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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

ANTHONY J. DIVALENTINO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 787 EDA 2017

Appeal from the Judgment of Sentence August 30, 2016

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

No(s): CP-45-CR-0000840-2010

COMMONWEALTH OF 

PENNSYLVANIA

v.

ANTHONY J. DIVALENTINO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 788 EDA 2017

Appeal from the Judgment of Sentence August 30, 2016

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

No(s): CP-45-CR-0000792-2010

BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 13, 2018

Anthony J. DiValentino appeals from the judgments of sentence, entered 

in the Court of Common Pleas of Monroe County, after his conviction of two 
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counts of harassment,1two counts of kidnapping,2two counts of retaliation 

against a witness,3two counts of simple assault,4 coercion/threat to commit 

a crime,5false imprisonment,6intimidation of a witness,7 stalking,8terroristic 

threats,9 and unlawful restraint.10 After careful review, we affirm based, in 

part, on the Honorable Jonathan Mark’s opinion.

On March 21, 2010, police responded to a domestic incident involving 

DiValentino and his paramour, Ann Marie Andrews. Police subsequently 

arrested DiValentino and charged him with simple assault; he spent a short 

time in jail before posting bail. From the day of the assault until April 21, 

2010, DiValentino continuously made threatening phone calls to Andrews in 

an attempt to intimidate and prevent her from testifying at his preliminary 

hearing for simple assault. On April 22, 2010, the morning of DiValentino’s 

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1 18 Pa.C.S.A. § 2709.

2 18 Pa.C.S.A. § 2901.

3 18 Pa.C.S.A. § 4953.

4 18 Pa.C.S.A. § 2701.

5 18 Pa.C.S.A. § 2906.

6 18 Pa.C.S.A. § 2903.

7 18 Pa.C.S.A. § 4953.

8 18 Pa.C.S.A. § 2709.1.

9 18 Pa.C.S.A. § 2706.

10 18 Pa.C.S.A. § 2902.
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preliminary hearing, Andrews awoke to DiValentino pressing the barrel of a 

gun to her back. DiValentino held Andrews hostage, threatened her so she 

would not testify at his preliminary hearing, and stated he test-fired the gun 

into a pillow to ensure no one would hear his firearm discharge if he shot her. 

After approximately an hour, at Andrews’ request, DiValentino released her so 

that she could take her daughter to the school bus stop. Andrews dropped 

her daughter off at the bus stop and proceeded directly to the police. Later 

that day, police arrested DiValentino and charged him with kidnapping, 

intimidation of a witness and related offenses. On April 26, 2010, Andrews 

was granted a three-year protection from abuse (“PFA”) order against 

DiValentino. On June 10, 2010, DiValentino waived his right to a preliminary 

hearing in exchange for reduced bail, and he was released on bail on the 

condition he not contact Andrews. 

On June 14, 2010, while Andrews was driving to work on Interstate 84 

(“I-84”) in New York State, DiValentino used his vehicle to run Andrews off 

the road. DiValentino caused a serious crash that injured Andrews and 

required emergency response personnel to extricate her from her vehicle with

the Jaws of Life. DiValentino fled the scene and attempted to commit suicide, 

but New York State police apprehended him before his self-inflicted wounds 

proved fatal. New York State police later charged DiValentino with attempted 

murder and related offenses stemming from the I-84 incident. DiValentino

remained incarcerated in New York State while awaiting trial both there and 

in Pennsylvania. 
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Sometime between December 2010 and January 2011, DiValentino

conspired with a fellow inmate to murder or hire someone to murder Andrews. 

He provided the inmate with maps to Andrews’ home, diagrams of the home, 

personal information about Andrews and her daughter, the home’s garage 

code, details about the home’s alarm system, and Andrews’ daughter’s school 

schedule. Unbeknownst to DiValentino, the inmate was a police informant 

who agreed to wear a wire during their conversations. On February 10, 2011, 

a grand jury indicted DiValentino for conspiracy and solicitation to commit 

murder. 

DiValentino’s New York State proceedings took over five years to 

complete, during which time he continued to litigate his Pennsylvania cases. 

During this time, the Commonwealth repeatedly attempted to get DiValentino

extradited to Pennsylvania, and on September 11, 2015, DiValentino waived 

extradition. By then, the New York Supreme Court had convicted DiValentino

of attempted murder and related charges.

DiValentino’s Pennsylvania trial commenced on June 21, 2016, and 

concluded on June 23, 2016. A jury convicted DiValentino of all the foregoing 

charges. On August 30, 2016, the trial court sentenced DiValentino to an 

aggregate term of 150 to 300 months’ incarceration to be served consecutive 

to his New York State sentence. The trial court applied the deadly weapon 

enhancement to DiValentino’s sentence, pursuant to 42 Pa.C.S.A. § 9712, but, 
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notably, the jury did not find DiValentino guilty of possession of an instrument 

of crime (“PIC”).11 

On February 1, 2017, the trial court denied DiValentino’s various postsentence motions. DiValentino timely appealed, and both the trial court and 

DiValentino complied with Pa.R.A.P. 1925. On appeal, DiValentino raises the 

following issues for our review:

1. Did the trial court err in denying [DiValentino’s] motion to 

dismiss where the Commonwealth denied him his constitutional 

right to a speedy trial by greatly exceeding the time frames 

established by [] Rule 600 as well as the [Interstate Agreement 

on Detainers (“IAD”)12] for bringing the matter to trial?

2. Did the trial court commit reversible error by permitting 

irrelevant and highly prejudicial evidence of other bad acts?

3. Did the trial court commit reversible error by permitting 

testimonial hearsay to be admitted against [DiValentino], in 

violation of the Confrontation Clause of the Sixth Amendment 

of the United States Constitution and Article I, Section 9 of the 

Pennsylvania Constitution.

4. Was the evidence presented at trial insufficient to prove beyond 

a reasonable doubt that [DiValentino] held an individual in a 

place of confinement, a necessary element of a kidnapping 

charge?

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11 18 Pa.C.S.A. § 907.

12 The IAD is an agreement that established procedures for the transfer of 

prisoners incarcerated in one jurisdiction to the temporary custody of another 

jurisdiction, which has lodged a detainer against them. Commonwealth v. 

Williams, 896 A.2d 523, 536 (Pa. 2006).
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Brief of Appellant, at 10-11.13

DiValentino first argues the trial court erred in denying his pretrial 

motion to dismiss charges pursuant to Pa.R.Crim.P. 600. Our standard and 

scope of review of a trial court’s denial of a motion to dismiss pursuant to Rule 

600 is as follows:

In evaluating Rule 600 issues, our standard of review of a trial 

court’s decision is whether the trial court abused its discretion. 

The proper scope of review in determining the propriety of the 

trial court[’]s ruling is limited to the evidence on the record of the 

Rule 600 evidentiary hearing and the findings of the lower court. 

In reviewing the determination of the hearing court, an appellate 

court must view the facts in the light most favorable to the 

prevailing party.

Commonwealth v. Cook, 865 A.2d 869, 875 (Pa. Super. 2004) (citation and 

internal formatting omitted).

The version of Rule 600 that the trial court applied to DiValentino’s Rule 

600 motion stated, in relevant part, as follows:14

[(A)](3) Trial in court case in which a written complaint is filed 

against the defendant, when the defendant is at liberty on bail, 

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13 DiValentino raised an additional issue in his Rule 1925(b) statement, which 

the trial court addressed in its Rule 1925(a) opinion: “The trial court erred in 

applying the [d]eadly [w]eapon [u]sed [e]nhancement . . . [where] there was 

insufficient evidence to establish by a preponderance of the evidence that [he] 

visibly possessed a firearm in the commission of a crime.” DiValentino Rule 

1925(b) statement, 4/3/2017. However, DiValentino has abandoned this 

issue on appeal by failing to argue it in his brief. Commonwealth v. Miller, 

721 A.2d 1121, 1124 (Pa. Super. 1998) (“Failure to brief an issue is to waive 

it, as such omission impedes our ability to address the issue on appeal.”).

14 A new version of Rule 600 was adopted in October 2012, and became 

effective on July 1, 2013.
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shall commence no later than 365 days from the date on which 

the complaint is filed.

* * *

(C) In determining the period for the commencement of trial, 

there shall be excluded therefrom: 

(1) the period of time between the filing of the written 

complaint and the defendant’s arrest, provided that the 

defendant could not be apprehended because his or her 

whereabouts were unknown and could not be determined by 

due diligence;

(2) any period of time for which the defendant expressly 

waives Rule 600;

(3) such a period of delay at any stage of the 

proceedings as results from:

(a) the unavailability of the defendant or the 

defendant’s attorney;

(b) any continuance granted at the request of the 

defendant or the defendant’s attorney.

Pa.R.Crim.P. 600(A)(3), (C) (rescinded October 1, 2012, effective July 1, 

2013) (emphasis added). 

[T]he courts of this Commonwealth employ three steps –

corresponding to Rules 600(A), (C), and (G) – in determining 

whether Rule 600 requires dismissal of charges against a 

defendant. First, Rule 600(A) provides the mechanical run date. 

Second, we determine whether any excludable time exists 

pursuant to Rule 600(C). We add the amount of excludable time, 

if any, to the mechanical run date to arrive at an adjusted run 

date. 

If the trial takes place after the adjusted run date, we apply the 

due diligence analysis set forth in Rule 600(G). As we have 

explained, Rule 600(G) encompasses a wide variety of 

circumstances under which a period of delay was outside the 

control of the Commonwealth and not the result of the 
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Commonwealth’s lack of diligence. Any such period of delay 

results in an extension of the run date. Addition of any Rule 

600(G) extensions to the adjusted run date produces the final Rule 

600 run date. If the Commonwealth does not bring the defendant 

to trial on or before the final run date, the trial court must dismiss 

the charges. 

Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa. Super. 2007) (internal 

citations and footnote omitted). The Commonwealth has the burden of 

proving by a preponderance of the evidence that it exercised due diligence in 

accordance with Rule 600. Commonwealth v. Bradford, 46 A.3d 693, 701 

(Pa. 2012). When a foreign jurisdiction detains a defendant, Rule 600 works 

in conjunction with the IAD to ensure that the defendant gets a speedy trial. 

42 Pa.C.S.A. § 9101. 

Instantly, the trial court determined that DiValentino was unavailable 

for trial primarily due to New York State’s refusal to grant extradition. The 

trial court established on the record its reasons for denying DiValentino’s Rule 

600 motion at trial, N.T. Trial, 6/21/16, at 9-19, and at a hearing on his postsentence motions. N.T. Post-Sentence Motions Hearing, 2/1/17, at 21. 

Moreover, the trial court attached to its Rule 1925(a) opinion an addendum 

reiterating its reasons for denying DiValentino’s Rule 600 motion. Hearing 

Addenda 1, 2/1/17, at 13-19. See N.T. Post-Sentence Motions Hearing, 

2/1/17, at 9 (Judge Mark directed the court reporter to attach the addendum

“to any transcript that is made of [the February 1, 2017] proceeding so that 

the law [he] used is clear and a matter of record.”). After review of the 

relevant notes of testimony, the trial court’s hearing addenda, the certified 
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record, the parties’ briefs, and Judge Mark’s opinion, we find the trial court 

did not abuse its discretion by denying DiValentino’s Rule 600 motion.

DiValentino next argues that the trial court erred in allowing the jury to 

hear “extensive evidence about events that occurred well after the events at 

issue in this case,” namely, “the New York events.” Brief of Appellant, at 39-

40. Specifically, DiValentino argues the “New York events bore no relevance 

to the crimes at issue.” Id. at 40.

“Admission of evidence is within the sound discretion of the trial court 

and will be reversed only upon a showing that the trial court clearly abused 

its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super. 

2015) (citation omitted). “An abuse of discretion is not merely an error of 

judgment, but is rather the overriding or misapplication of the law, or the 

exercise of judgment that is manifestly unreasonable, or the result of bias, 

prejudice, ill-will or partiality, as shown by the evidence of record.” Id. at 

357-58 (citation omitted).

Pennsylvania Rule of Evidence 404(b) states as follows:

(1) Evidence of other crimes, wrongs, or acts is not admissible to 

prove the character of a person in order to show action in 

conformity therewith. 

(2) Evidence of other crimes, wrongs, or acts may be admitted for 

other purposes, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity or absence of mistake or 

accident. 

(3) Evidence of other crimes, wrongs, or acts proffered under 

subsection (b)(2) of this rule may be admitted in a criminal case 
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only upon a showing that the probative value of the evidence 

outweighs its potential for prejudice. 

(4) In criminal cases, the prosecution shall provide reasonable 

notice in advance of trial, or during trial if the court excuses 

pretrial notice on good cause shown, of the general nature of any 

such evidence it intends to introduce at trial. 

Pa.R.E. 404(b).

DiValentino’s Rule 404(b) claim generally centers on the relevance and 

prejudicial value of all evidence the Commonwealth proffered regarding the 

circumstances relevant to his convictions for attempted murder, conspiracy,

solicitation to commit murder and related charges. Instantly, the trial court 

determined that DiValentino’s failure to specifically identify or cite to particular 

evidence of record what evidence he challenges waives this claim. Even so, 

the trial court aptly explained why DiValentino’s Rule 404(b) claim is meritless, 

primarily relying on the res gestae exception.

Res gestae evidence describing other crimes or bad acts is admissible 

to tell the complete story; such evidence may be admitted, however, only if 

the probative value of the evidence outweighs its potential for unfair prejudice. 

Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa. Super. 2014). Here, 

85 days elapsed between DiValentino’s March 21, 2010 assault of Andrews in 

Pennsylvania, and the June 14, 2010 I-84 incident; however, he spent 50 of 

those days in jail. The I-84 incident occurred a mere four days after 

DiValentino posted bail for kidnapping and related charges. The New York 

events are probative and relate arguably to the Pennsylvania events.
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Therefore, we agree that the trial court did not abuse its discretion in allowing 

the Commonwealth to proffer evidence of the subsequent New York events.

DiValentino next avers the trial court erred by permitting testimonial 

hearsay implicating him in various crimes in violation of the Confrontation 

Clause. Specifically, DiValentino claims the trial court erred in allowing the 

Commonwealth to play consensual wire intercept recordings of his

conversations with a jailhouse informant. DiValentino did not specify whether 

he is challenging the entirety of the recordings, his statements alone, or just 

the statements of the jailhouse informant.

The Confrontation Clause of the Sixth Amendment, made applicable to 

the states via the Fourteenth Amendment, provides that in all criminal 

prosecutions, the accused shall enjoy the right to be confronted with the 

witnesses against him. Commonwealth v. Yohe, 79 A.3d 520, 544 (Pa. 

Super. 2013). The Confrontation Clause applies not only to in-court 

testimony, but also to out-of-court statements introduced at trial. Crawford 

v. Washington, 541 U.S. 36, 50-51 (2004). However, the confrontation 

clause “does not bar the use of testimonial statements for purposes other than 

establishing the truth of the matter asserted.” Id. at 47. A statement is 

testimonial if the primary purpose of the statement was to establish or prove 

past events. Commonwealth v. Abrue, 11 A.3d 484, 491 (Pa. Super. 2010).

On the other hand, where non-testimonial hearsay is concerned, such 

statements are subject only to a state’s hearsay rules and are exempted from 

Confrontation Clause scrutiny. Id. at 488. A statement is non-testimonial if 
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it was made with the purpose of enabling police to meet ongoing emergency. 

Id. at 491. 

Additionally, hearsay statements are admissible where: (1) a 

defendant’s co-conspirator made them during and in furtherance of the 

conspiracy, Pa.R.E. 803(25)(E); and (2) a reasonable person in the declarant’s 

position would have made the statement only if the person believed it to be 

true because, when made, it was so contrary to the declarant's interest.

Pa.R.E. 804(b)(3)(A).

The trial court determined that statements made by DiValentino

proffered by the Commonwealth were: (1) offered for context, rather than 

truth; (2) non-testimonial; (3) made in furtherance of a criminal conspiracy; 

and (4) comprised of party admission statements and statements against 

one’s interests. We agree. DiValentino’s statements were constitutionally 

admissible, and, thus, his Confrontation Clause claim must fail.

Lastly, DiValentino claims the evidence was insufficient to prove he held 

Andrews in a place of confinement, a necessary element of kidnapping.

Our standard and scope of review of sufficiency claims is well settled:

A claim challenging the sufficiency of the evidence is a question of 

law. Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime charged 

and the commission thereof by the accused, beyond a reasonable 

doubt. Where the evidence offered to support the verdict is in 

contradiction to the physical facts, in contravention to human 

experience and the law of nature, then the evidence is insufficient 

as a matter of law. When reviewing a sufficiency claim[,] the court 

is required to view the evidence in the light most favorable to the 
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verdict winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal 

citations omitted).

[A] person is guilty of kidnapping if he unlawfully removes another 

a substantial distance under the circumstances from the place 

where he is found, or if he unlawfully confines another for a 

substantial period in a place of isolation, with any of the following 

intentions: 

(1) To hold for ransom or reward, or as a shield or hostage. 

(2) To facilitate commission of any felony or flight 

thereafter. 

(3) To inflict bodily injury on or to terrorize the victim or 

another. 

(4) To interfere with the performance by public officials of 

any governmental or political function. 

18 Pa.C.S. § 2901(a). For purposes of the kidnapping statute, a “place of 

isolation” is not a geographic isolation, but rather effective isolation from the 

protections of society. Commonwealth v. Jenkins, 687 A.2d 836 (Pa. 

Super. 1996). The requirement that the victim be confined in a place of 

isolation for purposes of establishing the crime of kidnapping does not require 

that the victim be left alone. In the Interest of T.G., 836 A.2d 1003, 1008 

(Pa. Super. 2003). The fact that other people are present does not necessarily 

negate the victim’s isolation from the usual protections of society. Id.

The trial court determined the evidence of record is sufficient to sustain

DiValentino’s kidnapping conviction where he held Andrews at gunpoint for 

over an hour in her bedroom and threatened to shoot her if she reached for 
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the phone. Hearing Addenda 1, 2/1/17, at 19-21; see N.T. Post-Sentence 

Motion Hearing, 2/1/17, at 37-19. Moreover, contrary to DiValentino’s 

assertion, it is of no consequence that Andrews’ daughter was present in the 

home when he kidnapped her. T.G., supra. Viewed in a light most favorable 

to the Commonwealth, there was ample evidence demonstrating that 

DiValentino held Andrews against her will for a substantial period. Thus, 

DiValentino’s sufficiency claim is meritless.

Based on our review of the parties’ briefs, the relevant case law and the 

certified record on appeal, we dispose of DiValentino’s first four claims based 

on Judge Mark’s opinion. We direct the parties to attach a copy of that decision 

in the event of further proceedings in the matter.

Last, DiValentino purports to challenge the legality of his sentence under 

Alleyne v. United States, 570 U.S. 99 (2013). At trial, a jury acquitted 

DiValentino of PIC. However, at sentencing, the trial court imposed the deadly 

weapon enhancement by way of judicial fact-finding under the preponderance 

of the evidence standard. The Commonwealth concedes that the trial court 

applied the preponderance of the evidence standard in applying the deadly 

weapon enhancement. Brief of Appellee, at 49. In Alleyne, the court held 

certain sentencing factors are elements of the underlying crime, and thus, 

must be submitted to the jury and proven beyond a reasonable doubt. 

However, that inquiry is not relevant to the deadly weapon enhancement. 

Alleyne dealt with factors that increased the mandatory minimum, but 
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DiValentino’s case does not deal with a mandatory minimum; instead, we are 

dealing with a sentencing enhancement. 

Generally, a judge may not increase automatically a defendant’s 

sentence based on a preponderance of the evidence standard. 

Commonwealth v. Valentine, 101 A.3d 801, 804 (Pa. Super. 2014). For 

example, mandatory minimum sentencing statutes (like sentences for offense 

committed with firearms15) that do not pertain to prior convictions are 

constitutionally infirm insofar as they constrain the trial court to increase a 

defendant’s mandatory minimum sentence based on a preponderance of the 

evidence standard. Id.

Here, however, the trial court did not impose a mandatory minimum. 

Rather, the trial court applied 204 Pa. Code § 303 to DiValentino’s sentence, 

which states, in relevant part, as follows:

§ 303.9 Guideline sentence recommendation: general.

. . .

(b) Deadly Weapon Enhancement sentence recommendations. 

Except for those sentenced pursuant to 18 Pa.C.S.[A.] § 

1102.1 (relating to sentence of persons under the age of 18 for 

murder, murder of an unborn child and murder of a law 

enforcement officer), if the court determines that an offender 

possessed a deadly weapon pursuant to § 303.10(a)(1), the court 

shall instead consider the DWE/Possessed Matrix (§ 303.17(a)).

. . .

§ 303.10. Guideline sentence recommendations: enhancements.

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15 42 Pa.C.S.A. § 9712. 
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(a) Deadly Weapon Enhancement.

(1) When the court determines that the offender possessed 

a deadly weapon during the commission of the current 

conviction offense, the court shall consider the 

DWE/Possessed Matrix (§ 303.17(a)). An offender has 

possessed a deadly weapon if any of the following were on 

the offender’s person or within his immediate physical 

control:

(i) Any firearm, (as defined in 42. Pa.C.S.A. § 9712) 

whether loaded or unloaded[.]

204 Pa. Code § 303.9(b) and 303.10(a)(1)(i). In Commonwealth v. 

Buterbaugh, 91 A.3d 1247 (Pa. Super. 2014), this Court aptly summarized 

the utility of section 303, stating:

The [Deadly Weapons Enhancement] provision of the Sentencing 

Guidelines provides that when the court determines that the 

defendant possessed a deadly weapon during the commission of 

a criminal offense, the court must add at least 12 months and up

to 24 months to the guideline sentence that would otherwise have 

been applicable.

Id. at 1268.

As the above demonstrates, section 303 of the Sentencing Code is 

distinct from section 9712; where the deadly weapon sentencing 

enhancement applies, the trial court is required only to raise the standard 

guideline range, and thus, it retains discretion to sentence outside the 

guideline range. Id. at n.10 (“If the enhancement applies, the sentencing 

court is required to raise the standard guideline range; however, the court 

retains the discretion to sentence outside the guideline range.”). Therefore, 
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application of the sentencing enhancement does not violate the holding in 

Alleyne. 

Accordingly, the trial court’s application of section 303 of the Sentencing 

Code does not implicate the legality of DiValentino’s sentence, but rather, the 

discretionary aspects of his sentence, from which there is no appeal of right. 

See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004); see 

Commonwealth v. Brougher, 978 A.2d 373, 376 (Pa. Super. 2009)

(application of the deadly weapons enhancement implicates sentencing court’s 

discretion once it imposes sentence following determination of the adjusted 

sentencing guideline range). Instantly, DiValentino has failed to comply with 

any of the procedural dictates necessary to invoke our jurisdiction to review 

his discretionary aspects of sentence claim. Commonwealth v. Evans, 901 

A.2d 528, 533 (Pa. Super. 2006) (internal citations omitted). Therefore, we 

find this issue waived. 

Judgments of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/13/18
Circulated 05/31/2018 03:56 PI\ 

COURT OF COMMON PLEAS OF MONROE COUNTY 

FORTY-THIRD JUDICIAL DISTRICT 

COMMONWEALTH OF PENNSYLVANIA 

COMMONWEALTH OF PENNSYLVANIA : Nos. 792 CRIMINAL 2010 

840 CRIMINAL 2010 

V. 

: Appeal Docket Nos. 

ANTHONY J. DIVALENTINO, 787 EDA 2017 

788 EDA 2017 

Defendant 

OPINION IN SUPPORT OF ORDER PURSUANT TO Pa. R.A.P. 1925(al 

Following the denial of his post sentence motions, Defendant filed appeals from 

the judgments of sentence entered after a jury convicted him of multiple felony and 

misdemeanor offenses. On receipt of the appeals, we issued orders directing 

Defendant to file statements of errors complained of on appeal pursuant to Pa, R.A.P. 

1925(b). Defendant complied, assigning the following errors: 

1. The trial court erred in denying Mr. Valentino's right to a 

speedy trial pursuant to Pa.R.C[rim].P. 600 and all procedural 

requirements of the Interstate Agreement on Detainers. 

2. The trial court erred in allowing the Commonwealth to 

introduce evidence of "prior bad acts" under Pa. R.E. 404(b), 

acts which occurred both prior to and after the events giving 

rise to the instant charges. The "prior bad acts" which took 

place in New York State were not relevant, and, if deemed 

relevant, any probative value this evidence may hold was far 

outweighed by its prejudicial effect. This evidence was 

improperly admitted at trial and improperly considered by the 

Court at sentencing, amounting to a violation of the Due 

Process right to a fair trial as applied to the Commonwealth of 

Pennsylvania through the Fourteenth Amendment of the United 

States Constitution. 

3. The trial court erred in allowing the Commonwealth to 

introduce testimonial hearsay in the form of an audio -recording 

of a jailhouse informant in violation of the Confrontation Clause 

in the Sixth Amendment of the United States Constitution, 

Article I, § 9 of the Pennsylvania Constitution, and the 

intertwined Due Process right to a fair trial. 
4. The trial court erred in denying defendant's supplemental 

post -sentence motion in arrest of judgment in that insufficient 

evidence was produced to establish the "place of isolation" 

element of the kidnapping charges beyond a reasonable doubt. 

5. The trial court erred in applying the Deadly Weapon Used 

Enhancement when the jury acquitted defendant of possession 

of an instrument of crime and when there was insufficient 

evidence to establish by a preponderance of the evidence that 

defendant visibly possessed a firearm in the commission of a 

crime. 

(Defendant's Rule 1925(b) Statements, filed April 3, 2017, ¶¶ 1-5). For the reasons 

that follow, we believe that Defendant's assignments of error lack merit and the 

judgments of sentence should be affirmed. 

Background 

As discussed in more detail below, we previously heard and rejected most of 

the issues Defendant raises in these appeals. We did so through orders, on -record 

rulings, and hearing addenda that articulated our reasoning and summarized the law 

on which we relied. For the most part, those orders, rulings, and addenda, for which 

record citations will be given, suffice to address and dispel Defendant's assignments of 

error. Nonetheless, to supplement the rationale we previously expressed, to put our 

rulings and Defendant's issues in context, and to discuss the one new issue Defendant 

raised on appeal, we provide the following: 

On March 21, 2010, Defendant struck Ann Marie Andrews, his paramour with 

whom he lived, with a shoe and repeatedly hit her with open and closed fists, As a 

result, Defendant was arrested and charged in case 792 with simple assault and 

harassment, He spent a short time in jail and then made bail. 

2 
Between the date of the assault and the scheduled preliminary hearing, 

Defendant continuously called Ms. Andrews to annoy and threaten her and tell her not 

to testify, The day before the preliminary hearing Defendant escalated by showing up 

at Ms. Andrews' place of work to try to convince her not to testify. 

On April 22, 2010, the day of the preliminary hearing, Defendant woke Ms, 

Andrews at 5:00 am. by placing a shotgun to her back. He held her at gunpoint in her 

bed for more than an hour. During the episode, Defendant threatened Ms. Andrews 

and said and did many things designed to intimidate and keep her from testifying. For 

example, Defendant told Ms. Andrews that he had test fired the shotgun into a pillow in 

order to confirm that the blast would not be heard when he killed her, In addition, 

Defendant said point blank that he would not go back to jail because his life would be 

over if he did, And, Defendant told Ms. Andrews several times that if she moved, he 

would shoot her, Ms. Andrews' teenage daughter was in the home during the episode. 

Ms. Andrews was eventually able to convince Defendant to allow her to take 

her daughter to school. After leaving the home, Ms. Andrews went immediately to the 

police station to report the incident. While she was outside the station, Defendant 

showed up and pleaded with her not to testify against him. After Defendant left, Ms, 

Andrew told the police what he had done that morning, 

As a result of the second incident, Defendant was arrested and charged in case 

840 with two counts of Kidnapping, Intimidation of a Witness, two counts of Retaliation 

Against a Witness, Terroristic Threats, Unlawful Restraint, Coercion/ Threat to Commit 

a Crime, Stalking, Possession of the Instrument of a Crime, Simple Assault, 

Recklessly Endangering Another Purpose, False Imprisonment, and Harassment. He 

spent almost two months in jail before making bail. 

3 
Subsequently, both cases were waived to court. On June 10, 2010, Defendant 

posted bail. As a specific condition of bail, Defendant was to have "no contact at all 

with the victim," 

On June 14, 2010, only four days after he was released on bail, Defendant 

literally ran Ms. Andrews off the road on Interstate Route 84 in New York while she 

was driving to work. He caused a serious crash in which Ms. Andrews was injured and 

had to be extricated from her car by the Jaws of Life. The incident was witnessed by 

several motorists. Defendant left the scene and, when approached by police, cut his 

wrists in an apparent attempt to kill himself. 

Defendant was arrested, charged with felony crimes, including Attempted 

Murder, and incarcerated in New York. He has been incarcerated ever since. 

While in jail, Defendant solicited another inmate to kill, or to find someone to kill, 

Ms. Andrews. As a result of the solicitation, he was charged in a second case with 

felony crimes, including conspiracy and solicitation to commit murder. 

The proceedings in New York took more than five years to complete. Initially, 

Defendant pled guilty in both cases. However, prior to sentencing, he moved to 

withdraw his plea. The trial court denied the motion and Defendant appealed. The 

appellate court in New York court reversed and remanded the cases for trial. 

Ultimately, on February 27, 2015, Defendant was tried and convicted of multiple 

felony charges, including Conspiracy and Assault with Intent to Cause Serious Injury 

with a Weapon, as well as several lower graded offenses. On March 30, 2015, he was 

sentenced to incarceration of 21 to 35 years. 

During the five years that Defendant was incarcerated in New York while his 

cases there were being litigated, the Commonwealth maintained regular contact with 

4 
the New York prosecutors and penal authorities. The Commonwealth made several 

attempts, through both the Interstate Act on Detainers ("IAD"), 42 Pa. C.S.A. Section 

9101 et. seq., and a Governor's Warrant procedure, to bring Defendant to this 

Commonwealth to try him on the Pennsylvania charges. However, New York would 

not release him. 

After he was sentenced in New York, Defendant became available. At first, 

Defendant contested extradition. However, on September 11, 2015, he reversed 

course and waived extradition. Thereafter, the required IAD paperwork was signed 

and mailed by New York to Pennsylvania, On October 7, 2015, Defendant was 

transported to the Monroe County Correctional Facility. He remained in Monroe 

County until after the proceedings on his post sentence motions were concluded. 

The facts, circumstances, and time frames pertaining to the Commonwealth's 

attempts to bring Defendant to Pennsylvania, as well as hi ultimate extradition, were 

chronicled during the hearing held before this Court on May 27, 2016. (N.T., 

5/27/2016, pp. 32-69, 90, 92-95, 103-04, and Exhibits 1 - 21). The relevant facts and 

time frames were also discussed during the subsequent hearing at which we denied 

Defendant's motion to dismiss under Pa. R.Crim.P. 600 and the IAD. (N.T., 6/21/2016, 

pp. 9-19 and Addendum), as well as the hearing on Defendant's post sentence 

motions (N.T., 2/1/2017, pp. 21-28 and Addendum 1). 

In May of 2015, before Defendant waived extradition, the Commonwealth filed a 

notice pursuant to Pa,R.E. 404(b) of its intent to introduce "other acts" evidence 

consisting of Defendant's acts, conduct, and statements in New York. In response, 

Defendant filed a motion objecting to and seeking preclusion of the other acts 

evidence, The Commonwealth then filed a petition asking the Court to dismiss 

5 
Defendant's motion until Defendant was returned to Pennsylvania, We convened a 

hearing on the competing motions at the end of which we entered an order holding the 

motions in abeyance until such time as Defendant was extradited. 

After Defendant was extradited, a series of motions were filed and several 

hearings were held. In broad summary, but of significance to the issues raised on 

appeal: 

On November 13, 2015, we convened a hearing to address the 404(b) evidence 

issues. Through both oral proffers and a variety of exhibits, the Commonwealth 

fleshed out the specific evidence it sought to introduce, which essentially reduced to: 

1) Defendant's acts toward Ms. Andrews and the statements he made in New York, 

including both the road rage incident and Defendant's attempt to hire someone to kill 

Ms. Andrews, and the New York convictions; and 2) Defendant's assaults and abuse 

of Ms. Andrews prior to and as part of the these cases, At the conclusion of the 

hearing, we issued a briefing schedule and set the case for trial, (N.T., 11/13/2015, pp. 

2-35 and Exhibits 1-11). 

In January of 2016, while the other acts evidence issues were pending, 

Defendant asked for and was granted a trial continuance, and the Commonwealth filed 

another Rule 404(b) notice. The second notice advised of the Commonwealth's intent 

to introduce evidence of prior domestic violence and assaultive conduct by Defendant 

against Ms. Andrews, mistreatment of a family pet, and related matters, based on a 

written summary from Ms. Andrews' daughter, who was now an adult. 

At that point, the parties asked for a scheduling conference to discuss dates for 

trial as well as hearings on the remaining Rule 404(b) issues and additional motions 

counsel for Defendant planned to file, Following the conference, we scheduled trial for 

6 
a date certain in June and set a hearing for the end of March to address the remaining 

Rule 404(b) issues and the anticipated defense motions. 

On February 24, 2016, we issued a comprehensive order denying Defendant's 

objections to the other acts evidence referenced in the Commonwealth's first Rule 

404(b) notice and discussed during the November 13, 2015 hearing. In the order, we 

summarized the evidence the Commonwealth sought to introduce, articulated the 

reasons for our decision, and cited the law on which we relied. (Order dated February 

24, 2016). For convenience and ease of reference, a copy of the order is attached as 

Appendix A. We incorporate the order into this opinion by reference. 

On March 28, 2016, we convened the hearing planned during the scheduling 

conference. Immediately prior to the hearing, Defendant filed objections to the 

Commonwealth's second Rule 404(b) notice and motions seeking various other forms 

of relief. Due to the late filings, we recessed the hearing and set a deadline for the 

filing of any additional motions. 

Subsequently, Defendant serially filed several motions. The additional filings 

included motions to dismiss both cases pursuant to Rule 600 and the IAD. 

The hearing on Defendants motions and objections was ultimately re -convened 

on May 27, 2016. While all filings were addressed, the motions to dismiss were a 

major focus of the hearing. On the dismissal issue, the Commonwealth called Carol 

Doss, the office manager and person assigned to handle the logistics of extraditions, 

governors' warrants, and IAD matters for the Monroe County District Attorney's Office, 

and submitted 21 exhibits. In sum, the evidence presented by the Commonwealth 

detailed its efforts to obtain Defendant over the years while the New York cases were 

proceeding. The evidence also framed and fleshed out the relevant time frames for 

7 
Rule 600 and IAD analyses. (N.T., 5/27/2016, pp. 32-69, 90, 92-95, 103-04, and 

Exhibits 1 - 21; Order dated May 27, 2016). 

At the conclusion of the hearing, we denied several motions, gave the parties 

time to brief the Rule 600 and IAD issues, and, for the most part, deferred ruling on the 

other acts evidence referenced in the Commonwealth's second Rule 404(b) notice 

until time of trial. (N.T,, 5/27/2016, pp. 103-04, 108-111; Order dated May 27, 2016). 

As to the 404(b) evidence, we gave the parties some guidance and the benefit of our 

initial assessment based on the pre-trial proffers, and ruled generally that we would 

not allow evidence of other acts that had no temporal connection to the crimes 

charged; however, we indicated that a definitive ruling would need to await trial, at 

which time the evidence would guide and provide context for not only legal analysis, 

but also, the required balancing of probative value and prejudice. (N.T., 5/27/2016, pp. 

18-25 and 104-06; Order dated May 27, 2016. (See N.T., 6/21/2016, pp. 7-8). See 

generally Commonwealth v. Hicks, 91 A.3d 47, 54 (Pa. 2014) (holding that the 

balancing of probative value and prejudice is generally better left for trial, but may be 

appropriate in some pretrial situations). We incorporate our on -record statements and 

reasoning into this opinion by reference. 

On June 21, 2016, prior to commencement of the evidentiary portion of trial and 

outside the presence of the jury, we issued an order denying Defendant's motions to 

dismiss under Rule 600 and the IAD. We stated our reasoning, including applicable 

time calculations, on the record and handed out a hearing addendum that summarized 

the law on which we relied. (N.T., 6/21/2016, pp. 9-19 and Addendum). For 

convenience and ease of reference, a copy of the addendum is attached to this 

8 
opinion as Appendix B. We incorporate the Addendum and our on -record statements 

into this opinion by reference. 

During trial, the Commonwealth called numerous witnesses and submitted 14 

exhibits. It presented prior and subsequent other acts evidence. Specifically, it 

presented the evidence we ruled pre-trial that it could introduce, as well as additional 

other acts evidence that was admitted based on the record developed at trial. This 

included evidence that was presented in response to Defendant's testimony, given 

against the advice of counsel, that he had no prior record and had not previously been 

abusive towards Ms. Andrews or other women. While a substantial amount of other 

acts evidence was admitted, most of the other acts evidence was relevant and 

admissible for multiple purposes, quite a bit constituted direct evidence of several 

crimes charged, and some rebutted Defendant's testimony. Both dunng and after the 

evidentiary portion of trial, required limiting instructions were given. (N.T., 6/22/2016, 

pp. 29-30; N.T., 6/22/2016, pp. 87-88). 

Also during the trial, the Commonwealth played portions of recorded 

conversations between Defendant and a jailhouse informant during which Defenant 

tried to hire a third party to kill Ms. Andrews so she would not be able to testify against 

him. (N.T., 6/22/2016, pp. 9-10; N.T., 6/21/2016, Exhibits 8-10). The recordings were 

played over the objections of Defendant's attorney which we overruled, (N.T., 

6/22/2016, pp. 2-10. See N.T., 6.21/2016, pp. 2331-34). 

The conversations were recorded through a wire consensually worn by the 

informant on two different occasions. Before playing the recordings, the 

Commonwealth called the New York State Police Investigator who arranged the 

intercepts. The investigator summarized the background leading up to the intercepts, 

9 
explained how the conversations were recorded, identified Defendant and the 

informant as the two persons involved in the conversations and whose voices were 

heard on the recordings, and authenticated both the recordings and transcripts of the 

recordings. The investigator testified that he placed the wire on the informant 

immediately before the conversations took place, that he listened to the conversations 

live through the intercept device, and that he watched the conversations in real time 

through the prison's video surveillance system. He also testified that the recordings 

accurately reflected what he saw and heard during the intercept operation, Finally, the 

investigator testified that Defendant's attempt to hire someone to kill Ms. Andrews led 

to the second New York prosecution, that the recordings were played during trial on 

those charges, and that Defendant was convicted of the charges by a jury. (N.T., 

6/21/2016, pp. 234-57, 277 and Exhibits 8-11). 

At the end of the trial, the jury convicted Defendant in case 792 of both offenses 

charged. In case 840 Defendant was found guilty of all crimes charged, except 

Possession of the Instrument of a Crime and Recklessly Endangering Another Person, 

After the verdicts were recorded, we issued orders scheduling a sentencing hearing 

and directing our Probation Office to prepare a Pre -Sentence Investigation ("PSI") 

report. 

The sentencing hearing was convened, as scheduled, on August 30, 2016. At 

the conclusion of the hearing, we sentenced Defendant to incarceration of 15 to 30 

years, plus 90 days, a sentence within the aggravated range, to be served consecutive 

to the sentence imposed in New York, We informed Defendant of the documents and 

information we considered in fashioning his sentence, including the evidence 

presented during pre-trial hearings and at trial, the PSI report, the statements made by 

10 
Defendant, his attorney, and the assistant district attorney, the sentencing guidelines, 

and the applicable law. In addition, we stated our reasons for the sentence on the 

record. (N.T., 8/30/2016. pp. 29-46; Orders dated August 30, 2016). We incorporate 

our on -record statements and reasoning into this opinion by reference. 

The applicability of the deadly weapon enhancement, an issue involved in these 

appeals, was raised at the time of sentencing. Counsel for Defendant took the position 

that the enhancement could not, or at least should not, be applied because the jury 

had acquitted Defendant of the crime of Possession of the Instrument of a Crime. The 

assistant district attorney argued that the enhancement could and should be applied, 

and maintained that ample evidence had been presented to support its application. 

(N.T., 8/30/2016, pp. 2-5, 8-14, 18, and 27). After hearing the arguments, we applied 

the enhancement, finding that a deadly weapon was used in case 840. (Id. at 40-41). 

Thereafter, through new counsel, Defendant filed timely post sentence motions 

which were subsequently amended, both orally and in writing. (N.T., 2/1/2017, pp. 3-5, 

7-8). In his post sentence motions, Defendant raised four of the five allegations of error 

- the Rule 600/IAD ruling, the admission of other acts evidence, the sufficiency of the 

evidence regarding the Kidnapping charges, and the applicability of the deadly 

weapons enhancement - he raises in these appeals, 

On February 1, 2017, after giving new counsel substantial time to request 

and obtain transcripts and file a supplemental motion and affording both parties ample 

time to submit briefs, we convened a hearing on Defendant's post sentence flings. 

During the hearing, we allowed further amendment of the motions. Counsel for 

Defendant presented oral argument. The assistant district attorney relied for the most 

part on his written brief. At the conclusion of the hearing, we denied all of Defendant's 

11 
motions. We stated our reasons on the record and handed out a hearing addendum 

that comprehensively summarized the law on which we relied, (N.T,, 2/1/2017, pp, 5-6, 

21-46 and Addendum 1; Order dated February 1, 2017).1 For convenience and ease of 

reference, the addendum is attached to this opinion as Appendix C, We incorporate 

the addendum and our on -record statements into this opinion by reference. 

Subsequently, Defendant filed the instant appeals. 

Discussion 

1, We Properly Denied Defendants Motion to Dismiss Pursuant to Rule 

600 and the lAD 

In his first assignment of error, Defendant asserts that we erred by denying his 

motions to dismiss under Rule 600 and the IAD, Our reasons for denying the motions, 

including our time calculations, were explained in detail on the record on June 21, 

2016, and the law we applied is summarized in the hearing addenda attached to this 

opinion as Appendices B and C. (N,T,, 6/21/2016, pp. 9-19 and Addendum). Our 

reasoning was reiterated and amplified during the hearing on Defendant's post 

sentence motions. (N.T., 2/1/2017, pp. 21-28 and Addendum 1). Our prior on -record 

statements and the accompanying addenda adequately, properly, and fully address 

the first issue raised by Defendant. For the reasons we previously articulated, 

Defendant's first assignment of error lacks merit. 

2, We Properly Allowed Other Acts Evidence 

In his second assignment of error, Defendant contends that we erred by 

allowing the Commonwealth to introduce Rule 404(b) other acts evidence at trial and 

Two addenda are attached to the transcript of the hearing on Defendant's post sentence motions. The first is the 

addendum attached hereto as Appendix C. The second addendum is the February 24, 2016 order that is Appendix 

A to this opinion. 

12 
by considering Defendant's prior and subsequent "bad acts' in imposing sentence. 

Neither aspect of this assignment of error has merit. 

Part one of this assignment of error challenges our decision to allow 

introduction of other acts evidence at trial. While there is no question that other acts 

evidence was admitted during the trial, Defendant makes no attempt to specifically 

identify or cite in the record to particular evidence, or examples of the evidence, he 

challenges. Additionally, it is not clear whether Defendant is attempting to challenge 

only the other acts evidence relating to his criminal conduct (and attempted suicide) in 

New York or all other acts evidence. Regardless, he raises only a general, all - encompassing challenge that does not permit a specific or meaningful response. Due 

to the lack of clarity and the generality of the assignment of error, we believe that 

Defendant has waived this claim. 

If this challenge will be heard, we can only respond generally to the overly 

broad claim that all other acts evidence was irrelevant or, in the alternative, unduly 

prejudicial. As to this generic assertion, our reasons for denying Defendant's 

objections to the Commonwealth's Rule 404(b) notices and allowing introduction of 

other acts evidence were explained in detail in: 1) the order we issued on February 24, 

2016 (Appendix A); 2) our on -record statements during the May 27, 2016 hearing 

(N.T., 5/27/2016, pp. 18-25, 104-06); 3) the statements we made during the 

sentencing hearing (N.T., 8/30/2016, pp. 29-46); and 4) the amplified rationale we 

expressed during the hearing on Defendant's post sentence motions. (N.T., 2/1/2017, 

pp. 28-37). The law on which we relied is recited in the hearing addenda attached to 

this opinion as Appendices A and C. For the reasons we previously articulated, 

13 
Defendants general challenge to the introduction of other acts evidence at trial does 

not hold water. 

In succinct summary, and to highlight some of our on record remarks, the 

crimes Defendant committed against Ms. Andrews in both Pennsylvania and New 

York, the conduct leading up to those crimes, and the conduct occurring in-between 

and after those crimes, were in effect part of a single episode comprised of a 

continuous, inter -related series of escalating criminal incidents perpetrated against the 

same victim that grew more and aggressive and more serious as they unfolded over a 

relatively short period of time,2 Defendant erred and violated the law by assaulting Ms. 

Andrews, compounded the error by attempting to harass and threaten her into not 

testifying, doubled -down by preventing her at gunpoint from testifying, and then 

parlayed his multiple criminal miscues first by trying to kill her himself and then, when 

he failed, attempting to hire someone to do it for him. 

Given the facts and circumstances of this continuous, inter -connected episode, 

the "other acts" evidence that was introduced in the trial satisfied several of the 

enumerated "exceptions" and "purposes" for which other acts evidence is permitted 

under Pa. R.E. 404(b)(2), including motive, opportunity, intent, preparation, plan, and 

knowledge. Further, these cases are poster cases for the separate "res gestae" 

exception since Defendant's "prior bad acts," as well as his "subsequent bad acts," 

unquestionably provided context for and the complete story of the events surrounding 

the crimes charged in Pennsylvania and are part of the chain, sequence, and natural 

development of events that form the history of these cases, whether the cases are 

'A total of 85 days elapsed between the March 21, 2010 assault in Pennsylvania and the June 14, 2010 incident in 

which Defendant ran Ms. Andrews of the road on Route 84 in New York. During this time, Defendant was incarcerated in Pennsylvania for at least 50 days. As noted, the Route 84 incident occurred only four days after 

Defendant was released on bail. 

14 
viewed individually, together, or as part of the continuing episode that concluded with 

Defendant's second arrest in New York. Clearly, the evidence was relevant, under 

both the legal and common meanings of that term, for these purposes. 

The challenged evidence was also relevant and admissible for other reasons 

and purposes. Specifically, at least some of the evidence constituted direct evidence 

of one or more of the crimes charged, including Intimidation of a Witness, Retaliation 

Against a Witness or Victim, Stalking, Threat or Coercion to Commit a Crime, and 

Harassment. Along similar lines, these two cases were joined for trial without 

objection. Thus, direct evidence of the crimes charged in each case was properly 

admitted even though some of the direct evidence in one case might be considered to 

be "other acts evidence" as to the other case. In addition, evidence consisting of 

subsequent acts, including evidence of Defendant's criminal and self -injurious actions 

in New York, was relevant to show consciousness of guilty flight,-and-attemptto 

eliminate a material witness. 

In sum, Defendant's general, conclusory assertion that all of the Rule 404(b) 

other acts evidence was irrelevant does not hold water. At minimum, the evidence was 

relevant for at least the multiple purposes listed above. 

The contention that the prejudicial impact of the evidence outweighed its 

probative value is equally without merit. There is no question that a substantial amount 

of other acts evidence was admitted. There is also no question that there was some 

prejudicial impact. However, as the cases cited in the hearing addenda indicated, we 

were not required to sanitize the trial to protect Defendant from his own conduct 

toward the victim. These are not cases in which the legitimacy, accuracy, or need for 

the evidence was questionable. Similarly, these are not cases where the 

15 
Commonwealth's strategy was to show that Defendant was a person of bad character 

by introducing evidence of unconnected bad acts against different persons that were 

separate from and had no temporal connection to the charges being tried. Rather, as 

discussed, the challenged evidence, whether viewed individually or as a whole, was 

relevant for multiple legitimate purposes, including in some instances as direct 

evidence of crimes charged; the evidence was fresh and part of a continuous, ongoing, inter -connected episode of stalking, harassment, intimidation, threats, and 

physical assaults that was focused on a single victim over a short period of time, rather 

than acts that were unconnected and attenuated to the charges on trial; the evidence 

was necessary to provide context for the crimes charged and the history of these 

cases; and substantial evidence that Defendant committed the other acts was 

presented. Defendant's conduct toward and attempts to silence Ms. Andrews and 

settled rules of evidence, not an improperly motivated Commonwealth litigation 

strategy or theory of the case, brought about the evidence and made the evidence 

both relevant and necessary, especially as to case 840 in which there were no direct 

witnesses other than Ms. Andrews and Defendant. Further, some of the other acts 

evidence - evidence relating to prior bad acts including prior convictions and treatment 

of women - was admitted only as a result of, and in direct response to, Defendant 

taking the stand against his attorney's advice and lying about his past record. Finally, 

we gave required limiting instructions (N.T., 6/22/2016, pp. 29-30; N.T., 6/22/2016, pp. 

87-88). 

Weighing and balancing the relevance of the other acts evidence against its 

prejudicial impact under the particular facts and circumstances of these cases, we 

16 
found that the probative nature of the evidence outweighed the prejudice to Defendant. 

We stand behind that determination, 

Part two of this assignment of error alleges that, in imposing sentence, we erred 

by considering Defendant's prior and subsequent bad acts. This assertion, which was 

first raised or at least implied at time of sentencing, merits little response and may be 

disposed of quickly. As we stated during the sentencing hearing in responding to 

statements made by Defendant and his attorney and in explaining the reasons for the 

sentence imposed: 

So regardless of the evidentiary merit or lack of merit in your 

mind of the other acts evidence, the other acts that you 

committed are certainly legitimate factors to consider in 

imposing sentence, In fact if I were not to consider the other 

acts that you committed against the same victim and your prior 

record in general I wouldn't be doing my job. 

(N.T., 8/30/2016, p.34). 

On a more academic and analytical level, sentencing is a matter within the 

sound discretion of the trial court, See Commonwealth v. Walls, 926 A.2d 957 (Pa. 

2007), The court must impose a sentence that is "consistent with the protection of the 

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

on the community, and the rehabilitative needs of the defendant." 42 Pa.C,S. § 

9721(b). See Walls, 926 A.2d at 967-68; Commonwealth v. Dodge, 957 A.2d '1198, 

1200 (Pa, Super. 2008) ("Dodge IP), appeal denied, 980 A.2d 605 (Pa. 2009). 

Additionally, a court should consider the particular circumstance of the offense and the 

character of the defendant, and should refer to the defendant's prior criminal record, 

his age, personal characteristics and his potential for rehabilitation. Commonwealth v. Mowry, 992 A.2d 162, 171 (Pa. Super. 2010) (citing Commonwealth v. Griffin, 804 

17 
A.2d 1, 10 (Pa. Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. den, 545 

U.S. 1148 (2005)). 

The court determines whether aggravating circumstances exist. If aggravating 

circumstances are present, "the court may impose an aggravated sentence ...." 204 

Pa. Code. § 303.13(a). A sentencing judge "has wide discretion in sentencing and can, 

on the appropriate record and for the appropriate reasons, consider any legal factor in 

imposing a sentence in the aggravated range." Commonwealth v. Stewart, 867 A.2d 

589, 593 (Pa. Super. 2005) (citation omitted). See also Commonwealth v. Duffy, 491 

A.2d 230, 233 (Pa. Super. 1985) (holding that a sentencing judge may consider any 

legal factor in deciding whether a defendant should be sentenced within the 

aggravated range). A sentencing judge may even consider uncharged criminal 

conduct for sentencing purposes. 

Not only does the case law authorize a sentencing court to 

consider unprosecuted criminal conduct, the sentencing 

guidelines essentially mandate such consideration when a prior 

record score inadequately reflects a defendant's criminal 

background. 

Commonwealth v. P.L,S., 894 A.2d 120, 131 (Pa. Super. 2006), appeal denied, 906 

A.2d 542 (Pa. 2006). See also 204 Pa. Code §303.5(d). 

At bar, Defendant's acts and conduct before, during, and after commission of 

the crimes charged related directly to many of the factors we were required to consider 

in imposing sentence, as well as other factors we were permitted to consider, 

including, but not limited to: the nature and gravity of the offenses; circumstances 

surrounding the offenses; impact on the victim; impact on the community/society; harm 

caused; public safety/community protection; number of people imperiled in the Route 

84 incident; and Defendant's character, prior record, violent propensities, rehabilitative 

18 
prospects or lack thereof, amenability or lack of amenability to supervision, attitude 

towards and treatment of women, lack of restraint, and non-compliance with both laws 

and court orders, Additionally, some of the other acts were by themselves aggravating 

factors, while others were proper to consider in determining whether aggravating 

circumstances existed, This is especially true in these cases since Defendant's prior 

record score was woefully inadequate to reflect his criminal activity, As our on -record 

statements during the sentencing hearing demonstrate, we considered Defendant's 

other acts for these legitimate sentencing purposes and not, as Defendant has 

charged, to punish him for his conduct in New York or to deprive him of due process. 

(N.T., 8/30/2016, pp. 29-46), There was simply no error or abuse of discretion in 

considering Defendant's "other" acts and conduct when imposing sentence. 

3. We Properly Allowed the Commonwealth to Play the Recording of the 

Consensual Wire Intercept 

In his third assignment of error, Defendant claims that allowing the 

Commonwealth to introduce and play the recorded conversations in which he 

attempted to hire a third party to kill Ms. Andrews violated his Confrontation Rights. 

Specifically, Defendant contends that the audio of the jailhouse informant constitutes 

"testimonial hearsay" that is inadmissible under the Confrontation Clause, presumably 

because he did not have the opportunity to cross examine the informant, This 

constitutional challenge also lacks merit. 

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court of the 

United States held that testimonial hearsay statements may not be introduced against 

a defendant, even if the statement falls into an established hearsay exception or has 

particularized indicia of reliability, unless the declarant is unavailable at trial and the 

defendant had a prior opportunity to confront and cross-examine the declarant, In 

19 
general, the rule applies only to "testimonial" hearsay that is used or intended to prove 

the truth of the matter asserted. 

In cases decided after Crawford was announced, our Superior Court, the Third 

Circuit Court of Appeals, and district courts within the Third Circuit have addressed the 

argument raised by Defendant. The cases have consistently held that introduction of 

statements lawfully -obtained through a traditional wiretap does not violate the 

defendant's confrontation rights because the statements are non -testimonial, and 

therefore, not subject to the rule announced in Crawford, The cases have also 

consistently held that consensually -recorded conversations between a defendant and 

an informant of the type at issue here are constitutionally admissible. As to consensual 

intercepts, statements by defendants and co-conspirators are admissible because the 

statements are considered to be non -testimonial (and either not hearsay or statements 

that fall within a hearsay exception). Statements made by the informant, even if 

considered testimonial, are admissible and not violative of the defendant's 

confrontation rights because the statements are not introduced to prove the truth of the 

matter asserted, but rather, to provide context for the conversation, to put the 

conversation into perspective, and to make the conversation intelligible to the jury and 

the defendant's portion recognizable as admissions. See Commonwealth v. Holton, 

906 A.2d 1246 (Pa. Super. 2006); U.S. v. Berrios, 676 F.3d 118 (3d Cir. 2012); U.S. v. Hendricks, 395 F.3d 173 (3d Cir, 2005); U.S. v. Ligambi, 891 F.Supp.2d 709 (ED. Pa. 

2012); U.S. v. Estevez, 2013 WL 3196421 (ED. Pa., filed June 25, 2013), 

Hendricks illustrates these holdings and provides an in-depth analysis of the 

confrontation issue raised by Defendant. In Hendricks, the Third Circuit interpreted the 

meaning of "testimonial evidence" under Crawford and assessed the distinction 

20 
between "testimonial" and "non -testimonial" statements in the context of both types of 

recorded conversations - traditional wiretap and consensual intercept - referenced 

above. Regarding evidence obtained through a traditional wiretap, the Third Circuit 

held that the intercepted statements were non -testimonial because they were 

surreptitiously recorded and unwittingly made. The Third Circuit found that the 

statements were more akin to remarks casually made to an acquaintance than formal 

statements made by a person who intends to bear witness, that the recorded 

statements did not fall within and were not analogous to the specific examples of 

"testimonial" statements given in Crawford, and, similarly, that the statements did not 

fall within the core category of ex parte testimonial statements that the High Court was 

concerned with in Crawford. Since the statements were non -testimonial, their 

- 

introduction did not violate either the defendant's confrontation rights or the Crawford 

rule. Hendricks, 395 F.3d at 181-83. 

As to consensual recordings made by an informant, the Third Circuit concluded 

that the party admission and co-conspirator portions of the intercept were not 

testimonial, and therefore, admissible. With respect to the statements of the 

confidential informant, the Third Circuit saw no need to reach the issue of whether the 

informant's statements were testimonial or non -testimonial. Instead, the Third Circuit 

held that the government should be permitted to introduce the informant's statements 

to provide context for the intercepted conversations and to put the conversations "into 

perspective and make them intelligible to the jury and recognizable as admissions." id. 

at 184 (internal citations and quotations omitted). The court held that, when the 

defendant or his co-conspirator makes a statement as part of a °reciprocal and 

integrated conversation with a government informant" that is consensually recorded, 

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"the Confrontation Clause does not bar the introduction of the informant's portions of 

the conversation as are reasonably required to place the defendant or co-conspirator's 

statements into context," Id. See U.S. v. Ligambi, supra; U, S. v, Estevez, supra. The 

basis of this holding is that the Confrontation Clause "does not bar the use of 

testimonial statements for purposes other than establishing the truth of the matter 

asserted." Id. at 183 (quoting Crawford , 541 U.S. at 47), 

in Holton, our Superior Court used the same basic rationale to find that 

statements made by a co-conspirator about the defendant's actions and statements 

that were captured though a wire worn by an undercover narcotics officer during a 

"buy -bust" operation were non -testimonial, and therefore, constitutionally admissible, 

Citing and discussing Hendricks, and interpreting Crawford, the Superior Court found 

that the informant was a co-conspirator, that the subject conversation was 

surreptitiously recorded, that the conversation did not fall within any of the examples of 

testimonial evidence given in Crawford, and that the informant's statements were 

unwittingly made without any indication that they would later be used for prosecutorial 

purposes, Holton, 906 A.2d at 1254, 

Hendricks and Holton were issued soon after Crawford was announced and 

before the High Court decided subsequent cases that clarified the Crawford rule. As a 

result, both courts continued to apply the Confrontation Clause to non -testimonial 

hearsay through the indicia of reliability test established in Ohio v. Roberts, 448 U.S. 

56 (1980), which decision was partially abrogated by Crawford. However, in 

subsequent decisions: 

the Court overruled Roberts in its entirety, holding without 

qualification that the Confrontation Clause protects the 

defendant only against the introduction of testimonial hearsay 

statements, and that admissibility of nontestimonial hearsay is 

22 
governed solely by the rules of evidence. See Davis v. Washington, 547 U.S. 813, 823-24, 126 S.Ct. 2266, 165 

L.Ed.2d 224 (2006) (holding that, under Crawford, the 

Confrontation Clause protects only against admission of 

testimonial hearsay, because "a limitation so clearly reflected in 

the text of the constitutional provision must fairly be said to 

mark out not merely its 'core,' but its perimeter"); Michigan v. Bryant, - U.S. --, 131 S.Ct. 1143, 1152-53, 179 L.Ed.2d 

93 (2011) (confirming that Crawford limits the reach of the 

Confrontation Clause to testimonial statements); Wharton v. Bockting, 549 U.S. 406, 419-20, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) ("Under Crawford, the Confrontation Clause has no 

application to [out -of -court nontestimonial statements] and 

therefore permits their admission even if they lack indicia of 

reliability."). 

Hendricks, 676 F.3d at 126. Accorclingly, where non -testimonial hearsay is concerned 

"the Confrontation Clause has no role to play in determining the admissibility of a 

declarant's statement [and] the 'indicia of reliability' test of Roberts is no longer an 

appropriate vehicle for challenging admission of nontestimonial hearsay." id. 

(footnotes omitted). 

In this case, it is unclear whether Defendant is challenging the entire recording, 

including his own statements, or just the statements of the informant. To the extent he 

is challenging his own statements, it is clear that the statements are constitutionally 

admissible. 

Defendant's portion of the recording are comprised of the statements of a party 

- party admissions and statements against interest. As such, they are not hearsay, or, 

in the alternative, clear examples of exceptions to the hearsay rule. This is especially 

true since the statements were made during a conversation in which Defendant was 

conspiring or attempting to conspire with the informant to hire a hit man to kill Ms. 

Andrews, Additionally, under the law cited above Defendant's statements are clearly 

non -testimonial, and therefore, the Confrontation Clause does not prohibit their 

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admission, In this regard, Defendant's statements were statements of a conspirator to 

his co-conspirator in furtherance of the conspiracy, were unwittingly made and 

surreptitiously recorded, were party admissions, were not anticipated to be used in a 

later criminal prosecution, and do not fall within the core category of ex party 

testimonial statements that the High Court was concerned with in Crawford. 

The informant's statements are also constitutionally admissible. Since the 

informant himself was a conspirator speaking to his co-conspirator in furtherance of 

the conspiracy, his statements were non -testimonial, Alternatively, even if the 

statements are deemed to be testimonial, they were not admitted for the truth of what 

the informant said, Instead, as in Hendricks, Ligambi, and Estevez, the statements 

were part of a "reciprocal and integrated conversation" with Defendant that were 

introduced to provide "context" and "perspective" for the conversation and make 

Defendant's portion of the conversation "intelligible to the jury and recognizable as 

admissions," Indeed, the informant's statements in the cases at bar present a clearer 

example of constitutionally admissible informant statements than those involved in the 

cases cited above since, as noted, the informant in these cases was himself a 

conspirator who had direct conversations with Defendant, his co-conspirator, and was 

not, as in the cited cases, a third party who was part of multi -person dialog. 

Under these circumstances and the law cited above, the Confrontation Clause 

did not bar introduction of the consensual recordings played at trial. Accordingly, 

Defendant's constitutional challenge - the only evidentiary challenge raised as to the 

intercepted conversation - fails, 

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4. The Evidence Presented at Trial Was Sufficient to Sustain_the 

Kidnapping Convictions 

In his fourth assignment of error, Defendant contends that we erred by denying 

his motion for an arrest of judgement on the Kidnapping charges because, in his view, 

the evidence was insufficient to establish the "place of isolation" element of 

Kidnapping. Our reasons for denying the motion and finding that sufficient evidence 

was presented to sustain the convictions were explained during the hearing on 

Defendant's post sentence motions, and the standards and law we applied were 

recited in the hearing addendum that is attached to this opinion as Appendix C. (N.T., 

2/1/2017, pp. 37-39 and Addendum). Our prior on -record statements and the 

accompanying addendum adequately, properly, and fully address Defendant's fourth 

assignment of error. For the reasons we previously articulated, this assignment of 

error lacks merit. 

5. We Properly Applied the Deadly Weapon Enhancement 

In his fifth and final assignment of error, Defendant asserts that, in imposing 

sentence, we erred by applying the deadly weapon enhancement. Our finding that 

Defendant used a deadly weapon -a gun - was made during the sentencing hearing 

(N.T., 8/30/2016, pp. 40-41), our reasons for applying the enhancement and for 

rejecting Defendant's argument were expanded on during the hearing on Defendant's 

post sentence motions, and the law we applied is summarized in the hearing 

addendum that is attached to this opinion as Appendix C. (N.T., 2/1/2017, pp. 39-40 

and Addendum). Our prior on -record statements and the accompanying addendum 

adequately, properly, and fully address Defendant's fifth assignment of error. For the 

reasons we previously articulated, this assignment of error, like the others, lacks merit. 

25 
For these reasons, we believe that the judgments of sentence should be 

affirmed. 

BY THE COURT: 

Jon Mark, Judge ,--. c... 0 .._, 4- 1,-- .',3 Trr 0 --c cc: Superior Court of Pennsylvania m A . , Jonathan Mark, J. 

ca 

cs C -D 0 

.-r1 District Attorney (MTR) 

--. ... a) c) Eleanor M, Breslin, Esq. c: ry cJ 

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