J-S05009-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSHUA BROOK ESTES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1282 MDA 2019

Appeal from the Judgment of Sentence Entered July 3, 2019

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

No(s): CP-41-CR-0000856-2018

BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 17, 2020

Appellant, Joshua Brook Estes, appeals from the judgment of sentence 

entered on July 3, 2019, in the Lycoming County Court of Common Pleas. We 

affirm.

The trial court summarized the pertinent background of this case as 

follows:

On or about March 3, 201[8], Appellant ... was arrested and 

subsequently charged with Driving Under the Influence of Alcohol 

or Controlled Substance ([Appellant’s fourth DUI in ten years])

1

, 

Illegally Operating a Motor Vehicle Not Equipped with Ignition 

Interlock2, Driving While Operating Privilege is Suspended3, and 

Driving Unregistered Vehicle Prohibited4. A jury trial was held on 

April 8, 2019, at which time Appellant ... was found guilty of Count 

[1], Driving Under the Influence of Alcohol[.] [Counts 2, 3, and 

4] were severed[, and Appellant pleaded guilty to those charges 

in a separate proceeding]. On July 3, 2019, Appellant ... was 

sentenced to undergo incarceration in a State Correctional facility 

for a period of not less than six (6) months and no more than 

twenty-four months. Under Count 2, Appellant ... was sentenced 

to pay a $300 fine. As to Count 3, Appellant ... was sentenced to 
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ninety (90) days in a State Correctional facility, to be served with 

the sentence imposed at Count 1, as well as being made to pay a 

$500 fine. As to Count 4, Appellant ... was to pay a $75 fine.

1 75 Pa.C.S.[] § 3802(a)(1)[.]

2 75 Pa.C.S.[] § 3808(a)(1)[.]

3 75 Pa.C.S. § 1543(b)(1)[.]

4 75 Pa.C.S. § 1301(a)[.]

Trial Court Opinion, 10/9/19, at unnumbered 1-2. On July 31, 2019, Appellant 

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

with Pa.R.A.P. 1925. 

On appeal, Appellant presents the following issue for this Court’s 

consideration:

Did the trial court abuse its discretion when it permitted the 

admission of video with audio that made multiple references to 

prior acts from which the jury could reasonably infer that 

[Appellant] had been convicted previously of the same offense 

now alleged?

Appellant’s Brief at 6.

It is well settled that the admissibility of evidence is left to the discretion 

of the trial court, and the trial court evidentiary rulings will not be disturbed 

on appeal unless the trial court abused that discretion. Commonwealth v. 

Akhmedov, 216 A.3d 307, 316 (Pa. Super. 2019) (citation omitted). An 

abuse of discretion is not a mere error in judgment; rather, an abuse of 

discretion occurs where the law is overridden or misapplied, or the judgment 

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

or ill-will. Id. (citation omitted). Moreover, 
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evidence of prior bad acts or unrelated criminal 

activity is inadmissible to show that a defendant acted 

in conformity with those past acts or to show criminal 

propensity. Pa.R.E. 404(b)(1). However, evidence of 

prior bad acts may be admissible when offered to 

prove some other relevant fact, such as motive, 

opportunity, intent, preparation, plan, knowledge, 

identity, and absence of mistake or accident. Pa.R.E. 

404(b)(2). In determining whether evidence of other 

prior bad acts is admissible, the trial court is obliged 

to balance the probative value of such evidence 

against its prejudicial impact.

Id. (quoting Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009)).

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

tends to make a fact at issue more or less probable or supports a reasonable 

inference or presumption regarding a material fact.” Id. (citation omitted). 

“All relevant evidence is admissible, except as otherwise provided by law.”

Pa.R.E. 402.

Appellant avers that the trial court abused its discretion when it 

permitted the jury to hear the audio portion of the video (“the recording”)

recorded at the “DUI center” after Appellant’s arrest, wherein an ignition 

interlock1 was mentioned. Pa.R.A.P. 1925(b) Statement, 8/21/19, at 

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1 An individual who is convicted of DUI under 75 Pa.C.S. § 3802, or had his 

operating privileges suspended pursuant to 75 Pa.C.S. §§ 1547 or 3808(c), 

who seeks the restoration of his operating privileges, shall be required by the 

Pennsylvania Department of Transportation (“the department”), as a condition 

of issuing a restricted license, to install an ignition interlock system in his 

vehicle for the duration of the restricted license period. 75 Pa.C.S. § 3805. 

An ignition interlock is “[a] system approved by the department which 

prevents a vehicle from being started or operated unless the operator first 
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unnumbered 1; Appellant’s Brief at 12-13. The notes of testimony reveal that 

the recording was played for the jury over Appellant’s objection. N.T., 4/8/19, 

at 22. After the jury viewed and heard the recording, Appellant renewed his 

objection. Id. at 23. The trial court overruled the objection. Id. 

We are constrained to point out that Appellant has not provided us with 

a copy of the recording or a transcript of its contents. It is well-settled that 

“this Court may consider only the facts that have been duly certified in the 

record when deciding an appeal.” Commonwealth v. Kennedy, 151 A.3d 

1117, 1127 (Pa. Super. 2016) (citation omitted). It is the appellant’s 

responsibility to ensure that this Court has the complete record necessary to 

review his claim. Id. (citation omitted). When an appellant fails to provide 

this Court the necessary items for review, the claim is waived. Id. (citation 

omitted). Appellant’s failure to include the recording or a transcript of the 

recording in the certified record renders it impossible for this Court to review 

its contents and determine if the trial court committed an abuse of discretion. 

Therefore, this omission hampers appellate review, and we deem the issue 

waived. Id. 

Were we to address this issue, to the extent possible based on the record 

before us, we would conclude that no relief is due. As noted, Appellant 

____________________________________________

provides a breath sample indicating that the operator has an alcohol level less 

than 0.025%.” 75 Pa.C.S. § 3801.
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objected to the recording due to a reference to an ignition interlock, and the 

trial court denied the objection. N.T., 4/8/19, at 23. The trial court addressed 

this issue as follows:

Upon request of Appellant[’s] counsel, the following curative 

instruction was given during closing jury instructions:

“You may have heard evidence tending to prove that 

[Appellant] was guilty of an offense or improper conduct for 

which he is not on trial. I am speaking of the testimony to 

the effect that there is some talk about an interlock order 

that was not being obeyed or prior offense of some type. 

We cannot edit everything that is given to you and we 

cannot give you all this information in a complete vacuum. 

You must not regard this evidence as showing that 

[Appellant] is a person of bad character or criminal 

tendencies for which you might be inclined to infer guilt.” 

N.T. 85:12-21, 4/8/19.

Curative instructions are typically most effective as soon as 

a trial event needs correction. However, immediacy is not a rule, 

but a preference. See Commonwealth v. Johnson, 576 Pa. 23, 

39; 838 A.2d 663, 672 (2003), cert. denied[,] 543 U.S. 1008 

(2004). See also Pa.R.Cr.P. 647([E]), which provides in pertinent 

part that a “trial judge may give instructions to the jury before the 

taking of evidence or at any time during the trial as the judge 

deems necessary and appropriate for the jury’s guidance in 

hearing the case.” ... The timing of a limiting or explanatory 

instruction is at the discretion of the court because the impact of 

the offending evidence may not be immediately clear, see

Commonwealth v. Housman, 986 A.2d 822, 836 (Pa. 2009). In 

assuring that [the defendant is] given a fair trial, a trial judge 

must be allowed reasonable discretion in whether or not to give 

curative instructions. Com. v. Sanchez, 623 Pa. 253, 82 A.3d 943 

(2013). 

If, as is the case in the instant matter, evidence of prior 

criminal activity or ensuing restrictive punitive measures is 

presented to the jury, the trial court may cure the improper 

prejudice with an appropriate cautionary instruction to the jury. 

It is imperative that the trial court’s instruction be clear and 

specific, and it must instruct the jury to disregard the improper 
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evidence. Com. v. Thompson, 2014 PA Super 273, 106 A.3d 742 

(2014), appeal denied, 635 Pa. 743, 134 A.3d 56 (2016) and cert. 

denied, 137 S.Ct. 106, 196 L.Ed. 87 (2016). The abovereferenced curative instruction clearly and specifically addresses 

the evidence which the jury must disregard. In Commonwealth 

v. Manley, 985 A.2d 256, 268 (Pa. Super. 2009), app. [d]enied[,]

996 A.2d 491 (Pa. 2010), it was held that “juries are presumed to 

follow the instructions of a trial court to disregard inadmissible 

evidence.” As the curative instruction complied with the requisite 

criteria to be deemed effective, the Jury was presumed to have 

followed said instruction during deliberation and in finding 

Appellant ... guilty of Count 1, Driving Under the Influence of 

Alcohol or a Controlled Substance. 

Trial Court Opinion, 10/9/19, at unnumbered 3-5.

Were we to reach this issue, we would agree with the trial court’s 

conclusion. The trial court instructed the jury to disregard any reference to 

an ignition interlock in rendering its decision. N.T., 4/8/19, at 85. “It is well 

settled that juries are presumed to follow the instructions of a trial court to 

disregard inadmissible evidence.” Commonwealth v. Manley, 985 A.2d 

256, 268 (Pa. Super. 2009). Accordingly, had this issue been properly 

preserved, we would conclude that it merits no relief.

Judgment of sentence affirmed.

Judge Musmanno joins this Memorandum.

Judge Kunselman concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/17/2020