J-S24034-19

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GABRIEL PASTRANA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3056 EDA 2018

Appeal from the Judgment of Sentence May 17, 2018

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

No(s): CP-45-0000720-2017

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 12, 2019

Appellant Gabriel Pastrana appeals from the judgment of sentence 

entered on May 17, 2018, in the Court of Common Pleas of Monroe County as 

made final by the denial of post-sentence motions on September 13, 2018.

1

 

We affirm. 

The trial court aptly set forth the relevant facts and procedural history 

herein as follows: 

[Appellant] was convicted by jury on February 8, 2018 of

two criminal offenses and by the [c]ourt of several summary 

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1 We note that Appellant purported to appeal the “Order and Opinion imposed 

in this matter on September 13, 2018,” wherein the trial court denied his postsentence motions. In a criminal action, appeal properly lies from the judgment 

of sentence made final by the denial of post-sentence motions. See 

Commonwealth v. Shamberger, 788 A.2d 408, 410 (Pa.Super. 2001). We 

have corrected the caption accordingly.
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criminal offenses. [Appellant] was convicted by jury of Count III, 

75 Pa.C.S. §3802(a)(1), Driving Under the Influence of Alcohol -

General Impairment, Third Offense; and Count IV, 75 Pa. C.S. 

§3742.1(a). Accident Involving Death or Injury-Not Properly 

Licensed. Count I and II of the Criminal Information were 

withdrawn by the Commonwealth at trial. [Appellant] was found 

guilty by the [c]ourt of the following summary offenses: 75 Pa. 

C.S. §1543(b)(1), Driving With A Suspended License Pursuant to 

§3802/1547(b)(1); 75 Pa. C.S. §3323(b), Duties at Stop Sign; 75 

Pa. C.S. §3361, Driving at Safe Speed; 75 Pa. C.S. §3714(a), 

Careless Driving; 75 Pa. C.S. §3736(a), Reckless Driving.

The facts of this case were testified to during trial. The 

underlying act involved a two-vehicle accident which occurred late 

on February 4, 2017 into early morning February 5, 2017. That 

time period coincided with Super Bowl Sunday. N.T., 2/8/18, p. 

19. During half-time of the game, Thomas Cunningham drove his 

wife from their home in Monroe County to St. Luke's HospitalAnderson Campus in Bethlehem Twp. to retrieve her vehicle. N.T., 

2/8/18, p.21. On the return trip Mr. Cunningham was driving by 

himself along Old Route 115 in the area of Saylorsburg, Monroe 

County, PA. N.T. 2/8/18, p. 22. Old Route 115 and Hamilton South 

Road intersect in the vicinity of Saylorsburg with a stop sign facing 

drivers turning from Hamilton South onto Old Route 115. N. T 

2/8/18, p.70. There is no stop sign on Old Route 115. N.T., 

2/8/18, p.70. As Mr. Cunningham approached the intersection he 

observed a vehicle that did not appear to be slowing for the stop 

sign on Hamilton South. NJ., 2/8/18, p.22. Fearing the oncoming 

driver would run the stop sign and strike him, Mr. Cunningham 

sped up. N.T., 2/8/18, p. 22. Nevertheless, a collision occurred. 

Mr. Cunningham remained in his vehicle until assistance arrived 

and was later taken to the hospital with a broken rib and 

contusions to his knee, ankle, and lower leg. N.T., 2/8/18, p.30-

31.

Meanwhile, the occupants of the other vehicle, [Appellant]

and his 18 year-old brother, Elson Pastrana, exited their vehicle. 

[Appellant] and Elson Pastrana were returning from a Super Bowl 

Party at the home of friends of Elson Pastrana's girlfriend's 

parents. N.T., 2/8/18, p.42. The car they were in was owned by 

and registered to [Appellant]. N.T., 2/8/18, p. 156. [Appellant]

estimated that he had consumed approximately six beers during 

the party and at least one shot of clear liquor. N.T., 2/8/18., 

p.159. An ambulance operated by EMT Joyce Schuster arrived on 

the scene prior to the arrival of Pennsylvania State Troopers Justin 

S. Magluilo and Kevin Kreidler. During the course of the troopers'
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investigation, [Appellant] and his brother were separated. N.T., 

2/8/18, p.118. By all accounts of the testimony offered at trial, 

[Appellant] was severely intoxicated at this point. Trooper Kreidler 

interviewed Elson Pastrana at the scene. N.T., 2/8/18, p. 118. 

Elson Pastrana initially stated he was operating the vehicle at the 

time of the accident, but upon further questioning by Trooper 

Kreidler, admitted [Appellant] had actually been operating the 

vehicle. N.T., 2/8/18, p.118. Elson Pastrana then also told Trooper 

Magluilo that he was the passenger and [Appellant] was the

driver. N.T., 2/8/18, p.72. [Appellant] was requested to perform 

field sobriety tests which he refused. N.T., 2/8/18, p. 77. At that 

point, [Appellant] was arrested and placed in the back of Trooper 

Kreidler's car on suspicion of driving under the influence. Trooper 

Magluilo then gave Elson Pastrana a ride to his girlfriend's home.

N.T 2/8/18, p.78.

[Appellant] was sentenced by the [c]ourt on May 17, 2018. 

As to Count III, [Appellant] was sentenced to a minimum of three 

months[’] incarceration and maximum of twelve months plus fines 

and costs. As to Count IV, [Appellant] was sentenced to a 

minimum of three months[’] incarceration and a maximum of six 

months plus fines and costs. These two sentences were ordered 

to run consecutively. As to the 75 Pa. C.S. §1543(b) violation, 

[Appellant] was sentenced to the statutorily required minimum 

sixty days[’] incarceration to run concurrent to the sentences in 

Count III and IV. [Appellant] was ordered to pay fines and costs 

for the remainder of the summary offenses. [Appellant] filed 

timely Post-Sentence Motions on May 25, 2018. A hearing was 

held on [Appellant’s] motions on June 25, 2018, at which time the 

Court heard argument from defense counsel and the 

Commonwealth.

Trial Court Opinion, filed 9/13/18, at 1-3. 

 On September 13, 2018, the trial court denied Appellant’s postsentence motions, and on October 12, 2018, Appellant filed his notice of 

appeal. On October 15, 2018, the trial court ordered Appellant to file a concise 

statement of the matters complained of on appeal, and Appellant complied on 

October 30, 2018. On that same date, the trial court filed its Statement 

Pursuant to Pa.R.A.P. 1925(a) wherein it stated it had adequately addressed 
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in its September 13, 2018, Opinion and Order the issues Appellant raised in 

his Statement of Matters Complained of Pursuant to Pa.R.A.P. 1925(b).

 In his appellate brief, Appellant presents the following questions for this 

Court’s review:

1. Should a judgment of acquittal be granted because the 

jury verdict was against the weight of the evidence, 

which was insufficient to convict, and the verdict was 

based upon conjecture?

2. Should Appellant be granted a new trial because the 

Commonwealth presented two eyewitnesses at trial, 

one of whom was not identified in the discovery 

materials and the other, who was listed as an 

eyewitness, made a statement regarding the Appellant 

which was not included in the discovery materials?

Appellant’s Brief at 4 (unnecessary capitalization omitted).2 

In both his Statement of Matters Complained of Pursuant to Pa.R.A.P. 

1925(b) and his appellate brief, Appellant conflates challenges to the 

sufficiency and weight of the evidence in arguing that the sole witness who 

could identify Appellant as the driver of the vehicle was his brother, Elson 

Pastrana, who testified that he, not Appellant, was operating the vehicle at 

the time of the collision. However, this Court has stressed that challenges to 

the weight and sufficiency of the evidence are distinct. Commonwealth v. 

Richard, 150 A.3d 504, 517–18 (Pa.Super. 2016). As we have explained, 

[a] challenge to the weight of the evidence is distinct from a 

challenge to the sufficiency of the evidence in that the former 

concedes that the Commonwealth has produced sufficient

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2 The Commonwealth has not filed an appellate brief. 
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evidence of each element of the crime, “but questions which 

evidence is to be believed.” Commonwealth v. Charlton, 902 

A.2d 554, 561 (Pa.Super. 2006), appeal denied, 590 Pa. 655, 911 

A.2d 933 (2006). “A new trial should not be granted because of a 

mere conflict in the testimony or because the judge on the same 

facts would have arrived at a different conclusion.” 

Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1055 

(2013). “Rather, the role of the trial judge is to determine that 

notwithstanding all the facts, certain facts are so clearly of greater 

weight that to ignore them or to give them equal weight with all 

the facts is to deny justice.” Id. (citation omitted). “It has often 

been stated that a new trial should be awarded when the jury's 

verdict is so contrary to the evidence as to shock one's sense of 

justice and the award of a new trial is imperative so that right may 

be given another opportunity to prevail.” Id.

Richard, supra, at 516–17. In addition, in reviewing a challenge to the 

weight of the evidence, this Court has stated:

The weight of the evidence is exclusively for the finder of fact who 

is free to believe all, part, or none of the evidence and to 

determine the credibility of the witness. An appellate court cannot 

substitute its judgment for that of the finder of fact. Thus, we may 

only reverse the lower court's verdict if it is so contrary to the 

evidence as to shock one's sense of justice. Moreover, where the 

trial court has ruled on the weight claim below, an appellate 

court's role is not to consider the underlying question of whether 

the verdict is against the weight of the evidence. Rather, appellate 

review is limited to whether the trial court palpably abused its 

discretion in ruling on the weight claim. Commonwealth v. 

Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003). 

Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013), appeal 

denied, 622 Pa. 755, 80 A.3d 774 (2013).

Herein, Appellant challenged the weight of the evidence to support his 

convictions in a timely post-sentence motion which the trial court denied; 

therefore, he properly raised this challenge before the trial court. See

Pa.R.Crim.P. 607(A)(1)-(3) (claim the verdict was against the weight of the 
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evidence shall be raised before or after sentencing). Notwithstanding, 

although he claims the “verdict was against the weight of the evidence” he 

provides no legal argument or support to develop this claim, for in his concise 

statement and the first question presented in his appellate brief, he further 

states that evidence was “insufficient to convict.” Also, in the first sentence 

of the argument portion of his brief, Appellant states his “first claim is a 

challenge to the sufficiency of the evidence[,]” and he cites to caselaw 

pertaining only the sufficiency of the evidence thereafter. See Brief for 

Appellant at 13-16. In addition, the trial court viewed Appellant’s challenge 

as to the sufficiency of the evidence. See Trial Court Opinion, filed 9/13/18, 

at 4. As such, Appellant has waived a challenge to the weight of the evidence 

on appeal due to his failure to develop it fully in his brief. See

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super. 2007), appeal 

denied, 603 Pa. 679, 982 A.2d 509 (2017) (noting failure to develop

adequately an argument in an appellate brief may result in waiver of the claim 

under Pa.R.A.P. 2119). 

Even if Appellant had developed a proper challenge to the weight of the 

evidence, such a claim provides him no basis for relief. When, as herein, the 

challenge to the weight of the evidence is predicated on the credibility of trial 

testimony, this Court’s review of the trial court's decision is extremely limited. 

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.Super. 2009), appeal 

denied, 607 Pa. 690, 3 A.3d 670 (2010). “On issues of credibility and weight 
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of the evidence, an appellate court defers to the findings of the trial [court], 

who has had the opportunity to observe the proceedings and demeanor of the 

witnesses.” Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa.Super. 

2002) (citations omitted), appeal denied, 573 Pa. 663, 820 A.2d 703 (2013). 

Thus, generally, unless the evidence is so unreliable or contradictory as to 

make any verdict based thereon pure conjecture, these types of claims will be 

rejected on appellate review. Commonwealth v. Trippett, 932 A.2d 188, 

198 (Pa.Super. 2007).

The trial court opined on the credibility of the witnesses as follows: 

Upon careful review of the trial transcript and exhibits 

produced in this case we find that the Commonwealth provided 

sufficient evidence that [Appellant] was operating his vehicle on 

the night of the accident. [Appellant] is correct that no eyewitness 

was able to definitively testify that he was driving. However, the 

Commonwealth may establish its case through circumstantial 

evidence. Com. v. Wilson, 225 Pa. Super. 513, 312 A.2d 430, 432 

(1973). "Our jurisprudence does not require fact-finders to 

suspend their powers of logical reasoning or common sense in the 

absence of direct evidence." Com. v. Teems, 2013 PA Super 147, 

74 A.3d 142, 148 (2013).

Both [Appellant] and Elson Pastrana claimed at trial that 

[Appellant] had not been driving. Elson Pastrana stated that he 

had told one of the troopers that he was the designated driver, 

but that the trooper "got up in [his] face and [the trooper] was 

questioning [him.]." N.T., 9/8/18, p.45. Elson Pastrana further 

testified that he felt disorientated and threatened and finally just 

agreed with the trooper in implicating his brother so that he could 

leave and go home. N.T., 9/8/18, p.45. However, Trooper Kreidler 

denied threatening Elson Pastrana. N.T., 9/8/18, p.135. Trooper 

Kreidler explained that he did not believe Elson Pastrana's 

explanation because in his experience the crash scene did not lend 

itself to have been caused by a sober driver, and that it was not 

unusual for him to further question someone who did not appear 

truthful at the scene of an accident. N.T., 9/8/18, p.1 18, 137 

Trooper Kreidler also stated that while questioning Elson Pastrana, 
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he would not meet his eyes and was answering very quietly. N.T 

9/8/18, p.118.

This information alone could cast sufficient doubt on the 

validity of Elson Pastrana's testimony at trial for the jury to have 

disregarded it. By Elson Pastrana's own admission, he gave two 

conflicting statements to the troopers who responded to the

accident. The [c]ourt's charge advised the jury to consider 

whether testimony was "uncertain or confused, self-contradictory 

or evasive." N.T., 9/8/18, p.204. Further, the jury was told to 

consider whether a witness had any motive that may have 

affected [his or her] testimony. N.T., 9/8/18, p.204. As the 

Commonwealth pointed out, Elson Pastrana had a very real 

interest in protecting his brother from conviction and possible 

imprisonment, casting his testimony into doubt. As already stated,

"[t]he trier of fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe all, 

part or none of the evidence." Com. v. Johnson at 262-263 

(emphasis added). This was also an instruction given to the jury.

The validity of Elson Pastrana's testimony was further called 

into doubt by Trooper Magluilo's testimony. Trooper Magluilo 

testified that during all of his interactions with the witness, Elson 

Pastrana stated that he had been the passenger in [Appellant’s]

vehicle and [Appellant] was driving. N.I 2/9/18, p.72. Also, upon 

questioning by the Commonwealth, Elson Pastrana denied making 

any statements about Defendant to Trooper Magluilo while being

transported to his girlfriend's home. N.T., 2/8/18, 47-48. 

However, Trooper Magluilo stated that during the ride, Elson 

Pastrana had a "disappointed look on his face" and repeatedly 

mentioned that he did not understand why [Appellant] kept "doing 

things like this" and making mistakes. N.T., 2/9/18, p.79. Again, 

this testimony could clearly call into question Elson Pastrana's 

statements made at trial and lead the jury to disbelieve him. The 

jury was free to accept the testimony of Elson Pastrana at trial, or 

the troopers' testimony at trial, or some or none. The jury chose 

to believe the troopers' testimony in finding [Appellant] guilty.

In addition to the testimony of Elson Pastrana and the 

troopers, the Commonwealth presented two other witnesses that 

reported odd behavior between [Appellant] and Elson Pastrana at 

the accident scene. Mr. Cunningham reported that after the 

accident, while still in his vehicle, [Appellant] approached his 

vehicle and began demanding to know how much Mr. Cunningham 

had been drinking. N.T., 2/8/18, p.31-32. As the Commonwealth 

suggested during its closing, and the jury could have inferred, this 
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was odd behavior from someone who had just been in an accident. 

It is possible that with the sum of all of the evidence before it, the

jury believed that [Appellant] asked Mr. Cunningham this question 

in hopes that the victim had also been drinking and would not 

report the accident to the police. Finally, the responding EMT, Ms. 

Schuster, testified to her unusual observations of the [Appellant]. 

The [Appellant] physically pushed her towards Mr. Cunningham's 

vehicle, was slurring his speech, and acted in a belligerent 

manner. N.T., 2/8/18, p.104. While she was administering to Mr. 

Cunningham, Ms. Schuster heard [Appellant] say to Elson 

Pastrana "tell them you were driving. You were driving, right? Just 

tell them that you were driving." NJ., 2/8/18, p.107. All of this 

evidence certainly could have convinced the jury [Appellant] was 

the driver, and that he was under the influence of alcohol. The 

testimony conflicted in part with [Appellant’s] testimony and Elson 

Pastrana's testimony, but does not mean the jury had to find it 

less convincing.

In response to the evidence provided by the 

Commonwealth, [Appellant] chose to testify on his own behalf 

during trial. [Appellant] adamantly denied driving his vehicle the 

night of the accident and stated his brother had always been the 

planned designated driver. N.T., 2/8/18, p.150. [Appellant] stated 

that he was using the GPS on his phone to guide his brother and

that the accident occurred when they were both looking at the 

phone. N.T., 2/8/18, p.151-152. However, considering all of the 

testimony as a whole, we do not find it unreasonable that the jury 

disbelieved [Appellant’s] testimony. First of all, it is undisputed 

that [Appellant] was severely intoxicated at the time of the 

accident. Ms. Schuster, Mr. Cunningham and both troopers 

reported [Appellant] showed signs of intoxication. On crossexamination, [Appellant] admitted that when he approached Mr. 

Cunningham he was still under the effects of alcohol. N.T., 2/8/18, 

p. 163. Additionally, the jury viewed an MVR from Trooper 

Magluilo's vehicle. In the video [Appellant] is seen speaking to the 

trooper in a belligerent manner and visibly wavering back and 

forth while leaning against the trooper's vehicle, unable to keep 

himself upright. Commonwealth's Exhibit "5," 17:50-18:12. This 

level of intoxication could easily have caused the jury to doubt 

[Appellant’s] recollection of the events, especially in light of the 

testimony of the other witnesses. The jury could also have chosen 

to disbelieve [Appellant] and Elson Pastrana in part or in full. A 

"witness's credibility is solely for the jury to determine." Com. v. 

Simmons, 541 Pa. 211, 229, 662 A.2d 621, 630 (1995). Viewing 

this testimony in the light most favorable to the verdict winner, it 
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could clearly be inferred that there was sufficient evidence 

[Appellant] had been driving and attempted to persuade his 

brother to lie to the police. Therefore, we find that the 

Commonwealth provided sufficient evidence at trial to sustain the

verdict.

Trial Court Opinion, filed 9/13/18, at 5-9. 

After a careful review of the certified record, we would ascertain no 

abuse of discretion by the trial court.

To the extent Appellant attempts to develop a challenge the sufficiency 

of the evidence, we note that: 

In order to preserve a challenge to the sufficiency of the 

evidence on appeal, an appellant's Rule 1925(b) statement must 

state with specificity the element or elements upon which the 

appellant alleges that the evidence was insufficient. Such 

specificity is of particular importance in cases where, as here, the 

appellant was convicted of multiple crimes each of which contains 

numerous elements that the Commonwealth must prove beyond 

a reasonable doubt. Commonwealth v. Stiles, 143 A.3d 968, 

982 (Pa.Super. 2016) (internal quotation marks omitted).

Commonwealth v. Richard, 150 A.3d 504, 517–18 (Pa.Super. 2016). 

Herein, Appellant was convicted of multiple offenses each of which 

contains numerous elements, yet his Rule 1925(b) statement does not identify 

with specificity the elements of any crime or identify those which he alleges 

the Commonwealth has failed to prove. On this basis alone, we could find this 

issue waived. See Richard, supra. 

Notwithstanding, even if Appellant had presented an adequate Rule 

1925(b) statement, we would find no merit to this claim. While Appellant did 

not specify the allegedly unproven element or elements of his convictions in 
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his Rule 1925(b) statement, his sufficiency challenge developed in his 

appellate brief stems from his position that he was not driving the vehicle, as

proven by his brother’s testimony. As stated previously, such a challenge 

goes to the weight, not the sufficiency of the evidence. See Commonwealth 

v. Samuel, 102 A.3d 1001, 1005 (Pa.Super. 2014), appeal denied, 635 Pa. 

742, 134 A.3d 56 (2016) (stating a claim that the Commonwealth's evidence

was incredible goes to the weight, not the sufficiency, of the evidence). 

Appellant next argues he should be granted a new trial because, over 

objection, the Commonwealth presented the testimony of Joyce Schuster who

had not been identified in the discovery materials and Thomas Cunningham

who was listed as an eyewitness but made a statement at trial regarding 

Appellant that had not been included in the discovery materials. Appellant 

first maintains that Mr. Cunningham was permitted to “amplify” at trial the 

information he had provided to the police to include a statement that Appellant 

approached the window of his vehicle as asked Mr. Cunningham how much he 

had been drinking. Appellant stresses the Commonwealth did not supplement 

the discovery prior to trial, although the prosecutor indicated that he learned 

of this information, which Mr. Cunningham stated he had not told police, late 

the previous evening. Brief for Appellant at 17-18. 

Appellant next maintains the Commonwealth’s failure to disclose the 

existence of Joyce Schuster, whose testimony “is tantamount to a confession 

from the Appellant, [as] it corroborates the Commonwealth’s theory of the 
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case with words directly from the mouth of the Appellant” was “extremely 

prejudicial” to him. Id. at 18-20. Specifically, Appellant avers “[t]he 

testimony offered by Ms. Schuster was extremely prejudicial to [] Appellant 

because she not only claimed that he was drunk and disorderly, even pushing 

her, but also that he was attempting to convince Elson Pastrana to tell the 

police that he was driving.” Id. at 19. Appellant argues that the 

Commonwealth was under a continuing duty to disclose this additional 

evidence, which was discovered on the eve and morning of trial, and its failure 

to do so deprived him of an opportunity to reconsider his trial strategy and 

entitles him to a new trial. Id. at 21-23. 

This Court will reverse a trial court's decision regarding the admissibility

of evidence only when the appellant sustains the heavy burden of establishing 

that the trial court has abused its discretion. An abuse of discretion will not be 

found based on a mere error of judgment, but rather exists where the court 

has reached a conclusion which overrides or misapplies the law, or where the 

judgment exercised is manifestly unreasonable, or the result of partiality, 

prejudice, bias or ill-will. Commonwealth v. Frein, 2019 WL 1866731, at 

*14 (Pa. Apr. 26, 2019) (citation and quotation marks omitted). 

Appellant’s first argument pertains to the following exchange between 

the prosecutor and Mr. Cunningham:

[The Prosecutor] Okay. Now, after this collision occurred, you 

stated you weren’t able to get out of your car. But did you have 

any contact or see anybody come up to your car?
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[Mr. Cunningham]: Very shortly after the impact, someone came 

up to my window and was yelling into the car, How much you been 

drinking? How much you been drinking?

[The Prosecutor] Okay. And how did that strike you?

[Mr. Cunningham]: I said, What? Why is somebody asking me 

this?

[The Prosecutor]:And was there any other conversation with that 

person?

[Mr. Cunningham]: They continued to ask me, How much you 

been drinking? I said, I haven’t drank anything. Who the hell are 

you? Get away from me. It was really odd.

[The Prosecutor: And who was—

[Defense Counsel]: Your Honor, may we approach?

THE COURT: Yes.

(Whereupon, the following took place outside the hearing of 

the jury.)

[Defense Counsel]: I don’t have anything in discovery or in a 

police report regarding this. Nothing at all regarding any 

statements made by this person.

THE COURT: Uh-huh.

[Defense Counsel]: So—

[The Prosecutor]: That’s accurate. The witness told me--I talked 

to him late yesterday. He told me he didn’t tell the police this. 

He didn’t view it as important to the accident itself.

THE COURT: All right. Well, I’ll allow it.

[Defense Counsel]: It wasn’t in the report.
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THE COURT: You can cross-examine him on that. . . . 

N.T. Trial 2/8/18, at 31-33. At no point thereafter did defense counsel ask for 

a recess or continuance, nor did he otherwise express a view that the 

Commonwealth had committed a discovery violation. To the contrary, he did 

not respond at all when the trial court indicated Mr. Cunningham would be 

subject to cross-examination on Appellant’s alleged statement to him. Id. at 

33. Instead, counsel cross-examined Mr. Cunningham regarding his failure to 

tell police previously that someone from the other vehicle had spoken to him 

at the scene, at which time the latter indicated he could not recall being 

questioned by any officer at that time. Id. at 37-39. 

Initially, we note that the basis of Appellant’s objection at trial that Mr. 

Cunningham’s aforementioned testimony was outside the scope of the police 

report is not the same as the prosecutorial misconduct argument he advances 

in his appellate brief. It is axiomatic that in order to preserve a claim for 

appeal, a party must make a timely and specific objection at trial. 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.”); Commonwealth v Pearson, 685 A.2d 551, 

555 (Pa.Super. 1996), appeal denied, 549 Pa. 699, 700 A.2d 439 (1997) “[A]n 

appellant may not raise a new theory for an objection made at trial on his 

appeal[;]” see also Commonwealth v. McGriff, 160 A.3d 863, 866, 

reargument denied (June 20, 2017), appeal denied, 644 Pa. 372, 176 A.3d 

853 (2017) (to preserve an issue for review, a party must make a timely and 
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specific objection at trial, for this Court will not consider claim on appeal not 

called to trial court's attention at a time purported error could have been 

corrected). Even constitutional claims are waived if they are not raised before 

the trial court. Commonwealth v. Kennedy, 598 Pa. 621, 959 A.2d 916, 

922 (2008) cert. denied, 556 U.S. 1258, 129 S.Ct. 2433, 174 L.Ed.2d 229 

(2009) (finding Sixth Amendment issue waived where defendant failed to raise 

objection on this basis at trial). The penalty of waiver is the result for failing 

to object, even in capital appeals. Commonwealth v. Ballard, 622 Pa. 177, 

80 A.3d 380, 406 (2013), cert. denied, 573 U.S. 940, 134 S.Ct. 2842, 189 

L.Ed.2d 824 (2014). As such, we find this claim waived. 

Notwithstanding the foregoing, on cross-examination, Mr. Cunningham 

explained that while he may have been asked “one or two questions” by police, 

he did not have extensive discussions with them, and he could not remember 

the details of the conversations he might have had with the officers. N.T. at 

38. He did specifically state that he “did not have any conversations with 

police regarding someone speaking with [him].” Id. He indicated that he did 

not reveal this information to the ADA until a “couple days ago.” This 

testimony explains why such information was not in any police report and 

evinces that Mr. Cunningham did not reveal it until the eve of trial; therefore, 

as the trial court determined, the Commonwealth did not fail to provide 

evidence or written discoverable statements within its possession or 
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knowledge, because there was no written or recorded statement pertaining to 

Mr. Cunningham’s conversation with Appellant to obtain. 

Moreover, as one who was present at the scene of the accident, Mr. 

Cunningham hardly can be deemed a surprise witness, and it is not unforeseen 

that he may have observed more than the brief details noted in the police 

report. Appellant subjected Troopers Magluilo and Kreidler as well as Mr. 

Cunningham to a thorough cross-examination in this regard, and the jury was 

free to make credibility determinations following that testimony. Finding no 

error in the trial court’s evidentiary rulings in this regard, no relief is due. 

Appellant next contends the Commonwealth had a continuing duty to 

disclose Joyce Schuster’s anticipated testimony. Prior to her testifying at trial, 

defense counsel requested an offer of proof. N.T. Trial, 2/8/18, at 97. The 

Commonwealth responded by explaining that Ms. Schuster was an EMT who 

responded to the scene of the accident and witnessed Appellant tell his brother 

to indicate that he had been driving. She would express her belief that 

Appellant had been intoxicated and describe his behavior as “belligerent.” Id. 

at 97-98. In response, the following exchange occurred: 

[Defense Counsel]: Yeah. I’m just going to make an 

objection based upon the fact that none of this was in the 

discovery. Nothing with Ms. Schuster, no statements, no mention 

of her person. I don’t think she’s even mentioned as an individual 

who was present. 

[The Prosecutor]: It is not in the police reports. We—I 

discovered it this morning in speaking with Trooper Magluilo who 

is not the affiant. He is right, Trooper – I’m sorry, [defense 

counsel]. It was not in reports, but he did mention her presence 

at the scene.
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And actually, interestingly, Judge, as the [c]ourt will hear 

when the MVR is played later, this is what drew my attention to 

it. I listened to the MVR previously and was focused more on the 

field sobriety test portion. But as I listened to other portions of 

the MVR last evening, I heard Trooper Magluilo making a reference 

to hearing from someone, meaning Trooper Magluilo hearing from 

someone that the brother had been witnessed putting pressure on 

the other brother. In other words, [Appellant] had been witnessed 

putting pressure on the other brother. 

So that led to my curiosity because as I heard Trooper 

Magluilo say it on the MVR last evening. I questioned Trooper 

Magluilo about it this morning. He then referenced that he 

believed it was this particular person. He then reached out to her 

and arranged for her to come and testify this morning. So I 

literally knew nothing about who she was or any specifics until this 

morning when we reached out to have her here.

THE COURT: The objection is noted. It’s overruled I’ll allow her 

to testify. 

[The Prosecutor]: Thank you, Your Honor. 

Id. at 98-99. Defense counsel made no further objection, and direct 

examination of Ms. Schuster immediately ensued. 

Once again, Appellant did not ask for a recess, continuance or mistrial 

in light of Ms. Schuster’s proposed testimony, nor did he otherwise express a 

view that the Commonwealth had committed a discovery violation or violated 

the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 

215 (1963). In light of this failure, Appellant’s arguments pertaining to Ms. 

Schuster’s subsequent testimony are waived. See Pearson, supra. 

However, Appellant is entitled to no relief on the merits. As the 

Pennsylvania Supreme Court has explained: 

Under Brady and subsequent decisional law, a prosecutor 

has an obligation to disclose all exculpatory information material 

to the guilt or punishment of an accused, including evidence of an 

impeachment nature. See, e.g., Commonwealth v. 
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Hutchinson, 611 Pa. 280, 25 A.3d 277, 310 (2011). To establish 

a Brady violation, an appellant must prove three elements:

(1) the evidence at issue was favorable to the accused, 

either because it is exculpatory or because it impeaches; 

(2) the evidence was suppressed by the prosecution,

either willfully or inadvertently; and (3) prejudice 

ensued.

Hutchinson, supra (citation omitted).

The burden rests with the appellant to “prove, by reference 

to the record, that evidence was withheld or suppressed by the 

prosecution.” Id. (citation omitted). The evidence at issue must 

have been “material evidence that deprived the defendant of a fair 

trial.” Id. (citation and emphasis omitted). “Favorable evidence is 

material, and constitutional error results from its suppression by 

the government, if there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the 

proceeding would have been different. A reasonable probability is 

a probability sufficient to undermine confidence in the outcome.” 

Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 450 

(2011) (quoting Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 

1555, 131 L.Ed.2d 490 (1995)).

Brady does not require the disclosure of information “that 

is not exculpatory but might merely form the groundwork for 

possible arguments or defenses,” nor does Brady require the 

prosecution to disclose “every fruitless lead” considered during a 

criminal investigation. Id. (citation omitted). The duty to disclose 

is limited to information in the possession of the government 

bringing the prosecution, and the duty does extend to exculpatory 

evidence in the files of police agencies of the government bringing 

the prosecution. Commonwealth v. Puksar, 597 Pa. 240, 951 

A.2d 267, 283 (2008); Commonwealth v. Lesko, 609 Pa. 128,

15 A.3d 345, 370 (2011) (applying Kyles, supra at 438, 115 

S.Ct. 1555). Brady is not violated when the appellant knew or, 

with reasonable diligence, could have uncovered the evidence in 

question, or when the evidence was available to the defense from 

other sources. Commonwealth v. Smith, 609 Pa. 605, 17 A.3d 

873, 902–03 (2011); Paddy, supra at 451.

Brady sets forth a limited duty, not a general rule of 

discovery for criminal cases. Paddy, supra at 451 (citing 

Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 

L.Ed.2d 30 (1977) for the proposition that “there is no generalized 

constitutional right to discovery in a criminal case, and Brady did 

not create one”).
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Commonwealth v. Roney, 622 Pa. 1, 22–28, 79 A.3d 595, 607–08 (2013), 

cert. denied, 135 S.Ct. 56, 190 L.Ed.2d 56, 83 USLW 3185 (2014). 

While he acknowledges that the Commonwealth was not aware of Ms. 

Schuster until the morning of trial, Appellant asserts that under Brady and 

Pa.R.C.P. 573(G)3it remained obligated to disclose her name. Appellant’s 

____________________________________________

3 The rule in question requires the following 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 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;

(b) any written confession or inculpatory statement, or the 

substance of any oral confession or inculpatory statement, and 

the identity of the person to whom the confession or inculpatory 

statement was made that is in the possession or control of the 

attorney for the Commonwealth;

(c) the defendant's prior criminal record;

(d) the circumstances and results of any identification of the 

defendant by voice, photograph, or in-person identification;

(e) any results or reports of scientific tests, expert opinions, 

and written or recorded reports of polygraph examinations or 

other physical or mental examinations of the defendant that are 

within the possession or control of the attorney for the 

Commonwealth;

(f) any tangible objects, including documents, photographs, 

fingerprints, or other tangible evidence; and

(g) the transcripts and recordings of any electronic 

surveillance, and the authority by which the said transcripts and 

recordings were obtained.

Pa.R.Crim.P. 573. 
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argument focuses primarily upon Ms. Schuster’s testimony, and he claims that 

“[h]ad it been disclosed, and her impeachment been planned, the result of the 

case could have been different.” Brief for Appellant at 22. In doing so, 

Appellant highlights the following statements: 

[Ms. Schuster]: As I was leaning in the [Cunningham] car, [ ]

Appellant was leaning in over, as I'm trying to talk, [Appellant 

was] still yelling. At that point I just kind of blocked it out because 

I was trying to talk to him. . . . 

[The Prosecutor]: Through the course of this event, were you able

to hear any other conversations [Appellant] had with the person 

you later found out was his brother?

[Ms. Schuster]: Yes, I did. When we pulled up on scene and I

asked if they were okay, one of my questions on every accident 

scene was, Who is driving? And the other brother just stood there 

like a deer in headlights. He just had this look on his face like he 

didn't know how to respond. And as I was walking up, I had heard 

[Appellant] say to the brother, Tell them you were driving. You 

were driving, right? Just tell them that you were driving. 

Brief for Appellant at 19 (citations to reproduced record omitted) citing N.T. 

Trial 2/8/18, at 105-06; 107. 

Appellant has not carried his burden to establish that the 

Commonwealth withheld any evidence concerning Ms. Schuster which was 

favorable to his defense. First, as the trial court states, see infra, her 

testimony cannot be viewed as clearly exculpatory. See Trial Court Opinion, 

filed 9/13/18, at 9. Also, Appellant’s arguments ignore the fact that the 

Commonwealth clearly indicated Ms. Schuster’s name did not appear on any 

of the discovery in its possession, and it was the prosecutor’s repeat viewing

of the MVR which led him to inquire about her. Appellant was free to view the 
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MVR prior to trial and make the same inquiries which led the Commonwealth 

to Ms. Schuster, whom the prosecutor met on the same day her identity was 

revealed to Appellant. 

In addition, the trial court made additional findings in this regard: 

[W]e do not find that Ms. Schuster’s testimony was either 

exculpatory or tantamount to a confession.

***

Based upon Ms. Schuster’s testimony, the jury could have taken 

the words of [Appellant] to mean he had been driving and was 

trying to convince Elson Pastrana to take the blame, or that he 

had not been driving and was urging his brother to tell the truth. 

The statement was up to the jury to interpret a meaning. 

Furthermore, the statement did not appear to be one that the 

Commonwealth was aware of prior to trial, and therefore, not a 

statement in the possession or control of the attorney for the 

Commonwealth.

***

[Appellant] could have investigated the matter and learned of Ms. 

Schuster’s observations prior to trial. She was not a protected 

witness and she was an uninvolved third party to the accident. 

Even if her name was not in the accident report, it was noted that 

an ambulance responded to the scene, and that information could 

have been further investigated. Finally, the information was not 

so prejudicial that relief was necessary. The statement as given

could be interpreted for or against [Appellant] as the driver. The 

issue of intoxication was not in question, considering all other 

evidence, so that portion of the testimony was not prejudicial 

either. Therefore, we find no error in allowing Ms. Schuster’s 

testimony under the circumstances.

Trial Court Opinion, filed 9/13/18, at 13-14. 
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In sum, Appellant's claims of a Brady violation have been waived, but 

even if we were to review these claim on the merits, as did the trial court, we 

would find they fail. Appellant is entitled to no relief on his second issue.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/19