Com. v. Randolph-Ali, S. ( 2018 )

J-A19006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SAMIRA H. RANDOLPH-ALI :
:
Appellant : No. 183 MDA 2018
Appeal from the Judgment of Sentence Entered October 12, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003578-2016
BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 09, 2018
Appellant, Samira H. Randolph-Ali, appeals from the judgment of
sentence entered in the Dauphin County Court of Common Pleas, following
her jury trial conviction for obstruction in the investigation of a child abuse
case.1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no need to
restate them. Procedurally, we add that Appellant timely filed a notice of
appeal on January 23, 2018. The court ordered Appellant on January 24,
2018, to file a concise statement of errors complained of on appeal per
Pa.R.A.P. 1925(b); Appellant timely complied on February 13, 2018.
Appellant raises the following issue for our review:
____________________________________________
1 18 Pa.C.S.A. § 4958(b.1).
J-A19006-18
WAS NOT THE EVIDENCE INSUFFICIENT TO SUPPORT
[APPELLANT’S] CONVICTION FOR OBSTRUCTION OF A
CHILD ABUSE INVESTIGATION, 18 PA.C.S. § 4958(B.1)?
(Appellant’s Brief at 4).
Appellant argues the evidence considered in the trial court’s sufficiency
analysis should have been limited solely to the facts contained in the criminal
information. Appellant alleges that, at trial, the Commonwealth based the
obstruction charge on both (1) actions preceding June 4, 2016, which resulted
in her daughter’s recantation letter, and (2) the telephone conversation that
occurred at the end of June 2016. Appellant, however, maintains the criminal
information contained only facts relating to the events leading to the
recantation letter and not the later telephone conversation. Appellant
contends the Commonwealth made no request to amend the information to
include the telephone call and, in instructing the jury, the trial court described
the obstruction charge as it appeared in the criminal information only. Based
on evidence relating solely to the facts contained in the criminal information,
Appellant asserts the Commonwealth presented insufficient evidence to show
Appellant induced her daughter to send the recantation letter. Moreover, even
if the additional evidence relating to the telephone call is included, Appellant
submits the trial evidence is still insufficient to uphold the obstruction
conviction. Appellant concludes this Court should reverse her judgment of
sentence and discharge her from further prosecution. We disagree.
Pennsylvania Rule of Criminal Procedure 560 describes the content of a
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J-A19006-18
criminal information and requires “a plain and concise statement of the
essential elements of the offense substantially the same as or cognate to the
offense alleged in the complaint.” Pa.R.Crim.P. 560(B)(5) (emphasis added).
[Informations] must be read in a common sense manner
and are not to be construed in an overly technical sense.
The purpose of the [information] is to provide the accused
with sufficient notice to prepare a defense, and to [ensure]
that [s]he will not be tried twice for the same act.
Commonwealth v. Ohle, 503 Pa. 566, 588, 470 A.2d 61, 73 (1983) (internal
citations and quotation marks omitted). “A criminal information is not
constitutionally infirm if it notified the defendant of the crime with which [s]he
is charged.” Commonwealth v. Jones, 590 Pa. 202, 237, 912 A.2d 268,
289 (2006). Additionally, Rule 560(B)(5) “does not require that the crime
charged in the Information be identical to that charged in the Complaint, so
long as the charge is [cognate] to the one laid in the Complaint.” 2
Commonwealth v. Donaldson, 488 A.2d 639, 640 (Pa.Super. 1985).
“Variations between allegations and proof at trial are not fatal unless a
defendant could be misled at trial, prejudicially surprised in efforts to prepare
a defense, precluded from anticipating the prosecution’s proof, or otherwise
impaired with respect to a substantial right.” Commonwealth v. Kelly, 487
Pa. 174, 178, 409 A.2d 21, 23 (1979). Accord Ohle, supra at 589, 470 A.2d
____________________________________________
2 Pennsylvania Rules of Criminal Procedure were amended and Rule 225 was
renumbered as Rule 560 in March 2000. The language quoted remained
substantially the same.
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J-A19006-18
at 73; Commonwealth v. Zullinger, 676 A.2d 687, 689 (Pa.Super. 1996).
Importantly, “Issues not raised in the [trial] court are waived and cannot
be raised for the first time on appeal.” Pa.R.A.P. 302(a). “[I]ssues are
preserved when objections are made timely to the error or offense.”
Commonwealth v. Baumhammers, 599 Pa. 1, 23, 960 A.2d 59, 73 (2008),
cert. denied, 558 U.S. 821, 130 S. Ct. 104, 175 L. Ed. 2d 31 (2009). “The
purpose of contemporaneous objection requirements respecting trial-related
issues is to allow the court to take corrective measures and, thereby, to
conserve limited judicial resources.” Commonwealth v. Sanchez, 614 Pa.
1, 32, 36 A.3d 24, 42 (2011), cert. denied, 568 U.S. 833, 133 S. Ct. 122, 184
L. Ed. 2d 58 (2012). “[A] party may not remain silent and afterwards complain
of matters which, if erroneous, the court would have corrected.”
Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa.Super. 2008) (quoting
Commonwealth v. Clair, 458 Pa. 418, 423, 326 A.2d 272, 274 (1974)).
See, e.g., Commonwealth v. Adams, 39 A.3d 310, 319-20 (Pa.Super.
2012), affirmed, 628 Pa. 600, 104 A.3d 511 (2014) (reiterating: “[A]
defendant’s failure to object to allegedly improper testimony at the
appropriate stage…constitutes waiver” and “absence of a contemporaneous
objection below constituted a waiver of appellant’s claim respecting the
prosecutor’s closing argument”).
Instantly, the record makes clear Appellant did not object at trial either
to the admission of the additional facts she now challenges or to the
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J-A19006-18
prosecutor’s reference to those facts at closing. (See N.T., Trial, 9/11-12/17,
at 13-14, 34-35, 44-46, 73-74, 107-08, 117.) Therefore, Appellant waived
her “limited facts” issue for appellate review. See Pa.R.A.P. 302(a).
Moreover, Appellant’s claim merits no relief in any event. The well-
reasoned opinion of the Honorable Deborah E. Curcillo fully discusses and
properly disposes of the question presented. (See Post Sentence Motion
Order and Memorandum Opinion, filed January 10, 2018, at 5-8) (finding: trial
court can consider all evidence presented at trial in reviewing sufficiency of
evidence; evidence demonstrated Appellant wrongly communicated with
daughter and attempted to impede child abuse investigation; Appellant
admitted contact with daughter during investigation and daughter then wrote
letter recanting abuse; detective testified daughter later re-asserted abuse
allegation once she learned her siblings would not necessarily be placed in
foster care; detective testified Appellant directed daughter and grandmother
to write recantation letter; Appellant admitted telling grandmother that
Appellant was losing her home, kids, job, etc. as a result of abuse allegations;
Appellant’s statements to grandmother indicate attempt to get grandmother
and daughter to work against investigation; Commonwealth presented
sufficient evidence to sustain conviction). Accordingly, to the extent part of
Appellant’s sufficiency claim is properly before us, we affirm on the basis of
the court’s opinion.
Judgment of sentence affirmed.
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J-A19006-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:10/09/2018
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Circulated 09/11/2018 03:08 PM
COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
: DAUPHIN COUNTY, PENNSYLVANIA
: 183 MDA 2018
v. : 3578 CR 2016
· · ·---SA-MI-R-A-RAND9bPH-A-bl-- --- : CRIMINALAPPE-Ah-·-- ·----··-
TRIAL COURT STATEMENT IN LIEU OF OPINION
PURSUANT TO PA.R.A.P. 1925
AND NOW, this 6th day of March, 2016, having received the Notice of Appeal from our
order of January 10, 2018, and a Statement of Errors Complained of on Appeal, and having filed
a Memorandum Opinion on that same date, this Court incorporates by reference our
Memorandum Opinion, which details the facts in this matter, provides our reasons for
concluding that Appellant is not entitled to post-sentence relief, and is the basis of our January
l 0, 2018 final order denying Appellant's Post-Sentence Motion. Therefore, we will submit
nothing further regarding this matter unless directed by the Superior Court of Pennsylvania.
Respectfully submitted:
Deborah E. Curcillo, Judge
Distribution:
The Superior Court of Pennsylvania!.�-�
Hon. Deborah E. Curcillo
James Karl, Esq., Dauphin County Public Defender's Office
·-·. . ...
Ryan Lysaght, Esq., Dauphin County District Attorney's Office ..
••..._r,.;· •
c- ..
-··---� -�· ·•.
N
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COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS,
: DAUPHIN COUNTY, PENNSYLVANIA
v. : NO. 3578 CR 2016
SAMIRA RANDOLPH ALI : CRIMINAL MATTER
- ------··-------·-------·
POST SENTENCE MOTION ORDER AND MEMORANDUM OPINION
AND NOW, this 10th day of January, 2018, upon consideration of the Post Sentence
Motion filed by Samira Randolph Ali, (hereinafter "Defendant") it is HEREBY ORDERED that
the Motion is DENIED.
FINDINGS OF FACT
Defendant was charged with, inter alia, obstruction of a child abuse investigation on May
26, 2016. The criminal information was filed July 27, 2016. She proceeded to a jury trial on
September 12, 2017, where she was found guilty of obstruction. She was sentenced October 12,
2017, and a timely post sentence motion was filed. Briefs were ordered and timely filed.
On May 5, 2016, Scott Schaeffer, a patrolman with Steelton Police, was dispatched for a
runaway juvenile1• (Notes of Testimony, Jury Trial Sept 11-12, 201 r. p. 18-19). While en route
to the juvenile's home, he learned that she had arrived at Steelton Police Station. Officer
Schaeffer informed her mother, the defendant, that her child was safe at the police station. (N.T.
19-20). He then returned to the police station to interview the minor. The minor was crying and
very upset. She indicated that her mother beat her and she did not want to go home. (N .T. 20).
Following procedure when child abuse is alleged, Schaeffer called Detective Shaub. (N. T. 21 ).
1
As the victim was a minor at the time of the incident, we will use the initials "AR" when referring to the victim.
2
"N.T."
..Hereinafter
1
Detective Sergeant William Shaub has been with the Steelton Police Department for
about 20 years and a police officer for 29 years. (N.T. 63). His assignment at the time of this
incident was to investigate all child neglect, child abuse, child sex and unattended death cases.
(N.T. 64). He was ca1led in that night and spoke with A.R. and took her statement. (N.T. 66). He
recalled she was extremely upset and appeared to be injured around her left eye. (N.T. 66-67).
He took photos of her injuries. (N.T. 70). After a case review with Children & Youth, charges
were filed against Defendant on May 25 of that year. (N.T. 70).
At some point in early June he received a copy of a letter from A.R. recanting her story.
(N.T. 71- 72). He called A.R. and Anita Dean (A.R. 's grandmother and Defendant's mother) to
talk about it and explained that if it were true, A.R. could be facing charges. (N.T. 72). After he
told her that, A.R. indicated the statement she had previously given was the truth, but that she did
not want her siblings in foster care. (N.T. 73). He explained that foster care was a very last
resort. (N. T. 73 ). He then spoke with Ms. Dean who said that A.R. had called Defendant and that
she overheard part of the conversation where Defendant told A.R. that she was going to lose the
house, her job, everything and asked A.R. to write this Jetter. (N.T. 73). He then asked Ms. Dean
to document he conversation and send him an email. (N.T. 73).
Shaub denied telling A.R. or Ms. Dean that they should not talk to anyone besides him
during this call. He denied even knowing who Defendant's attorney was as they had not had a
preliminary hearing yet. (N.T. 74). Shaub recalJed that the phone conversation with Ms. Dean
and A.R. took place on or about June 20whi1e the letter was dated June 2. (N.T. 76). He believes
the email was sent June 28 or 29. (N.T. 76). Shaub recalled that A.R. did not tell him that
Defendant told her to write the letter. (N.T. 76). There is no indication in his report that he spoke
with A.R. or Ms. Dean on June 20, 2016. (N.T. 78).
2
A.R. testified that on the night in question, she and her mother engaged in a verbal
argument. (N.T. 25). She denied that her mother ever hit her, called her names, or was physically
abusive in any way. (N.T. 26). She did recall giving a statement to Steelton Police that evening.
(N.T. 28). A.R. admitted that she was upset with her mother and wanted to get her mother in
trouble with police. (N.T. 29). A.R. testified that at the time of the incident, her mother was
recovering from hip surgery and used a cane. (N.T. 36). Her mother was arrested later that
month, and on June 2, A.R. moved out of state to her grandmother's house. (N. T. 31 ).
Thereafter, on June 4, 2016, she wrote a letter to the Dauphin County District Attorney's
Office recanting her statement. (N.T. 31 ). A.R. testified that she gave the police a false statement
and wanted to rectify it. (N.T. 32). Her mother never spoke to her about the case, nor instructed
her to send the letter. Her grandmother told her to send it to the District Attorney's Office. (N.T.
32). A.R. had the letter notarized to make it look better at the suggestion of her grandmother.
(N.T. 33-34).
Ms. Dean also testified. She was aware that her daughter was being investigated for child
abuse when A.R. came to live with her because the Defendant was in contact with her to explain.
(N.T. 43 ). Ms. Dean explained that Defendant would call and talk to her and then talk to A.R.
who was excited to talk to her mother about the various things going on in her life. (N.T. 43).
Eventually, Ms. Dean discovered that Samira and A.R. were not supposed to be in contact so she
explained that to A.R. (N.T. 44).
Ms. Dean called Det. Shaub at some point in late June to ask him what her role was and
who she should talk to about the case. Per her testimony, he told her not to speak to defense
counsel and only to speak to him. (N.T. 44). At some point, she wrote Det. Shaub an email to
memorialize the conversation they had. It indicated that Defendant was telling her and A.R. to
3
call and tell the police and district attorney's office that the story was taken out of context. (N.T.
45-46).
Ms. Dean recalled the Jetter that A.R. sent and indicated that she read it after A.R.
composed it. (N.T. 46-47). Ms. Dean did not recalJ telling A.R. where to send the letter or
advising her on drafting the letter at all. (N.T. 47). She did not recall the date of when she called
Det. Shaub, but believes it was it was several weeks after A.R. moved in with her as they were
going to a bank to open an account for her. (N.T. 49).
Defendant, Samira Randolph-Ali, testified her own behalf. She explained that when her
children misbehave she puts then on punishment. This means they lose access to electronic
devise such as ce11 phones and Kindles. (N.T. 95). On the day in question, A.R was on
punishment. (N.T. 95). Defendant's middle daughter woke her to say that A.R. had taken some
devices back. (N.T. 96). Defendant checked and saw the devices were gone so she confronted
A.R. (N.T. 96).
A.R. returned the kindle but not her cell phone. Defendant knew that A.R. often kept her
cell phone in her brassiere so she reached out to take it. (N.T. 97). A.R. smacked her hand away.
(N.T. 96). Defendant toJd A.R. not to put her hands on her, and then reached again for the cell
phone; this time her attempt to get her phone caused A.R. 's necklace to break which upset A.R.
(N.T. 97). A.R. was hysterical and called Defendant names causing Defendant to attempt to
strike her, but A.R. blocked her and smacked her hand away. (N.T. 97). Defendant testified that
A.R. is much bigger than her and based on her own physical condition, there was no way she
could physically discipline her child. (N.T. 97-98). The conversation turned mean and A.R. said
she wished Defendant had died in a car accident, while Defendant said she wished she have
never had A.R. (N.T. 98). They kept yelling and then A.R. pushed Defendant out of the way and
4
left the house. (N.T. 99). Defendant yelled that if A.R. was not back home by 7:00 p.m. she
would call the police. (N.T. 99). A.R. did not return in a timely manner and Defendant did call
the police. (N.T. 99). Officer Schaeffer arrived IO to 15 minutes later and said that A.R. was at
the station. (N.T. 99).
----------------- ···-·-·······-· - .
Defendant admitted to two telephone calls while A.R. lived in North Carolina, despite the
fact that they were not supposed to have contact. (N. T. l 01 ). She testified that A.R. called her to
tell her what was going on in her life. (N.T. 101). Specifically, in the second call, A.R. wanted
her to know that she had gotten a cal1 back from her Hamilton audition and was thinking about
_moving home so that if she got the part, she could commute to New York easily. (N.T. 102).
At that point, Defendant said she had to explain to A.R. that since these child abuse
allegations were made, they could not live together and really they should not even be talking.
(N .T. I 02). A.R. grew upset and handed the phone to her grandmother. (N. T. 102). Defendant
told her mother about the conversation. She said she had lost her job. She said that the police did
not want to listen to A.R. when she sent the letter ten days after she was arrested. (N.T. l 02).
Defendant vehemently denies ever instructing A.R. to send a letter recanting anything. (N.T.
103).
CONCLUSIONS OF LAW
The defense argues that the evidence was insufficient to support a conviction for
obstruction of a child abuse investigation and that the verdict was against the weight of the
evidence.
Inasmuch as Defendant is making a weight of the evidence claim, she concedes the
existence of sufficient evidence to sustain the conviction. Com. v. Lewis, 911 A.2d 558 (Pa.
Super. 2006) (a motion for new trial on the grounds that the verdict was against the weight of the ·
5
evidence concedes that there is sufficient evidence to sustain the verdict). However, we find it
prudent to address the sufficiency of the evidence claim here.
A claim chal1enging the sufficiency of the evidence is a question oflaw. Com v. Widmer,
744 A.2d 745, 751 (Pa. 2000). "In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence,
when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient
to enable the fact finder to conclude that the Commonwealth established all the elements of the
offense beyond a reasonable doubt." Com v. Diamond, 632 Pa. 475, 486-487, 83 A.3d 119, 126
92013)(citations omitted). See also Com v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015).\ (Pa.
Super. 1982).
The Commonwealth may establish the requisite elements wholly by circumstantial
evidence. Com v. Fairley, 444 A.2d 748 (Pa.Super 1982). However, any verdict based wholly on
inference and suspicion must be overturned. Com v. Rambo, 412 A.2d 535 (Pa. 1985).
Obstruction of a child abuse investigation is defined at 18 Pa.C.S. § 4958. It reads, "a
person commits an offense if, with intent to prevent a public servant from investigating or
prosecuting a report of child abuse under 23 Pa.C.S. Ch. 63, the person by any scheme or device
or in any other manner obstructs, interferes with, impairs, impedes or perverts the investigation
or prosecution of child abuse."
First, the defense contends that the information only charged Defendant with obstruction
in regards to the action resulting is A.R. 's faxing a letter of recantation. There was no request to
amend the information and in the jury charge, this Court only referenced the letter as it was in
the information. However, in closing, the Commonwealth argued that the obstruction charge was
based on actions preceding the June 4, 2016, letter and the telephone call that occurred at the end
6
of June 2016. However, inasmuch as the information and jury charge relate solely to action that
preceded the June 4 letter, the sufficiency analysis must be limited to the description of the
alleged crime as set forth in the information and the jury instructions.
We disagree that the analysis must be limited to events prior to June 4, 2016, and instead
review all of the evidence presented at trial. In reviewing a sufficiency claim this court may not
weigh the evidence and substitute our judgment for the fact finder. Com v. Lewis, 911 A.2d 558
(Pa.Super 2006). 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 oflaw no probability of fact may
be drawn from the combined circumstances. Id.
In reviewing all of the evidence, it is clear that Defendant was in communication with her
child and was attempting to impede the investigation. Defendant admitted to being in contact
with her daughter during the time of the investigation and her daughter wrote a letter recanting
her story during that time. Viewing the evidence in the light most favorable to the verdict winner,
it is clear that Defendant's communication with her daughter affected AR. 's decision to
cooperate. Further, during the phone call when she explained to AR. why A.R. could not move
home would naturally cause a child to change their story. Det. Shaub recalled A.R. changing her
story and then reverting back to the truth once he explained that her siblings were not necessarily
going into foster care. He recalls being told that Defendant told her mother and daughter to write
the letter. Defendant herself testified that she told her mother everything that was happening to
her (losing her home, job, kids) since the allegations were made. Under these circumstances
where Defendant's mother was providing a home to her child, Defendant's statements to her
mother indicate an attempt to get her mother and daughter to work against the investigation.
7
..
Defendant's second claim is that the verdict was against the weight of the evidence. A
verdict is said to be contrary to the evidence such that it shocks one's sense ofjustice, for
purposes of determining whether to grant a new trial, when the figure of Justice totters on her
pedestal or when a verdict, --·--
at the time of its rendition,
-- -
causes the trial judge to lose his breath,
--······ ·--·····-· .
temporarily, and causes him to almost fall from the bench. Com. v. Cruz, 919 A.2d 279 (Pa.
Super. 2007).
The jury's verdict in no way caused us to lose our breath or feel that Justice had tottered
on her pedestal. They jury weighed the credibility of the witnesses, viewed all of the evidence
presented at trial and rendered its verdict accordingly.
The defendant is advised that:
1. You have the right to file an appeal within thirty (30) days of the entry of this Order;
2. You have the right to the assistance of counsel in the preparation of your appeal;
3. You have the right, if you are indigent, to appeal in forma pauperis and to proceed
with assigned counsel as provided in Pa.R.Crim.P. 521(B).
You have the right, if you are indigent, to appeal in fonna pauperis and to procee�
with assigned counsel as provided in Pa.R.Crim.P. 122; and, _... _.
:';("
4. You have a qualified right to bail under Pa.R.Crim.P. 521(B).
',.
BY THE COURT: co
w
�f-�4
DeborahE.Curcillo, J.
Distribution:
Hon. Deborah E. Curcillo
Ry§ll--bysaght, Esq., Dauphin County District Attorney's Office
'.Timies Karl, Esq., Dauphin County Public Defender's Office
8