J-S30028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT LARK, 

Appellant.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3856 EDA 2017

Appeal from the Judgment of Sentence, November 9, 2017,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0120121-1980.

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

MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 19, 2019

Robert Lark appeals from the judgment of sentence imposed following 

his conviction of first-degree murder, kidnapping, possession of an instrument 

of crime (“PIC”), and terroristic threats.

1

 We affirm.

The trial court set forth the relevant factual and procedural history 

underlying this appeal as follows. 

On October 28, 1978, Lark followed [Tae Bong Cho] from a

bank across the street from [Cho’s] restaurant to [Cho’s] home. 

. . . As [Cho] was going up the steps of his house while holding 

his baby and walking with his other young son, [Lark] exited his 

car, went up the steps and pointed a gun at the baby’s head. 

[Lark] threatened [Cho] and robbed him of approximately $5,000. 

[Police apprehended Lark shortly after the robbery, and 

Cho’s money and bank receipts were found in Lark’s vehicle, along 

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1 18 Pa.C.S.A. § 2502(a), 18 Pa.C.S.A. § 2901(a)(4), 18 Pa.C.S.A. § 907(a), 

18 Pa.C.S.A. § 907, 18 Pa.C.S.A. § 2706. 
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with a BB gun which resembled a .45 caliber pistol.] Lark was 

arrested and charged with robbery. [Police brought Lark to the 

police station where he encountered Cho, in the process of 

rendering a police report; Cho immediately identified Lark as the 

robber.] A preliminary hearing was scheduled for February 23, 

1979. On the night before the hearing, a masked man entered 

the restaurant, and shot [Cho] in the head[, killing him.] The 

witnesses were unable to identify the masked man. 

While the robbery case was open, [Lark] made repeated 

threats to Assistant District Attorney Charles Cunningham, [who 

was prosecuting the robbery case against Lark,] both on the 

telephone and in the court house [sic] where [Lark] was scheduled 

for hearings on the robbery [of Cho] and also a completely 

separate [robbery] case. As a result of the threats, 24[-]hour 

police protection was provided to Mr. Cunningham and his family. 

[Despite Cho’s death, the robbery case proceeded to trial in 

1979. After the close of the Commonwealth’s case, Lark failed to 

appear for the remainder of trial, and was convicted of robbery 

and related offenses in absentia.] 

[While a fugitive, Lark] circulated freely and bragged to 

acquaintances that he had murdered [Cho]. Law enforcement 

authorities considered [Lark] to be a prime suspect for the 

murder. [Lark made phone calls to the police homicide unit and 

threatened the officers involved in the murder investigation.] On 

January 9, 1980, police spotted [Lark] in a car in North 

Philadelphia. As police gave chase [Lark] entered the home of 

Sheila Morris . . . and held Ms. Morris and her two children 

hostage. Following a protracted standoff, [Lark] was arrested at 

Ms. Morris’ house[, and charged with murder, terroristic threats, 

kidnapping and related offenses. At the time of his arrest, Lark 

possessed an address book listing an address and telephone 

number for “Cunningham”]. 

Trial Court Opinion, 7/13/18, at 2-3 (citations to the record omitted); see 

also Commonwealth v. Lark, 543 A.2d 491, 492-95 (Pa. 1988).

Lark’s first murder trial ended in a mistrial in 1981. Following a second 

trial in 1985, Lark was convicted of first-degree murder and sentenced to 
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death. Our Supreme Court affirmed his judgment of sentence. Lark, 543 

A.2d at 502. Lark’s petitions for post-conviction collateral relief were 

unsuccessful. See Commonwealth v. Lark, 698 A.2d 43 (Pa. 1997), and 

Commonwealth v. Lark, 746 a.2d 585 (Pa. 2000). However, in 2012, the 

United States District Court for the Eastern District of Pennsylvania ordered a 

new trial for Lark pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), on 

the grounds of racial discrimination in the jury selection. See Lark v. Beard, 

2012 U.S. Dist. LEXIS 105710 (E.D. Pa. July, 30, 2012). 

Following a third trial conducted in 2017, a jury convicted Lark of firstdegree murder, kidnapping, PIC, and terroristic threats, as indicated above. 

On November 9, 2017, the trial court sentenced him to life imprisonment, 

followed by twenty-two and one-half to forty-five years of incarceration. Lark 

filed a timely notice of appeal. Both Lark and the trial court complied with 

Pa.R.A.P. 1925. 

Lark raises the following issues for our review:

1. Did the lower court err in admitting the former testimony of 

numerous Commonwealth witnesses where [Lark] had been 

deprived of a right to full and fair cross-examination at the prior 

proceeding due to the Commonwealth’s failure to disclose 

police activity sheets relating to the investigation when they 

were requested by [Lark]?

2. Did the lower court err in admitting evidence of threats made 

to prosecution witness [ADA] Cunningham on June 11, 1981 

when said threats were not listed on the bills of information 

and had no relevance with respect to any of the enumerated 

charges?
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3. Did the lower court err in permitting the Commonwealth to 

introduce [Lark’s] wedding photo and to use the photograph in 

closing argument?

4. Did the lower court err in refusing to permit defense counsel to 

question potential jurors during voir dire regarding the fact that 

the allegations in the case would involve the murder of a 

Commonwealth witness?

5. Did the lower court err when it refused to permit the defense 

to tell jurors in voir dire that it vigorously contested the 

charges?

6. Did the lower court err in precluding [Lark] from crossexamining the assigned detective, [Lawrence] Gerrard, 

regarding a prior incident in which he was found by the 

Superior Court to have improperly induced a criminal 

defendant into confessing?

7. Did the lower court err in precluding [Lark] from crossexamining Det. Gerrard as to whether promises had been made 

to the Commonwealth witnesses in the instant case?

8. Did the lower court err in denying [Lark’s] request for a mistrial

when the Commonwealth elicited testimony that [Lark’s] 

sentencing on June 11, 1981 was for a separate robbery

unrelated to the charges in question?

9. Did the lower court err in denying [Lark’s] request for a mistrial 

after Commonwealth witness [ADA] Cunningham informed the 

jury that the “prior proceeding” regarding the instant case was 

in fact a trial?

10. Did the trial court err in denying [Lark’s] request for a 

mistrial after the prosecutor’s closing argument improperly 

asked the jury to draw a negative inference against [Lark] 

because [Lark] did not present his nephew as a witness? 

11. Did the trial court err in denying [Lark’s] request for a 

mistrial after the prosecutor’s closing argument improperly 

referred to the inadmissible hearsay of Muriel Jackson?

Lark’s Brief at 2-3. 
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Lark’s first three issues implicate the trial court’s authority to admit or 

exclude evidence. Our standard of review concerning the admissibility of 

evidence is well-settled:

The admission of evidence is solely within the discretion of the

trial court, and a trial court’s evidentiary rulings will be reversed

on appeal only upon an abuse of that discretion. An abuse of

discretion will not be found based on a mere error of judgment,

but rather occurs where the court has reached a conclusion that

overrides or misapplies the law, or where the judgment exercised

is manifestly unreasonable, or the result of partiality, prejudice,

bias or ill-will.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015). 

In his first issue, Lark challenges the admission of the prior testimony 

of Commonwealth witnesses who testified at his first or second trial, but were 

deceased at the time of his 2017 trial, and hence “unavailable.” Lark’s Brief 

at 16. Under Pennsylvania law, the former testimony of a witness in a criminal 

proceeding who has since died is competent evidence admissible in a 

subsequent trial of the same criminal issue:

Whenever any person has been examined as a witness, either for 

the Commonwealth or for the defense, in any criminal proceeding 

conducted in or before a court of record, and the defendant has 

been present and has had an opportunity to examine or crossexamine, if such witness afterwards dies, or is out of the 

jurisdiction so that he cannot be effectively served with a 

subpoena, or if he cannot be found, or if he becomes incompetent 

to testify for any legally sufficient reason properly proven, notes 

of his examination shall be competent evidence upon a 

subsequent trial of the same criminal issue. For the purpose of 

contradicting a witness the testimony given by him in another or 

in a former proceeding may be orally proved.

42 Pa.C.S.A. § 5917; see also Pa.R.E. 804.1.
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Initially, we observe that Lark has not identified any particular 

Commonwealth witness whose prior testimony was introduced at his 2017 

trial. Nor has he identified the place in the record where any such testimony 

was admitted. See Pa.R.A.P. 2119(c) (providing that “[i]f reference is made 

to the pleadings, evidence, charge, opinion or order, or any other matter 

appearing in the record, the argument must set forth, in immediate connection 

therewith, or in a footnote thereto, a reference to the place in the record where 

the matter referred to appears”); see also Pa.R.A.P. 2132. While we could 

find waiver on this basis, we decline to do so. 

Moreover, Lark’s assertion is at odds with our Supreme Court’s 

observation that Lark not only had the opportunity to cross-examine the 

Commonwealth’s witnesses at his prior trials, but did, in fact, do so: “the 

credibility of most of the Commonwealth’s witnesses was challenged by [Lark]

whose attorney brought out on cross-examination that they were 

themselves incarcerated or being prosecuted by the Commonwealth and 

expected to receive favorable treatment and/or the Commonwealth’s 

cooperation in exchange for their in-court testimony.” Lark, 543 A.2d at 499 

(emphasis added).2 

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2

In response to Lark’s argument, the Commonwealth points us to the specific 

places in the certified record where the prior testimony of certain 

Commonwealth witnesses was read into the record at Lark’s 2017 trial, and 

to the portions of those transcripts where Lark’s prior counsel cross-examined 

those witnesses. See Commonwealth’s Brief at 18-19.
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Nevertheless, Lark maintains that he “was deprived of the potentially 

vital impeachment evidence” contained in fourteen boxes of police activity 

sheets, and therefore denied a full and fair opportunity to cross-examine the 

unavailable witnesses. Lark’s Brief at 17. Lark claims that he requested the 

police activity sheets in advance of his 1985 trial, but the Commonwealth 

successfully objected to the production of those documents on the basis that 

the request was too onerous. Id. On the theory that the now-missing police 

activity sheets may have contained summaries of statements made by the 

unavailable Commonwealth witnesses, Lark asserts that he is entitled to a new 

trial. Id.

Additionally, while Lark characterizes the missing police activity sheets 

as containing “potentially vital impeachment evidence,” the record suggests 

otherwise. Lieutenant William Shelton testified in connection with Lark’s 1985

trial that the activity sheets were solely for internal police “administrative 

purposes” to indicate “where and what . . . detectives did at a certain time 

and a certain date” and “ha[d] nothing to do with the statements of any 

witnesses.” N.T. Trial, 6/25/85, at 104, 142. Lieutenant Shelton further 

testified that the activity sheets are “not part of the case and . . . not submitted 

to the district attorney’s office.” Id. at 104.

Moreover, at the October 2, 2017 hearing on the Commonwealth’s 

motion to admit the prior testimony of unavailable witnesses, the prosecutor 

explained that each of the witnesses was deceased, the defense had been 
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provided with their statements prior to the first trial, and that Lark’s counsel 

had extensively cross-examined each of the witnesses at trial. N.T. Trial, 

10/2/17, at 7-8. The prosecutor further explained that, at the time of the 

homicide investigation, records were kept differently, and that the activity 

sheets were not limited to one case; rather, “they would keep a running 

activity sheet pretty much of homicide.” Id. at 11. Thus, she explained, it 

was unclear as to how much of the fourteen boxes of activity sheets would 

have been pertinent to Lark’s case.3 Id. Finally, she indicated that Lark’s 

prior counsel had been given the opportunity to review the police activity 

sheets. Id. at 10. 

We find Lark’s argument is specious, at best. The trial court was 

presented with evidence that Lark’s prior counsel had viewed at least some of 

the police activity reports. The mere possibility that the remaining 

administrative police activity reports might have contained summaries of 

statements provided by those witnesses which might have differed from their 

actual statements is highly speculative, and falls short of demonstrating that 

Lark was prejudiced by the absence of those reports.

4

 Based on the record 

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3 Lieutenant Shelton expressed similar concerns when he testified that it would 

take him “days” to go through the boxes of police activity sheets and delete 

out everything unrelated to Lark’s case. N.T. Trial, 6/25/85, at 142.

4 Lark’s reliance on Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992), 

and Commonwealth v. Johnson, 758 A.2d 166 (Pa. Super. 2000), is 

unavailing, as those cases are factually and legally distinguishable from the 
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before us, we discern no abuse of discretion by the trial court in admitting the 

prior testimony of Commonwealth witnesses who had died or otherwise 

become unavailable in the thirty-year period since Lark’s second trial. 

Accordingly, Lark’s first claim merits no relief.

In his second issue, Lark contends that the trial court abused its 

discretion by admitting irrelevant evidence of threats that Lark made to ADA 

Cunningham during his June 11, 1981 sentencing hearing. “Relevance is the 

threshold for admissibility of evidence.” Commonwealth v. Tyson, 119 A.3d 

353, 358 (Pa. Super. 2015); see also Pa.R.E. 402. “Evidence is relevant if it 

has any tendency to make a fact more or less probable than it would be 

without the evidence[,] and the fact is of consequence in determining the 

action.” Pa.R.E. 401; see also Tyson, supra at 358 (stating that “[e]vidence

is relevant if it logically tends to establish a material fact in the case, tends to 

make a fact at issue more or less probable or supports a reasonable inference 

or presumption regarding a material fact.”). “Evidence that is not relevant is 

not admissible.” Pa.R.E. 402. In addition, “[t]he court may exclude relevant 

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case sub judice. In Bazemore, our Supreme Court held that the defendant 

was denied a full and fair opportunity to cross-examine the unavailable 

witness at the prior proceeding because the Commonwealth failed to provide 

the witness’s prior inconsistent statement to the defense. 614 A.2d at 687. 

In Johnson, a panel of this Court concluded that the defendant was denied a 

full and fair opportunity to cross-examine an unavailable witness due to the 

Commonwealth’s failure to disclose the witness’s prior inconsistent statement. 

758 A.2d at 172. Here, there is simply no evidence that the Commonwealth 

withheld from Lark any inconsistent statement by any witness.
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evidence if its probative value is outweighed by a danger of one or more of 

the following: unfair prejudice, confusing the issues, misleading the jury, 

undue delay, wasting time, or needlessly presenting cumulative evidence.” 

Pa.R.E. 403.

Further, Pa.R.E. 404(b) prohibits the admission of prior crimes, wrongs 

or acts “to prove a person’s character in order to show that on a particular 

occasion the person acted in accordance with the character.” Pa.R.E. 

404(b)(1). However, such evidence may be admissible for other purposes, 

“such as proving motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2); see 

also Commonwealth v. Drumheller, 808 A.2d 893, 905 (Pa. 2002) (holding 

that courts will allow evidence of prior bad acts where the distinct crime or 

bad act was part of a chain or sequence of events which formed the history of 

the case and was part of its natural development). In a criminal case this 

evidence is admissible only if the probative value of the evidence outweighs 

its potential for unfair prejudice. Pa.R.E. 404(b)(2).

Accordingly to Lark, the criminal information charged him with one count 

of terroristic threats based on threats that Lark made to ADA Cunningham via 

telephone on November 26, 1979. In light of this single charge, Lark claims 

that the threats he later made to ADA Cunningham at his sentencing hearing 

on June 11, 1981, were not relevant. Additionally, characterizing the threats 

he made at the sentencing hearing as prior bad acts evidence, Lark argues 
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that “the prejudice resulting from this testimony clearly outweighed the 

negligible value of the evidence.” Lark’s Brief at 18. On this basis, Lark 

asserts that he is entitled to a new trial. 

In its Pa.R.A.P. 1925(a) opinion, the trial court explained that the 

threats Lark made to ADA Cunningham at the sentencing hearing were

admissible to show Lark’s consciousness of guilt and to explain the history of 

the case and natural development of facts. Trial Court Opinion, 7/13/18, at 

8. We find no abuse of discretion in the trial court’s determination. 

At the sentencing hearing conducted on June 11, 1981, Lark made a 

gun-shooting gesture at ADA Cunningham and stated, “All I know is I don’t 

get mad. I get even.” N.T. Trial, 10/19/17, at 178. Lark additionally stated 

aloud, “If anything should happen to Mr. Campolongo [the homicide 

prosecutor] or Mr. Cunningham, then try to locate me.” Id. at 179-82. In a 

lowered voice, Lark then said to ADA Cunningham, “I hope you’re having fun 

now because later I would be having my fun. I’ll get you point[-]blank. No 

misery. I will get you point[-]blank.” Id. at 183. 

The record further demonstrates that Lark told several individuals that 

he murdered Cho because he was going to testify against Lark at the 

preliminary hearing for the robbery offense.5 Lark also threatened numerous 

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5 See N.T. Trial, 10/24/17, at 22 (establishing that Lark told Michael Johnson 

that he killed the Korean shop owner); N.T. Trial, 10/24/17, at 47-48 

(establishing that Lark boasted to Benjamin Smith that he “croaked” the 
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other individuals connected with his prosecution, or to whom he had admitted 

his guilt.6 

Notably, on appeal of Lark’s 1985 convictions, our Supreme Court

determined that Lark’s threats to ADA Cunningham were relevant to show

motive, intent, identity, the natural development of the case, and to complete 

the story.

7 The Court stated:

The circumstantial evidence introduced by the Commonwealth 

included admissions of the murder made by [Lark] to various 

others and several threats to others to kill them as he did “the 

Korean.” Such admissions and threats were strong evidence 

against [Lark], but the credibility of most of the Commonwealth’s 

witnesses was challenged by [Lark.] . . . Thus, the evidence of 

the terroristic threats made to Assistant District Attorney 

____________________________________________

Korean who was a witness against him in a case); N.T. Trial, 10/20/17, at 70-

72, 100-102 (establishing that Lark confessed to Nate Smith that he shot the 

Korean in the face shortly before closing, and that had to kill him because he 

was the only witness against him in a robbery case); N.T. Trial, 10/19/17, at 

77-84 (establishing that Lark told Hozell Odom that he was doing “pretty 

good” in his robbery case with the Korean, “but I had to kill him”).

6 See N.T. Trial, 10/27/17, at 6-10 (establishing that Lark called the police 

homicide unit and threatened to kill the detectives in charge of the murder 

investigation, noting “You better keep looking over your shoulder. I can pick 

you off at any time I want”); N.T. Trial, 10/24/17, at 47-48 (establishing that 

Lark told Benjamin Smith that “from now, anybody a witness against me, I’m 

going to kill them”); Id. at 73-74 (establishing that Lark sent a letter to 

Benjamin Smith’s common-law wife stating that she should persuade Smith 

not to testify against Lark, and that if she was unsuccessful, she should “move 

right away,” intimating that he would kill Smith, his children and relatives); 

N.T. Trial 10/23/17, at 217-18 (where Lark accused Michael Johnson of theft, 

and threatened to “take care of him like he had done the Korean” unless the 

items were returned).

7 The issue arose in connection with Lark’s challenge to the trial court’s denial 

of Lark’s motion to sever the murder, kidnapping and terroristic threats

offenses prior to his 1985 trial.
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Cunningham provided a critical link in the Commonwealth’s chain 

of evidence introduced to establish the identity of the killer. The 

fact that [Lark] murdered the principle witness to a robbery, i.e. 

the robbery victim himself, and then threatened the 

Commonwealth’s prosecutor in the same robbery case (threats 

which he was quite capable of, and took steps to carry out), was 

more than mere coincidence. It was in fact, a common and a 

chronic pattern with [Lark] to threaten to eliminate, and in one 

case actually eliminate, those who stood in his way. The murder 

of . . . Cho was not an isolated incident but was a critical link in 

the chain of evidence, along with the other links of threats, 

intimidation and related criminal activity which began with the first 

link, the robbery of . . . Cho, and ended with the last link, the 

kidnapping wherein [Lark] held a woman and children hostage and 

threatened to kill the police as he had “the chinkee m___ f___.”

The four princip[al] crimes (robbery, murder, terroristic threats 

and kidnapping) involved in this case were all linked together, 

along with the other threats and intimidation, and presented a 

clear picture of [Lark’s] pattern of destruction and intimidation of 

the participants in the criminal justice system.

The terroristic threats against Mr. Cunningham . . . were clearly 

relevant to shed light on [Lark’s] motive and intent in murdering 

Mr. Cho, in establishing his identity by showing a logical 

connection between the crimes and a common and off-repeated 

pattern of [Lark], and, importantly in this unique case, to show 

the natural development of the case and to complete the story.

Lark, 543 A.2d at 499.

As indicated by our Supreme Court, Lark’s threats against ADA 

Cunningham, including those made at the June 11, 1981 sentencing hearing,

were relevant to show the chain or sequence of events that formed the history 

of the case, and demonstrate Lark’s motive, malice, intent, and ill-will toward 

ADA Cunningham and other individuals who were involved in his criminal 

prosecutions or who possessed incriminating information that could be used 

against him, including Cho. Accordingly, as we discern no abuse of discretion 
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by the trial court in its implicit finding that the probative value of the June 11, 

1981 threats outweighed their prejudicial impact, no relief is due.

In his third issue, Lark contends that the trial court abused its discretion

in admitting Cho’s wedding photograph. The admission of photographs is a 

matter vested within the sound discretion of the trial court. Commonwealth

v. Smyrnes, 154 A.3d 741, 754 (Pa. 2017). Nevertheless, our Supreme 

Court has disapproved of the use of a live-victim photograph to demonstrate 

that a victim was a life in being where such element is uncontested in a murder 

case.8 Id. (stating “we caution the Commonwealth concerning the value of 

restraint in scenarios involving potential prejudice connected with such nonessential evidence”). In limited circumstances, such as where the victim’s 

character or physical abilities are called into question, or the Commonwealth 

has established a plausible basis for relevance, the trial court may act within 

its discretion in permitting limited use of such a photograph at trial. Id. at 

754-55; see also Commonwealth v. Rivers, 644 A.2d 710, 716 (Pa. 1994).

According to Lark, the trial court erred by allowing the Commonwealth 

to introduce Cho’s wedding photograph during the questioning of a witness, 

and to display the photograph during the prosecutor’s closing argument. Lark 

maintains that the trial court initially admitted the photo to show the likeness 

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8 “Life-in-being” evidence is proffered to show that the victim was alive at a 

time prior to the murder, and thus is relevant to the first element of a murder,

i.e., that a human being was unlawfully killed. See Commonwealth v.

Miller, 746 A.2d 592, 602 (Pa. 2000)
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of Cho in his lifetime; however, the following day when Lark moved for a 

mistrial, the trial court indicated that the photo was admissible to establish 

that Cho was Korean, and to show his height and weight. Lark argues that, 

while the photo shows an Asian male, there is nothing in the photo to indicate 

that Cho was Korean. Lark further argues that there was no way to assess 

Cho’s height based on the photograph. Lark additionally claims that Cho’s 

height and weight were established by the medical examiner. Finally, he 

asserts that Cho’s Korean ethnicity was not in dispute, and was referenced by 

several witnesses. On this basis, Lark contends that he is entitled to a new 

trial because the admission of the photo was “nothing more than a pretext by 

the Commonwealth to play to the sympathy of the jury through the 

introduction of irrelevant and highly prejudicial evidence.” Lark’s Brief at 19. 

The trial court explained the basis for its evidentiary ruling as follows: 

“[t]he use of the wedding photograph was proper to show the identity of the 

deceased and that he was a life in being . . . [it] was not unduly prejudicial 

and did not deprive [Lark] of his right to a fair trial.” Trial Court Opinion, 

7/13/18, at 11. 

In our view, it does not appear that there was any question that Cho 

was a life in being up until his murder the day before Lark’s preliminary 

hearing, at which Cho was scheduled to testify. Moreover, Cho’s existence as

a life in being was established by the medical examiner’s testimony that his

death resulted from a gunshot wound to the head, and that he died
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approximately two hours after he was shot. See N.T. Trial, 10/18/17, at 113,

117. Thus, the Commonwealth did not need Cho’s wedding photograph to

establish this fact. Rivers, 644 A.2d at 716. 

Nevertheless, the Commonwealth argues that the photograph was

admissible under Smyrnes because numerous witnesses knew Cho only as 

“the Korean,” and the photograph was relevant to show his Korean ethnicity, 

as well as his height relative to the height of the shooter. Commonwealth’s 

Brief at 28. The Commonwealth also claims that it “did not present testimony 

from [Cho’s] wife or children about their lives together or any aspect of [Cho’s] 

life,” and made limited use of the photograph “showing it to one witness and 

displaying it briefly in closing argument.” Id. at 29, 30. 

The Commonwealth’s argument bears some legitimacy, given that 

several of the Commonwealth witnesses did, in fact, refer to Cho only as “the 

Korean.” However, based on the record before us, it does not appear that 

Cho’s Korean heritage was ever questioned during the murder trial. Further, 

the medical examiner testified as to Cho’s height. See N.T. Trial, 10/18/17, 

at 112. Thus, we are unconvinced that the photograph was necessary to prove 

Cho’s height or that Cho was of Korean descent.9 

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9 Moreover, had a photograph been necessary, we note that the 

Commonwealth should have used a photo of Cho alone, rather than a 

sentimental portrait of Cho with his bride, in formal wedding attire, on their 

wedding day. See Commonwealth v. Blystone, 549 A.2d 81, 90 (Pa. 1988) 

(holding that “[e]vidence which has the effect of arousing sympathy for a 
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However, even assuming that the trial court abused its discretion in

admitting the photo, our inquiry does not end here. The question remains as

to whether the error in admitting the photograph was harmless beyond a

reasonable doubt. Story, 383 A.2d at 164. Harmless error exists if the 

Commonwealth proves either: (1) the error did not prejudice the defendant 

or the prejudice was de minimis; (2) the erroneously admitted evidence was 

merely cumulative of other untainted evidence which was substantially similar 

to the erroneously admitted evidence; or (3) the properly admitted and

uncontradicted evidence of guilt was so overwhelming and the prejudicial 

effect of the error was so insignificant by comparison that the error could not 

have contributed to the verdict. Commonwealth v. Fulton, 179 A.3d 475, 

493 (Pa. 2018).

Our review of the record reflects that the uncontradicted evidence of 

Lark’s guilt was so overwhelming, and the prejudicial effect of the photograph

so insignificant by comparison, that it is clear beyond a reasonable doubt that 

the error could not have contributed to the verdict. Fulton, supra at 493. 

Additionally, the Commonwealth’s use of the photo was limited; the 

prosecutor showed the photo to one witness, and briefly displayed it during 

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crime victim is prejudicial and inadmissible when otherwise irrelevant”); 

Commonwealth v. Story, 383 A.2d 155, 159 (Pa. 1978) (holding that 

“evidence of the victim’s family life and the photographs of the victim with his 

daughter shed absolutely no light on the criminal episode which resulted in 

[the victim’s] death”).
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his closing argument. See Commonwealth’s Brief at 29. Additionally, the 

Commonwealth did not present testimony from Cho’s wife or children about 

their lives together, or any other aspect of Cho’s life. Id. at 30. Compare 

Story, supra (granting a new trial where the prosecution presented extensive

emotional testimony about the victim, his life, professional reputation, family, 

disabled daughter, the fact that his widow had to go back to work after his 

death, and two photographs of the victim and his daughter on a family 

vacation, all of which was irrelevant to the question of guilt, and prejudiced 

appellant by creating sympathy for the victim and his family). Accordingly, 

we conclude that any error here was harmless beyond a reasonable doubt, 

and Lark is not entitled to relief on this claim. See Commonwealth v. 

Green, 162 A.2d 509, 519 (Pa. Super. 2017) (en banc) (“Not all errors at trial 

. . . entitle an appellant to a new trial, and the harmless error doctrine, as 

adopted in Pennsylvania, reflects the reality that an accused is entitled to a 

fair trial, not a perfect trial.” (citation omitted)).

Lark’s fourth and fifth issues challenge the trial court’s administration of 

voir dire questioning. In assessing these claims, we are guided by the 

following standard of review.

The scope of voir dire rests in the sound discretion of the trial 

court, whose decision will not be reversed on appeal absent 

palpable error. The purpose of voir dire is to ensure the 

empaneling of a competent, fair, impartial, and unprejudiced jury.

The scope of voir dire should therefore be limited to questions that 

attempt to disclose a potential juror’s lack of qualification or fixed 

opinion regarding the defendant’s guilt or innocence. A 

prospective juror’s personal views are of no moment absent a 
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showing that these opinions are so deeply embedded as to render 

that person incapable of accepting and applying the law as given 

by the court.

Commonwealth v. Scott, 2019 Pa. Super. LEXIS 573, *11 (Pa. Super. 2019) 

(quoting Commonwealth v. Karenbauer, 715 A.2d 1086, 1094 (Pa. 1998) 

(internal citations and quotation marks omitted)). While the parties are 

permitted to supplement the trial court’s voir dire examination, this grant is 

not unrestricted but rather is subject to limitations as the court deems proper. 

Commonwealth v. Ellison, 902 A.2d 419, 427 (Pa. 2006).

In his fourth issue, Lark contends that the trial court abused its 

discretion by refusing Lark’s request to voir dire potential jurors as to “whether 

the fact that the case involved the alleged murder of a Commonwealth witness 

would affect their ability to be fair.” Lark’s Brief at 21. While Lark concedes

that the trial court explained Cho’s role as a witness in general voir dire, he 

complains that “at no time were jurors asked if they could be fair in a case 

involving the alleged killing of a witness.” Id. Lark claims that his request 

was not an effort to learn what the prospective jurors’ decisions would be 

when confronted with that question. Id. Rather, he maintains, he “merely 

sought to identify potential jurors who would fail to keep an open mind or 

consider any additional evidence and instead automatically vote for death 

upon learning of this fact.” Id. 

In his argument, Lark relies on the United States Supreme Court’s

decision in Morgan v. Illinois, 504 U.S. 719 (1992), where the High Court
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held that during voir dire in a capital case, a trial court may not, without

violating the Due Process Clause of the 14th Amendment, refuse questioning

regarding whether a juror would automatically impose a death sentence

following a first degree murder conviction. In explaining its rationale, the

Court stated:

[T]he belief that death should be imposed ipso facto upon

conviction of a capital offense reflects directly on that individual’s

inability to follow the law. Any juror who would impose death

regardless of the facts and circumstances of conviction cannot

follow the dictates of law. It may be that a juror could, in good

conscience, swear to uphold the law and yet be unaware that

maintaining such dogmatic beliefs about the death penalty would

prevent him or her from doing so. A defendant on trial for his life

must be permitted on voir dire to ascertain whether his

prospective jurors function under such misconception.

Id. at 735-36 (footnote and internal citations omitted).

Here, the specific voir dire question requested by Lark did not include 

any inquiry as to whether a juror would automatically impose a death sentence

following a first degree murder conviction. Instead, the proposed voir dire

question merely sought to ascertain whether the jurors could be fair and

impartial: “It is alleged that the murder victim in this case, . . . Cho, was a

Commonwealth witness in [Lark’s] robbery case. Would the fact that the

allegations concern the alleged killing of a witness prevent you from being a

fair and impartial juror?” N.T. Trial, 10/2/17, at 4. As Lark’s proposed voir

dire question was not designed to identify jurors who would impose death

regardless of the facts and circumstances of conviction, Morgan v. Illinois

does not apply. 
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Moreover, the trial court determined that the requested voir dire

question was unnecessary, and explained its reasoning as follows:

Prior to the submission of the juror questionnaire forms and the 

individual questioning of the prospective jurors, the court advised 

the jury venire that the “Commonwealth alleges that [Cho] was 

scheduled to testify the next morning at a preliminary hearing in 

a case wherein [Lark] is alleged to have robbed [Cho] on an earlier 

occasion.” Through the jury questionnaire forms and the 

individual questioning, each prospective juror was repeatedly 

asked whether she or he could be fair and impartial.

Trial Court Opinion, 7/13/18, at 7 (citations to the record omitted). 

Given that the trial court had already explained Cho’s role as a witness 

and questioned each juror as to his or her ability to be fair and impartial, we 

discern no abuse of discretion in its decision to disallow Lark’s proposed voir 

dire question. Accordingly, his fourth issue entitles him to no relief. 

In his fifth issue, Lark contends that the trial court abused its discretion

by sustaining the Commonwealth’s objection to the following comment by

defense counsel to the first venireperson: “let me say we vigorously contest

these allegations, but the law requires me to ask some questions about [the

penalty] phase of the case.” N.T. Trial, 10/2/17, at 60. Lark intended to

make the same statement to the remaining venirepersons, and claims that

the trial court’s ruling “deprived [him] of the ability to explain to prospective

jurors that although [Lark’s counsel] was asking questions regarding the

penalty phase, he was in no way conceding the Commonwealth’s allegations

in the guilt phase.” Lark’s Brief at 22. Lark argues that he was prejudiced by

the trial court’s ruling “since it, in essence, left prospective jurors with the
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impression that the Commonwealth had already met their burden with respect

to the charges in question. Id. 

Here, the trial court specifically instructed the first venire panel not to

infer guilt on the basis that penalty phase issues were being discussed: “I

need you to understand that just because I am discussing the death penalty

and that I soon will be asking you questions about the sentence of death or

the sentence of life in prison without parole, that does not mean that [Lark]

is guilty of first-degree murder.” N.T. Trial, 10/2/17, at 47; see also id. at

62. The trial court similarly instructed the ensuing four venire panels. See

N.T. Trial, 10/3/17, at 22; N.T. Trial, 10/4/17, at 23-24; N.T. Trial, 10/10/17,

at 23; N.T. Trial, 10/11/17, at 19-20. Moreover, the trial court determined

that defense counsel’s comment was irrelevant, since “[w]hether or not an

accused vigorously contends a case is not relevant to the selection of a jury.” 

Trial Court Opinion, 7/13/18, at 7. Under these circumstances, no discretion 

was abused. 

As we previously explained, the purpose of voir dire is to ensure the 

empaneling of a competent, fair, impartial, and unprejudiced jury. Scott, 

2019 Pa. Super. LEXIS 573, at *11. Accordingly, the scope of voir dire is

limited to questions that attempt to disclose a potential juror’s lack of 

qualification or fixed opinion regarding the defendant’s guilt or innocence. Id. 

To this end, questions on voir dire encompassing legal principles such as the 

presumption of innocence are improper. Commonwealth v. Bethea, 185 
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A.3d 364, 372 (Pa. Super. 2018) (holding that counsel’s reminder to the jury 

during voir dire that the defendant is an innocent man was beyond the scope 

and purpose of voir dire). As defense counsel’s comment was unrelated to 

the discrete purpose of voir dire, we discern no abuse of discretion by the trial 

court in sustaining the Commonwealth’s objection. Accordingly, his fifth issue 

merits no relief. 

As Lark’s sixth and seventh issues are interrelated, we will address them 

together. These issues concern the trial court’s authority to limit the scope of 

cross-examination of witnesses at trial. The scope of cross-examination is a 

matter within the discretion of the trial court and will not be reversed absent 

an abuse of that discretion. Commonwealth v. Ballard, 80 A.3d 380, 394 

(Pa. 2013).

Lark asserts that the trial court abused its discretion by prohibiting the 

defense from cross-examining Detective Gerrard regarding his actions in the 

unrelated case of Commonwealth v. Lester, 572 A.2d 694 (Pa. Super. 

1990). That case involved a “sex for lies” scandal where police allegedly 

promised Lester, a prisoner, sexual encounters with his wife and his lovers in 

exchange for his cooperation and confession in a murder investigation. At a 

hearing on post-verdict motions, three women testified that that they went to 

the police administration building, met with Detective Gerrard and/or another 

detective, signed the log book, and were escorted to Lester’s room, where 

they had sexual intercourse with him. Id. at 697. Although Detective Gerard 
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testified somewhat differently, the Commonwealth conceded that the sexual 

encounters had occurred. Id. This Court ruled that Lester was coerced into 

giving his confession by the police’s offer of future sexual gratification, and 

that he was denied effective assistance because his counsel failed to introduce 

evidence of the sexual conduct at the suppression hearing. Notably, the 

Lester Court made no finding of wrongdoing on the part of Detective Gerrard, 

nor did it indicate whether his actions resulted in charges or disciplinary 

proceedings.

Lark wanted to cross-examine Detective Gerrard regarding the “sex for 

lies” scandal at issue in Lester. Lark maintains that several Commonwealth 

witnesses indicated on cross–examination that they had agreed to police 

questioning out of fear, or that they were either on parole, had open charges 

pending at the time police questioned them, or had prior crimen falsi

convictions. Lark’s Brief at 24-26. Lark demonstrated that three of those 

witnesses were shown leniency in their own criminal cases after providing 

statements implicating Lark in Cho’s murder or testifying against him. Id. at 

25-26. Lark asserts that he should have been permitted to cross-examine 

Detective Gerrard, as the lead detective in the homicide investigation, 

regarding any promises that were made to these witnesses. Id. at 26. Lark 

believes his inability to pursue this “vital line of impeachment” warrants a new 

trial. Id. at 24. 
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The trial court explained the basis for its decision to deny crossexamination of Detective Gerrard regarding his involvement in Lester, as 

follows:

The alleged sexual misconduct by police in Lester occurred after 

the instant case. In the instant case, the murder occurred in 

1979. [Lark] was arrested in 1980. His first trial occurred in 

1981. In Lester, the defendant was transferred from [f]ederal

custody to the Philadelphia police in 1983. The Lester matter was 

not relevant in testing the credibility of Detective Gerrard in the 

instant matter. In the instant case, Detective Gerrard obtained 

statements from witnesses. Lester involved a confession by the 

accused. The Lester allegations are of no consequence in 

determining the instant case. Whatever relevance the Lester

allegations might have had was outweighed by the danger of 

confusing the issues and misleading the jury. 

Trial Court Opinion, 7/13/18, at 14-15 (internal citations omitted).

We discern no abuse of discretion in the trial court’s ruling. The Lester

matter occurred two years after Lark’s first trial. There is no indication in the 

record that any of the Commonwealth witnesses were offered sex by Detective 

Gerrard in exchange for testimony against Lark. Thus, the Lester matter was 

of limited relevance, and cross-examination of Detective Gerrard as to the 

sex-for-lies scandal presented the danger of confusing the issues and 

misleading the jury. Moreover, Lark was permitted to, and did, cross examine 

each of the Commonwealth witnesses regarding his or her motives to provide 

false testimony in exchange for leniency from the Commonwealth. See Lark, 

543 A.2d at 499. Accordingly, no relief is due on Lark’s sixth and seventh 

issues.
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Lark’s remaining claims pertain to the trial court’s denial of his requests 

for a mistrial. Our standard of review in assessing the denial of a mistrial is 

as follows:

The trial court is in the best position to assess the effect of an 

allegedly prejudicial statement on the jury, and as such, the grant 

or denial of a mistrial will not be overturned absent an abuse of 

discretion. A mistrial may be granted only where the incident

upon which the motion is based is of such a nature that its

unavoidable effect is to deprive the defendant of a fair trial by

preventing the jury from weighing and rendering a true verdict.

Commonwealth v. Johnson, 107 A.3d 52, 77 (Pa. 2014).

In his eighth issue, Lark contends that the trial court abused its 

discretion by denying his request for a mistrial when the Commonwealth 

elicited testimony that Lark’s sentencing on June 11, 1981, was for a separate 

robbery unrelated to the charges in question. Lark’s Brief at 27. Lark 

concedes that “[the defense] and the Commonwealth had agreed that the 

June 11, 1981 sentencing would be referred to as a sentencing on an unrelated 

robbery in order to minimize any prejudice from this evidence of other crime.” 

Id. at 28. However, he claims that the Commonwealth violated the 

agreement, thereby warranting a new trial.

Here, the parties endeavored to minimize the prejudice associated with 

the anticipated disclosure to the jury that, when Lark made the additional 

threats to ADA Cunningham, he was being sentenced for a second robbery 

conviction (unrelated to his conviction for robbing Cho). They agreed that 

when referencing the threats that Lark’s made to ADA Cunningham at the 
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June 11, 1981 sentencing hearing, they would refer to that proceeding as 

Lark’s sentencing on “an unrelated robbery conviction.” N.T. 10/19/17, at 

121. The jury subsequently heard testimony that Lark had been convicted of 

robbing Cho. N.T. Trial, 10/19/17, at 146. Without objection, the prosecutor 

thereafter referred to the June 11, 1981 sentencing hearing as “an-unrelated–

to-this-robbery sentencing proceeding.” Id. at 171. However, when the 

prosecutor later stated “[t]his proceeding, so there is no confusion, this was 

not a sentencing on the robbery of . . . Cho[,]” Lark’s counsel objected and 

moved for a mistrial. Id. at 173, 175. 

We discern no abuse of discretion by the trial court in denying the 

request for a mistrial. Implicit in the parties’ agreement that they would refer 

to the June 11, 1981 sentencing hearing as sentencing for “an unrelated 

robbery conviction” is the notion that Lark had been convicted of a separate

robbery that was unrelated to his conviction for the robbery of Cho. While the 

prosecutor used words that differed from the precise language agreed to by 

the parties, the difference was immaterial, since no additional crimes were

conveyed to the jury. Accordingly, Lark’s eighth issue lacks merit. 

In his ninth issue, Lark contends that the trial court abused its discretion 

when it denied his request for a mistrial following ADA Cunningham’s 

inadvertent reference, when testifying as a witness at the 2017 trial, to Lark’s 

prior homicide “trial.” The reference was made during defense counsel’s 

questioning of ADA Cunningham regarding the Cho homicide case. ADA 
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Cunningham explained that the homicide unit of the District Attorney’s office 

handled the Cho homicide case, and that he was not in the homicide unit. N.T. 

10/19/17, at 189-90. The questioning proceeded as follows:

[Defense Counsel]: However, Mr. Campolongo, who we saw referenced 

there a couple times, was in fact a homicide DA that handled the 

homicide case. Is that fair to say?

[The Witness]: I don’t think Campolongo was in homicide when he 

handled the homicide case. I don’t know what unit he was in.

[Defense Counsel]: Did he handle the homicide case?

[The Witness]: He handled the trial. He handled the trial in front of –

THE COURT: Let’s move on.

Id. at 190. Lark claims that he is entitled to a new trial because ADA 

Cunningham’s response “was grossly prejudicial since it clearly informed the 

jury that a prior trial had taken place and hence that a prior jury had found 

[Lark] guilty.” Lark’s Brief at 29. 

The trial court determined that ADA Cunningham’s use of the word 

“trial” in his answer was insignificant. The court reasoned that:

Since events discussed in the present trial occurred more than 

three decades earlier, the jury would have understood that the 

instant proceeding was a retrial. Given the overwhelming 

evidence against [Lark], the mention of the term “trial” could not 

have contributed to the verdict. Accordingly, the use of the term 

“trial” was harmless error if, it was error at all.

 

Trial Court Opinion, 7/13/18, at 10. 

We discern no abuse of discretion by the trial court in denying Lark’s 

motion for a mistrial based on the ADA Cunningham’s brief reference to Lark’s 
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prior homicide trial. Further, we disagree that Lark’s contention that the 

mention of the word “trial” necessarily conveyed to the jury that Lark was 

found guilty at the prior proceeding. Indeed, Lark’s first trial ended in a 

mistrial. Moreover, Lark’s counsel, rather than the prosecutor, elicited the 

objectionable testimony when he questioned ADA Cunningham regarding ADA 

Campolongo’s role in the “homicide case.” The question confused the witness, 

who asked for clarification of the word “case” when he mentioned the word 

“trial.” 

In any event, even if ADA Cunningham’s reference to Lark’s prior 

homicide trial was an error, we agree with the trial court’s determination that 

the error was harmless and could not have contributed to the verdict. See 

id. As indicated previously, our review of the record reflects that the 

uncontradicted evidence of Lark’s guilt was so overwhelming, and the 

prejudicial effect of a solitary reference to a prior “trial” was insignificant by 

comparison, that beyond a reasonable doubt the error could not have 

contributed to the verdict. See Fulton, supra at 493. Accordingly, Lark’s 

ninth issue entitles him to no relief. 

In his tenth issue, Lark contends that the trial court abused its discretion 

by denying his request for mistrial following the prosecutor’s reference, during 

closing argument, to Lark’s failure to call his nephew, Abdul Razak, as a 

witness. Lark maintains that because the Commonwealth bore the burden of 

proving his guilt, he was not required to present any evidence at trial “either 
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through his own mouth or through the mouths of others, and he is not required 

to prove anything or explain anything whatsoever in his defense.” Lark’s Brief 

at 29. He argues that, because the prosecutor’s comments amounted to a 

claim that Lark should have proved his innocence, a new trial is warranted. 

Id. at 30-31.

A prosecutor has reasonable latitude during his closing argument to 

advocate his case, respond to arguments of opposing counsel, and fairly 

present the Commonwealth’s version of the evidence to the jury. 

Commonwealth v. Cooper, 941 A.2d 655, 668 (Pa. 2007). While a 

prosecutor may comment on the credibility of the defendant or other 

witnesses, it is improper for a prosecutor to express a personal belief as to 

their credibility. Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013). 

Nevertheless, even an otherwise improper comment may be appropriate if it 

is in fair response to defense counsel’s remarks. Commonwealth v. Spotz, 

47 A.3d 63, 97 (Pa. 2012). Any challenge to a prosecutor’s comment must 

be evaluated in the context in which the comment was made. Id. (stating 

that the effect of the prosecutor’s remarks must be evaluated in the context 

and atmosphere of the entire trial). 

By way of background, James Spencer, an acquaintance of Lark’s, gave 

two detailed statements to police that Lark confessed to robbing Cho, and 

then murdering him to prevent him from testifying about the robbery. 

However, when Spencer was brought to the courthouse for the 1985 trial, 
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police inadvertently placed him in the same holding cell as Lark. Lark then 

threatened Spencer and his family, and instructed Spencer how to lie and to 

wear his prison uniform while testifying so that would appear less credible. 

When Spencer took the witness stand a few hours later at Lark’s 1985 trial,

he recanted his prior statements to police, and claimed that they were lies. 

At the 2017 trial, the Commonwealth called Spencer as a witness. On crossexamination, the defense elicited testimony from Spencer that he had met 

Lark’s nephew, Razak, while in prison, and told Razak that he and the other 

witnesses against Lark had lied. N.T. Trail, 10/25/17, at 102, 107. On 

redirect, Spencer admitted that he did not know the other witnesses against 

Lark, or whether any of them had lied. Id. at 103-04.

In his closing argument, defense counsel suggested that Spencer 

provided false statements to police in order to get a favorable deal for himself 

on his then-pending criminal matters. The prosecutor thereafter addressed

the credibility of Spencer’s recantation testimony in his closing argument. 

Referring to Spencer’s purported statements to Razak, the prosecutor asked

the jury, “Did you see them call the nephew to the stand to corroborate what 

James Spencer said? . . . Maybe [Razak] wouldn’t have corroborated it 

because you can’t keep your lies straight, just like Mr. Spencer couldn’t keep 

his lies straight for his reasoning for going south, for his recantation.” N.T. 

Trial 11/1/17, at 75. 
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The trial court addressed Lark’s challenge as follows: “[The 

prosecutor’s] comment was directed at the lack of corroboration of Mr. 

Spencer’s claim that he had lied. In careful fashion, the prosecutor did not 

comment on [Lark’s] failure to present witnesses. That reference to the 

nephew did not deprive [Lark] of a fair trial.” Trial Court Opinion, 7/13/18, at 

16. 

We discern no abuse of discretion by the trial court in denying Lark’s 

request for a mistrial. The prosecutor’s comments focused on the credibility 

of Spencer’s recantation testimony, given that Spencer provided statements 

to police that Lark confessed to Cho’s murder before Lark threatened Spencer 

and his family. When viewed in the context and atmosphere of the entire trial, 

it is clear that the prosecutor’s attack upon Spencer’s credibility was in 

response to, and was commensurate with, the preceding defense claim that 

Spencer fabricated his statements to police. Accordingly, the prosecutor could 

permissibly refer to such inconsistent testimony, and that fact that it was not 

corroborated by Lark’s nephew. That being the case, and given that the 

prosecutor did not characterize his attack on Spencer’s credibility as reflecting 

his own personal opinion, the trial court acted within its discretion in denying 

Lark’s mistrial motion. Thus, no relief is due on Lark’s tenth issue. 

In his final issue, Lark contends that the trial court abused its discretion 

in denying his request for a mistrial after the prosecutor referenced the 

hearsay statement of Muriel Jackson that Lark was Cho’s killer. Ms. Jackson’s 
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out-of-court statement was elicited by defense counsel on cross-examination 

of Carolyn Purvis during the 1985 trial. Ms. Purvis was deceased at the time 

of Lark’s 2017 trial; hence, because she was unavailable, her prior testimony,

including Ms. Jackson’s hearsay statement, was read into the evidentiary 

record. According to Lark, the prosecutor’s reference to the hearsay 

statement in his closing argument entitles him to a new trial. 

While Lark claims that he objected to Ms. Jackson’s hearsay statement, 

the record indicates otherwise. Lark’s prior counsel did not object to that 

statement during his cross-examination of Ms. Purvis at the 1985 trial. 

Additionally, when Ms. Purvis’s prior testimony was read into the record at the 

2017 trial, defense counsel made no objection to the out-of-court statement. 

Although defense counsel objected to the prosecutor’s reference to the 

statement seven days later during the prosecutor’s closing argument, this 

objection was too late. Because no objection was contemporaneously made 

at the time Ms. Jackson’s hearsay statement was read into the evidentiary 

record, the issue is waived. See Commonwealth v. Baumhammers, 960 

A.2d 59, 73 (Pa. 2008) (holding that objections not contemporaneously raised

were waived despite having been subsequently raised before the trial court in 

post-sentence motions); see also Commonwealth v. Rosser, 135 A.3d 

1077, 1086 (Pa. Super. 2016) (en banc) (holding that, in order to provide trial 

courts with an opportunity to correct errors at the time they are made, one 
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must object to errors, improprieties or irregularities at the earliest possible 

stage of the criminal adjudicatory process). Accordingly, no relief is due. 

Having concluded that Lark is not entitled to relief on any of his issues, 

we affirm his judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/19/19