J-A09007-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRENDAN J. CARTER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1366 MDA 2021

Appeal from the Judgment of Sentence Entered June 3, 2021

In the Court of Common Pleas of Luzerne County 

Criminal Division at No(s): CP-40-CR-0001982-2019, 

CP-40-CR-0001983-2019, CP-40-CR-0001984-2019, 

CP-40-CR-0001985-2019, CP-40-CR-0001986-2019, 

CP-40-CR-0001987-2019, CP-40-CR-0001988-2019, 

CP-40-CR-0001989-2019, CP-40-CR-0001990-2019

BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED: JULY 10, 2023

Brendan Carter appeals the judgment of sentence imposed by the Luzerne 

County Court of Common Pleas after a jury convicted him of, among other offenses, 

corruption of minors, involuntary deviate sexual intercourse (“IDSI”) and possession 

of child pornography. The case involved nine victims, all of whom were minors and 

band students of Carter’s while he was the band director at Pittston Area High School 

and the percussion adviser at the Wyoming Area School District when the offenses 

occurred. The victims reported Carter had engaged in inappropriate behavior, 

including sexual games and touching, and had repeatedly exposed himself to band 

members and requested digital pictures of the victims’ penises. On appeal, Carter 

raises or attempts to raise multiple claims, including that the trial court erred by 
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denying several motions: a suppression motion, a motion in limine to preclude the 

admission of evidence from social media, the motion for a continuance he filed on 

the Friday before trial was set to begin, and a motion for a jury view. He also claims 

the trial court erred by determining he was a sexually violent predator (“SVP”). After 

reviewing the record, the parties’ briefs, and the trial court’s thorough and wellreasoned opinion, we affirm. 

As the pretrial procedural background is central to several of Carter’s claims, 

we recount it in some detail here. The mother of one of Carter’s victims, C.C., 

contacted Pittston Area High School’s school resource officer, Michael Boone, on 

October 22, 2018, to report allegations C.C. had made involving Carter. Specifically, 

C.C. told his mother about inappropriate games that had been played at school and 

on the band bus when he had been a band member, and that Carter had asked C.C. 

to send explicit photos to him. 

Officer Boone immediately contacted Detective Charles Balogh of the Luzerne 

County District Attorney’s Office. The two began investigating the allegations that 

same day, and went to Pittston Area High School and spoke to students, including 

victims A.T. and C.E. Officer Boone and Detective Balogh learned Carter was 

scheduled to meet with the principal about an unrelated matter later that day at 

approximately 5 p.m., and they waited in the principal’s office for Carter. 

Once Carter arrived at the school, the principal brought Carter to his office, 

and left him with the officers. The officers asked Carter if he knew why they were 

there, and Carter surmised it was about an issue related to missing funds. He spoke 
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to the officers about that issue, and the officers then advised Carter they were 

actually there to discuss allegations of inappropriate behavior that several band 

members had made against him. 

Carter agreed to speak with the officers about those allegations, and signed a 

constitutional waiver form waiving his Miranda1rights at 6 p.m. See N.T. Omnibus 

Motions Hearing, 6/9/2020, at 36-37. During the conversation, Carter told the 

officers he had received naked images on his cell phone of former students after 

they had graduated high school, but remained adamant that he did not have any 

naked images of current students on his cell phone. See id. at 41. Carter agreed to 

allow Detective Balogh to review the contents of the phone. See id. at 39-40. 

Carter informed the detective that he had images stored in his Snapchat 

application in the folder called “for my eyes only” and provided Detective Balogh 

with the folder’s passcode. See id. at 42-44.2 There were numerous pictures of 

males with their penises exposed in the folder, one of which matched the description 

given to Detective Balogh earlier by A.T., taken when A.T. was 17 years old. See 

id. at 44, 62. Detective Balogh also found a picture in the folder of C.E. with his 

penis exposed, also taken when he was a minor. See id. at 44-45.

____________________________________________

1 See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 

(1966). 

2 The “for my eyes only” folder was described by a defense expert as a “feature 

of Snapchat where you can store photos. It’s a built-in function, a built-in 

folder of Snapchat where you can store photos that you have on your Snapchat 

story that you can only view yourself. There’s a passcode that blocks anybody 

else from viewing it.” N.T. Motions Hearing, 9/28/2020, at 74.
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At around 7 p.m., Detective Balogh asked Carter if he could audio record a 

statement from Carter. See id. at 38, 57-58. Carter agreed. Carter affirmed at the 

beginning of the recording that he had signed the constitutional waiver form and 

understood his constitutional rights, and explicitly stated he was agreeing to talk 

with the officers and have his statement audio recorded. See id. at 38. The 

recording started at 6:56 p.m., and ended at 8:03 p.m. See id. at 68. 

Carter made several admissions while talking to the police. He “admitted that 

he did solicit images of a current student [’ s penis from a female student.] In 

addition, [Carter] told investigators that he was forced by a few students to expose 

himself in the band room closet. [Carter] also told them that he and two students 

ejaculated into a pudding cup and gave it to another student with the intention of 

having him eat it.” Trial Court Opinion, 2/14/2022, at 55. 

Towards the end of the interview, at 8:20 p.m., Carter signed a warrantless 

search consent form for the phone so that it could be forensically analyzed. See

N.T. Omnibus Motions Hearing, 6/9/2020, at 61-62. Detective Balogh put the phone 

on airplane mode, and placed the phone into evidence. See id. at 44-45. 

Carter left the school after the interview, though he was advised not to return 

to school property. However, on July 29, 2019, the Commonwealth filed several 

informations charging Carter with 22 offenses against nine minor victims. The trial 

court listed the individual charges associated with each of the nine victims, see Trial 

Court Opinion, 2/14/2022, at 1-2, but the charges included corruption of minors, 

criminal solicitation to commit possession of child pornography, IDSI, sexual assault, 
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school – intercourse/sexual contact with student, indecent assault without consent 

of other, indecent exposure, possession of child pornography, and criminal use of a 

communication facility. The matters were consolidated for trial. After the trial court 

granted two defense motions for a continuance, trial was eventually set for January 

13, 2020.

Carter, however, filed another motion to continue trial on January 6, 2020. He 

also filed multiple omnibus pretrial motions on the same day. Those motions 

included: a motion to compel discovery of, inter alia, Carter’s cell phone for forensic 

examination; a motion to suppress the statements and the evidence the police 

obtained from Carter’s interview on October 22, 2018; a motion in limine seeking 

to exclude “electronic evidence, alleged telephone text messages and photographs, 

and, alleged internet posts, internet messages and photographs,” Omnibus Pre-Trial 

Motions Including, Inter Alia, Motion to Compel Discovery and Motion in Limine, 

1/6/2020, at 14; and a motion to take the jury to view the locations where the 

abuse allegedly took place. 

The Commonwealth filed a response, averring that it would not relinquish 

control over Carter’s cell phone given the risk that would create for evidence 

tampering, and that it would not disseminate the images of child pornography on 

the phone. The response continued:

The discovery provided documented that the Commonwealth had the 

cell phone in its possession and that a forensic analysis had been done 

on the phone. ... [Carter] never once requested to view the cell phone 

or results of the forensic analysis of the cell phone prior to this filing. 

Had [Carter] done so, he would have been afforded the opportunity to 

view the cell phone and its contents at the Luzerne County District 
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Attorney's Office. ... In fact, as of the date of the filing of this Answer, 

[Carter] still has not requested to view the cell phone or its contents, 

despite repeated contacts with members of the District Attorney’s Office 

involved in this case. Additionally, [Carter] also has not responded to 

the Commonwealth’s request dated January 13, 2020[, for] the name 

and contact information of the expert that [Carter] alleged to have for 

this case.

Commonwealth’s Answer to Defendant's Omnibus Pre-Trial Motions, 2/12/2020, at 

2-3 (unpaginated) (emphasis in original); see also id. at 3 (unpaginated) (“the 

defense may, at any time, contact the District Attorney’s Office to set up a time to 

view the cell phone or its contents.”).

The court granted Carter’s motion for a continuance and eventually held a 

hearing on the omnibus motions on June 9, 2020. The Commonwealth reiterated at 

the hearing that it had sent correspondence to defense counsel on January 13, 2020 

informing counsel that the Commonwealth would not release Carter’s phone but a 

defense expert could arrange to view it at the District Attorney’s office. See N.T., 

6/9/2020, at 9. The Commonwealth also stated it sent another email later that same 

day asking for the name of the expert the defense wished to use to examine the 

forensic analysis of the cell phone, so that arrangements could be made, but the 

Commonwealth did not receive a response. See id. at 11. 

Defense counsel responded that the defense had finally hired an expert the 

day before the hearing, i.e. June 8, 2020, and would arrange for the expert to 

examine the phone. See id. at 12. The court admonished counsel that the defense 

needed to make that happen, because the case was going to go to trial on the 

scheduled date in September 2020. See id. at 12-13. Counsel agreed. See id.
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As for the motion in limine, defense counsel asked the court to hold the motion 

in abeyance because it was “going to depend on the forensic analysis from the cell 

phone.” Id. at 25. The court granted the defense request, and deferred the motion 

in limine until trial. See id. at 27. Likewise, defense counsel also asked the court to 

defer the motion for a jury view as the Commonwealth had given the defense photos 

and a video of the crime scene that defense counsel had not yet viewed but indicated 

may be sufficient to alleviate the need for a jury view. See id. at 7, 27-28. The 

court agreed to defer the motion. See id. at 30. 

The court then heard testimony regarding the motion to suppress Carter’s 

statements and the evidence obtained from the October 22, 2018 interview, 

specifically from Detective Balogh and then from Carter. The court ultimately denied 

the suppression motion on August 20, 2020. Trial was set to begin on Monday, 

September 28, 2020.

On Friday, September 25, 2020, defense counsel filed a motion to continue 

the trial and a motion for sanctions. The motions averred, in essence, that the 

Commonwealth had failed to permit the defense expert access to Carter’s cell phone 

for forensic evaluation and a continuance was necessary to allow this to happen. 

The court held a hearing on the motion on September 28, 2020, and heard from 

four witnesses. We note the relevant highlights from that testimony. 

David Yarnell, the defense expert, testified Carter hired him to review 

electronic evidence, specifically from Carter’s cell phone. See N.T. Motions Hearing, 

9/28/2020, at 5-6. Arrangements were made for Yarnell to review the electronic 
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evidence on September 17, 2020, at the District Attorney's office in the courthouse, 

but Yarnell was prevented from entering the building due to the COVID-19 protocol 

then in place. See id. at 7. 

Five days later, on September 22, 2020, Yarnell sent his employee, Dylan 

Sperber, to the courthouse to review the evidence. See id. at 9. Yarnell complained 

that Sperber was denied access to the cell phone itself, see id. at 11, though Yarnell 

admitted he had reviewed an email from the Commonwealth sent on September 14, 

2020, which stated that the defense expert would not be given access to Carter’s 

cell phone, see id. at 43. However, the email explained that the expert could review 

the Commonwealth’s forensic image of the phone. See id. 

Yarnell conceded Sperber was in fact given access to the Commonwealth’s 

forensic image of the phone. See id. at 13; 32-33 (Yarnell agreeing with the 

description of “image” as being the “information that was pulled off the phone during 

the forensic analysis conducted by Detective Balogh”.) Neither Carter’s Snapchat 

nor its “for my eyes only” folder was in the forensic image, though again, Yarnell 

acknowledged that he and Sperber were made aware of that. See id. at 18, 38-39.

He specifically acknowledged the Commonwealth had sent correspondence to the 

defense on August 28, 2020, which stated there were two images in the “for my 

eyes only” folder which were relevant, and that the “for my eyes only” folder 

contents were not contained in the forensic image. See id. at 38-39. 

Yarnell conceded Sperber never asked to look at the “for my eyes only” folder 

or the Snapchat application on September 22. See id. at 34.
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Sperber also testified. He explained that, when he arrived at the courthouse 

on September 22, he encountered computer issues and also had to wait while the 

software he requested to view the data was installed. He stated that neither the 

Snapchat application nor the “for my eyes only” folder was on the extraction image 

he was able to view with the updated software. See id. at 74-75. He stated he did 

not ask the officers to show him the two images at issue on the cell phone. See id.

at 82. He testified he left the courthouse at approximately 4:30 p.m. and that 

nobody asked him to leave; he made the decision to leave himself. See id. at 80-

82. 

Detective Balogh also testified. He agreed that Snapchat’s “for my eyes only” 

folder was not on the image he had extracted from Carter’s cell phone. See id. at 

87. He explained this was because “the application is separate. Sometimes the 

software does not extract that information from that application.” Id. at 87. Sperber 

did not ask to see what was in the “for my eyes only” folder. See id. He testified 

Sperber left the courthouse on his own volition at 4:40 p.m. and that he never asked 

Sperber to leave. See id. at 87-88, 96.

Following the close of testimony, defense counsel argued they were not 

seeking a sanction per se but rather, were requesting access to Carter’s cell phone. 

Defense counsel argued the trial should be continued until the defense expert was 

allowed such access. See id. at 126. The Commonwealth responded that it had 

“bent over backwards to get [the defense] expert in here, which finally, after many 

attempts, was done on Tuesday [September 22].” Id. at 128. Then, the defense did 
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not alert the Commonwealth that it did not get the access it alleged it required until 

the defense filed the motion for sanctions and a continuance days later, on the 

Friday before trial, September 25.

The trial court denied both the motion for sanctions and the motion for a 

continuance. It stated:

There was a trial date for January 6th. There was an 11th hour 

omnibus filed. The trial ended up getting continued. And here we are on 

the eve of trial and we still have the Defense complaining about this 

phone.

Look, this is not a case involving voluminous digital discovery ... 

We have two photos at issue. Two photos at issue. And there is no 

question in the court’s mind that the Defendant has had more than 

ample opportunity to get whatever digital discovery they sought, okay.

Id. at 131.

The matter proceeded to trial. All nine victims testified. As the detailed facts 

underlying the offenses, which are disturbing, are relevant only generally to Carter’s 

SVP claim, we merely provide a general overview of the testimony. 

The victims’ testimony included testimony that: Carter had exposed himself 

to the victims on multiple occasions, and instructed the victims to expose 

themselves to each other while in his presence; Carter had the victims play a 

number of different inappropriate games, including truth or dare, the “nervous 

game,” and a game called “Are you?,” which meant “Are you circumcised?,” after 

which Carter would ask the responder to “prove it” by exposing his penis. 

There was also testimony that: Carter instructed the victims to masturbate 

into pudding cups, onto cookies and into their hands before slapping another; Carter 
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asked the victims to send or show him naked pictures of them or others and that 

they did so; and Carter talked about and ranked the sizes of penises. One victim 

testified that Carter “dared” him to perform oral sex on him, which he did. 

Detective Balogh also testified for the Commonwealth. As he did at the 

suppression hearing, Detective Balogh testified that Carter agreed to talk with him 

and that he read Carter his Miranda warnings from a constitutional waiver form 

before interviewing him about the allegations. See N.T. Jury Trial, 9/30/2020, at 

458, 460. 462. Detective Balogh recounted Carter affirmed he understood the 

warnings, initialed them, and then signed the form and said he was willing to talk 

to the officers. See id. at 460, 462-463. Detective Balogh explained Carter agreed 

to allow him to look at his cell phone, and once he opened the “for my eyes only” 

folder on Snapchat with the passcode given to him by Carter, he saw numerous 

images of penises and naked men. See id. at 471-474, 487.

The detective testified he recognized that one of those explicit photos was of 

victim A.T. based on his earlier discussion with him. See id. at 489-490. He also 

found a picture of victim C.E. on the phone. See id. at 505. Detective Balogh reinterviewed A.T. and C.E. on October 26, 2018, and they identified the photos as 

being images taken of them when they were minors. See id. at 504-505. These two 

photos were shown to the jury.

Carter testified on his own behalf. He generally denied the allegations. He did 

admit he exposed himself to band students on one occasion, but claimed they forced 

him to do it. He also admitted he had the explicit image of A.T. on his phone, but 
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he insisted it was taken and sent after A.T. turned 18. See N.T. Jury Trial, 

10/1/2020, at 730-733. As for the picture of C.E. shown to the jury, he maintained 

he did not put that image on his phone. See id. at 742.

Carter admitted the constitutional waiver form indicated he had signed it at 6 

p.m., but he claimed he did not actually sign the form until 8:30 p.m. See id. at 

718-719. He maintained the officers did not read his constitutional rights to him 

until after the interview was completed. See id. at 760. He acknowledged he is 

heard agreeing at the beginning of the audio-recorded statement that the 

investigators had gone over his constitutional rights with him, and that he 

understood and was waiving those rights, but claimed he had been instructed to say 

that. See id. at 760-762.

The jury convicted Carter of all charges filed against him. Following a hearing 

on June 3, 2021, the trial court found that Carter was an SVP. Then, following a 

sentencing hearing, the court sentenced him to an aggregate term of 84 to 168 

months’ imprisonment. Carter filed post-sentence motions, which were denied, and 

he filed a timely notice of appeal. 

The court directed Carter to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. Although Carter filed a statement, it was not 

concise, and instead raised 31 alleged errors. See Trial Court Opinion, 2/14/2022, 

at 35-41. In response, the trial court issued an 87-page Pa.R.A.P. 1925(a) opinion. 

The court found as an initial matter that many of Carter’s issues were waived as 
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they were too vague to allow for review. It found the remaining issues were 

meritless. 

On appeal, Carter has filed a brief that is difficult to follow. He asserts he is 

focusing on “only” 28 of the 31 errors alleged in his Rule 1925 statement, and then 

lists those 28 alleged errors. See Appellant’s Brief at 13-17. However, he presents 

six questions in his “Statement of Questions Involved????” section of his brief. See

Appellant’s Brief at 5. His argument section then addresses those questions, and 

some additional ones, in a different order than they are presented in the statement 

of questions section. We will address his claims in the order in which they are raised 

in his argument section.

In his first claim, Carter essentially alleges the trial court erred in denying his 

motion to suppress his statements given at the October 22, 2018 interview as they 

were obtained in violation of his constitutional rights. According to Carter, his 

statements were involuntarily given because he was questioned over a three-hour 

period and threatened by Detective Balogh, and was not advised of his constitutional 

rights until after the interview was over. This claim fails.

In rejecting this claim, the trial court first noted that Miranda warnings are 

only required before an interview when a person is in police custody. A person is in 

custody for purposes of a custodial interrogation, the court explained, when the 

person is physically deprived of his freedom in any significant way or reasonably 

believes his freedom of action or movement is restricted by the interrogation. See

Trial Court Opinion, 2/14/2022, at 58, citing Commonwealth v. DiStefano, 782 
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A.2d 574, 579 (Pa. Super. 2001). “Police detentions become custodial when under 

the totality of the circumstances the conditions and/or duration of the detention 

become so coercive as to become the functional equivalent of arrest.” Id.

The trial court found Carter was not in custody when he was interviewed by 

Detective Balogh and Officer Boone. The court explained:

Balogh testified credibly about the circumstances of the interview. 

[Carter] was interviewed at the principal’s office of the high school 

where [Carter] arrived to teach band practice. The principal brought him 

to the office and left him with the investigators. The door was closed for 

privacy because of the sensitive nature of the topics that were to be 

discussed. The investigators told [Carter] why they wanted to speak to 

him and he agreed to talk with them. Balogh was in plain clothes. The 

Commonwealth’s evidence reflects that the tone of the interview was 

cordial. [Carter] never asked to leave, was not restrained from doing 

so, and was not threatened. The totality of the circumstances do not 

indicate coercion so as to constitute the functional equivalent of an 

arrest.

Trial Court Opinion, 2/14/2022, at 58-59.

We find no error in the court’s conclusion that Carter was not in custody during 

his interview with the officers, and therefore that the officers were not required to 

give Carter Miranda warnings. Carter does not address, much less dispute, the 

court’s finding that he was not in police custody, but he does make a general 

allegation that Detective Balogh intimidated and threatened him, and recites his 

testimony at the suppression hearing in support of this contention. He also maintains 

that Detective Balogh was not credible. However, it is clear the trial court credited 

Detective Balogh’s testimony, and not Carter’s, as was its prerogative to do. See 

Commonwealth v. Yorgey, 188 A.3d 1190, 1198 (Pa. Super. 2018) (stating that 

credibility determinations are within the exclusive province of the suppression 
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court). As such, Carter does not provide any persuasive argument to disturb the 

court’s conclusion that he was not in police custody.

Carter does claim he did not voluntarily waive his constitutional rights. Even 

though the trial court found that Detective Balogh was not required to give Miranda

warnings because Carter was not in custody, it noted he nonetheless did so, and 

found Carter voluntarily waived his rights before making his statements to the 

officers. To that end, the court noted that Detective Balogh read the constitutional 

waiver questions on the constitutional waiver form to Carter, each of which Carter 

initialed after indicating he was agreeing to waive that right, before talking to Carter 

about the allegations. 

The court further quoted the exchange between Carter and Detective Balogh 

at the beginning of Carter’s audio-taped statement. See Trial Court Opinion, 

2/14/2022, at 60-61. It found this exchange “ma[de] clear that [Carter] was 

informed of his Miranda rights and understood the warnings both during and prior 

to the recording.” Id. at 61. During the exchange, Carter also specifically stated 

that he was agreeing to speak with the officers and was “not under duress or 

anything like that.” Id. 

Carter challenges the trial court’s conclusion that he voluntarily waived his 

constitutional rights before giving his statements, again alleging he was threatened 

by Detective Balogh and that he also was not read his rights until after the interview 

concluded. Again, Carter testified to this effect at the suppression hearing, and the 

trial court did not credit this testimony. Instead, despite Carter’s allegations that 
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Detective Balogh’s testimony was not credible, the trial court credited the detective’s 

testimony that he thoroughly reviewed Carter’s constitutional rights with him before 

taking any statements, and Carter waived those rights without any coercion. See

Yorgey, 188 A.3d at 1198. Based on the above, we disagree with Carter that the 

trial court erred by denying his motion to suppress the statements he made to 

police.

We note that Carter also makes a bald allegation inside his first claim that the 

trial court should have suppressed the evidence from his cell phone because it was 

obtained without a search warrant. In the first place, this argument is not included 

in his statement of questions involved section, and it is waived for that reason alone. 

See Pa.R.A.P. 2116(a). In any event, the trial court found that Carter allowed the 

officers to look at his phone, handed over his phone and provided the passcode to 

open the private folder in Snapchat. He signed a consent to warrantless search form. 

The court concluded that the credible testimony of Detective Balogh and Officer 

Boone established that Carter’s consent was voluntary and not the product of 

coercion. Again, Carter does not offer any convincing argument that the trial court 

erred in reaching this conclusion.

In his second claim, Carter alleges the trial court erred by denying his motion 

in limine seeking to preclude the Commonwealth from offering certain electronic 

evidence into evidence, including unidentified social media and text messages. He 

argues the electronic evidence was not properly authenticated. We agree with the 

trial court that this issue is waived.
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The trial court found this issue was waived for three reasons. First, the trial 

court found Carter failed to identify with specificity in his Rule 1925 statement which 

items of evidence he argues the Commonwealth should have been precluded from 

admitting. See Trial Court Opinion, 2/14/2022, at 65, citing Pa.R.A.P. 1925(b)(4). 

Second, the trial court noted that Carter requested the court to hold the motion in 

limine in abeyance until trial, the trial court did so, and Carter never renewed the 

motion at trial. As such, the trial court never ruled on the motion. See Trial Court 

Opinion. 2/14/2022, at 65. And finally, the trial court pointed out, Carter did not

object to the introduction of any social media evidence at trial. See id. at 65-66; 

Commonwealth v. McGriff, 160 A.3d 863, 866 (Pa. Super. 2017) (stating that a 

party must make a timely objection to the admission of evidence in order to preserve 

the issue for appellate review). 

Carter does not address the issue of waiver at all in his brief to this Court. As 

such, he does not dispute that he did not specify which electronic evidence he 

alleged the Commonwealth should have been precluded from admitting in his Rule 

1925 statement or otherwise. It also means he does not dispute that he failed to 

renew his motion in limine in front of the trial court or failed to object to the 

admission of the electronic evidence he purports to challenge at trial. He certainly 

does not point to the place in the record where either any such renewal or objection 

occurred, as is his clear burden to do. See Commonwealth v. Baker, 963 A.2d 

495, 502 (Pa. Super. 2008) (finding the appellant’s claim was waived when he did 
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not point to the location in the record where the claim was preserved, in violation 

of Pa.R.A.P. 2117(c) and 2119(e)).

Accordingly, Carter has failed to provide us with any reason to find that the 

trial court made any error in concluding Carter waived this issue and therefore, that 

he is entitled to any relief on this claim.

In his third claim, Carter alleges the trial court erred by failing to grant his 

motion for a continuance in order to allow his expert witness to examine his cell 

phone and its contents. He argues the court should have granted the motion as it 

was in the interests of justice and filed more than 48 hours before the start of trial. 

He further asserts the trial court’s refusal to grant the continuance effectively 

deprived him of his right to counsel. This claim fails.

The decision of whether to deny a continuance is within the sound discretion 

of the trial court. See Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super. 

2013). “A myopic insistence upon expeditiousness in the face of a justifiable request 

for delay can render the right to defend with counsel an empty formality. However, 

not every restriction on counsel’s time or opportunity to investigate ... violates a 

defendant’s Sixth Amendment right to counsel.” Id. (citations and brackets 

omitted). Therefore, the trial court exceeds its constitutional authority only when it 

exercises its discretion to deny a continuance on the basis of an “unreasoning and 

arbitrary insistence upon expeditiousness in the face of a justifiable request for 

delay.” Id. at 671-672 (citation omitted). 
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Moreover, our Rules of Criminal Procedure provide that a trial court may grant 

a continuance in the “interests of justice.” See Pa.R.Crim. P. 106(A). “A motion for 

continuance on behalf of the defendant shall be made not later than 48 hours before 

the time set for the proceeding.” Pa.R.Crim.P. 106(D).

Here, the trial court found it had not abused its discretion in denying the 

motion for a continuance Carter filed on the Friday before trial was set to begin. The 

court noted that prior to this continuance motion, the trial had already been 

continued numerous times due to previous defense motions filed on September 20, 

2019, October 24, 2019 and January 6, 2020. 

The court also noted it specifically referenced the January 6, 2020 continuance 

motion at the June 9, 2020 hearing on Carter’s omnibus pretrial motions, and that 

the January continuance had been granted because of the issue with the cell phone 

and yet, “absolutely nothing has happened from that point to today.” N.T. Omnibus

Motion Hearing, 6/9/2020, at 8. The court recounted that defense counsel stated 

the defense had finally hired an expert the day before and agreed to resolve the 

issue. The court continued:

The defense raised the issue of digital discovery in January and 

June of 2020. Defense counsel indicated they had hired an expert on 

June 8, 2020. Despite the unambiguous instructions of this court at the 

Omnibus Hearing in June, arrangements were not made for Sperber to 

look at the phone until the afternoon of Tuesday, September 22, 2020, 

six days before the scheduled trial date. Although the Commonwealth 

had offered to set up a meeting for the defense expert to review the 

phone on Monday, September 21st, the earliest the defense could meet 

was on Tuesday September 22nd after Yarnall had been refused entry 

by the Sheriff due to COVID protocols on September 17th. After Sperber 

voluntarily left the meeting on Tuesday, the defense did not raise the 
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issue that they were unable to access the phone until Friday when 

accompanied by the final motion seeking a continuance.

During the meeting, Sperber was given access to [two software 

programs], and [Detective Balogh’s supervisor, who was at the 

September 22nd meeting] testified that Sperber would have been able 

to view the file with these programs. Notably, this is not a case with 

voluminous digital discovery. The instant case involved only two 

relevant photographs. In addition, the defense had been aware that the 

Commonwealth was unwilling to release the cell phone for months

before Sperber’s visit. If time to continue to view the images was the 

issue, it is undisputed that no one from the District Attorney’s office 

asked Sperber to leave before he was ready. During the meeting itself, 

Yarnall was in contact with the defense counsel and notified him of the 

issues he believed Sperber was having.

As we said at the hearing on [Carter’s] final motion for 

continuance: “[T]here is no question in the court’s mind that [Carter] 

has had more than ample opportunity to get whatever digital discovery 

they sought, okay. And if necessary, to seek the appropriate court 

interventions.” N.T. Motions Hearing, 9/28/[20]20, at 131. As a result, 

this court did not exercise its discretion to deny the final requested 

continuance on the basis of “unreasoning and arbitrary insistence upon 

expeditiousness in the face of a justifiable request for delay.” Instead, 

the motion for continuance was properly denied as [Carter] failed to 

avail himself of the many opportunities provided to obtain the discovery 

he sought and to avail himself of the court’s assistance, if needed, in a 

timely fashion.

Trial Court Opinion, 2/14/2022, at 52-53 (emphasis in original). 

Carter does nothing in his brief to challenge the court’s finding that he failed 

to make timely and reasonable efforts to have a defense expert examine the cell 

phone and relevant electronic evidence. Carter agreed to have his cell phone 

analyzed on October 22, 2018, and the Commonwealth filed informations against 

him in July 2019. He was well aware there were two photos at issue on the cell 

phone. Yet, he does not offer any explanation as to why he did not hire an expert 

to examine the phone until June 8, 2020, and then did not arrange to have such an 
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examination occur until days before trial, on September 17, despite multiple 

requests by the Commonwealth for the expert’s name and repeated offers to make 

arrangements for any such expert to view the phone. 

Instead, Carter broadly “contends that the trial [c]ourt’s explanation does not 

denote a careful consideration of the matter. The decision reflects a myopic 

insistence upon expeditiousness in the face of [his] request.” Appellant’s Brief at 55. 

We disagree, and conclude that the trial court did not abuse its discretion in denying 

the continuance motion. No relief is due.

Next, Carter argues the trial court erred by denying his motion for a jury view 

of the alleged crime scenes, including the school bus. He baldly asserts there were 

security cameras “placed throughout the school,” which would have recorded the 

abuse. Appellant’s Brief at 55-56. He summarily concludes the jury view “would 

have been helpful to [the jury] in determining any material, factual issue in the 

case” and to its duty to discern the credibility of witnesses. Id. We agree with the 

trial court that this claim is waived.

The trial court explained:

At the hearing on [Carter’s] omnibus motion, defense counsel asked this 

court to hold its ruling in abeyance until the defense had an opportunity 

to review the video and photographs taken by the Commonwealth of 

various locations at [Pittston Area High School]. [See] N.T. Omnibus 

Hearing, 6/9/2020, at 28. He indicated that he may be satisfied with the 

photos and video of the premises he received from the Commonwealth 

at the hearing. [See id.] Because [Carter] did not raise this issue again 

at any point, this court presumed that he was satisfied with the 

discovery provided by the Commonwealth and thus the issue is waived.

Trial Court Opinion, 2/14/2022, at 64.
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Again, Carter does not address, much less dispute, this finding of waiver or 

the fact that the trial court never ruled on his motion because he did not renew it 

before the trial court. Even if the issue were not waived for this reason, which it is, 

we would also find the issue was waived because of Carter’s failure to meaningfully 

develop the issue. See Pa.R.A.P. 302(a) (stating that issues not raised in the trial 

court are waived and may not be raised for the first time on appeal); 

Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (stating that 

arguments that are not sufficiently developed are waived). No relief is due.

In his fifth claim, Carter argues the court erred and abused its discretion in 

imposing his sentence and by finding he was an SVP. This claim fails.

Carter begins his argument with an assertion that the trial court abused its 

discretion by sentencing him to 84 to 168 months of imprisonment because that 

sentence is excessive for a variety of reasons. However, as the Commonwealth 

points out, this claim is waived because Carter did not include the requisite Pa.R.A.P. 

2119(f) statement in his brief and the Commonwealth explicitly objects to this 

omission. See Commonwealth v. Griffin, 149 A.3d 349. 353 (Pa. Super. 2016) 

(stating that when challenging a discretionary aspect of sentencing, an appellant 

must include a statement pursuant to Pa.R.A.P. 2119(f), and if the Commonwealth 

objects to the appellant’s failure to do so, the sentencing claim is waived for 

purposes of appellate review). 

Carter also claims the trial court erred in determining he is an SVP. 

Specifically, he makes a series of bald allegations: the trial court erred by applying 
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Subchapter I of SORNA II to this case as that violated the ex post facto and due 

process clause of both the state and federal constitutions; the definition of “mental 

abnormality” is unconstitutionally vague; there was not clear and convincing 

evidence that he has any such “mental abnormality”; the expert’s SVP report was 

improper as it was not based on the Static 99-R risk assessment and the expert did 

not interview Carter; and the trial court’s order that Carter be assessed for SVP 

status was untimely and Carter was not provided the assessment in a timely 

manner. These claims fail.

As an initial matter, Carter’s claims are minimally developed, often amounting 

to no more than summary assertions, and are arguably waived for that reason. See 

Love, 896 A.2d at 1287. His final claim, having to do with the timing of the 

assessment order and the receipt of the assessment report, was not one of the 31 

allegations of error included in his Pa.R.A.P. 1925(b) statement, and it is therefore 

waived for that reason. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 

1998). Similarly, as the Commonwealth points out, Carter does not point to the 

place in the record where he objected to the definition of “mental abnormality” as 

unconstitutionally vague before the trial court, and that claim is waived for that 

reason. See Baker, 963 A.2d at 502.

His other assertions are without merit. First, Carter claims the trial court erred 

by applying Subchapter I of SORNA II to him. However, as the trial court repeatedly 

noted in its opinion, Carter committed his offenses after December 20, 2012, and 

therefore Subchapter H is the subchapter that is applicable to him, and the one the 
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trial court applied. See 42 P.a. C.S.A. § 9799.11(c) (providing that Subchapter H 

applies to offenses committed on or after December 2012). Despite the clarity 

provided by the trial court regarding this issue, Carter continues to maintain the trial 

court found him to be an SVP pursuant to Subchapter I. Because this claim continues 

to be “based on incorrect premises,” Commonwealth’s Brief at 31, it affords Carter 

no relief. 

He also claims there was insufficient evidence for the trial court to find he was 

an SVP. This claim is waived, and in any event, meritless.

In order to determine if a defendant is an SVP, the trial court orders an 

assessment to be done by the Sexual Offender Assessment Board (“SOAB”). See

42 Pa.C.S.A. § 9799.24(a); Commonwealth v. Hollingshead, 111 A.3d 186, 189 

(Pa. Super. 2015). At a hearing prior to sentencing, the Commonwealth must prove 

by clear and convincing evidence that the defendant has a mental abnormality or 

personality disorder that makes them likely to engage in predatory sexually violent 

offenses. See 42 Pa. C.S.A. § 9799.24(e), § 9799.12; Hollingshead, 1111 A.3d at 

189. 

Carter’s entire argument regarding this sufficiency claim is that “the record 

falls short of ‘clear and convincing evidence[.]’ [I]ndeed there is no competent 

evidence that (a) [Carter] suffers from any cognizable ‘mental abnormality or 

personality disorder,’ or if he does, that (b) such abnormality ‘makes [Carter] likely 

to engage in predatory sexually violent offenses.’” Appellant’s Brief at 61 (citations 
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and unnecessary parenthesis omitted). Carter’s failure to offer any more than these 

bald assertions renders his claim waived. See Love, 896 A.2d at 1287.

Certainly, these bald assertions do nothing to address the trial court’s 

thorough recitation of the substantial evidence the Commonwealth’s expert 

presented at the SVP hearing, which the court found clearly amounted to clear and 

convincing evidence that Carter is an SVP. The court explained:

The Commonwealth presented the testimony of [SOAB board 

member] Paula Brust (“Brust”) who was admitted without objection as 

an expert. While conducting her evaluation, Brust reviewed the SOAB 

investigator report, the non-response of the defense attorney, the 

criminal informations, police criminal complaints and affidavits as 

specifically set forth in her report, the Exeter Township police report, 

the Luzerne County District Attorney’s police report, the interview with 

[Carter] conducted by [Detective] Balogh and [Officer] Boone, the 

preliminary hearing and the indicated child protect[ive] service 

investigation reports.

Brust spoke in detail regarding the statutory factors that she 

considered in making her assessment. ... She discussed the fact that 

[Carter’s] offenses involved multiple minor victims and that he played 

games that normalized and sexualized his behavior and groomed the 

victims. She said that he frequently discussed penis sizes with the 

victims, asked for explicit photographs, had victims masturbate into 

their hands and push it into other victims’ faces, had the victims pull 

down other victims’ pants so [he] could see their penises. She also 

testified that he made one of the victims perform oral sex on him during 

a truth or dare game. Brust further discussed the importance of the fact 

that [Carter] was in a position of trust with the victims which he altered 

in order to satisfy his own sexual behaviors.

Brust testified that [Carter] met the criteria set forth in the DSM5 for mental abnormality; other specified paraphilic disorder. Regarding 

the likelihood for reoffending, she testified that [Carter] has a sexually 

deviant pathway for offending. She testified that paraphilia is 

characterized by ongoing sexual urges and sexual interest behaviors 

involving nonconsenting persons. She said that [Carter] has an internal 

drive to sexually assault these minors over a lengthy period of time. 

Brust said his other specified paraphilia disorder will cause him to 
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experience an internal drive towards sexually offending and his disorder 

predisposes him towards committing sexual crimes. Further, she 

testified within a reasonable degree of professional certainty that 

[Carter] met the definition for predatory behavior. Also within a 

reasonable degree of professional certainty, Brust testified that [Carter] 

met the statutory criteria to be classified as an SVP. 

Trial Court Opinion, 2/14/2022, at 82-83 (citations to notes of testimony omitted). 

The record supports the court’s summary of the testimony. Given this 

testimony, we can discern no error in the court’s conclusion that the Commonwealth 

established by clear and convincing evidence that Carter is an SVP. See 

Hollingshead, 1111 A.3d at 189 (stating that a reviewing court will affirm an SVP 

designation if it is able to conclude the trial court found clear and convincing 

evidence that the defendant is an SVP). Carter’s undeveloped assertions to the 

contrary do not convince us otherwise. 

We briefly address Carter’s claim that the trial court improperly accepted 

Brust’s evaluation report because she did not interview Carter and because she did 

not use the Static 99-R risk assessment. As for the interview, Brust testified she 

attempted to contact the defense several times about an interview, but when she 

got no response, she conducted the assessment without doing an interview. Once 

she learned that Carter wished to be interviewed, she did interview him, and 

subsequently filed an addendum to her report. See N.T. 6/3/2021, at 10. She 

testified an interview is not necessary to do an SVP assessment, and the assessment 

is often done without interviewing the defendant. See id. at 12. As for the Static 

99-R risk assessment, Brust explicitly testified that this is an instrument used for 

parole board risk assessments, and not for SVP assessments. See id. at 31-34. 
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Based on Brust’s testimony, we agree with the trial court that this claim is without 

merit.

Finally, Carter includes a claim in his statement of questions involved section 

that he is entitled to relief on the basis of the cumulative effect of the trial court’s 

errors. As we have concluded that the trial court did not err, this claim, like all of 

his other claims, warrants no relief. See Commonwealth v. Tedford, 960 A.2d 1, 

56 (Pa. 2008) (citation omitted) (“[N]o number of failed claims may collectively 

warrant relief if they fail to do so individually.”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/10/2023