Com. v. Kauffman, J. ( 2019 )

J-S79033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACKIE S. KAUFFMAN :
:
Appellant : No. 1170 MDA 2018
Appeal from the Judgment of Sentence Entered May 11, 2018
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000653-2016
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
DISSENTING MEMORANDUM BY OLSON, J.: FILED FEBRUARY 12, 2019
As I believe that the Anders1 brief filed on behalf of Appellant meets,
although barely, the requirements established by our Supreme Court in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), I would not remand
this case but would decide it on the merits.
As the learned Majority notes, Santiago requires that the Anders brief
state, inter alia, counsel’s reasons for concluding that the appeal is frivolous.
Majority Memorandum at 3. The Majority further notes that Appellant wishes
to raise challenges to the sufficiency of the evidence of the charge of
endangering the welfare of children (“EWOC”) and the excessiveness of the
sentence. Id. at 4. However, the Majority concludes that the Anders brief
fails to contain a statement from counsel as to why he believes that these
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1 Anders v. California, 386 U.S. 738 (1967).
J-S79033-18
challenges are frivolous, nor does he refer to anything in the record that he
believes arguably supports the appeal. Id. Although I agree that the Anders
brief filed by counsel is far from scholarly, I believe that it meets the basic
requirement of setting forth the basis for concluding that the issues are
frivolous. Thus, I must respectfully dissent.
As for the sufficiency argument, counsel for Appellant asserts:
Appellant engaged in a romantic relationship with Adam Stidfole,
a known and designated Tier III Megan’s [L]aw offender. Adam
Stidfole had previously been convicted of sexual abuse of children
and possession of child pornography.
Appellant engaged in the relationship with Adam Stidfole and
moved in to [sic] his residence bringing her nine[-]year[-]old
daughter in contact with Adam Stidfole. Appellant failed to warn
her daughter of Adam Stidfole’s status nor did Appellant take any
precautions to protect her daughter.
Rather Appellant refused to accept the fact that Adam Stidfole was
a convicted sex offender. When the facts of Mr. Stidfole’s status
was [sic] made known to Appellant by Children and Youth Services
she refused to acknowledge that evidence of Mr. Stidfole’s prior
behavior.
Despite this knowledge, Appellant allowed or failed to prevent
contact between Adam Stidfole and her daughter. …
Testimony presented by cross[-]examination of Appellant bore out
the fact Appellant felt she had a duty of care but as a result of
here [sic] lack of that duty caused harm to her nine[-]year[-]old
daughter.
Appellant’s assertions were that others were lying or intentionally
false during their testimony at trial, including her daughter.
Anders brief at 2 (unnumbered).
The Argument section of the Anders brief goes on to state:
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There are no non-frivolous issues preserved for appeal.
*****
Appellant entered into a live[-]in relationship with Adam Stidfole,
a convicted Sexual Offender Tier III of Megan’s Law. Appellant’s
nine[-]year[-]old daughter was brought by her into this living
arrangement.
Appellant’s daughter testified at trial Mr. Stidfole had
inappropriate contact with her. Appellant testified asserting her
daughter was lying or coached to testify in such [a] manner and
Appellant did not violate her duty of care for her daughter.
Anders brief at 3-4 (unnumbered). In my view, these statements indicate
that counsel believes the sufficiency claim regarding the EWOC conviction is
frivolous as the evidence established that Appellant permitted her nine-year-
old daughter to reside in the home of a convicted sexual offender and,
although warned by Children and Youth Services, failed to take steps to
protect her daughter from the abuser. Moreover, the evidence established
that the daughter testified to being sexually assaulted by Appellant’s
paramour. Appellant refused to believe her daughter and, instead, claimed
that she, and the other witnesses, were lying. Most significantly, the evidence
established that Appellant acknowledged on cross-examination that she
believed that she had a duty of care to her child but, as a result of a breach
of that duty, she caused harm to her daughter. In my view, this information
is sufficient for us to determine counsel’s reasons for concluding that the
sufficiency claim is frivolous.
Turning to the claim that the sentence was excessive, the Anders brief
provides:
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J-S79033-18
Appellant was sentenced to serve a one year to two year term of
imprisonment in a State Correctional Institution. Appellant was
granted RRRI relief bringing her potential sentence to nine months
to two years.
Appellant had a zero prior record score however the [c]ourt in
imposing sentence indicated Appellant’s lack of care caused such
damage to her daughter that the sentence imposed was
appropriate.
Anders brief at 4 (unnumbered). Again, although I would not point to this
brief as an example of what a well-drafted Anders/Santiago brief should
entail, I find that it is sufficient for us to determine that counsel believes the
excessive sentence claim is frivolous as Appellant was sentenced to only one
to two years’ imprisonment, was afforded RRRI relief and was sentenced
based on her lack of care and the damage caused to her nine-year-old child.
For the foregoing reasons, I do not believe that this case should be
remanded for counsel to make a subsequent filing. Instead, I believe that the
case should be decided on its merits at this time.
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