Com. v. Morales, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JUAN MORALES :
:
Appellant : No. 1111 EDA 2019
Appeal from the Judgment of Sentence Entered November 21, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004004-2017
*****
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN MORALES :
:
Appellant : No. 1112 EDA 2019
Appeal from the Judgment of Sentence Entered November 21, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004444-2017
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 09, 2020
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Juan Morales appeals1 from the judgment of sentence, entered in the Court
of Common Pleas of Philadelphia County, after he was convicted by a jury of two
counts of endangering the welfare of children (EWOC),2 a third-degree felony.3
Counsel has also filed an Anders/McClendon/Santiago4 brief and
accompanying motion seeking to withdraw from representing Morales on appeal.
After careful review, we deny counsel’s motion to withdraw and remand for the
filing of an advocate’s brief.
Morales was arrested in North Carolina in May 2017 on a Pennsylvania
warrant issued in connection with the alleged sexual assault of two minor female
twins (Children). Children, who were seven years old at the time of the alleged
assaults, are the daughters of Morales’ long-time paramour, N.S.5
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1 On January 2, 2020, our Court sua sponte consolidated the two underlying
appeals, 1111 EDA 2019 and 1112 EDA 2019. See Pa.R.A.P. 513.
2 18 Pa.C.S.A. § 4304(a)(1).
3 Instantly, the criminal information charged Morales with EWOC as a third-
degree felony (course of conduct), alleging that the crime occurred “[o]n diverse
dates between 2012 through 2014.” See Criminal Information, 5/16/17, at 1;
see also 18 Pa.C.S.A. § 4304(b)(ii) (“If the actor engaged in a course of conduct
of endangering the welfare of a child, the offense constitutes a felony of the third
degree.”).
4Anders v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon,
434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009).
5 N.S. and Morales are the parents of a younger daughter who was an infant at
the time of the alleged assaults on Children.
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Morales was charged with two counts each6 of rape of a child, involuntary
deviate sexual intercourse (IDSI), unlawful contact with a minor, aggravated
indecent assault of a child, sexual assault, EWOC, corruption of minors, indecent
exposure, indecent assault of a child less than 13 years of age, simple assault,
recklessly endangering another person (REAP), and dissemination of explicit
sexual materials to a minor.
The trial court set forth the relevant factual history underlying the charges
as follows:
[N.S.] testified that she was in a relationship with [Morales] and he
lived in the apartment with her and her children. [N.S.] testified
that she sometimes left her twin seven[-]year[-]old daughters,
[Child 1 and Child 2— collectively, Children], home with [Morales]
while she went to work. [N.S.] testified that on June 29, 2014[,]
around 2:30 a.m., she realized that [Morales] was not in the bed
next to her and walked to the living room, where she observed
[Morales] on the sofa with his “penis out” and “touching himself”
while [Child 1] was balled up with her arms around her knees at her
chest on the other end of the couch. [N.S.] explained that she then
attacked [Morales] using clenched fists, [] which [Morales] did not
resist, until he pinned her down on their mattress, only allowing her
to use the bathroom. [N.S.] explained that she did not call the police
due to fear that [Morales] would wake up and hear her on the phone.
[N.S.] testified that she was able to leave the house with [C]hildren,
after she told [Morales] she was [] going to take the[m] to the flea
market. Instead of going to the flea market, [N.S.] said that she
went to her mother’s house where she first called police and then
continued on to St. Christopher’s Hospital for Children where she
was interviewed by a police officer. On the following day, she and
[Children] went to an appointment at [the] Special Victims Unit
(SVU) and [] she did not talk to [Children] about what happened
with [Morales] or what they were allowed to talk about. [N.S.]
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6 Morales was charged under two separate docket numbers for each minor
victim, CP-51-CR-0004444-2017 and CP-51-CR-0004004-2017.
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stated that she did not communicate or see [Morales] again at that
time.
[N.S.] also described moving with [C]hildren to North Carolina in
March of 2015, explaining that she lived near and remained in
contact with [Morales’] older sister[,] but claimed that she did not
know whether [Morales] was living in North Carolina or Philadelphia.
[N.S.] described the first time she saw [Morales] in 2016 at his
mother’s North Carolina home and how she was scared of him during
this encounter.
On cross-examination, [N.S.] explained that during their relationship
she and [Morales] would have arguments, around [Children],
sometimes caused by [Morales’] “w[a]ndering eye for women.”
[N.S.] testified that before [Children] were interviewed at St.
Christopher’s Hospital for Children she did not speak to them about
what occurred with [Morales]. [N.S.] stated that the Department of
Human Services (DHS) spoke to [Children] at the hospital and also
visited their house.
Next, Officer Robert Caban testified that he met with [N.S.] and
[Children] at St. Christopher[’s] Hospital for Children in response to
a reported rape in June 2014. Officer Caban recalled that [N.S.] told
him about what she saw the night before regarding [Morales’]
"private area out" in front of [Child 1]. Officer Caban could not recall
if he spoke with [Children] directly. On cross-examination, Officer
Caban stated several times that he could not recall specific details
regarding his interview with [N.S.] and [Children].
[Child 1] testified that she first met [Morales] when her mom started
dating him when she was six or seven. [Child 1] continued stating
that [Morales] started living with them when she was seven and
sometimes he watched her and [Child 2] while their mother was at
work. [Child 1] also testified that [Morales] touched her more than
once, describing how [Morales] showed her his phone with “people
having sex” on it. [She] described how [Morales] exposed his
private parts to her, touched her private parts, made her put his
private part in her mouth, and how he licked her private part over
her underwear over the course of [a] few days. [She also] testified
that [Morales] put his private part on her front private part once
while she was laying down while he moved in a back and forth
motion. [She] continued describing an incident where [Morales] put
his private part in her mouth while she was alone with him in the
living room. [She also] stated that she did not tell [N.S.] when these
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things were going on because she was scared and thought
something bad might happen if she told.
[Child 1] testified that [N.S.] found out when she came downstairs
while [Morales’] private part was exposed and she was on the couch
with him. [She] recalled talking with a lady in a room with a camera
where she told her everything that happened to her. [She] also
recalled talking with a detective. On cross-examination, [Child 1]
testified that when she moved to Candor, North Carolina[,] she lived
with just [N.S.] and [her] sisters. [She] explained that she never
told anyone at school or in her family what [Morales] was doing to
her.
[Child 2] testified that she recognized [Morales] as her [baby]
sister’[s] dad who lived with her when she was about seven years
old and sometimes watched her when her mom was not home.
[Child 2] described one day when she was home alone with
[Morales], waking up in [N.S.]’s bed with [Morales’] hand inside her
shorts but over her underwear, rubbing on her front private part
while he forced her hand on to his exposed private part moving it in
a rubbing motion. [She] stated that on the same day and other days
[Morales] showed her videos of men and women in various stages
of undress doing “inappropriate things.” She could not remember if
[Morales] said anything to her while showing her the videos. [She]
further testified that [Morales] placed his private part on her back
private part and that she saw “slimy stuff” come out of [Morales’]
private part when they were alone in the bedroom. [She] recalled
speaking with police officers and telling them what happened to her.
[She] testified that she never told anyone else about what [Morales]
was doing because he asked her not to and that he never threatened
to hurt her or her family.
On cross-examination, [Child 2] recalled after going to the hospital
speaking to a lady in a room with a table and chair. [She] explained
that she never told any teacher, principal, crossing guard, student,
police officer at school, or family member about [Morales] touching
her private part. [She] recalled moving to Candor, North Carolina[,]
with [N.S.] and [her] sisters and being babysat by [Morales’] sister.
Denise Wilson, Manager of Forensic Services at Philadelphia
Children's Alliance (PCA), testified regarding the forensic interview
process, [the interview] room, and how parents are not in the room
during the interview. Portions of the PCA interviews were
intermittently shown to the jury throughout Ms. Wilson’s testimony.
Ms. Wilson described both [Children] as being reluctant to discuss
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what happened for fear of making [N.S.] mad because they “told
their business.” On cross-examination, Ms. Wilson detailed her
interactions with [Children] and how it was her opinion that the[y]
wanted to give her more information instead of assuming that they
were being untruthful.
Next, Detective Brian Meissler testified that he was the assigned
investigator on this case and that he met [N.S.] and [Children] at
St. Christopher’s Hospital for Children, where he spoke to [Children]
quickly and took a formal statement from [N.S.] While reviewing his
handwritten statement, Detective Meissler admitted that he made a
mistake on the form substituting the name Jose for [Morales’] name
Juan and that there was no mention during the interview with [N.S.]
of another individual.
Detective Meissler explained that he typically writes while conducting
interviews and when the interview is finished he “ask[s] them to
read it . . . over and sign it, and sign and date the last page.”
Detective Meissler explained that when he completed this interview
with [N.S.] he followed this procedure with her and since there were
no initials where changes were made he believed “she did not make
any corrections.” Detective Meissler recalled [Child 1’s] second
interview with him at the police station, noting how at the end of the
interview she wrote “she sail [sic] him red hand did [sic]” above her
signature. Detective Meissler stated his belief that [Child 1] was
withholding information during the interview.
On cross-examination, Detective Meissler described what a rape kit
is, the procedures [for] obtaining any evidence to be placed in a rape
kit, and how no biological evidence of the offender was found in
[Children’s] rape kits. Detective Meissler explained why he
continued questioning [Child 2] after she answered “no” to the
question “Did [Morales] ever touch you with his penis?” testifying
that it was his belief based on his 15 years of experience that the
she “was withholding information that she didn't want to talk
about[.]” The Commonwealth made two stipulations before resting
their case-in-chief; the first stipulation concerned the date and time
[Children] were seen at St. Christopher’s Hospital for Children and
the second stipulation stated [Morales’] date of birth as October 13,
1986.
For the defense, [Morales’] current girlfriend, Samantha Rivera,
testified that when she met [Morales] he was living in North Carolina
with his mother and [N.S.]. Ms. Rivera stated that [N.S.] told her
that the allegations against [Morales] were not true. On cross-
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examination, Ms. Rivera again explained that when she asked [N.S.]
if the allegations against [Morales] were true, [N.S.] responded “no”
and that “she could not talk about it.”
Lastly, [Morales] testified that, on June 28, 2014, he attended a
family party with his then-girlfriend, [N.S.], and [C]hildren. During
the party, he and [N.S.] got into an altercation. [Morales] claimed
that after arriving home[, N.S.] wanted to continue to argue[.
I]nstead[, Morales] ignored her until he thought she was asleep
while he smoked, played x-box, and texted on his phone. After
leaving the bedroom to get something to drink[,] [Morales]
explained that [N.S.] confronted him with his cell phone asking him
to explain text messages and when she did not like his response,
swung on him and threw the phone at him, hitting him in the nose.
[Morales] continued describing how he pushed and held [N.S.] down
until she calmed down and then they both went to sleep. The next
morning[,] [N.S.] suggested they go to flea market and they all got
dress[ed] to go, but [N.S.] drove off without [Morales] after he went
to retrieve the baby’s sippy cup.
[Morales] stated that he called [N.S.] a few times[,] but she did not
answer and later he received a threatening phone call from [N.S.]’s
brother calling him a pedophile and threatening to kill him.
[Morales] said that he was scared so he contacted his mother to tell
her what was going on and then traveled with his mother to
Charlotte, North Carolina[,] where he stayed until he was arrested
in 2016. [Morales] also detailed [N.S.]’s move with [C]hildren to
Candor, North Carolina[,] about five or six months after he moved
to Charlotte. During this time, he claimed that [N.S.] would visit
him in his mother’s home and was given a key to his mother’s house.
Lastly, [Morales] stated that he never sexually assaulted [Children].
On cross-examination, [Morales] explained that through family
members he heard that authorities were looking for him and learned
about the nature of the allegations against him. [Morales] explained
that once [N.S.] and [C]hildren moved to North Carolina[,] he
resumed his romantic relationship with [N.S.] and would . . . keep[]
his distance from [Children].
Trial Court Opinion, 10/25/19, 2-9 (citations to notes of testimony omitted).
After a four-day jury trial held in August 2018, Morales was acquitted of
all charges except two counts of EWOC; the jury specifically found that there
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was a “course of conduct” with regard to the EWOC charges based on “diverse
dates between 2012 through 2014.” See Verdict, 8/24/18; Commonwealth’s
Criminal Information, 5/16/17, at 1; see also supra n.3; infra n.17. On
November 21, 2018, the court sentenced Morales to two consecutive terms of
2½ to 5 years’ imprisonment. Morales filed post-sentence motions; they were
deemed denied by operation of law.7 Morales filed timely notices of appeal for
each docket number below8 and complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.9
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7 Although the trial court entered an order on April 2, 2019, deeming Morales’
post-sentence motions denied by operation of law in case number 4444-2017, it
did not enter an order denying his post-sentence motions in case number 4004-
2017 until February 18, 2020, in response to our Court’s rule to show cause.
See Pa.R.Crim.P. 720(B)(3)(c). In any event, the appeal is properly before us.
See Pa.R.A.P. 905(a)(5) (stating that initially filed premature notice of appeal
shall be treated as filed on date appealable order entered).
8 Morales has complied with the dictates of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), which requires the filing of “separate appeals from an order
that resolves issues arising on more than one docket.” Id. at 977. See also
Commonwealth v. Johnson, 2020 PA Super 164 (Pa. Super. filed July 9, 2020)
(en banc) (revisiting Walker holding) and Commonwealth v. Larkin, 2020 PA
Super 163 (Pa. Super. filed July 9, 2020) (en banc) (same).
9 The trial court opinion inaccurately states that Morales filed a Post-Conviction
Relief Act (PCRA) petition in December 2018, when, in fact, he never filed such
a petition. Rather, this is a direct appeal from Morales’ judgment of sentence
following the denial of post-sentence motions.
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Morales’ attorney, Gary S. Server, Esquire, has filed an Anders brief
seeking to withdraw on appeal. In his Anders brief, counsel raises the following
issues for our consideration:
(1) Whether the [c]ourt erred when it permitted the jury to view the
videos of the victims’ [PCA] forensic interviews where they
constituted improper bolstering of credibility.
(2) Whether the adjudication of guilt for EWOC is based upon
insufficient evidence where the Commonwealth failed to prove
beyond a reasonable doubt that [Morales] endangered the welfare
of [C]hildren by knowingly violating a duty of care, protection and
support where he was acquitted by the jury of the underlying sexual
assault charges?
(3) Whether the adjudication of guilt for EWOC is against the weight
of the evidence and shocking to one’s sense of justice where the jury
acquitted [Morales] of the underlying sexual assault charges, where
[N.S.] had both a motive to fabricate and a motive to coach
[C]hildren to fabricate, where there was a lack of prompt complaint
and where subsequent to the alleged incidents [N.S.] and [C]hildren
renewed their relationship with [Morales] in North Carolina.[10]
Anders Brief, at 6-7.11
Prior to reviewing Morales’ claims, we must determine if counsel has
complied with the procedural requirements for withdrawal. An attorney seeking
to withdraw on appeal must comply with certain procedural and briefing
requirements. Specifically, counsel must:
1) petition the [C]ourt for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the [appellant]; and 3) advise the [appellant] that
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10Morales preserved his weight of the evidence claim by including it in his post-
sentence motions. See Pa.R.Crim.P. 607.
11 We have renumbered counsel’s issues for ease of disposition.
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he or she has the right to retain private counsel or raise additional
arguments that the [appellant] deems worthy of the [C]ourt’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc)
(citation omitted). In addition, our Supreme Court in Santiago stated that an
Anders brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Counsel also must provide the appellant with a copy of the Anders brief,
together with a letter that advises the appellant of his or her right to “(1) retain
new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise
any points that the appellant deems worthy of the [C]ourt’s attention in addition
to the points raised by counsel in the Anders brief.” Commonwealth v.
Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (citation omitted). Substantial
compliance with these requirements is sufficient. Commonwealth v. Wrecks,
934 A.2d 1287, 1290 (Pa. Super. 2007).
Here, counsel has filed a motion to withdraw and an Anders brief. In his
motion, counsel states that after a thorough and conscientious examination of
the record, he has determined that the appeal is wholly frivolous. Motion to
Withdraw, 2/9/20, at ¶¶ 2-3. Additionally, counsel states in his motion that he
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mailed a copy of the Anders brief to Morales and a letter, which he attached to
the motion, advising Morales of his right to retain private counsel, represent
himself on appeal, and/or raise any additional issues he believed the Court
should consider.12 Id. at ¶¶ 4-6; see also Letter from Gary S. Server, Esquire,
to Morales, 2/9/20, at 1. Finally, counsel’s brief sets out three issues of arguable
merit and, pursuant to the dictates of Santiago, explains why he believes the
appeal to be frivolous. Accordingly, counsel has substantially complied with the
requirements of Anders, McClendon, and Santiago.
Although counsel has fulfilled the mechanical requirements for successfully
seeking leave to withdraw from representing Morales, we cannot agree with his
assessment that the appeal is wholly frivolous. We now turn to our independent
review of the record and the claims raised by Morales to explain our decision to
deny counsel’s petition to withdraw and remand for the preparation of an
advocate’s brief.
In his first issue, Morales argues that the trial court impermissibly
permitted the jury to view forensic interviews of the Children where the videos
“constituted improper bolstering of [the Children’s] credibility.” Anders Brief,
at 17.
“[A] trial court’s ruling on evidentiary questions is within the sound
discretion of that court and will not be reversed absent a clear abuse of
discretion. Commonwealth v. Delbridge, 771 A.2d 1, 10 (Pa. Super. 2001)
____________________________________________
12 Morales has not filed a response to counsel’s Anders brief.
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(citation omitted). “An abuse of discretion is not merely an error of judgment,
but is rather the overriding or misapplication of the law.” Commonwealth v.
Mickel, 142 A.3d 870, 874 (Pa. Super. 2016).
Instantly, the trial court introduced portions of the videos of the Children’s
PCA interviews to the jury during the direct examination of the Children’s forensic
interviewer, Ms. Wilson. The court also replayed the videos to the jury during
deliberations, with no objection from counsel. See N.T. Jury Trial, 8/27/18, at
3, 5 (in middle of deliberations, jury asked trial judge to view victims’ recorded
PCA interviews; judge complied and replayed videos). The interviews were
conducted just one day after the June 29, 2014 alleged sexual assault on Child
1. The trial court concluded that the evidence “was cumulative of the victims’
testimony and[,] thus[,] relevant admissible evidence.” Trial Court Opinion,
10/25/19, at 17. Relying on Commonwealth v. Shelton, 170 A.3d 549 (Pa.
Super. 2017), the trial judge states in his Rule 1925(a) opinion that “[a]though
the victim[s were] able to testify at trial about many details of the abuse, from
[its] review of the transcribed portions of the video recording, [it] discern[ed]
that the victim[s] reported the event of abuse more fully, with a greater level of
detail, at [their] forensic interview[s].” Trial Court Opinion, 10/25/19, at 18,
citing Shelton, 170 A.3d at 552.
In Shelton, supra, our Court found that the trial court did not err in
admitting a victim’s previously recorded forensic interview under Pennsylvania
Rule of Evidence 803.1(3), where the recording contained the victim’s recorded
recollection concerning a matter about which she once knew “but now cannot
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recall well enough to testify fully and accurately.” Id. at 552 (quotation in
original). Additionally, the trial court concluded that the information in the
recording was not merely cumulative of the victim’s trial testimony. Id. Finally,
the court ruled the video admissible where the recording was conducted within
one week of the victim’s abuse report, when the victim admitted her memory of
events was much better then, and where the recording reported the victim’s
abuse more fully. Id. at 552-53.
Introduction of a prior recorded recollection under Rule 803.1(3), an
exception to the rule against hearsay, is permitted where the witness is subject
to cross-examination regarding the prior statement and the following criteria are
established:
(3) Recorded Recollection of Declarant-Witness. A memorandum
or record made or adopted by a declarant-witness that:
(A) is on a matter the declarant-witness once knew about
but now cannot recall well enough to testify fully and
accurately;
(B) was made or adopted by the declarant-witness when the
matter was fresh in his or her memory; and
(C) the declarant-witness testifies accurately reflects his or
her knowledge at the time when made.
If admitted, the memorandum or record may be read into
evidence and received as an exhibit, but may be shown to the jury
only in exceptional circumstances or when offered by an adverse
party.
Pa.R.E. 803.1(3) (emphasis added).
Despite the fact that the trial court concludes in its Rule 1925(a) opinion
that the interviews were admissible under Rule 803.1(3) as a recorded
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recollection, counsel in his Anders brief only discusses the relevancy of the
interviews (stating interviews relevant to question of whether Children had been
coached by N.S. to accuse Morales), Anders Brief, at 23, and offers no argument
on either the reliability of the videos or how they fit within an exception to the
hearsay rule. The Commonwealth, on the other hand, “relies on the trial court’s
opinion,” finding it “thoroughly explains . . . why each of [Morales’] claims [is]
meritless,” Appellee’s Brief, at 8, and then briefly discusses the relevancy of the
videos and states that that they did not improperly bolster the Children’s
credibility where the Commonwealth did not give personal assurances of
Children’s veracity or indicate that information not before the jury supported
Children’s testimony. Id. at 8-9.
To confuse the issue even further, at trial the Assistant District Attorney
offered a completely different basis for seeking to admit the videos of the
Children’s interviews, stating:
And, Your Honor, I’m not seeking to admit it under a prior consistent
statement. I agree with [opposing] counsel that [Child 1] was not
impeached.
I’m seeking to admit it under 42 Pa.C.S. § 5985.1, which is
essentially the Tender Years Exception, and also comment, on
No. 5 under Rule 802, that says that the out-of-court statements of
a child that is under the age of 12 when the statements are made,
[are] admissible.
There are two prongs. I believe the formal process is that
the Court has to hold an in-camera evidentiary hearing to
otherwise determine the relevance and the reliability of that
out-of-court statement.
And, secondly, if the child is unavailable, which is not true for [Child
1], then there is to be a finding of emotional distress. If the child is
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available then there’s no confrontation clause issue[] because
obviously the child is available.
N.T. Jury Trial, 8/22/18, at 63 (emphasis added).
Hearsay may also be admitted pursuant to a state statute as set forth in
Pa.R.E. 802. “The Tender Years Statute creates [such] an exception to the
hearsay rule in recognition of the fragile nature of the victims of childhood sexual
abuse.” Commonwealth v. G.D.M., 926 A.2d 984, 988 (Pa. Super. 2007)
(citation omitted). Under Pa.R.E. 802(5), “[i]n a criminal or civil case, an out-
of-court statement of a witness 12 years of age or younger, describing certain
kinds of sexual abuse, may be admitted pursuant to 42 Pa.C.S. § 5985.1.”
Pa.R.E. 802(5). Section 5985.1(a)(1) provides, in relevant part:
(a) General rule.
(1) An out-of-court statement made by a child victim or
witness, who at the time the statement was made was
12 years of age or younger, describing any of the
offenses enumerated in paragraph (2),[13] not otherwise
admissible by statute or rule of evidence, is admissible
in evidence in any criminal or civil proceeding if:
(i) the court finds, in an in camera hearing, that
the evidence is relevant and that the time, content
and circumstances of the statement provide
sufficient indicia of reliability; and
(ii) the child []:
(A) testifies at the proceeding[.]
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13 Under subsection 5985.1(a)(2), the following enumerated offenses apply to
subsection 5985.1(a)(1): assault, sexual offenses, corruption of minors, sexual
abuse of children, unlawful contact with minor, and EWOC. Morales was charged
with all of these offenses.
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42 Pa.C.S.A. §§ 5985.1(a)(1)(i), (ii)(A) (emphasis added). For purposes of
establishing sufficient indicia of reliability, the term primarily “relates to evidence
regarding circumstances in which the out-of-court statements were made, not
the reliability or competency of the child witness at the time the statements are
offered into evidence under the statute.” Commonwealth v. Delbridge, 855
A.2d 27, 46 (Pa. 2003) (under Tender Years Exception, factors to be considered
by trial court in determining whether child declarant was likely to be telling truth
when statement was made include “the spontaneity of the statements,
consistency in repetition, the mental state of the declarant, use of terms
unexpected in children of that age and the lack of a motive to fabricate.”).
Interestingly, neither the trial court, Morales’ counsel, nor the
Commonwealth even mention the Tender Years Exception (TYE) on appeal with
regard to admissibility of the PCA interviews. However, we are aware that we
can affirm the trial court on an alternative basis. See Commonwealth v.
Thompson, 778 A.2d 1215, 1223 n.6 (Pa. Super. 2001). As noted above, while
relevancy14 is a requirement to admit a statement under the TYE, there must
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14 The parties and trial judge had a conversation regarding the necessity of an
in camera hearing on the issue of relevancy of the video testimony. See N.T.
Trial, 8/23/18, at 4-6. The Commonwealth’s attorney represented to the court
that as long as the circumstances under which the statements were given were
reliable, then the court did not have to have a formal in camera review of the
evidence under the TYE. Rather, the ADA stated, “the [c]ourt does have to make
a finding that – after having reviewed the evidence with the jury.” Id. at 5. The
trial judge responded, “I already made that determination, that the video was
relevant, based on what you represented and on what counsel represented.”
Id. (emphasis added). The trial court then ruled on the admissibility of the video
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also be a determination with regard to whether circumstances of the statement
provide sufficient indicia of reliability. See Pa.R.E. 802(5). Thus, even analyzing
the issue under the TYE, we recognize that counsel and the trial court failed to
address the reliability of the statements prior to ruling on its admissibility,15 a
requirement under Rule 802(5).16
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out of the presence of the jury, while they had been excused for lunch. Id.
8/22/18, at 63. The court permitted the evidence to be admitted after a
discussion with counsel regarding the relevancy of the interviews as it “relates
to – specifically to the allegations that are made in this case.” Id. at 64
(emphasis added). The ADA repeatedly stated that the Commonwealth was not
seeking to admit the videos as prior consistent statements. Id. at 63-64. But,
rather, sought to admit them under the Tender Years Exception to hearsay. Id.
at 63.
15 However, the trial judge did make the following comment regarding reliability
of Children’s testimony during its jury instructions:
The evidence of [Children’s] failure to complain, the delay in making
a complaint, does not necessarily make their testimony unreliable,
but may remove from it the assurance of reliability accompanying
the prompt complaint or outcry that the victim of a crime such as
this would ordinarily be expected to make.
N.T. Jury Trial, 8/24/18, at 20.
16 Moreover, we question whether the Commonwealth fulfilled section 5985.1’s
stringent notice requirement, which states:
(b) Notice required.--A statement otherwise admissible under
subsection (a) shall not be received into evidence unless the
proponent of the statement notifies the adverse party of the
proponent’s intention to offer the statement and the particulars of
the statement sufficiently in advance of the proceeding at which the
proponent intends to offer the statement into evidence to provide
the adverse party with a fair opportunity to prepare to meet the
statement.
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With regard to admitting the evidence as a recorded recollection under
Rule 803.1(3), a thorough review of the victims’ trial testimony supports the
court’s conclusion that the victims repeatedly testified that they did not recall or
were not sure of specific facts surrounding the alleged sexual assaults. See N.T.
Jury Trial, 8/22/18, at 24-25, 36, 38-39, 51, 54-61, 78, 81-82, 87-88, 92-93,
96. Therefore, we agree with the trial court that the forensic interviews provided
much more detail and accuracy regarding the events in question. The Children,
however, did not specifically testify at trial that the videos accurately reflected
their knowledge at the time they were made or that they had formally adopted
them. Thus, we cannot conclude that this is a non-frivolous issue.
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42 Pa.C.S.A. § 5985.1(b). “Relative to the notice requirement under this
hearsay exception, the Commonwealth has the burden of providing actual notice
of an intention to offer the hearsay statement.” Commonwealth v. O'Drain,
829 A.2d 316, 320 (Pa. Super. 2003). The section 5985.1(b) “notice provisions
are strict and must be strictly observed.” Commonwealth v. Crossley, 711
A.2d 1025, 1028 (Pa. Super. 1988). Here, the Commonwealth notified Morales
on the second day of trial, at the conclusion of Child 1’s testimony, that it
intended to offer the videos under the TYE. This hardly seems to fulfill the
requirement that the “adverse party . . . [receive notice] in advance of the
proceeding at which the proponent intends to offer [it].” 42 Pa.C.S. § 5985.1(b)
(emphasis added). See Commonwealth v. Luster, 2020 PA Super 153 (Pa.
Super. filed July 6, 2020) (forensic interview of minor victim improperly
admitted, resulting in defendant’s convictions and judgment of sentence being
vacated and case remanded for new trial, where Commonwealth did not give
formal written notice to defendant until day of trial that it intended to offer
evidence under TYE and despite fact that Commonwealth provided oral notice of
intention to present video one week before trial during plea negotiations and
again during jury selection).
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In his final two issues on appeal, Morales contends that there was
insufficient evidence to support his EWOC convictions and that his EWOC
convictions were against the weight of the evidence.
With regard to sufficiency of the evidence, Morales alleges that the
evidence was insufficient where the jury acquitted him of all underlying sexual
assault charges.17
“A challenge to the sufficiency of the evidence presents a question of law
and is subject to plenary review.” Commonwealth v. Hitcho, 123 A.3d 731(Pa. 2015). “The test is whether the evidence admitted at trial supports the
jury’s finding of all the elements of the offense beyond a reasonable doubt.” Id.“The entire trial record must be evaluated and all evidence received must be
considered.” Commonwealth v. Woods, 638 A.3d 1013, 1015 (Pa. Super.
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17 In its information, the Commonwealth charged Morales with EWOC as Count
3, alleging that:
On or about 04/01/2014
On diverse dates between 2012 through 2014 the defendant
Being a parent, guardian, or other person supervising the welfare of
a child under 18 years of age, or a person that employs or supervises
such a person, the actor knowingly endangered the welfare of the
complainant child by violating a duty of care, protection or support[.]
Course of Conduct: Notice is hereby given that the
Commonwealth grades the offense as a felony of the third degree
under 18 [Pa.C.S.A.] § 4304(b)[,] where there was a course of
conduct of endangering the welfare of the complainant child.
Commonwealth’s Criminal Information, 5/16/17, at 1 (emphasis added).
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1994) (citation omitted). “In reviewing the sufficiency of the evidence, all
reasonable inferences must be drawn in favor of the Commonwealth as the
verdict winner.” Commonwealth v. Mitchell, 902 A.2d 430, 444 (Pa. 2006).
The crime of endangering the welfare of children is defined, in relevant
part, as follows:
(a) Offense defined.
(1) A parent, guardian or other person supervising the welfare
of a child under 18 years of age, or a person that employs or
supervises such a person,[18] commits an offense if he
knowingly[19] endangers the welfare of the child by violating
a duty of care, protection or support.
18 Pa.C.S.A. § 4304(a)(1) (emphasis added). Pennsylvania courts have
established a three-part test that must be satisfied to prove EWOC:
1) [T]he accused [was] aware of his/her duty to protect the child;
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18 The term “person supervising the welfare of a child” means a person other
than a parent or guardian that provides care, education, training or control of a
child.” 18 Pa.C.S.A. § 4304(a)(3). Thus, it is undisputed that Morales, who
often babysat Children while N.S. was at work during the day, would fit within
this definition. Again, Morales does not challenge this element of the EWOC
statute.
19 Under the Crimes Code, a person acts knowingly with respect to a material
element of an offense:
(i) if the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that
such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that
it is practically certain that his conduct will cause such a result.
18 Pa.C.S.A. §§ 302(b)(2)(i) and (ii).
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2) [T]he accused [was] aware that the child [was] in circumstances
that could threaten the child's physical or psychological welfare; and
3) [T]he accused has either failed to act or has taken action so lame
or meager that such actions cannot reasonably be expected to
protect the child’s welfare.
Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa. Super. 1997) (quoting
Commonwealth v. Cardwell, 515 A.2d 311, 315 (Pa. Super. 1986)).
In Commonwealth v. Taylor, 471 A.2d 1228 (Pa. Super. 1984), our
Court discussed the legislature’s intent in enacting section 4304 and its broad
purpose:
The Supreme Court has said that [s]ection 4304 was drawn
broadly to cover a wide range of conduct in order to
safeguard the welfare and security of children. It is to be
given meaning by reference to the common sense of the
community and the broad protective purposes for which it
was enacted. Commonwealth v. Mack, [] 359 A.2d 770, 772
([Pa.] 1976). Thus, the “common sense of the community, as well
as the sense of decency, propriety and the morality which most
people entertain is sufficient to apply the statute to each particular
case, and to individuate what particular conduct is rendered criminal
by it.” Id., quoting Commonwealth v. Marlin, [] 305 A.2d 14,
18 ([Pa.] 1973) and Commonwealth v. Randall, 133 A.2d 276,
280 ([Pa. Super.] 1957).
Id. at 1231 (emphasis added). Compare Commonwealth v. Morrison, 401
A.2d 1348 (Pa. Super. 1979) (EWOC conviction based on failure of parents to
take child to doctor for two months where burns on child’s penis had not healed
and penis began to swell, became infected, and lack of treatment rendered loss
of organ possible) with Commonwealth v. A.R.C., 150 A.3d 53 (Pa. Super.
2016) (evidence insufficient to support EWOC conviction where evidence showed
defendant had no idea child had sustained injuries prior to hospital visit and both
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defendant’s boyfriend and defendant’s mother testified they never saw
defendant mistreat child).
Here, counsel acknowledges that Morales’ sufficiency of the evidence claim
is “logical,” but then concludes that it “has no merit because it ignores non-
sexual behaviors described in the testimony that lead to the logical inference
that [Morales] is in fact guilty beyond a reasonable doubt of EWOC.” Anders
Brief, at 25. Specifically, counsel states that “given the evidence of the violent
altercation between [N.S.] and [Morales], it is not at all shocking that the jury
would have found beyond a reasonable doubt that [Morales] was guilty of two
counts of EWOC as to [Children].” Id. at 25-26. In support of his argument
that Morales’ sufficiency argument “has no merit,”20 counsel cites to
Commonwealth v. Popow, 844 A.2d 13 (Pa. Super. 2004), where defendant
was acquitted of aggravated assault charges, but convicted of simple assault,
defiant trespass, REAP, stalking and EWOC.21 On appeal, Popow argued that he
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20 We remind counsel that the correct standard required to withdraw from
representing a client in a direct appeal is finding the appeal “frivolous,” not
meritless. See Cartrette, supra; Santiago, supra. The two terms are not
synonymous. See Commonwealth v. Smith, 700 A.2d 1301, 1305 n.10 (Pa.
Super. 1997) (noting that our Court has repeatedly held that frivolous is not the
same as meritless; “an appeal is frivolous where it lacks any basis in law or
fact.”), citing Commonwealth v. Fischetti, 669 A.2d 399, 401 n.2 (Pa. Super.
1995).
21 Popow is readily distinguishable from the facts of the instant case with regard
to the sufficiency of the evidence for Morales’ EWOC convictions. In Popow, the
defendant fell down a flight of twelve stairs while holding his child in one hand
trying to fight off three other individuals. Popow later had an altercation with
two other individuals while he held a box-cutter in his hand and was hit with a
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was improperly sentenced on EWOC as a third-degree felony where “neither the
information nor the evidence made out a course of conduct that would raise this
charge from a misdemeanor of the first degree to a felony of the third degree
and where the jury was not instructed on a course of conduct[.]” Id. at 15-16.
Our Court concluded that the “facts presented at trial showed that the
entire episode was one event on one night and. . . [that there was a] lack of
factual basis in the information or evidence presented at trial to support” the
jury finding Popow’s acts “were ‘separate enough to establish a course of
conduct.’” Id. at 16. In analyzing the issue, the Court noted that prior decisions
of our Court have found that the “logical interpretation of the legislative intent
in subsection [4304](b) is that it is designed to punish a parent who over days,
weeks, or months, abuses his children, such as repeatedly beating them or
depriving them of food.” Id. at 17. Because EWOC was erroneously graded in
____________________________________________
claw-hammer – all in the presence of his four-year-old child. Here, there were
no such facts brought out at trial indicating that the fights between N.S. and
Morales in the presence of Children escalated to the extent of that in Popow.
In fact, the only detailed testimony regarding a physical altercation between N.S.
and Morales was about a fight that occurred on the evening Morales exposed
himself to Child on the living room couch. During that episode, N.S. admitted
to swinging and hitting Morales with a closed fist, then trying to get her cell
phone in the bedroom at which point Morales “chased after [her] and pinned
[her] to the mattress” in the couple’s bedroom. See N.T. Trial, 8/21/19, at 56.
N.S. testified that she did not see Children during this incident when Morales
allegedly pinned her to the bed, “[held] her mouth,” and prevented her from
going to the bathroom alone. Id. at 59-60. N.S. testified that she heard
Children screaming in the background in their bedroom while these events
occurred, but did not see them “at any point between [] going to the bathroom
from the bedroom.” Id. at 61, 64.
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the information as a third-degree felony where there were no facts alleged or
proven in the case to support the grading, and because the court did not mention
“course of conduct” in its EWOC instruction, the Court “conclude[d] that the trial
court improperly graded this offense as a felony of the third-degree [and]
remand[ed the case] to the trial court for imposition of a sentence within the
legal sentencing range and consideration of the sentencing guidelines of this
crime as a misdemeanor of the first degree, rather than as a felony of the third
degree.” Id. at 18.
Here, similar to Popow: (1) there is no factual basis in the
Commonwealth’s information or criminal complaint and there was no evidence
presented at trial to support a finding that Morales’ altercation established a
“course of conduct” to support his EWOC conviction; and (2) the trial court did
not instruct the jury on the “course of conduct” required for a conviction under
section 4304(b).22 See Popow, supra at 18 (“'course of conduct’ is not an
element of the offense of endangering the welfare of a child, but it is an
additional fact, a jury question, that impacts the grading of the offense.”); see
also N.T. Jury Trial, 8/24/18, at 34, 43 (during jury instructions in instant case,
____________________________________________
22As noted earlier, the verdict sheet reflects that the jury made a specific finding
that the EWOC charge was based on a “course of conduct,” see supra at 7-8,
and the jury foreperson stated same in rendering the verdict. See N.T. Jury
Trial, 8/27/18, at 7. However, the judge never instructed the jury on “course of
conduct” as it related to EWOC — an additional fact that impacts the grading of
the offense. Popow, supra. Again, we find this flaw in the court’s instruction
led to a fundamental misunderstanding by the jurors and, potentially, an
erroneous verdict. See infra n.25.
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judge only defined course of conduct with regard to indecent assault and
corruption of minors charges). Thus, under Popow, it appears that the trial
court may have improperly graded the offense as a third-degree felony, thus
resulting in an illegal sentence.23 Commonwealth v. Hoffman, 198 A.3d 1112,
1123 (Pa. Super. 2018) (“[A] claim that the court improperly graded an offense
for sentencing purposes implicates the legality of a sentence.”) (citations and
quotation marks omitted).
Like the sufficiency argument advanced by Morales on appeal, the
defendant in Taylor, supra, claimed that because a jury acquitted him of
charges of assault and sexual offenses, his conviction for EWOC should be set
aside. In Taylor, the defendant drove his thirteen-year-old daughter and her
twelve-year-old friend to Ocean City, New Jersey, where the three visited the
boardwalk until they returned home at approximately 10:15 P.M. Id. at 1229.
During the car ride home, the defendant drank several beers, became tired, lost
his way, and narrowly avoided two accidents. Id. When he became too tired to
continue driving, defendant stopped at a motel room to spend the night. Id.
According to the Commonwealth, defendant made sexual advances to the young
girls, allegedly choked them, threw them on the bed, grabbed at their private
parts, and wrapped his legs around them. Id. The Commonwealth also
presented evidence that defendant pushed the daughter’s friend to the bed,
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23 Moreover, “a challenge to the legality of sentence is never waived and may be
the subject of inquiry by the appellate court sua sponte.” Hoffman, 198 A.3d
at 1123.
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causing her to fall, strike her head and sustain a swollen lip. Id. Defendant
then allegedly exposed his genitalia, removed a packet of condoms from his
pocket, and told his daughter that he could prevent her pregnancy by using one.
Id. The defendant ultimately fell asleep and took the girls home the following
morning, threatening to kill them if they told anyone what had happened in the
motel room. Id.
On appeal, the defendant argued that the jury’s acquittal of the sexual
offenses “was a rejection of the [victims’] testimony regarding events that
allegedly occur[red] in the motel room.” Id. at 1231. Our Court found
defendant’s argument meritless, noting that “a fact finder may render
inconsistent verdicts,” and “[a] jury’s verdict in a criminal case will not be set
aside merely because it appears to be inconsistent with another verdict of the
jurors [s]o long as the challenged verdict is supported by the evidence.” Id.
See also Commonwealth v. Miller, 35 A.3d 1206, 1209 (Pa. 2012) (“[T]he
fact that the inconsistency [in the verdict] may be the result of lenity, coupled
with the Government’s inability to invoke review, suggests that inconsistent
verdicts should not be reviewable.”) (citation omitted).
The Taylor Court’s reference to inconsistent verdicts, however, appears
to be dicta where the Court ultimately reversed defendant’s EWOC conviction
and remanded the case for a new trial because the criminal information “alleged
no facts [and did] no more than charge, in the language of the statute, that
appellant had endangered the welfare of children” and the criminal complaint
“did not aver expressly or by implication that [defendant] had been guilty of acts
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committed outside the motel room.” Taylor, 471 A.3d at 1232. At trial, the
Commonwealth’s case proceeded on proof of the events that occurred in the
hotel room with the victims; “[t]he Commonwealth did not attempt to prove that
appellant had been intoxicated while driving his motor vehicle or that he had
operated his vehicle in a way that was reckless or even negligent.” Id. Despite
the fact that the case was submitted to the jury without any mention that it was
to consider factual issues other than those alleged to have occurred in the motel
room, “the court instructed the jury[, over defense objection,] that it was
entitled to consider ‘all the evidence of any conduct which occurred in this
jurisdiction.’” Id. at 1233. Concluding that the jury instruction was erroneous
because it “permitted the jury to convict appellant on the basis of conduct which
had not previously been included in the accusation against him,” our Court
reversed the appellant’s EWOC conviction as “[t]here was no evidence of a
knowing violation of a duty of care, protection or support which endangered the
welfare of the children before they arrived at the motel.” Id.
Like the facts in Taylor, the affidavit of probable cause, attached to the
criminal complaint, alleges that the sexual encounters and viewing of explicit
sexual materials formed “the facts tending to establish the grounds for the
issuance of the warrant of arrest” for Morales. See Criminal Complaint/Affidavit
of Probable Cause, 3/18/17, at 1. There is no mention in the criminal complaint
or information of any non-sexual events, such as the altercation that counsel
refers to in his Anders brief, to form the basis of the EWOC charges brought
against Morales. Taylor, supra. See N.T. Jury Trial, 8/24/18, at 27 (in
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instruction to jury, trial court states, “If, after considering all the evidence, you
find that the Commonwealth has established beyond a reasonable doubt all of
the elements [of EWOC], you must find the defendant guilty.”) (emphasis
added). Accordingly, to permit the jury to find that Morales’ altercation with
N.S. constituted a knowing endangerment of the Children’s welfare by failing to
provide for their care, protection or support appears to be in error. Taylor, 471
A.2d at 1233.24
Here, Morales was charged with twenty four counts of assault and sexual
offenses; the jury acquitted him of all but two counts of EWOC. Morales only
contests the sufficiency of the evidence as it applies to the portion of the EWOC
statute that requires the perpetrator “violat[e] a duty of care, protection or
support.” 18 Pa.C.S. § 4304(a)(1). Where the criminal complaint predicated all
charges upon a course of continuing sexual conduct—specifically, testimony from
Children and N.S. that Morales exposed himself to Children, touched their private
parts, had them perform oral sex on him, and showed them inappropriate videos
of sexually explicit material—we are not convinced that this case is a traditional
compromise-verdict situation. See N.T. Jury Trial, 8/24/18, at 21 (trial judge
____________________________________________
24 We will not assess Morales’ weight of the evidence claim at this juncture,
having found potential merit to his sufficiency of the evidence claim. If Morales
is entitled to relief on his sufficiency claim, he is precluded from being retried
under double jeopardy grounds unlike a successful weight claim that permits a
second trial. Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. Super.
2000).
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instructing jury that “information alleges that the crime was committed on
diverse dates between January 2012 and June 2014.”).25 Because Morales was
acquitted on every single other charge and where sexual conduct formed the
factual basis for all charges, including EWOC, we are hard-pressed to find “what
particular conduct [of Morales’] [wa]s rendered criminal” to support his EWOC
convictions. Martin, supra; Randell, supra. This is especially significant
where nothing regarding altercations between N.S. and Morales was mentioned
in the complaint or information, despite counsel’s insistence in his Anders brief
that this is why the evidence was sufficient to convict Morales of EWOC.
Because there is, at the very least, a potentially meritorious legality of
sentencing issue in the instant appeal, and several other non-frivolous issues,
we must deny counsel’s motion to withdraw and remand for the filing of an
advocate’s brief. See Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super.
2007); see also Commonwealth v. Kearns, 896 A.2d 640, 643 n.8 (Pa. Super.
2006) (unless counsel able to satisfy all requirements of Anders/Santiago,
including finding of frivolity as to all possible appellate issues, s/he must file
advocate’s brief). We direct Attorney Server to file an advocate’s brief
addressing, at a minimum, the potentially meritorious issues mentioned in his
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25 We believe that the trial court’s jury instructions caused confusion with regard
to the quantum and quality of the evidence needed to prove EWOC in the instant
matter— especially where all charges were predicated upon sexual conduct
committed over the course of two years. See also supra n.22. Under such
circumstances, we are hesitant to deem Morales’ convictions the result of a
compromise verdict.
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Anders brief and those discussed herein. We also direct counsel to address any
other potentially meritorious issue(s) that his review of the case may uncover.
See Santiago, 978 A.2d at 360. Counsel’s brief shall be filed within 60 days of
the date of this decision.26
Case remanded for further action consistent with this memorandum
decision. Motion to withdraw as counsel denied.27 Jurisdiction retained.
Judge Pellegrini joins this Memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/20
____________________________________________
26 The Commonwealth may file a responsive brief 30 days thereafter.
27 We caution counsel to be more thorough in his recognition and analysis of
issues for his clients on appeal, particularity where he deems an appeal frivolous
and seeks to withdraw from representation. See Commonwealth v. Orellana,
86 A.3d 877, 880 (Pa. Super. 2014) (“The constitutional requirement of
substantial equality and fair process can only be attained where counsel acts in
the role of an active advocate [o]n behalf of his client, as opposed to that of
amicus curiae. . . . His role as advocate requires that he supports his client’s
appeal to the best of his ability.”), citing Anders, 386 U.S. at 742, 744. Today,
in the first instance, we have advocated for his client by scouring the record and
finding issues that are potentially meritorious on appeal. Orellana, 86 A.3d at
881 (only after counsel conscientiously examines case does court then proceed
to examine full proceedings to determine if case wholly frivolous).
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