J. S27043/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

SEAN SKIBBER, :

:

Appellant : No. 2666 EDA 2014

Appeal from the Judgment of Sentence March 18, 2014

In the Court of Common Pleas of Monroe County 

Criminal Division No(s).: CP-45-CR-0000585-2013

 CP-45-CR-0000818-2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 31, 2015

Appellant, Sean Skibber, appeals from the judgment of sentence1

entered in the Monroe County Court of Common Pleas following a jury trial 

on November 13, 2013, on both of the above docketed cases. In docket 

number 585, Appellant was convicted of burglary,2conspiracy,3criminal 

 

*

Former Justice specially assigned to the Superior Court.

1 Appellant purported to appeal from the September 8, 2014 order denying 

his post-sentence motion. “However, when timely post-sentence motions 

are filed, an appeal properly lies from the judgment of sentence made final 

by the denial of post-sentence motions.” Commonwealth v. Kuykendall, 

2 A.3d 559, 560 n.1 (Pa. Super. 2010). Accordingly, we have amended the 

caption.

2 18 Pa.C.S. § 3502(a).

3 18 Pa.C.S. § 903(c).
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trespass,4theft by unlawful taking,5and receiving stolen property.6 In 

docket number 818, Appellant was convicted of burglary, 

conspiracy─burglary, criminal trespass, theft by unlawful taking, 

conspiracy─theft by unlawful taking, receiving stolen property, and criminal 

mischief.7 Appellant avers the trial court erred in (1) denying relief based 

upon ineffective assistance of counsel, (2) denying his motion for a mistrial 

based upon a comment by the Commonwealth during closing argument; and 

(3) finding that the verdicts were not against the weight of the evidence. 

We affirm.

We glean the facts from the notes of testimony. Pennsylvania State 

Trooper Francis McDonough testified as an initial responder to the incidents 

in this case. N.T., 11/12/13, at 40. He was on duty on July 18, 2012, and 

responded to a report of a burglary on Barren Road in Middle Smithfield 

Township. Id. at 41. When he approached the house, he could see that the 

front door was “smashed and, obviously, there was some sort of forced 

entry into the house.” Id. The house was in disarray. Id. at 45-46. The 

victim related that the home was neat when she left the house. Id. at 46. 

 

4 18 Pa.C.S. § 3503(a)(1)(ii).

5 18 Pa.C.S. § 3921(a).

6 18 Pa.C.S. § 3925(a).

7 18 Pa.C.S. § 3304(a)(5).
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After processing the scene, he went to a local pawn shop. Id. He was 

looking for a portable Sony DVD player. Id. at 48. The receipt from the 

pawn shop indicated the items’ descriptions, viz., a Stihl 14-inch bar 

chainsaw, 18-inch bar chainsaw, a leaf blower, the Sony portable DVD 

player, and the signature of Sean Egley. Id. at 49, 58.

Trooper Nicholas Bressler testified he responded to a report of a 

burglary on Manzanedo Road in East Stroudsburg on July 22, 2012. Id. at 

62. The cabin “was completely rummaged through, stuff scattered 

everywhere.” Id. at 63. The owner indicated what was missing from the 

cabin. Id. The following items were reported stolen: 

A Sharp, 1.5 cubic foot, 900 watt, microwave; Model No. 

R930AK; a Visio, 36-inch LCD TV; Stihl chainsaw MDL 

MS250, Serial No. 287743106; a Stihl Woodman, a 

carrying case for the chainsaw; a Stihl leaf blower; a 

Marlin 77 .22 caliber Bolt with Weaver 4X Scope; a 

Stevens Model 77 .20 caliber pump; Rossi 223 caliber 

single shot-break action; a US Krag 30-40 caliber carbine 

with saddle ring; RCBS powder balance beam scale; IMP 

4064 gun powder, one pound; Remington large rifle 

primers; American flag, 3x5 feet with brass pole. 

Id. at 65.

Sean Michael Egley testified at trial. Id. at 90. He was at the 

Paramount hotel with Appellant in July of 2012. Id. at 91. He “was high on 

dope so you are not up to par with what’s going on.” Id. at 92. He had 

keys for the car. Id. at 92. He was with Appellant and Marion Hodges. Id.

at 91, 93, 98. He was having problems driving. Id. at 93. They asked him 

to stop by Wooddale and Barren Road. Id. The trunk to the car was open. 
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Id. He was “nodding off, kept driving off the road.” Id. Marion had a 

pillowcase and he put it in the trunk. Id. at 94-95. They drove two to three 

miles to Manzanedo Road. Id. at 95-96. Appellant and Marion both got out 

of the car. Id. at 96. Marion and Appellant were in the car with him when 

he left and went to the pawn shop. Id. at 96-97. He did not remember how 

they got to the pawn shop. Id. at 97. He had a chainsaw he wanted to sell. 

Id. Days later Egley “found out that they got [him] for receiving stolen 

property; that it was stolen, some of it was stolen, supposedly.” Id. Egley 

and Marion went into the pawn shop. Id. at 98. He did not remember if 

Appellant went into the pawn shop. Id. “A lot of it was a drug-induced 

haze. You have to look at the pictures. I know they got pictures of it. I’m 

not really sure.” Id. He identified his signature on a document from the 

Fast Cash Check Cashing and Trading Post. Id. at 99. He remembered 

giving his identification to whoever was working behind the counter at the 

pawn shop. Id. He gave his identification to sell his “chainsaw and the 

other stuff that was in the car.” Id. He remembered receiving money and 

buying drugs. Id. at 101. He could not remember if Appellant went with 

them to buy drugs. Id. He knew “we all ended up back at that hotel . . . .” 

Id. He was testifying because he “had received consideration when [he] 

entered [his] own guilty plea . . . .” Id. He was charged with the same 

charges as Appellant. Id. at 111. However, with the exception of one 

charge, the charges were dismissed. Id. He received probation. Id. 
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Ryan Potts testified that he was employed at Fast Cash Check Cashing 

and Trading Post, a licensed pawn shop. Id. at 134. He recalled three men 

coming in to sell electronics and lawn equipment in July of 2012. Id. They 

also brought in a portable DVD player. Id. at 135. The pawn shop “take[s] 

state issued state identification from anyone who sells us anything” and we 

record the make, model and serial number on the bill of sale. Id. The state 

police came in to investigate. Id. “Trooper McDonough had come in and 

noticed the portable DVD player. And we then showed them that they had 

brought in other stuff as well . . . .” Id. Potts identified Appellant in the 

courtroom. Id. at 136. The pawn shop uses video surveillance and it was in 

operation on the date in question. Id. The video surveillance8 was provided 

to the state police. Id. Potts identified a photograph as showing Sean 

Egley, Appellant, and a third male as having been in the pawn shop. Id. at 

138. Potts again identified Appellant in the courtroom. Id. On crossexamination by defense counsel, Potts identified Mr. Egley. Id. Potts stated 

Egley signed the receipt for the items and received the money. Id. at 139. 

The video was “an accurate depiction of what went on in [the] store that 

day[.]” Id. at 146.

 

8 Defense counsel requested the entire video be played, explaining to the 

court at side-bar that Appellant was in the video “in the last maybe four 

minutes of the 20-minute video. Most of the video shows Mr. Hodges and 

Mr. Egley in that video.” Id. at 140-41. The entire video was shown to the 

jury. Id. at 173. 
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Robert Lombardo, a Trooper with the Pennsylvania State Police 

testified. Id. at 146. Items from both burglaries appeared at the pawn 

shop. Id. at 150. The items reported stolen from the Manzanedo Road 

cabin were a microwave, a TV, the lawn equipment, maybe two chainsaws, 

and a leaf blower.9 Id. at 152. The video showed Mr. Egley carrying one of 

the chainsaws and Appellant carrying another chainsaw. Id. at 154. 

According to the video, Mr. Hodges and Mr. Egley initially brought the 

products into the Fast Cash Store. Id. at 163. He filed the criminal 

complaint against the three men. Id. at 164.

Appellant filed a post sentence motion. A hearing was held on July 22, 

2014. Appellant’s post-sentence motion was denied.10 Appellant received 

 

9 He also testified that there were several guns reported stolen which were 

never recovered. Id. at 152.

10 Appellant’s post-sentence motion was filed on March 26, 2014. The trial 

court entered an order denying the post-sentence motion on September 8, 

2014. Generally, a notice of appeal must be filed within thirty days of the 

imposition of sentence. Pa.R.Crim.P. 720(A)(3). When a defendant files a 

timely post-sentence motion as here, the notice of appeal must be filed 

either within thirty days of the entry of the order deciding the motion or 

within thirty days of the entry of the order denying the motion by operation 

of law in cases in which the judge fails to decide the motion. Pa.R.Crim.P. 

720(A)(2)(a), (b). The trial court indicates “action was due on [Appellant’s] 

[p]ost-[s]entence [m]otion by July 24, 2014, but extended for thirty (30) 

days to August 23, 2014 at the request of [Appellant]. A hearing was held 

July 22, 2014, and the time to render a decision due August 23, 2014 has

technically expired, making the [p]ost-[s]entence [m]otion deemed denied 

by this [c]ourt.” Trial Ct. Op., 9/8/14, at 2. Thus, although the trial court 

indicates that Appellant’s post-sentence motion was denied by operation of 

law effective August 23, 2014, since the order so indicating was not filed 
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an aggregate sentence of seven to fourteen years’ imprisonment. This 

timely appeal followed. Appellant filed a court-ordered Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal.11 The trial court filed a 

statement pursuant to Pa.R.A.P. 1925(a) based upon its Opinion dated 

September 8, 2014.

Appellant raises the following issues for our review:

1.) Did the lower court err in denying Appellant relief 

based on ineffective assistance of trial counsel?

2.) Did the lower court abuse its discretion in denying 

Appellant’s motion for a mistrial based on a reference 

made by the Commonwealth during closing argument that 

Egley was threatened and/or intimidated by Appellant’s 

acquaintances at the direction of Appellant while Egley was 

in prison?

3) Did the lower court abuse its discretion in finding that 

the verdicts were not against the weight of the evidence 

where the lower court summarily dismissed Appellant’s 

weight claim without citing any rule or legal standard or 

conducting any legal analysis?

Appellant’s Brief at 4.

 

until September 8, 2014, Appellant’s notice of appeal will be deemed timely 

filed within thirty days of that order. 

11 We note Appellant raised twenty-two errors in his Rule 1925(b) 

statement. Rule 1925(b)(4)(iv)provides that “the number of errors raised 

will not alone be grounds for finding waiver.” Pa.R.A.P. 1925(b)(4)(iv). 

Moreover, our Supreme Court instructed that with respect to lengthy Rule 

1925(b) statements, no violation is sufficient to find waiver of issues unless 

the trial court finds that the appellant acted in bad faith. PHH Mortg. Corp. 

v. Powell, 100 A.3d 611, 614 (Pa. Super. 2014), (citing Eiser v. Brown & 

Williamson Tobacco Corp., 938 A.2d 417 (Pa. 2007)). Although his Rule 

1925(b) statement was not concise, we decline to find waiver because the 

trial court did not find that he acted in bad faith. See id.
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First, Appellant contends trial counsel was ineffective.12 As a prefatory 

matter, we consider whether the trial court properly considered the 

ineffective assistance of counsel claims in Appellant’s post-sentence motion. 

In Commonwealth v. Harris, 114 A.3d 1 (Pa. Super. 2015), this Court 

explained:

Our Supreme Court determined that, absent certain 

circumstances, “claims of ineffective assistance of counsel 

are to be deferred to [Post-Conviction Relief Act13

(“PCRA”)] review; trial courts should not entertain claims 

of ineffectiveness upon post-verdict motions; and such 

claims should not be reviewed upon direct appeal.” 

[Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 

2013)14 (footnote omitted).]

The Holmes Court noted two exceptions to the general 

rule of deferring ineffective assistance of counsel claims 

until PCRA review. First, “there may be an extraordinary 

case where the trial court, in the exercise of its discretion, 

determines that a claim (or claims) of ineffectiveness is 

both meritorious and apparent from the record so that 

immediate consideration or relief is warranted.” Id. at 577 

(emphasis added). Second, our Supreme Court 

determined that in cases where “prolix” claims of 

ineffectiveness are raised, “unitary review, if permitted at 

all, should only proceed where accompanied by a 

 

12 We note that in Appellant’s Rule 1925(b) statement, he raised ten claims 

of ineffective assistance of counsel. In his brief, he raised five issues, thus 

abandoning several issues on appeal. See Commonwealth v. Dunphy, 20 

A.3d 1215, 1218 (Pa. Super. 2011).

13 42 Pa.C.S. §§ 9541-9546.

14 This Court in Holmes stated Commonwealth v. Grant, 813 A.2d 726 

(Pa. 2002) remains pertinent law for timing of review for claims of 

ineffective assistance of counsel. Holmes, 79 A.3d at 563. Grant held 

generally that a claim of ineffective assistance of counsel should be deferred 

to PCRA review. Grant, 813 A.2d at 738.
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knowing, voluntary, and express waiver of PCRA 

review.” Id. at 578.

Id. at 5-6 (some emphasis added).

In the case sub judice, following a hearing on July 22, 2014, where 

Appellant was represented by new counsel, the trial court found that 

Appellant “sufficiently understood his waiver of rights to a future PCRA 

hearing after the merits of his direct appeal are determined, and that he 

made a knowing and intelligent waiver.” Trial Ct. Op., 9/8/14, at 1. At the 

hearing, the following exchange took place between counsel and Appellant:

[Counsel]: Have you and I spoken at great length about 

the [PCRA]?

A: Yes, we have.

 * * *

Q: Are you aware that by filing, within the post-sentence 

motion, claims of ineffective assistance of counsel, you are 

waiving your opportunity to file a first PCRA in the future?

A: Absolutely I do.

Q: Is that what you want to do?

A: Yes, absolutely.

Q: So you understand that any PCRA that you would wish 

to file would be subject to the rules of serial filing of PCRA; 

meaning that there would be special rules that govern 

whether or not you could even have a hearing, or whether 

the [c]ourt would appoint counsel, or things of that 

nature?

A: Yes, I do.

Q: Do you wish to waive those rights?
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A: Yes, I do.

Q: Do you want the [c]ourt to hear the ineffective 

assistance of counsel claims at this time?

A: Yes, I do.

Q: You understand you are also waiving the opportunity to 

conduct any further investigation into any ineffective 

assistance of counsel claims?

A: Yes, I do.

Q: Is that a knowing and intelligent waiver? In other 

words, have you had the opportunity to ask me any 

questions you wanted to ask about it, and are you 

comfortable telling the [c]ourt that’s what you want to do?

A: Fully comfortable.

Q: And you understand that you can’t come back and 

change that decision ever again in the future?

A: I do.

Q: You are stuck with it?

A: Absolutely.

N.T., 7/22/14, at 16-17.15 

We agree with the trial court that Appellant expressly, knowingly and 

voluntarily waived PCRA review and proceed to address Appellant’s claims of 

ineffective assistance of counsel in seriatum. See Harris, 114 A.3d at 5-6. 

 

15 We note Appellant also waived the attorney-client privilege so that 

questions could be asked about discussions he had with trial counsel. See 

id. at 18.
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Appellant contends trial counsel was ineffective for failing to have the court 

colloquy him regarding his desire to testify and for failing to advise him of 

his absolute right to testify.16 Appellant’s Brief at 13. He argues that 

counsel’s failure to have the court colloquy him vitiated his knowing and 

voluntary decision not to testify. Id. at 15.

This Court has stated:

Our standard and scope of review for the denial of a PCRA 

petition is well-settled.

[A]n appellate court reviews the PCRA court’s 

findings of fact to determine whether they are 

supported by the record, and reviews its conclusions 

of law to determine whether they are free from legal 

error. The scope of review is limited to the findings 

of the PCRA court and the evidence of record, viewed 

in the light most favorable to the prevailing party at 

the trial level.

* * *

. . . Counsel is presumed effective, and to rebut that 

presumption, the PCRA petitioner must demonstrate that 

counsel’s performance was deficient and that such 

deficiency prejudiced him. In Pennsylvania, we have 

refined the [Strickland v. Washington, 466 U.S. 668 

(1984),] performance and prejudice test into a three-part 

inquiry. Thus, to prove counsel ineffective, the petitioner 

must show that: (1) his underlying claim is of arguable 

merit; (2) counsel had no reasonable basis for his action or 

inaction; and (3) the petitioner suffered actual prejudice as 

a result. If a petitioner fails to prove any of these prongs, 

 

16 Appellant claims counsel did not inform him that his prior felonies were 

crimen falsi that could be used to attack his credibility. Id. at 14. This issue 

was not raised in Appellant’s post-sentence motion or in his Rule 1925(b) 

statement. “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). 
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his claim fails. . . . To demonstrate prejudice, the 

petitioner must show that there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of 

the proceedings would have been different. A reasonable 

probability is a probability that is sufficient to undermine 

confidence in the outcome of the proceeding.

* * *

[A] defendant [raising a claim of ineffective 

assistance of counsel] is required to show actual 

prejudice; that is, that counsel’s ineffectiveness was 

of such magnitude that it “could have reasonably had 

an adverse effect on the outcome of the 

proceedings.”

Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super.) 

(citations omitted and alterations in original), appeal denied, 104 A.3d 523 

(Pa. 2014).

In reviewing the propriety of an order denying PCRA 

relief, this Court is limited to examining whether the 

evidence of record supports the determination of the PCRA 

court, and whether the ruling is free of legal error. Great 

deference is given to the findings of the PCRA court, which 

may be disturbed only when they have no support in the 

certified record. 

Commonwealth v. Perry, 959 A.2d 932, 934-35 (Pa. Super. 2008) 

(citations omitted). “[W]e must defer to the credibility determinations made 

by the trial court that observed a witness’s demeanor first hand.” 

Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super. 2003). This Court

has held “there is no express requirement that a trial court conduct [ ] a 

colloquy with regard to a defendant’s right to testify.” Id.

The trial court found 
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trial counsel testified credibly that he believed [Appellant] 

understood his right to testify or not. Trial counsel stated 

he would have informed [Appellant] of his right and would 

have informed the [c]ourt if [Appellant] did not understand 

that right. Trial counsel recalled [Appellant] did not want 

to testify because he had a significant felony record. 

Trial Ct. Op., 9/8/14, at 5; see N.T., 7/22/14, at 78. We agree no relief is 

due.

At the hearing, Appellant testified, inter alia, as follows:

[Counsel]: Now, also talking about trial preparation, did 

[trial counsel] discuss with you the possibility of you 

testifying?

A: Yes.

Q: And what was [counsel’s] advice regarding that?

A: He strongly suggested that I do not testify. I am a 

convicted felon, and he doesn’t agree with putting 

convicted felons on the stand.

Q: Did [counsel] advise you that you have an absolute 

right to testify.

A: Yes, he told me I could testify.

Q: Did you understand that?

A: Yes.

Q: Did you want to testify?

A: At the second day of trial, I did.

N.T., 7/22/14, at 32. Counsel testified he discussed with Appellant his right 

to testify the night before trial when he visited him in jail. Id. at 78. 
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The trial court found counsel to be the more credible witness. 

Appellant is asking this Court to find him to be the more credible witness. 

We defer to the credibility determinations of the trial court. See Todd, 820 

A.2d at 712. Appellant testified he was aware of his right to testify. 

Therefore, there was no requirement that the court conduct a colloquy. See

id. We discern no abuse of discretion. See Perry, 959 A.2d at 934-35.

Next, Appellant contends counsel was ineffective for failing to have the 

court colloquy him on whether or not he desired to have the jury receive a 

“no adverse inference” instruction relative to his failure to testify. 

Appellant’s Brief at 15. He argues “where there is a reasonable basis 

alerting counsel that the charge would be relevant, failure to colloquy the 

defendant is ineffective assistance of counsel.” Id. at 16 (emphases 

supplied). Appellant asserts he “was prejudiced by the lack of a colloquy 

because there is a reasonable probability that, had trial counsel requested a 

colloquy to waive the instruction, the outcome would have been different as 

the jurors would not have been alerted to the fact that Appellant failed to 

testify when it is plausible to conclude, as many jurors would, that his 

testimony could have supported his defense.” Id. at 17.

In Commonwealth v. Perez, 103 A.3d 344 (Pa. Super. 2014), appeal 

denied, 116 A.3d 604 (Pa. 2015), this Court held that pursuant to 

Commonwealth v. Stanley, 830 A.2d 1021 (Pa. Super. 2003), “a failure to 

request a colloquy with respect to waiver of the instruction . . . cannot 
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constitute prejudice per se . . . .” Perez, 103 A.3d at 349. Therefore, the 

“standard three-part ineffectiveness test should govern the analysis . . . .” 

Id. Our Supreme Court holds “the no adverse inference instruction shall be 

given absent an express on the record colloquy by the defendant waiving 

the charge.” Commonwealth v. Thompson, 674 A.2d 217, 222 (Pa. 

1996). Furthermore, “[a]s this claim is premised upon trial counsel’s 

inaction, appellant must establish that he suffered prejudice as a result 

of counsel’s failure to act to such a degree that absent counsel’s 

error the outcome of the verdict would have been different.” Id. at 

221 (emphasis added).

The trial court found “[t]here does not appear to be any support in the 

record that trial counsel lacked a reasonable basis not to request such a 

colloquy or that [Appellant] suffered prejudice.” Trial Ct. Op. at 6. We 

agree no relief is due. 

At the hearing on his post-sentence motions, Counsel asked Appellant 

if trial counsel spoke with him “about the jury instruction that relates to your 

decision to testify or not[.]” N.T., 7/22/14, at 36. The Commonwealth 

objected and the court overruled the objection. Id. at 36-37. Appellant 

testified as follows regarding the no adverse inference jury instruction:

Q: Mr. Skibber, let me rephrase the question. Did [trial 

counsel] discuss with you a jury instruction regarding your 

decision to testify or not testify?

A: No.
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Q: So did you have any idea that you had a choice in 

whether the jury hears an instruction about not holding 

against you that you did not testify?

A: No, I didn’t know.

Q: Or having the decision to have the jury not receive that 

instruction?

A: No.

Q: So you didn’t know that you had that option?

A: No.

Id. at 37. 

Appellant baldly asserts that he was prejudiced by the lack of a 

colloquy because waiver of the instruction would not have alerted the jury to 

the fact that he failed to testify. Appellant’s Brief at 17. This bald assertion, 

coupled with his testimony regarding the charge, does not establish 

prejudice. See Thompson, 674 A.2d at 221; Perez, 103 A.3d at 349; 

Charleston, 94 A.3d at 1018-19.

Next, Appellant claims counsel was ineffective for failing to request a 

“corrupt and polluted source” instruction where “the only meaningful 

evidentiary link between the crimes charged and Appellant” was the 

testimony of Egely. Appellant’s Brief at 17. He argues “[t]rial counsel was 

unable to put forth any reasonable basis for failing to request the charge.” 

Id. at 18.

A corrupt and polluted source “instruction informs the jury that if it 

finds that a certain witness who testified against the defendant was an 
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accomplice of the defendant in a crime for which he is being tried, then the 

jury should deem that witness a corrupt and polluted source whose 

testimony should be considered with caution.” Commonwealth v. Briggs, 

12 A.3d 291, 340 n.45 (Pa. 2011) (quotation marks and citation omitted). 

In the case sub judice, the trial court opined “such an instruction 

would be inconsistent and contrary to the defense that [Appellant] did not 

commit the crimes. Trial counsel stated the defense was to separate 

[Appellant] from Egley and Hodges due to lack of forensic evidence that 

[Appellant] was at the scene of the crimes. It was reasonable for trial 

counsel to not request the instruction under those circumstances.” Trial Ct. 

Op. at 4. We agree no relief is due.

At the post sentence motion hearing, trial counsel testified, inter alia, 

as follows:

[Present Counsel]: . . . Do you agree with me that you did 

not request a corrupt and polluted source charge to the 

jury?

A: Yes.

Q: Do you agree with me that, in this case, Mr. Egley was 

a co-defendant?

A: Yes.

 * * *

Q: Did the Commonwealth have any forensic evidence that 

placed [Appellant] at the scene?

A: Not that I know of.
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Q: Was any presented at the time of trial?

A: Not that I saw.

Q: Did [Appellant] confess to being at the scene?

A: Not that I know of.

 * * *

Q: The location of either burglary, did [Appellant] confess 

to being at the location of either burglary as part of the 

burglary?

A: No.

Q: Did Mr. Egley place [Appellant] at the scene of the 

burglaries?

A: I believe he did, yes, several times.

 * * *

Q: . . . Other than Mr. Egley’s testimony, were you aware 

of any other testimony, were you aware of any other 

testimony at the time of trial that placed [Appellant] at the 

scene of either burglary?

A: Not that I know of.

 * * *

Q: . . . You have suggested here today that your theory of 

the case was essentially to separate [Appellant] from Mr. 

Egley or Mr. Hodges, correct?

A: From all of the co-defendants because of the lack of 

forensic evidence.

 * * *

[The Commonwealth]: Concerning [the] failure to request 

a corrupt and polluted source instruction, is it fair to say 
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that part of your strategy was to attack the credibility of 

Mr. Egley?

A: Yes, it was. 

Q: And did you attack his credibility by eliciting that he 

was an extensive drug user?

A: Yes, I did.

Q: And did you attack his credibility by eliciting that he 

entered into a favorable agreement and sentence with the 

Commonwealth?

A: I thought I did.

N.T., 7/22/14, at 67, 68, 69, 72, 74-75.17 

At trial, Appellant’s defense was that he was not guilty because he did 

not commit the crimes charged. In closing argument, trial counsel stated 

the jury was asked to convict Appellant “based on the testimony of Captain 

Speedball.[18] That’s not evidence.” N.T., 11/13/13, at 25. Counsel argued:

 

17 We note at trial, the Commonwealth proposed a jury instruction on liability 

for the conduct of another. N.T., 11/13/13, at 6. Trial counsel objected to 

that instruction. Id. The court agreed to give the standard conspiracy 

instruction. Id. at 11.

18 At the post sentence hearing, the Commonwealth questioned trial counsel 

regarding this reference to Mr. Egley as follows:

Q: . . . And did you often refer to Mr. Egley as Captain 

speedball throughout your closing argument?

A: I did. He had actually told the court at trial about the 

drugs that he was on that day, and he described them as a 

speedball. He actually laid it out for the entire jury. . . . 

He laid out to the jury, quite animated, what a speedball 

was and that he was─I think he testified he was under the 
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Appellant “is here because he said three words at an arraignment, two 

words: Not guilty. That’s what he said. That’s why he’s here. Not guilty. I 

didn’t do this.” Id. Appellant has not proven that the outcome of the trial 

would have been different had the court given a corrupt and polluted source 

instruction. See Charleston, 94 A.3d at 1018-19. We find the evidence 

supports the determination of the PCRA court. See Perry, 959 A.2d at 934-

35.

Appellant contends counsel was ineffective for failing to provide a 

timely notice of an alibi defense, viz., his niece, Danielle Skibber. 

Appellant’s Brief at 19, 20. Appellant avers that “Ms. Skibber’s testimony 

may not have been able to account for all of Appellant’s 

whereabouts on the morning of the burglaries . . . .” Id. at 21 

(emphasis added). He concedes “[e]ven if not enough to meet 

Appellant’s burden of proof with respect to the alibi defense, it most 

certainly would have created a reasonable doubt in the minds of the jurors . 

. . .” Id. (emphasis added).

The Pennsylvania Supreme Court has explained:

An alibi is a defense that places the defendant at the 

relevant time at a different place than the scene involved 

and so removed therefrom as to render it impossible 

for him to be the guilty party. Where such evidence 

 

influence of that, so I thought that his credibility was 

pretty bad.

N.T., 7/22/14, at 76.
J. S27043/15

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has been introduced, a defendant is entitled to an alibi 

instruction to alleviate the danger that the jurors might 

impermissibly view a failure to prove the defense as a sign 

of the defendant’s guilt. 

Commonwealth v. Bryant, 855 A.2d 726, 741 (Pa. 2004) (emphasis 

supplied and citations omitted).

Instantly, the trial court opined, based upon Ms. Skibber’s testimony 

at the post-sentence hearing, that she “could not positively account for 

[Appellant’s] whereabouts at the time of the burglaries and her time frame 

that she saw Appellant with Egley and Hodges was contradicted by the time 

they were in the pawn shop selling some of the stolen items.” Trial Ct. Op. 

at 3. Appellant acknowledges she could not place Appellant at the relevant 

time at a different place than the scene of the crime. Appellant concedes 

Ms. Skibber’s testimony would not satisfy his burden of proof with respect to 

the alibi defense. See Bryant, 855 A.2d at 741. Counsel cannot be 

deemed ineffective for failing to raise a meritless claim. See Charleston, 

94 A.3d at 1019-19.

Finally, Appellant claims trial counsel was ineffective in failing to 

adequately cross-examine Egley regarding the benefits of his plea, his 

relationship with the Monroe County District Attorney’s Office, and his prior 

crimen falsi. Appellant’s Brief at 22. Appellant asserts “the outcome of the 

trial would have been different had [trial counsel] more thoroughly crossexamined Egley.” Id. at 23.
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Appellant does not cite any legal authority in support of this argument. 

See Pa.R.A.P. 2119(b). However, we decline to find waiver as this defect 

does not impede our ability to conduct meaningful appellate review. See 

Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010). 

The trial court opined: “The record indicates trial counsel crossexamined Egley on many relevant issues that undermined his credibility. 

(N.T.[,] 11/12/13[, at] 105-115).” Trial Ct. Op. at 6. In Commonwealth 

v. Sneed, 45 A.3d 1096 (Pa. 2012), the Supreme Court found the 

appellant’s claims of ineffective assistance of counsel based upon the crossexamination of a witness to be meritless. 

Also baseless are [the a]ppellant’s allegations of 

ineffectiveness founded upon the cross-examination of 

Robert Henderson (“Henderson”). [The a]ppellant does 

not explicate the precise grounds for his claim of 

ineffectiveness other than to state that counsel failed to 

“adequately” impeach Henderson regarding his criminal 

background. [The a]ppellant intimates that this failure 

was particularly egregious since Henderson was the “only” 

witness who could place [him] near the crime scene. We 

find these contentions to be completely devoid of merit. 

Defense counsel’s first question to Henderson concerned 

his arrest record, which elicited testimony that Henderson 

had been arrested “at least fifteen times” for numerous 

robberies and burglaries. Counsel’s cross-examination 

also exposed Henderson’s drug use, his failure to report 

the murder, and numerous inconsistencies in his 

testimony. Consequently, [the a]ppellant has failed to 

demonstrate that counsel did not “adequately” crossexamine Henderson.

Id. at 1108 (citations omitted).
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In the case at bar, trial counsel cross-examined Egley about his drug 

use, specifically, heroin, cocaine and methamphetamine. N.T., 11/12/13, at 

109-11. Counsel asked him about the original charges in the instant case 

and the charges that were dismissed based upon his cooperation. Id. at 

111. The jury was informed that he received probation. Id. Counsel asked 

Egley if he had a criminal record prior to this incident. Id. at 113. Egley 

testified that he had a record for “[b]urglary to drugs to gun charges to 

assaults, armed robbery.” Id. Our review of the record reveals that 

Appellant failed to establish inadequate cross-examination. See Sneed, 45 

A.3d at 1108. Therefore, we find no merit to this claim of ineffective 

assistance of counsel. See Charleston, 94 A.3d at 1018-19.

In his second issue, Appellant contends the trial court abused its 

discretion in denying his motion for a mistrial based upon the statement 

made by the Commonwealth during closing argument that Egley was

intimidated and/or threatened by acquaintances of Appellant at Appellant’s 

direction while Egley was in prison.19 Appellant’s Brief at 23.

 

19 Appellant objected when the Commonwealth finished its closing argument. 

Counsel stated: 

Your Honor, at this time I would like to make a motion for 

a mistrial. I believe that the Commonwealth’s comment 

that my client threatened, okay, Mr. Hodges in jail 

was─there is no evidence. It was improper. It was 

incorrect. And it should not have been done. It is highly 

prejudicial . . . .
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Our review is governed by the following principles:

A motion for a mistrial is within the discretion of the trial 

court. A mistrial upon motion of one of the parties is 

required only when an incident is of such a nature that its 

unavoidable effect is to deprive the appellant of a fair and 

impartial trial. It is within the trial court’s discretion to 

determine whether a defendant was prejudiced by the 

incident that is the basis of a motion for a mistrial. On 

appeal, our standard of review is whether the trial court 

abused that discretion.

It is well settled that a prosecutor has considerable latitude 

during closing arguments and his arguments are fair if 

they are supported by the evidence or use inferences that 

can reasonably be derived from the evidence. Further, 

prosecutorial misconduct does not take place unless the 

unavoidable effect of the comments at issue was to 

prejudice the jurors by forming in their minds a fixed bias 

and hostility toward the defendant, thus impeding their 

ability to weigh the evidence objectively and render a true 

verdict. Prosecutorial misconduct is evaluated under a 

harmless error standard.

Comonwealth v. Caldwell, 117 A.3d 763, 774 (Pa. Super. 2015) (en banc) 

(citations omitted).

Instantly, the trial court opined the prosecutor’s 

 

THE COURT: Let’s hear it. For the record, I don’t think I 

heard that.

[Counsel]: Well, that’s what I heard. He said that my 

client threatened Mr. Hodges.

N.T., 11/13/13, at 51. Appellant objected after the Commonwealth 

concluded its closing argument, preserving this issue. See Commonwealth 

v. Rose, 960 A.2d 149, 154 (Pa. Super. 2008).
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comment[20] did not cause prejudice to [Appellant] 

requiring a mistrial. The comment did not reference 

[Appellant] was in jail. it was consistent with testimony of 

Attorney Tomas Sundmaker[21]that Egley had advised him 

that he was being pressured by other inmates.[22] Egley 

 

20 At trial, the prosecutor, in his closing argument stated, inter alia, 

Appellant’s “boys shook him down in prison. That’s why we’re here at trial. 

[Appellant] bet wrong. [Appellant] bet he had Sean Egley all sewn up, and 

that Mr. Egley was not going to sing.” N.T., 11/13/13, at 45-46. 

21 Attorney Sundmaker represented Egley in his plea to a misdemeanor in 

this case. N.T., 11/12/13, at 118-19.

22 Attorney Sundmaker testified as follows regarding the pressure from other 

inmates:

[The Commonwealth]: And as a result of your 

representation of Mr. Egley, did you take any action as a 

result of that representation?

A: Yes, I did. I interviewed Mr. Egley. . . . I did have one 

point in time where, . . . I became aware of certain 

situations that were occurring at the correctional facility, 

incidences of intimidation.

Q: What do you mean by that?

A: Instances where basically there was pressure being 

placed on Mr. Egley by other inmates. I cannot specifically 

get into what Mr. Egley related to me. That’s attorneyclient privileged information. But what I did do was I 

undertook to contact law enforcement to basically advise 

them of the fact that─and I believe I spoke with the 

trooper─that I was concerned with the fact that Mr. Egley 

was being put under undue influence or pressures and 

threats.

N.T., 11/12/13, at 119-20.
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denied any threats in his testimony.[23] Neither the 

testimony of Attorney Sundmaker, nor the closing 

argument of counsel for the Commonwealth indicated that 

[Appellant] made threats to Mr. Egley while both were in 

jail. Therefore, there were no grounds for granting a 

mistrial due to a remark about [Appellant] threatening 

Egley in jail.

Trial Ct. Op. at 13. We discern no abuse of discretion. The comment by the 

Commonwealth, even assuming it was improper, did not deprive Appellant of 

a fair trial. See Caldwell, 117 A.3d at 774.

Lastly, Appellant contends the trial court abused its discretion in 

finding that the verdicts were not against the weight of the evidence. 

Appellant’s Brief at 25. Appellant’s sole argument in support of this claim is 

that the lower court “abused its discretion in evaluating [his] weight claim” 

Id. at 26. Moreover, “the lower court did not conduct a weight of the 

evidence analysis and did not even cite or apply the relevant legal standard 

and rules of law. For this reason, the lower court abused its discretion in 

failing to adequately and thoroughly address Appellant’s weight claim.” Id.

As a prefatory matter, we consider whether Appellant has waived this 

claim. On appeal, Appellant fails to cite to the place in the record where this 

 

23 Egley testified at trial that he was not afraid of Appellant nor did Appellant 

threaten him or try to intimidate him. N.T., 11/12/13, at 116. He did not 

tell his lawyer that Appellant was intimidating him. Id. at 116-17.
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claim was preserved before the trial court.24 See Pa.R.A.P. 2117(c) 

(requiring statement of case to specify state of proceedings at which issue 

sought to be reviewed on appeal was raised); 2119(e) (requiring same of 

argument section of appellate brief); Commonwealth v. Fransen, 42 A.3d 

1100, 1106 n.11 (Pa. Super. 2012) (“Failing to direct this Court to specific 

portions of the record in support of an argument violates Pa.R.A.P. 2119(c) 

[and for] that reason alone, we could conclude this issue is waived.”). Even 

if we decline to find waiver on this basis, Appellant has failed to develop his 

weight of the evidence claim. Our Pennsylvania Supreme Court opined:

[W]e are compelled to point out that while a person 

convicted of a crime is guaranteed the right to direct 

appeal under Article V, Section 9, of the Pennsylvania 

Constitution, where 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. See [ ] Pa.R.A.P. 

2119(a) (each point treated in an argument must be 

“followed by such discussion and citation of authorities as 

are deemed pertinent”). It is not the obligation of this 

Court, even in a capital case, to formulate Appellant’s 

arguments for him. 

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (some 

citations omitted).

 

24 We note in his post-sentence motions, Appellant baldly asserted “[t]he 

jury’s verdict was against the weight of the evidence.” Appellant’s Post 

Sentence Motions, 3/26/14, at 4 (unpaginated). 
J. S27043/15

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In the case sub judice, Appellant has failed to develop the weight of 

the evidence claim in any meaningful fashion and we will not formulate his 

argument for him. See id. Therefore, we find the issue waived. Id.

Judgment of sentence affirmed.

Judge Stabile joins the memorandum.

President Judge Emeritus Ford Elliott concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/31/2015