Com. v. Warfel, F. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANKLIN JAMES WARFEL :
:
Appellant : No. 407 MDA 2021
Appeal from the Judgment of Sentence Entered February 24, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004510-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: FEBRUARY 17, 2022
Franklin James Warfel appeals from his judgment of sentence imposed
following a jury trial resulting in convictions for aggravated indecent assault
of a child, aggravated indecent assault (complainant less than 13 years old),
indecent assault (complainant less than 13 years old), and corruption of
minors.1 Warfel challenges the admission of evidence regarding text and
Facebook messages referring to his possible criminal punishment if convicted.
We affirm.
The trial court aptly set forth the following underlying facts:
A.R. testified that she came to court because [Warfel] had touched
her when she and her mother, [C.R.] were living at [Warfel’s]
house. A.R. was familiar with [Warfel] because he was her
mother’s ex-fiancé. A.R. stated that the touching occurred around
the time [Warfel] bought a new mattress for himself and her
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1 18 Pa.C.S.A. §§ 3125(b), 3125(a)(7), 3126(a)(7), and 6301(a)(1)(i),
respectively.
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mother. On the day of the touching, A.R. and her mother were
napping on the new mattress. A.R. awoke from her nap to find
[Warfel] touching her from behind. A.R. testified that [Warfel]
used his hands to touch her breasts, butt and vagina. A.R. said
that the touching finally stopped when she moved closer to her
mother, who was asleep in the bed at the time, which caused
[Warfel] to leave the bedroom. A.R. further testified that she
never gave [Warfel] permission to touch her in the ways that he
did. A.R. identified [Warfel] in court.
[C.R.] testified that she was called to court because of an
incident involving her daughter, A.R. and [Warfel] that occurred
in February 2019. [C.R.] said that she knew [Warfel] because he
was an ex-boyfriend with whom she and A.R. had lived with []
beginning in 2014. [C.R.] testified that A.R. had come to her and
told her that [Warfel] had touched her private parts. [C.R.] then
proceeded to confront [Warfel] who denied the allegation saying
“she must have dreamed it because it didn’t happen.”
[C.R.] then proceeded to talk to A.R. again about the
allegations she had made about [Warfel] touching her. [C.R.] said
that A.R. repeated the allegation in more detail about when and
how [Warfel] had touched her. Due to the late time of day, [C.R.]
then went to bed and then confronted [Warfel] again the next day.
This time, [C.R.] recalled that [Warfel] admitted to the allegations
saying, “[Y]es and that he need[ed] help and [that] he has a
problem.” [C.R.] then said that [Warfel] asked for her to keep the
touching a secret and not to tell anyone. This prompted [C.R.] and
A.R. to move out of [Warfel’s] residence immediately. [C.R.]
testified that her ex-husband contacted the police to report the
incident. [C.R.] then testified about her communications with
[Warfel] via text message and Facebook message after she left
his residence. [C.R.] also identified [Warfel] at trial.
[Warfel] also testified at trial. [Warfel] testified that he
owned the home where the alleged incident occurred for 11 years.
[Warfel] said that at the time the incident occurred there were
approximately seven people residing in his home. [Warfel]
testified that he and [C.R.] had been dating on and off between
2014 and 2019. [Warfel] testified denying the allegations made
by A.R. about him touching her private parts.
[Warfel] testified as to his recollection of events giving rise
to the allegation of inappropriate touching. [Warfel] recalls that
on the day of the incident that A.R., [C.R.] and himself were all
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on the mattress and fell asleep together after talking. He
described his position as cuddling A.R. from behind but denied any
inappropriate touching, but mentioned his hand was around her
waist. [Warfel] then testified that he was confronted by [C.R.]
about allegations made by A.R. [Warfel] then testified about his
recall regarding his communications with [C.R.] via text and
Facebook messages. [Warfel] characterizes his relationship with
A.R. as rocky because she treated him like a child, but that he
wouldn’t ever touch her like she said.
Tr. Ct. 1925(a) Op. 5/11/21 at 1-4 (citations omitted).
At trial, before the admission of the messages between Warfel and C.R.,
the court heard from counsel, out of the presence of the jury, about issues
regarding the messages’ admissibility. After hearing about an objection not at
issue in this appeal, the court said it believed there was an additional issue.
The prosecutor volunteered that there was a question about “[t]he statement
that [Warfel] is going to go to prison” and gave her recollection of Warfel’s
messages about his likelihood of receiving a prison sentence. N.T., 11/9/20-
11/12/20 at 86.
Warfel’s counsel responded, “And then [C.R.] turns and says, well, it’s
your first offense, you’ll probably get probation and things to that effect. I
believe that would be improper.” Id. at 87. Defense counsel added, “Especially
talking about time of incarceration, the jurors are not allowed to do that[.]”
Id. The Commonwealth countered that “it still goes to his own confession”
and suggested that the court give a limiting instruction that the jury was not
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to consider the sentence Warfel might receive. Id. The court overruled the
objection, stating that “it’s relevant with the limiting instruction.”2 Id.
C.R. then testified and read the messages at issue into the record:
[C.R.]: . . . [Warfel wrote], please, please tell me that you were
messing with me about John knowing. I replied, yes, he called
both [police] departments directly. [Warfel wrote] are the cops
really involved already. I replied, kill yourself. I don’t know if you
can’t handle the blow up from all of this. Especially when everyone
finds out what you did. [Warfel wrote], what do you think I should
do. I replied, I know I couldn’t live with myself over something
like that. Way too extreme.
[Commonwealth]: Let‘s go on to the next page.
[C.R.]: I replied, of course, either me or your parents will. If they
don’t want him, I will take him in. He‘s an innocent victim in all of
this. [Warfel wrote] will you take care of Titan [the dog]. I replied,
they would have to take him until I get my own place. If you go
to jail I will take him. And then I said, hello. [Warfel wrote], I‘m
here. I replied, it‘s a first time offense so you might not go to jail.
And [Warfel wrote], I’m just too depressed. I‘m going to have to
talk to an attorney and see what they can negotiate.
[Commonwealth]: Let‘s go down to the next page, if you can pick
up at the top.
[C.R.]: [Warfel wrote], all I can do is hope and pray that they can
some how [sic] punish me without tearing the dogs’ lives and
[Warfel’s son’s] life apart. I’d do anything just to make sure that
they are still okay. [Warfel wrote], highly doubt it though. Jail
seems likely. I replied, from what I read you’ll probably get
probation in a plea bargain as a first time offense and what you
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2 This exchange between the court, Warfel’s counsel, and the Commonwealth
was sufficient to preserve for appellate review Warfel’s instant claim. See
Pa.R.Crim.P. 603(a) (“Any ruling of the judge on an objection or motion made
during the trial of any action or proceeding shall have the effect of a sealed
exception in favor of the party adversely affected without the necessity of a
formal request or notation made on the record”). Hence, we conclude that the
Commonwealth’s contention that Warfel’s issue should be deemed waived for
failure to object in the trial court to be unavailing.
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did isn’t considered severe enough requiring jail times. And I
reply, yes, but if you take responsibility for your actions and agree
to get help and if I as a mother support that, it’s possible. And
[Warfel wrote], that’s if I‘m extremely lucky. And [Warfel wrote],
I do want counseling, affordable counseling.
***
[Commonwealth]: You can pick up then with the next message.
[C.R.]: I replied, how did it go with the lawyer. [Warfel wrote],
not good. It’s not looking good. I replied, like what. Jail time. How
much time. Did he give you an idea. [Warfel wrote], yes. [Warfel
wrote], don‘t know. [Warfel wrote], all depends on how far [A.R.]
and her dad want to push this. [Warfel wrote], it‘s gonna be hard
to plea this down if they push the worst on me. [Warfel wrote],
I‘m so sorry. Sad emoji.
N.T. at 185-187; 188.
Regarding the reference to jail time, the trial court gave the following
cautionary instruction: “[A]nything you heard with respect to punishment, I
want you to disregard. As I’ve instructed you previously, you are the finder of
fact. Punishment is something that will be dealt with depending on whether or
not [Warfel] is convicted and that will not be your role, okay.” N.T. at 198.
Ultimately, the jury found Warfel guilty of the above-referenced
charges. The court sentenced Warfel on February 24, 2021, to the mandatory
minimum sentence of 10 to 20 years’ incarceration, followed by 3 years of
probation. The instant timely appeal followed. Both the trial court and Warfel
complied with Pa.R.A.P. 1925.
Warfel raises a single issue:
Did the trial court abuse its discretion in allowing evidence that
[Warfel] would “probably get probation” and “might not go to jail”
for the charged offenses where this evidence concerned
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punishment and minimized the significance of this case in the eyes
of the jury despite the fact that Warfel faced a mandatory-
minimum sentence of 10 to 20 years’ incarceration if convicted?
Warfel’s Br. at 4.
Warfel argues that the trial court erred by admitting C.R.’s text
messages opining that Warfel would likely only receive probation with no jail
time. He argues the evidence was inadmissible pursuant to Commonwealth
v. Lucier, 225 A.2d 890, 891 (Pa. 1967) and that it was “more broadly”
irrelevant. Warfel’s Br. at 23. Warfel asserts that the jury was likely improperly
influenced to convict Warfel by the suggestion that he would receive little to
no criminal punishment. Warfel emphasizes that the implication that he would
receive little or no jail time was erroneous and prejudicial because he faced a
mandatory minimum sentence of 10 to 20 years.
“A trial court has broad discretion to determine whether evidence is
admissible and a trial court’s ruling on an evidentiary issue will be reversed
only if the court abused its discretion.” Commonwealth v. Huggins, 68 A.3d
962, 966 (Pa.Super. 2013) (citing Commonwealth v. Cook, 676 A.2d 639,
647 (Pa. 1996)). We do not disturb a ruling admitting evidence “unless that
ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill
will, or such lack of support to be clearly erroneous.” Id. (quoting
Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.Super. 2010)). As our
scope of review of evidentiary questions is plenary, we review the ruling within
the context of the entire record. Id.-6-
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“The threshold inquiry with the admission of evidence is whether the
evidence is relevant.” Commonwealth v. Stokes, 78 A.3d 644, 654
(Pa.Super. 2013) (citation omitted). “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
the existence of a material fact.” Id. (citation omitted). In assessing whether
to admit evidence that is logically relevant, the court must also “weigh the
relevance and probative value of such evidence against the prejudicial impact
of that evidence.” Commonwealth v. Jones, 683 A.2d 1181, 1193 (Pa.
1996); see also Pa.R.E. 403.
It is well settled that “punishment is a matter solely for the court and
not for the jury to know or [to] consider during its deliberations.”
Commonwealth v. White, 504 A.2d 930 (Pa.Super. 1986) (citing Lucier,
225 A.2d at 891 (holding that a mistrial was warranted, in part, because the
judge submitted the possible sentencing penalties to the jury during
deliberations)). “[T]he jury has nothing to do with the punishment of an
offense[.]” White, 504 A.2d at 930 (citation omitted) (holding defendant not
entitled to jury instruction regarding mandatory minimum sentence he would
face upon conviction).
We do not think the trial court exceeded the bounds of its discretion in
overruling the objection and admitting the evidence. Warfel’s citation to
Lucier is inapposite. There, it was the trial judge who made the reference to
criminal punishment, and the judge did so to establish the actual sentence the
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defendant would face if convicted. See Lucier, 225 A.2d at 891. Here, the
judge did nothing of the sort.
The messages at issue were relevant and admissible as part of the telling
of a larger story in which Warfel himself said that he could face prison time.
They thus were relevant to show that Warfel’s statements reflected his
consciousness of guilt. For example, when C.R. said that it was Warfel’s first
offense and what he did was not severe enough to warrant prison time, Warfel
did not dispute that he had committed an offense or had “done” something.
He instead agreed he might not get a prison sentence if he is “lucky” and said
he wanted counseling. When C.R. asked if Warfel’s lawyer thought he would
get “jail time” and how much, Warfel responded, “yes,” the amount depended
on how hard they “pushed,” and, “I’m sorry. Sad emoji.”
Admitting the testimony also did not violate Rule 403. C.R. was not
offered as an authority on sentencing, and the court issued a cautionary
instruction telling the jury to disregard any testimony concerning Warfel’s
potential sentence because sentencing was not within the jury’s purview.3 See
Huggins, 68 A.3d at 966; Stokes, 78 A.3d at 654; Jones, 683 A.2d at 1193.
Even if admission of the messages were error, we would find the error
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3 Warfel’s reference to cases involving improper references to the death
penalty in capital cases is also inapposite. Warfel cites Caldwell v.
Mississippi, 472 U.S. 320, 328-29 (1985), and Commonwealth v.
Montalvo, 205 A.3d 274, 294 (Pa. 2019), for the proposition that a jury is
improperly influenced by the implication that responsibility for a capital
sentence ultimately lies with the judge, not the jury. Here, no such prejudice
occurred, as the jury was properly instructed that Warfel’s sentencing was for
the trial court alone.
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harmless. See Commonwealth v. Hamlett, 234 A.3d 486, 492-93 (Pa.
2020). Although C.R. expressed in the messages her belief at the time that
Warfel was unlikely to receive prison time, both Warfel and, perhaps most
significantly, his lawyer disagreed. We thus conclude beyond a reasonable
doubt that any error in admitting the evidence could not have contributed to
the verdict. See Commonwealth v. Mitchell, 839 A.2d 202, 214 (Pa. 2003).
We therefore affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/17/2022
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