Com. v. Tedesco, T.

J-A30034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TINA TEDESCO
Appellant No. 1053 EDA 2016
Appeal from the Judgment of Sentence entered October 26, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-CR-0002229-2013
BEFORE: BOWES, OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 20, 2017
Appellant, Tina Tedesco, appeals from the judgment of sentence
imposed on October 26, 2015 in the Court of Common Pleas of Monroe
County following her convictions of third degree murder, neglect of care-
dependent person, theft by unlawful taking, theft by failing to make required
disposition of funds received, and tampering with/fabricating physical
evidence.1 With the exception of tampering with physical evidence,
Appellant also was convicted of conspiracy to commit each of the
enumerated crimes.2 The trial court sentenced Appellant to an aggregate
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1
18 Pa.C.S.A. §§ 2502(c), 2713(a)(1), 3921(a), 3927(a), and 4910(1).
2
18 Pa.C.S.A. § 903.
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term of incarceration of not less than 183 (15.25 years) months and not
more than 366 months (30.5 years). Appellant filed post-sentence motions
that were denied by order of March 3, 2016. This timely appeal followed. 3
Both Appellant and the trial court complied with Pa.R.A.P. 1925. Following
review, we affirm.
The trial court issued findings of fact in an opinion accompanying its
order denying Appellant’s omnibus pre-trial motion. Trial Court Pre-Trial
Opinion (“Pre-Trial Opinion”), 6/20/14, at 1-7. The trial court also
thoroughly summarized the evidence presented at trial in its opinion
disposing of Appellant’s post-sentence motion. Trial Court Post-Sentence
Opinion (“Post-Sentence Opinion”), 3/3/16, at 1-11. We hereby adopt the
findings of fact and summary of trial evidence as our own and incorporate
them herein by reference.
Briefly, Appellant and her husband had a relationship with their victim,
Barbara Rabins, for approximately twelve years preceding Ms. Rabins’
August 18, 2011 death at the age of 70. Ms. Rabins was a mentally and
physically disabled individual who was estranged from her out-of-state
family and whose father established a trust fund for her before his death.
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3
Appellant was tried, convicted, and sentenced with her husband, John
Tedesco. Although their cases were joined for trial, they were convicted of
the same crimes, and they received identical sentences, their appeals have
not been consolidated. Mr. Tedesco’s appeal is docketed at No. 787 EDA
2016.
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Appellant and her husband received $2,000 per month from the trust for
rent and incidental expenses as well as money from the trust to pay for their
utility bills. In addition, Appellant, as payee, received Ms. Rabins’ $1,300
monthly social security checks. Also, Appellant and her husband were
designated beneficiaries of $100,000 life insurance policy insuring Ms.
Rabins and identifying her as their aunt.
In 2010, Ms. Rabins suffered a stroke and was admitted to a
rehabilitation facility. The Tedescos insisted that she be released to their
care shortly thereafter and Ms. Rabins was discharged against medical
advice. At the time of her discharge on July 14, 2010, Ms. Rabins weighed
219 pounds. At the time of her August 2011 death, which was caused by
“hypernatremic dehydration with aspiration of food bolus,” i.e., dehydration
with high sodium levels and choking (on a piece of cheese), Ms. Rabins
weighed 116 pounds. An autopsy revealed that, at the time of her death,
Ms. Rabins was wearing an adult disposable diaper that was wet with urine,
feces and blood. She suffered from pressure ulcers on her chest, thighs,
legs, feet, right elbow and forearm, back, lower back, buttocks and hand.
Photographs taken at the autopsy showed that her arms and hands were
dirty and covered in feces, with feces under her overgrown fingernails that
were an inch to an inch and a half long on one hand. Ultimately, the doctor
who conducted the autopsy announced that the manner of death was
neglect of a care dependent person, fitting the medical definition of
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homicide. As a result, the Pennsylvania State Police initiated an
investigation into her death, including a search of the Tedescos’ home.
Appellant and her husband both voluntarily gave statements to the police.
The Tedescos contended that they cared for Ms. Rabins in their home
but evidence suggested that she was actually living in an apartment with a
roommate, Tom Miller, who was hospitalized in a V.A. hospital beginning in
March of 2011 and beyond Ms. Rabins’ death. A search of the apartment
revealed an apartment in a filthy condition that contained wheelchairs,
walkers, and a blanket and couch that were soiled.
The Tedescos were arrested in July 2013 and charged with the crimes
of which they were convicted. In this appeal from the judgment of sentence
entered by the trial court, Appellant asks us to consider eleven issues, all but
one of which were preserved in her Rule 1925(b) statement.
Appellant’s issues, which we have reordered for ease of discussion, are
as follows:
I. Whether the trial court erred in admitting the grand jury
testimony of [John Tedesco] against [Appellant] at trial in
violation of Bruton?[4]
II. Whether the trial court commited (sic) error by failing to
dismiss due to prosecutorial delay?
III. Whether the trial court committed error by denying
[Appellant’s] motion to sever her trial from her husband
John Tedesco’s trial?
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4
Bruton v. United States, 391 U.S. 123 (1968).
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IV. Whether the trial court erred in failing to suppress the
statements made by [Appellant] to the police where the
interrogation lasted several hours and [Appellant] was
never advised of her Miranda rights?
V. Whether the trial court erred in allowing Nurse Blanchard-
Doran to testify as an expert, over the objection of counsel
for [Appellant], where the Commonwealth failed to provide
notice to the defense of this intended use of the witness,
no report was prepared and her testimony was not able to
be viewed by defense expert (sic)?
VI. Whether the trial court erred in allowing the witness Jillian
Viscardi to testify without provideing (sic) any notice to the
defense that she was a witness or that the attorney for the
Commonwealth himself interviewed her so no written
statement existed?
VII. Whether the trial court erred in allowing the cumulative
testimony of Corporal [Gross] regarding the condition of
the victim’s body?
VIII. Whether the trial court erred in allowing the admission of
documents and items into evidence over the objection of
counsel for the defense, that had not been provided in
discovery in violation of Pa.R.Cr.P. 573?
IX. Whether the trial court erred in failing to grant
[Appellant’s] motion for change of venue due to the
overwelming (sic) amount of negative pre-trial publicity?
X. Whether the trial court erred and abused its discretion in
sentencing [Appellant] in the top end of the standard
range of the sentencing guidelines, failing to consider the
numerous mititgating (sic) factors cited by the defense at
the sentencing hearing?
XI. Whether the trial court erred in failing to grant
[Appellant’s] motion for judgment of acquittal on the
tampering with evidence charge as there was insufficient
evidence to convict presented at trial to convict (sic)?
Appellant’s Brief at 8-10.
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In her first issue, Appellant asks us to find trial court error for
admitting the grand jury testimony of her husband and co-defendant, John
Tedesco, in violation of Bruton. However, Appellant did not preserve this
issue in her Rule 1925(b) statement. “Any issues not raised in a Pa.R.A.P.
1925(b) statement will be deemed waived.” Commonwealth v. Hill, 16
A.3d 484, 494 (Pa. 2011) (quoting Commonwealth v. Lord, 719 A.2d 306,
309 (Pa. 1998)).5
In her second issue, Appellant argues that the trial court erred by not
dismissing the case due to prosecutorial delay. Again, Ms. Rabins died in
August 2011. Appellant and her husband were charged with the murder of
Ms. Rabins in July 2013.
In Commonwealth v. Wright, 865 A.2d 894, 901 (Pa. Super. 2004),
this Court determined that:
[T]he standards set out by the Supreme Court in
Commonwealth v. Snyder, 552 Pa. 44, 713 A.2d 596 (1998),
and the subsequent application of those standards in the en banc
decision of this Court in Commonwealth v. Snyder, 761 A.2d
584 (Pa. Super. 2000) (en banc), appeal denied, 572 Pa. 703,
813 A.2d 841 (2002), are the touchstones upon which we must
analyze the claim of appellant.
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5
Even if not waived, Appellant would not prevail on her Bruton claim. As
the trial court explained in addressing the issue, which was raised in
Appellant’s post-sentence motion, a reference to Appellant in the testimony
was appropriately changed to “the other person” on one occasion, avoiding
any Bruton violation. Trial Court Opinion, 3/3/16, at 25. A later reference
to Appellant was not redacted but no objection was lodged and her
husband’s response did not implicate Appellant but rather implicated himself
as the one who cared for Ms. Rabins.
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Id. at 901. We explained:
The Supreme Court in Snyder held that pre-arrest delay
constitutes a due process violation where there has occurred
“actual prejudice to the defendant” and there existed “no proper
reasons for postponing the defendant's arrest.”
Commonwealth v. Snyder, supra, 552 Pa. at 62, 713 A.2d at
605. This Court, thereafter, stated that “even in the face of
prejudice, delay is excusable if it is a derivation of reasonable
investigation.” Commonwealth v. Snyder, supra, 761 A.2d at
587 (emphasis supplied), citing Commonwealth v. Sneed, 514
Pa. 597, 526 A.2d 749 (1987). Thus, it is clear that any inquiry
into pre-arrest delay must be directed to both the existence of
prejudice to the defendant and to the cause of the delay.
Id. (footnote omitted). Further,
Taking our direction from the procedure described in Snyder, we
deem it appropriate that in extended pre-arrest delay cases
there should be a shifting burden, with the initial burden upon
the accused to establish that the pre-arrest delay caused actual
prejudice, and the subsequent burden upon the Commonwealth
to provide a reasonable basis for the extended delay in
prosecuting the crime.
Id. at 902.
As the trial court noted, Appellant does not suggest that the statute of
limitations had expired for any of the crimes with which she was charged.
Pre-Trial Opinion, 6/20/14, at 8. Instead, Appellant argues that she suffered
prejudice as a result of the pre-arrest delay because two potential witnesses,
Tom Miller and Ronnie Mendel, were not available to testify. However, as
the trial court recognized, Mr. Miller was already in the V.A. Hospital at the
time of Ms. Rabins’ death and could not recall his contacts with Ms. Rabins or
Mr. Tedesco at that time. Id. at 12. Further, Ms. Mendel, who was Ms.
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Rabins’ sister, was estranged from her sister and, as the trial court noted, it
was not clear how her testimony could have benefitted the defense. Id.
As the Commonwealth observes, Ms. Mendel passed away before trial
but her husband was available to testify and did testify concerning Ms.
Rabins’ estrangement from her family. Commonwealth Brief at 21.
“Therefore, even if the absence of Ronnie [Mendel] could conceivably be
considered as prejudicial to the defense, the presence, availability and
testimony of [her husband] adequately covered that issue as demonstrated
by the transcript.” Id.
We agree with the trial court’s conclusion that Appellant did not suffer
any prejudice as a result of any pre-arrest delay.6 Appellant is not entitled
to relief on this issue.
In her third issue, Appellant contends the trial court erred by denying
her request to sever her trial from that of her husband. Appellant
acknowledges that “[t]he decision to grant or deny a severance rests in the
sound discretion of the trial court.” Appellant’s Brief at 23. However, she
argues that separate trials should have been granted in accordance with
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6
Even if Appellant successfully carried her burden to show prejudice, the
Commonwealth provided a reasonable basis for the delay. As the trial court
explained, “[T]he Commonwealth had a reasonable basis in continuing to
investigate the circumstances of Barbara Rabins’ death and that part of the
delay after the gathering of Barbara Rabins’ medical records was caused by
the use of the grand jury to pursue the investigation.” Pre-Trial Opinion,
6/20/14, at 12.
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Pa.R.Crim.P. 583, which provides that the court may order separate trials if
it appears that any party may be prejudiced by the defendants being tried
together. She suggests that prejudice existed here in light of the fact she
and her co-defendant were also husband and wife. She argues that Bruton
addresses the issue of one defendant’s statements implicating a co-
defendant. She also raises the issue of spousal immunity, contending that
testimony of either co-defendant is subject to spousal immunity and is
inadmissible against the other spouse.
We disagree. First, regarding Bruton, there were no statements by
John Tedesco that implicated Appellant. See n. 5. As to spousal immunity,
as the trial court recognized, 42 Pa.C.S.A. § 5913 provides for spousal
immunity in a criminal proceeding but with certain exceptions, one of which
is a criminal proceeding that includes a murder charge. 42 Pa.C.S.A.
§ 5913(4). Appellant has not demonstrated any prejudice resulting from the
trial court’s denial of her motion to sever, and spousal immunity does apply
to murder trials. Moreover, as the Commonwealth notes, joint trials are
appropriate when the defendants face conspiracy charges as they did here,
and when the charges demonstrate a logical connection between the
defendants and the crimes charged. Commonwealth Brief at 29 (citing
Commonwealth v. Paolello, 665 A.2d 439 (Pa. 1995). Finding no abuse
of discretion on the part of the trial court for denying the severance request,
we conclude that Appellant’s third issue fails for lack of merit.
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In her fourth issue, Appellant asserts trial court error for denying her
motion to suppress the statements she gave to police because the
interrogation lasted several hours, she was in custody at the state police
barracks, and she was not advised of her Miranda rights. The trial court
rejected Appellant’s characterization of the circumstances surrounding her
statements and concluded Miranda rights were not required.
Our standard of review of “the denial of a suppression motion is
limited to determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn from those
facts are correct.” Commonwealth v. (Patrick Scott) Jones, 121 A.3d
524, 526 (Pa. Super. 2015) (quoting Commonwealth v. (Curtis) Jones,
988 A.2d 649, 654 (Pa. 2010)). Where the suppression court’s findings are
supported by the record, we are bound by those findings and may reverse
only if the court’s legal conclusions are erroneous. Id.
Appellant was questioned three times. The first occasion was during
the execution of the search warrant of the Tedescos’ home. Corporal
William Gross of the Pennsylvania State Police “escorted [Appellant and her
daughter] to the kitchen area and [Appellant] and her daughter and
[Corporal Gross] remained in the kitchen for the entire time the search
warrant was being conducted.” Pre-Trial Opinion, 6/20/14, at 16 (quoting
notes of testimony of the suppression hearing). During the search, the
Corporal explained to Appellant that the purpose of the search was to
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investigate questions raised by the coroner about Ms. Rabins’ death and he
asked Appellant about her relationship with Ms. Rabins. Id.
The trial court determined that Appellant was not subjected to a
custodial investigation necessitating administration of Miranda rights.
“Specifically excluded from custodial interrogation (in the Miranda decision)
was ‘[g]eneral on-the-scene questioning as to facts surrounding a crime or
other general questioning of citizens in the fact-finding process . . . . ’” Id.
(quoting Miranda v. Arizona, 384 U.S. 436, 477 (1966)). Because the
Corporal’s questions “appear to be the general fact-gathering questioning
excluded from the Miranda holding[,] . . . there was no custodial
interrogation in the house of the kind addressed in Miranda.” Id. at 17.
In addition to the questioning in her kitchen, Appellant also was
questioned twice at the police barracks. She and her husband voluntarily
arrived at the barracks and signed in as visitors in response to a state police
request that they come to answer questions. Each was interviewed by two
state troopers in separate audiotaped sessions that, for Appellant, lasted
approximately 90 minutes. During the session, she voiced on various
occasions her understanding that she was not under arrest and was free to
leave at any time. Although she was questioned in a closed room, the door
was not locked and she was not restrained.
At the conclusion of the interview, Appellant went to the parking lot to
wait for her husband. One of the troopers later came out to the parking lot
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and asked her to return to the barracks to answer additional questions
prompted by responses her husband gave during his interview. Appellant
agreed and returned to the barracks for an additional interview that lasted
approximately ten minutes. She again acknowledged her understanding that
she was free to leave during the questioning.
The trial court, after reviewing the audiotapes of the two interviews,
concluded that Appellant was subject to interrogation but it was not a
custodial interrogation requiring the administration of Miranda warnings.
Pre-Trial Opinion, 6/20/14, at 17-18. As the trial court recognized, “The test
for determining whether a suspect is in custody is whether the suspect is
physically deprived of his freedom in any significant way or is placed in a
situation in which he reasonable believes that his freedom of action or
movement is restricted.” Id. at 15 (quoting Commonwealth v.
Eichlinger, 915 A.2d 1122, 1133-34 (Pa. 2007)). Also, “[a] person is
considered to be in custody for purposes of Miranda when the officer’s show
of authority leads the person to believe that she was not free to decline the
officer’s request, or otherwise terminate the encounter.” Id. (quoting
Commonwealth v. Page, 965 A.2d 1212, 1218 (Pa. Super. 2009)
(additional citation omitted)). We find the trial court’s factual findings are
supported by the record and that its legal conclusions are correct.
Therefore, we shall not disturb the trial court’s ruling denying Appellant’s
motion to suppress. Appellant’s fourth issue fails.
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Appellant’s fifth through eighth issues allege trial court error relating
to evidentiary issues. As such, our standard of review is abuse of discretion.
Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008);
Commonwealth v. G.D.M., Sr., 926 A.2d 984, 986 (Pa. Super 2007).
In her fifth issue, Appellant asserts trial court error for allowing Nurse
Blanchard-Doran to testify as an expert witness because the Commonwealth
failed to identify her as an expert witness, because no report was prepared,
and because Appellant’s expert was unable to view her testimony. As this
Court recognized in Watson, “Our standard of review in cases involving the
admission of expert testimony is broad: ‘Generally speaking, the admission
of expert testimony is a matter left largely to the discretion of the trial court,
and its rulings thereon will not be reversed absent an abuse of discretion.”
Watson, 945 A.2d at 176 (quoting Commonwealth v. Brown, 596 A.2d
840, 842 (Pa. Super. 1991) (additional citations omitted)). “An expert’s
testimony is admissible when it is based on facts of record and will not cause
confusion or prejudice.” Id. (citing Brown, supra).
Ms. Blanchard-Doran was the director of nursing at a facility where
Appellant’s victim was treated a year prior to her death. As mentioned
above, Ms. Rabins left the facility against medical advice at the insistence of
Appellant and her husband. The witness offered testimony concerning Ms.
Rabins’ stay at the facility, her condition, and her discharge against medical
advice. When the witness offered testimony regarding the staging of
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wounds, counsel for Appellant objected based on the lack of an expert
report. The trial court permitted the prosecution to voir dire the witness and
afforded defense counsel the opportunity to question the witness on her
qualifications. The witness was then received as an expert in geriatric
nursing.
As the trial court recognized, Pa.R.E. 702 (Testimony by Expert
Witnesses) provides that a witness qualified by knowledge, skill, training or
education may offer opinion testimony if the expert’s knowledge is beyond
that of the average layperson, the expert’s specialized knowledge will aid the
trier of fact to understand the evidence, and the expert’s methodology is
accepted in the relevant field. “Determining whether a witness may testify
as an expert is a matter within the sound discretion of the trial court, whose
decision will only be reversed for a clear abuse of discretion.” Post-Sentence
Opinion, 3/3/16, at 28 (quoting Yacoub v. Lehigh Valley Medical
Associates, P.C., 805 A.2d 579, 591 (Pa. Super. 2002)).
The trial court concluded that Ms. Blanchard-Doran had the requisite
knowledge and skills to qualify as an expert under Pa.R.E. 702, noting:
[Ms. Blanchard-Doran’s] expertise in geriatric nursing qualified
her to discuss pressure ulcers and wounds and her knowledge of
them as they relate to geriatric patients. She is not required to
be admitted as an expert in pressure ulcers and their staging
specifically, as [Appellant] contends in her brief, to be qualified
to discuss pressure ulcers in geriatric patients.
Id. at 29. Further, the Commonwealth did not violate any disclosure rules
because the witness did not generate or introduce an expert report. Id.
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Moreover, the defense was on notice of the prosecution’s intention to offer
an expert in pressure ulcers, even if the expectation was that a different
witness would offer that testimony. Consequently, Appellant did not suffer
any prejudice. Finding no abuse of discretion in the trial court’s admission of
Ms. Blanchard-Doran’s expert testimony, we reject Appellant’s fifth issue for
lack of merit.
In her sixth issue, Appellant argues that the trial court erred by
permitting Jillian Viscardi to testify without notice to the defense of the
intent to call her as a witness. Appellant also complains that the prosecutor
failed to disclose that he interviewed Ms. Viscardi in the course of his trial
preparation and that, as a result, there was no written statement from the
witness. Again, our standard of review is abuse of discretion.
When Ms. Viscardi was called to testify, counsel for Appellant asked for
an offer of proof. The prosecutor explained that Ms. Viscardi was a high
school friend of one of the Tedescos’ daughters and would testify about the
Tedescos’ home and who was living there. Counsel then objected,
suggesting that there must have been a statement taken from the witness.
The prosecutor explained that Ms. Viscardi was identified by another of the
daughter’s friends in July 2015 from a photograph and was interviewed by
the prosecutor himself in the course of his trial preparation. No statement
was prepared. In response to the trial court’s question concerning disclosure
of the witness, the prosecutor explained that notice of the witness was not
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required under the discovery rule. The trial court overruled the objection
and permitted the testimony.
“The Rules of Criminal Procedure require only that the Commonwealth
disclose the identity of eyewitnesses.” Commonwealth v. Dietterick, 631
A.2d 1347, 1351 (Pa. Super. 1993) (citation omitted), appeal denied, 645
A.2d 1312 (Pa. 1994). Ms. Viscardi was not an eyewitness to any criminal
activity. “The Commonwealth is under no obligation to disclose the names
of all its witnesses to the defendant.” Id. (citations omitted). We find no
abuse of discretion in the trial court’s ruling.
In her seventh issue, Appellant asserts trial court error for permitting
Corporal Gross to offer cumulative testimony regarding the condition of Ms.
Rabins’ body. Appellant contends that testimony concerning the condition of
the body had already been offered by Dr. Land and Coroner Cindy Skrzypek,
both of whom were present at the autopsy, as well as E.M.T. Mackenzie
Joyce who testified as to the condition of the body when Ms. Rabins was
pronounced dead. Appellant’s Brief at 46-47. She argues that Corporal
Gross’s testimony was designed to elicit an emotional response from the jury
and that the testimony had little probative value but significant prejudicial
effect due to the Corporal’s status as lead investigator in the case. Id. at
47-48.
The trial court explained its decision to allow the testimony, noting:
The testimony of Corporal Gross about the state of Ms. Rabins[’]
body as he observed it at the autopsy was limited. He testified
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that Ms. Rabins was dressed in a t-shirt and adult diaper with
feces and urine in it. He did not testify further as to the state of
her body. Although testimony regarding the state of Ms. Rabins’
body was previously elicited, albeit in a much more graphic
fashion, Corporal Gross’ testimony regarding his observations at
the autopsy was necessary to explain why he then initiated the
investigation into Ms. Rabins[’] death. The probative value of
this very limited testimony was not outweighed by needlessly
presenting cumulative evidence. Further [Appellant] has failed
to show how Corporal Gross’ limited testimony about the state of
Ms. Rabins’ body prejudiced her.
Post-Sentence Opinion, 3/3/16, at 40. We find no abuse of discretion on the
part of the trial court for permitting the Corporal to provide limited
testimony concerning his observations and the role his observations played
in the initiation his investigation into Ms. Rabins’ death. Appellant’s seventh
issue does not afford any basis for relief.
In her eighth issue, Appellant argues that the trial court erred in
allowing the admission of documents and items into evidence that had not
been provided in discovery. Appellant contends that several pieces of
evidence were admitted over her counsel’s objection despite the fact the
Commonwealth had not disclosed the existence of the items. She claims her
counsel could not have discovered the evidence through the exercise of due
diligence. Appellant’s Brief at 49. Appellant suggests that the amount of
evidence not disclosed was not a coincidence but rather reflected that the
Commonwealth attempted to ambush Appellant at trial. Id.
As the trial court recognized, Pa.R.Crim.P. 573 (Pretrial Discovery and
Inspection) “enumerates items that must be disclosed upon the defendant’s
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request if they are material to the case, and provides that when applicable,
the Commonwealth shall ‘permit the defendant’s attorney to inspect and
copy or photograph such items.’” Post-Sentence Opinion, 3/3/16, at 30
(quoting Pa.R.Crim.P. 573(B)(1)). Items to be disclosed include “any
tangible objects, including documents, photographs, fingerprints, or other
tangible evidence.” Pa.R.Crim.P. 573(B)(1)(f).
The joint trials of Appellant and her husband began on August 5, 2015,
and concluded on August 14, 2015. During the August 7 proceedings, in
response to objections that copies of the items comprising Exhibits 37 and
39 were not provided to the defense, the prosecution argued that
Commonwealth property records disclosed to Appellant and her husband
revealed that there were “miscellaneous documents” in the Commonwealth’s
possession. Counsel for John Tedesco argued there was an assumption the
Commonwealth would copy and provide all such documents. The trial court
determined the defense was aware of the documents and that those
documents were available for inspection. Consequently, the trial court ruled
that the Commonwealth could introduce Exhibits 37 and 39. Defense
counsel could then review the documents to determine whether there were
any evidentiary objections to the documents before the trial court would
admit them. Defense counsel agreed to that proposed process.
At the conclusion of the day’s proceedings, the trial court dismissed
the jury and then discussed the challenged documents with counsel.
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Counsel for John Tedesco advised the trial court that he did not have a
problem with the documents other than the way they were listed for
discovery. He indicated he had no evidentiary objections to any of the
documents. Notes of Testimony, 8/7/15, at 237. Appellant’s counsel then
stated, “I agree.” Id. The trial court admitted the documents. Id. at 238.
Appellant’s counsel did not lodge an objection. Therefore, the issue was not
preserved for appeal. Even if the issue were preserved, we would find no
abuse of discretion on the part of the trial court. As the trial court
explained, “Rule 573 was not violated as the Commonwealth provided a
complete list of the documents and items in their possession to the defense
and offered them for inspection and copying.” Post-Sentence Opinion,
3/3/16, at 34. Because the Commonwealth complied with Rule 573, the trial
court did not abuse its discretion by admitting the evidence. We shall not
disturb that ruling. See Commonwealth v. Antidormi, 84 A.3d 736, 749
(Pa. Super. 2014) (decision to admit evidence “shall be reversed only upon a
showing that the trial court abused its discretion in determining whether
evidence should be admitted”) (citation omitted).
Appellant also complains that the trial court admitted documents from
Ms. Rabins’ trust administrator. However, as the trial court explained:
The trust documents were documents that . . . the administrator
of the trust[] had brought with her and given to the
Commonwealth upon her arrival. They were not in the
possession of the Commonwealth to give to the defense during
pre-trial discovery and were turned over to the defense as soon
as they were in the Commonwealth’s possession. [Counsel] for
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the Commonwealth stated that “[a]t the earliest opportunity I
put both on counsel table prior to 8:30 this morning. As soon as
I saw both counsel, I explained what it was and when I got it.”
Post-Sentence Opinion, 3/3/16, at 34 (references to notes of testimony
omitted). “The Commonwealth ‘does not violate discovery rules where it
does not provide defendant with evidence that it does not possess and of
which it is unaware during pretrial discovery.’” Id. at 34-35 (quoting
Commonwealth v. Flood, 627 A.2d 1193, 1200-01 (Pa. Super. 1993)).
We find no abuse of discretion on the part of the trial court with
respect to the “miscellaneous documents” that were admitted. Likewise, we
find no abuse of discretion for admitting documents provided by the trust
administrator that were given to Appellant’s counsel as soon as practicable.
Appellant’s eighth issue fails for lack of merit.
In her ninth issue, Appellant argues trial court error for denying her
motion for a change of venue based on overwhelming negative pre-trial
publicity. Our Supreme Court has explained:
A trial court’s decision on a defendant’s motion for a change of
trial venue based on the claimed existence of pretrial publicity
prejudicial to his or her right to trial before an impartial jury is
one vested within its sound discretion, and a trial court’s decision
to deny such a motion will not be overturned by this Court on
appeal, unless the record evidences that the trial court has
abused its discretion in making its ruling. Commonwealth v.
Weiss, 565 Pa. 504, 514, 776 A.2d 958, 964 (2001). We have
recognized that “the trial court is in the best position to assess
the atmosphere of the community and to judge the necessity of
any requested change.” Commonwealth v. Tharp, 574 Pa.
202, 219, 830 A.2d 519, 529 (2003). In reviewing the trial
court decision not to grant a change of venue the focus of our
inquiry is to determine whether any juror formed a fixed opinion
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of the defendant’s guilt or innocence due to the pretrial publicity.
Commonwealth v. Drumheller, 570 Pa. 117, 132, 808 A.2d
893, 902 (2002).
A change in venue is compelled whenever a trial court concludes
a fair and impartial jury cannot be selected from the residents of
the county where the crime occurred. Weiss, at 514–15, 776
A.2d at 964. As a general rule, for a defendant to be entitled to
a change of venue because of pretrial publicity, he or she must
show that the publicity caused actual prejudice by preventing the
empanelling of an impartial jury. Commonwealth v.
Robinson, 581 Pa. 154, 195, 864 A.2d 460, 484 (2004). The
mere existence of pretrial publicity alone, however, does not
constitute actual prejudice. Simply because prospective jurors
may have heard about a case through media reports does not
render them incapable of jury service, since, in today’s
“information age,” where news of community events are
disseminated virtually instantaneously by an ever multiplying
array of delivery methods, it would be difficult to find 12 jurors
who do not at least have some knowledge of the facts of an
important and tragic incident like this one.
Commonwealth v. Briggs, 12 A.3d 291, 313 (Pa. 2011) (citations
omitted).
Appellant’s request for a change of venue was a component of her
omnibus pre-trial motion argued on February 27, 2014. The trial court
denied the motion, noting that media coverage documented by Appellant
was, for the most part, coverage at the time of Appellant’s arrest in July
2013 or her preliminary hearing in September 2013. Only one newspaper
article—published on February 4, 2014 when the case was listed for trial—
post-dated the preliminary hearing. “[A] change of venue will not be
required where there has been sufficient time between publication and trial
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for the prejudice to dissipate.” Pre-Trial Opinion, 6/20/14, at 13 (citations
omitted).
As the trial court explained, significant time had elapsed since the
coverage took place. Although the trial court denied the request for a
change of venue, the court indicated that Appellant would “be given the
opportunity of individual voir dire at the time of jury selection. A
determination can be made at that time whether it is possible to obtain an
impartial jury. The motion will be denied, with the right to renew the motion
if necessary during jury selection.” Pre-Trial Opinion, 6/20/14, at 14.
Although the trial testimony was transcribed, there is no transcription
of the notes of testimony from jury selection. Appellant does not suggest
that she renewed her motion during jury selection. The Commonwealth
indicates:
The issue did not appear to come up in any meaningful way
during jury selection. Certainly counsel for the Appellant would
have possessed unlimited challenges for cause. If the jury pool
was tainted by a mass of adverse or negative pretrial publicity
one would expect there to be a record made of the same.
However, there is no such record. There is no basis in the
record to grant the relief requested by Appellant.
Commonwealth Brief at 54-55. We agree. Appellant’s change of venue
challenge fails.
In her tenth issue, Appellant contends the trial court erred and abused
its discretion by sentencing her at the upper end of the standard range of
the sentencing guidelines and failed to consider mitigating factors raised by
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Appellant at the sentencing hearing. As such, Appellant presents a challenge
to the discretionary aspects of sentencing and her brief must include a
concise statement of the reasons relied upon for allowance of appeal in
accordance with Pa.R.A.P. 2119(f). However, Appellant instead includes a
statement of the scope and standard of review for a challenge to
discretionary aspects of sentencing and refers to Pa.R.A.P. 3518, a rule
rescinded in 1999. Appellant’s Brief at 2. She proceeds to note that a
sentence will not be reversed absent an abuse of discretion; that to
constitute an abuse of discretion, a sentence must either exceed statutory
limits or be manifestly excessive; that an appellant must raise a substantial
question as to the appropriateness of the sentence; and that an appellant
must demonstrate that the trial court’s actions are inconsistent with the
sentencing code or contrary to fundamental norms. Id. (citations omitted).
However, Appellant’s statement does not even suggest a question, let alone
a substantial question. Therefore, Appellant has not complied with Rule
2119(f) and has not provided any basis for this Court to entertain a
challenge to the discretionary aspects of her sentence. However, the
Commonwealth did not object to Appellant’s misstep. Therefore, we will not
find the issue waived. See Commonwealth v. Krum, 533 A.2d 134, 138-
39 (Pa. Super. 1987) (en banc) (an appellant’s failure to comply with Rule
2119(f) may be waived if the Commonwealth fails to object to the defect).
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Despite surviving waiver, Appellant’s issue nevertheless fails. As this
Court has recognized, “[T]he appellant must raise a substantial question as
to the appropriateness of the sentence, which would permit us to accept the
appeal as to this issue.” Commonwealth v. Kimbrough, 872 A.2d 1244,
1262 (Pa. Super. 2005) (citation omitted). “Whether a substantial question
has been raised that a sentence is inappropriate under the Sentencing Code
must be evaluated on a case-by-case basis.” Id. at 1263 (citation omitted).
As this Court reiterated in Kimbrough, “A substantial question exists where
the brief sets forth a colorable argument that the sentence violates a
particular provision of the Sentencing Code or is contrary to the fundamental
norms underlying the sentencing scheme.” Id. (citation omitted).
Appellant contends her sentence was at the upper end of the standard
range. However, “[w]hen the sentence is within the range prescribed by
statute, a challenge to the maximum sentence imposed does not set forth a
substantial question as to the appropriateness of the sentence under the
guidelines.” Id. (quoting Commonwealth v. Brown, 587 A.2d 4, 6 (Pa.
Super. 1991)). Appellant has failed to present a substantial question for
review.
With respect to Appellant’s assertion that the trial court did not
consider mitigating factors, we note that when the sentencing court has the
benefit of a pre-sentence report, “it shall be presumed that that sentencing
judge was aware of the relevant information regarding the defendant’s
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character and weighed those considerations along with the mitigating
statutory factors.” Post-Sentence Opinion, 3/3/16 at 22 (quoting
Commonwealth v. Bruner, 564 A.2d 1277, 1289 (Pa. Super. 1989)
(additional citation omitted)). Here, the trial court acknowledged receipt
and review of the pre-sentence investigation during Appellant’s sentencing.
Id. (citing Notes of Testimony, Sentencing, 10/26/15, at 2). As the trial
court explained:
[T]he sentence for Murder in the Third Degree is within the
guideline range and is therefore presumptively reasonable. In
sentencing [Appellant], the [c]ourt review[ed] the PSI, letters
from the victim’s family, letters from [Appellant’s] family and
friends, and fashioned an aggregate sentence based on the
evidence presented at trial and the jury’s ultimate finding of guilt
as to all charges. Because of the torture and abuse suffered by
the Victim, who was mentally handicapped, at the hands of
[Appellant and her husband] for their own gain, the consecutive
sentences did not result in an excessive aggregate sentence.
Id. We agree. Finding no abuse of discretion on the part of the trial court,
Appellant’s challenge to her sentence fails.
In her eleventh and final issue, Appellant challenges the sufficiency of
the evidence supporting her conviction for tampering with evidence. A
challenge to sufficiency of evidence presents a question of law subject to
plenary review. Commonwealth v. Jones, 904 A.2d 24 (Pa. Super. 2006)
(citation omitted). As this Court noted in Jones:
In reviewing a sufficiency challenge, we must determine whether
the evidence at trial, and all reasonable inferences derived
therefrom, when viewed in the light most favorable to the
Commonwealth as verdict[-]winner, are sufficient to establish all
elements of the offense beyond a reasonable doubt.
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To establish the offense of tampering with evidence, the
Commonwealth must prove three interrelated elements: (1) the
defendant knew that an official proceeding or investigation was
pending; (2) the defendant altered, destroyed, concealed, or
removed an item; and (3) the defendant did so with the intent to
impair the verity or availability of the item to the proceeding or
investigation. Commonwealth v. Morales, 447 Pa. Super.
491, 669 A.2d 1003, 1005 (1996) (citing 18 Pa.C.S.A.
§ 4910(1)).
Id. at 26 (quotations, citations and footnote omitted).
The trial court concluded that, viewing the evidence in the light most
favorable to the Commonwealth as the verdict winner, “the accumulation of
circumstantial evidence in this case was strong enough for a jury to find that
Ms. Rabins did not live or die at the Tedesco home and to make the
inference that the Tedescos tampered with physical evidence believing an
investigation was forthcoming.” Post-Sentence Opinion, 3/3/16, at 14. The
trial court proceeded to summarize the evidence supporting the tampering
conviction. Id. at 14-16. That evidence included a lease reflecting that Ms.
Rabins lived in an apartment with Tom Miller; that emergency personnel
were called to the apartment to assist Ms. Rabins on several occasions; that
the landlord indicated Ms. Rabins lived there; that mail postmarked to Ms.
Rabins was found in the apartment; and that the coroner and emergency
personnel responding to the Tedescos’ home found the immaculate state of
the Tedescos’ living room incompatible with the Tedescos’ statements that
Ms. Rabins primarily lived in the living room and died there. In addition,
witnesses testified that they never saw Ms. Rabins or any medical equipment
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in the Tedesco home and never heard prior to the night Ms. Rabins died that
an elderly woman was living there.
The accumulation of this evidence was such that a jury could find
beyond a reasonable doubt that Ms. Rabins was living at the
apartment on Route 115 and not the Tedesco home, and that the
Tedescos tampered with physical evidence regarding her
residence and place of death, believing an investigation into her
death was about to be begin.
Id. at 16. We agree. Viewing the evidence and reasonable inferences
therefrom in a light most favorable to the Commonwealth, we find the
evidence was sufficient to support Appellant’s conviction of tampering with
evidence. Appellant’s sufficiency challenge fails.
Judgment of sentence affirmed. In the event of further proceedings,
to the extent necessary for review, the parties shall attach to their filings
copies of the trial court’s June 20, 2014 Pre-Trial Opinion and/or its March 3,
2016 Post-Sentence Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2017
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Circulated 02/28/2017 03:51 PM
COURT OF COMMON PLEAS OF MONROE COUNTY
FOURTY-THIRD JUDICIAL DISTRICT
COMMONWEAL TH OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,: NO. 2229 CR 2013
vs.
TINA TEDESCO,
Defendant
OPINION
This matter comes before the Court on Defendant Tina Tedesco's Post-Sentence
Motion filed November 4, 2015, following a jury trial that took place from August 5, 2015
to August 14, 2015 and sentencing that occurred on October 26, 2015. Ms. Tedesco
was charged with and found guilty of Murder in the Third Degree, Criminal Conspiracy
to commit Murder in the Third Degree, Theft by Unlawful Taking, Theft by Failure to
Make Required Disposition of Funds, Criminal Conspiracy to commit Theft by Unlawful
Taking, Criminal Conspiracy to commit Theft by Failure to Make Required Disposition of
Funds, Criminal Conspiracy to commit Neglect of a Care Dependent Person, Neglect of
a Care Dependent Person, and Tampering with Physical Evidence. Ms. Tedesco was
sentenced on October 26, 2015 to an aggregate period of incarceration of not less than
183 months (15.25 years) to 366 months (30.5 years).
Ms. Tedesco filed a post-sentence motion on November 5. 2015. and an
amended post-sentence motion on January 19, 2016. The Commonwealth filed a brief
in opposition to Defendant's post-sentence motions on January 28, 2016. Ms.
1
1
Tedesco's post-sentence motions seek a new trial, or in the alternative, to obtain the
dismissal of the Tampering with Evidence charge based upon the following contentions:
(1) The Commonwealth failed to present sufficient evidence at trial to convict the
defendant of Tampering with Evidence;
(2) The trial court erred and abused its discretion in sentencing Ms. Tedesco to a
sentence at the top end of the standard range while failing to consider mitigating
circumstances;
(3) The trial court erred in admitting grand jury testimony of a co-defendant in
violation of Bruton;
(4) The trial court erred by permitting Nurse Blanchard-Doran to testify as an
expert in wound care and pressure ulcers;
(5) The trial court erred in allowing the Commonwealth to present at trial various
items and records which were not given to the defense before trial in violation of
Pa.R.Crim.P. 573;
(6) The trial court committed error by permitting Jillian Viscardi to testify as a
witness for the Commonwealth despite the Commonwealth's failure to provide
discovery regarding her testimony;
(7) The trial court erred by permitting Corporal Gross to provide cumulative and
prejudicial testimony regarding the condition of the victim's body at the time of
the autopsy.
2
DISCUSSION
The evidence presented to support the jury's verdict may be summarized as
follows. On August 18, 2011, at 2:54 a.m. paramedics and the Pennsylvania State
Police were called to the residence of John and Tina Tedesco at 102 Corine Way,
Saylorsburg, Ross Township, Monroe County, Pennsylvania. Call logs from the Monroe
County 911 Center stated that the caller arrived home to find Ms. Rabins not breathing
and that he was unaware how long she had been not breathing. N.T. 8/5/15 p.119.
Upon arrival, responders found seventy (70) year old Barbara Rabins dead. First
responders requested the coroner to come to the scene. Id. at 120. Cindy Skrzypek,
Monroe County Deputy Coroner", arrived at the scene, performed an initial review of
Ms. Rabins' body at the Tedesco home, and immediately noticed "that it was very, very
dirty, very unkempt." N.T. 8/6/15 p.30. She further testified that Ms. Rabins' body had
multiple ulcers, that there was possibly feces on her face, and that her body showed a
general lack of care. Id. at 30-31. She then transported Ms. Rabins to the morgue in
Pocono Medical Center. Once she was able to get a better look at the state of Ms.
Rabins' body, she found that "[s]he was skin and bones. She was totally filthy, feces on
her face, feces stuck underneath her fingernails, multiple ulcers. She had socks on her
legs, and it was actually oozing through the socks on the legs, the blood and the
seepage, from the lack of care of her legs." Id. at 32.
Ms. Skrzypek requested Ms. Rabins' medical records from Pocono Medical
Center and received her medical history as well as several discharge summaries. As a
1
At the time of trial, Deputy Coroner Skrzypek was the Chief Deputy Coroner.
3
result of the observations she made at the Tedesco home, speaking with the Tedesco's,
her review of Ms. Rabins' body in the morgue, and her review of Ms. Rabins' medical
records, Deputy Coroner Skrzypek contacted the police and ordered an autopsy of Ms.
Rabins' body.
The autopsy of Ms. Rabins was conducted by Dr. Land on August 19, 2011. Dr.
Land's assistant, Michael Gery, Deputy Coroner Skrzypek and Corporal Gross of the
Pennsylvania State Police were also present. N.T. 8/5/15 p.166-67. Several
photographs taken of Ms. Rabins' body at the time of the autopsy were entered into
evidence. Dr. Land identified the cause of death as "hypernatremic dehydration with
aspiration of food bolus," or in lay terms, "there was too much salt in her blood ... and
she inhaled a piece of food that blocked her airway and caused her to suffocate." Id. at
173-74. Ms. Rabins was found to be someone who had a history of trouble swallowing
because of her stroke and had "a massive [piece of] food stuck blocking the back of her
throat in her voice box." Id. at 175. Ms. Rabins' face had dirt caked in her eyebrows, her
nose, inside and around her eyes, and going down her face. Id. at 176. She also had
fecal matter on her chest, her abdomen, inside her right hand, and on her arm and
shoulders. Id. at 185.
Ms. Rabin weighed 116 pounds, having lost close to 90 pounds in the year
before she died. Id. at 187. There was extensive testimony, coupled with photographs,
of pressure ulcers on Ms. Rabins' body, indicating that "she had not been moved for
quite some time." Id. at 189. Ms. Rabins had a very large pressure ulcer on her lower
back that had dead tissue that was "melting away" and "eating into the bone." Id. at 190.
4
Her right hand was contracted together and up against her chest with dirt, dead skin,
and fecal matter stuck inside it with an inch to an inch and a half long fingernails. Id. at
191. Pressure injuries were found on her hand from her fingernails being pressed
against the skin, on her chest from her hand, wrist, and arm being pressed against it for
a long period of time, on the ball of her foot, and on her right hip and leg. Id. at 196-202.
Her legs showed signs of edema, or swelling of the legs, where the skin of her lower
legs was dying and sloughing off. Id. at 204. Ms. Rabins' elbow bone was also exposed,
surrounded by dead tissue and skin. Id. at 207. Evidence of Alzheimers disease was
also found upon examination of Ms. Rabins' brain. Id. at 192-93. Finally, Dr. Land
testified that he found the manner of death to be neglect of a care dependent person,
fitting the medical definition of homicide. Id. at 211. As a result of this finding, the
Pennsylvania State Police initiated an investigation into the death of Ms. Rabins and the
Tedescos.
Several members of the Pennsylvania State Police testified about their
investigation into the death of Ms. Rabins. Corporal William Gross, a supervisor with the
Pennsylvania State Police Criminal Investigation Unit out of Lehigton, testified as to his
presence at the autopsy and the investigation that followed. N.T. 8/7/15 p. 210-36. The
Pennsylvania State Police executed a search warrant and conducted a search of the
Tedesco home on August 24, 2011. Tina Tedesco was at home and John Tedesco
arrived at the home as the police officers were concluding their search. At the
conclusion of their search, officers asked the Tedescos to come to the state police
barracks to speak with them about the Tedescos' care of Ms. Rabins and the
5
circumstances surrounding her death. The facts and circumstances surrounding these
interviews, as raised by the Tedescos' omnibus pretrial motions, were argued and
briefed by the parties and addressed by the court following a suppression hearing.
Opinion, June 20, 2014. All issues raised by the parties, including the suppression of
their statements to the police and the issuance of the search warrant lacking probable
cause, were discussed and denied. Id. at 18. As a result, the statements the Tedescos
made to the police on August 24, 2011 were admitted at trial. The Tedescos were
arrested on July 9, 2013.
The Commonwealth presented several witnesses at trial who addressed Ms.
Rabins' condition and her lack of care throughout 2010, the year before her death.
Lorraine Jakubowitz, a physical therapist with the Visiting Nurse Association (VNA),
testified that in July 2010 she observed Ms. Rabins in an apartment on Old Route 115 in
Saylorsburg when Ms. Jakubowitz was there to provide physical therapy to Thomas
Miller. N.T. 8/6/15 p.162-69. Ms. Rabins was found in the bedroom of the apartment
lying on a box spring and mattress in her own feces and soaked in urine. Id. at 168. Ms.
Jakubowitz also testified that on Thomas Miller's admission consent form for the VNA,
he said he lived with a female roommate. Id. at 173.
Sharon Miller, a care manager for the Monroe County Area Agency on Aging,
testified that the Agency got an emergency referral July 14, 2010 from the VNA. Id. at
196. The day before the Agency on Aging got the call from the VNA, they also received
a referral for Ms. Rabins from Forest Manor Health Care Center, the facility she was
cared for in July 2010. Id. 137-38. Forest Manor was also concerned about Ms. Rabins
6
care and reported that she was being taken out of the facility against medical advice. Id.
Both of these referrals resulted in Ms. Miller and Brenda Staples making a home visit to
Ms. Rabins at the apartment on Old Route 115 on July 14, 2010. Id. at 197. During their
home visit, Ms. Miller and Ms. Staples found Ms. Rabins lying on a mattress in her own
urine and feces with no adult brief on and none in the apartment to put on her. Id. They
contacted Mr. Tedesco who initially said he could not come to the apartment to meet
them that day but then agreed to come at the urging of Ms. Staples. Id. at 200. Ms.
Miller and Ms. Staples concluded tnat it was not safe for Ms. Rabins to be at the
apartment and called an ambulance to take her to the hospital. Id. at 202. Ms. Rabins
had been out of Forest Manor and back at the apartment on Route 115 for
approximately 6 hours before she was again admitted to the hospital. N.T. 8/12/15
p.183. Ms. Miller also testified that her reports indicated that Mr. Tedesco said Ms.
Rabins had been living with his family until her recent stroke, and that he took her to Mr.
Miller's apartment because he had no way to get her up the stairs at his home. N.T.
8/6/15 p.205-06. Her records also indicated that Ms. Rabins was taken out of the Forest
Manor nursing home against medical advice. Id. at 207. Ms. Miller was then told by Mr.
Tedesco that he made a mistake taking her out of the nursing home and that she would
be returning to Somerset Valley Nursing Facility after she was released from the
hospital. Id. at 216. The Area Agency on Aging closed the Barbara Rabins case due to
John Tedesco reporting to Ms. Miller and Ms. Staples that she would be returning to an
inpatient nursing facility. Id.
7
Dr. Antolin, a psychiatrist at Pocono Medical Center testified that after her
examination of Ms. Rabin on July 16, 2010, she felt that Ms. Rabins had depression,
mild mental retardation, an inability to take care of her numerous physical ailments, and
an inability to make decisions regarding her well-being. Id. at 250.
Nurse Sherri Blanchard-Doran, the Director of Nursing at Forest Manor, testified
at length regarding Ms. Rabins stay there in July 2010. While in Forest Manor Ms.
Rabins was placed on a special pureed diet because "she was unable to masticate and
swallow effectively without it going into her lungs." N.T. 8/7/15 p.12. Upon learning that
Mr. Tedesco wanted Ms. Rabins to be discharged against medical advice, Nurse
Blanchard-Doran attempted to dissuade him from doing so. Id. at 16. She informed him
of the risk of taking her home too soon, including the risk that Ms. Rabins would likely
choke if she was not on a strict diet of "nectar thick liquids." Id. at 18.
The Commonwealth presented several documents and witnesses regarding the
Tedescos' receipt and control of money from Ms. Rabins' trust, set up by her late father,
as well as her social security disbursements. The Tedescos were not using monies
received for the care of Ms. Rabins for her benefit. For the 2010 calendar year, 48.5
percent of the household expenses paid for the Tedesco home were paid for by Ms.
Rabins. A total of $54,694.75 was deposited in the Wells Fargo bank account which the
Tedescos held jointly with Barbara Rabins. These funds were derived from Ms. Rabins'
trust and social security disbursements in 2010. N.T. 8/13/15 p.132. This amount
received included $1, 100 sent from Ms. Rabins' trust for vacations, including the trip to
8
Wildwood that Ms. Jillian Viscardi testified about that Ms. Rabins did not go on. Id. at
134 (Testimony of Jillian Viscardi).
Wendy Serfass a county detective with the Monroe County District Attorney's
Office, presented an excel spreadsheet detailing all of the monies received and bills
paid by Ms. Rabins from 2006 to the time of her death. Id. at 104. The total money
received by the Tedescos in this time period was just under $302,000. Id. at 105. This
included the direct deposit of Ms. Rabins' social security money of $1,375 a month into
the joint bank account of the Tedescos and Ms. Rabins. Id. at 107. The Tedescos also
received money from the trust for "care service" and "cleaning services" relating to Ms.
Rabins. Id. at 108. Additionally, during the search of the Tedesco home, police officers
found a State Farm Life Insurance Policy on a dresser in the master bedroom insuring
Ms. Rabins' life for $100,000 and naming Mr. and Ms. Tedesco the beneficiaries.
identifying them as niece and nephew. Id. at 124. John Tedesco also had a joint bank
account with Tom Miller that received his VA and social security benefit monies. Id. at
133-34.
Sharon Leinwand, the administrator of Ms. Rabins' trust testified about the
process through which the Tedescos or Ms. Rabins would request money from the trust
and what she believed the money was being used for. N.T. 8/10/15 p. 48. Ms. Leinwand
approved a living room set and bedroom set to be purchased for Ms. Rabins, among
other things, as well as all of the utilities to be paid in full, under the impression that Ms.
Rabins was living in a "mother-in-law" suite with several rooms in a home, or a two
bedroom apartment type of space. Id. at 67-75. The trust also paid Ms. Tedesco, who
9
purportedly advanced Ms. Rabins the money, for a vacation to Great Wolf Lodge and a
puppy. Id. at 82. Ms. Leinwand was under the impression that Ms. Rabins was going on
the vacation with friends, and was unaware that the Tedescos had children. The trust
also paid for a vacation to Wildwood, New Jersey, among other things, under the
impression that Ms. Rabins was requesting the monies herself, when they received
typed letters from her with her signature requesting a check be sent. Id. at 89. The trust
received a request signed by Ms. Rabins for money for this vacation to Wildwood dated
June 28, 2012. On that date Ms. Rabins was a patient at Pocono Medical Center. Ms.
Leinwand testified that had the trust known that Ms. Rabins was hospitalized as of that
date, the trust would not have authorized payment and would have inquired further into
the request. Id. at 90. She also believed that Ms. Rabins' stay in the rehabilitation center
would be fully covered by insurance, as indicated by Ms. Tedesco, but testified that if it
was not fully covered, the trust would have certainly paid the remainder of the cost for
her to stay if it was requested. Id. at 96. The trust would have also approved the
payment of $321.92 per day for Ms. Rabins to stay in the Somerset Valley nursing
facility, but before they were asked to authorize the payment, Ms. Tedesco informed
Ms. Leinwand that Ms. Rabins was released and apparently was "getting along pretty
well." Id. at 99.
The defense presented the testimony of Dr. Manion who disagreed with the
findings of Dr. Land and found that Ms. Rabins was not dehydrated or emaciated at the
time of her death. N.T. 8/12/15 p. 24. Dr. Manion testified that Ms. Rabins had "terrible
heart disease and vascular disease" that in large part contributed to the formation of her
10
pressure ulcers. Id. at 34-35. He opined that Ms. Rabins' ulcers were likely caused by
her desire "to stay in bed as much as she can" because of her paranoia and resistance
to moving resulting from the fall she suffered after her stroke. Id. at 47. He also
discussed the dried feces on Ms. Rabins and found it to be normal that the bowel
movement she had upon death had become dried and crusted against her skin by the
time the autopsy was performed the next day. Id. at 52. Finally, Dr. Manion stated her
cause of death was accidental due to aspiration of cheese, and not due to her wounds,
dehydration, malnutrition or lack of care. Id. at 50.
I. SUFFICIENT EVIDENCE FOR TAMPERING WITH EVIDENCE CHARGE2
a) Sufficiencyof the Evidence
A claim challenging the sufficiency of the evidence presents a question of law.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.2000). The court must determine
"whether the evidence is sufficient to prove every element of the crime beyond a
reasonable doubt." Commonwealth v. Hughes, 555 A.2d 1264, 1267 (Pa.1989). The
Court "must view evidence in the light most favorable to the Commonwealth as the
verdict winner, and accept as true all evidence and all reasonable inferences therefrom
upon which, if believed, the fact finder properly could have based its verdict." Id. Our
Supreme Court has instructed:
2
The Defendant's Post Sentence Motions filed on November 4, 2015 claim that the verdict was
"against the weight of the evidence." However, the motion states the standard for reviewing the
sufficiency of the evidence. Post Sentence Motion of Tina Tedesco, 1/4/20151J5. Additionally,
the Defendant's Brief in Support of Defendant's Post-Sentence Motions, briefs the issue of
sufficiency of the evidence. The Defendant did not brief the weight of the evidence issue raised
in their motion.
11
[T]he 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. 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. Ratsamy, 934 A.2d 1233, 1236 n. 2 (Pa. 2007).
Further, "[t]his standard is equally applicable to cases where the evidence is
circumstantial rather than direct so long as the combination of the evidence links the
accused to the crime beyond a reasonable doubt. . . Although a conviction must be
based on more than mere suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty." Commonwealth v. Brunson, 938 A.2d 1057,
1058 (Pa. Super. 2007).
Ms. Tedesco was charged and found guilty of Tampering with or Fabricating
Physical Evidence. The applicable section of the Statute reads as follows:
A person commits a misdemeanor of the second degree if, believing that an
official proceeding or investigation is pending or about to be instituted, he:
(1) alters, destroys, conceals or removes any record, document or thing with
intent to impair its verity or availability in such proceeding or investigation
18 Pa.C.S.A. § 4910(1). The limiting factor is the requirement of specific intent.
Commonwealth v. Govens, 632 A.2d 1316, 1328 (Pa. Super. 1993). "The statute
punishes any kind of tampering with any document or thing, but only if the defendant
acts 'with purpose to impair its veracity or availability' in an official proceeding or
12
investigation." Id. The trier of fact need only reasonably infer from the defendant's
actions that they were acting with this purpose. Id.
In the instant case, the Information charged by the police grounded the
Tampering with Evidence charge on the following facts:
On or about August 17 to 18, 2011 in the County of Monroe, Ross Township,
Pennsylvania, Tina Tedesco believing that an official proceeding or investigation
was pending or about to be instituted, altered, destroyed, concealed or removed
a record, documents or thing with the intent to impair its veracity or availability in
such proceeding or investigation, to wit: the defendant alone or with John
Tedesco did make it appear that the victim died at defendant's residence in Ross
Township in the defendant's living room and that the victim at the time of her
death residing with the defendant.
Criminal Information, Commw. v. Tina Tedesco, October 10, 2013. During the trial,
evidence was presented by several witnesses that supported the facts alleged in the
Information. The Commonwealth presented evidence that Ms. Rabins was living at an
apartment on Old Route 115 in Saylorsburg with Mr. Miller before he was hospitalized,
and died there, not the Tedesco residence. The Tedescos assert that Ms. Rabins died
in their home and at the time was living with them in their home. The jury was charged
with the following instruction regarding the elements of the crime of Tampering with
Physical Evidence:
"To find one or both of the Defendant's guilty of this offense, you must find that
the following elements have been proven beyond a reasonable doubt: First, that
the Defendant believed that an official proceeding or investigation concerning the
death of Barbara Rabins was about to be instituted. Second, that the Defendant
presented a false description of Barbara Rabins's last residence, moving Barbara
Rabins's body to their home at 102 Corine Way, and telling investigators that
Barbara Rabins was living with them, when in fact at the time of her death she
was residing in an apartment on Route 115 in Saylorsburg. Third, that the
Defendant knew that Barbara Rabins was not residing at 102 Corine Way and
did not die there. And fourth, that the Defendant did so with the intent to mislead
13
ambulance personnel, coroner's office, police, and other public servants who
might be engaged in the investigation of Barbara Rabins death."
N.T. 8/14/15 p.163-64. The jury found Ms. Tedesco guilty of Tampering with Evidence,
finding the Commonwealth met their burden of proof as to all of the elements of the
crime.
Viewing the evidence in light most favorable to the Commonwealth as the verdict
winner, the accumulation of circumstantial evidence in this case was strong enough for
a jury to find that Ms. Rabins did not live or die at the Tedesco home and to make the
inference that the Tedescos tampered with physical evidence believing an investigation
was forthcoming. The evidence here was not so weak and inconclusive that as a matter
of law no jury could find the charged crime. The evidence presented as to the tampering
with evidence charge can be summarized as follows.
As part of their investigation, the state police searched the apartment on Old
Route 115 in Saylorsburg on October 3, 2011. During the search, the police found a
lease agreement for the apartment in the names of "Tom Miller and Barbara Ra bins"
dated February 1, 2008. The application appeared to have been completed by John
Tedesco and listed Mr. Miller as his uncle and Ms. Rabins as his aunt. Ms. Rabins was
picked up at this apartment several times by emergency personnel when 911 were
called to assist her. N.T. 8/6/15 p. 96, 103, 120. Despite the fact that four out of five
ambulances called for Ms. Rabins were called to Mr. Miller's apartment, Mr. Tedesco
denied that Ms. Rabins was living there full time, but did admit that she stayed there a
lot. N.T. 8/12/15 p.236-37. As indicated in their records, Mr. Miller stated to VNA
workers that Ms. Rabins had returned to his apartment after her stay in a rehabilitation
14
center. The landlord of the apartment on Old Route 115, Hakija (Harry) Kolenovic,
testified that Ms. Rabins was living with Mr. Miller in the apartment and that both were
listed as tenants on the lease. N.T. 8/11/15 p.12-15. Mail postmarked to Ms. Rabins
was also found at the apartment on Old Route 115. N.T. 8/7/15 p.140. The first
responders and coroner responding to the 911 call of Ms. Rabins' death testified that
they found the immaculate state of the living room incompatible with the Tedescos'
statements regarding Ms. Rabins primarily living and dying in the living room.
Additionally, the Commonwealth presented the testimony of Jillian Viscardi, one
of Krystal Tedesco's close friends during the relevant time period. Ms. Viscardi spent a
lot of time at the Tedesco home and had frequent sleepovers there during the summer
and even the school year. Id. at p.198. She could not identify Ms. Rabins in a
photograph, said that she never saw Ms. Rabins at the home, that no one in the family
ever mentioned Ms. Rabins or an aunt they cared for, and that she never saw any
medical equipment like a walker or cane in the house or accommodations made in the
bathrooms to assist an elderly person. Id. at 200-02. Jennifer Pandolpho, the next door
neighbor of the Tedescos, also testified that she never saw an elderly woman at the
Tedesco home or heard of one living there until the night Ms. Rabins died. Id. at 178.
Finally, the jury was presented with the testimony of Mr. Tedesco regarding his care of
Ms. Rabins, her living situation, and the night of her death. N.T. 8/12/15 p. 135-245;
8/13/15 p.4-82.
The accumulation of this evidence was such that a jury could find beyond a
reasonable doubt that Ms. Rabins was living at the apartment on Route 115 and not the
15
Tedesco home, and that the Tedescos tampered with physical evidence regarding her
residence and place of death, believing an investigation into her death was about to
begin. There need not be evidence that the Tedescos knew that there was currently an
ongoing investigation into the circumstances surrounding Ms. Rabins death, it is enough
that they believed an investigation was about to be instituted. The behavior of the
Tedescos allowed the jury to draw the inference that they knew an investigation into Ms.
Rabins death would be instituted once her body was found in that condition. Reviewing
the evidence in the light most favorable to the Commonwealth as the verdict winner, the
evidence presented was sufficient for the jury to find each element of the crime of
Tampering with Evidence.
b) The Weightof the Evidence
As noted above in footnote 1, the Defendant raised the issue of weight of the
evidence in their Post Sentence Motions but did not brief the issue, instead briefing the
issue of sufficiency of the evidence. If the issue of weight of the evidence is considered
properly preserved for appeal, the court finds that the verdict was not against the weight
of the evidence. In order to grant relief based on a claim that the verdict was against the
weight of the evidence, "it must appear that the verdict was so contrary to the evidence
as to shock one's sense of justice and make the award of a new trial imperative."
Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004), appeal denied, 878
A.2d 864 (2005). In reviewing a ruling on a weight of the evidence claim, the appellate
court is limited to determining whether the trial court abused its discretion. See
Commonwealth v. Kim, 888 A.2d 847, 851 (Pa. Super. 2005), appeal denied, 899 A.2d
16
1122 (2006). Here, the verdict finding Ms. Tedesco guilty of Tempering with Physical
Evidence was not so contrary to the evidence to shock one's sense of justice or make
the award of a new trial imperative.
II. ABUSE OF DISCRETION IN SENTENCING
Below is a list of the sentences of incarceration Ms. Tedesco received (bolded),
with the standard Guideline range for that charge listed below.
1. Murder in the Third Degree:
168 to 336 months
72 to 240 months
2. Conspiracy- Murder in the Third Degree:
168 to 336 months
72 to 240 months
3. Theft by Unlawful Taking:
12 to 24 months
RS to 9 months (aggravated range 12 months)
4. Theft by Failure to Make Req. Disp. of Funds:
12 to 24 months
RS to 9 months (aggravated range 12 months)
5. Conspiracy- Theft by Unlawful Taking:
9 to 18 months
RS to 9 months (aggravated range 12 months)
6. Conspiracy- Theft by Failure to Make Req. Disp. Of Funds:
9 to 18 months
RS to 9 months (aggravated range of 12 months)
7. Conspiracy- Neglect of Care of Dependent Person:
3 to 6 months
RS to 3 months (aggravated range of 6 months)
17
8. Neglect of Care of Dependent Person:
3 to 12 months
RS to 3 months (aggravated range of 6 months)
9. Tampering with Physical Evidence:
3 to 6 months
RS to RS (aggravated range of RIP to 3 months)
The sentences for Murder in the Third Degree, Conspiracy to commit Murder in
the Third Degree, Theft by Failure to Make Required Disposition of Funds, Criminal
Conspiracy to commit Theft by Unlawful Taking, Criminal Conspiracy to commit Theft by
Failure to Make Required Disposition of Funds, Criminal Conspiracy to commit Neglect
of Care of a Dependent Person, Neglect of Care of a Dependent Person, were
concurrent. The sentences for Theft by Unlawful Taking and Tampering with Physical
Evidence were consecutive to the above concurrent sentences. This resulted in Ms.
Tedesco receiving a sentence of incarceration in a state correctional institution of no
less than 183 months (15.25 years) to 366 months (30.5 years). Sentencing Order,
October 26, 2015.
Ms. Tedesco argues that the court did not consider any mitigating factors such as
the report by Dr. Dattilio indicating that she is a low risk for recidivism, her remorse, and
her prior record score of zero, when sentencing her in the upper end of the standard
range for Murder in the Third Degree. She also argues that the sentence is unduly
harsh or excessive because of the two consecutive sentences in the aggravated range
since "these acts all arose from a single ongoing course of conduct." Brief in Support of
18
Defendant's Post-Sentence Motions, p. 7. The Defendant requests to be resentenced to
a term of incarceration which reflects the mitigating circumstances and the nature and
character of the Defendant herself.
The standard of review in sentencing matters is well settled:
Sentencing is a matter vested in the sound discretion of the sentencing judge,
and a sentence will not be disturbed on appeal absent a manifest abuse of
discretion. In this context, an abuse of discretion is not shown merely by an error
in judgment. Rather, the appellant must establish, by reference to the record, that
the sentencing court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Hoch, 936 A.2d 515, 516 (Pa. Super. 2007) (citing Commonwealth v.
Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)). Assuming the court's sentencing
decision is procedurally sound, the appellate court considers if the sentence is
substantively reasonable under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). "When conducting this review, the court will, of course, take into
account the totality of the circumstances, including the extent of any variance from the
Guidelines range. If the sentence is within the Guidelines range, the appellate court
may, but is not required to, apply a presumption of reasonableness." Id. The trial court is
afforded "broad discretion in sentencing criminal defendants 'because of the perception
that the trial court is in the best position to determine the proper penalty for a particular
offense based upon an evaluation of the individual circumstances before it'."
Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa. 2002) (quoting Commonwealth v.
Ward, 568 A.2d 1242, 1243 (1990)).
19
At the sentencing hearing, it was noted that two aggravating factors were listed in
the Pre-Sentence Investigation for Ms. Tedesco. First, she has had three separate
misconducts since being incarcerated, and second, that the victim, Ms. Rabins, was
mentally disabled. N.T. 10/26/15 p.2-3. During sentencing, defense counsel argued that
Ms. Tedesco was an extremely low risk for re-offending, had no prior record, was very
active in her community, has accepted responsibility for her actions, and that her
actions were not malicious. Id. at 2-6. Several relatives of the Tedescos also spoke on
their behalf and wrote letters of support. Id. at 8-16.
First, the sentence imposed for Murder in the Third Degree is well within the
standard range, and is therefore presumptively reasonable. Second, although the
Defendant was sentenced in the aggravated range for Theft by Unlawful Taking and
Tampering with Physical Evidence, sufficient reasons for aggravation were stated on
the record at sentencing. Although the Court did not note the reason for aggravation as
to those specific charges, the aggravating circumstances in this case were discussed at
length at the sentencing hearing. The Court noted that Ms. Rabins had the mental
capacity of a child and was "wide open to be taken advantage of' by the Tedescos who
"were getting used to this flow of money coming into the household that was
supplementing their ability to maintain a lifestyle that it's obvious they and their family
were happy with." Id. at 24. The Tedescos were told that Ms. Rabins needed full time
care by several nursing facilities and agencies who were concerned for her well-being.
The Tedscos did not obtain that care be provided to her despite their continual receipt of
money for such care from the trust. When Ms. Rabins was released from the nursing
20
home to the apartment on Old Route 115 Ms. Rabins "existence had to be pure hell." Id.
at 26. The condition Ms. Rabins was left in was "horrible" and she "basically went
through torture" the last year of her life. Id. at 26. The Court further noted that Ms.
Tedesco knew that Ms. Rabins was not being properly taken care as they used her
money to take a vacation to Wildwood while she was suffering alone in the apartment.
Id. at 27.
Third, there is no abuse of discretion here where the Defendant's sentences for
Theft by Unlawful Taking and Tampering with Physical Evidence are to run consecutive
to the other sentences. "Generally, Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed" Commonwealth v. Prisk, 13
A.3d 526, 533 (Pa. Super. 2011). With consecutive sentences, the question becomes
"whether the decision to sentence consecutively raises the aggregate sentence to, what
appears upon its face to be, an excessive level in light of the criminal conduct at issue in
the case." Commonwealth v. Mastromarino, 2 A.3d 581, 588 (Pa. Super. 2012). Ms.
Tedesco's aggregate sentence of 15.25 years to 30.5 years is not excessive in light of
the criminal conduct at issue in this case. The facts of the case outlined in this opinion,
including the prolonged suffering of Ms. Rabins and the theft of funds from a mentally
handicapped individual as discussed at the time of sentencing, warrant the sentence
imposed.
Additionally, the Court was privy to a pre-sentence report regarding the
Defendant Ms. Tedesco and "[w)here the sentencing judge has the benefit of a pre-
21
sentence report, it shall be presumed that 'the sentencing judge was aware of the
relevant information regarding the defendant's character and weighed those
considerations along with the mitigating statutory factors'." Commonwealth v. Bruner,
564 A.2d 1277, 1289 (Pa. Super. 1989) (quoting Commonwealth v. Devers, 546 A.2d
12, 18 (Pa. 1988)). In the instant case, the Court acknowledged receipt and review of
the pre-sentence investigation, including the report from Dr. Dattilio, during the
Defendant's sentencing. N.T. 10/26/2015 p.2. The Defendant's claim that the Court did
not consider the mitigation presented, including the report from Dr. Dattilio, is without
merit.
Finally, the Defendant has pointed to no sign of prejudice, ill will, or bias that
would render the decision manifestly unreasonable. Again, the sentence for Murder in
the Third Degree is within the guideline range and is therefore presumptively
reasonable. In sentencing the Defendant, the Court reviewed the PSI, letters from the
victim's family, letters from the Defendant's family and friends, and fashioned an
aggregate sentence based on the evidence presented at trial and the jury's ultimate
finding of guilt as to all charges. Because of the torture and abuse suffered by the
Victim, who was mentally handicapped, at the hands of the Defendants for their own
gain, the consecutive sentences did not result in an excessive aggregate sentence. The
Court did not abuse its discretion in sentencing Ms. Tedesco.
Ill. THE BRUTON ISSUE
Ms. Tedesco further alleges that the trial court erred in admitting grand jury
testimony of a co-defendant, namely Mr. Tedesco, in violation of Bruton. Defendant's
22
Amended Post-Sentence Motions, ,-r,r 2-4. The following discussion occurred regarding
the Bruton issue:
MR. MANCUSO: The Commonwealth has, Your Honor, marked for identification
Commonwealth's exhibit No. 93. These are the notes of testimony
dated March 26, 2013, before the county investigative grand jury
No. VI of Defendant John Tedesco, Your Honor. I offer 93. With the
Court's permission, I have certain portions of it that I'd like to be
read into the record by the trooper.
THE COURT: Any objection?
MS. SPISHOCK: Your Honor, could we approach?
THE COURT: Yes.
(The following discussion was held on the record at sidebar)
MS. SPISHOCK: I haven't looked at the grand jury testimony. I don't know if there's
any Bruton issues in here.
THE COURT: I think that was one question I have.
MR. MANCUSO: There's one segment which I've redacted and the trooper knows,
and he's going to say "the other person" in exchange for Mrs.
Tedesco.
THE COURT: Do you have that?
MR. MANCUSO: Page 58, from line 13 through line 25 - "my wife" has been
removed. "It was hard for the other person to take care of her by
herself." That's the only Bruton issue.
THE COURT: Any specific objection at this point? I mean, you can raise it as you
hear the testimony.
MS. SPISHOCK: Right. No, just as long as we don't go into the Bruton line.
23
MR. MANCUSO: Sure.
N.T. 8/11/2015 p.144-46.
Trooper De La Iglesia then read the grand jury transcript into the record. One of
the grand jury questions read was, "So would you guys split the duties taking care of
Barbara, you and your wife, or would it primarily be you?" In response, Mr. Tedesco
answered, "I had to change Barbara." At no point during the reading of the grand jury
testimony did defense counsel object. Id. at 152.
A defendant's Constitutional right to confrontation is violated when statements of
a non-testifying co-defendant that implicate the defendant are presented to the jury at
their joint trial. Bruton v. United States, 391 U.S. 123, 128 (1968). Where the defendant
is implicated by the co-defendant and is unable to cross-examine them, a limiting
instruction given to the jury to disregard the statements as to the defendant is not
sufficient to cure the prejudice against that defendant. Id. at 137.
Over time, the Court has further defined the rule in Bruton to find that there may
be various remedies to avoid a Confrontation Clause violation in such circumstances.
See Commonwealth v. Overby, 809 A.2d 295, 302 (Pa. 2002). Following the
jurisprudence developed by the Supreme Court, the Supreme Court of Pennsylvania
has held that "consistent with Bruton, the Commonwealth could introduce a redacted
statement into evidence at a joint trial only if that statement did not refer to the other
defendant." Id. (citing Commonwealth v. Johnson, 378 A.2d 859 (Pa. 1977)). Although
replacing the co-defendant's name with a symbol, the word "deleted", or a blank space,
is not sufficient to remedy the Bruton violation, Gray v. Maryland, 118S. Ct. 1151, 1152
24
(1998), where the co-defendant's name is replaced by "the other man," and a limiting
instruction is given, there is no Confrontation Clause violation. Commonwealth v.
Travers, 768 A.2d 845, 845-46 (Pa. 2001). See also Commonwealth v. Lopez, 739 A.2d
485, 499-500 (1999) (statement referring to "other guys" complied with Bruton).
Here, there was a redaction of a reference to Ms. Tedesco in Mr. Tedesco's
grand jury testimony, replacing "my wife" with "the other person". N.T. 8/11/15 p.144-46.
Although the later reference to "your wife" should have been redacted pursuant to
Bruton as the other reference to Ms. Tedesco was, counsel did not object upon the
reading, as discussed by the Court at sidebar. Therefore, the Court could not give an
instruction for the jury to disregard that statement at the time it was read.
Further, unlike the statements made in Bruton that directly implicated the co-
defendant in the crime, Mr. Tedesco's response did not directly implicate his co-
defendant Ms. Tedesco. Instead Mr. Tedesco implicated only himself as the one who
was responsible for changing Ms. Rabins. This is not the typical case of a co-defendant
attempting to shift blame to the defendant or minimize his own culpability, thereby
creating a prejudicial inference of the defendant's guilt. The grand jury testimony only
linked Ms. Tedesco to the crimes through other evidence properly admitted against her
at trial, and not directly by Mr. Tedesco implicating her as a co-defendant.
Although the Defendant further claims "the Court did not give an instruction to the
jury regarding the Bruton implications3," the following instruction was given to the jury at
the close of the trial:
3
Brief in Support of Defendant's Post-Sentence Motions, p. 10.
25
"In this case the Commonwealth introduced evidence of recorded and
nonrecorded interviews, testimony, and statements of the Tedescos during trial.
There's a rule that restricts your use of this evidence. A statement made by a
Defendant before trial may be considered as evidence only against that particular
Defendant who made the statement. Thus you may consider John Tedesco's
statements as evidence against him if you believe he made the statement
voluntarily. You must not, however, consider the statement as evidence against
Tina Tedesco. You must not use the statement in any way against her. Likewise,
you may consider the statements Tina Tedesco made as evidence against her if
you believe she made them voluntarily. You must not, however, consider her
statements as evidence against John Tedesco. You must not use the statements
in any way against him."
N.T. 8/14/15 p.238-39.
Ms. Tedesco was sufficiently insulated from Bruton prejudice through redaction
and the limiting instruction. Defense counsel did not object at the time the reference to
"your wife" was made. Mr. Tedescc's answer did not directly implicate Ms. Tedesco.
Therefore, the statement and accompanying answer by Mr. Tedesco at issue did not
produce a sufficient inference of guilt to prejudice the defendant beyond repair by the
limiting instruction.
IV. EXPERT TESTIMONY OF NURSE BLANCHARD-DORAN
Ms. Tedesco contends that the trial court erred in allowing Nurse Blanchard-
Doran to testify as an expert in the staging of pressure ulcer despite the fact that she
had not been questioned or cross-examined regarding her qualifications specific to
these types of wounds. Defendant's Amended Post-Sentence Motions, 1J 8. The
Defendant also argues that Nurse Blanchard-Doran should not have been admitted as
an expert witness at all because no notice was provided that the Commonwealth
intended to call her as an expert witness, no report exists as to her expert opinion, and
26
no curriculum vitae was provided. Brief in Support of Defendant's Post-Sentence
Motions, p. 10-11.
The following discussion regarding the testimony of Nurse Blanchard-Doran as
an expert witness was held at sidebar:
MS. SPISHOCK: Your Honor, I'm going to object. She's not been qualified as an
expert in staging wounds.
THE COURT: Counsel approach.
(The following was a record held at sidebar on the record)
THE COURT: She wasn't called as an expert or qualified as an expert. She was
called as a fact witness, but you are getting into the area of asking
her expertise. So if you are going to do that, then -
MR. MANCUSO: I'll lay the foundation.
THE COURT: -- we should give the other side an opportunity to question
qualifications and that kind of thing if you are going to call her for
expert testimony.
MR. MANCUSO: Sure. Your Honor, I'll hold the photo, and I'll ask the qualification
questions and the yield the floor for voir dire.
N.T. 8/7/15 p. 52. Following this discussion, the Commonwealth elicited testimony
regarding Nurse Blanchard-Doran's qualifications in the field of geriatric nursing
including courses she has taken in wound care and her experience with dysphasia. Id.
at 53-55. Counsel for the defense then questioned Nurse Blanchard-Doran on her
qualifications. Id. at 55-56. Nurse Blanchard-Doran was then received as an expert in
geriatric nursing. Id. at 56. No expert report was entered or created by Nurse Blanchard-
Doran in this case.
27
Pennsylvania Rule of Evidence 702 Testimony by Expert Witnesses, is as
follows:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge is
beyond that possessed by the average layperson;
(b) the expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue; and
(c) the expert's methodology is generally accepted in the relevant field.
Pa.RE. 702. "Determining whether a witness may testify as an expert is a matter within
the sounds discretion of the trial court, whose decision will only be reversed for a clear
abuse of discretion." Yacoub v. Lehigh Valley Medical Assoc .P.C., 805 A.2d 579, 591
(Pa. Super. 2002). In order to qualify as an expert in a specific field, the witness "must
possess more expertise than is within the ordinary range of training, knowledge,
intelligence, or experience. Id. The standard for qualification of an expert under
Pennsylvania law is a liberal one and the test to be applied is whether the witness has a
reasonable pretension to specialized knowledge on the subject under investigation. If he
does, he may testify and the weight given to that testimony is for the fact-finder to
determine. Commonwealth v. Gonzalez, 546 A.2d 26, 31 (Pa.1988). "It is also well
established that an expert may render an opinion based on training and experience;
formal education on the subject matter is not necessarily required." Commonwealth v.
Copenhefer, 719 A.2d 242, 254-55 (Pa.1998) (citing Miller v. Brass Rail Tavern, Inc.,
664 A.2d 525, 528 (Pa.1995)). Com. v. Puksar, 740 A.2d 219, 226 (Pa. 1999).
28
The Pennsylvania Rules of Criminal Procedure state that the Commonwealth
must provide to the defense the following requested information or items provided they
are material to the case:
any results or reports of scientific tests, expert opinions, and written or recorded
reports of polygraph examinations or other physical or mental examinations of
the defendant that are within the possession or control of the attorney for the
Commonwealth
Pa.R.Crim.P. 573(B)(1)(e).
Nurse Blanchard-Doran was admitted as an expert in geriatric nursing, not
specifically an expert in the care of pressure ulcers or staging wounds. Although no
curriculum vita was provided for Nurse Blanchard-Doran, the Commonwealth did elicit
her qualifications specific to nursing in general and her experience with pressure ulcers
in elderly patients on direct examination. N.T. 8/7/15 p.53-56. Her expertise in geriatric
nursing qualifies her to discuss pressure ulcers and wounds and her knowledge of them
as they relate to geriatric patients. She is not required to be admitted as an expert in
pressure ulcers and their staging specifically, as the Defendant contends in her brief, to
be qualified to discuss pressure ulcers in geriatric patients. Further, the Commonwealth
did not violate the Rules of Criminal Procedure regarding disclosure because no expert
report or opinion was generated by Nurse Blanchard-Doran in relation to this case, and
at no time during the trial did the defense object to the fact that Nurse Blanchard-Doran
did not generate a report as to her expert opinion, therefore this issue was waived.
V. ADMISSION OF EVIDENCE ALLEGEDLY NOT PROVIDED TO THE DEFENSE
Ms. Tedesco contends that the trial court erred in allowing the Commonwealth to
present at trial various items and records which were not given to the defense prior to
29
-
trial in violation of Pennsylvania Rule of Criminal Procedure 573. Defendant's Amended
Post-Sentence Motions, ,m 9-12. Specifically, the defense argues that the records from
Ms. Leinwand, the administrator of Ms. Rabins' trust, and the items that were contained
in a purse belonging to Ms. Rabins were not disclosed by the Commonwealth and
should therefore not have been admitted against defense objections. Id.
Pennsylvania Rule of Criminal Procedure 573(8) enumerates items that are
mandatory for the Commonwealth to disclose upon the defendant's request if they are
material to the case, and provides that when applicable, the Commonwealth shall
"permit the defendant's attorney to inspect and copy or photograph such items."
Pa.R.Crim.P. 573(8)(1). This list includes mandatory disclosure of "any tangible objects,
including documents, photographs, fingerprints, or other tangible evidence." Id. at
(8)(1)(f). Further, "if prior to or during trial, either party discovers additional evidence or
material previously requested or ordered to be disclosed by it, which is subject to
discovery or inspection under this rule, [ ... ] such party shall promptly notify the
opposing party or the court of the additional evidence." Id. at (D).
In order for a conviction to be reversed based on the improper withholding of
evidence, there must be a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different. United States v.
Bagley, 473 U.S. 667, 680 (1985). "A 'reasonable probability' is a probability sufficient to
undermine confidence in the outcome." Id. "[H]armless error exists in three alternative
scenarios: where the error did not prejudice the defendant or the prejudice was de
minimis, the erroneously admitted evidence was merely cumulative of other untainted
30
evidence which was substantially similar to the erroneously admitted evidence, or the
properly admitted and uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison that the error could not
have contributed to the verdict." Commonwealth v. Chmiel, 889 A.2d 501, 521 (citing
Commonwealth v. Smith, 861 A.2d 892 (Pa. 2004)).
The following discussion occurred regarding the evidence in question:
MS. BLEICE: Your Honor, we briefly - Mr. Saurman and I had a chance to review
what's in 16. I don't believe it's something that I've seen.
THE COURT: This is Exhibit 37. You are talking about the overall exhibit 37?
MS. BLEICE: Correct.
MR. SAURMAN: The lease we've seen. The lease I have a copy of. I've never seen
these handwritten notes from Ms. Rabins. They are not in
discovery. At least they are not - you know, we have got tons of
discovery, but I think I've gone through it fairly carefully, and I've
never seen copies of those.
THE COURT: Why don't we hold those. Will you check to see if they were -
MR. MANCUSO: Can I start at the beginning? What the witness has been shown are
items he collected as evidence that were logged into evidence.
THE COURT: Um-hum.
MR. MANCUSO: There were property records sent in discovery containing those
items.
THE COURT: Containing everything that was contained inside the envelope?
MR. MANCUSO: No, identifying what was seized or processing of the apartment.
THE COURT: On the cover sheet of the -
MR. MANCUSO: Yes. And under the rules of discovery, there's a right to inspect any
items that were seized into evidence. It's been my experience that
not every item seized is photocopied and made part of the report.
31
Counsel had the opportunity - and I don't mind them looking at it
now, but they had the opportunity for months, if not over a year or
more, to inspect all the items that were seized by the police both at
the search of the house of the Defendants and the subsequent
search of the apartment.
MS. SPISHOCK: Are these property records that just came in like a week or so ago?
MR. MANCUSO: No.
MS. SPISHOCK: Because we just got a pack of property records.
MR. MANCUSO: You did. As evidence is moved around, some sent to the lab, some
sent; for instance, to the DA's office, property records are updated.
The signatures-people sign for them, but the actual property
records that we had initial seizure were part of the original
discovery packet in this case, the first 700 pages or so. And they go
from the incident number, and then there's later addendums each
given a latter, and I think we're up to J, if I remember correctly. So
all I'm saying is -
THE COURT: Were these-was this paperwork identified in the cover sheet that
was sent over in discovery?
MR. MANCUSO: In the cover sheet as police reports, yes. As property records, no.
They are contained as part of the police reports.
MS. BLEICE: So there's no notice that there's letters from the decedent that
apparently they are planning on introducing into evidence. I mean-
MR. MANCUSO: Let me get the property records. You could see what I'm referring
to.
MS. BELICE: Okay.
MR. MANCUSO: This is the property record in question, Your Honor. There is three
items listed. And item No. 2 -
THE COURT: Documents that are -
MR. MANCUSO: Miscellaneous documents. So that puts the Defense on notice
there's evidence to look at. You set up a time or contact me
directly, and we always make that available.
32
THE COURT: Uh-huh.
MR. SAURMAN: Judge, there's a big difference between a letter, which is readily
copied and give us a copy of. They copied the lease. And the other
papers they are going to introduce, the content of which we haven't
seen, this is not - we're not talking about -
MR. MANCUSO: The lease agreement wasn't copied. Also, there was another copy
of the lease agreement provided by the landlord. That was entered
into along with the application. But if you look at the lease
agreement, it's pretty fragile and dirty. It wasn't copied and made
part of the report.
MR. SAURMAN: It's one thing to have physical evidence and say you can inspect it if
you are talking about - not in this case, but shell casings or in this
case the furniture, the things that were swabbed, those are things
you can inspect and have your people look at. And it's understood
you are not going to get a copy of those because they are physical
items. When you are dealing with a piece of paper that can readily
be copied, there's absolutely no reason not to turn it over, and then
to come now and say, well, they knew it was on the report is-
THE COURT: I don't know. Why wouldn't you look at the list and say, I want to
see what these documents say.
MR. SAURMAN: Because the expectation and the assumption is, and this is an
assumption, but it's a reasonable one, is that we were going to get
copies of any documents that are copied. They are supposed to
give us full and complete discovery. To take something down and
then sneak it in later I think is unreasonable.
THE COURT: I'm not going to - you knew that there were documents there. They
were available. They could be inspected. So that to me, that's a
problem for the Defense lawyer, but there may be - are there any
issues as far as the rules of evidence are concerned with the
documents themselves?
N.T. 8/7/15 p. 133-37. The Court then accepted the evidence subject to the right of the
defense to raise evidentiary issues after they have inspected them. Id. at 138. A two-
page lease agreement and spiral notebook were received into evidence as
Commonwealth exhibit No. 37 after the defense was provided with an opportunity to
33
review them. Later, a similar objection was lodged as to the introduction of
miscellaneous documents found in the Tedesco master bedroom. Id. at 155-57. The
Commonwealth then stated, "just so the record is clear, these items were always
available for inspection, and they are identified on the property records that were
supplied to both counsel." Id. at 156. The documents were then reviewed by the
defense and received into evidence against no objection. Id. at 157.
The defense similarly contends that several documents from Ms. Rabins' trust
administrator were entered into evidence in violation of pre-trial discovery. N.T. 8/10/15
p. 43. The trust documents were documents that Ms. Leinwand, the administrator of the
trust, had brought with her and given to the Commonwealth upon her arrival. They were
not in the possession of the Commonwealth to give to the defense during pre-trial
discovery and were turned over to the defense as soon as they were in the
Commonwealth's possession. Id. at 44. Mr. Mancuso for the Commonwealth stated that
"[a]t the earliest opportunity I put both on counsel table prior to 8:30 this morning. As
soon as I saw both counsel, I explained what it was and when I got it." Id. at 45.
The Commonwealth did not violate the rule of pre-trial discovery with regards to
any of the aforementioned evidence. Rule 537(8) was not violated as the
Commonwealth provided a complete list of the documents and items in their possession
to the defense. The records were available for inspection and copying. The
Commonwealth also properly abided by Rule 537(0) with regard to the evidence they
received from Ms. Leinwand when they promptly notified and provided a copy of the
documents to counsel upon their receipt. The Commonwealth "does not violate
34
discovery rules where it does not provide defendant with evidence that it does not
possess and of which it is unaware during pretrial discovery." Commonwealth v. Flood,
672 A.2d 1193, 1200-01 (Pa. Super. 1993).
Further, even if it were found that the Commonwealth did violate the rules of
discovery and evidence was improperly admitted, it was harmless error. The evidence
complained of was merely cumulative evidence of facts already established by the
Commonwealth. The staggering amount of evidence and testimony presented as to the
same facts in this case effectively renders the complained of documents harmless. The
complained of exhibit No. 37 includes a two page lease agreement, a spiral notebook
containing handwritten notes of Ms. Rabins including lists of items she wished to
purchase, and several miscellaneous letters written by Ms. Rabins. If admitted
improperly, the items did not put forth material facts not already testified to or
established by other Commonwealth evidence, and therefore were cumulative. Although
the defense argues that the "amount of evidence which was not disclosed to counsel?"
prejudiced the Defendant, more specificity is required to show that Ms. Tedesco
suffered harm by the alleged lack of disclosure and admission of these items. The
Defendant did not object to any specific documents and identify their prejudicial effect.
Therefore, the Court properly admitted the aforementioned evidence, and if the
admission was in error, the Defendant is still not entitled to a new trial because of the
harmless nature of the alleged error.
4
Brief in Support of Defendant's Post-Sentence Motions, p. 14.
35
VI. FACT WITNESS JILLIAN VISCARDI
Ms. Tedesco claims that the trial court erred in allowing the Commonwealth to
call Jillian Viscardi to testify when she was never disclosed as a potential witness to the
Defense. Defendant's Amended Post-Sentence Motions, ,m 15-18. The following
discussion was held at sidebar regarding Ms. Viscardi's testimony:
MR. SAURMAN: Your Honor, my objection would be that - I understand we just had
an offer of proof. Obviously, at some point down the line, someone,
a trooper, somebody has interviewed this witness. We have not-
MR. SAURMAN: Someone would have had to interview her at some point to find out
what she's going to say. We've had no evidence. We have no
statements. We have nothing. So they are producing a witness now
for the first time with no notice to give us a chance to talk to her as
well.
MR. MANCUSO: Mr. Mancuso, myself, was the first to talk to her, and that was when
she was identified by Laura Klotz in a photograph dateable to July
of 2011 in the company of the Tedescos. So there was no
statement.
THE COURT: There are no police reports or interview of her?
MR. MANCUSO: Correct. Yes, sir.
MS. SPISHOCK: When was that interview with Klotz?
MR. MANCUSO: July
MS. SPISHOCK: Of this year?
MR. MANCUSO: Yes
MS. SPISHOCK: We didn't have notice of this.
THE COURT: Is that required notice under the discovery rule?
36
MR. MANCUSO: No, it's not. It was in the course of trial prep that I talked to Ms.
Klotz, and the identity of who the other girl in the photograph was
revealed.
THE COURT: All right. Objection overruled.
N.T. 8/7/15 p.189-90.
Pennsylvania Rule of Criminal Procedure 573 Pretrial Discovery and Inspection
lists the following disclosure by the Commonwealth as mandatory when requested by
the defendant and material to the instant case:
(a) Any evidence favorable to the accused that is material either to guilt or to
punishment, and is within the possession or control of the attorney for the
Commonwealth;
(b) any written confession or inculpatory statement, or the substance of any oral
confession or inculpatory statement, and the identity of the person to whom the
confession or inculpatory statement was made that is in the possession or control
of the attorney for the Commonwealth;
(c) the defendant's prior criminal record;
(d) the circumstances and results of any identification of the defendant by voice,
photograph, or in-person identification;
(e) any results or reports of scientific tests, expert opinions, and written or
recorded reports of polygraph examinations or other physical or mental
examinations of the defendant that are within the possession or control of the
attorney for the Commonwealth;
(f) any tangible objects, including documents, photographs, fingerprints, or other
tangible evidence; and
(g) the transcripts and recordings of any electronic surveillance, and the authority
by which the said transcripts and recordings were obtained.
Pa.R.Crim.P. 573(8)(1)(a-g). Additionally, the rule provides for discovery that is
discretionary with the court, where the court may order the Commonwealth to allow the
37
defendant's attorney to inspect and copy or photograph any of the following items upon
a motion for pretrial discovery if they are material and the request is reasonable:
(i) the names and addresses of eyewitnesses;
(ii) all written or recorded statements, and substantially verbatim oral statements,
of eyewitnesses the Commonwealth intends to call at trial;
(iii) all written and recorded statements, and substantially verbatim oral
statements, made by co-defendants, and by co-conspirators or accomplices,
whether such individuals have been charged or not; and
(iv) any other evidence specifically identified by the defendant, provided the
defendant can additionally establish that its disclosure would be in the interests
of justice.
Pa.R.Crim.P. 573(8)(2)(a)(i)-(iv). Since the pretrial submission by the prosecution to
defendant of a witness list is discretionary under the rule, the court may permit
witnesses not on the list to testify. Commonwealth v. Shinn, 16 Pa. D&C 3d 326, 332
(1980). There is no requirement that the Commonwealth disclose the name and
addresses of all witnesses. Commonwealth v. Colson, 490 A.2d 811, 823 (Pa. Super.
1985).
Here, Ms. Viscardi's existence or that the Commonwealth intended to call her as
a witness did not fall under requirements of mandatory discovery. Ms. Viscardi was
discovered through diligent trial preparation by the Commonwealth. She was well known
to the Tedescos, and her testimony concerned day to day activities in their home and
their vacations, which came as no surprise to them. Ms. Tedesco contends that
disclosure of Ms. Viscardi's interview with Mr. Mancuso in preparation for trial is
required under Rule 573(8)(2)(a)(i) and (ii) upon their motion for pre-trial discovery as
an eyewitness. Brief in Support of Defendant's Post-Sentence Motions, p.16. This
section of the discovery rule does not apply to Ms. Viscardi as she was not an
38
eyewitness to the crime. See Commonwealth v. Jones, WL 371567 *19 (Pa.Com.Pl.
1990) (holding a person who is present at the scene of the crime but did not see the
crime occur is not an "eyewitness" and therefore, their identity is not discoverable). In
fact, Ms. Viscardi's testimony established that she had never seen or even heard of Ms.
Rabins. N.T. 8/7/15 p.200. It is also understood that Ms. Viscardi was identified from a
photograph that was provided to the defense in discovery and that the Tedescos were
aware of her identity as she was a friend of her daughter throughout 2010 and 2011.
Further, Ms. Tedesco's right to confrontation was not violated as Ms. Viscardi was
subject to cross-examination.
Finally, the Defendant contends that "[t]he fact that Attorney Mancuso
interviewed Ms. Viscardi without anyone else being present violated Rule 3.7 of the
Pennsylvania Professional Rules of Conduct" that states that an attorney "shall not act
as an advocate at trial in which the lawyer is likely to be a necessary witness." Brief in
Support of Defendant's Post-Sentence Motions, p.17. No such violation occurred in this
case where Attorney Mancuso was not likely to become a necessary witness. His
interview with Ms. Viscardi was in the normal course of trial preparations. The purpose
of this rule, as noted in the explanatory comments, is to prevent the jury from being
confused or mislead by an attorney serving as both an advocate and a witness.
Pa.R.P.C. 3.7, Explanatory Comment 2. Facts giving rise to a violation of Rule 3.7 do
not exist in this case where it was not likely that Attorney Mancuso would become a
necessary witness at trial, and where he did not in fact become a witness at trial.
39
VII. TESTIMONY OF CORPORAL GROSS
Ms. Tedesco contends that the trial court erred in allowing Corporal Gross'
testimony regarding the condition of Ms. Rabins' body at the autopsy because it was
cumulative and prejudicial". At trial, Defense counsel objected to the testimony of
Corporal Gross as cumulative. N.T. 8/7/15 p.214. As Corporal Gross began to testify as
to his observations of the body while present at the autopsy, Defense counsel objected:
"The objection is, Your Honor, that other people have already testified to this
evidence. I believe that it's cumulative. I believe Dr. Land testified to it. I believe
the coroner has already testified to it. I believe the EMT has already testified to it.
It's cumulative at this point."
Id. The Commonwealth countered that Corporal Gross could testify as to his
observations. Id. The Court allowed Corporal Gross to testify as to his observations
"without belaboring the point" since there was evidence presented on the autopsy and
state of Ms. Rabins' body already. Id. After the objection, Corporal Gross merely
testified that Ms. Rabins was wearing a t-shirt and adult diaper that had feces and urine
in it. Id. at 215. An objection was then sustained as to Corporal Gross testifying about
the release of feces upon death, and he moved on to testifying about how the
investigation progressed from there. Id. at 216-217.
Pennsylvania Rule of Evidence 403 is as follows:
The Court may exclude relevant evidence if its probative value is outweighed by
a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.
5
Amended Post Sentence Motions, ,m 13-14. Defense did not object to the prejudicial nature of
this testimony at trial, and therefore did not preserve the objection. Therefore, this opinion will
only address the motion regarding cumulative evidence.
40
Pa.R.E., Rule 403. Pursuant to this rule, cumulative evidence is repetitious and may be
properly excluded within the discretion of the court. See Baker v. Morjon, Inc. 574 A.2d
676, 679 (Pa. Super. 1990).
The testimony of Corporal Gross about the state of Ms. Rabins body as he
observed it at the autopsy was limited. He testified that Ms. Rabins was dressed in a t-
shirt and adult diaper with feces and urine in it. He did not testify further as to the state
of her body. Although testimony regarding the state of Ms. Rabins' body was previously
elicited, albeit in a much more graphic fashion, Corporal Gross' testimony regarding his
observations at the autopsy was necessary to explain why he then initiated the
investigation into Ms. Rabins death. The probative value of this very limited testimony
was not outweighed by needlessly presenting cumulative evidence. Further the
defendant has failed to show how Corporal Gross' limited testimony about the state of
Ms. Rabins' body prejudiced her. The motion has no merit.
41
COURT OF COMMON PLEAS OF MONROE COUNTY
FOURTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
COMMONWEAL TH OF PENNSYLVANIA, : NO. 2229 CR 2013
vs.
TINA TEDESCO,
Defendant
ORDER
AND NOW, this 3rd day of March, 2016, upon consideration of Tina Tedesco's
Post-Sentence Motion and the briefs and arguments of both sides, the Post-Sentence
Motion is DENIED.
BY THE COURT:
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ARTHUR L. ZULI
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COURT OF COMMON PLEAS OF MONROE COUNTY
43RD JUDICIAL DISTRICT
COMMONWEAL TH OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
Vs 2229 CR 2013
TINA TEDESCO
OPINION/ORDER
District Attorne
I, Mindy Ditmars, depose the said attached Opinion/Order in the above mentioned manner on
March 3 2016.
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Circulated 02/28/2017 03:51 PM
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, No. 2229 CR 2013
vs.
TINA TEDESCO,
Defendant
OPINION
Defendants John Tedesco and Tina Tedesco were charged with Third Degree
Murder, Neglect of the Care of a Dependent Person, Criminal Conspiracy, Theft and
Tampering with Evidence on July 9, 2013. These charges arose from the August 18,
2011 death of Barbara Rabins, a single woman with physical and mental disabilities,
then 70 years of age. The Tedescos filed Omnibus Pretrial Motions on January 28,
2014. A hearing on the motions was held on February 27, 2014. The parties were given
leave to file briefs after the transcript of the omnibus hearing was prepared. This opinion
addresses the issues raised in Tina Tedesco's omnibus pretrial motion.
FINDINGS OF FACT
I make the following findings of fact for purposes of Pa.R.Crim.P. 581 (I) from
the evidence presented by the parties at the omnibus hearing.
1. John Tedesco and Tina Tedesco resided at 102 Corine Way, Saylorsburg,
Pennsylvania with their children in 2011. John Tedesco was a building supervisor in
New Jersey and his wife, Tina Tedesco was a homemaker who worked occasionally as
a substitute teacher.
1
........
2. Barbara Rabins was 70 years old at the time of her death on August 17, 2014.
The Tedescos told the police that she was living in their home when she died, but the
evidence suggests that she was living in an apartment on Route 115 in the Saylorsburg
area.
3. John Tedesco met Barbara Rabins through his employment years before. Ms.
Rabins was mentally and physically disabled and was not capable of taking care of
herself. The Tedescos provided care for her for twelve years and were paid for their
services.
4. Barbara Rabins did not have close family members. The family she did have
resided out of state and was estranged from her. Her father established a trust fund for
her before his death, which was paying the Tedescos for her care.
5. The Tedescos received $1,550 per month in rent and $450 per month for
incidental expenses from the Barbara Rabins trust. Tina Tedesco was also the payee of
her social security funds in the amount of $1,300 per month. The Rabins trust fund also
paid the Tedescos household utility bills. These payments were made to the Tedescos
in exchange for their agreement to provide for her care.
6. Cindy Skrzypek of the Monroe County Coroner's Office was called to the
Tedesco home at 03: 13 on August 18, 2011, with a report that an elderly female had
died. Preliminary hearing transcript, p.46. When she arrived, Barbara Rabins' body was
slumped in a wheelchair in the Tedesco living room. John Tedesco and Tina Tedesco
were present. John Tedesco reported that he had gone to work at 19:30. Tina Tedesco
2
stated that when she went to bed at 23:30, Ms. Rabins appeared to be asleep in her
wheelchair. John Tedesco found the body when he returned home at 02:54.
7. Barbara Rabins was pronounced dead by the Monroe County Coroner's Office
on August 18, 2011 at 04:19. Ms. Skrzypek was suspicious of the circumstances of Ms.
Rabins' death, due to extensive injuries and the general condition of the body which
appeared to have resulted from neglect. She arranged for an autopsy and contacted the
Pennsylvania State Police.
8. An autopsy was done of Barbara Rabins' remains on August 19, 2011 by Sam
Land, M.D., a forensic pathologist in Allentown, Pennsylvania. The pathologist found
that at the time of her death Ms. Rabins was wearing an adult disposable diaper that
was wet with urine, feces and blood. Autopsy report, page 3. She suffered from
pressure ulcers on her chest, thighs, legs, feet, right elbow and forearm, back, lower
back and buttocks and hand. Autopsy report of Dr.Land; Report of Elaim Matlock,
L.P.N. Photographs of the decedent's body at the time of the autopsy showed that her
arms and hands were dirty and covered in feces, with feces under her overgrown
fingernails. Matlock report. Several of the ulcers were large and deep. The large stage 4
ulcer on her back and buttocks was exacerbated by her incontinence and malnutrition.
Id. The skin and underlying tissue in her vaginal area suffered injury from sitting in urine
and feces. Id.
9. Ms. Rabins weighed 116 pounds at the time of her death. Autopsy report. On
3
--
July 14, 2010 she weighed 219 when she was discharged from Forest Manor Health
Care Center of Hope, New Jersey. Discharge Summary of Forest Manor Health Care
Center, July 14, 2010, Com. Preliminary Hearing Exhibit 57.
10. The pathologist found a piece of cheese lodged in Barbara Rabins windpipe.
He also found that she was dehydrated. Cause of death was determined to be
"hypernatremic dehydration with aspiration of food bolus." Autopsy Report of S. Land,
page 3. Com. Preliminary Hearing Exhibit 57.
11. Corporal William Gross of the Pennsylvania State Police was present for the
autopsy. Prehminary hearing transcript, p. 8.
12. The Pennsylvania State Police submitted an application to District Magisterial
Judge Jolana Krawitz on August 24, 2011, for a search warrant for the Defendants'
residence, vehicles and out-buildings at 102 Corine Way, Saylorsburg, Ross Township,
Monroe County, Pennsylvania.
13. Judge Krawitz authorized the search warrant on August 24, 2011.
14. The Pennsylvania State Police executed the warrant and conducted a search
of Defendants' residence on August 24, 2011.
15. Tina Tedesco was at home at the time of the search. John Tedesco returned
to the home as the police officers were concluding the search.
16. The state police found a State Farm Life Insurance Policy on a dresser in the
Tedesco master bedroom during the search. The policy insured Barbara Rabins' life for
$100,000 and named John and Tina Tedesco as beneficiaries. The policy identified the
Tedescos as Barbara Rabins' niece and nephew. Com. Exhibit 39, Preliminary hearing.
4
17. At the conclusion of their search, the state police asked the Tedescos to
come to the state police barracks to speak with the police about the Tedescos' care of
Barbara Rabins and the circumstances of her death. NT 23. The troopers then left.
18. The Tedescos drove from their home to the barracks about 30 minutes after
the troopers completed their search of the defendants' home. NT 23. They arrived at the
barracks at approximately 18:15. NT 23, 57.
19. At the barracks, the Tedescos were met by Trooper Bonin. They signed in on
the barracks visitors' log and were escorted to separate interview rooms. NT 57, 81.
Each was told that they were not under arrest and that they were free to leave at any
time.
20. The Tedescos were not given Miranda warnings by the troopers.
21. John Tedesco was interviewed in an interview room with a two way mirror.
NT 41. Tina Tedesco was interviewed in a sergeant's office. NT 40.
22. The doors of the interview rooms were closed but not locked. NT 40.
23. At no time did either of the Tedescos ask to speak to an attorney or refuse to
answer any questions. NT 43, 61.
24. John Tedesco signed a "Noncustodial Written Statement" form at the start of
his interview. Com. Exhibit 6, NT 58, 68. The form contained language stating that Mr.
Tedesco was not in custody and the interview was being voluntarily given. NT 59.
25. John Tedesco left the interview room two times to use the public bathroom in
the lobby. No one accompanied him to the bathroom. NT 44,45. He voluntarily returned
to the interview room to speak with the troopers.
5
26. Following his interview, John Tedesco gave the police a written statement
which he signed at 20:45.
27. Trooper Bonin and Trooper De La Iglesia interviewed Tina Tedesco. The
interview lasted one hour and 26 minutes.
28. At the time the interview of Tina Tedesco was taken, she was repeatedly
advised that she was not under arrest and that she was free to leave. The troopers
explained that the door to the interview room would be closed because it was a busy
office, but that she could leave the room at any time by walking out. NT 25.
29. The state police considered the Tedescos to be suspects in the crime of
neglect of Barbara Rabins, a care-dependent person, at the time of they were
questioned. NT 30, 38.
30. After her interview was completed, Tina Tedesco went out to the parking lot
where she waited in her car for her husband. Troopers Bonin and Finn went to her
vehicle at the completion of John Tedesco's questioning to ask Tina Tedesco to come in
and answer additional questions. She came back into the station and submitted to a
second interview. NT 32, 86. This second interview lasted about ten minutes. Id.
31. After their interviews were over, the Tedescos left the barracks at
approximately 22:00. NT 24, 26.
32. The state police searched an apartment on old Route 115 in Saylorsburg on
October 3, 2011. During the search, the police found a lease agreement for the
apartment in the names of Tom Miller/Barbara Robins dated February 1, 2008. The
application for the lease appeared to have been completed by John Tedesco and
6
named Tom Miller as his uncle and Barbara Rabins as his aunt. Com. Exhibit 51,
Preliminary hearing.
33. The apartment was in a filthy condition. There were wheelchairs, walkers and
a blanket and couch upholstery in a soiled condition. Com. Exhibit 44, 46, 50.
34. The District Attorney's office sought and obtained court orders dated
September 13, 2011, for Barbara Rabins' medical records from Pocono Medical Center;
October 18, 2011 for her patient records from Somerset Valley Rehabilitation and
Nursing Facility; and October 18, 2011 for her patient records from Forest Manor Health
Care Center. Com. Exhibits 53-57, Preliminary hearing.
35. The Monroe County Coroner's Office issued a death certificate for Barbara
Rabins on April 18, 2012 identifying the manner of death as homicide and the
immediate cause of death as "Hypernatremic Dehydration with Aspiration of Food
Bolus." Com. Exhibit 25, Preliminary hearing.
36. Tina Tedesco's counsel submitted evidence of media coverage of the
Tedesco's arrest and prosecution.
37. Articles discussing the Tedescos' arrest appeared in the Pocono Record
dated July 10, 2013, July 11, 2013, July 12, 2013 after their arrest; September 20, 2013
after their preliminary hearing; and February 4, 2014 when they were scheduled for trial.
There was area television coverage of the Tedescos' case on WNEP on July 10, 2013
and September 19, 2013. WFMZ carried a report on July 10, 2013. Defendant's Exhibit
1.
7
DISCUSSION
Tina Tedesco has raised five challenges to the Commonwealth's prosecution.
She contends that 1) charges should be dismissed due to prosecutorial delay; 2) she is
entitled to a change of venue for purposes of trial due to pre-trial publicity; 3) her
statements given to the Pennsylvania State Police on August 24, 2011 should be
suppressed; 4) charges should be dismissed for lack of a prima facie case; and 5) her
trial should be severed from that of her husband.
/. Request for Dismissal Due to Prosecutorial Delay
Ms. Tedesco first argues that she is entitled to dismissal due to prosecutorial
delay. She contends that the police waited too long to charge her. Barbara Rabins was
pronounced dead on August 18, 2011; the police searched the Tedesco home and
interviewed John and Tina Tedesco on August 24, 2011. Ms. Tedesco was not charged
and arrested for third degree murder and other related charges until July 9, 2013.
Ms. Tedesco makes no claim that the statutes of limitations on these
prosecutions had expired. They had not.1 Tina T edesco's claim rests instead on the
Due Process Clause of the United States and Pennsylvania Constitutions. "The
constitutional right to due process also protects defendants from having to defend stale
charges, and criminal charges should be dismissed if improper pre-arrest delay causes
prejudice to the defendant's right to a fair trial." Commonwealth v Snyder, 713 A.2d
1
A prosecution for murder or conspiracy to commit murder may be commenced at any time. 42 Pa.C.S.A.
§5551. A prosecution for neglect of a care-dependent person, 18 Pa.C.S.A. §2713(a)(1), theft by unlawful
taking, 18 Pa.C.S.A. §3921(a) and theft by failure to make required disposition of funds, 18 Pa.C.S.A.
§3927(a) must be commenced within five years of the commission of the offense. 42 Pa.C.S.A. §5552
(B)(1). A prosecution for tampering with evidence, 18 Pa.C.S.A. §4910 (1) must be commenced within
two years after it is committed. 42 Pa.C.S.A. §5552(a).
8
596, 599-600 (Pa. 1998). Our appellate courts have however affirmed convictions in
numerous cases in which defendants were arrested and convicted of homicide charges
many years after the commission of a crime due to lengthy investigations and/or
recently discovered evidence. See Commonwealth v. Clayton, 516 Pa. 263, 532 A.2d
385 (1987) (four years); Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987)
(more than three years); Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985),
cert. denied, 476 U.S. 1140, 106 S. Ct. 2245, 90 L. Ed. 2d 692 (1986) (more than three
years); Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978) (six years and
nine months); Commonwealth v. Crawford, 468 Pa. 565, 364 A.2d 660 (1976) (almost
four years); Commonwealth v. Rico, 443 Pa.Super. 507, 662 A.2d 1076 (1995) (more
than seven years); Commonwealth v. McCauley, 403 Pa.Super. 262, 588 A.2d 941
(1991) (twelve years); Commonwealth v. Akers, 392 Pa.Super. 170, 572 A.2d 746
(1990) (thirteen years); Commonwealth v. Patterson, 392 Pa.Super. 331, 572 A.2d 1258
(1990) (twenty-two years); Commonwealth v. Grazier, 391 Pa.Super. 202, 570 A.2d
1054 (1990) (six years and nine months); Commonwealth v. Arnold, 331 Pa.Super. 345,
480 A.2d 1066 (1984) (fifteen months). Commonwealth v. Scher, 803 A.2d 1204 (Pa.
2002) (twenty years).
The parties both cite the case of Commonwealth v. Scher, 803 A.2d 1204
(Pa.2002) (Opinion Announcing the Judgment of the Court), cert. denied, 538 U.S. 908,
123 S. Ct. 1488, 155 L. Ed. 2d 228 (2003), for the due process standard to be applied
when there has been a significant period of delay between a crime and the prosecution
9
of that crime. However, Scher was a plurality decision, which does not have
precedential value. Commonwealth v. Wright 865 A.2d 894, 900 -901 (Pa.Super.2004).
The Pennsylvania Supreme Court held in Commonwealth v. Snyder, 713 A.2d
596 (Pa. 1998), that pre-arrest delay constitutes a due process violation where there
has occurred "actual prejudice to the defendant" and there existed "no proper reasons
for postponing the defendant's arrest." Id. at 605. The Pennsylvania Superior Court
thereafter stated that "even in the face of prejudice, delay is excusable if it is a
derivation of reasonable investigation." Commonwealth v. Snyder, 761 A.2d 584, 587
(Pa.Super.2000) (en bane), appeal denied, 572 Pa. 703, 813 A.2d 841 (2002), citing
Commonwealth v. Sneed, 526 A.2d 749 (Pa.1987). Thus, it is clear that any inquiry into
pre-arrest delay must be directed to both the existence of prejudice to the defendant
and to the cause of the delay. Commonwealth v. Wright, 865 A.2d 894, 901
(Pa.Super.2004).
There is a shifting burden in extended pre-arrest delay cases with the initial
burden upon the accused to establish that the pre-arrest delay caused actual prejudice,
and the subsequent burden upon the Commonwealth to provide a reasonable basis for
the extended delay in prosecuting the crime. See: United States v. Sowa, 34 F.3d 447
(7th Cir.1994), cert. denied, 513 U.S. 1117, 115 S. Ct. 915, 130 L. Ed. 2d 796 (1995);
Howell v. Barker, 904 F.2d 889 (4th Cir.1990), cert. denied, 498 U.S. 1016, 111 S. Ct.
590, 112 L. Ed. 2d 595 (1990). Commonwealth v. Wright, supra at 902.
Barbara Rabins was pronounced dead on August 18, 2011. The state police
searched the Tedesco home on August 24, 2011; that evening they took extensive
10
statements from the Tedescos at the state police barracks. The District Attorney's office
obtained a court order on September 13, 2011 for Barbara Rabins' medical records
from Pocono Medical Center; police searched the apartment rented by John Tedesco in
Barbara Rabins and Tom Millers' names on Route 115 on October 3, 2011. A court
order was obtained on October 18, 2011 for Barbara Rabins' patient records from
Somerset Valley Rehabilitation and Nursing Facility; and October 18, 2011 for her
patient records from Forest Manor Health Care Center. The Coroner filed a death
certificate stating that the cause of death was homicide on April 18, 2012. The
Commonwealth thereafter presented a case against the Tedescos to the grand jury and
obtained statements from the Tedescos' children. Commonwealth's brief
Ms. Tedesco presented no evidence of actual prejudice during the hearing, but
argues in her brief that Ronnie Mendel, Barbara Rabins' sister, is very ill.2 She contends
that Ms. Mendel would have been able to testify that she was estranged from Barbara
Rabins through no fault of the Tedescos. She also could have described the Barbara
Rabins trust agreement. She also contends that she has been prejudiced because Tom
Miller, the man who may have shared the apartment on Route 115 with Barbara Rabins
is now ill and in a Veteran's Hospital in Luzerne County. It is alleged that he can no
longer recall facts regarding Barbara Rabins or his/their dealings with John Tedesco.
When a defendant claims prejudice through the absence of witnesses, there
must be a showing of how the missing witness would have aided the defense. U.S. v.
Trammell, 133 F.3d 1343, 1351 (101h Cir. 1998). Furthermore, it is the defendant's
2
The Commonwealth states in its brief that Ronnie Mendel is deceased.
11
burden to show that the unavailable testimony may not be proven through other means.
U.S. v. Rogers, 118 F.3d 466, 475 (6th Cir. 1997).
The Commonwealth responds to this argument by noting that Tom Miller was not
living with Barbara Rabins at the time of her death; he was already in the Veterans
Hospital, and could not recall the details of his contacts with Barbara Rabins and John
Tedesco at that time. Ronnie Mendel was estranged from her sister and it is not clear
how her testimony could have been of benefit to the defense. The Commonwealth
alleges that her husband, Dr. Stanley Mendel, is living and is available for trial. The trust
that was paying Barbara Rabins expenses was managed by a bank, so the trust
agreement and the details of trust management are available to the defense. I find that
the defendants have not shown actual prejudice resulting in the delay in the
prosecution.
Likewise, I find that the Commonwealth had a reasonable basis in continuing to
investigate the circumstances of Barbara Rabins' death and that part of the delay after
the gathering of Barbara Rabins' medical records was caused by the use of the grand
jury to pursue the investigation. The motion will be denied.
II. Defendant's Request for Change of Venue
Tina Tedesco presented articles of media coverage from the Pocono Record,
dated July 10, 2013, July 11, 2013, July 12, 2013, September 20, 2013 and February 4,
2014; PoconoNews.Net, dated September 20, 2013, the Times News Online dated July
11, 2013; LehighValleylive.com, dated July 10, 2013; and the Morning Call dated July
10, 2013. Story copy was presented from WNEP dated July 10, 2013 and September
12
19, 2013; from 69 News dated July 10, 2013. Defendant's Exhibit 1. Ms. Tedesco
argues that there has been an "overwhelming amount of adverse and inflammatory
pretrial publicity by media serving Monroe County, Pennsylvania." Defendant's brief.
The question presented by a motion for change of venue is whether it is possible
to obtain jurors who have not formed fixed opinions of the defendant's guilt or innocence
as a result of the pre-trial publicity. Commonwealth v. Bachert, 453 A.2d 931 (Pa.1982).
Pre-trial publicity will be deemed inherently prejudicial where the publicity is sensational,
inflammatory, slanted towards conviction rather than factual and objective; revealed that
the accused had a criminal record; referred to confessions, admissions or re-
enactments of the crime by the accused; or derived from reports from the police and
prosecuting officers. Commonwealth v. Pursell, 495 A.2d 183 (Pa.1985). However, even
if one of these elements exists, a change of venue will not be required where there has
been sufficient time between publication and trial for the prejudice to dissipate.
Commonwealth v. Casper, 392 A.2d 287 (Pa.1978), Commonwealth v, Gorby, 588 A.2d
at 902,906 (Pa.1991).
A review of the news reports indicates that they were based upon reports of the
police, prosecuting officers, admissions of the defendants and testimony at the
preliminary hearing. However, significant time has passed since this coverage took
place. The articles and coverage appeared at the time of the Tedescos' arrest and their
preliminary hearing in September, 2013. Since that time there has only been one article
in the Pocono Record in February, 2014 when the case was listed for trial.
13
"[T]he pivotal question in determining whether an impartial jury may be selected
is not whether prospective jurors have knowledge of the crime being tried, or have even
formed an initial opinion based on the news coverage they had been exposed to, but,
rather, whether it is possible for those jurors to set aside their impressions or preliminary
opinions and render a verdict solely based on the evidence presented to them at trial."
Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 314 (2011).
Ms. Tedesco will be given the opportunity of individual voir dire at the time of jury
selection. A determination can be made at that time whether it is possible to obtain an
impartial jury. The motion will be denied, with the right to renew the motion if necessary
during jury selection.
Ill. Tina Tedesco's Statements to the State Police on August 24. 2011
Tina Tedesco has requested the court to suppress the statements she made to
the police on August 24, 2011. She was questioned three times; once when her home
was being searched and twice after she went to the State Police barracks on the night
of August 24, 2011. No Miranda warnings were given to her before she was questioned.
Miranda rights are required only prior to a custodial interrogation. Commonwealth
v. Housman, 986 A.2d 822, 839 (Pa.2009), cert. denied, - U.S.--, 131 S. Ct. 199,
178 L. Ed. 2d 120 (2010). "Custodial interrogation is 'questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived
of [his] freedom of action in any significant way.' " Commonwealth v. Gonzalez, 979
A.2d 879, 887-88 (Pa.Super.2009), quoting Miranda v. Arizona, 384 U.S. 436, 444, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Volunteered statements by an individual are
14
admissible without the administration of Miranda warnings. Id. See also, Commonwealth
v. Cornelius, 856 A.2d 62, 75 (Pa.Super.2004), appeal denied, 586 Pa. 755, 895 A.2d
548 (2006). Commonwealth v. Garvin 50 A.3d 694, 698 (Pa.Super.2012). "The test for
determining whether a suspect is in custody is whether the suspect is physically
deprived of his freedom in any significant way or is placed in a situation in which he
reasonably believes that his freedom of action or movement is restricted."
Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1134 (2007); Commonwealth v.
McCarthy, 820 A.2d 757, 759-760 (Pa.Super.2003). This standard is an objective one,
which takes into consideration the reasonable impressions of the person being
interrogated. McCarthy, 820 A.2d at 759-760 (citations omitted). The test "does not
depend upon the subjective intent of the law enforcement officer interrogator," but
instead "focuses on whether the individual being interrogated reasonably believes his
freedom of choice is being restricted." Commonwealth v. Hayes, 755 A.2d 27, 33-34
(Pa.Super.2000), quoting Commonwealth v. Gibson, 720 A.2d 473, 480 (Pa.1998). The
fact that the police may have "focused" on the individual being questioned or that the
interviewer believes the interviewee is a suspect is irrelevant to the issue of custody.
Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 18 (2003). "A person is considered
to be in custody for the purposes of Miranda when the officer's show of authority leads
the person to believe that she was not free to decline the officer's request, or otherwise
terminate the encounter. Hayes, 755 A.2d at 33-34." Commonwealth v. Page 965 A.2d
1212, 1217 -1218 (Pa.Super.2009).
15
Tina Tedesco was questioned by the police three times on August 24, 2011. The
first occasion was in her home when the state police came to execute the search
warrant. Corporal William Gross of the Pennsylvania State Police oversaw the search of
the Tedesco home. When the police arrived to conduct the search, Tina Tedesco was
home with her daughter. Corporal Gross "escorted them to the kitchen area and Mrs.
Tedesco and her daughter and (Corporal Gross) remained in the kitchen for the entire
time the search warrant was being conducted." NT 49. The search took approximately
30 minutes. Id. Ms. Tedesco was told the purpose of the search was to investigate
questions raised by the coroner about the death of Barbara Rabins. NT 77. While Ms.
Tedesco was in the kitchen with Corporal Gross, he asked her about her relationship
with Barbara Rabins and where Ms. Rabins lived. Id.
Although Tina Tedesco's freedom of movement was restricted during the search,
these questions about the background of where Barbara Rabins lived and who took
care of her in the Tedesco home did not amount to a custodial interrogation. Specifically
excluded from custodial interrogation (in the Miranda decision) was '(g)eneral on-the-
scene questioning as to facts surrounding a crime or other general questioning of
citizens in the fact-finding process .. .' Miranda, supra, 86 S.Ct. at 1629. This type of
questioning was excluded since '(i)n such situations the compelling atmosphere
inherent in the process of in custody interrogation is not necessarily present.' Id. at 478,
86 S.Ct. at 1630. (Footnote omitted.) As relates to questioning during the execution of a
search warrant, no Pennsylvania appellate case has been found but another appellate
court has stated:
16
(w)e do not think that the fact that a person is present and ls requested to
be seated during the execution of a search warrant in itself creates custody ....
(Wells v. United States, D.C.App., 281 A.2d 226, 228 (1971).)
Tyler v. U. S. 298 A.2d 224, 226 (D.C. 1972).
Here Corporal Gross's questions appear to be the general fact-gathering
questioning excluded from the Miranda holding. The Tedescos had already told the
deputy coroner that Barbara Rabins lived there. Trooper Gross asked Tina Tedesco
where she stayed in the house and how the T edescos had come to care for her.
Viewing the relevant factors surrounding the interview, I find that there was no custodial
interrogation in the house of the kind addressed in Miranda, and therefore the request to
suppress the statements will be denied.
Ms. Tedesco also seeks to suppress her statements to the police at the barracks.
The state police asked the Tedescos to come to the barracks to answer questions as
the police were leaving the Tedesco home. The decision to go to the barracks and give
a statement was left up to the Tedescos. The Tedescos chose to go to the barracks to
answer the troopers' questions. After having reviewed the audiotapes of the two
interviews of Tina Tedesco, I find that the police did subject her to interrogation, but that
it was not a custodial interrogation, and therefore Miranda warnings were not required.
Ms. Tedesco signed in to the barracks as a visitor; she was advised that she was
not under arrest and was free to leave. She repeatedly acknowledged that she
understood this. Although she was questioned in a closed room, the door was not
locked and she was not restrained in any way. The police exhibited no force toward her.
17
When the police finished questioning her, she left the barracks and waited for her
husband in the parking lot.
The police later came out to her car and asked her to return for additional
questions after they concluded questioning John Tedesco. She again agreed to come
into the barracks. This questioning lasted ten minutes. She acknowledged that she
understood she was free to leave during the questioning.
These statements were not made while Tina Tedesco was in custody and will not
be suppressed.
JV. Motion to Dismiss
Ms. Tedesco seeks the dismissal of all charges, contending that the
Commonwealth has not established a prima facie case in any of them. A prima facie
case consists of evidence, read in the light most favorable to the Commonwealth, that
sufficiently establishes both the commission of a crime and that the accused is probably
the perpetrator of that crime. Commonwealth v. Miller, 810 A.2d 178, 181
(Pa.Super.2002). In determining the presence or absence of a prima facie case,
inferences reasonably drawn from the evidence of record that would support a verdict of
guilty are to be given effect, but suspicion and conjecture are not evidence and are
unacceptable as such. Id. A prima facie case in support of an accused's guilt consists of
evidence that, if accepted as true, would warrant submission of the case to a jury.
Commonwealth v. Packard, 767 A.2d 1068, 1070-71 (Pa.Super.2001 ), appeal denied,
566 Pa. 660, 782 A.2d 544 (2001). The evidence must demonstrate the existence of
18
each of the material elements of the crime charged. Commonwealth v. Wojdak, 466
A.2d 991 (Pa. 1983).
Third Degree Murder
The Pennsylvania Crimes Code provides:
§ 2501. Criminal homicide
(a) Offense defined.--A person is guilty of criminal homicide if he intentionally,
knowingly, recklessly or negligently causes the death of another human being.
(b) Classification.--Criminal homicide shall be classified as murder, voluntary
manslaughter, or involuntary manslaughter
18 Pa.C.S.A. § 2501.
§ 2502. Murder
... (c) Murder of the third degree.--AII other kinds of murder shall be murder of
the third degree. Murder of the third degree is a felony of the first degree.
18 Pa.C.S.A. § 2502.
To convict a defendant of the offense of third degree murder, the Commonwealth
must prove that the defendant killed another person with malice aforethought. The
Pennsylvania Supreme Court has often held that malice comprehends not only a
particular ill-will, but also a wickedness of disposition, hardness of heart, recklessness
of consequences, and a mind regardless of social duty. Commonwealth v. Santos, 583
Pa. 96, 876 A.2d 360, 363 (Pa. 2005). See also Commonwealth v. Drum, 58 Pa. 9, 15
(Pa. 1868) (defining malice as quoted above). The supreme court has further noted:
[T]hird degree murder is not a homicide that the Commonwealth must prove was
committed with malice and without a specific intent to kill. Instead, it is a homicide
that the Commonwealth must prove was committed with malice, but one with
respect to which the Commonwealth need not prove, nor even address, the
presence or absence of a specific intent to kill. Indeed, to convict a defendant for
third degree murder, the jury need not consider whether the defendant had a
specific intent to kill, nor make any finding with respect thereto. Commonwealth
19
--
v. Meadows, 787 A2d 312, 317 (Pa.2001) (quoting Commonwealth v. Young,
748 A.2d 166, 174-75 (Pa.1999)).
Commonwealth v. Fisher 80A.3d 1186, 1191 (Pa. 2013).
The Commonwealth's case against Tina Tedesco is based upon her failure to
provide for the basic necessities of life for Barbara Rabins. The Commonwealth
contends that the Tedescos were receiving more than $3,000 per month from Barbara
Rabins' trust fund to pay for those necessities. The Commonwealth cites
Commonwealth v. Pestinikas, 617 A.2d 1339 (Pa.Super. 1992) to support its case. The
Pestinikas court considered facts similar to those presented by the Commonwealth's
evidence here. There a paid caregiver for an elderly man failed to provide necessary
food, shelter and medical care which eventually resulted in the man's death. The court
held that:
... when, in 18 Pa.C.S. § 301(b)(2), the statute provides that an omission to do an
act can be the basis for criminal liability if a duty to perform the omitted act has
been imposed by law, the legislature intended to distinguish between a legal duty
to act and merely a moral duty to act. A duty to act imposed by contract is legally
enforceable and, therefore, creates a legal duty. It follows that a failure to
perform a duty imposed by contract may be the basis for a charge of criminal
homicide if such failure causes the death of another person and all other
elements of the offense are present. Because there was evidence in the instant
case that Kly's death had been caused by appellants' failure to provide the food
and medical care which they had agreed by oral contract to provide for him, their
omission to act was sufficient to support a conviction for criminal homicide, and
the trial court was correct when it instructed the jury accordingly.
Id. at 1344-1345.
The Pestinikas court went further in its holding, requiring proof of malice:
the omission to act will not support a prosecution for homicide in the absence of
the necessary mens rea. For murder, there must be malice. Without a malicious
intent, an omission to perform duties having their foundation in contract cannot
support a conviction for murder. In the instant case, therefore, the jury was
required to find that appellants, by virtue of contract, had undertaken
20
responsibility for providing necessary care for Kly to the exclusion of the
members of Kly's family. This would impose upon them a legal duty to act to
preserve Kly's life. If they maliciously set upon a course of withholding food and
medicine and thereby caused Kly's death, appellants could be found guilty of
murder.
Id. at 1345.
The Commonwealth's evidence here is that the Tedescos had a legal obligation
to provide life-sustaining care to Barbara Rabins. They kept her in isolation from her
family members and the public; they received compensation for her care; she had
mental and physical disabilities and had sustained a stroke. She was entirely dependent
upon the Tedescos for the necessities of life. Since the Tedescos were not using the
funds they were receiving to bring in nursing care, that included tending to her
incontinence and pressure wounds in addition to providing food, clothing and shelter
and necessary medical care. In her weakened and dehydrated condition, it also
required much closer supervision than she was being given, including supervision while
she ate.
Barbara Rabins cause of death was dehydration and choking on cheese.
However, the autopsy report showed a gross neglect of her daily needs, which led to
extensive pressure wounds and infections. The evidence also suggests that the
Tedescos did not keep her with them in their home, but rather had her alone in a small
apartment on Route 115. A jury could find that this combination of neglect and leaving
her alone in a greatly weakened, dehydrated condition, unable to care for herself, led to
her death.
21
Evidence of malice is also present. A jury could properly find that the Tedescos'
neglect of Barbara Rabins and their failure to get her needed nursing and medical care
was motivated by greed. The Tedescos had more than sufficient monies from the
Rabins' trust fund to provide proper care to Ms. Rabins and still receive adequate
compensation. Their appropriation of her funds while they dangerously neglected her
constituted "wickedness of disposition, hardness of heart, recklessness of
consequences, and a mind regardless of social duty." The Commonwealth has
established a prima facie case.
The Commonwealth has also established a prima facie case of conspiracy to
commit murder. The essence of criminal conspiracy is the agreement between co-
conspirators to aid or commit an unlawful act with shared criminal intent, and an overt
act in furtherance of the conspiracy. Commonwealth v. Rios, 684 A.2d 1025 (Pa. 1996)
The evidence presented supports a jury finding that the defendants acted in
concert in receiving the Rabin trust funds and depriving the decedent of necessary food,
nursing and medical care. The Commonwealth does not have to establish that the
defendants intended to kill the victim to be convicted of third-degree murder. If they
maliciously intended to deprive Barbara Rabins of necessary food, supplies, nursing
and medical care for their own financial gain, which led to her death, they can be
convicted of conspiracy to murder. See Commonwealth v. Fisher, supra. Again, the
Commonwealth has established a prima facie case.
22
Neglect of Care of a Dependent Person
The Crimes Code provides:
18 Pa.C.5. § 2713. Neglect of care-dependent person.
(a) Offense defined.-- A caretaker is guilty of neglect of a care-dependent
person if he:
(1) Intentionally, knowingly or recklessly causes bodily injury or serious bodily
injury by failing to provide treatment, care, goods or services necessary to
preserve the health, safety or welfare of a care-dependent person for whom he is
responsible to provide care.
18 Pa.C.S.A. § 2713.
Subsection (f) defines "care-dependent person" as "(a)ny adult who, due to
physical or cognitive disability or impairment, requires assistance to meet his needs for
food, shelter, clothing, personal care or health care."
For the reasons cited above, the Commonwealth has produced sufficient
evidence of Tina Tedesco's violation of this statute for the case to go to the jury.
The Theft Offenses
The offense of Theft by Unlawful Taking-Movable Property is defined at section
3921 of the Crimes Code as follows: "A person is guilty of theft if he unlawfully takes, or
exercises unlawful control over, movable property of another with intent to deprive him
thereof." 18 Pa. Cons.Stat.Ann. § 3921(a). A challenge to a prima facie case of theft
was considered in the case of Commonwealth v. McCullough, 86 A.3d 896 (Pa. Super.
2014). There the defendant provided caregiver services to a person using a power of
attorney at a rate which the Commonwealth alleged was exorbitant, and used the
23
money to pay his own debts. The superior court held that under these facts a prirna
facie case of theft was established:
we find this sufficient so that a jury could reasonably infer from the
circumstances that McCullough intended to deprive the victim of her money in
order to pay off her outstanding invoices.
Id. at 899.
Based upon the holding in McCullough, the Commonwealth has established a
prima facie case of theft of Barbara Rabins' funds by Tina Tedesco, who allegedly used
the Rabin trust funds for her own purposes rather than the nursing and medical care of
Barbara Rabins. For the same reasons, the Commonwealth has established a prirna
facie case of Count 5, Theft by Failure to Make Requisite Disposition of Funds.
Tampering with Evidence
The Crimes Code provides:
§ 4910. Tampering with or fabricatingphysicalevidence
A person commits a misdemeanor of the second degree if, believing that an
official proceeding or investigation is pending or about to be instituted, he:
(1) alters, destroys, conceals or removes any record, document or thing with
intent to impair its verity or availability in such proceeding or investigation;
18 Pa.C.S.A. § 4910.
Here the Commonwealth alleges that the Tedescos destroyed evidence of
Barbara Rabins' care at their residence and moved the decedent's body from the
apartment on Route 115 to their home in an attempt to trick the authorities into believing
that Barbara Rabins was being cared for and died in their residence.
To establish the offense of tampering with evidence, the Commonwealth must
prove three interrelated elements: (1) the defendant knew that an official proceeding or
24
investigation was pending [or about to be instituted]; (2) the defendant altered,
destroyed, concealed, or removed an item; and (3) the defendant did so with the intent
to impair the verity or availability of the item to the proceeding or investigation.
Commonwealth v. Jones, 904 A.2d 24, 26 (Pa.Super.2006), appeal denied, 591 Pa.
690, 917 A.2d 845 (2006) (citing Commonwealth v. Morales, 447 Pa.Super. 491, 669
A.2d 1003, 1005 (1996)) (citing 18 Pa.C.S.A. § 4910(1)). Commonwealth v. Yasipour,
957 A.2d 734, 745 (Pa.Super.2008).
The Commonwealth has met its burden of a prima facie case.
V. Motion for Severance
Tina Tedesco seeks a severance of her trial from John Tedesco's trial. She
argues that she will be prejudiced by a joint trial because of the introduction of her
husband's statements to police which implicate her. The Confrontation Clause of the
Sixth Amendment to the United States Constitution provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right ... to be confronted by witnesses against
him.... " U.S. Const. amend. VI. In Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620,
20 L. Ed. 2d 476 (1968), the U.S. Supreme Court held that a defendant "is deprived of his
rights under the Confrontation Clause when his nontestifying codefendant's confession
naming him as a participant in the crime is introduced at their joint trial, even if the jury
is instructed to consider that confession only against the codefendant." Richardson v.
Marsh, 481 U.S. 200, 201-202, 107 S. Ct. 1702, 1704, 95 L. Ed. 2d 176 (1987)
(summarizing holding of Bruton ). However, the Bruton holding was limited in later
decisions. In Richardson, the Supreme Court held that the "Confrontation Clause is not
25
violated by the admission of a non-testifying co-defendant's confession with a proper
limiting instruction when . . . the confession is redacted to eliminate not only the
defendant's name, but any reference to his or her existence." Richardson, 481 U.S. at
211, 107 S. Ct. 1702.
The Pennsylvania Supreme Court has held that substituting the neutral phrase
"the guy" or "the other guy" for the defendant's name is an appropriate redaction. See
Commonwealth v. Travers, 564 Pa. 362, 768 A.2d 845, 851 (2001).
Pennsylvania appellate decisions have also distinguished a codefendant's
confession that "expressly implicates" the accused from one that is inculpatory only
when linked with evidence properly introduced at trial. Richardson, 481 U.S. at 208, 107
S.Ct. at 1707. Accordingly, in Richardson, the U.S. Supreme Court declined to extend
its holding in Bruton to a co-defendant's confession that was redacted to omit any
reference to the defendant, but could be linked to the defendant by inferential
incrimination. Id. at 211, 107 S.Ct. at 1709. "Likewise, our state Supreme Court has
upheld this distinction as it emphasized there is no Bruton violation when the accused is
linked to the crime with other properly admitted evidence other than the redacted
confession; it is "a permissible instance of contextual implication." Commonwealth v.
Cannon, 22 A.3d 210, 219 (Pa. 2011); Commonwealth v. James 66 A.3d 771, 777
(Pa.Super.2013).
The Commonwealth points out that most of John Tedesco's references to Tina
Tedesco are indirect, such as "we did the best we could." I agree that such statements
do not run afoul of Bruton because they do not directly reference Tina Tedesco. The
26
Commonwealth suggests that where John directly implicates Tina, a redaction will be
made to substitute "the other person" for Tina's name. The defendants' statements are
audiotaped, so it remains to be seen how they will be presented to the jury; if redaction
of an express reference to the other defendant is not possible, the evidence will not be
allowed.
The other reason Tina Tedesco requests severance is because she wishes to
invoke the spousal privilege found at 42 Pa.C.S.A. §5913. That statute provides as
follows:
§ 5913. Spouses as witnesses against each other
Except as otherwise provided in this subchapter, in a criminal proceeding a
person shall have the privilege, which he or she may waive, not to testify against
his or her then lawful spouse except that there shall be no such privilege:
(1) in proceedings for desertion and maintenance;
(2) in any criminal proceeding against either for bodily injury or violence
attempted, done or threatened upon the other, or upon the minor children of said
husband and wife, or the minor children of either of them, or any minor child in
their care or custody, or in the care or custody of either of them;
(3) applicable to proof of the fact of marriage, in support of a criminal charge of
bigamy alleged to have been committed by or with the other; or
(4) in any criminal proceeding in which one of the charges pending against the
defendant includes murder, involuntary deviate sexual intercourse or rape.
42 Pa.C.S.A. § 5913.
The fourth exception above addresses this case, where there is a murder charge.
Accordingly, the right to refuse to testify against her husband is not available to Ms.
Tedesco.
27
The Pennsylvania Supreme Court addressed the status of spousal privilege after
the enactment of the current law in 1989:
To paraphrase the rules with regard to spousal testimony, a husband or
wife is now deemed competent to testify against his or her spouse, but has a
privilege to refuse to give adverse testimony, which he or she may waive. There
is no privilege to refuse to testify against a spouse in four distinct situations: (1)
actions for desertion and maintenance; (2) cases where the one spouse is
charged with threatening, attempting, or committing acts of bodily injury or
violence against the other or against any child in their care; (3) cases of bigamy;
or (4) cases where one of the charges is murder, rape, or involuntary deviate
sexual intercourse. Even if a husband or wife may be called to give testimony
adverse to his or her spouse, however, he or she is not competent to testify to
confidential communications. Nevertheless, should the defense attack a spouse's
character or conduct, the attacked spouse is a competent witness and may
testify even to confidential communications.
Commonwealth v. Newman, 633 A.2d 1069, 1072 (Pa. 1993).
Tina Tedesco has a Fifth Amendment right not to testify in the trial. She does not
have the right to exercise a spousal privilege not to testify against her husband because
of the murder exception to the statute. Should John Tedesco choose to testify in the
trial, she would be entitled to assert the bar to confidential communications between
spouses found in 42 Pa.C.S.A. §5914. But see Commonwealth v. Hunter, 60 A.3d 156
(Pa.Super. 2013) (where a defendant-spouse is the alleged perpetrator in current child
abuse proceedings and where that abuse forms the basis of criminal proceedings
against that defendant-spouse, the section 5914 privilege shall not apply at the
defendant's criminal trial to preclude admission of spousal communications).
Tina T edesco's Omnibus Pretrial Motion also included a request to exclude
autopsy photographs at trial. However, she has not briefed this issue. I will address this
motion as a motion in lirnine and will rule on any objections at time of trial.
28
She has also requested an appointment of an independent forensic examiner but
has not briefed that either. If she wishes to pursue this relief, that should be done by
motion.
Finally, she has requested an order preventing spoliation of evidence. This has
been addressed by an order issued at the time of the hearing.
29
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
COMMONWEAL TH OF PENNSYLVANIA, No. 2229 CR 2013
vs.
TINA TEDESCO,
Defendant
ORDER
AND NOW, this 201h day of June, 2014, after consideration of Defendant Tina
Tedesco's Omnibus Pretrial Motion, and the parties' briefs, IT IS ORDERED as follows:
1 . The motion is denied in all respects.
2. A status conference shall be held on June 30, 2014 at 2:00 o'clock p.m. in
Courtroom No. 5, Monroe County Courthouse, Stroudsburg, Pennsylvania.
BY THE COURT:
cc: Michael Mancuso, Esquire, First Assistant D.A.
,........,
Robin Spishock, Esquire, Public Defender
Brian Gaglione, Esquire
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COURT OF COMMON PLEAS OF MONROE COUNTY
43RD JUDICIAL DISTRICT
COMMONWEAL TH OF PENNSYLVANIA
COMMONWEAL TH OF PENNSYLVANIA 2229 CR 2013
Vs
TINA TEDESCO
OPINION& ORDER
Date
Date:
Date:
I, Mindy Ditmars, depose the said attached Opinion/Order in the above mentioned manner on
June 20, 2014.
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Mindy Ditmars, Clerk