J-A12003-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

CHARLES KERR,

Appellant No. 308 WDA 2018

Appeal from the Judgment of Sentence Entered January 9, 2018

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0000561-2017

BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 10, 2019

Appellant, Charles Kerr, appeals from the judgment of sentence of an 

aggregate term of 111⁄2 to 23 months’ incarceration, followed by five years’ 

probation, imposed after a jury convicted him of various offenses, including 

statutory sexual assault. Appellant raises a plethora of issues on appeal, 

including a challenge to the trial court’s denial of his pretrial motion to 

suppress evidence, and claims that the court erred in ruling on certain 

discovery and evidentiary issues. After careful review, we affirm.

The trial court provided the following summary of the evidence 

presented at Appellant’s trial:

Briefly, the evidence presented at trial established that on 

February 20, 2016, [Appellant], then 36 years old, contacted 

[K.E.], then 15 years old, online via the Kik [Messenger] app. The 

two messaged back[]and[]forth through Kik, then [later] through 

texting. During these conversations, [Appellant] encouraged 

[K.E.] to send him naked pictures of herself and she complied. 
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[K.E.] told her mother she was going out to her friend’s house and 

would be spending the night. As this was a common occurrence, 

her mother agreed. [Appellant] drove from his residence in 

Greene County and picked [K.E.] up near her home in Plum 

Boro[ugh]. The two went to Boyce Park and walked around and 

during this time, [Appellant] kissed [K.E.]. They got back into 

[Appellant’s] car and he drove towards his house, making stops 

at a[n] Eat ‘n Park restaurant in Washington County and a 

Goodwill store near the restaurant. They arrived at [Appellant’s] 

house after 10 p.m. and went directly to [Appellant’s] bedroom 

where they had vaginal and oral intercourse and watched a movie 

before going to sleep. In the morning, they woke and had vaginal

and oral intercourse again and showered after. [Appellant] drove 

[K.E.] home and dropped her off at a bar near her house. [K.E.]

went into her house, greeted her parents and showered again.

Then [K.E.] called her friend, at whose house she told her parents 

she was spending the night, and told her what happened. [K.E.’s]

friend told her mother, who called [K.E.’s] mother, who confronted 

[K.E.] and then called the police.

Trial Court Opinion (TCO), 7/18/18, at 2.

Based on this evidence, Appellant was charged 

with two (2) counts each of Involuntary Deviate Sexual 

Intercourse of a Person Under 161 and Unlawful Contact with a

Minor2[;] with four (4) counts of Statutory Sexual Assault3[;] and 

with one (1) count each of Corruption of Minors,4Interference with 

Custody of a Minor,5 Criminal Use of a Communication Facility[,]6

and Indecent Assault of a Person Under 16.7 A jury trial was held 

... from September 27, 2017 to October 5, 2017[,] and at its 

conclusion, [Appellant] was convicted of two (2) counts of 

Statutory Sexual Assault, Corruption of Minors, Interference with 

Custody of a Minor, Criminal Use of a Communication Facility[,]

and Indecent Assault of a Person Under 1[6]. He was acquitted of 

the rem[aining] charges. He appeared before [the trial] [c]ourt 

on January 9, 2018, when he was sentenced to a term of 

imprisonment of 111⁄2 to 23 months[’ incarceration], with a 

subsequent term of probation of five (5) years. Timely PostSentence Motions were filed and were denied on January 30, 

2018. This appeal followed.

1 18 Pa.C.S.[] § 3123(a)(7)....

2 18 Pa.C.S.[] § 6318(a)(1) ... and § 6318(a)(5)....

3 18 Pa.C.S.[] § 3122.1(b)[.]
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4 18 Pa.C.S.[] § 6301(a)(1)(ii)[.]

5 18 Pa.C.S.[] § 2904(a)[.]

6 18 Pa.C.S.[] § 7512(a)[.]

7 18 Pa.C.S.[] § 3126(a)(7)[.]

Id. at 1-2.

After filing a notice of appeal, Appellant timely complied with the trial 

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. The trial court thereafter filed a responsive Rule 

1925(a) opinion. Herein, Appellant presents the following four issues for our 

review:

I. Did the [trial] court err by denying [Appellant] discovery, his 

discovery request(s)[,] and his ability to obtain, review, possess, 

use and reproduce discovery?

II. Did the [trial] court err, after 5 days of trial, by denying defense 

counsel’s request for a short recess before closing arguments to 

prepare his closing for the jury, and than [sic] recessing after 

defense counsel’s closing so the prosecution could prepare closing 

aguements [sic]?

III. Did the trial court err under the Best Evidence Rule by allowing 

the Commonwealth to use a hand[-]typed recreation of evidence 

in lieu of the actual phone extraction report/texts and 

communications[?]

IV. Did the trial court err by failing to suppress and/or exclude 

statements made by [] Appellant at the time of arrest that were 

made when Appellant was not Mirandized,

[1] made to his 

attorney and taken out of context to prove guilt at trial[?]

Appellant’s Brief at 6-7.2

____________________________________________

1 Miranda v. Arizona, 86 S.Ct. 1602 (1966).

2 Appellant’s first and third issues each contain four sub-claims, thus totaling 

10 issues for our review. As the trial court observed in light of the 31 claims 

Appellant set forth in his Rule 1925(b) statement, see TCO at 3 n.8, this Court 
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Appellant first contends that the court erred in denying his pretrial 

motion to compel discovery under Pa.R.Crim.P. 573, and that the 

Commonwealth failed to turn over material evidence in violation of Brady v. 

Maryland, 373 U.S. 83 (1963). Specifically, Appellant sought discovery of a 

CD containing approximately 40,000 data files that were extracted from the 

victim’s cellular phone. While the Commonwealth turned over some of that 

data to Appellant, it refused to provide him with a copy of the entire phone 

extraction because it included thousands of images of child pornography 

(namely, nude photographs of the victim). However, the Commonwealth 

allowed Appellant and his defense counsel to view the entire CD at the District 

Attorney’s Office. Appellant insists that this access was not sufficient, as he 

was only able to review the CD on two occasions for approximately 8 hours 

combined, and he was not permitted to copy or photograph any of the data. 

Appellant also contends that the files on the CD were downloaded in a 

confusing fashion, and the Commonwealth denied his request for their ‘tech 

person’ to assist him in searching the data. Despite these difficulties, 

____________________________________________

has “held that when an appellant raises an extraordinary number of issues on 

appeal, as in this case, a presumption arises that there is no merit to them.” 

Estate of Lakatosh, 656 A.2d 1378, 1380 n.1 (Pa. Super. 1995); see also 

Commonwealth v. Showers, 782 A.2d 1010, 1016 (Pa. Super. 2001) 

(quoting Judge Ruggiero Aldisert’s statement that where 

“an appellant’s brief ... contains ten or twelve points, a presumption arises that 

there is no merit to any of them. I do not say that this is an irrebuttable 

presumption, but it is a presumption nevertheless that reduces the 

effectiveness of appellate advocacy. Appellate advocacy is measured by 

effectiveness, not loquaciousness”) (citations omitted). 
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Appellant “found evidence on the [CD] that appeared to be exculpatory[,] as 

it showed the ‘victim’ in conversation with an out[-]of[-]state boyfriend/significant other on the day of the alleged incident[,] which supported 

the contention in Appellant’s testimony that she had left with someone else.” 

Appellant’s Brief at 27-28. Appellant contends that his discovery of this 

information on the CD demonstrates that the Commonwealth committed a 

Brady violation, and that the court erred by denying his motion to compel the 

Commonwealth to provide him with a copy of entire contents of the CD, or at 

least the non-pornographic information contained thereon.

Initially, we have explained that Rule 573 “declares a preference for 

informal discovery, contemplating that the parties will ‘make a good faith 

effort to resolve all questions of discovery, and to provide information required 

or requested under these rules as to which there is no dispute.’” 

Commonwealth v. Maldonodo, 173 A.3d 769, 773 (Pa. Super. 2017) 

(quoting Pa.R.Crim.P. 573(A)). “Rule 573 states that informal discovery must 

take place before a party may request discovery via motion.” Id. If such 

motion is filed, the rule sets forth the items of discovery that the 

Commonwealth must supply. See id. Pertinent to the present case, Rule 573 

states:

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the 

defendant, and subject to any protective order which the 

Commonwealth might obtain under this rule, the 

Commonwealth shall disclose to the defendant’s attorney all 

of the following requested items or information, provided 
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they are material to the instant case. The Commonwealth 

shall, when applicable, permit the defendant’s attorney to 

inspect and copy or photograph such items.

(a) Any evidence favorable to the accused that is 

material either to guilt or to punishment, and is within 

the possession or control of the attorney for the 

Commonwealth;

Pa.R.Crim.P. 573(1)(a) (emphasis added). 

In Maldonodo, we explained:

Rule 573 does not abridge or limit the Commonwealth’s duty to 

provide discovery pursuant to Brady ... and its progeny. “In 

Brady, the United States Supreme Court held that the 

suppression by the prosecution of evidence favorable to an 

accused upon request violates due process where the evidence is 

material either to guilt or to punishment irrespective of the good 

faith or bad faith of the prosecution.” Commonwealth v. Burke, 

566 Pa. 402, 781 A.2d 1136, 1141 (2001) (quotation marks 

omitted). “There are three components of a true Brady violation: 

The evidence at issue must be favorable to the accused, either 

because it is exculpatory, or because it is impeaching; that 

evidence must have been suppressed by the State, either willfully 

or inadvertently; and prejudice must have ensued.” Strickler v. 

Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 

(1999).

However, the rule imposes greater obligations upon prosecutors 

than the Brady requirements. ... Nevertheless, our cases 

frequently analyze whether a particular discovery sanction was 

justified by analyzing whether the evidence was required to be 

disclosed pursuant to Brady. See e.g.[,] Commonwealth v. 

Robinson, 122 A.3d 367 (Pa. Super. 2015) (reversing order 

precluding Commonwealth from introducing evidence, analyzing 

Brady). That one would draw upon Brady principles in 

determining materiality is unsurprising since the rule limits 

disclosure to “material” items, Pa.R.Crim.P. 573(B), and “material 

for Brady purposes” has a particular meaning. See e.g.[,]

Commonwealth v. Willis, 616 Pa. 48, 46 A.3d 648 (2012) 

(noting that admissibility at trial is not a prerequisite to disclosure 

under Brady).
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Maldonodo, 173 A.3d at 774. Specifically, our Supreme Court has declared 

that,

the touchstone of materiality is whether there is a reasonable 

probability that, had the evidence been disclosed to the defense, 

the result of the proceeding would have been different. Therefore, 

nondisclosed favorable evidence which is not admissible at trial 

may nonetheless be considered material for Brady purposes 

where the Commonwealth’s failure to disclose such evidence 

adversely affected the presentation of the defense at trial, or the 

defense’s preparation for trial, such that there is a reasonable 

probability that, had the evidence been disclosed to the defense, 

the result of the proceeding would have been different. We 

emphasize, however, that “mere speculation” by a defendant will 

not be sufficient to meet this burden. Rather, in order to establish 

a reasonable probability that the result of the proceeding would 

have been different had the evidence been disclosed, a 

defendant necessarily must identify specific evidence or 

information that would have been uncovered, and explain 

how that evidence or information would have changed the 

result of the proceeding.

Commonwealth v. Willis, 46 A.3d 648, 670 (Pa. 2012) (emphasis added; 

internal citations omitted).

Appellant has failed to meet this burden. Initially, the Assistant District 

Attorney (ADA) prosecuting this case repeatedly stated on the record that he 

had provided defense counsel with the material information that he had found 

when reviewing the data extracted from the victim’s phone. See N.T. Hearing, 

9/26/17, at 12 (ADA’s stating that he provided discovery to Appellant on 

several occasions beginning in April of 2017, including “[p]rintouts of some 

sections of conversations between the victim and [Appellant] from the victim’s 

phone”); N.T. Hearing, 9/27/17, at 12-13 (ADA’s stating: “I looked through 

the phone to the best of my ability [and] ... did not see anything that jumped 
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out as exculpatory. If [there] was, I would have provided it to defense 

counsel.”); id. at 13 (ADA’s explaining that he printed out “numerous things 

from the phone and sen[t] it in paper form” to defense counsel); N.T. Trial, 

10/2/17, at 205 (ADA’s stating that, in regard to the phone extraction, he 

“printed out pertinent pages from the extraction that [he] thought counsel 

would need, knowing that he was still going to come in person and watch”). 

Additionally, Appellant and his defense counsel were given unlimited 

opportunities to review the entire contents of the CD. The fact that defense 

counsel only viewed the CD twice, for a total of eight hours, was not the fault 

of the Commonwealth, where nothing in the record indicates that the 

Commonwealth limited Appellant’s ability to review that material. 

Moreover, it was during Appellant’s review of the CD at the District 

Attorney’s Office that he ostensibly uncovered the information about the other 

individual with whom the victim was communicating on, or close to, the day 

she met with Appellant. Thus, the Commonwealth did not withhold this 

information from Appellant in violation of Brady. While Appellant insists a 

Brady violation occurred because “the [c]ourt ... refuse[d] to allow any 

testimony about [that other individual], after the victim confirmed she [k]new 

him and may have been talking to him around that time[,]” he provides no 

citation to where in the record this decision by the court occurred. Appellant’s 

Brief at 28. In any event, it is the Commonwealth, not the trial court, that 

has disclosure obligations under Brady; thus, Appellant’s nonsensical 

argument is meritless.
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Appellant also alleges that he found “numerous videos and images and 

texts in the phone which directly contradicted statements the victim made 

during the investigation, such as being a virgin, never seeing a penis, and her 

testimony that she didn’t have a boyfriend at the time.” Appellant’s Brief at 

33. Again, the Commonwealth clearly did not withhold this evidence from 

Appellant, as he found it while reviewing the CD at the District Attorney’s 

Office. To the extent that Appellant speculates, generally, that there was 

more material information on the CD that he was unable to uncover, he has 

failed to identify what, specifically, that information would entail or how it 

would have changed the outcome of his trial. See Willis, supra. Notably, 

Appellant does not contend that since trial, the Commonwealth has denied 

him access to the CD. Thus, he has not demonstrated an abuse of discretion 

in the court’s ruling on his motion to compel discovery of the contents of the 

CD, nor that the Commonwealth violated the dictates of Brady. 

Appellant also contends, in a sub-claim under his first issue, that the 

court abused its discretion in denying his motion for a continuance of trial, 

filed in September of 2017, on the basis that the Commonwealth had not 

turned over a copy of the entire contents of the CD containing all of the data 

extracted from the victim’s phone. Notably, even though Appellant did not 

have a copy of the CD, he was provided access to review it beginning in April 

of 2017. The fact that he only examined the data for a total of eight hours 

over the following five months before filing his continuance request was his 

fault alone, and it did not obligate the court to grant him a continuance. 
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Therefore, we find no abuse of discretion by the trial court. See 

Commonwealth v. Hansley, 24 A.3d 410, 418 (Pa. Super. 2011) (“The 

grant of a continuance is discretionary and a refusal to grant is reversible error 

only if prejudice or a palpable and manifest abuse of discretion is 

demonstrated.”) (citation omitted). 

In Appellant’s final sub-claim under his first issue, he alleges that the 

trial court had ex parte communications with the Commonwealth about his 

motion to compel discovery, as evidenced by the fact that the court knew —

without any on-the-record information — that defense counsel had been late 

to one scheduled viewing of the CD. Appellant’s Brief at 30. As the 

Commonwealth points out, Appellant never raised this claim of ex parte 

communications before the trial court. See Commonwealth’s Brief at 19 n. 8. 

Thus, it is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court 

are waived and cannot be raised for the first time on appeal.”).

In Appellant’s second issue, he contends that the trial court erred by 

refusing defense counsel’s request for a short recess before closing 

arguments. See N.T. Trial, 10/2/17, at 546. According to Appellant, while 

his “trial was not the longest or most difficult case[,]” the “closing arguments 

required the recollection of substantial facts to be recalled and re-presented 

[sic] in closing.” Appellant’s Brief at 38. Appellant also challenges the court’s 

decision to break for a lunch recess before the Commonwealth’s closing 

argument. Appellant insists that this decision, made after the court denied 
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defense counsel’s request for a recess before closing, showed that the court 

was bias and partial towards the Commonwealth.

We view the court’s denial of a recess request as akin to the denial of a 

continuance and, thus, we apply an abuse-of-discretion standard of review. 

See Hansley, supra. Here, Appellant has not demonstrated an abuse of 

discretion by the court. As the Commonwealth stresses, 

at the end of testimony the previous day - October 3 - [the court] 

had told both attorneys that [it] expected closing arguments to 

take place the following morning. ... [T]he only testimony that 

took place on the morning of October 4 was the resumption of that 

of [Appellant] himself — [Appellant] had begun his testimony the 

previous afternoon — and a very brief character witness called by 

the defense. Thus, defense counsel not only had been put on 

notice as to when his closing argument was to take place, but he 

also would have heard very few additional facts that morning, all 

of which [came] from the mouth of [Appellant]. Given that 

counsel was surely familiar with the version of events that 

[Appellant] wished to present to the jury, those facts would have 

been quite easy to incorporate into a closing argument that 

counsel had had more than enough time to prepare the previous 

evening. For this reason, the trial court certainly cannot be said 

to have abused its discretion in denying a [recess] so that counsel 

could work on his argument further.

Commonwealth’s Brief at 20-21. We agree with the Commonwealth. We also 

observe that Appellant fails to identify any way in which his closing argument 

would have been different had his request for a recess been granted. 

Therefore, he has not demonstrated that the court abused its discretion by 

denying his recess request, or that he suffered any prejudice in light of that 

decision.
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We also agree with the Commonwealth’s position that Appellant waived 

his claim that the court erred by recessing for lunch before the prosecutor’s 

closing argument. Appellant never objected when the court stated it was 

recessing at that time, nor raised any issue with the court’s decision to do so 

when the trial reconvened for the Commonwealth’s closing argument. See 

N.T. Trial, 10/2/17, at 566. Thus, he cannot now claim, for the first time on 

appeal, that the court’s conduct prejudiced him, or that it evidenced that the 

court was biased in favor of the Commonwealth. See Pa.R.A.P. 302(a).

In Appellant’s third issue, he avers that the trial court erred by allowing 

the Commonwealth to admit evidence that violated the “best evidence” rule, 

which provides: “An original writing, recording, or photograph is required in 

order to prove its content unless these rules, other rules prescribed by the 

Supreme Court, or a statute provides otherwise.” Pa.R.E. 1002. Appellant 

explains that, prior to trial, the Commonwealth provided him with 

approximately 50 pages of data taken from the victim’s phone. This “miniextraction,” as Appellant calls it, “was what the [Commonwealth] wanted to 

use as evidence, which is why Appellant was given a copy of it.” Appellant’s 

Brief at 42. However, according to Appellant, the Commonwealth did not seek 

to admit at trial the original pages provided to Appellant during discovery; 

instead, Appellant alleges that the prosecutor “took conversations from the 

mini-extraction and typed [them] into his own form in a Microsoft-word [sic] 

document” and sought to admit it as Exhibit 1. Id. at 42; see N.T. Trial, 

9/28/17, at 154-55. Appellant “objected on the grounds of the ‘Best Evidence 
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Rule’ because the [prosecutor] actually had the original conversation and it 

appeared to be different in form, if not substance. The [c]ourt overruled 

Appellant’s objection and allowed it in.” Id.; see N.T. Trial, 9/28/17, at 155.

Additionally, Appellant also takes issue with the court’s admission of the 

Commonwealth’s Exhibit 9 later at trial. Specifically, the Commonwealth 

sought to admit a document containing Kik app messages between the victim 

and Appellant. See N.T. Trial, 10/2/17, at 201-02. Appellant again objected 

on the basis of the best evidence rule and, in response, the Commonwealth 

stated that the document was “the original from the extraction.” Id. at 203. 

Accordingly, the court overruled Appellant’s objection. 

Appellant now contends that the court’s admission of these two exhibits 

was reversible error. We are not convinced. Initially, we note that 

“[q]uestions regarding the admissibility of evidence rest within the trial 

judge’s discretion, and an appellate court will reverse the judge’s decision only 

for an abuse of discretion.” Commonwealth v. Vandivner, 962 A.2d 1170, 

1179 (Pa. 2009) (citations omitted).

Here, the Commonwealth contends that “the exhibits at issue were, in 

fact, the original messages” extracted from the victim’s phone. 

Commonwealth’s Brief at 25. The record demonstrates that the trial court 

accepted the Commonwealth’s claim, at least pertaining to Exhibit 9, and we 

cannot deem that decision an abuse of discretion. Notably, the exhibits are 

not contained in the certified record and, according to Appellant, they are 

“gone, missing, misplaced or otherwise.” Appellant’s Brief at 41. Thus, we 
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are unable to verify Appellant’s allegation that the exhibits were ‘handmade’ 

replicas of the original, ‘mini-extraction’ documents provided to Appellant in 

discovery.

Moreover, Appellant offers no discussion of what, precisely, was set 

forth in the at-issue exhibits, nor presents any argument that they were 

material to proving his guilt at trial. As this Court has explained, “if the 

Commonwealth is introducing a writing, recording, or photograph at trial, Rule 

1002 requires that the original be introduced only if the Commonwealth 

must prove the contents of the writing, recording or photograph to 

establish the elements of its case.” Commonwealth v. Green, 162 A.3d 

509, 518 (Pa. Super. 2017) (emphasis added). In other words, the content 

of the Commonwealth’s at-issue exhibits “must be material to, and not just 

mere evidence of, the issues at bar for the best evidence rule to apply.” Id. 

Appellant has not explained what the content of the exhibits was, let alone 

presented any argument regarding the materiality thereof. Thus, he has failed 

to demonstrate that the court abused its discretion in overruling his best 

evidence objections and admitting those exhibits.3

We next address Appellant’s sub-claim that the trial court erred by not 

allowing him to admit the contents of the ‘mini-extraction’ during the 

____________________________________________

3 To the extent Appellant claims that the exhibits should not have been 

admitted because he “had never seen [them] before trial, or before the 

[Commonwealth] had planned on putting [them] into evidence[,]” he did not 

object to the admission of the exhibits on this basis. Appellant’s Brief at 42. 

Thus, this argument is waived. See Pa.R.A.P. 302(a).
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testimony of the Commonwealth’s expert witness, Matthew Rosenberg, who 

had conducted the extraction of data from the victim’s phone. Appellant also 

claims that the court improperly precluded him from questioning Rosenberg 

about the contents of the ‘mini-extraction.’

Initially, at trial, the Commonwealth clarified that the “extraction report” 

written by Rosenberg was only “the first two pages of the phone extraction 

that ha[s] the person’s name, the phone number, that information.” N.T. 

Trial, 9/28/17, at 144-45. While the term ‘report’ had been misleadingly used 

to refer to the “actual extraction, [i.e.,] text messages, [and] things like 

that[,]” id. at 145, Rosenberg did not draft any of that content, but merely 

extracted it from the victim’s phone. Indeed, Rosenberg testified that he did 

not even read the contents of the data he extracted. Id. at 143. Instead, he 

had simply placed that information onto a CD and provided it to the detectives 

investigating this case. Id. 

In light of this record, we discern no error in the trial court’s precluding 

Appellant from questioning Rosenberg about, or seeking to admit through his 

testimony, the content of the extraction from the victim’s phone. As the 

Commonwealth stresses, “Rosenberg merely extracted the text messages, 

photos and other items from the victim’s phone without reviewing the 

particular content. Therefore, any attempt by the defense to introduce any of 

the phone’s specific content into evidence through this witness could not have 

been proper and, as a result, it was not an abuse of the trial court’s discretion 

to not have allowed it.” Commonwealth’s Brief at 27. We agree.
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In Appellant’s next sub-claim under his third issue, he seemingly 

contends that the trial court erred by not allowing him to recall the victim to 

the stand to lay a foundation for the admission of the extraction report. We 

agree with the Commonwealth that Appellant’s argument in support of this 

claim is incoherent. See Appellant’s Brief at 45. Thus, we deem it waived. 

See Commonwealth v. Hallock, 722 A.2d 180, 181 (Pa. Super. 1998) (“We 

decline to become [the] appellant’s counsel. When issues are not properly 

raised and developed in briefs, when the briefs are wholly inadequate to 

present specific issues for review, a court will not consider the merits 

thereof.”).

In Appellant’s final sub-claim under this issue, he argues that the trial 

court erred by not permitting him to admit an exhibit during the 

Commonwealth’s case-in-chief. Specifically, during the cross-examination of 

Detective Mark Restori, defense counsel questioned the detective about a 

document identified as a “lab submittal form.” N.T. Trial, 10/2/17, at 345. 

After further questioning, defense counsel sought to admit that document into 

evidence. Id. at 348. The Commonwealth objected on the basis that the 

defense could not admit evidence during the prosecution’s case-in-chief. Id. 

The trial court sustained that objection, instructing defense counsel that he 

would not need to recall the detective during the defense’s case, but could 

simply “move that [the document] be admitted” into evidence at that time. 

Id. 
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Appellant now contends that the court’s decision “show[ed] a continuing 

bias from the [c]ourt to slow down and preclude the [d]efense from making a 

coherent defense to the jury.” Appellant’s Brief at 48. This argument is not 

only waived because Appellant never raised it below, see Pa.R.A.P. 302(a), 

but it is meritless. The court sustained the Commonwealth’s objection, and 

informed defense counsel that he could admit the document during Appellant’s

case-in-chief. Appellant cites no legal authority indicating that the court’s 

ruling was erroneous, and nothing in the record supports his assertion that 

the court’s decision was based on bias or impartiality. Therefore, Appellant’s 

final sub-claim under his third issue is meritless.

Lastly, in Appellant’s fourth claim for our review, he maintains that the 

trial court erred by denying his pretrial motion to suppress statements he 

made while in police custody. Preliminarily, we note:

An appellate court’s standard of review in addressing a challenge 

to the denial of a suppression motion is limited to determining 

whether the suppression court’s factual findings are supported by 

the record and whether the legal conclusions drawn from those 

facts are correct. Because the Commonwealth prevailed before 

the suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record as 

a whole. Where the suppression court’s factual findings are 

supported by the record, the appellate court is bound by those

findings and may reverse only if the court’s legal conclusions are 

erroneous. Where the appeal of the determination of the 

suppression court turns on allegations of legal error, the 

suppression court’s legal conclusions are not binding on an 

appellate court, whose duty it is to determine if the suppression

court properly applied the law to the facts. Thus, the conclusions 

of law of the courts below are subject to plenary review.
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Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (cleaned 

up).

Here, Appellant sought suppression of two statements he made in the 

presence of Waynesburg Police Officer Marcus Simms. At the suppression 

hearing, Officer Simms testified that, while Appellant was in custody at the 

Waynesburg Police Department awaiting transport to Allegheny County, his 

attorney arrived and spoke with Appellant. See N.T. Suppression Hearing, 

9/27/17, at 17-18. Defense counsel sat with Appellant on a bench in the 

“patrol room and began reading over what the arrest warrant was for, [the] 

charges and everything.” Id. at 19. At this point, Officer Simms was sitting 

at his desk approximately 5 feet from where Appellant and defense counsel 

were located. Id. Officer Simms testified that when defense counsel read the 

date of the alleged incident to Appellant, Appellant said, “That was a long time 

ago.” Id. at 20. Additionally, when counsel finished “reading the ... affidavit 

of probable cause, [Appellant] said, ‘If I’m found guilty of some of these, ... 

how much time will I get....’” Id. Officer Simms testified that at no point did 

Appellant and/or defense counsel ask for privacy, or for Officer Simms to leave 

the area where their conversation was taking place. Id. Additionally, the 

officer testified that defense counsel spoke to the officer “at different points 

during that time[,]” thus demonstrating that counsel and Appellant were 

aware of the officer’s presence close by. Id. On cross-examination, Officer 

Simms acknowledged that Appellant had not been provided with Miranda 

warnings before conversing with defense counsel.
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Appellant sought suppression of the above two statements he made to 

his attorney on the grounds that they were protected by the attorney-client 

privilege, he had not received Miranda warnings before making them, and 

they were taken out of context. The court denied suppression, and we discern 

no abuse of discretion in that decision. As the Commonwealth contends, 

in order for the attorney-client privilege to apply, a confidential 

communication between a lawyer and his client is required. 

Commonwealth v. DuPont, 730 A.2d 970, 977 (Pa. Super. 

1999), appeal denied, 749 A.2d 466 (Pa. 2000). See also 

Commonwealth v. Mrozek, 657 A.2d 997, 998 (Pa. Super. 

1995), appeal denied, 668 A.2d 1127 (Pa. 1995) (one requirement 

for the assertion of the attorney-client privilege is that the 

communication relates to a fact of which the attorney was 

informed by his client “without the presence of strangers”). Here, 

... the at-issue statements made by [Appellant] were clearly done 

so in the presence of Officer Simms; in fact, the officer even 

testified that he — Simms — was conversing with [defense 

counsel] at the same general time and from the exact same 

vantage point that he was at when he heard the statements by 

[Appellant] (see [Suppression Hearing at] 20). Because of the 

location of the officer and the fact that [Appellant] and [defense 

counsel] were aware of his presence, the trial court ruled that no 

attorney-client privilege existed and, thus, [it] denied 

[Appellant’s] suppression claim. As the law supports the court’s 

ruling, there was clearly no error.

[Appellant] also contends that his suppression motion 

should have been granted because he had not received any 

warnings pursuant to Miranda.... But it is clear that Miranda

warnings are only required when a suspect is in custody and 

subjected to interrogation. See Commonwealth v. Jasper, 587 

A.2d 705, 709 (Pa. 1991). Where there has been no interrogation, 

no Miranda warnings are necessary. Id. In the instant case, 

Officer Simms testified in no uncertain terms at the suppression 

hearing that he never questioned [Appellant] at any point and 

had, in fact, told [Appellant] that he would not be questioned by 

the Waynesburg Police ([N.T. Suppression Hearing at] 27-28). 

Thus, because no interrogation took place, no Miranda warnings 

were required, and, as a result, suppression was not warranted 
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based on the fact that such warnings were not given by Officer 

Simms.

Lastly, [Appellant] claims that suppression should have 

been granted because his statements were taken out of context. 

Specifically, he argues that the things that he said did “not 

insinuate that the underlying offense had occurred” (see

[Appellant’s Brief at] 51). The Commonwealth would respectfully 

submit that whether or not [Appellant’s] statements were an 

admission that he had had sexual intercourse with the 15-yearold victim was a matter for the jury to decide and that any 

ambiguity in those statements was not the basis for suppression. 

Consequently, [the trial court] did not err in failing to grant 

suppression on this basis either.

Commonwealth’s Brief at 33-35 (footnote omitted).

We are convinced by the Commonwealth’s argument, and the case law 

on which it relies, that the trial court did not err in denying Appellant’s motion 

to suppress the statements he made to defense counsel in front of Officer 

Simms. Those non-private, non-interrogation remarks were not protected by 

the attorney-client privilege, and Miranda warnings were not required. 

Additionally, it was for the fact-finder to determine the meaning and 

implications of Appellant’s statements. As such, Appellant’s fourth and final 

issue is meritless.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary
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Date: 7/10/2019