it relates to his fifth 

issue, which spans one and one-half pages. Appellant’s Brief at 35-36.
J-A14043-22

- 19 -

find [Appellant] to be credible in his denial of wrongdoing. Officer 

Van Deusen is a police officer and, while available to the defense, 

would be a natural and expected witness for the Commonwealth.

The defense need not prove affirmatively that the purported 

“confession” was voluntary, but rather, the duty is on the 

Commonwealth to establish it was voluntary. Failure to call Officer 

Van Deusen was a “hole” in the testimony that the defense was 

entitled to use in its efforts to demonstrate that the “confession” 

was not voluntary.

Appellant’s Brief at 36.

Aside from baldly asserting trial court error, Appellant has not developed 

his appellate argument regarding a missing witness instruction. Specifically, 

he has not provided discussion of the claim with citation to relevant authority 

or otherwise developed the claim in a meaningful fashion capable of review. 

Thus, this issue has been waived on this basis. See In re W.H., supra; 

Beshore, supra.

Further, we note we have reviewed the record, including the pages of 

the trial transcript cited by Appellant, and find no indication that Appellant 

requested a missing evidence or missing witness jury instruction. In any 

event, Appellant lodged no objection to the jury instruction after it was given 

by Judge Moyle. N.T., 12/9/20, at 76 (defense counsel indicating no objection 

to the jury instruction); 81 (defense counsel indicating he had nothing further 

to add before the trial court excused the jury). Thus, he has waived his 

challenges to the jury instruction on this basis as well. Pa.R.Crim.P. 647(C)

(“No portions of the charge nor omissions from the charge may be assigned 

as error, unless specific objections are made thereto before the jury retires to 
J-A14043-22

- 20 -

deliberate.”); Commonwealth v. Sanchez, 623 Pa. 253, 82 A.3d 943, 978 

(2013) (holding specific exception shall be taken to the language or omission 

of language in a jury instruction in order to preserve challenges for appeal).

In his sixth claim, Appellant contends the trial court abused its discretion 

in imposing consecutive sentences. Specifically, Appellant avers the trial court 

erred when it ordered the sentences for counts I, III, IV, VI, and VII to run 

consecutively as opposed to concurrently to each other. He suggests that 

since all of the counts arose from a single incident the aggregate sentence is 

manifestly unreasonable. 

Appellant’s issues present a challenge to the discretionary aspects of his 

sentence. “[C]hallenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right.” Commonwealth v. Derry, 150 

A.3d 987, 991 (Pa.Super. 2016) (citation omitted). Rather, before reaching 

the merits of such claims, we must determine:

(1) whether the appeal is timely; (2) whether Appellant preserved 

his issues; (3) whether Appellant’s brief includes a concise 

statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of sentence; and (4) whether 

the concise statement raises a substantial question that the 

sentence is inappropriate under the sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa.Super. 2011) (citation 

omitted). Here, assuming, arguendo, all of these requirements have been 

met, we conclude Appellant’s sentencing issue is meritless. 

Our standard of review concerning the discretionary aspects of 

sentencing is as follows:
J-A14043-22

- 21 -

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005).

42 Pa.C.S.A. § 9721(b) offers the following guidance to the trial court’s 

sentencing determination:

[T]he sentence imposed should call for confinement that is 

consistent with the protection of the public, the gravity of the 

offense as it relates to the impact on the life of the victim and on 

the community, and the rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b). 

Furthermore,

Section 9781(c) specifically defines three instances in which the 

appellate courts should vacate a sentence and remand: (1) the 

sentencing court applied the guidelines erroneously; (2) the 

sentence falls within the guidelines, but is “clearly unreasonable” 

based on the circumstances of the case; and (3) the sentence falls 

outside of the guidelines and is “unreasonable.” 42 Pa.C.S.A. § 

9781(c). Under 42 Pa.C.S.A. § 9781(d), the appellate courts must 

review the record and consider the nature and circumstances of 

the offense, the sentencing court’s observations of the defendant, 

the findings that formed the basis of the sentence, and the 

sentencing guidelines. The weighing of factors under 42 Pa.C.S.A. 

§ 9721(b) is exclusively for the sentencing court, and an appellate 

court may not substitute its own weighing of those factors. The 

primary consideration, therefore, is whether the court imposed an 

individualized sentence, and whether the sentence was 

nonetheless unreasonable for sentences falling outside the 

guidelines, or clearly unreasonable for sentences falling within the 

guidelines, pursuant to 42 Pa.C.S.A. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa.Super. 2012) (citations 
J-A14043-22

- 22 -

omitted).

When imposing sentence, a court is required to consider the 

particular circumstances of the offense and the character of the 

defendant. In considering these factors, the court should refer to 

the defendant’s prior criminal record, age, personal characteristics 

and potential for rehabilitation. Where pre-sentence reports exist, 

we shall...presume that the sentencing judge was aware of 

relevant information regarding the defendant’s character and 

weighed those considerations along with mitigating statutory 

factors. 

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) 

(quotation marks and quotation omitted).

Moreover, we note the “imposition of consecutive rather than concurrent 

sentences lies within the sound discretion of the sentencing court.” 

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.Super. 2013) (citation 

omitted). It is well-accepted “in imposing a sentence, the trial [court] may 

determine whether, given the facts of a particular case, a sentence should run 

consecutive to or concurrent with another sentence being imposed.” 

Commonwealth v. Wright, 832 A.2d 1104, 1107 (Pa.Super. 2003). 

Here, during the sentencing hearing, the trial court received evidence 

indicating that, in addition to the current victim, two other victims reported 

they had been sexually abused by Appellant when they were young children. 

N.T., 4/22/21, at 15. Paula Brust, a counselor in private practice and a 

member of the Sexual Offender Assessment Board, testified the fact Appellant 

has “multiple minor victims” makes him a greater risk to the community. Id. 

Further, Ms. Brust testified she reviewed Appellant’s prior criminal history and 
J-A14043-22

- 23 -

discovered he had been arrested for delivery of a controlled substance in 1991, 

arrested for dealing in stolen property in 1996, arrested for violating his 

probation in 1997, convicted of a theft offense in 1997, and arrested for 

possession of cocaine in 1998. Id. at 18-19. Ms. Brust noted Appellant was 

forty-five years old when he sexually assaulted the four-year-old victim, and 

Appellant suffers from post-traumatic stress disorder. Id. at 19-20. 

The victim’s father provided the trial court with a victim impact 

statement and testified at Appellant’s sentencing hearing. He testified 

Appellant is related to him. He indicated that Appellant’s sexual abuse of C.R. 

is “going to change her forever[, and] [s]he is never going to look at a man 

the same again moving forward in her life.” Id. at 25. He testified Appellant 

destroyed C.R.’s innocence, as well as the relationship of “three generations 

of” a family. Id. at 26. 

The victim’s mother provided the trial court with a victim impact 

statement. She informed the trial court that, when she first learned of 

Appellant’s sexual abuse of her daughter, she “passed out on the floor.” Id. 

at 27. She told the trial court the victim will not sleep in her own bed, suffers 

nightmares, and will not wipe herself when she goes to the bathroom. Id. 

The trial court provided Appellant with his right to allocution; however, 

Appellant declined to make a statement. Id. at 36. Defense counsel sought 

leniency and indicated that Appellant had not been involved in the criminal 

justice system since he was twenty-four years old in 1998. Id. He requested 
J-A14043-22

- 24 -

that, since all of the charges stemmed from the same criminal incident, the 

trial court impose all sentences concurrently. Id. 

The trial court indicated it had presided over Appellant’s trial and 

provided the following reasoning in sentencing Appellant to consecutive 

sentences:

[A]s [the victim’s father] alluded to, this trial and this 

incident or incidents and the resulting trial—the resulting arrest, 

trial, and now today’s proceedings have fractured a once unified 

family.

So, there is collateral damage resulting from [Appellant’s] 

acts. But this victim at a very tender age did have the fortitude 

to come into court and to testify in an open court in the presence 

of [Appellant].

And at the end of the trial the jury after weighing the 

evidence did find you guilty, sir, of all charges. So, I also had the 

opportunity to review the presentence investigation [report], the 

victim impact statement that was submitted by [the victim’s 

father], [and] the statement of the [victim’s] mother that was 

read into court. 

***

So, your aggregate sentence here today, sir, is a minimum 

of 18 to a maximum of 36 years in a state correctional institution. 

Id. at 37-39.

We find no abuse of discretion in the trial court’s imposition of 

consecutive sentences. The record reveals the trial court imposed an 

individualized sentence consistent with the protection of the public, the gravity 

of the offense as it relates to the impact on the life of the victim and the 

community, and the rehabilitative needs of Appellant. 42 Pa.C.S.A. § 9721(b). 

The trial court gave ample reasons for imposing the sentences consecutively.
J-A14043-22

- 25 -

Although Appellant asserts his aggregate sentence is manifestly 

excessive since the charges allegedly rose out of the same criminal incident, 

we note Appellant is not entitled to a “volume discount” in the form of 

concurrent sentences. See Commonwealth v. Austin, 66 A.3d 798 

(Pa.Super. 2013). Rather, the imposition of consecutive sentences was within 

the trial court’s discretion. Id. Thus, Appellant’s final claim is meritless. 

For all of the foregoing reasons, we affirm.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/3/2022