Com. v. Bacorn, P.

J-S20043-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PAUL BACORN :
:
Appellant : No. 821 WDA 2021
Appeal from the Judgment of Sentence Entered July 6, 2021
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0002189-2019
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: JANUARY 27, 2023
Appellant, Paul Bacorn, appeals from the judgment of sentence entered
in the Mercer County Court of Common Pleas, following his jury trial
convictions for first-degree murder, conspiracy to commit murder, aggravated
assault, conspiracy to commit aggravated assault, endangering the welfare of
a child (“EWOC”), conspiracy to commit EWOC, and tampering with or
fabricating physical evidence.1 We affirm.
In its opinion, the trial court accurately set forth the relevant facts and
procedural history of this case as follows:
On the morning of October 24, 2019 Mercer Pennsylvania
State Police responded to a medical call for an unresponsive
14-year-old male. A.J.G. Jr. (“victim”) was found lying on
a tarp on the floor and determined to be deceased by EMTs.
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1 18 Pa.C.S.A. §§ 2502(a); 903; 2702(a)(1); 903; 4304; 903; and 4910,
respectively.
J-S20043-22
The victim had dirty, wet hair; racoon eye bruising; sunken
cheeks; was emaciated; and extensive bruising on the
exposed part of his body. According to the autopsy report,
the victim died as a result of “hypovolemic shock secondary
to multi-focal severe soft tissue hemorrhage which
developed as a consequence of blunt force trauma, in
concert with severe malnutrition, complicated by peri-
mortem aspiration.” Both A.J.G. Sr. (“Co-Defendant”) and
Appellant were interviewed by Mercer Pennsylvania State
Police Trooper Joseph Snyder.
During Co-Defendant’s interview, he stated he had hosed
the victim off as punishment before putting the victim in a
“timeout” consisting of the victim standing in a corner with
his arms above his head. [Co-defendant] further stated the
victim had hit his head off a wall and outside off a cinder
block. When asked about Appellant’s involvement, he
disclosed that on numerous occasions Appellant had
witnessed the various extreme forms of punishment inflicted
upon the victim, including those punishments inflicted on
October 24, 2019. According to Co-Defendant, at no point
did Appellant render any aid to the victim, even as the victim
lay dying on October 24, 2019. Appellant was stated to
have punished the victim as well, primarily by withholding
meals from the victim.
During Appellant’s interview, Appellant disclosed that he
had known the Co-Defendant’s family for many years,
describing himself as a caretaker for the victim and his
sister. His primary duties in this role were cooking for Co-
Defendant’s family and babysitting the victim and his sister.
Not only did Appellant indicate awareness of the various
extreme forms of punishment Co-Defendant inflicted on the
victim, Appellant stated he would also punish the victim by
depriving the victim of food and making the victim stand
against the wall with his arms up for several hours.
Appellant was also aware of the victim’s unhealthy decrease
in weight yet stated that the victim would be deprived of
food for a period of up to three days at a time with Appellant
neither stopping Co-Defendant from inflicting this form of
punishment nor providing the victim with nourishment
despite being the cook [for] Co-Defendant’s family.
Appellant’s jury trial commenced on May 11, 2021 and
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ended May 14, 2021. After being found guilty on all counts,
Appellant filed a post-verdict motion which was denied on
May 25, 2021. Appellant was sentenced on July 6, 2021 [to
life imprisonment for the murder conviction, and lesser
sentences for some of the other crimes]. Appellant [timely]
filed his Notice of Appeal of the sentence Order on July 13,
2021 and on August 11, 2021 filed [a] timely Statement of
Errors Complained of on Appeal.
(Trial Court Opinion, filed 12/8/21, at 3-5) (internal citations omitted).
Appellant raises the following twelve issues for our review:
1. Whether the court erred as a matter of law or abused its
discretion, when dismissing [Appellant’s] petition for habeas
corpus on the count of murder in the first degree when the
Commonwealth did not meet a prima facie case for murder
in the first degree.
2. Whether the court erred as a matter of law or abused its
discretion, when dismissing [Appellant’s] petition for habeas
corpus on the count of conspiracy to commit murder in the
first degree when the Commonwealth did not meet a prima
facie case for conspiracy to commit murder in the first
degree.
3. Whether the court erred as a matter of law or abused its
discretion, when dismissing [Appellant’s] petition for habeas
corpus on the count of aggravated assault when the
Commonwealth did not meet a prima facie case for
aggravated assault.
4. Whether the court erred as a matter of law or abused its
discretion, when dismissing [Appellant’s] petition for habeas
corpus on the count of conspiracy to commit aggravated
assault when the Commonwealth did not meet a prima facie
case for conspiracy to commit aggravated assault.
5. Whether the conviction of [Appellant] to murder in the
first degree is in error since there was insufficient evidence
to convict [Appellant] of murder in the first degree.
6. Whether the conviction of [Appellant] to conspiracy to
commit murder in the first degree is in error since there was
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insufficient evidence to convict [Appellant] of conspiracy to
commit murder in the first degree.
7. Whether the conviction of [Appellant] to aggravated
assault is in error since there was insufficient evidence to
convict [Appellant] of aggravated assault.
8. Whether the conviction of [Appellant] to conspiracy to
commit aggravated assault is in error since there was
insufficient evidence to convict [Appellant] of conspiracy to
commit aggravated assault.
9. Whether the trial court erred as a matter of law or abused
its discretion, when determining that the defense expert’s
testimony on the reactions and actions of an abused child
was not relevant, which prevented any counter to the
Commonwealth’s expert who testified to the same.
10. Whether the trial court erred as a matter of law or
abused its discretion, when denying [Appellant’s] motion for
mistrial after a police officer testified on the
Commonwealth’s behalf that, “The clothes were obtained
from the prison,” which was in reference to a green stocking
hat worn by [Appellant] that the jury would see in later
video clips, and that this highly prejudiced the jury against
[Appellant] since they then knew that [Appellant] was
incarcerated and when this was brought up the Honorable
Judge Yeatts said, “We’re talking about Murder in the First
Degree, so I’m sure that the jury already thinks he’s in jail.
It's harmless,” even further while having this discussion the
District Attorney accidentally had his microphone on for the
entire courtroom to hear this objection.
11. Whether the court erred as a matter of law or abused
its discretion, when the court failed to remedy the fact that,
during Commonwealth Witness Adam Peth’s testimony,
neither the witnesses nor the jury’s screens were working
to view digital photographs.
12. Whether the court erred as a matter of law or abused
its discretion, when the trial court read the jury instruction
of duty of care before the charges of aggravated assault,
conspiracy to commit aggravated assault, murder in the first
degree and conspiracy to commit murder in the first degree
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even though there is no element of duty of care to these
offenses.
(Appellant’s Brief at 8-11).
As a preliminary matter, we emphasize that “where an appellate brief
fails to provide any discussion of a claim with citation to relevant authority or
fails to develop the issue in any other meaningful fashion capable of review,
that claim is waived.” Commonwealth v. Bradley, 232 A.3d 747, 756
(Pa.Super. 2020) (internal citation omitted). Here, Appellant cites no law
whatsoever in support of his ninth and eleventh issues on appeal. (See
Appellant’s Brief at 69-70, 72). Thus, we will not reach the merits of these
claims and consider them waived on appeal. See Bradley, supra.
With respect to Appellant’s issues five, six, seven, eight, ten, and
twelve, after a thorough review of the record, the briefs of the parties, and
the applicable law, we agree with the well-reasoned analysis set forth in the
trial court’s opinion. Specifically, concerning Appellant’s issues five through
eight, which challenge the sufficiency of the evidence to sustain his convictions
for murder, aggravated assault, and conspiracy to commit murder and
aggravated assault, the court evaluated those claims as follows. The
Commonwealth presented evidence that there was no medical explanation for
the victim’s severe malnourishment other than food restriction. The victim’s
body mass index manifested in a loss of underlying soft tissue, muscle, and
fat beneath the skin to the point of bone protrusion, which would not be seen
in individuals with a proper food intake. Appellant acknowledged his role as
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the primary cook for Co-Defendant’s family and that he and Co-Defendant
continually deprived the victim of food. The autopsy report revealed the cause
of death as blunt force trauma in conjunction with severe malnutrition.
Appellant failed to render aid to the victim, even when he was lying on the
floor in obvious discomfort on the day of his death. Appellant also told the
neighbor that the dog would eat before the victim would eat. On this record,
the Commonwealth presented sufficient evidence of Appellant’s deliberate
treatment of the victim to establish the requisite specific intent to kill to
sustain Appellant’s first-degree murder conviction.
Regarding conspiracy to commit murder, the trial court noted that
although Appellant and Co-Defendant’s family resided in different trailers on
the same property, Appellant had access to and casually moved about Co-
Defendant’s home.2 Thus, the evidence refuted Appellant’s attempt to
minimize his interactions inside Co-Defendant’s home. Further, Appellant
used the word “we” when discussing how long he and Co-Defendant would
deprive the victim of food. Appellant made other statements indicating he
knew that he could face consequences for mistreating the victim. In sum, the
evidence showed Appellant was an active participant with Co-Defendant in
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2 Appellant’s trailer did not have electric or running water, so Appellant and
Co-Defendant ran an extension cord from Co-Defendant’s trailer to Appellant’s
trailer. Appellant would prepare meals for Co-Defendant and Co-Defendant’s
children on the propane stove in Appellant’s trailer and then take the food to
Co-Defendant’s trailer to eat. Appellant also used the restrooms and running
water from Co-Defendant’s trailer. (See N.T. Trial, 5/12/21, at 83-84).
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their plan to withhold food from the victim as a form of punishment.
With respect to aggravated assault and conspiracy to commit same, the
evidence showed that Appellant had boasted about punching the victim in
addition to Appellant’s statements about depriving the victim of food.
Although Appellant acknowledged that the victim was severely underweight,
Appellant still withheld food from the victim for up to three days at a time. To
prevent the victim from stealing food, Appellant and the Co-Defendant kept a
lock on the refrigerator and hid the key from the victim. This evidence
established that Appellant and Co-Defendant caused serious bodily injury to
the victim, resulting in the victim’s death by starvation, and that Appellant did
so intentionally, knowingly, or recklessly, manifesting extreme indifference to
the value of human life. (See Trial Court Opinion at 11-19).3
Regarding Appellant’s tenth issue challenging the court’s denial of his
motion for a mistrial after a Commonwealth witness testified that a stocking
hat worn by Appellant (which the jury would see him wearing in later videos)
was obtained from the prison, the court noted that Appellant did not
immediately move for a mistrial based on the allegedly prejudicial comment.
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3 Based on our disposition of Appellant’s issues five through eight challenging
the sufficiency of the evidence to sustain Appellant’s convictions, we need not
address Appellant’s issues one through four challenging the sufficiency of the
evidence introduced at the preliminary hearing. See Commonwealth v.
Troop, 571 A.2d 1084 (Pa.Super. 1990), appeal denied, 526 Pa. 634, 584
A.2d 317 (1990) (explaining that failure to establish prima facie case at
preliminary hearing is immaterial where Commonwealth met its burden at trial
by proving offense beyond reasonable doubt).
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Thus, Appellant’s claim is arguably waived. Moreover, the court explained
that “[e]very unwise or irrelevant remark made in course of trial by a witness
does not compel a new criminal trial.” (Id. at 20). Here, the witness’s passing
improper remark would not have warranted a new trial even if the claim was
properly preserved. Further, the court issued a cautionary instruction to the
jurors to disregard any portion of the discussion that occurred while the
microphones were still turned on. (Id. at 20-22).
With respect to Appellant’s final issue challenging the court’s jury
instructions, the trial court explained that when “a person is placed in control
and supervision of a child, that person has assumed such a status relationship
to the child so as to impose a duty to act.” (Id. at 24) (citing Commonwealth
v. Kellam, 719 A.2d 792 (Pa.Super. 1998), appeal denied, 559 Pa. 714, 740
A.2d 1145 (1999)). Appellant admitted that he was in the role of a caretaker
to the victim as the victim’s babysitter and the primary cook for the victim’s
family, cooking meals for the family 90% of the time. Thus, the court’s jury
instruction concerning a “status relationship” and “duty to act” was proper.
(Id. at 23-25).4
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4 We note that the court gave the challenged charge as a general charge about
criminal liability and the duty to act where one stands in a certain status
relationship to another (see 18 Pa.C.S.A. § 301, requirement of voluntary
act), prior to explaining the elements for each of the specific crimes charged.
Contrary to Appellant’s assertions, the court did not insert a duty element into
the statutory language for first-degree murder, conspiracy, or aggravated
assault. (See N.T. Trial, 5/14/21, at 42-61). Further, we emphasize that “a
(Footnote Continued Next Page)
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Therefore, Appellant’s issues one through four merit no relief based on
our disposition of Appellant’s issues five through eight. We affirm Appellant’s
issues five through eight, ten, and twelve based on the sound analysis set
forth in the trial court’s opinion. Appellant’s ninth and eleventh issues are
waived. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2023
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jury charge must be read as a whole to determine if it is fair and complete”
and that “an imperfect jury instruction does not trigger automatic reversal, so
long as the balance of the instructions, taken as a whole, fairly and accurately
convey the essential meaning.” Commonwealth v. Drummond, 285 A.3d
625, 632-33 (Pa.Super. 2022) (internal citations omitted). Our review of the
jury instructions, read as a whole, confirm the court accurately conveyed the
law relevant to the charges at issue.
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Circulated 01/13/2023 11:53 AM