Com. v. Barkman, N. ( 2023 )

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2023 PA Super 87COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICOLE BARKMAN :
:
Appellant : No. 359 WDA 2022
Appeal from the Judgment of Sentence Entered February 24, 2022
In the Court of Common Pleas of Somerset County Criminal Division at
No(s): CP-56-CR-0000467-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC JAMES BARKMAN :
:
Appellant : No. 487 WDA 2022
Appeal from the Judgment of Sentence Entered December 2, 2021
In the Court of Common Pleas of Somerset County Criminal Division at
No(s): CP-56-CR-0000581-2020
BEFORE: STABILE, J., KING, J., and COLINS, J.*
OPINION BY COLINS, J.: FILED: May 19, 2023
Appellant, Nicole Barkman, appeals a probationary judgment of
sentence imposed after a jury found her guilty of endangering the welfare of
children. Appellant, Eric James Barkman, appeals carceral judgments of
sentence imposed after a jury found him guilty of two counts of endangering
the welfare of children. The Appellants, a wife and a husband, were jointly
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* Retired Senior Judge assigned to the Superior Court.
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tried and the focus of their trial and the basis for their charges were unsafe
and unsanitary conditions in the home that they were alleged to share with
their five children, who were between the ages of two and thirteen years old. 1
N.T. 8/17/21, 2.277, 2.189. On direct review, Appellant Wife challenges the
sufficiency and weight of the evidence presented at trial. Appellant Husband
joins in the claims raised by his wife and asserts a prosecutorial misconduct
claim. Upon review, we affirm.2
On the afternoon of May 22, 2020, State Troopers Norman A. Klahre
and Matthew C. Jones were dispatched to the Appellants’ home in the 100 unit
of Weible Drive in Somerset County to check on the status of the Appellants’
children due to the condition of their house. N.T. 8/16/21, 1.32-1.33, 1.48;
N.T. 8/17/21, 2.210. Upon their arrival, the troopers met with the landlord to
the property and noticed “garbage[ and] junk everywhere around the house.”
N.T. 8/16/21, 1.33. No one was present in the home, but the landlord
accompanied the troopers for a walkthrough of the property via an open
backdoor in a search for anyone inside. N.T. 8/16/21, 1.34; N.T. 8/17/21,
2.87-2.88, 2.212. Upon approaching the entrance, the troopers smelled an
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1For the sake of clarity, the Appellants will be singularly referred to herein as
“Appellant Wife” and “Appellant Husband.”
2 Because the parties were jointly tried and Appellant Husband seeks to raise
issues as they were addressed in his wife’s appeal, we hereby consolidate
these two appeals sua sponte. See Pa.R.A.P. 513 (“Where there is more than
one appeal from the same order, or where the same question is involved in
two or more appeals in different cases, the appellate court may, in its
discretion, order them to be argued together in all particulars as if but a single
appeal[.]”).
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odor of cat urine. N.T. 8/16/21, 1.34; N.T. 8/17/21, 2.212. The troopers also
noticed “feces all over the floor.” N.T. 8/16/21, 1.35; N.T. 8/17/21, 2.89.
There was no running water and trial testimony later differed on whether there
were active power utilities in the home.3 N.T. 8/16/21, 1.35, 1.44, 1.52; N.T.
8/17/21, 2.89, 2.94, 2.212. A heater and a gas dryer were hooked up to a
propane tank in the home. N.T. 8/17/21, 2.89, 2.212.
Trooper Klahre opened a kitchen cabinet and “there were hundreds of
… small cockroaches that just flowed out like a waterfall” from it. N.T.
8/16/21, 1.35; N.T. 8/17/21, 2.89. A refrigerator in the kitchen was “jam-
packed full of food,” some of which “may have been rotten.” N.T. 8/16/21,
1.44; N.T. 8/17/21, 2.212. There was “garbage all over the floor … throughout
the home,” and bare mattresses on the floor with feces and stains, presumably
from urine, on them. N.T. 8/16/21, 1.35, 1.40-1.42; N.T. 8/17/21, 2.89. It
was hard for the troopers to see the floor of the home due to the “plethora”
of junk and garbage that inhibited doors from closing around it. N.T. 8/16/21,
1.40-1.41. A bathroom had exposed wiring coming down from the ceiling next
to a bathtub that had some water in it. N.T. 8/16/21, 1.44. There was a
chicken coop next to the toilet. N.T. 8/16/21, 1.44; N.T. 8/17/21, 2.212.
There were dozens of cats with kittens “running all over the place.” N.T.
8/16/21, 1.50; N.T. 8/17/21, 2.88. Most of the windows to the home had
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3 The home normally received water from a nearby well, but the water line
from the well to the home had broken over the prior winter and the Appellants
did not contact the landlord about that issue. N.T. 8/17/21, 2.98-2.110.
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been broken or were missing panes of glass. N.T. 8/16/21, 1.40. Photographs
of the state of the home at that time were later admitted at the Appellants’
trial. N.T. 8/16/21, 1.36-1.46; N.T. 8/17/21, 2.88; Trial Exhibits 1A-1FF.
On the next morning, the troopers returned to the home; at trial,
Trooper Klahre referenced that they had been informed that the Appellants
had been loading up a trailer at the house, and Trooper Jones addressed a 9-
1-1 call made by the Appellants concerning a verbal argument with their
landlord. N.T. 8/16/21, 1.46; N.T. 8/17/21, 2.217, 2.225-2.226. When the
troopers arrived, no one was present, except for the landlord, and some things
had been moved around in the yard. N.T. 8/16/21, 1.47, 1.52; N.T. 8/17/21,
2.217.
Starting in 2017, the landlord, Charles Curtis Wyandt, rented the home
to the Appellants as part of a verbal employment arrangement in exchange
for Appellant Husband working on Mr. Wyandt’s adjoining farm. N.T. 8/17/21,
2.77-2.78, 2.103. On the morning of May 22, 2020, Mr. Wyandt entered onto
the rental property to post an eviction notice; he terminated Appellant
Husband’s employment with his farm three months earlier. N.T. 8/17/21,
2.79-2.80. Mr. Wyandt could see the rental property from the vantage of his
own home and was aware that the Appellants were still living at the rental
property with their children. N.T. 8/17/21, 2.78-2.79, 2.81-2.82. Upon
entering the property to post the eviction notice, Mr. Wyandt saw two of the
Appellants’ children, between the ages of five and seven years old, roaming
around the outside of the property in the absence of their parents. N.T.
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8/17/21, 2.82-2.83. While it was “chilly” and raining at the time, one of the
children lacked socks and shoes, and the other one lacked socks, shoes, and
a shirt. N.T. 8/17/21, 2.83. After Mr. Wyandt told them to go in the house
because it was cold outside, the children eventually emerged from the home
wearing sweatshirts and left in a neighbor’s vehicle that was stopped down
the road from the home. N.T. 8/17/21, 2.84-2.85, 2.102. Two photographs
of the children that were taken by Mr. Wyandt that morning were admitted at
the Appellants’ trial. N.T. 8/17/21, 2.85-2.86; Trial Exhibits 2A-2B.
When the children went into the home, Mr. Wyandt called the county
Children and Youth Services agency (“CYS”) to report that the children had
been alone there; it was not the first time he knew of the children being left
alone, and he had previously warned Appellant Husband about that. N.T.
2/17/21, 2.87, 2.92. CYS directed him to contact the state police. N.T.
2/17/21, 2.87.
Three CYS caseworkers responded to the Appellants’ home on May 22,
2020. N.T. 2/17/21, 2.187. The caseworkers stayed outside the home and
looked inward into it. N.T. 2/17/21, 2.188-2.189. One of the caseworkers,
Diana Fath, later recalled at the Appellants’ trial that she saw trash, a large
trailer, and “a lot” of debris in the front yard, and smelled an odor of feces
and sewage as she got closer to the home. N.T. 2/17/21, 2.188-2.189. Ms.
Fath contacted the Appellants, and they were uncooperative in providing
details of where they were and where their children were, but they said that
their youngest child was with them. N.T. 2/17/21, 2.190. They informed Ms.
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Fath that they were not living in the home on Weible Drive and were staying
in different hotels. N.T. 2/17/21, 2.191. They said that the home on Weible
Drive “was a mess because they were getting ready to move and things were
in the front yard because they were getting ready to move to a different
place.” N.T. 2/17/21, 2.192. They also told Ms. Fath “that their children were
safe and that CYS needed to get their heads out of their – ‘A’ word.” N.T.
2/17/21, 2.193. They would not permit CYS to have a face-to-face meeting
with their children and compromised by offering to send the caseworker a
video of the youngest child who was with them. N.T. 2/17/21, 2.193. The
caseworker never received the video even after she called the Appellants back,
they assured her that they would send it, and Ms. Fath provided them with
her e-mail address. N.T. 2/17/21, 2.194-2.195, 2.214.
One of the other caseworkers, Jamie Knopsnyder, eventually contacted
the Appellants. N.T. 2/17/21, 2.201. They told her that they believed the
landlord was the cause of “their house being that way,” that they were not
living there, and that they were staying in a hotel. N.T. 2/17/21, 2.202. They
also said that the refrigerator in the hotel was not big enough to hold all their
food, so they had been going back and forth between the home and their hotel
to get food that they were storing at the home. N.T. 2/17/21, 2.202-2.203.
After Ms. Knopsnyder and her supervisor saw Mr. Wyandt’s photographs of
the inside of the home, they contacted a county solicitor early in the morning
on May 23, 2021, to seek an emergency order with respect to the children.
N.T. 2/17/21, 2.203-2.204. CYS subsequently took the children back to their
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agency and placed them in separate foster homes. N.T. 2/17/21, 2.204. The
children remained in foster care at the time of the Appellants’ trial. N.T.
2/17/21, 2.145, 2.207.
Based on the condition of the Appellants’ home on May 22, 2020,
Trooper Jones filed five charges of endangering the welfare of children against
each of the Appellants, one for each of their children. N.T. 2/17/21, 2.215-
2.216. On the afternoon of May 23, 2020, the Appellants were stopped for a
traffic violation in Adams Township, Cambria County, at which time they were
arrested on the open warrants for the child endangerment charges. N.T.
2/17/21, 2.218.
In March of 2016, the Appellants had an earlier interaction with the
Somerset County CYS. At that time, they were living in a different home in
the Boswell Borough of the county and CYS had been referred to check on the
status of the conditions of their home. N.T. 2/17/21, 2.151-2.154. Upon
conducting a home visit, a CYS caseworker saw piles of slab wood, a make-
shift wooden teepee, and a refrigerator with a door ajar in the backyard. N.T.
2/17/21, 2.157. The caseworker determined that the items in the backyard
raised safety concerns for the Appellants’ four children at that time who then
ranged from two months to seven years old. N.T. 2/17/21, 2.157. Inside the
home, the caseworker noted multiple conditions raising safety concerns: old
appliances, a furnace, and some “junk” that prevented a clear path to the
first-floor staircase; a lack of railings or sides on the staircase; a lack of a
baby-gate on the second floor landing; an open-top fifty-gallon fish tank on
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the second floor that was filled with debris and dirt; a hole on the upstairs
floor that was 18-to-20 inches wide that the children could have fallen
through; boarded-up windows; dirty floors and old carpeting that had debris
and food particles on them; an odor of garbage and rotten food; a stove
covered in grease, grime, and dirt; uncovered dirty mattresses on the floor in
a bedroom with strewn blankets and uncovered, blackened pillows; a heater
hooked up to a propane tank in the bedroom; a lack of running water to a
commode that had dirt and debris in it; a plastic bucket in the bathroom with
a brown substance in it; and a filthy, blackened, seemingly-unused bathtub in
the bathroom. N.T. 2/17/21, 2.158-2.166. Photographs of the conditions
observed during the March 2016 home visit were admitted into evidence at
the Appellants’ trial. N.T. 2/17/21, 2.166-2.167; Trial Exhibits 8A-8R.
During the March 2016 visit, the CYS caseworker saw that the
Appellants’ children were outside the home and not dressed appropriately for
the cold weather at that time. N.T. 2/17/21, 2.168. The children were not
removed from the home at that time. N.T. 2/17/21, 2.168. The Appellants,
after some convincing, agreed to cooperate with CYS, make necessary repairs,
and “get the home safe.” N.T. 2/17/21, 2.169. CYS closed their case with
respect to the 2016 visit in September of 2019 after gaining access to the
Appellants’ home and concluding that there were no longer any safety
concerns. N.T. 2/17/21, 2.184-2.185.
Another referral for housing concerns was made to CYS in October of
2019. N.T. 2/17/21, 2.185. Due to a lack of cooperation by the Appellants,
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a dependency petition was filed in the lower court. N.T. 2/17/21, 2.170,
2.185. That petition was withdrawn without prejudice in January of 2020,
after CYS conducted an unannounced home visit and found the home to be
clean and appropriate. N.T. 2/17/21, 2.185.
At the Commonwealth’s request, the trial court ordered the
consolidation of the instant child endangerment cases. Consolidation Order,
7/9/21, 1. On August 16-17, 2021, the Appellants were jointly tried before a
jury, each on five counts of endangering the welfare of children. The
Commonwealth presented the testimony of the following witnesses: the state
troopers that visited the Appellants’ home on March 22-23, 2020 (Troopers
Klahre and Jones); the landlord (Mr. Wyandt); an assistant director/custodian
of records for the Somerset County CYS (Natalie Hunt); the caseworker for
the CYS that conducted the March 2016 visit (Debra Rugg); a CYS caseworker
at the time that the agency’s initial file for the Appellants was closed in 2019
(Abby Bowlby); and two of the CYS caseworkers that responded to the
Appellants’ home on May 22, 2020 (Ms. Fath and Ms. Knopsnyder). Appellant
Wife testified. Appellant Husband declined to offer testimony.
Appellant Wife testified that she had stopped residing in the home on
Weible Drive in the beginning of May of 2020. N.T. 8/17/21, 2.244-2.246.
She acknowledged that, in February of 2020, her husband was fired from his
employment with their landlord and that the landlord served them with an
eviction notice. N.T. 8/17/21, 2.246-2.248. After they sought legal assistance
with the eviction, Appellant Wife alleged that the landlord would drive past
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their house every day in April of 2020 and scream at them. N.T. 8/17/21,
2.249. She asserted that all the utilities to the home were functional at that
time. N.T. 8/17/21, 2.249. She testified that they moved out of the home in
the first week of May and began staying with family and friends after they
came home and there was no running water to the home. N.T. 8/17/21,
2.249-2.251. She claimed that, when they moved out, the house “was in [a]
nice condition,” such that “[e]verything was neat and organized as much as
possible,” with furniture and packed boxes in the home. N.T. 8/17/21, 2.250.
She claimed that they returned each day to give their animals food and water
and to take care of their cats’ litter boxes. N.T. 8/17/21, 2.250.
Appellant Wife denied that the home was in the condition displayed in
the exhibit photographs at the time that her family moved out of the
residence. N.T. 8/17/21, 2.251. Specifically, she denied that there were
chicken cages in the bathroom, cat feces over the beds, and an unbearable
stench in the home. N.T. 8/17/21, 2.252. She claimed that, on the morning
of May 22, 2020, her two oldest boys were staying with a friend up the road
from the Weible Drive home. N.T. 8/17/21, 2.253-2.254. She asserted that
CYS never told her that the police wanted to talk to them and that she texted
and e-mailed videos to CYS that the agency said they never received. N.T.
8/17/21, 2.254-2.255. She testified that CYS stated that their caseworkers
and the police were at the Weible Drive home but that she was not advised of
any pending criminal charges or any outstanding warrants. N.T. 8/17/21,
2.256.
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Appellant Wife testified that she and her husband went to the Weible
Drive home on May 23, 2020; her husband stayed on the porch while she
went into the home to “throw [some] stuff out.” N.T. 8/17/21, 2.256. They
were trying to be quick so as to avoid their landlord but the landlord blocked
their vehicle in the driveway with an off-road vehicle. N.T. 8/17/21, 2.257.
She recalled “a lot of screaming and yelling,” before she called the state police,
she and her husband drove away through the yard, and they left the area with
the landlord following after them. N.T. 8/17/21, 2.257-2.258.
On cross-examination, Appellant Wife suggested that their landlord was
responsible for the condition of the Weible Drive home on May 22-23, 2020.
N.T. 8/17/21, 2.266 (“I believe he had the motive and he has threatened us
that he was going to get us out of there one way or the other.”); see also
N.T. 8/17/21, 2.270 (Appellant Wife agreeing that it was her opinion that her
landlord “wanted to trash his own house after [she] left it”). As for her
children that were at the home on the morning of May 22, 2020, she asserted
that they had appropriate clothing on when she left them with her friends.
N.T. 8/17/21, 2.267-2.268. She disagreed with the landlord’s account that
the children retrieved clothing from the home as she testified that she had
already removed “every piece of clothing” from the home. N.T. 8/17/21,
2.269.
Appellant Wife testified that she had “no idea how there was feces on
the mattresses.” N.T. 8/17/21, 2.270. She also asserted that the chickens
were never in their bathroom and that they were in a separate room attached
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to a furnace room in the home. N.T. 8/17/21, 2.271. She denied knowing
how the chickens “got to the bathroom” and “how the heat lamp that was in
there with them got there.” N.T. 8/17/21, 2.271.
The jury found Appellant Wife guilty of a single count of endangering
the welfare of children and Appellant Husband guilty of two counts of
endangering the welfare of children. Verdict Sheet, 8/17/21, 1; N.T. 8/17/21,
2.338-2.340. At deferred sentencing hearings, the court sentenced Appellant
Husband to concurrent terms of twenty-one to forty-two months’
imprisonment and Appellant Wife to a two-year term of probation with
restrictive conditions, including six months of electronic monitoring. N.T.
12/2/21, 11-12 (Appellant Husband’s case); Sentencing Order, 12/2/21, 1-2
(Appellant Husband’s case); Sentencing Order, 2/24/22, 1-2 (Appellant Wife’s
case). Appellant Wife did not file a post-sentence motion, and timely filed a
notice of appeal and a statement of matters complained on appeal pursuant
to Pa.R.A.P. 1925(b).4 Notice of Appeal, 3/25/22, 1 (Appellant Wife’s case);
Rule 1925(b) Order, 3/30/22 (Appellant Wife’s case); Rule 1925(b)
Statement, 6/30/22, 1-3 (Appellant Wife’s case). Following the denial of a
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4 We note that the Commonwealth filed their brief three days beyond its initial
deadline in Appellant Wife’s case and one day late in the Appellant Husband’s
case. While this Court has declined to review the arguments presented in
some instances where the Commonwealth has filed an untimely brief for
Appellee, see, e.g, Commonwealth v. Brown, 161 A.3d 960, 965 n.2 (Pa.
Super. 2017), we remind the Commonwealth of its obligation to comply with
our procedural rules, including briefing deadlines. We also note that it is a
better course of action for a party to file an application for an extension of
time rather than to just ignore this Court’s deadlines.
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timely-filed post-sentence motion, Appellant Husband timely filed a notice of
appeal and voluntarily filed a Rule 1925(b) statement.5 Post-Sentence Motion,
12/9/21, 1-3 (Appellant Husband’s case); Order Denying Post-Sentence
Motion, 4/19/22, 1 (Appellant Husband’s case); Notice of Appeal 4/25/22, 1
(Appellant Husband’s case); Rule 1925(b) Statement, 5/25/22, 1-4 (Appellant
Husband’s case).
Appellant Wife presents the following questions for our review:
1. Whether the evidence presented by the Commonwealth at
trial was insufficient to establish [that Appellant Wife]
possessed the requisite mens rea as an essential element to
sustain a conviction of the charge of endangering the
welfare of children?
2. Whether the evidence presented by the Commonwealth at
trial was insufficient to establish [that Appellant Wife]
violated a duty of care, protection or support of her children
as an essential element to sustain a conviction of the charge
of endangering the welfare of children?
3. Whether the evidence presented by the Commonwealth at
trial was insufficient to establish [that Appellant Wife]
engaged in a course of conduct as an essential element to
sustain a conviction of the charge of endangering the
welfare of children?
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5 In his notice of appeal, Appellant Husband asserts that he is appealing the
order, dated April 19, 2022, that denied his post-sentence motion by operation
of law. Notice of Appeal, 4/25/22, 1 (Appellant Husband’s case). This appeal,
however, properly lies only from the imposed judgments of sentence. We
have amended the caption accordingly. See Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (“In a
criminal action, appeal properly lies from the judgment of sentence made final
by the denial of post-sentence motions.”).
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4. Whether the verdict rendered by the jury was against the
weight of the evidence presented by the Commonwealth at
trial?
5. Whether the verdict rendered by the jury was against the
weight and sufficiency of the evidence as the verdicts
against [Appellant Wife] and her co-defendant were
inconsistent and cannot be supported by the evidence
presented by the Commonwealth?
Brief for Appellant Wife, 6-8 (references to responses by the lower court,
suggested answers, and unnecessary capitalization omitted; emphasis
added).
Appellant Husband has filed a joinder brief, pursuant to Pa.R.A.P. 2137,
in which he purports to “join[ ] in the arguments of his co[-]defendant” and
presents an additional claim raising the following question for our review:
[6]. Did the actions of the District Attorney, Jeffrey Lynn
Thomas, constitute prosecutorial misconduct so as to
warrant a mistrial?
Brief for Appellant Husband, 3-4 (question sequentially renumbered for
purposes of these now-consolidated appeals).6 We will first address Appellant
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6 Appellant Husband explicitly “adopts and incorporates the arguments set
forth” in the brief for Appellant Wife pursuant to Pa.R.A.P. 2137 (“In cases
involving more than one appellant or appellee, including cases consolidated
for purposes of the appeal pursuant to Rule 513 (consolidation of multiple
appeals), any number of either may join in a single brief, and any appellant
or appellee may adopt by reference any part of the brief of another[.]”). At
the same time, we note that Appellant Husband’s brief lacks multiple required
sections, including a statement of jurisdiction, a separate statement of the
questions involved, and a statement of the case. See Pa.R.A.P. 2111(a)
(setting forth the separate and distinct sections that are to be included in a
(Footnote Continued Next Page)
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Wife’s claims and then proceed to the additional claim raised by Appellant
Husband.
In Appellant Wife’s first three claims, she challenges the sufficiency of
the evidence. These claims present questions of law and thus are subject to
plenary review under a de novo standard. Commonwealth v. Coniker, 290
A.3d 725, 733 (Pa. Super. 2023). Upon reviewing these claims, we are tasked
with determining “whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light most
favorable to the verdict winner, are sufficient to support all elements of the
offense” beyond a reasonable doubt. Commonwealth v. Arias, 286 A.3d
341, 349 (Pa. Super. 2022) (citations omitted). Upon conducting this review,
we are guided by the following precepts:
In applying [this] test, we may not weigh the evidence and
substitute our judgment for the fact-finder. In addition, we note
that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
Any doubts regarding a defendant’s guilt may be resolved by the
fact-finder unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable
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brief for an appellant). We will not quash Appellant Husband’s appeal on
account of these briefing deficiencies where they do not substantially impair
our ability to conduct meaningful appellate review. At the same time, we note
that, while Rule 2137 permitted Appellant to adopt the brief of his co-
defendant in toto, that rule did not dispense with his overall briefing
obligations where he only adopted the argument section of his co-defendant’s
brief. Nevertheless, we remind counsel for Appellant Husband of her
obligation to comply with our procedural rules, including our briefing
requirements.
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doubt by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Boyer, 282 A.3d 1161, 1171 (Pa. Super. 2022) (citations
omitted).
Here, the Appellants were convicted of and sentenced for endangering
the welfare of children (“EWOC”), as a felony of the third degree, under 18
Pa.C.S. § 4304(a)(1), one count for Appellant Wife and two counts for
Appellant Husband. Sentencing Order, 12/2/21, 1-2 (Appellant Husband’s
case); Sentencing Order, 2/24/22, 1-2 (Appellant Wife’s case); Order of
Court, 8/17/21, 1 (Appellant Wife’s case); Order of Court, 8/17/21, 1
(Appellant Husband’s case); Verdict Sheet, 8/17/21, 1 (Appellant Wife’s
case); Verdict Sheet, 8/17/21, 1 (Appellant Husband’s case); Bills of
Information, 9/10/21, 1-2 (Appellant Husband’s case); Bills of Information,
8/20/20, 1 (Appellant Wife’s Case). Section 4304 defines EWOC, in relevant
part, as follows: “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, commits an offense if he [or she] knowingly endangers the welfare
of the child by violating a duty of care, protection, or support.” 18 Pa.C.S. §
4304(a)(1). Further, “[i]f the actor engaged in a course of conduct of
endangering the welfare of a child, the offense constitutes a felony of the third
degree.” 18 Pa.C.S. § 4304(b)(ii); see also Commonwealth v. Spanier,
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192 A.3d 141, 146 (Pa. Super. 2018) (holding that the Commonwealth must
prove that a defendant engaged in a course of conduct in order to sustain a
conviction for EWOC that is graded as a felony of the third degree).
“To sustain a conviction for EWOC, the Commonwealth must prove that
a defendant knowingly violated a duty of care to the minor victim.”
Commonwealth v. Keister, --- A.3d ----, 2023 WL 2764450, *2 (Pa. Super.,
filed Apr. 4, 2023) (citation omitted). In particular,
the Commonwealth must prove that: 1) the accused is aware of
his or her duty to protect the child; 2) the accused is aware that
the child is in circumstances that could threaten the child’s
physical or psychological welfare; and 3) the 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.
Id. at *2, citing Commonwealth v. Sebolka, 205 A.3d 329, 337 (Pa. Super.
2019).
Appellant Wife initially argues that the evidence was insufficient to prove
that she acted with the requisite mens rea for EWOC. Appellant Wife’s Brief
at 14-18. She agrees that she was aware of her duty to protect her children
but alleges that the evidence failed to establish that she “knowingly” placed
her children in a situation that would threaten their physical or psychological
welfare and did not show that she failed to act to remedy the situation that
existed in the home. Id. at 15-16. In support of this argument, she agrees
that three witnesses – the two state troopers and the landlord – established
the conditions of the home as of May 22, 2020, but points out that only one
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witness, the landlord, offered testimony that she was residing with her family
at the home at that time. Id. at 16-17. Due to the lack of additional evidence
of her residency at the home as of May 22, 2020, Appellant Wife asserts that
the evidence was insufficient. Id. at 17-18. This argument fails to properly
review the evidence under the applicable standard of review.
The testimony of the landlord, Mr. Wyandt, was alone sufficient to
establish Appellant Wife’s residency at the time the poor conditions of her
home were discovered. Cf. Commonwealth v. Wilder, 393 A.2d 927, 928
(Pa. Super. 1978) (en banc) (“a positive identification by one witness is
sufficient for conviction”). The landlord testified that Appellant Wife, her
husband, and their children were still residing in the home in May of 2020.
N.T. 8/17/21, 2.77. He also testified that were was no point in time that the
Appellants and their children were not living at the residence and that he knew
that the Appellants were still living there because he “could see them at all
times.” N.T. 8/17/21, 2.81-2.82. As he explained at the trial, the Appellants’
home was on an adjoining property to his own home, and he could see the
Appellants’ home from the windows of his own home and that he could see
activity in the Appellants’ home. N.T. 8/17/21, 2.78-2.79. From this account
of the landlord’s vantage point of the Appellants’ home and his observations
of the activity at the home, the jury was able to reasonably infer and conclude
that the Appellants and their children were residing in the home while it was
in, as the Commonwealth describes, “unsafe, deplorable conditions.”
Appellee’s Brief at 5.
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Appellant Wife’s argument concerning the sufficiency of the evidence for
her mens rea is entirely based on the lack of additional corroborating
witnesses supporting the landlord’s account of her residency. This argument
addresses only the weight of the landlord’s testimony, and cannot properly be
considered on sufficiency review. See Commonwealth v. Widmer, 744 A.2d
745, 751-52 (Pa. 2000) (claims challenging the weight and sufficiency of the
evidence are distinct and the arguments in support of them are not
interchangeable). Rather, a sufficiency claim must accept the credibility and
reliability of all evidence that supports the verdict. Commonwealth v.
Breakiron, 571 A.2d 1035, 1042 (Pa. 1990); see also Commonwealth v.
Bristow, 538 A.2d 1343, 1345-1346 (Pa. Super. 1988) (sufficiency analysis
does not permit an examination of credibility, reliability, or weight of the
evidence). Accordingly, we are unable to disregard the landlord’s testimony
about her residency at the Weible Drive home to conclude that the evidence
was insufficient to establish her mens rea.7
In her second claim, Appellant Wife argues that the evidence was
insufficient to establish that she violated a duty of care, protection, or support
for her children. Appellant Wife’s Brief at 18-20. Her theory for this claim is
the same as the initial claim reviewed above: the evidence proved that the
home was “in deplorable condition unsuited for habitability” as of May 22,
____________________________________________
7 The evidence at trial did not suggest that Appellant Husband had any
different residency patterns from Appellant Wife. Accordingly, the denial of
this claim or the remaining sufficiency claims for lack of merit would equally
apply to Appellant Husband where he joins his wife’s claims.
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2020, but only the testimony of the landlord, Mr. Wyandt, supported the
notion that the Appellants and their children were residing at the home during
the existence of its unsuitable conditions. Id. at 19-20. This claim fails for
the same reasons as the first claim above because it fails to review the
evidence in the light most favorable to the Commonwealth and improperly
invites us to disregard the landlord’s testimony.
The landlord testified that, based on his observations of the Appellants’
home, the Appellants and their children had never moved out of the home
prior to May 22, 2020. N.T. 8/17/21, 2.77-2.79, 2.81-2.82. That notion of
continued residency was supported by the landlord’s testimony that two of the
Appellants’ children were able to retrieve clothing from the home on the
morning of May 22, 2020, when the landlord told them to go into the home
because it was cold outside. N.T. 8/17/21, 2.82-2.85. From this evidence,
the jury was able to draw the reasonable inference that the Appellants were
still living with their children in the deplorable and unsanitary conditions in the
home that were documented at trial that included, inter alia, a lack of running
water, floors covered in feces and debris, a pervasive smell of urine, a propane
tank heater that posed a fire hazard, an infestation of cockroaches, and bare
mattresses covered in stains from feces and urine. N.T. 8/16/21, 1.33-1.35,
1.40-1.42, 1.44, 1.52; N.T. 8/17/21, 2.89, 2.94, 2.212; Trial Exhibits 1A-1FF.
Evidence and inferences drawn therefrom that demonstrated that the
Appellants permitted their children to live in conditions that posed threats to
the children’s health, hygiene, and psychological well-being amply supported
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the element that the Appellants had violated a duty of care, protection, or
support for their children. See Commonwealth v. Taylor, 471 A.2d 1228,
1230 (Pa. Super. 1984) (“Section 4304 was drawn broadly to cover a wide
range of conduct in order to safeguard the welfare and security of children”
and it was based on the “common sense of the community and the broad
protective purposes for which it was enacted”); see also Commonwealth v.
Vela-Garrett, 251 A.3d 811, 815 (Pa. Super. 2021) (same).
In her third claim, Appellant Wife asserts that the evidence was
insufficient to establish that she had engaged in a course of conduct of
endangering the welfare of her children that was necessary to support the
grading of her offense. Appellant Wife’s Brief at 20-23. She argues that the
Commonwealth could not establish a course of conduct based on the evidence
of the condition of her family’s former home that was documented in 2016
because the events in 2016 and 2020 were “not continuous” and “there were
two occasions between 2016 and May 2020 where CYS determined that the
living conditions were safe for the children.” Id. at 21. As for the conclusion
that the trial court draws in its opinion, that the course of conduct could be
supported by the reasonable inference that the unsanitary conditions in the
home could not have occurred suddenly and thus the children were subjected
to those conditions for days, weeks, or months, Appellant Wife points out that
“[n]o evidence was ever presented that the[ ] conditions existed over any
extended period of time.” Id. at 23; Trial Court Opinion, 6/30/22, 6-7
(Appellant Wife’s case). She additionally notes, “The only evidence that could
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be presented was from May 22, 2020, when it was clear there was no one
living in the residence and that Appellant, co-defendant and the children had
vacated the residence.” Appellant Wife’s Brief at 23.
This claim is meritless because, in making her arguments in support of
it, Appellant Wife fails to review the evidence pursuant to the applicable
standard of review. As with the two prior sufficiency claims, we cannot
disregard the testimony of the landlord which asserted that the Appellants and
their children were still residing at the Weible Drive home as of May 22, 2020.
See Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005) (“[i]n
evaluating the sufficiency of the evidence, we do not review a diminished
record. Rather, the law is clear that we are required to consider all evidence
that was actually received…”) (citations omitted). Moreover, Appellant Wife’s
arguments improperly presume that the sufficiency of the evidence can only
be based on direct evidence of guilt to the exclusion of any circumstantial
evidence and reasonable inferences that may be derived from the evidence
presented. See Commonwealth v. Lake, 281 A.3d 341, 346 (Pa. Super.
2022) (on sufficiency review this Court “evaluates the record in the light most
favorable to the Commonwealth as verdict winner, giving it the benefit of all
reasonable inferences to be drawn from the evidence” and “the
Commonwealth may sustain its burden solely by means of circumstantial
evidence”) (citations omitted).
In any event, the evidence was sufficient to support a “course of
conduct” for purposes of the grading of the Appellants’ offenses. The phrase
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“course of conduct” is used in the EWOC statute to differentiate the penalties
for single and multiple endangering acts. Commonwealth v. Kelly, 102 A.3d
1025, 1031 (Pa. Super. 2014) (en banc) (noting that, although the EWOC
statute does not define “course of conduct,” the phrase is used in that context
to differentiate the penalties for single and multiple endangering acts). In
interpreting the legislative language for “course of conduct,” this Court has
explained 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.” Commonwealth v. Popow, 844 A.2d 13, 17 (Pa. Super.
2004).
In its opinion, the trial court suggests that the condition of the home as
it was observed on May 22, 2020, permitted the reasonable inferences that
the unsanitary conditions in the Appellants’ home had developed over time
and the Appellants’ children had been subjected to those conditions for an
indefinite but continuing period of time:
We believe the evidence sufficiently established that Appellant[
Wife]’s residence was in such a state of disrepair that it could not
have suddenly reached that condition. As detailed above, the
evidence proved that Appellant[ Wife] was living in the home with
at least one of her children. The logical inference, therefore, is
that Appellant[ Wife]’s children were subjected to the putrid
conditions of Appellant[ Wife]’s home for days, weeks or months
before the incident on May 22, 2020. Appellant[ Wife]’s day-after-
day, repeated tolerance of and failure to rectify the putrid
conditions reasonably could have been viewed by the jury not as
a single act, but rather as a continuity of conduct.
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Trial Court Opinion, 6/30/22, 7 (Appellant Wife’s case). We agree with the
trial court’s analysis.
The unsanitary and deplorable conditions that were observed at the
Appellants’ home, which the landlord’s testimony supported was still the
residence of the Appellants and their children, could have been reasonably
inferred to have developed over a period of days, weeks, or months. The
photographs of the home and the testimony of the state troopers addressed,
among other things, an immense accumulation of trash and debris on the
floors of the home, the presence of an overpowering odor of urine, an
infestation of cockroaches, and the presence of feces and urine stains on
uncovered mattresses. These deplorable aspects of life for the Appellants’
children did not manifest in an instant. Multiple actions and an ongoing state
of neglect by the Appellants over time permitted the development of these
conditions leading up to May 22, 2020. From these circumstances, the jury
was able to reasonably infer that the Appellants engaged in a course of
conduct that endangered the welfare of their children and the evidence was
sufficient to support the grading of the Appellants’ offenses. See, e.g.,
Commonwealth v. Engler-Harper, 2022 WL 3367510, *6-7 (Pa. Super.,
filed Aug. 16, 2022) (finding evidence sufficient for a course of conduct for
purposes of EWOC grading based on an Appellant’s “nefarious actions
constituting multiple endangering acts over an extended period;” the evidence
supporting EWOC included deplorable and unsanitary conditions of children’s
bedrooms that included carpets saturated in urine, soiled and urine-stained
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mattresses, and “lots of clutter”) (unpublished memorandum cited for its
persuasive value pursuant to Pa.R.A.P. 126(b)(2)). Here, the confluence of
circumstances strongly suggested an ongoing pattern of neglect, not merely
a momentary state of affairs. Accordingly, the evidence was sufficient to
support the grading of the EWOC convictions.
Appellant Wife combines her last two claims in a single argument
section. She alleges that the verdict was against the weight of the evidence,
the jury was not permitted to render inconsistent verdicts as they did by
finding her guilty of one EWOC count and finding her husband guilty of two
EWOC counts, and the resulting inconsistent verdicts in her and her husband’s
cases “shocks the sense of justice.” Appellant Wife’s Brief at 24-28. These
arguments do not entitle the Appellants to relief.
To the extent that Appellant Wife challenges the weight of the evidence,
she waived that claim by not preserving it before the trial court. A claim
challenging the weight of the evidence “shall be raised with the trial judge in
a motion for a new trial: (1) orally, on the record, at any time before
sentencing; (2) by written motion at any time before sentencing; or (3) in a
post-sentence motion.” Pa.R.Crim.P. 607(A)(1)-(3). The failure to preserve
a weight claim will result in waiver, even if the trial court addresses the claim
in its opinion for this Court. See Commonwealth v. Thompson, 93 A.3d
478, 491 (Pa. Super. 2014) (“Failure to properly preserve the claim will result
in waiver, even if the trial court addresses the issue in its opinion.”) (citations
omitted).
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Appellant Wife’s counsel made no oral motion challenging the weight of
the evidence following the announcement of the verdict. Appellant Husband’s
counsel referred to a mutual preservation of “an oral Motion for Judgment of
Acquittal and New Trial” at the end of the trial, without reference to what
claims would be addressed in that motion, but then Appellant Husband’s
counsel agreed to pursue that motion either in a pre-sentence motion for
extraordinary relief or a written post-sentence motion. N.T. 8/17/21, 2.349-
2.350. Appellant Wife failed to ensure that the notes of testimony from her
sentencing hearing were moved into the certified record, so we have no ability
to confirm whether a weight claim was lodged at that proceeding. The trial
court’s docket for Appellant Wife’s case also does not include any reference to
the filing of a pre- or post-sentence motion filed by Appellant Wife or any
rulings thereof on any post-verdict motions between the entries for the guilty
verdict and the filing of her notice appeal. Appellant Wife also fails to address
or discuss any weight claims directed to the trial court in her appellate brief.
In these circumstances, we find that Appellant Wife waived her weight claim.
See Commonwealth v. Juray, 275 A.3d 1037, 1047 (Pa. Super. 2022) (“An
appellant’s failure to avail himself of any of the prescribed methods of
presenting a weight of the evidence issue to the trial court constitutes waiver
of that claim.”) (citation omitted); Pa.R.Crim.P. 607, Comment (stating: “The
purpose of this rule is to make it clear that a challenge to the weight of the
evidence must be raised with trial judge or it will be waived”).
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To the extent that Appellant Husband joins in his wife’s weight claim,
we note that Appellant Husband preserved a weight claim in a timely-filed
post-sentence motion which addressed the main thrusts of his wife’s waived
appellate weight claim which focuses on the supposed lack of evidence
establishing their children’s residence at the home and a violation of a duty of
care by the Appellants. Post-Sentence Motion, 12/9/21, ¶ 2(a)-(e) (Appellant
Husband’s case). Accordingly, we must proceed with substantive review of
his weight claim.
Our controlling standard of review provides that our appellate review of
a weight claim concerns the denial of the post-verdict challenge to the weight
of the evidence rather than a first-hand review of the credibility of the trial
evidence:
The weight given to trial evidence is a choice for the factfinder. If
the factfinder returns a guilty verdict, and if a criminal defendant
then files a motion for a new trial on the basis that the verdict was
against the weight of the evidence, a trial court is not to grant
relief unless the verdict is so contrary to the evidence as to shock
one’s sense of justice.
When a trial court denies a weight-of-the-evidence motion, and
when an appellant then appeals that ruling to this Court, our
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court determines
whether the trial court abused its discretion in reaching whatever
decision it made on the motion, whether or not that decision is the
one we might have made in the first instance.
Moreover, when evaluating a trial court’s ruling, we keep in mind
that an abuse of discretion is not merely an error in judgment.
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Rather, it involves bias, partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law. By contrast, a
proper exercise of discretion conforms to the law and is based on
the facts of record.
Commonwealth v. Arnold, 284 A.3d 1262, 1277 (Pa. Super. 2022),
quoting Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007)
(citations omitted).
Here, the trial court determined that the verdict was not against the
weight of the evidence because the jury simply believed the Commonwealth’s
witnesses over Appellant Wife’s testimony on the issues concerning the
Appellants’ residence at the Weible Drive home and the condition of that
home, and the resulting verdict did not “shock the conscience of the court.”
Trial Court Opinion, 7/1/22, 9 (Appellant Husband’s case). We ascertain no
abuse of discretion by the trial court in denying Appellant Husband’s weight-
of-the-evidence claim. The verdict was not shocking because Appellant Wife’s
testimony suggested that the landlord had essentially destroyed his own
property to get revenge on the Appellants because of a tenancy dispute.
Putting aside that that suggestion could be seen as far-fetched on its face,
Appellant Wife’s testimony was also predicated on a theory that the home was
in a “nice condition” in early May 2020, when the Appellants had supposedly
moved out, N.T. 8/17/21, 2.250, but that it had suddenly became deplorable
even though Appellant Wife testified that she and had her husband returned
to the property “every single day” to feed their animals at the home. Id. The
testimony of the state troopers and the photograph exhibits, on the other
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hand, suggested that the extremely poor conditions in the home developed
over spans of weeks, if not months. The Commonwealth’s evidence belied
Appellant Wife’s testimony about the state of the home, and obviously caused
the jury to wholly disbelieve her testimony. In these circumstances, we agree
with the trial court’s analysis that the jury’s verdict was not shocking, and we
fail to find any basis for determining that the trial court abused its discretion
by denying Appellant Husband’s weight claim.
Appellant Wife’s related claim that the evidence was contrary to the
weight or sufficiency of the evidence because of the inconsistency of the
verdicts for the Appellants also lacks merit. As our Supreme Court has noted,
“Consistency in verdicts is not required where there is evidence to support
each verdict.” Commonwealth v. Laird, 726 A.2d 346, 355 (Pa. 1999). As
our sufficiency review above held that the evidence established that both co-
defendant parents committed EWOC by permitting the deplorable conditions
in their home while their multiple children lived at that residence, the
inconsistency of the number of guilty verdicts for EWOC between the
Appellants is immaterial for purposes of our review. See Commonwealth v.
Kimbrough, 872 A.2d 1244, 1255 (Pa. Super. 2005) (en banc) (“It has long
been the rule, of course, in Pennsylvania and in the federal courts, that
consistency in a verdict in a criminal case is not necessary or required if there
is evidence to support each verdict.”).
“Inconsistent verdicts, while often perplexing, are not considered
mistakes and do not constitute a basis for reversal. Rather, the rationale for
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allowing inconsistent verdicts is that it is the jury’s sole prerogative to decide
on which counts to convict in order to provide a defendant with sufficient
punishment.” Commonwealth v. Thomas, 65 A.3d 939, 944 (Pa. Super.
2013) (citations omitted). Moreover, it is well-settled that “[a]n acquittal
cannot be interpreted as a specific finding in relation to some of the evidence.”
Id. (citation omitted). Applying these general principles to the instant case,
we cannot disregard the verdicts in this case merely because Appellant Wife
was found guilty of one EWOC count while her husband was found guilty of
two EWOC counts, where the evidence was effectively sufficient for EWOC
counts involving all five of their minor children. See Commonwealth v.
Campbell, 651 A.2d 1096, 1100-01 (Pa. 1994) (accepting inconsistent
verdicts with respect to co-defendants in a conspiracy case); see also
Commonwealth v. Muhammad, 289 A.3d 1078, 1091 (Pa. Super. 2023)
(“criminal defendants are already afforded protection against jury irrationality
or error by independent review by our Courts of the sufficiency of the
evidence”) (citation omitted).
In the last claim presented for our review, Appellant Husband alleges,
as follows, that the District Attorney for Somerset County – rather than the
Assistant District Attorney acting as the trial prosecutor – committed
misconduct that warranted the grant of a mistrial:
During the second day of the trial, Appellant encountered the
then-district attorney, Jeffrey Lynn Thomas, in the restroom of the
courthouse while the jury was recessed and prior to deliberations.
Appellant was approached by Mr. Thomas and was aggressively
confronted by him with provoking statements. Appellant also
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contends that Mr. Thomas had left his cell phone in the bathroom
stall and was filming him while Appellant was verbally practicing
his testimony. Appellant felt threatened and as though he was
denied a fair trial due to the egregious actions of the district
attorney.
Appellant Husband’s Brief at 3-4.
This prosecutorial misconduct claim was not addressed in any form
during the trial. We note from the trial court’s opinion and a sentencing
scheduling motion from the Commonwealth that the claim was first raised in
court by Appellant Husband’s counsel at an initial hearing date scheduled for
sentencing on October 28, 2021, at which time Appellant Husband failed to
appear in court. Trial Court’s Opinion, 7/1/22, 16 (Appellant Husband’s case);
Motion to Schedule Sentencing, 11/10/21, ¶¶ 3-6 (Appellant Husband’s case).
Sentencing was then continued in Appellant Husband’s absence and a bench
warrant was issued for him. Trial Court’s Opinion, 7/1/22, 16 (Appellant
Husband’s case); Motion to Schedule Sentencing, 11/10/21, ¶ 7 (Appellant
Husband’s case). The trial prosecutor later informed the court that the
Somerset Borough Police Department had engaged in an investigation on
October 5-6, 2021, with respect to the misconduct claim, and that
investigation was not going to result in further action by the police. Id. at ¶¶
10-12. The trial prosecutor asserted that she had no knowledge of Appellant
Husband’s allegations concerning the District Attorney or the existence of the
police investigation prior to October 28, 2021. Id. at ¶ 15.
The trial prosecutor notified the trial court that the misconduct
allegations raised by Appellant Husband were not reported to the police until
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October 5, 2021 (which was two weeks after the District Attorney had been
arrested and charged in connection with an unrelated case), and that it was
the Commonwealth’s position that Appellant Husband “intentionally
fabricated” his allegations about the District Attorney “to avoid sentencing”
and, even assuming arguendo that the allegations were true, they had “no
bearing on the underlying convictions” or the trial prosecution. Motion to
Schedule Sentencing, 11/10/21, ¶¶ 16-17 (Appellant Husband’s case).
At sentencing, Appellant Husband’s counsel addressed the prosecutorial
misconduct claim as follows:
Thank you Your Honor. Mr. Barkman does appear before Your
Honor for sentencing; and I’m sure the Court recalls that at the
time and place for his sentencing, original scheduling, we had
addressed the issue of some conduct of the former District
Attorney Thomas relating to this particular trial; and because Mr.
Barkman wasn’t present, I do just want to confirm on the record,
for Mr. Barkman’s benefit, that that issue was brought before the
Court; and subsequently, there have been some filings on it; but,
ultimately, it is my understanding at this point that despite that,
the Court is prepared to sentence Mr. Barkman today. But I did
tell him that I would raise this on the record so that he knew that
it had been previously raised by me when he was not present.
N.T. 12/2/21, 4-5 (Appellant Husband’s case).
While there no ruling made of record on the prosecutorial misconduct at
the sentencing hearing, the trial court explains in its opinion that the claim
should have been denied for lack of development by Appellant Husband:
Appellant[ Husband] simply asserts that, without argument or any
development, the former District Attorney’s conduct “caused him
to be intimidated.” [Rule 1925(b) Statement, 5/25/22, ¶ 4(l).]
Appellant[ Husband] has failed to set forth any evidence that his
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right to a fair trial, or any other constitutional right, was
compromised. Notably, Appellant[ Husband] has not alleged in
his Concise Statement that he was intimidated to such a degree
that it caused him to not testify. We fail to see how this alleged
misconduct might have otherwise affected Appellant[ Husband]’s
right to a fair trial. For the foregoing reasons, we suggest that
this Court did not err in sentencing Appellant[ Husband] in the
instant case.
Trial Court Opinion, 7/1/22, 18 (Appellant Husband’s case) (bold emphasis
omitted).
As an initial matter, Appellant Husband waived this claim by not raising
it before the trial court in a timely manner that would have allowed the court
to inquire into the basis for the claim and permit the court to take any remedial
action. Our Supreme Court has held that in order to preserve a claim of
prosecutorial misconduct for appellate review, a defendant must raise a
contemporaneous objection before the trial court, and then request either a
mistrial or curative instructions. See Commonwealth v. Powell, 956 A.2d
406, 423 (Pa. 2008) (holding that Powell waived a prosecutorial misconduct
claim concerning the Commonwealth’s closing argument by not making a
contemporaneous objection). Here, the claim was not raised until it was
addressed by trial counsel at the initial hearing scheduled for sentencing in
the absence of Appellant Husband. Accordingly, the claim is waived. See
Commonwealth v. Spotz, 18 A.3d 244, 277-78 (Pa. 2011) (holding that
Spotz waived a prosecutor misconduct claim concerning guilty phase closing
arguments by not making a contemporaneous objection). As the alleged
misconduct supposedly occurred in Appellant Husband’s presence, this is not
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a case where the prosecutorial misconduct at issue had only been discovered
after the fact, in which case it would be unreasonable to expect a
contemporaneous objection. See Pa.R.Crim.P. 605(B) (“When an event
prejudicial to the defendant occurs during trial only the defendant may move
for a mistrial; the motions shall be made when the event is disclosed.
Otherwise, the trial judge may declare a mistrial only for reasons of manifest
necessity.”) (emphasis added).
Even assuming that Appellant Husband did not waive this claim, the
meager development of the claim in the certified record does not permit us to
conduct meaningful review. We can infer from the limited argument in
Appellant Husband’s brief that he is suggesting that the alleged misconduct
improperly caused him to decline to testify, but Appellant Husband makes no
cogent arguments to that effect. He fails to cite any caselaw in support of his
claim and, in the absence of any fact finding as to the claim below, he does
not proffer adequate information concerning the allegations of misconduct that
would allow us to consider whether any violation of constitutional rights had
occurred in this case. While Appellant Husband asserts that the District
Attorney made “provoking statements” to him, Appellant Husband’s Brief at
4, nowhere in the record is there even a suggestion as to the content of the
statements that were supposedly made. Even presuming that the events
happened as Appellant Husband alleges that they occurred, Appellant
Husband also fails to address how any proposed testimony from him would
have differed from the testimony offered by his wife, and thus demonstrate
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that he was prejudiced by a supposed absence of his testimony. If Appellant
Husband’s prosecutorial misconduct claim was not already waived for lack of
timely preservation, it would also be waived for lack of development on
appeal. See Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super.
1998) (“We decline to become appellant’s counsel. When issues are not
properly raised and developed in briefs, when briefs are wholly inadequate to
present specific issues for review, a court will not consider the merits
thereof.”) (citations omitted); see also Commonwealth v. Einhorn, 911
A.2d 960, 970 (Pa. Super. 2006) (“An appellant brief must provide citations
to the record and to any relevant supporting authority … Failing to provide
factual background and citation to the record represent serious deviations
from the briefing requirements of the Rules of Appellate Procedure.”)
(citations and footnote omitted).
We hold that the Appellants’ claims concerning the sufficiency of the
evidence and the consistency of their verdicts are denied for lack of merit.
Appellant Wife waived her appellate challenge to the weight of the evidence.
To the extent that Appellant Husband joins his wife’s weight claim based on
his preserved post-sentence weight claim, that claim lacks merit. Appellant
Husband’s prosecutorial misconduct claim is waived for lack of timely
preservation and development.
Judgments of sentence affirmed.
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J-S36041-22
J-S36042-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2023
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