Com. v. Nazario, C. ( 2018 )

J-S44025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTINE NAZARIO :
:
Appellant : No. 3495 EDA 2017
Appeal from the Judgment of Sentence May 23, 2017
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001513-2016
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 17, 2018
Christine Nazario (Appellant) appeals from the judgment of sentence
imposed after a jury convicted her of three counts of endangering the welfare
of a child (EWOC), three counts of conspiracy to commit EWOC, and a
summary count of harassment.1 We affirm on the basis of the trial court
opinion.
The child victims in this case are Appellant’s three biological sons.2 At
sentencing, the trial court stated:
This was repeated physical, verbal, emotional and physical and
spiritual abuse against [the] children that was sustained; it was
____________________________________________
1
18 Pa.C.S.A. §§ 18 Pa.C.S.A. §§ 4304, 903, 2709.
2
Rafael Olivo, who is Appellant’s husband and the children’s stepfather, was
also charged and convicted of the above crimes, as well as three counts of
simple assault related to his abuse of the children. He and Appellant were
tried jointly, and his separate appeal is before this Court at Commonwealth
v. Olivo, 2854 EDA 2017.
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pervasive and occurred over a significant period of time. I mean
this was the poster case for physical abuse of children. And
unfortunately it’s not the only poster case but it doesn’t come
anywhere close to punishment that went astray.
N.T., 5/23/17, at 45-46. The trial court described some of the abuse:
And I’m not going to go through everything but my
characterization of this is as follows; that it was repeated physical
and verbal abuse over a significant period of time that involved
multiple beatings by two adults of three children who were in their
care. The children were hit with hands open and closed, with any
item that was at hand including belts, mops, slippers, etc. On one
occasion one of the children was hit and couldn’t open his jaw
without it hurting for a week and a half.
A dog was beaten in front of the children in part to show
them they must be submissive.
Both [Appellant and her husband] smoked marijuana in the
house . . . and in front of the children; and significantly, the
children were told . . . that if they were questioned about the
bruises that these beatings resulted in they were to lie or it would
get worse.
That’s just a quick summary; it doesn’t even capture all of
the testimony.
Id. at 47.
As noted, Appellant was tried jointly with the children’s stepfather,
Rafael Olivo. The trial was held from February 8 – 10, 2017. At the conclusion
of trial on February 10, 2017, the jury convicted Appellant of the
aforementioned crimes. On May 23, 2017, the trial court sentenced Appellant
to 60 to 120 months of incarceration, plus 90 days for the summary
harassment conviction, followed by three years of probation. On June 2, 2017,
Appellant filed a post-sentence motion for reconsideration of sentence. The
trial court convened a hearing on the motion on August 1, 2017. It denied
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the motion on October 2, 2017. Appellant filed this timely appeal. Both
Appellant and the trial court have complied with Appellate Rule of Procedure
1925.
Appellant presents eight issues:
1. At trial, whether the lower court erred when it allowed the
Commonwealth to amend the Information on the first day of trial
to add a new theory of criminal liability?
2. At trial, whether the lower court erred when it allowed a child-
victim to testify about drug use when the victim lacked personal
knowledge of narcotics and where the narcotics were not alleged
as a basis of criminal liability prior to the first day of trial and the
amendment of the information?
3. At trial, whether the lower court erred when it allowed the
Commonwealth to ask leading questions of the child-victims?
4. At trial, whether the lower court erred when it allowed Trooper
Brian Borowicz to testify to a video-taped statement in
contravention to the Hearsay Rule, the Best Evidence Rule, and
the Tender Years statute?
5. At trial, whether the lower court erred when, on basis of a
hearsay objection, it prohibited the defense from cross-examining
Trooper Brian Borowicz on statements by the father of the child-
victims regarding his improper motives in this case?
6. At trial, whether the lower court erred when it admitted a
Facebook post about physical abuse without proper
authentication?
7. At trial and in disposing of post-sentence motions, whether the
lower court erred when it determined that there was sufficient
evidence for multiple charges of Conspiracy, rather than a single
count of Conspiracy?
8. In disposing of post-sentence motions, whether the lower court
erred when it determined that the Appellant’s three charges for
Endangering the Welfare of a Child and three charges for
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Conspiracy do not merge into a single charge of Endangering and
a single charge for Conspiracy for sentencing purposes?
Appellant’s Brief at 7-8.3
In her first issue, Appellant claims that on the first day of trial, the trial
court improperly permitted the Commonwealth to amend the criminal
information at the six EWOC and conspiracy counts to add that Appellant
engaged in activity that would be criminal conduct in front of the children by
smoking marijuana and using other drugs. We note that “[i]f there is no
showing of prejudice, amendment of an information to add an additional
charge is proper even on the day of trial.” Commonwealth v. Sinclair, 897
A.2d 1218, 1224 (Pa. Super. 2006) (citation omitted). Here, the amendment
did not add new charges or change the description or grading of the charges;
nor did it add facts previously unknown to Appellant. The trial court thus
concluded that the amendment did not result in undue prejudice or unfair
surprise to Appellant. See id. at 1221 (“the purpose of [Criminal Procedure]
Rule 564 [allowing amendment of an information] is to ensure that a
defendant is fully apprised of the charges, and to avoid prejudice by
prohibiting the last minute addition of alleged criminal acts of which the
defendant is uninformed.”).
With regard to Appellant’s multiple evidentiary claims, we recognize:
The standard of review governing evidentiary issues is settled. The
decision to admit or exclude evidence is committed to the trial
____________________________________________
3
The Commonwealth has not filed a reply brief.
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court’s sound discretion, and evidentiary rulings will only be
reversed upon a showing that a court abused that discretion. A
finding of abuse of discretion may not be made “merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” Commonwealth v. Laird, 605 Pa. 137, 988 A.2d
618, 636 (2010) (citation and quotation marks omitted); see also
Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24, 48 (2011).
Matters within the trial court’s discretion are reviewed on appeal
under a deferential standard, and any such rulings or
determinations will not be disturbed short of a finding that the trial
court “committed a clear abuse of discretion or an error of law
controlling the outcome of the case.” Commonwealth v.
Chambers, 602 Pa. 224, 980 A.2d 35, 50 (2009) (jury
instructions)[ .]
Commonwealth v. Koch, 106 A.3d 705, 710–11 (Pa. 2014).
We note that in her sixth issue, Appellant claims that a Facebook post
of her co-defendant, Mr. Olivo, was improperly admitted at trial. This Court
recently – after Appellant took this appeal – issued a decision which provides
further support for the trial court’s admission of the post in this case, stating:
[S]ocial media records and communications can be properly
authenticated within the existing framework of Pa.R.E. 901 and
Pennsylvania case law, similar to the manner in which text
messages and instant messages can be authenticated. Initially,
authentication social media evidence is to be evaluated on a case-
by-case basis to determine whether or not there has been an
adequate foundational showing of its relevance and authenticity.
See In re F.P., 878 A.2d at 96. Additionally, the proponent of
social media evidence must present direct or circumstantial
evidence that tends to corroborate the identity of the author of
the communication in question, such as testimony from the person
who sent or received the communication, or contextual clues in
the communication tending to reveal the identity of the sender.
Commonwealth v. Mangel, 181 A.3d 1154, 1162 (Pa. Super. 2018).
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Finally, with regard to Appellant’s seventh and eighth arguments
contesting the three charges each of EWOC and conspiracy, including
Appellant’s merger argument, we highlight a statement from the
Commonwealth when it addressed Appellant’s merger argument at
sentencing. The Commonwealth accurately responded that the three children,
“all had different instances of abuse from [Appellant] throughout years. To
sit here and say to the Court that a parent can beat three different children
over the course of years and come before you and only be held accountable
for one crime . . . is absurd.” N.T., 5/23/17, at 10.
In sum, having reviewed Appellant’s brief, the record, and prevailing
law, we conclude that there was no error or abuse of discretion in this case.
Further, the Honorable Jonathan Mark, sitting as the trial court, has authored
a comprehensive and well-reasoned opinion addressing each of Appellant’s
issues. Accordingly, we adopt Judge Mark’s Rule 1925(a) opinion as our own
in affirming Appellant’s judgment of sentence. Because we have adopted the
trial court’s opinion, we direct the parties to include it in all future filings
relating to the merits of this appeal.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2018
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Circulated 08/10/2018 01:43 PM
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
NO. 1513 CRIMINAL 2016
v.
APPEAL DOCKET NO.
CHRISTINE NAZARIO, 2495 EDA 2017
Defendant
OPINION IN SUPPORT OF ORDER PURSUANT TO Pa. R.A.P. 1925(a)
On October 2, 2017, we issued an order denying Defendant's post sentence
motions. The order provided a bullet summary of the reasons for denial and stated that
an opinion would follow. Before the opinion was issued, Defendant filed this appeal. As
a result, we issued an order directing the Defendant to file a statement of errors
complained of on appeal pursuant to Pa. R.A.P. 1925(b) and held off filing this opinion
so that we could at once state the reasons for our order and address issues raised by
Defendant. Subsequently, Defendant filed a Rule 1925(b) statement.1 We now file this
opinion in accordance with Pa.R.A.P. 1925(a) and our Order.
BACKGROUND
Defendant was arrested and charged with committing three counts each of
Endangering the Welfare of a Child (EWOC), Conspiracy to commit EWOC, Simple
Assault, and Harassment against her children, RPG, RJG, and ARG. The charges
stem from incidents in which Defendant physically and emotionally abused the
1
In her notice of appeal, Defendant purports to appeal from both the judgment of sentence and the order denying
his post sentence motions. However, in a criminal context, an appeal properly lies from the judgment of sentence.
See Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.l (Pa. Super. 2003) (en bane) (in a criminal action, appeal
properly lies from the judgment of sentence made final by the denial of a post-sentence motion).
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children, was violent toward them, and endangered them. The children's stepfather,
Rafael Ray Olivo, was charged with committing the same four crimes against the
children. The cases were consolidated by the Commonwealth.
A joint trial commenced on February 8 and concluded on February 10, 2017.
The Commonwealth called six witnesses, including the children, all of whom testified in
open court, the arresting trooper, and the forensic examiner who spoke with the
children at the local Child Advocacy Center (CAC) after the abuse came to light. The
Children's stepfather did not present any evidence. Defendant called two witnesses,
Chaia Nazario and Jeremy Nazario. At the conclusion of the trial, the jury convicted
Defendant of committing EWOC, Conspiracy to commit EWOC, and Harassment
against RPG, and EWOC and Conspiracy to Commit EWOC against RJG and ARG.2
After the verdict was accepted, we entered an order scheduling a sentencing
hearing. Subsequently, Defendant filed "Pre-Sentencing Motions" asking us to impose
a single sentence for the three EWOC convictions and a single sentence for the three
Conspiracy convictions based on her assertion that imposition of multiple sentences
for each crime is barred by merger and Double Jeopardy principles. In addition,
Defendant asked that we grade the EWOC and Conspiracy charges as misdemeanors
of the first degree and not felonies. (Defendant's Pre-Sentencing Motion, filed March
10, 2017).
Defendant's motions were argued and denied during the sentencing hearing
before sentence was imposed. (N.T., 5/23/2017, pp. 6-14). At the conclusion of the
2
Co-defendant, Rafael Olivo, was convicted of perpetrating all four crimes charged against RPG and RJG and of
committing EWOC and Conspiracy to Commit EWOC against ARG. Like Defendant, Olivo has filed an appeal.
Olivo's case is docketed in this Court to No. 1511 CRIMINAL 2016. His appeal is docketed in the Superior Court
to No. 2854 EDA 2017. On November 13, 2017, we issued an opinion pursuant to Pa. R.A.P. 1925(a) in response
to the appeal filed by Olivo. We incorporate that appeal opinion into this opinion by reference.
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hearing, we sentenced Defendant to an aggregate period of incarceration of not less
than 60 months nor more than 120 months, plus 90 days on the summary Harassment
conviction, to be followed by a consecutive three-year period of probation.
After sentence was imposed, Defendant filed post sentence motions.
Defendant's filing included a motion to find merger and a motion to bar multiple
sentences on double jeopardy grounds through which she reiterated her contention
that only one sentence for the EWOC convictions and one sentence for the
Conspiracy convictions may be imposed. Defendant also restated her position that the
EWOC and Conspiracy charges should be graded as misdemeanors and not felonies.
Finally, Defendant argued that there was insufficient evidence to sustain the
convictions. Subsequently, Defendant withdrew her offense grading claim. (Order
dated October 2, 2017; Defendant's brief, filed July 12, 2017, p. 1 (unnumbered); N.T.,
August 1, 2017, p. 7).
On October 2, 2017, we issued an order denying Defendant's post sentence
motions. The order stated:
AND NOW, this 2nd day of October, 2017, upon
consideration of Defendant's Post-Sentence Motion, the
briefs and arguments of counsel, the record and file in this
case, the evidence presented during trial, and the
applicable law, it is ORDERED that the Motion is DENIED.
Opinion to follow.
In broad summary: 1) Defendant's Merger Statue
and Double Jeopardy arguments lack merit; 2) the
Commonwealth presented sufficient evidence to support
the verdict; and 3) Defendant withdrew her claim regarding
grading of the Endangering the Welfare of a Child
convictions
Defendant filed this appeal before an opinion was issued.
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DISCUSSION
Using the shotgun approach, Defendant raises eight assignments of error, all of
which are phrased as questions:
1. At trial, whether the Trial Court abused its discretion
and erred as a matter of law when it allowed the
Commonwealth to amend the information on the first day
of trial to add a new theory of criminal liability?
2. At trial, whether the Trial Court abused its discretion
and erred as a matter of law when it allowed a child-victim
to testify about drug use when the victim lacked personal
knowledge of narcotics and where the narcotics were not
alleged as basis of criminal liability prior to the first day of
trial and the amendment of the information?
3. At trial, whether the Trial Court abused its discretion
and erred as a matter of law when it allowed the
Commonwealth to ask leading questions of the child-
victims?
4. At trial, whether the Trial Court abused its discretion
and erred as a matter of law when it allowed Trooper Brian
Borowicz to testify to a video-taped statement in
contravention to a proper application of the Hearsay Rule,
the Best Evidence Rule, and the Tender Years statute?
5. At trial, whether the Trial Court abused its discretion
and erred as a matter of law when, on the basis of a
Hearsay Objection, it prohibited the defense from cross-
examining Trooper Brian Borowicz on statements by father
of the child-victims regarding his improper motives in this
case?
6. At trial, whether the Trial Court abused its discretion
and erred as a matter of law when it admitted a Facebook
post about physical abuse without proper authentication?
7. At trial and in disposing of post-sentence motions,
whether the Trial Court abused its discretion and erred as
a matter of law when it determined that there was sufficient
evidence for multiple charges of Conspiracy, rather than a
single count of Conspiracy?
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8. In disposing of post-sentence motions, whether the
Trial Court abused its discretion and erred a matter of law
when it determined that the Appellant's three charges for
Endangering the Welfare of a Child and three charges for
Conspiracy do not merge into a single charge of
Endangering and a single charge for Conspiracy for
sentencing purposes?
(Defendant's Rule 1925(b) Statement, filed November 16, 2017, ,r2 (1) - (8)). The
three issues raised on post sentence motions are encompassed in assignments of
error seven and eight. For the reasons that follow, all assignments of error and all
issues raised in post sentence motions lack merit.
1. Amendment of the Information Was Proper
In her first assignment of error, Defendant asserts that that we erred by granting
the Commonwealth's motion to amend the Information. We disagree.
The version of Rule 564 of the Rules of Criminal Procedure, entitled
Amendment of Information, which was in effect when Defendant was arrested and at
time of trial provided:
The court may allow an information to be amended when
there is a defect in form, the description of the offense(s),
the description of any person or any property, or the date
charged, provided the information as amended does not
charge an additional or different offense. Upon
amendment, the court may grant such postponement of
trial or other relief as is necessary in the interests of
justice.
Pa. R.Crim. P. 564.3 The purpose of Rule 564 is to ensure that a defendant is fully
apprised of the charges, and to avoid prejudice by prohibiting the last minute addition
3
Rule 564 was amended on December 21, 2016. The amendment became effective December 21, 2017. The
current version of Rule 564 reads: "The court may allow an information to be amended, provided that the
information as amended does not charge offenses arising from a different set of events and that the amended
charges are not so materially different from the original charge that the defendant would be unfairly prejudiced.
Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of
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of alleged criminal acts of which the defendant is uninformed. Commonwealth v.
Mentzer, 18 A.3d 1200 (Pa. Super. 2011 ); Commonwealth v. Sinclair, 897 A.2d 1218
(Pa. Super. 2006); Commonwealth v. Duda, 831 A.2d 728, 732 (Pa. Super. 2003).
"[O]ur courts apply the rule with an eye toward its underlying purposes and with a
commitment to do justice rather than be bound by a literal or narrow reading of the
procedural rules." Commonwealth v. Grekis, 601 A.2d 1284, 1288 (Pa. Super. 1992).
In Mentzer, the Superior Court set forth the considerations for determining
whether amendment should be permitted.
[W]hen presented with a question concerning the propriety
of an amendment, we consider:
[w]hether the crimes specified in the original
indictment or information involve the same basic
elements and evolved out of the same factual
situation as the crimes specified in the amended
indictment or information. If so, then the defendant is
deemed to have been placed on notice regarding his
alleged criminal conduct. If, however, the amended
provision alleges a different set of events, or the
elements or defenses to the amended crime are
materially different from the elements or defenses to
the crime originally charged, such that the defendant
would be prejudiced by the change, then the
amendment is not permitted.
Sinclair, 897 A.2d at 1221 (quoting Commonwealth v.
Davalos, 779 A.2d 1190, 1194 (Pa. Super. 2001 ), appeal
denied, 567 Pa. 756, 790 A.2d 1013 (2001) (citation
omitted)). Additionally,
[i]n reviewing a grant to amend an information, the
Court will look to whether the appellant was fully
apprised of the factual scenario which supports the
charges against him. Where the crimes specified in
the original information involved the same basic
justice." Pa. R.Crim.P. 564. The Comment advises that the Rule "was amended in 2016 to more accurately reflect
the interpretation of this rule that has developed since it first was adopted in 1974. "Ld., Comment.
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elements and arose out of the same factual situation
as the crime added by the amendment, the appellant
is deemed to have been placed on notice regarding
his alleged criminal conduct and no prejudice to
defendant results.
Id. at 1222. Further, the factors which the trial court must
consider in determining whether an amendment is
prejudicial are:
(1) whether the amendment changes the factual
scenario supporting the charges; (2) whether the
amendment adds new facts previously unknown to
the defendant; (3) whether the entire factual
scenario was developed during a preliminary
hearing; (4) whether the description of the charges
changed with the amendment; (5) whether a change
in defense strategy was necessitated by the
amendment; and (6) whether the timing of the
Commonwealth's request for amendment allowed for
ample notice and preparation.
Id. (citation omitted) .... 'The mere possibility amendment of
information may result in a more severe penalty ... is not, of
itself, prejudice.' Commonwealth v. Picchianti, 410
Pa.Super. 563, 600 A.2d 597, 599 (1991 ), appeal denied,
530 Pa. 660, 609 A.2d 168 (1992).
Mentzer, 18 A.3d at 1202-03. See also Commonwealth v. Beck, 78 A.3d 656, 660
(Pa. Super. 2013); Commonwealth v. J.F., 800 A.2d 942, 945 (Pa. Super. 2002),
appeal denied, 812 A.2d 1228 (Pa. 2002); Grekis, supra. Accordingly, "[i]f there is no
showing of prejudice, amendment of an information to add an additional charge is
proper even on the day of trial." Sinclair, 897 A.2d at 1224. See also Commonwealth v.
Roser, 914 A.2d 447, 455 (Pa. Super. 2006) (allowing amendment after the defendant
testified just prior to closing arguments); Commonwealth v. Womack, 453 A.2d 642,
645 (Pa. Super. 1982) (If there is no showing of prejudice, amendment of an
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information to add an additional charge is proper even on the day of trial);
Commonwealth v. Page, 965 A.2d 1212, 1224 (Pa. Super. 2009).
In this case, we did not find prejudice at the time of trial. On review prompted by
this appeal, we remain convinced that there was no prejudice and that our decision to
allow amendment was proper.
The challenged amendment was made to the EWOC and Conspiracy counts.
As originally pied in the information, the three EWOC counts each charged that
Defendant "did strike, hit, punch, push, and/or use other violence on victims: R.P.G.,
A.R.G., and R.J.G." Similarly, the three Conspiracy counts each charged that
defendant "did participate in, encourage, not discourage, and/or watched as either
Rafael Olivo or Defendant did strike, hit, punch, push, and/or use other violence on
victims: R.P.G., A.R.G., and R.J.G." (Information, filed August 17, 2016). On the first
day of trial, the Commonwealth asked to amend all six counts to add that Olivo and
Defendant engaged in activity that would be criminal conduct in front of the children.
The conduct alleged to be criminal was smoking marijuana and using other drugs and
Olivo shooting the oldest child with a BB gun. In making its motion, the Commonwealth
asserted that both defendants and their attorneys were aware of the drug use and gun
from the beginning of the case. Defense counsel countered that the amendment
constituted trial by ambush. They also argued that the amendment changed the theory
of the case. After hearing the arguments of counsel we allowed amendment, indicating
that we did not perceive any undue prejudice or unfair surprise. (N.T., 02/08/2017, p.
11 - 19. See also pp. 2-11).
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In more expanded terms, after considering the law recited above, we allowed
amendment for several reasons. Initially, the amendment neither added new charges
nor changed the description or grading of the charges. Similarly, the amendment did
not add new facts previously unknown to Defendant or her attorney. The facts on
which amendment was based were known and available to both Defendant and Olivo
from the beginning of the case. Drug use in front of the children was specifically
mentioned in the Affidavit of Probable Cause, drug use and Olive's shooting the oldest
child with a BB gun were included in statements made by the children and were
brought out through testimony at the preliminary hearing, and both matters were
brought up by the children during their Children's Advocacy Center (CAC) interviews.
Defendant's attorney and counsel for Olivo had transcripts of the preliminary hearing
as well as copies of the children's statements and CAC interviews. Relatedly, while the
amendment added new verbiage to the information, it did not change the factual
scenario supporting the charges. In succinct terms, the scenario on which the charges
were based is that, over an extended period of time, Defendant and Olivo, individually
and together, verbally, emotionally, and physically abused and endangered the
children in a variety of ways, including but not limited to hitting and beating them with
belts, slippers, aerosol cans, and fists - anything that came to hand. Despite defense
posturing, Defendant and Olivo's smoking marijuana and using drugs in front of and
while caring for the children and Olive's shooting one child with a BB gun were not
novel or additional theories of criminal liability; rather, the conduct added by
amendment was from the beginning cited by both the children and the Commonwealth
as but two of the many examples of the type and nature of abuse and endangerment
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that Defendant and Olivo perpetrated on the children. Accordingly, the amendment did
not and should not have either surprised Defendant or changed her defense strategy.
Finally, considering all of these facts, factors, and circumstances, we did not believe
that amendment prejudiced Defendant (or Olivo) even though it occurred immediately
prior to the evidentiary portion of the trial. We stand by our analysis.
2. R.P.G. was Properly Allowed to Testify About Drug Use.
In her second assignment of error, Defendant argues that we erred and abused
our discretion by allowing R.P.G. to testify about drug use because: 1) R.P.G. "lacked
personal knowledge of narcotics;" and 2) "narcotics were not alleged as basis of
criminal liability prior to the first day of trial and the amendment of the information."
Neither aspect of this assignment of error holds water.
The second assignment of error stems from an objection to R.P.G.'s testimony,
elicited by the Commonwealth, about his mother's drug use that occurred in front of,
and while she was responsible for the care of, R.P.G. and his siblings. In explaining
how his Mother had abused him and his siblings over time, RPG testified that his
mother "was abusive. She abused drugs. She had hit me and my brothers; so did he
[Olivo]." (N.T., 02/08/2017, p. 71). The Commonwealth then asked questions to flesh
out the types of abuse, beginning with asking R.P.G. what he meant by his statement
that his mother "abused drugs." In his responses, R.P.G. stated that his mother
abused drugs, mainly marijuana but also other drugs the names and types of which he
did not know, and that he saw her use marijuana in front of himself and his siblings on
several occasions. (Id. at 71-74). Several questions into this line of inquiry, counsel for
Defendant objected. After an on-record side-bar conference, in which Defendant's
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attorney summarily argued that the testimony was irrelevant and not based on
personal knowledge, we overruled the objection. (Id. at 71-73). RPG went on to briefly
testify that his mother would use marijuana in front of himself and his siblings. When
asked by the Commonwealth how he knew it was marijuana she was smoking and not
a cigarette, R.P.G. stated that the substance had a brown wrapping and that his
mother was less alert and more drifty after smoking it. (Id. at 74).
On cross-examination, Counsel for defendant questioned R.P.G. regarding his
testimony about his mother's drug use. Among other things, Defendant's attorney
elicited testimony, as he had previously argued at sidebar, that the other drugs taken
could have been prescribed medication, although R.P.G. noted that in his experience
packaging for doctor-prescribed medication was different. (N.T., 02/08/2017, p. 72,
96).
Given these facts and the timing of the objection at trial, we do not believe that
Defendant has properly preserved this evidentiary challenge. The objection was not
made when the Commonwealth first asked R.P.G. questions about his statement that
his mother "abused drugs." Instead, the objection was not lodged until four questions
into that line of inquiry. Since the objection was not made at the earliest possible
moment, we believe the issue has been waived.
In the alternative, Defendant's two-part evidentiary challenge is substantively
without merit. In this regard, the second aspect of this assignment of error does
nothing more than reiterate Defendant's challenge to amendment of the information.
That challenge is baseless for the reasons discussed above.
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The first aspect of this assignment of error, which alleges that R.P.G. lacked
personal knowledge of narcotics, is equally unavailing. At time of trial, R.P.G. was
fourteen and his testimonial competency was not challenged. Given the context, facts,
and circumstances of this case, the elements of the crimes charged, and the other
evidence presented during the trial, testimony regarding Defendant's drug use was
clearly relevant. Such testimony related directly to all charges that were presented to
the jury. This is especially true given the amendment that we permitted. In addition, the
testimony provided background and context for the substantial evidence of abuse,
endangerment, harassment, and neglect that was presented. Further, despite
Defendant's bald, self-serving assertion to the contrary, R.P.G. had the requisite
personal knowledge regarding the subject matter of his testimony (Pa.RE. 602). He
personally witnessed Defendant smoke marijuana and consume drugs, was able to
describe the color of the drugs his mother was using, the way the drugs were
packaged, and his mother's behavior and conduct after she smoked or ingested the
drugs. (N.T., 02/08/2017, p. 71-4, 96). Finally, this issue, as raised by Defendant at
trial and as reiterated on appeal goes to the weight of the testimony and not its
admissibility.
Simply, Defendant waived this issue. In the alternative, allowing R.P.G. to
testify about Defendant's drug use was neither an error nor an abuse of discretion.
3. Allowing Some Leading Questions to Be Asked of Child Victims in a
Child Abuse Prosecution was Proper
In his third assignment of error, Defendant makes a bald, general claim that we
erred by allowing the Commonwealth "to ask leading questions of the child victims."
This is another issue that has been waived. Alternatively, the issue lacks merit.
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Defendant's third assignment of is devoid of any specifics that would allow this
Court to meaningfully address, or the Superior Court to meaningfully review, her
challenge. Despite the fact that the trial transcript was distributed prior to sentencing
and more than seven months before Defendant's Rule 1925(b) statement was filed,
Defendant did not specify which of the children she believes were improperly led on
direct or re-direct, did not provide page references, did not point to or otherwise
meaningfully attempt to identify the questions, answers, and subject matter she
believes were objectionable, and did not cite to any objections made by her attorney.
It is simply not this Court's obligation to provide the specificity and record references
needed for appellate review. Defendant has waived this assignment of error.
Similarly, and importantly, Defendant did not even attempt to allege that she
was prejudiced by the use of leading questions, or that the method of questioning led
to introduction of evidence that would not otherwise have been admitted or admissible.
Absent a claim of prejudice, even if there was some error in the mode of questioning,
we do not believe that relief would be warranted.
Alternatively, allowing the Commonwealth to ask child-witnesses some leading
questions in this criminal case involving child abuse was not error.
Pa.RE. Rule 611 (c) sets forth the general rule that leading questions are not
permitted on direct or re-direct examination except as needed to develop a witness's
testimony. At the same time, Rule 611 (a) gives trial courts broad discretion to regulate
the manner in which witnesses are examined. This discretion includes controlling the
use of leading questions at trial. Commonwealth v. Bell, 476 A.2d 439 (Pa. Super.
1984). "The law in this area is clear. The allowance of leading questions lies within the
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discretion of the trial court and a court's tolerance or intolerance of leading questions
will not be reversed absent an abuse of discretion." Katz v. St. Mary Hospital, 816 A.25
1125 (Pa. Super. 2003) (quoting Commonwealth v. Johnson, 541 A.2d 332 (Pa.
Super., 1988). Stated another way, the rules on leading questions "are liberally
construed in modern practice, with a large measure of discretion in the court to permit
parties to elicit any material truth without regard to the technical consideration of who
called the witness." Bell v. City of Philadelphia, 491 A.2d 1386, 1389 (Pa. Super.
1985).
The general rule that leading questions are not permitted on direct or redirect
examination is subject to a variety of "tolerances" or "expections." In this regard,
leading questions are routinely permitted with respect to witnesses, such as children,
the elderly, and persons with mental health issues, who have difficulty understanding
or responding to non-leading questions. As to children, they are easily intimidated by
the courtroom setting, and a trial judge should display a tolerance for direct, succinct,
and even leading questions. See, Commonwealth v. Willis, 552 A.2d 682 n. 3 (Pa.
Super. 1988), allocatur denied, 559 A.2d 527 (Pa. 1989) (children should be asked
direct rather than convoluted or compound questions during examination). See also
Commonwealth v. Polston, 616 A.2d 669, 678 (Pa. Super. 1992).
In this case, Defendant complains only generally about an unspecified number
of leading questions being asked in open court in a criminal trial of child witnesses who
were the victims of physical, mental, and emotional abuse by their mother and
stepfather. Under the cited cases and rules that have developed over time, we believe
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that our tolerance of leading questions being asked of the child victim-witnesses was
eminently proper.
As noted, Defendant has not identified which of the children were asked leading
questions or cited to any specific question, objection, or answer. It is not our job to
identify the testimony that forms the basis of Defendant's claims. Nonetheless, we
have briefly reviewed the record and have found only a limited number of instances
where a "leading question" objection was made during the testimony of the three
children. None of the elicited responses is of such a character that the information
would not have come into evidence but for the leading format. Further, given the
nature of the charges, the children's ages and status as victims, the open courtroom
setting, the fact that their parents are the defendants, and the other facts and
circumstances discussed above, we do not believe that overruling any of the limited
number of objections to which Defendant might now point constituted an abuse of
discretion or led to Defendant being prejudiced in any way. See Commonwealth v.
Ragan, 743 A.2d 390, 404 (Pa. 1999) ("evaluating the prejudicial effect of leading
questions depends upon the substance of, circumstances surrounding, and responses
to the questions as well as the "atmosphere of trial").
In short, Defendant has waived this issue. In the alternative, Defendant has
failed to allege prejudice, and further, her evidentiary challenge is baseless.
4. Allowing Prior Consistent Statements of Child Victims in a Criminal Case
Arising from Child Abuse Was Proper
In her fourth assignment of error, Defendant argues that we erred and abused
our discretion by allowing the investigating state trooper to testify to video-taped
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statements made by the children in contravention of the Hearsay Rule, the Best
Evidence Rule, and the Tender Years status. This, too, is baseless.
It is firmly established that,
"[q]uestions concerning the admissibility of evidence lie
within the sound discretion of the trial court, and [a
reviewing court] will not reverse the court's decision on
such a question absent a clear abuse of discretion."
Commonwealth v. Chmiel, 558 Pa. 478, 493, 738 A.2d
406, 414 (1999), cert. denied, 528 U.S. 1131, 120 S. Ct.
970, 145 L. Ed. 2d 841 (2000). An abuse of discretion
requires:
not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the
law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or
ill will.
Commonwealth v. Widmer, 560 Pa. 308, 322, 744 A.2d 745,
753 (2000) (citation omitted).
Commonwealth v. Hunzer, 868 A.2d 498, 510 (Pa. Super. 2005), appeal denied, 880
A.2d 1237 (Pa. 2005). In this case, we neither erred nor abused our discretion in
allowing the challenged testimony.
Initially, the testimony of Trooper Borowicz was admissible as prior consistent
statements of the children. The law with regard to whether a trial court may properly
admit prior consistent statements of a child victim is well-settled.
To the extent that prior consistent statements are offered
to prove the truth of the matter asserted therein, they are
plainly inadmissible hearsay. However, when they are
offered to corroborate in-court testimony, prior consistent
statements are not hearsay.
***
The general rule precluding corroboration of unimpeached
testimony with prior consistent statements is subject to
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exceptions when particular circumstances in individual
cases tip the relevance/prejudice balance in favor of
admission. Among the common examples of such
exceptions are prior consistent statements which
constitute prompt complaints of sexual assault. ... Evidence
of a prompt complaint of sexual assault is considered
specially relevant because (rightly or not) a jury might
question an allegation that such an assault occurred in
absence of such evidence.
***
Prior consistent statements may also be considered
specially relevant when the witness' status alone is such
that his or her testimony may be called into question even
in the absence of express impeachment.
***
Similarly, jurors are likely to suspect that unimpeached
testimony of child witnesses in general, and child victims of
sexual assaults in particular, may be distorted by fantasy,
exaggeration, suggestion, or decay of the original memory
of the event. Prior consistent statements may therefore be
admitted to corroborate even unimpeached testimony of
child witnesses, at the trial court's discretion, because
such statements were made at a time when the memory
was fresher and there was less opportunity for the child
witness to be effected by the decaying impact of time and
suggestion.
***
The principle exception to the general rule of exclusion is
that prior consistent statements may be admitted to
corroborate or rehabilitate the testimony of a witness who
has been impeached, expressly or impliedly, as having a
faulty memory, or as having been induced to fabricate the
testimony by improper motive or influence. Admission of
prior consistent statements on such grounds is a matter
left to the sound discretion of the trial court, to be decided
in light of the character and degree of impeachment. It is
not necessary that the impeachment be direct; it may be
implied, inferred, or insinuated either by cross-
examination, presentation of conflicting evidence, or a
combination of the two.
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Hunzer, 868 A.2d at 512 (quoting Commonwealth v. Willis, 552 A.2d 682, 691-692
(1988) (citations omitted in original). In this case, the children were physically rather
than sexually assaulted. However, the evidentiary bases for allowing prior consistent
statements of child victims is the same.
Furthermore, all three children testified at trial and remained available to
Defendant, if she needed or desired to call them, on her side of the case. The law
cited above and the fact that the children testified obviates Defendant's Hearsay
(including Tender Years hearsay) and Best Evidence Rule arguments. The children
testified, first-hand, about the physical, emotional, mental, and verbal abuse
perpetrated upon them by Defendant and Olivo. Given the history and circumstances
of this case, the consistency in the children's statements, the ages of the children, and
the fact that the children were the victims, there is no question that their testimony was
at once reliable and the best evidence of the abuse. The challenge testimony of
Trooper Borowicz merely brought in prior consistent statements which, under the law
summarized above, were clearly admissible.
Finally, as with her leading questions challenge, Defendant did not allege
prejudice. That is in all likelihood because there is none. Again the testimony merely
brought in unquestionably admissible prior consistent statements. The statements
were clearly relevant. As to prejudice, there was no surprise. The children have been
consistent in their statements since the abuse was disclosed, their trial testimony was
consistent with their pre-trial statements, and as noted, Defendant and her attorney
have been aware and have had copies of the children's prior statements for the
entirety of this case. Further, references to the children's prior video-recorded
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statements were brief in number and general in nature. There simply was no
prejudice. To the extent any prejudice is perceived, the probative value far
outweighed any prejudicial effect.
5. The Court Properly Sustained the Commonwealth's Objection to
Defense Counsel's Question and, In Any Event, Defendant's Attorney
Later Elicited the Testimony and Information He Wanted to Elict.
In her fifth assignment of error, Defendant argues that we erred and abused our
discretion by prohibiting defense counsel from cross examining the investigating state
trooper "on statements by the father of the child-victims regarding his improper
motives." Again, there was no error and no prejudice.
During cross examination of Trooper Borowicz, Defendant's attorney asked:
"And when you interviewed [the children's father] he indicated to you that he wanted to
take over custody of the children?" The assistant district attorney interjected a
hearsay objection. An on-record sidebar ensued. After hearing from all attorneys, the
objection was sustained. (N.T., 02/08/2017, pp. 228-30). This evidentiary ruling
apparently forms the basis for Defendant's challenge.
Prompted by this appeal, we have again reviewed the question and Trooper
Borowics' testimony. We believe the objection was properly sustained. The question
clearly called for hearsay. It also called for irrelevant evidence. This is not a case with
a child custody overlay. Prior to the abuse coming to light, the children lived with
Defendant for years. No custody contest or proceeding was referenced. The
children's father did not obtain custody until after the allegations of abuse were made.
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In any event, there was no prejudice. Through her next query, Defendant's
attorney asked the question again in another way and, in the absence of another
objection, received a response from Trooper Borowics:
Q: Trooper you - - when talking to the children you heard them say that dad
wants custody of them, Correct? Yes or no."
A: Those words no.
Q: Okay, well when you say it in that manner, is there something else that
heard that is related to that?
A: I heard that their dad is willing to take them in open arms just like every other
loving dad.
(N.T., 02/08/2017, p. 230). Thus, although the witness may not have given the answer
counsel hoped for, Counsel for Defendant was able to ask the question and elicit the
response he sought. Accordingly, there was no prejudice.4
6. Allowing Introduction of the Facebook Post Was Not Error
In her sixth assignment of error, Defendant alleges that we erred and abused
our discretion by allowing the Commonwealth to introduce a Facebook post without
proper authentication. This claim likewise lacks merit.
Again, admission of evidence is within the sound discretion of the trial court and
will be reversed only upon a showing that the trial court clearly abused its discretion.
Hunzer, supra. Generally, the requirement of authentication or identification as a
condition precedent to the admissibility of evidence is satisfied by evidence sufficient
to support a finding that the matter in question is what its proponent claims. Pa. R.E.
901 (a). With regard to "the admissibility of electronic communication, such messages
are to be evaluated on a case-by-case basis as any other document to determine
4
In this regard, we note that defense counsel did not follow-up or expand on this line of inquiry.
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whether or not there has been an adequate foundational showing of their relevance
and authenticity." In the Interest of F.P., 878 A.2d 91, 96 (Pa. Super. 2005).
"[A]uthentication of electronic communications, like documents, requires more than
mere confirmation that the number or address belonged to a particular person.
Circumstantial evidence, which tends to corroborate the identity of the sender, is
required." Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011 ).
In this case, we allowed introduction of the Facebook post because there was
enough direct and circumstantial evidence to allow it. First, the Facebook post was
shared by Rafael Olivo on his own Facebook wall. ( See Commonwealth Exhibit 1 ).
Second, the post discussed and depicted the practice of performing "Cocotasos" - the
act of hitting a child hard on the head with knuckles - for the purpose of "[s]haping
Hispanic kids for a better tomorrow .... " (Id.). Prior to the introduction, there had been
testimony that Olivo, who is Hispanic, gave the children, who are also Hispanic,
"Cocotasos." Third, the Commonwealth offered the Facebook page through a defense
witness, Chaia Nazario, who clearly authenticated and established a foundation for the
exhibit:
Q: [Assistant District Attorney] Now I'm handing you what's been marked as
Commonwealth's Exhibit 1.
A: [Chaia Nazario] Okay.
Q: That's a Facebook page, correct?
A: Yes.
Q: And whose Facebook page is of that?
******
A: It's Rafael Olivos.
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Q: Okay, and is there a post that is on that Facebook page?
A: Yes.
Q: And it stated what?
A: Cocotasos, shaping Hispanic kids for a better tomorrow.
******
Q: But Rafael posts a post on Facebook about giving children cocotasos,
correct?
******
Q: Is that correct?
A: That he put that on there? Obviously yes ma'am.
(N.T., 02/09/2017, pp. 34-36).
Simply, there was more than enough authenticated the Facebook post. We did
not err or abuse our discretion by admitting the post into evidence.
7. There Was Sufficient Evidence to Support the Conspiracy Convictions
and We Properly Determined That the Three EWOC Counts and the
Three Conspiracy Counts Did Not Merge
In her post sentence motions, Defendant alleged that because each of the three
EWOC counts and each of the three Conspiracy counts reference all three children,
the EWOC charges merge under Pennsylvania's Merger statue, 42 Pa. C.S.A. § 9765,
and the Double Jeopardy Clause. In her brief in support of post sentence motions,
Defendant added a claim that there was insufficient evidence to support multiple
Conspiracy convictions because there was only one multi-victim "overarching
conspiracy." In her final two assignments of error, Defendant reiterated her merger
argument as to both EWOC and Conspiracy and repeats her contention that there was
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insufficient evidence to support multiple Conspiracy convictions.5 For the reasons
discussed below, Defendant misinterprets the law. Accordingly, her final two
assignments of error, like the post sentence motions which preceded them, do not
hold water.6
Section 9765 of the Judicial Code, entitled Merger of Sentence, provides:
§ 9765. Merger of sentence
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the statutory
elements of one offense are included in the statutory elements of
the other offense. Where crimes merge for sentencing purposes,
the court may sentence the defendant only on the higher graded
offense.
42 Pa. C.S.A. § 9765. "The statute's mandate is clear. It prohibits merger unless two
distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all the
statutory elements of one offense are included in the statutory elements of the other."
Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). See also Commonwealth v
Calhoun, 52 A.3d 281, 285 (Pa. Super. 2012) (Section 9765, particularly as elucidated
by our Supreme Court in Baldwin, evinces a clear intent to confine merger for
sentencing purposes to the defined condition that all the statutory elements of one of
the offenses are included in the statuary elements of the other). Our merger
jurisprudence is
rooted in the protection against double jeopardy provided
by the United States and the Pennsylvania Constitutions.
See Baldwin, supra at 836; see also U.S. Const. Amend. V
5
She did not, however, repeat her Double Jeopardy claim.
6
Defendant's post sentence motions and her final two assignments of error also mirror, or at least track with, the
"Pre-Sentencing Motions" she filed. Those motions were argued and denied before sentence was imposed. (N.T.,
5/23/2017, pp. 2-13). We briefly summarized our reasons for the denial on the record. (Id. at 13). We incorporate
our on-record statements into this opinion by reference.
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("nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb"); Pennsylvania
Const. Art. 1, § 10 ("No person shall, for the same offense,
be twice put in jeopardy of life or limb"). However, our
Supreme Court has long recognized that 'the same facts
may support multiple convictions and separate sentences
for each conviction included offenses.' Commonwealth v
Anderson, 538 Pa. 574, 650 A.2d 20, 22 (1994). The
Court in Anderson notes its continuing concern to avoid
giving criminals a 'volume discount' on crime. Id.
Calhoun, 52 A.3d at 284-85 (footnote omitted).
In this case, Defendant's last two assignments of error may be discussed
together. Defendant attempts to argue that, because the crimes charged arose from
what she characterizes as a single act or single set of facts, the elements of each of
the EWOC counts are the same, the elements of the three Conspiracy counts are the
same, and each count of each charge references all three children, merger is required
for sentencing purposes and the Commonwealth has failed to prove more than one
Conspiracy. However, what Defendant has fails to fully confront is that the crimes did
not arise from a single incident or involve only one victim. Rather, the crimes arise
from a series of incidents that occurred over an extended period of time and,
nothwithstanding the language or structure of the counts in the information, involved
three victims who, of course, are Defendant's children. In addition, our Supreme Court
long ago rejected the single act theory of merger. See Commonwealth v Frisbie, 485
A.2d 1098 (Pa. 1984 ). See also Commonwealth v Yates, 562 A.2d 908 (Pa. Super.
1989) (citing cases)(analyzing Frisbie in the context of a sentencing merger claim).
Further, despite Defendant's protestations to the contrary, it is now well settled that
multiple convictions may be sustained, multiple sentences are permitted, and merger
does not apply where, as here, multiple victims are endangered, injuried, or impacted
24
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by a single criminal act. Fisbie; Yates. Along similar lines, our appellate courts have
in no uncertain terms stated that there will be no "volume discount" on crime. See
Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994); Calhoun, supra; Yates, supra.
In this case, the language and structure of the information notwithstanding, it
was clear from the beginning to the end that there were three victims, each of whom
was individually abused by Defendant and Olivo, that the Commonwealth intended to
charge Defendant and Olivo with committing and conspiring to commit EWOC against
each child, and that the case would be presented to the jury in this matter. It was also
clear that there was not a single criminal act, incident, or episode, but, rather, a series
of separate incidents of abuse that occurred over time. In their pre-trial statements,
each child outlined more than one instance of abuse that he suffered and detailed
abuse suffered by his siblings. Similarly, during trial, each child testified about multiple
acts of abuse perpetrated on him, as well as his brothers, by Defendant and Olivo over
time. The following passage, written by this Court in response to a challenge to the
sufficiency of the evidence raised by Olivo in this separate appeal, summarizes the
children's testimony regarding the number of incidents, the nature and severity of the
abuse, and the time period over which the multiple acts occurred.
As noted, all three of the children testified in open court
and were cross-examined. Each child provided
background information and testified about verbal and
physical abuse and assaults he suffered at the hands of
Defendant. Each child also testified about abuse and
assaults perpetrated by Defendant on the child's siblings.
The children, who knew the difference between being
spanked for punishment and being abused, explained that
at times they were hit as frequently as five to six times a
week.
In summary, the testimony of the children
established that, over an extended period of time,
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Defendant verbally, emotionally, and physically abused the
children, hitting and beating them with belts, slippers,
aerosol cans, and fists - anything that came to hand. This
included, but was by no means limited to, Defendant giving
the children "cocotasos" - hitting them on the head with his
knuckles. At times, the children sustained bruises, cuts, or
scrapes. They often experienced pain. On one occasion,
Defendant shot the oldest child with a pellet or BB gun.
On another occasion the oldest child was hit so hard he
could not open his jaw for several days. On yet another
occasion, the middle child had the wind knocked out of him
when Defendant punched him in the chest. In addition,
Defendant called the children names and swore at them.
Further, Defendant stood by while his wife, the children's
mother, abused and assaulted them. Sometimes,
Defendant and the children's mother were abusive toward
the children together. On top of the physical, emotional,
and verbal abuse, Defendant abused the family dog in the
children's presence and, along with their mother, smoked
marijuana in front of the children. For the most part, the
abuse and assault perpetrated on the children by
Defendant (and their mother) happened in the home. The
children were threatened and told there would be dire
consequences if they told anyone about the abuse.
(Appeal Opinion, Commonwealth v Olivo, No. 1511 CRIMINAL 2016, 2854 EDA 2017,
filed November 13, 2017, pp. 8-9). By way of additional illustration, and not limitation:
R.P.G. testified about Defendant pushing him to the ground and striking him with a
broom on one occasion and with her fists while wearing rings on another occasion;
R.J.G. testified that, while in the presence of Defendant, Olivo hit him in the chest with
a fist so hard he "couldn't breathe" and "felt dizzy" and Defendant did nothing other
than to bring R.J.G. a glass of water afterwards; and A.R.G. testified about both
Defendant and Olivo hitting him with a belt so hard it left marks. (N.T. 02/08/2017, pp.
80-82, 137-138, 162). Finally, with the input of all counsel, including Defendant's
attorney, the verdict slip was structured to reflect and the final charge was given with
the understanding that there were three victims and that Defendant was charged with
26
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committing each crime listed against each child. (See Verdict Slip, filed February 10,
2017; N.T., 2/9/2017 (A), pp. 9-11, 12-19, 25-30, 32; N.T., 2/9/2017, (B), pp. 84-86;
N.T., 5/23/2017, p.13).7
Simply, this is not a single act case. Rather, it is a multiple act case involving
three victims. Under the law cited above, there was ample evidence to support the
three Conspiracy convictions and sentencing merger does not apply. Cut to the quick,
Defendant is asking for a three-for-one volume discount. Her request is not only
legally untenable, but, given the facts and her relationship to the children, repugnant.
For these reasons, several appeal issues have been waived and, in any event,
all eight assignments of error are devoid of merit. Accordingly, we believe that the
judgment of sentence should be affirmed.
BY THE COURT:
(J Cl€rk of Courts
TA:o,I
s.J
"'. .flJ
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DATE:
Cc: Superior Court of Pennsylvania
Jonathan Mark, J
Julieane Fry, Esq., Office of the District Attorney
Eric Closs, Esq., Office of the Public Defender
7
Due to a change in court reporters, there are two transcripts from February 9, 2017, the second day of trial. The
first transcript, prepared by Danielle Henshue, RPR and filed of record on March 31, 2017, will be referred to and
cited as "N.T., 2/9/2017 (A)," and the second transcript, prepared by Cheryl Peters, Court Reporter and filed on
April 7, 2017, will be cited as "N.T., 2/9/2017 (B)."
27